exv10w1






Exhibit 10




Execution Copy




REVOLVING CREDIT AGREEMENT



dated as of November 19, 2010



among



INTERNATIONAL SPEEDWAY CORPORATION

as Borrower,



THE LENDERS FROM TIME TO TIME PARTY HERETO,



WELLS FARGO BANK, N.A.,

as Administrative Agent,



SUNTRUST BANK

and

JPMORGAN CHASE BANK, N.A.,

as Co-Syndication Agents

and



BANK OF AMERICA, N.A.,

REGIONS BANK

and

U.S. BANK N.A.

as Co-Documentation Agents



 




SUNTRUST ROBINSON HUMPHREY, INC.

and

J.P. MORGAN SECURITIES LLC,


as Joint Lead Arrangers and Joint Book Manager









 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 
	DEFINITIONS; CONSTRUCTION
	 	 	1	 
	Section 1.1. Definitions
	 	 	1	 
	Section 1.2. Classifications of Loans and Borrowings
	 	 	26	 
	Section 1.3. Accounting Terms and Determination
	 	 	27	 
	Section 1.4. Terms Generally
	 	 	27	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	AMOUNT AND TERMS OF THE COMMITMENTS
	 	 	27	 
	Section 2.1. General Description of Facilities
	 	 	27	 
	Section 2.2. Revolving Loans
	 	 	28	 
	Section 2.3. Procedure for Revolving Borrowings
	 	 	28	 
	Section 2.4. Swingline Commitment
	 	 	28	 
	Section 2.6. Funding of Borrowings
	 	 	30	 
	Section 2.7. Interest Elections
	 	 	30	 
	Section 2.8. Optional Reduction and Termination of Commitments
	 	 	31	 
	Section 2.9. Repayment of Loans
	 	 	32	 
	Section 2.10. Evidence of Indebtedness
	 	 	32	 
	Section 2.11. Optional Prepayments
	 	 	32	 
	Section 2.12. Mandatory Prepayments
	 	 	33	 
	Section 2.13. Interest on Loans
	 	 	33	 
	Section 2.14. Fees
	 	 	34	 
	Section 2.15. Computation of Interest and Fees
	 	 	35	 
	Section 2.16. Inability to Determine Interest Rates
	 	 	35	 
	Section 2.17. Illegality
	 	 	35	 
	Section 2.18. Increased Costs
	 	 	36	 
	Section 2.19. Funding Indemnity
	 	 	37	 
	Section 2.20. Taxes
	 	 	37	 
	Section 2.21. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	39	 
	Section 2.22. Letters of Credit
	 	 	41	 
	Section 2.23. Increase of Commitments; Additional Lenders
	 	 	45	 
	Section 2.24. Mitigation of Obligations
	 	 	46	 
	Section 2.25. Replacement of Lenders
	 	 	46	 
	Section 2.26. Reallocation and Cash Collateralization of Defaulting Lender or Potential Defaulting Lender Commitment
	 	 	47	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
	 	 	48	 
	Section 3.1. Conditions To Effectiveness
	 	 	48	 
	Section 3.2. Each Credit Event
	 	 	50	 






 









 






	 	 	 	 	 
	 	 	Page
	Section 3.3. Delivery of Documents
	 	 	51	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES
	 	 	51	 
	Section 4.1. Existence; Power
	 	 	51	 
	Section 4.2. Organizational Power; Authorization
	 	 	51	 
	Section 4.3. Governmental Approvals; No Conflicts
	 	 	51	 
	Section 4.4. Financial Statements
	 	 	52	 
	Section 4.5. Litigation and Environmental Matters
	 	 	52	 
	Section 4.6. Compliance with Laws
	 	 	52	 
	Section 4.7. Investment Company Act, Etc.
	 	 	52	 
	Section 4.8. Taxes
	 	 	53	 
	Section 4.9. Margin Regulations
	 	 	53	 
	Section 4.10. ERISA
	 	 	53	 
	Section 4.11. Disclosure
	 	 	53	 
	Section 4.12. Subsidiaries
	 	 	53	 
	Section 4.13. Solvency
	 	 	53	 
	Section 4.14. OFAC
	 	 	53	 
	Section 4.15. Patriot Act
	 	 	54	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	AFFIRMATIVE COVENANTS
	 	 	54	 
	Section 5.1. Financial Statements and Other Information
	 	 	54	 
	Section 5.2. Notices of Material Events
	 	 	55	 
	Section 5.3. Existence; Conduct of Business
	 	 	56	 
	Section 5.4. Compliance with Laws, Etc.
	 	 	56	 
	Section 5.5. Payment of Obligations
	 	 	56	 
	Section 5.6. Books and Records
	 	 	56	 
	Section 5.7. Visitation, Inspection, Etc.
	 	 	56	 
	Section 5.8. Maintenance of Properties; Insurance
	 	 	57	 
	Section 5.9. Use of Proceeds and Letters of Credit
	 	 	57	 
	Section 5.10. Additional Subsidiaries
	 	 	57	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	FINANCIAL COVENANTS
	 	 	57	 
	Section 6.1. Leverage Ratio
	 	 	57	 
	Section 6.2. Interest Coverage Ratio
	 	 	58	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	NEGATIVE COVENANTS
	 	 	58	 
	Section 7.1. Indebtedness
	 	 	58	 
	Section 7.2. Negative Pledge
	 	 	59	 
	Section 7.3. Fundamental Changes
	 	 	59	 
	 
	 	 	 	 
	 ii 






 









 






	 	 	 	 	 
	 	 	Page
	Section 7.4. Investments, Loans, Etc.
	 	 	59	 
	Section 7.5. Restricted Payments
	 	 	60	 
	Section 7.6. Sale of Assets
	 	 	60	 
	Section 7.7. Transactions with Affiliates
	 	 	61	 
	Section 7.8. Restrictive Agreements
	 	 	61	 
	Section 7.9. Accounting Changes
	 	 	62	 
	Section 7.10. Government Regulation
	 	 	62	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	EVENTS OF DEFAULT
	 	 	62	 
	Section 8.1. Events of Default
	 	 	62	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	THE ADMINISTRATIVE AGENT
	 	 	64	 
	Section 9.1. Appointment of Administrative Agent
	 	 	64	 
	Section 9.2. Nature of Duties of Administrative Agent
	 	 	65	 
	Section 9.3. Lack of Reliance on the Administrative Agent
	 	 	65	 
	Section 9.4. Certain Rights of the Administrative Agent
	 	 	66	 
	Section 9.5. Reliance by Administrative Agent
	 	 	66	 
	Section 9.6. The Administrative Agent in its Individual Capacity
	 	 	66	 
	Section 9.7. Successor Administrative Agent
	 	 	66	 
	Section 9.8. Withholding Tax
	 	 	67	 
	Section 9.9. Administrative Agent May File Proofs of Claim
	 	 	67	 
	Section 9.10. Authorization to Execute other Loan Documents
	 	 	68	 
	Section 9.11. Syndication Agent
	 	 	68	 
	 
	 	 	 	 
	ARTICLE X
	 	 	 	 
	 
	 	 	 	 
	MISCELLANEOUS
	 	 	68	 
	Section 10.1. Notices
	 	 	68	 
	Section 10.2. Waiver; Amendments
	 	 	71	 
	Section 10.3. Expenses; Indemnification
	 	 	72	 
	Section 10.4. Successors and Assigns
	 	 	73	 
	Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	77	 
	Section 10.6. WAIVER OF JURY TRIAL
	 	 	77	 
	Section 10.7. Right of Setoff
	 	 	77	 
	Section 10.8. Counterparts; Integration
	 	 	78	 
	Section 10.9. Survival
	 	 	78	 
	Section 10.10. Severability
	 	 	78	 
	Section 10.11. Confidentiality
	 	 	78	 
	Section 10.12. Interest Rate Limitation
	 	 	79	 
	Section 10.13. Reserved
	 	 	79	 
	Section 10.14. Patriot Act
	 	 	79	 
	Section 10.15. No Advisory or Fiduciary Responsibility
	 	 	79	 
	Section 10.16. Location of Closing
	 	 	80	 
	 
	 	 	 	 
	 iii 






 









 






	 	 	 	 	 

	Schedules
	 	 	 	 
	     Schedule I

	 	-
	 	Applicable Margin and Applicable Percentage
	     Schedule II

	 	-
	 	Commitment Amounts
	     Schedule 2.22

	 	-
	 	Existing Letters of Credit
	     Schedule 4.5

	 	-
	 	Environmental Matters
	     Schedule 4.12

	 	-
	 	Subsidiaries
	     Schedule 7.1

	 	-
	 	Outstanding Indebtedness
	     Schedule 7.2

	 	-
	 	Existing Liens
	     Schedule 7.4

	 	-
	 	Existing Investments
	     Schedule 7.6

	 	-
	 	Sale Leaseback Transactions
	     Schedule 7.8

	 	-
	 	Restrictions on Subsidiary Indebtedness
	 
	 	 	 	 
	Exhibits
	 	 	 	 
	 
	 	 	 	 
	     Exhibit A

	 	-
	 	Form of Assignment and Acceptance
	     Exhibit B

	 	-
	 	Form of Subsidiary Guaranty Agreement
	 
	 	 	 	 
	     Exhibit 2.3

	 	-
	 	Form of Notice of Revolving Borrowing
	     Exhibit 2.4

	 	-
	 	Form of Notice of Swingline Borrowing
	     Exhibit 2.7

	 	-
	 	Form of Notice of Continuation/Conversion
	     Exhibit 3.1(b)(iv)

	 	-
	 	Form of Secretary’s Certificate
	     Exhibit 3.1(b)(vii)

	 	-
	 	Form of Officer’s Certificate
	     Exhibit 5.1(c)

	 	-
	 	Form of Compliance Certificate






 iv 



 









 





REVOLVING CREDIT AGREEMENT




          THIS REVOLVING CREDIT AGREEMENT (this “Agreement”) is made and entered into as of
November 19, 2010, by and among INTERNATIONAL SPEEDWAY CORPORATION, a Florida corporation (the
“Borrower”), the several banks and other financial institutions and lenders from time to
time party hereto (the “Lenders”), WELLS FARGO BANK, N.A., in its capacity as
administrative agent for the Lenders (the “Administrative Agent”), as issuing bank (the
“Issuing Bank”) and as swingline lender (the “Swingline Lender”) and SUNTRUST BANK
and JPMORGAN CHASE BANK, N.A., as co-syndication agents (the “Co-Syndication Agents”).




W I T N E S S E T H:




          WHEREAS, the Borrower has requested that the Lenders establish a $300,000,000 revolving credit
facility in favor of the Borrower;




          WHEREAS, subject to the terms and conditions of this Agreement, the Lenders, the Issuing Bank
and the Swingline Lender to the extent of their respective Commitments as defined herein, are
willing severally to establish the requested revolving credit facility, letter of credit
subfacility and the swingline subfacility in favor of the Borrower;




          NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
the Borrower, the Lenders, the Administrative Agent, the Co-Syndication Agents, the Issuing Bank
and the Swingline Lender agree as follows:




ARTICLE I




DEFINITIONS; CONSTRUCTION



     Section 1.1. Definitions. In addition to the other terms defined herein,
the following terms used herein shall have the meanings herein specified (to be equally applicable
to both the singular and plural forms of the terms defined):



          “Acquisition” shall mean, with respect to any Person the acquisition a single
transaction or in a series of related transactions of either (a) all or any substantial portion of
the Property of, or a line of business, product line, or division of, another Person or (b) Capital
Stock of another Person such that after giving effect to such acquisition such other Person shall
be a Subsidiary, in each case whether or not involving a merger or consolidation with such other
Person.




          “Additional Commitment Amount” shall have the meaning given to such term in Section
2.23.




          “Additional Lender” shall have the meaning given to such term in Section 2.23.




          “Adjusted LIBO Rate” shall mean, with respect to each Interest Period for a Eurodollar
Borrowing, the rate per annum obtained by dividing (i) LIBOR for such Interest Period by (ii) a
percentage equal to 1.00 minus the Eurodollar Reserve Percentage.




          “Administrative Agent” shall have the meaning assigned to such term in the opening
paragraph hereof.







 









 








          “Administrative Agent Fee Letter” shall mean that certain fee letter, dated as of
November 15, 2010, executed by the Administrative Agent and accepted by Borrower.




          “Administrative Questionnaire” shall mean, with respect to each Lender, an
administrative questionnaire in the form provided by the Administrative Agent and submitted to the
Administrative Agent duly completed by such Lender.




          “Affiliate” shall mean, as to any Person, any other Person that directly, or
indirectly through one or more intermediaries, Controls, is Controlled by, or is under common
Control with, such Person. For the purposes of this definition, “Control” shall mean the power,
directly or indirectly, either to (i) vote 25% or more of the securities having ordinary voting
power for the election of directors (or persons performing similar functions) of a Person or (ii)
direct or cause the direction of the management and policies of a Person, whether through the
ability to exercise voting power, by control or otherwise. The terms “Controlling”, “Controlled
by”, and “under common Control with” have the meanings correlative thereto.




          “Aggregate Revolving Commitment Amount” shall mean the aggregate principal amount of
the Aggregate Revolving Commitments from time to time. On the Closing Date, the Aggregate
Revolving Commitment Amount is $300,000,000.




          “Aggregate Revolving Commitments” shall mean, collectively, all Revolving Commitments
of all Lenders at any time outstanding.




          “Anti-Terrorism Order” shall mean Executive Order 13224, signed by President George W.
Bush on September 24, 2001.




          “Applicable Lending Office” shall mean, for each Lender and for each Type of Loan, the
“Lending Office” of such Lender (or an Affiliate of such Lender) designated for such Type of Loan
in the Administrative Questionnaire submitted by such Lender or such other office of such Lender
(or an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office by which its Loans of such Type are to be made and maintained.




          “Applicable Margin” shall mean, as of any date, with respect to interest on all
Revolving Loans outstanding on any date or the letter of credit fee, as the case may be, a
percentage per annum determined by reference to either (a) the applicable Leverage Ratio in effect
on such date as set forth on Schedule I or (b) the applicable Rating Category from time to
time in effect as set forth on Schedule I; provided, that the Applicable Margin
shall be determined using whichever of (a) or (b) above results in the lowest Applicable Margin for
the Borrower; provided further, that a change in the Applicable Margin (a)
resulting from a change in the Leverage Ratio shall be effective on the second Business Day after
which the Borrower is required to deliver each of the financial statements required by Section
5.1(a) and (b) and the Compliance Certificate required by Section 5.1(c) and
(b) resulting from a change in the Rating Category shall be effective on the day on which either
rating agency changes its rating and shall continue until the day prior to the day that a further
change becomes effective. Notwithstanding the foregoing, the Applicable Margin from the Closing
Date until the date by which the financial statements and Compliance Certificate for the Fiscal
Quarter ending February 28, 2011 are required to be delivered shall be at Level II as set forth on
Schedule I. In the event that any financial statement or Compliance Certificate delivered
hereunder is shown to be inaccurate (regardless of whether this Agreement or the Commitments are in
effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to
the application of a higher Applicable Margin based upon the pricing grid set forth on Schedule
I (the “Accurate Applicable Margin”) for any period that such financial statement or
Compliance Certificate covered, then (i) the Borrower shall immediately deliver to the
Administrative






2









 







Agent a correct financial statement or Compliance Certificate, as the case may be, for such
period, (ii) the Applicable Margin shall be adjusted such that after giving effect to the corrected
financial statements or Compliance Certificate, as the case may be, the Applicable Margin shall be
reset to the Accurate Applicable Margin based upon the pricing grid set forth on Schedule I
for such period and (iii) the Borrower shall immediately pay to the Administrative Agent, for the
account of the Lenders, the accrued additional interest owing as a result of such Accurate
Applicable Margin for such period. If the Borrower is split-rated and (1) the ratings
differential is one category, the higher of the two ratings will apply or (2) the ratings
differential is more than one category, the rate shall be determined by reference to the category
next above that of the lower of the two ratings. The provisions of this definition shall not limit
the rights of the Administrative Agent and the Lenders with respect to Section 2.13(c) or
Article VIII.




          “Applicable Percentage” shall mean, as of any date, with respect to the commitment fee
as of any date, the percentage per annum determined by reference to either (a) the Leverage Ratio
in effect on such date as set forth on Schedule I or (b) the applicable Rating Category as
set forth on Schedule I; provided, that the Applicable Percentage shall be
determined using whichever of (a) or (b) above results in the lowest Applicable Margin for the
Borrower; provided further, that a change in the Applicable Percentage (a) resulting from a
change in the Leverage Ratio shall be effective on the second Business Day after which the Borrower
is required to deliver each of the financial statements required by Section 5.1(a)
and (b) and the Compliance Certificate required by Section 5.1(c) and (b) resulting
from a change in the Rating Category shall be effective on the day on which either rating agency
changes its rating and shall continue until the day prior to the day that a further change becomes
effective. Notwithstanding the foregoing, the Applicable Percentage for the commitment fee from
the Closing Date until the date by which the financial statements and Compliance Certificate for
the Fiscal Quarter ending February 28, 2011 are required to be delivered shall be at Level II as
set forth on Schedule I. In the event that any financial statement or Compliance
Certificate delivered hereunder is shown to be inaccurate (regardless of whether this Agreement or
the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if
corrected, would have led to the application of a higher Applicable Percentage based upon the
pricing grid set forth on Schedule I (the “Accurate Applicable Percentage”) for any
period that such financial statement or Compliance Certificate covered, then (i) the Borrower shall
immediately deliver to the Administrative Agent a correct Financial Statement or Compliance
Certificate, as the case may be, for such period, (ii) the Applicable Percentage shall be adjusted
such that after giving effect to the corrected financial statements or Compliance Certificate, as
the case may be, the Applicable Percentage shall be reset to the Accurate Applicable Percentage
based upon the pricing grid set forth on Schedule I for such period and (iii) the Borrower
shall immediately pay to the Administrative Agent, for the account of the Lenders, the accrued
additional commitment fee owing as a result of such Accurate Applicable Percentage for such period.
The provisions of this definition shall not limit the rights of the Administrative Agent and the
Lenders with respect to Section 2.13(c) or Article VIII.




          “Approved Fund” shall mean any Person (other than a natural Person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business and that is administered or managed by
(i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.




          “Assignment and Acceptance” shall mean an assignment and acceptance entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section
10.4(b)) and accepted by the Administrative Agent, in the form of Exhibit A attached
hereto or any other form approved by the Administrative Agent.







3









 








          “Availability Period” shall mean the period from the Closing Date to but excluding the
Revolving Commitment Termination Date.




          “Base Rate” shall mean the highest of (i) the rate which the Administrative Agent
announces from time to time as its prime lending rate, as in effect from time to time, (ii) the
Federal Funds rate, as in effect from time to time, plus one-half of one percent (1/2%) per annum and
(iii) the Adjusted LIBO Rate determined on a daily basis for an Interest Period of one (1) month,
plus one percent (1.00%) per annum (any changes in such rates to be effective as of the date of any
change in such rate). The Administrative Agent’s prime lending rate is a reference rate and does
not necessarily represent the lowest or best rate actually charged to any customer. The
Administrative Agent may make commercial loans or other loans at rates of interest at, above, or
below the Administrative Agent’s prime lending rate.




          “Borrower” shall have the meaning in the introductory paragraph hereof.




          “Borrowing” shall mean a borrowing consisting of (i) Loans of the same Class and Type,
made, converted or continued on the same date and in the case of Eurodollar Loans, as to which a
single Interest Period is in effect, or (ii) a Swingline Loan.




          “Business Day” shall mean any day other than (i) a Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized or required by law to close and (ii) if
such day relates to a Borrowing of, a payment or prepayment of principal or interest on, a
conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice with respect to any
of the foregoing, any day on which banks are not open for dealings in dollar deposits are carried
on in the London interbank market.




          “Capital Lease Obligations” of any Person shall mean all obligations of such Person to
pay rent or other amounts under any lease (or other arrangement conveying the right to use) of real
or personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.




          “Capital Stock” shall mean all shares, options, warrants, general or limited
partnership interests, membership interests or other equivalents (regardless of how designated) of
or in a corporation, partnership, limited liability company or equivalent entity whether voting or
nonvoting, including common stock, preferred stock or any other “equity security” (as such term is
defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934).




          “Cash Collateralize” shall mean, in respect of any obligations, to provide and pledge
(as a first priority perfected security interest) cash collateral for such obligations in Dollars,
with the Administrative Agent pursuant to documentation in form and substance, reasonably
satisfactory to the Administrative Agent (and “Cash Collateralization” has a corresponding
meaning).




          “Cash Equivalents” shall mean (a) securities issued or directly and fully guaranteed
or insured by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is pledged in
support thereof) having maturities of not more than twelve months from the date of acquisition
(“Government Obligations”), (b) U.S. dollar denominated (or foreign currency fully hedged)
time deposits, certificates of deposit, Eurodollar time deposits and Eurodollar certificates of
deposit of (y) any domestic commercial bank of recognized standing having capital and surplus in
excess of $250,000,000 or (z) any bank whose short-term commercial paper rating from S&P is at
least A-1 or the equivalent thereof or from Moody’s is at least P-






4









 







1 or the equivalent thereof (any such bank being an “Approved Bank”), in each case
with maturities of not more than 364 days from the date of acquisition, (c) U.S. dollar denominated
deposits in and cash management functions with non-Approved Banks domiciled in the United States of
America provided that the aggregate amount of such deposits with any single non-Approved
Bank shall not exceed $15,000,000 for more than fourteen (14) consecutive calendar days, (d)
commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by any domestic corporation
rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better
by Moody’s and maturing within twelve months of the date of acquisition, (e) repurchase agreements
with a bank or trust company (including a Lender) or a recognized securities dealer having capital
and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the
United States of America and (f) tax-exempt and taxable municipal securities, including auction
rate securities, rated at least AA by S&P or Aa by Moody’s maturing within twelve months of
acquisition.




          “Change in Control” shall mean the occurrence of one or more of the following events:
(i) any sale, lease, exchange or other transfer (in a single transaction or a series of related
transactions) of all or substantially all of the assets of the Borrower to any Person or “group”
(within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder in effect on the date hereof), (ii) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or “group” (within the meaning of
the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission
thereunder as in effect on the date hereof) other than the France Family of 50% or more of the
outstanding shares of the voting stock of the Borrower, or (iii) during any period of 24
consecutive months, a majority of the members of the board of directors or other equivalent
governing body of the Borrower cease to be composed of individuals who that are Continuing
Directors.




          “Change in Law” shall mean (i) the adoption of any applicable law, rule or regulation
after the date of this Agreement, (ii) any change in any applicable law, rule or regulation, or any
change in the interpretation or application thereof, by any Governmental Authority after the date
of this Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office) or the
Issuing Bank (or for purposes of Section 2.18(b), by the Parent Company of such Lender or
the Issuing Bank, if applicable) with any request, guideline or directive (whether or not having
the force of law) of any Governmental Authority made or issued after the date of this Agreement;
provided, however, for purposes of this Agreement, the Dodd-Frank Wall Street Reform and Consumer
Protection Act and all requests, rules, guidelines or directives in connection therewith are deemed
to have gone into effect and adopted thirty (30) days after the date of this Agreement.




          “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, or Swingline Loans and when used in
reference to any Commitment, refers to whether such Commitment is a Revolving Commitment, or a
Swingline Commitment.




          “Closing Date” shall mean the date on which the conditions precedent set forth in
Section 3.1 and Section 3.2 have been satisfied or waived in accordance with
Section 10.2.




          “Code” shall mean the Internal Revenue Code of 1986, as amended and in effect from
time to time.




          “Commitment” shall mean a Revolving Commitment or a Swingline Commitment or any
combination thereof (as the context shall permit or require).







5









 








          “Compliance Certificate” shall mean a certificate from the principal executive officer
or the principal financial officer of the Borrower in the form of, and containing the
certifications set forth in, the certificate attached hereto as Exhibit 5.1(c).




          “Consistent Basis” shall mean the application of GAAP on a basis consistent with the
most recent audited consolidated financial statements of the Borrower delivered to the Lenders in
accordance with the terms hereof, except for any inconsistency explicitly disclosed in any
financial statements delivered pursuant to Section 5.1(a) and 5.1(b).




          “Consolidated EBITDA” shall mean, for the Borrower and any Subsidiaries for any
period, an amount equal to the sum of (i) Consolidated Net Income for such period plus (ii) to the
extent deducted in determining Consolidated Net Income for such period, and without duplication,
(A) Consolidated Interest Expense, (B) total federal, state, local and foreign income, value added
and similar taxes determined on a consolidated basis in accordance with GAAP, (C) depreciation and
amortization (including, without limitation, the amortization of finance charges) determined on a
consolidated basis in accordance with GAAP, and (D) non-recurring non-cash charges (excluding
non-recurring non-cash charges resulting in reserves from which future cash expenditures will be
made), including, but not limited to, (x) charges incurred in accordance with SFAS 141 and 142 and
(y) charges (whether or not given effect on a cumulative or retroactive basis) resulting from the
adoption of, or any change to, accounting rules and standards, in each case as determined in
accordance with GAAP, minus (iii) to the extent included in the determination of Consolidated Net
Income for such period, Consolidated Interest Income, plus/minus (iv) to the extent included in the
determination of Consolidated Net Income for such period, losses or earnings attributable to equity
Investments by the Borrower and its Subsidiaries in unconsolidated Subsidiaries and joint ventures,
minus (v) to the extent included in the determination of Consolidated Net Income for such period,
non-recurring non-cash gains (whether or not given effect on a cumulative or retroactive basis)
resulting from the adoption of, or any change to, accounting rules and standards, as determined in
accordance with GAAP.




          “Consolidated Funded Indebtedness” shall mean Indebtedness constituting money borrowed
by the Borrower or any of its Subsidiaries that shall have been or should be, in accordance with
GAAP, recorded or classified as a liability, on a consolidated basis. For purposes of this
definition, Indebtedness shall specifically include endorsements, obligations with respect to any
Guarantee, unfunded vested benefits and capital or financing lease obligations, and shall
specifically exclude trade accounts payable, current and long-term deferred income, current and
deferred income taxes payable, capitalized payments in lieu of property taxes in accordance with
GAAP, liabilities arising as a result of outstanding gift certificates and any loyalty-rewards
obligations and expenses accrued in the ordinary course of business. For purposes of calculating
Leverage Ratio, the Kansas Speedway Corporation Guaranty shall not be included in Consolidated
Funded Indebtedness.




          “Consolidated Interest Expense” shall mean, for the Borrower and its Subsidiaries for
any period determined on a consolidated basis in accordance with GAAP, the sum of (i) total
interest expense, including without limitation the interest component of any payments in respect of
Capital Lease Obligations capitalized or expensed during such period (whether or not actually paid
during such period) plus (ii) the net amount payable (or minus the net amount receivable) with
respect to Hedging Transactions during such period (whether or not actually paid or received during
such period). For purposes of calculating the Interest Coverage Ratio, the Kansas Speedway
Corporation Guaranty shall not be included in Consolidated Interest Expense.




          “Consolidated Interest Income” shall mean, for any period, all interest income of the
Borrower and its Subsidiaries, as determined in accordance with GAAP during such period.







6









 








          “Consolidated Net Income” shall mean, for the Borrower and its Subsidiaries for any
period, the net income (or loss) of the Borrower and its Subsidiaries for such period determined on
a consolidated basis in accordance with GAAP, but excluding therefrom (to the extent otherwise
included therein) (i) any extraordinary gains or losses, (ii) any gains attributable to write-ups
of assets (iii) any equity interest of the Borrower or any Subsidiary of the Borrower in the
unremitted earnings of any Person that is not a Subsidiary and (iv) any income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with the
Borrower or any Subsidiary on the date that such Person’s assets are acquired by the Borrower or
any Subsidiary.




          “Continuing Director” shall mean, with respect to any period, any individuals (A) who
were members of the board of directors or other equivalent governing body of the Borrower on the
first day of such period, (B) whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (A) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body, or (C) whose
election or nomination to that board or other equivalent governing body was approved by individuals
referred to in clauses (A) and (B) above constituting at the time of such election or nomination at
least a majority of that board or equivalent governing body (excluding, in the case of both clause
(B) and clause (C), any individual whose initial nomination for, or assumption of office as, a
member of that board or equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or more directors by any
person or group other than a solicitation for the election of one or more directors by or on behalf
of the board of directors).




          “Contractual Obligation” of any Person shall mean any provision of any security issued
by such Person or of any agreement, instrument or undertaking under which such Person is obligated
or by which it or any of the Property in which it has an interest is bound.




          “Default” shall mean any condition or event that, with the giving of notice or the
lapse of time or both, would constitute an Event of Default.




          “Default Interest” shall have the meaning set forth in Section
2.13(c).




          “Defaulting Lender” shall mean, at any time, any Lender as to which the Administrative
Agent has notified the Borrower that (i) such Lender has failed for three (3) or more Business Days
to comply with its obligations under this Agreement to make a Loan and/or to make a payment to the
Issuing Bank in respect of a Letter of Credit or to the Swingline Lender in respect of a Swingline
Loan (each a “funding obligation”), (ii) such Lender has notified the Administrative Agent,
or has stated publicly, that it will not comply with any such funding obligation hereunder, or has
defaulted on, its obligation to fund generally under any other loan agreement, credit agreement or
other financing agreement (except for any default under any other loan agreement, credit agreement
or other financing agreement resulting from a good faith dispute), (iii) such Lender has, for three
(3) or more Business Days, failed to confirm in writing to the Administrative Agent, in response to
a written request of the Administrative Agent, that it will comply with its funding obligations
hereunder, or (iv) a Lender Insolvency Event has occurred and is continuing with respect to such
Lender. The Administrative Agent will promptly send to all parties hereto a copy of any notice to
the Borrower provided for in this definition.




          “Disclosure Documents” shall mean this Agreement, the Information Memorandum, the
Borrower’s public filings with the Securities and Exchange Commission from and after November 30,
2009, and the documents, certificates or other writings delivered to the Administrative Agent or
the Lenders by or on behalf of the Borrower in connection with the transactions contemplated by
this Agreement.







7









 








          “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of
any security into which it is convertible, or for which it is exchangeable, in each case at the
option of the holder of the Capital Stock), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the
option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91
days after the Revolving Commitment Termination Date; provided that only the portion of Capital
Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so
redeemable at the option of the holder thereof prior to such date shall be deemed to be
Disqualified Stock; provided, further, that if such Capital Stock is issued to any employee or to
any plan for the benefit of employees of the Borrower or its Subsidiaries or by any such plan to
such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be
required to be repurchased by the Borrower in order to satisfy applicable statutory or regulatory
obligations or as a result of such employee’s termination, death or disability; provided, further,
that any class of Capital Stock of such Person that by its terms authorizes such Person to satisfy
its obligations thereunder by delivery of Capital Stock that is not Disqualified Stock shall not be
deemed to be Disqualified Stock. The amount (or principal amount) of Disqualified Stock deemed to
be outstanding at any time for purposes of this Agreement will be the maximum amount that the
Borrower and its Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any
mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.




          “Dollar(s)” and the sign “$” shall mean lawful money of the United States of America.




          “Domestic Subsidiary” means any Subsidiary of Borrower, whether presently or hereafter
created or existing, that is organized and existing under the laws of the United States or any
state or commonwealth thereof or under the laws of the District of Columbia.




          “Environmental Laws” shall mean all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by or with any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, Release or threatened Release of
any Hazardous Material or to health and safety matters.




          “Environmental Liability” shall mean any liability, contingent or otherwise (including
any liability for damages, costs of environmental investigation and remediation, costs of
administrative oversight, fines, natural resource damages, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly resulting from or based upon (i) any actual or
alleged violation of any Environmental Law, (ii) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (iii) any actual or alleged exposure to
any Hazardous Materials, (iv) the Release or threatened Release of any Hazardous Materials or (v)
any contract, agreement or other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.




          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time, and any successor statute.




          “ERISA Affiliate” shall mean any trade or business (whether or not incorporated),
which, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of
the Code or, solely for the purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.




          “ERISA Event” shall mean (i) any “reportable event”, as defined in Section 4043 of
ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which
the 30-day notice period is waived); (ii) the failure of any Plan to meet the minimum funding
standard applicable






8









 







to the Plan for a plan year under Section 412 of the Code or Section 302 of ERISA, whether or
not waived; (iii) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of
an application for a waiver of the minimum funding standard with respect to any Plan; (iv) the
incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA
with respect to the termination of any Plan; (v) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator appointed by the PBGC of any notice relating to an intention
to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (vi) the incurrence
by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (vii) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the
meaning of Title IV of ERISA.




          “Eurodollar” when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, bears interest at a rate determined by reference to
the Adjusted LIBO Rate.




          “Eurodollar Reserve Percentage” shall mean the aggregate of the maximum reserve
percentages (including, without limitation, any emergency, supplemental, special or other marginal
reserves) expressed as a decimal (rounded upwards to the next 1/100th of 1%) in effect
on any day to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate
pursuant to regulations issued by the Board of Governors of the Federal Reserve System (or any
Governmental Authority succeeding to any of its principal functions) with respect to eurocurrency
funding (currently referred to as “eurocurrency liabilities” under Regulation D). Eurodollar Loans
shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be available from time
to time to any Lender under Regulation D. The Eurodollar Reserve Percentage shall be adjusted
automatically on and as of the effective date of any change in any reserve percentage.




          “Event of Default” shall have the meaning provided in Article VIII.




          “Excluded Subsidiaries” shall mean each of 380 Development LLC, Kansas Speedway
Development Corporation and Daytona Beach Property Headquarters Building, LLC.




          “Excluded Taxes” shall mean with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment (a “Payment Recipient”) to be made by or
on account of any obligation of the Borrower under any Loan Document, (a) Taxes imposed on or
measured by its overall net income (however denominated) and franchise Taxes imposed on it (in lieu
of net income Taxes) by a jurisdiction (or any political subdivision of such jurisdiction or any
larger jurisdiction of which such jurisdiction is a part) as a result of the Payment Recipient
being organized or having its principal office or, in the case of a Lender, its Applicable Lending
Office, in such jurisdiction, (b) any branch profits Taxes imposed by the United States and any
similar Tax imposed by any other jurisdiction described in clause (c), (c) Taxes imposed as a
result of a present or former connection between the Payment Recipient and the taxing jurisdiction
or any political subdivision thereof (other than a connection arising solely from such Payment
Recipient having executed, delivered or performed its obligations or received a payment under, or
enforced, any Loan Document), (d) any U.S. federal withholding Tax imposed pursuant to a law in
effect at the time such Payment Recipient becomes a party to this Agreement (or designates a new
lending office), except to the extent that such Payment Recipient (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to receive additional
amounts with respect to such withholding Tax pursuant to Section 2.20(a), (e) any withholding Tax
resulting from a Payment Recipient’s failure to comply with Section 2.20(e) and (f) any






9









 







Taxes imposed on any “withholdable payment” payable to such Payment Recipient as a result of
the failure of such Payment Recipient to satisfy the applicable requirements as set forth in FATCA.




          “Existing Credit Agreement” shall mean that certain Credit Agreement, dated as of June
16, 2006, by and among Borrower, certain subsidiaries of the Borrower, the lenders from time to
time parties thereto and Wachovia Bank, National Association as Administrative Agent, as amended or
modified from time to time.




          “Existing Lenders” shall mean all lenders parties to the Existing Credit Agreement on
the Closing Date.




          “Existing Letters of Credit” means the letters of credit issued and outstanding under
the Existing Credit Agreement as set forth on Schedule 2.22.




          “Fair Market Value” means, at any time and with respect to any Property, the sale
value of such Property that would be realized in an arm’s-length sale at such time between an
informed and willing buyer and an informed and willing seller (neither being under a compulsion to
buy or sell).




          “FATCA” shall mean Sections 1471 through 1474 of the Code and any regulations
promulgated and any Revenue Ruling, Revenue Procedure, Notice (to the extent such Notice provides
formal, definitive guidance) or other official interpretation issued by the IRS thereunder.




          “Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if
necessary, to the next 1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with member banks of the Federal Reserve System arranged by
Federal funds brokers, as published by the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the
quotations for such day on such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by the Administrative Agent.




          “Fee Letter” shall mean that certain fee letter, dated as of October 26, 2010,
executed by SunTrust Robinson Humphrey, Inc., J.P. Morgan Securities LLC and the Co-Syndication
Agents and accepted by Borrower.




          “Fiscal Quarter” shall mean any fiscal quarter of the Borrower.




          “Fiscal Year” shall mean any fiscal year of the Borrower.




          “Foreign Lender” shall mean any Lender that is not a U.S. Person.




          “France Family” shall mean the France Family Group as defined in Amendment No. 16 to
the Schedule 13G filed with the Securities and Exchange Commission by the France Family Group on
February 16, 2010, as further amended from time to time.




          “GAAP” shall mean generally accepted accounting principles in the United States
applied on a Consistent Basis and subject to the terms of Section 1.3.




          “Governmental Authority” shall mean the government of the United States of America,
any other nation or any political subdivision thereof, whether state or local, and any agency,
authority,






10









 







instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government.




          “Guarantee” of or by any Person (the “guarantor”) shall mean any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly and including any obligation, direct or
indirect, of the guarantor (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for
the purchase of) any security for the payment thereof, (ii) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (iv) as an account party in respect of any
letter of credit or letter of guaranty issued in support of such Indebtedness or obligation;
provided, that the term “Guarantee” shall not include endorsements for collection or
deposit in the ordinary course of business. The amount of any Guarantee shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith. The term “Guarantee” used as a verb has a corresponding meaning.




          “Guarantor” shall mean each of the Subsidiary Loan Parties.




          “Hazardous Materials” shall mean all explosive or radioactive substances or wastes and
all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.




          “Hedging Obligations” of any Person shall mean any and all obligations of such Person,
whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
under (i) any and all Hedging Transactions, (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Hedging Transactions and (iii) any and all renewals, extensions
and modifications of any Hedging Transactions and any and all substitutions for any Hedging
Transactions.




          “Hedging Transaction” of any Person shall mean (a) any transaction (including an
agreement with respect to any such transaction) now existing or hereafter entered into by such
Person that is a rate swap transaction, swap option, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option, spot transaction,
credit protection transaction, credit swap, credit default swap, credit default option, total
return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction,
buy/sell-back transaction, securities lending transaction, or any other similar transaction
(including any option with respect to any of these transactions) or any combination thereof,
whether or not any such transaction is governed by or subject to any master agreement and (b) any
and all transactions of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any
other master agreement (any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master Agreement.







11









 








          “Indebtedness” of any Person shall mean, without duplication (i) all obligations of
such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all obligations of such Person in respect of the deferred
purchase price of property or services (other than trade payables incurred in the ordinary course
of business); (iv) all obligations of such Person under any conditional sale or other title
retention agreement(s) relating to property acquired by such Person, (v) all Capital Lease
Obligations of such Person, (vi) all obligations, contingent or otherwise, of such Person in
respect of letters of credit, acceptances or similar extensions of credit, (vii) all Guarantees of
such Person of the type of Indebtedness described in clauses (i) through (vi) above, (viii) all
Indebtedness of a third party secured by any Lien on property owned by such Person, whether or not
such Indebtedness has been assumed by such Person (excluding a lien on equity interests in a joint
venture securing any obligations of such joint venture), (ix) all obligations of such Person with
respect to Disqualified Stock, (x) Off-Balance Sheet Liabilities and (xi) all Hedging Obligations.
The Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture
in which such Person is a general partner or a joint venturer, except to the extent that the terms
of such Indebtedness provide that such Person is not liable therefor.



Notwithstanding the foregoing, the following shall not constitute or be deemed “Indebtedness”:





     (i) any Indebtedness which has been defeased in accordance with GAAP or
defeased pursuant to the deposit of cash or Cash Equivalents (in an amount sufficient to
satisfy all such Indebtedness obligations at maturity or redemption, as applicable, and all
payments of interest and premium, if any) in a trust or account created or pledged for the
sole benefit of the holders of such Indebtedness, and subject to no other Liens, and the
other applicable terms of the instrument governing such Indebtedness;




     (ii) in connection with the purchase by the Borrower or any Subsidiary of any
property, the term “Indebtedness” will exclude post closing payment adjustments to which the
seller may become entitled to the extent such payment is determined by a closing purchase
price adjustment or such payment depends on the performance of such property after the
closing; provided, however, that, at the time of closing, the amount of any
such payment is not determinable and, to the extent such payment at a later date becomes
finally fixed and determined by the parties to the purchase, the amount is paid within 30
days after such date; and




     (iii) current and long term deferred income, current and deferred income
taxes payable, capitalized payments in lieu of property taxes in accordance with GAAP,
liabilities arising as a result of outstanding gift certificates and any loyalty rewards
obligations and expenses, in each case accrued in the ordinary course of business.



          “Indemnified Taxes” shall mean Taxes other than Excluded Taxes.




          “Information Memorandum” shall mean the Confidential Information Memorandum dated
October 2010 relating to the Borrower and the transactions contemplated by this Agreement and the
other Loan Documents.




          “Interest Coverage Ratio” shall mean, as of any date, the ratio of (i) Consolidated
EBITDA for the four consecutive Fiscal Quarters ending on or immediately prior to such date for
which financial statements are required to have been delivered under this Agreement to (ii)
Consolidated Interest Expense for the four consecutive Fiscal Quarters ending on or immediately
prior to such date for which financial statements are required to have been delivered under this
Agreement; provided, however, the Interest Coverage Ratio may be adjusted from time
to time with the mutual consent of the Borrower and the Required Lenders to reflect the
postponement of major race events into subsequent accounting






12









 







periods, the rescheduling of major race events and the occurrence of major race events in
different fiscal accounting periods in different calendar and/or fiscal years. For purposes of
computing the Interest Coverage Ratio for any applicable twelve month period of determination, the
acquisition of a Subsidiary during such twelve month period shall be deemed to have occurred as of
the first day of such twelve month period.




          “Interest Period” shall mean with respect to any Eurodollar Borrowing, a period of
one, two, three or six months (or, if available to all Lenders, nine or twelve months thereafter);
provided, that:





     (iv) the initial Interest Period for such Borrowing shall commence on the
date of such Borrowing (including the date of any conversion from a Borrowing of another
Type), and each Interest Period occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest Period expires;




     (v) if any Interest Period would otherwise end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day, unless such
Business Day falls in another calendar month, in which case such Interest Period would end
on the next preceding Business Day;




     (vi) any Interest Period which begins on the last Business Day of a calendar
month or on a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period shall end on the last Business Day of such calendar
month; and




     (vii) no Interest Period may extend beyond the Revolving Commitment
Termination Date.



          “Investments” shall have the meaning assigned to such term in Section 7.4.




          “Issuing Bank” shall mean Wells Fargo Bank, N.A. in its capacity as the issuer of
Letters of Credit pursuant to Section 2.22.




          “Kansas Speedway Corporation Guaranty” shall mean that certain guaranty by Kansas
Speedway Corporation of the 2002 STAR Bonds issued in connection with the Kansas Speedway; provided
that the principal amount of obligations guaranteed pursuant to such Kansas Speedway Corporation
Guaranty shall not exceed $2,590,000.




          “LC Commitment” shall mean that portion of the Aggregate Revolving Commitments that
may be used by the Borrower for the issuance of Letters of Credit in an aggregate face amount not
to exceed $25,000,000.




          “LC Disbursement” shall mean a payment made by the Issuing Bank pursuant to a Letter
of Credit.




          “LC Documents” shall mean all applications, agreements and instruments relating to the
Letters of Credit but excluding the Letters of Credit.




          “LC Exposure” shall mean, at any time, the sum of (i) the aggregate undrawn amount of
all outstanding Letters of Credit at such time, plus (ii) the aggregate amount of all LC
Disbursements that have not been reimbursed by or on behalf of the Borrower at such time. The LC
Exposure of any Lender shall be its Pro Rata Share of the total LC Exposure at such time.







13









 








          “Lender Insolvency Event” shall mean that (i) a Lender or its Parent Company is
insolvent, or is generally unable to pay its debts as they become due, or admits in writing its
inability to pay its debts as they become due, or makes a general assignment for the benefit of its
creditors, or (ii) a Lender or its Parent Company is the subject of a bankruptcy, insolvency,
reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, custodian
or the like has been appointed for such Lender or its Parent Company, or such Lender or its Parent
Company has taken any action in furtherance of or indicating its consent to or acquiescence in any
such proceeding or appointment, or (iii) a Lender or its Parent Company has been adjudicated as, or
determined by any Governmental Authority having regulatory authority over such Person or its assets
to be, insolvent; provided that, for the avoidance of doubt, a Lender Insolvency Event shall not
be deemed to have occurred solely by virtue of the ownership or acquisition of any equity interest
in or control of a Lender or a Parent Company thereof by a Governmental Authority or an
instrumentality thereof.




          “Lender-Related Hedge Provider” means any Person that, at the time it enters into a
Hedging Transaction with any Loan Party, (i) is a Lender or an Affiliate of a Lender and (ii)
except when the Lender-Related Hedge Provider is Wells Fargo Bank, N.A. and its Affiliates, has
provided prior written notice to the Administrative Agent which has been acknowledged by the
Borrower of (x) the existence of such Hedging Transaction, and (y) the methodology to be used by
such parties in determining the obligations under such Hedging Transaction from time to time. In
no event shall any Lender-Related Hedge Provider acting in such capacity be deemed a Lender for
purposes hereof to the extent of and as to Hedging Obligations except that each reference to the
term “Lender” in Article IX and Section 10.4 shall be deemed to include such Lender-Related Hedge
Provider. In no event shall the approval of any such Person in its capacity as Lender-Related
Hedge Provider be required in connection with the release or termination of any security interest
or Lien of the Administrative Agent.




          “Lenders” shall have the meaning assigned to such term in the opening paragraph of
this Agreement and shall include, where appropriate, the Swingline Lender and each Additional
Lender that joins this Agreement pursuant to Section 2.23.




          “Letter of Credit” shall mean any stand-by letter of credit issued pursuant to
Section 2.22 by the Issuing Bank for the account of the Borrower pursuant to the LC
Commitment and the Existing Letters of Credit.




          “Leverage Ratio” shall mean, as of any date, the ratio of (i) Consolidated Funded
Indebtedness as of such date to (ii) Consolidated EBITDA for the four consecutive Fiscal Quarters
ending on or immediately prior to such date for which financial statements are required to have
been delivered under this Agreement; provided, however, the Leverage Ratio may be
adjusted from time to time with the mutual consent of the Borrower and the Required Lenders to
reflect the postponement of major race events into subsequent accounting periods, the rescheduling
of major race events and the occurrence of major race events in different fiscal accounting periods
in different calendar and/or fiscal years. For purposes of computing the Leverage Ratio for any
applicable twelve month period of determination, the acquisition of a Subsidiary during such twelve
month period shall be deemed to have occurred as of the first day of such twelve month period.




          “LIBOR” shall mean, for any Interest Period with respect to a Eurodollar Loan, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBOR01 Page (or any successor page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London, England time), two (2) Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period. If for any reason
such rate is not available, LIBOR shall be, for any Interest Period, the rate per annum reasonably
determined by the Administrative Agent as the rate of interest at which Dollar deposits in the
approximate amount of the Eurodollar Loan






14









 







comprising part of such borrowing would be offered by the Administrative Agent to major banks in
the London interbank Eurodollar market at their request at or about 10:00 a.m. (New York, New York
time) two (2) Business Days prior to the first day of such Interest Period for a term comparable to
such Interest Period.




          “Lien” shall mean any mortgage, pledge, security interest, lien (statutory or
otherwise), charge, encumbrance, hypothecation, assignment, deposit arrangement, or other
arrangement having the practical effect of any of the foregoing or any preference, priority or
other security agreement or preferential arrangement of any kind or nature whatsoever (including
any conditional sale or other title retention agreement and any capital lease having the same
economic effect as any of the foregoing).




          “Loan Documents” shall mean, collectively, this Agreement, the Subsidiary Guaranty
Agreements, the LC Documents, the Fee Letter, the Administrative Agent Fee Letter, all Notices of
Borrowing, all Notices of Conversion/Continuation, all Compliance Certificates, any promissory
notes issued hereunder and any and all other instruments, agreements, documents and writings
executed in connection with any of the foregoing.




          “Loan Parties” shall mean the Borrower and the Subsidiary Loan Parties.




          “Loans” shall mean all Revolving Loans and Swingline Loans in the aggregate or any of
them, as the context shall require.




          “Material Adverse Effect” shall mean, with respect to any event, act, condition or
occurrence of whatever nature (including any adverse determination in any litigation, arbitration,
or governmental investigation or proceeding), whether singularly or in conjunction with any other
event or events, act or acts, condition or conditions, occurrence or occurrences whether or not
related, resulting in a material adverse change in, or a material adverse effect on, (i) the
business, results of operations, financial condition, assets or liabilities of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Loan Parties to perform any of their
respective obligations under the Loan Documents, (iii) the rights and remedies of the
Administrative Agent, the Issuing Bank, Swingline Lender, and the Lenders under any of the Loan
Documents or (iv) the legality, validity or enforceability of any of the Loan Documents.




          “Material Indebtedness” shall mean any Indebtedness (other than the Loans and Letters
of Credit) and Hedging Obligations of the Borrower or any of its Subsidiaries, individually or in
an aggregate committed or outstanding principal amount exceeding $30,000,000. For purposes of
determining the amount of attributed Indebtedness from Hedging Obligations, the “principal amount”
of any Hedging Obligations at any time shall be the Net Mark-to-Market Exposure of such Hedging
Obligations.




          “Material Subsidiary” means, at any time, any Subsidiary of the Borrower other than
Excluded Subsidiaries which, together with all other Subsidiaries of such Subsidiary, accounts for
more than (i) 5% of the consolidated assets of the Borrower and its Subsidiaries determined in
accordance with GAAP, or (ii) 5% of consolidated revenue of the Borrower and its Subsidiaries for
the most recent four Fiscal Quarter period then ending.




          “Moody’s” shall mean Moody’s Investors Service, Inc.




          “Multiemployer Plan” shall have the meaning set forth in Section 4001(a)(3) of ERISA.




          “NASCAR” shall mean the National Association for Stock Car Auto Racing, Inc.







15









 








          “Net Mark-to-Market Exposure” of any Person shall mean, as of any date of
determination with respect to any Hedging Obligation, the excess (if any) of all unrealized losses
over all unrealized profits of such Person arising from such Hedging Obligation. “Unrealized
losses” shall mean the fair market value of the cost to such Person of replacing the Hedging
Transaction giving rise to such Hedging Obligation as of the date of determination (assuming the
Hedging Transaction were to be terminated as of that date), and “unrealized profits” means the fair
market value of the gain to such Person of replacing such Hedging Transaction as of the date of
determination (assuming such Hedging Transaction were to be terminated as of that date).




          “Non-Consenting Lender” means any Lender that withholds its consent to any proposed
amendment, modification or waiver that cannot become effective without the consent of such Lender
under Section 10.2, and that has been consented to by the Required Lenders.




          “Non-Defaulting Lender” shall mean, at any time, a Lender that is not a Defaulting
Lender or a Potential Defaulting Lender.




          “Notices of Borrowing” shall mean, collectively, the Notices of Revolving Borrowing
and the Notices of Swingline Borrowing.




          “Notice of Conversion/Continuation” shall mean the notice given by the Borrower to the
Administrative Agent in respect of the conversion or continuation of an outstanding Borrowing as
provided in Section 2.7(b).




          “Notice of Revolving Borrowing” shall have the meaning as set forth in Section
2.3.




          “Notice of Swingline Borrowing” shall have the meaning as set forth in Section
2.4.




          “Obligations” shall mean all amounts owing by the Loan Parties to the Administrative
Agent, the Co-Syndication Agents, the Issuing Bank, any Lender (including the Swingline Lender) or
SunTrust Robinson Humphrey, Inc. and J.P. Morgan Securities LLC as the Joint Lead Arrangers
pursuant to or in connection with this Agreement or any other Loan Document or otherwise with
respect to any Loan or Letter of Credit including without limitation, all principal, interest
(including any interest accruing after the filing of any petition in bankruptcy or the commencement
of any insolvency, reorganization or like proceeding relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding), all reimbursement
obligations, fees, expenses, indemnification and reimbursement payments, costs and expenses
(including all fees and expenses of counsel to the Administrative Agent, the Issuing Bank and any
Lender (including the Swingline Lender) incurred pursuant to this Agreement or any other Loan
Document), whether direct or indirect, absolute or contingent, liquidated or unliquidated, now
existing or hereafter arising hereunder or thereunder, together with all renewals, extensions,
modifications or refinancings of any of the foregoing.




          “OFAC” shall mean the U.S. Department of the Treasury’s Office of Foreign Assets
Control.




          “Off-Balance Sheet Liabilities” of any Person shall mean (i) any repurchase obligation
or liability of such Person with respect to accounts or notes receivable sold by such Person, (ii)
any liability of such Person under any sale and leaseback transactions that do not create a
liability on the balance sheet of such Person, (iii) any Synthetic Lease Obligation or (iv) any
obligation arising with respect to any other transaction which is the functional equivalent of or
takes the place of borrowing but which does not constitute a liability on the balance sheet of such
Person.







16









 








          “OSHA” shall mean the Occupational Safety and Health Act of 1970, as amended from time
to time, and any successor statute.




          “Other Taxes” shall mean any and all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any payment made
hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Document.




          “Parent Company” shall mean, with respect to a Lender, the bank holding company (as
defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning,
beneficially or of record, directly or indirectly, a majority of the shares of such Lender.




          “Participant” shall have the meaning set forth in Section 10.4(d).




          “Patriot Act” shall have the meaning set forth in Section 10.14.




          “Payment Office” shall mean the office of the Administrative Agent located at Wells
Fargo Bank, N.A., 1525 West W.T. Harris Boulevard 1B1, Charlotte, NC 28262, or such other location
as to which the Administrative Agent shall have given written notice to the Borrower and the other
Lenders.




          “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in
ERISA, and any successor entity performing similar functions.




          “Permitted Acquisition” shall mean an Acquisition by the Borrower or any Subsidiary of
the Borrower of the Capital Stock or Property acquired; provided that (a) the Capital Stock
or Property acquired in such Acquisition is related to the motorsports entertainment industry
(including businesses ancillary thereto) or if not related to the motorsports entertainment
industry, the total amount of such Acquisitions in any fiscal year shall not exceed ten percent
(10%) of Total Shareholders’ Equity; (b) in the case of an Acquisition of the Capital Stock of
another Person, the board of directors (or other comparable governing body) of such other Person
shall have duly approved such Acquisition; (c) the representations and warranties made by the
Borrower in any Credit Document shall be true and correct in all material respects prior to, at and
as if made as of the date of such Acquisition (after giving effect thereto) except to the extent
such representations and warranties expressly relate to an earlier date and no Default or Event of
Default exists as of the date of such Acquisition (after giving effect thereto); and (d) with
respect to any Acquisition exceeding twenty-five percent (25%) of Total Shareholders’ Equity for
which the Borrower or any of its Subsidiaries has incurred Indebtedness for purposes of
consummating such Acquisition, the Borrower shall have delivered to the Administrative Agent a Pro
Forma Compliance Certificate demonstrating that, upon giving effect to such Acquisition on a Pro
Forma Basis, the Borrower will be in compliance with Section 6.1.




          “Permitted Acquisition Indebtedness” means, in connection with any Permitted
Acquisition, Indebtedness of any Subsidiaries to the extent such Indebtedness was Indebtedness of
any other Person existing at the time (a) such Person became a Subsidiary of the Borrower, (b) such
Person was merged or consolidated with or into any of the Subsidiaries, or (c) assets of such
Person were acquired by any of the Subsidiaries and such Indebtedness was assumed in connection
therewith (excluding any such Indebtedness that is repaid contemporaneously with such event).




          “Permitted Encumbrances” shall mean:





     (i) Liens existing as of the Closing Date and set forth on Schedule
7.2; provided that no such Lien shall at any time be extended to or cover any
Property other than the Property



17









 







subject thereto on the Closing Date (provided, however, that Liens on new Property
which arise in replacement of Liens on previously owned Property to the extent that such new
Property is acquired through like-kind exchanges shall be permitted hereunder);




     (ii) Liens (other than Liens created or imposed under ERISA) for taxes,
assessments or governmental charges or levies not yet due or Liens for taxes being contested
in good faith by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which the Property subject to any such
Lien is not yet subject to foreclosure, sale or loss on account thereof);




     (iii) Liens in connection with attachments or judgments (including judgment
or appeal bonds); provided that the judgments secured shall, within 60 days after
the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall
have been discharged within 60 days after the expiration of any such stay;




     (iv) Liens incidental to the conduct of business or the ownership of
properties and assets (including landlords’, carriers’, warehousemen’s, mechanics’,
materialmen’s and other similar Liens not more than 90 days delinquent or which are being
contested in good faith by appropriate proceedings and for which adequate reserves have been
maintained in accordance with GAAP and as to which the Property subject to any such Lien is
not yet subject to foreclosure, sale or loss on account thereof);




     (v) Liens (other than Liens created or imposed under ERISA) incurred or
deposits made in the ordinary course of business in connection with workers’ compensation,
unemployment insurance and other types of social security, or to secure the performance of
tenders, statutory obligations, bids, leases, trade contracts, government contracts,
performance and return-of-money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);




     (vi) leases or subleases granted to others, easements, rights-of-way,
restrictions (including zoning restrictions), minor defects or irregularities in title and
other similar charges or encumbrances, in each case incidental to the ownership of Property
or assets or the ordinary conduct of the business of the Borrower or any of its
Subsidiaries, or Liens incidental to minor survey exceptions and the like, provided
that such Liens do not, in the aggregate, materially detract from the value of such
Property;




     (vii) any interest of title of a lessor under, and Liens arising from UCC
financing statements (or equivalent filings, registrations or agreements in foreign
jurisdictions) relating to, leases permitted by this Credit Agreement;




     (viii) Liens incurred after the Closing Date given to secure the payment of
the price incurred (or Indebtedness incurred to fund such payment) in connection with the
acquisition, construction, repair, development, or improvement of Property (other than
accounts receivable or inventory) useful and intended to be used in carrying on the business
of the Borrower or a Subsidiary, including Liens existing on such Property at the time of
acquisition or construction thereof or Liens incurred within two hundred seventy (270) days
of such acquisition or completion of such construction, repair or development, or
improvement, provided that (a) the Lien shall attach solely to the Property
acquired, purchased, constructed, repaired, developed or improved, and, if required by the
terms of the instrument originally creating such Lien, the proceeds thereof, general
intangibles related thereto, and other Property which is an improvement
to or is acquired for specific use in connection with such Property; (b) at the time of
acquisition,



18









 







construction, repair, development, or improvement of such Property (or, in the
case of any Lien incurred within two hundred seventy (270) days of such acquisition or
completion of such construction, repair, development or improvement, at the time of the
incurrence of the Indebtedness secured by such Lien), the aggregate amount remaining unpaid
on all Indebtedness secured by Liens on such Property, whether or not assumed by the
Borrower or a Subsidiary, shall not exceed the lesser of (y) the cost of such acquisition,
construction, repair, development, or improvement plus related financing costs or (z) the
Fair Market Value of such Property (as determined in good faith by one or more officers of
the Borrower to whom authority to enter into the transaction has been delegated by the board
of directors of the Borrower); and (c) at the time of such incurrence and after giving
effect thereto, no Default or Event of Default would exist;




     (ix) any Lien existing on Property of a Person immediately prior to its being
consolidated with or merged into the Borrower or a Subsidiary or its becoming a Subsidiary,
or any Lien existing on any Property acquired by the Borrower or any Subsidiary at the time
such Property is so acquired (whether or not the Indebtedness secured thereby shall have
been assumed), provided that (a) no such Lien shall have been created or assumed in
contemplation of such consolidation or merger or such Person’s becoming a Subsidiary or such
acquisition of Property, (b) each such Lien shall extend solely to the item or items of
Property so acquired and, if required by the terms of the instrument originally creating
such Lien, the proceeds thereof, general intangibles related thereto, and other Property
which is an improvement to or is acquired for specific use in connection with such acquired
Property, and (c) at the time of such incurrence and after giving effect thereto, no Default
or Event of Default would exist;




     (x) Liens on equity interests of a joint venture owned by the Borrower or any
Subsidiary to the extent securing obligations of such joint venture and any Guaranty by the
Borrower or any Subsidiary of such obligations;




     (xi) any extensions, renewals or replacements of any Lien permitted by the
preceding subparagraphs (i), (viii), (ix) and (x) hereto provided that (a) no
additional Property shall be encumbered by such Liens, (b) the unpaid principal amount of
the Indebtedness or other obligations secured thereby shall not be increased on or after the
date of any extension, renewal or replacement, and (c) at such time and immediately after
giving effect thereto, no Default or Event of Default shall have occurred and be continuing;




     (xii) rights of first refusal, purchase options and similar rights granted
pursuant to joint venture agreements, stockholder agreements, organic documents and similar
documents and agreements;




     (xiii) normal and customary rights of setoff upon deposits of cash in favor
of banks or other depository institutions;




     (xiv) inchoate Liens arising under ERISA to secure current service pension
liabilities as they are incurred under the provisions of any Plan;




     (xv) Liens incurred or assumed in connection with a Permitted Acquisition;
provided that such Liens shall only encumber Property acquired in such Permitted
Acquisition;




     (xvi) Liens securing Indebtedness or other obligations of a Subsidiary to the
Borrower or to a Subsidiary Guarantor; and



19









 






     (xvii) other Liens securing obligations not to exceed an aggregate principal
amount at any time outstanding greater than $50,000,000.



     “Permitted Investments” shall mean:




     (i) Investments in cash and Cash Equivalents;




     (ii) Investments in and loans to the Borrower or any Subsidiaries (other than
in and to Excluded Subsidiaries);




     (iii) Investments (including debt obligations) received in connection with
(a) the bankruptcy or reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and suppliers arising in the
ordinary course of business; or (b) litigation, arbitration or other disputes (including
pursuant to any bankruptcy or insolvency proceedings);




     (iv) Investments existing as of the Closing Date and set forth in
Schedule 7.4;




     (v) Permitted Acquisitions;




     (vi) Investments received or assumed in connection with a Permitted
Acquisition;




     (vii) minority investments in motorsports facilities or related motorsports
businesses so long as any such investments, in the aggregate, do not have a Material Adverse
Effect;




     (viii) Guarantees permitted by Section 7.1.




     (ix) any Investment made as a result of the receipt of non-cash consideration
from, or consisting of any deferred portion of the sales price received by the Borrower or
any Subsidiary in connection with, an asset sale that was made pursuant to and in compliance
with Section 7.6;




     (x) any Investments received as a result of a foreclosure by, or other
transfer of title to, the Borrower or any of its Subsidiaries with respect to any secured
Investment in default;




     (xi) Liens of the type described in clause (x) of the definition of Permitted
Encumbrances;




     (xii) commission, travel and similar advances to officers, directors,
employees and consultants made in the ordinary course of business;




     (xiii) advances to Persons in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of the lender;




     (xiv) Investments in 380 Development LLC in an aggregate principal amount not
to exceed $30,000,000 outstanding at any time;




     (xv) Investments in Kansas Speedway Development Corporation, and the further
Investment of those funds in Kansas Entertainment, LLC, in an aggregate principal amount not
to exceed $200,000,000 outstanding at any time;




20











 






     (xvi) other Investments in or to joint ventures to the extent permitted in
accordance with the proviso set forth in clause (xvii) below; and




     (xvii) additional Investments of a nature not contemplated by the foregoing
clauses hereof; provided that the outstanding amount of Investments made pursuant to
this clause (xvii), together with the outstanding amount of Investments made pursuant to
clause (xvi) above, shall not exceed (a) on an annual basis, an amount equal to ten percent
(10%) of the Total Shareholders’ Equity and (b) on an aggregate basis, an amount equal to
twenty-five percent (25%) of the Total Shareholders’ Equity, determined at the time of such
Investment (after giving effect to any dividends, interest payments, return of capital and
subsequent reduction in the amount of any Investment made pursuant to this clause (xvii) and
clause (xvi) as a result of the repayment or other disposition thereof, in an amount not to
exceed the amount of such Investments previously made pursuant to such clauses) unless prior
to or upon giving effect to such Investments, the Borrower shall have delivered to the
Administrative Agent a Pro Forma Compliance Certificate demonstrating, that prior to and
immediately after giving effect to such Investment, the Borrower’s Leverage Ratio is less
than or equal to 3.25 to 1.0.




     “Permitted Refinancing Indebtedness” means any Indebtedness or any Disqualified
Stock incurred or issued in exchange for, or the net proceeds of which shall be used to
extend, refinance, renew, replace, defease, discharge, refund or otherwise retire for value,
in whole or in part, any other Indebtedness of the Borrower or any of its Subsidiaries
(other than intercompany Indebtedness) or any Disqualified Stock of any of the Subsidiaries
(the “Refinanced Indebtedness”), provided that:




     (1) the principal amount, or in the case of Disqualified Stock, the amount thereof as
determined in accordance with the definition of Disqualified Stock, of such Permitted
Refinancing Indebtedness does not exceed the principal amount of the Refinanced Indebtedness
(plus all accrued (including, for the purposes of defeasance, future accrued) and unpaid
interest on, or accrued and unpaid dividends on, the Refinanced Indebtedness, as the case
may be, and the amount of all fees, expenses and premiums incurred in connection therewith)
and by an amount equal to any existing commitments and incremental facilities unutilized
thereunder to the extent incurrence of indebtedness under such unutilized commitment and
incremental facilities would then have been permitted;




     (2) in the case of Section 7.1(b), such Permitted Refinancing Indebtedness has
a final maturity date or redemption date, as applicable, later than or equal to the shorter
of (A) 91 days following the Revolving Commitment Termination Date or (B) the final maturity
date or redemption date, as applicable, of, the Refinanced Indebtedness; and




     (3) in the case of Section 7.1(b), such Permitted Refinancing Indebtedness has
a weighted average life to maturity at the time such Permitted Refinancing Indebtedness is
incurred equal to or greater than the shorter of (A) the weighted average life to maturity
of, the Refinanced Indebtedness and (B) the weighted average life to maturity that would
result if all payments of principal on the Refinanced Indebtedness that were due on or after
the date that is 91 days following the Revolving Commitment Termination Date were instead
due on such date.



          “Person” shall mean any individual, partnership, firm, corporation, association, joint
venture, limited liability company, trust or other entity, or any Governmental Authority.




          “Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and






21









 







in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.




          “Potential Defaulting Lender” shall mean, at any time, a Lender (i) as to which the
Administrative Agent, in its discretion, has notified the Borrower that an event of the kind
referred to in the definition of “Lender Insolvency Event” has occurred and is continuing in
respect of any financial institution affiliate of such Lender, (ii) that has (or its Parent Company
or a financial institution affiliate thereof has) notified the Administrative Agent, or has stated
publicly, that it will not comply with its funding obligations under any other loan agreement or
credit agreement or other similar/other financing agreement or (iii) that has, or whose Parent
Company has, a non-investment grade rating from Moody’s or S&P or another nationally recognized
rating agency. The Administrative Agent shall send to all parties hereto a copy of any notice to
the Borrower provided for in this definition.




          “Pro Forma Basis” shall mean, for purposes of calculating compliance with Section
6.1 in respect of a Permitted Acquisition, Permitted Investment, Restricted Payment, that such
Permitted Acquisition, Permitted Investment, or Restricted Payment shall be deemed to have occurred
as of the first day of the four fiscal-quarter period ending as of the most recent fiscal quarter
end preceding the date of such Permitted Acquisition, Permitted Investment or Restricted Payment
with respect to which the Administrative Agent has received the information required pursuant to
Section 5.1. In connection with any calculation of the Leverage Ratio set forth in
Section 6.1, upon giving effect to a Permitted Acquisition, Permitted Investment or
Restricted Payment on a Pro Forma Basis, (a) any Indebtedness incurred, any Investment or
distribution made by the Borrower in connection with such Permitted Acquisition, Permitted
Investment or Restricted Payment (i) shall be deemed to have been incurred as of the first day of
the applicable period and (ii) if such Indebtedness or Investment has a floating or formula rate,
shall have an implied rate of interest for the applicable period for purposes of this definition
determined by utilizing the rate which is or would be in effect with respect to such Indebtedness
or Investment as at the relevant date of determination, (b) income statement items (whether
positive or negative) attributable to the Property or Person acquired in such Permitted
Acquisition, such Permitted Investments or such distribution shall be included to the extent
relating to the relevant period and (c) pro forma adjustments may be included to the extent that
such adjustments give effect to events that are (i) directly attributable to such Permitted
Acquisition, Permitted Investment or Restricted Payment, (ii) expected to continue to be applicable
to the Borrower and (iii) factually supportable.




          “Pro Forma Compliance Certificate” shall mean, if required to be provided in
accordance with the terms of this Agreement, a certificate of a Responsible Officer of the Borrower
delivered to the Administrative Agent in connection with any Permitted Acquisition, Permitted
Investment or Restricted Payment, containing reasonably detailed calculations, upon giving effect
to the applicable Permitted Acquisition, Permitted Investment or Restricted Payment on a Pro Forma
Basis, of the Leverage Ratio as of the most recent fiscal quarter end preceding the date of the
applicable transaction with respect to which the Administrative Agent shall have received the
financial information required pursuant to Section 5.1.




          “Property” shall mean any interest in any kind of property or asset, whether real,
personal or mixed, or tangible or intangible.




          “Pro Rata Share” shall mean (i) with respect to any Commitment of any Lender at any
time, a percentage, the numerator of which shall be such Lender’s Commitment (or if such Commitment
has been terminated or expired or the Loans have been declared to be due and payable, such Lender’s
Revolving Credit Exposure), and the denominator of which shall be the sum of such Commitments of
all Lenders (or if such Commitments have been terminated or expired or the Loans have been declared
to be due and payable, all Revolving Credit Exposure of all Lenders) and (ii) with respect to all
Commitments of any Lender at any time, the numerator of which shall be the sum of such Lender’s
Revolving





22









 







Commitment (or if such Revolving Commitment has been terminated or expired or the Loans have
been declared to be due and payable, such Lender’s Revolving Credit Exposure) and the denominator
of which shall be the sum of all Lenders’ Revolving Commitments (or if such Revolving Commitments
have been terminated or expired or the Loans have been declared to be due and payable, all
Revolving Credit Exposure of all Lenders funded under such Commitments).




          “Regulation D” shall mean Regulation D of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and any successor regulations.




          “Regulation T” shall mean Regulation T of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and any successor regulations.




          “Regulation U” shall mean Regulation U of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and any successor regulations.




          “Regulation X” shall mean Regulation X of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and any successor regulations.




          “Related Parties” shall mean, with respect to any specified Person, such Person’s
Affiliates and the respective managers, administrators, trustees, partners, directors, officers,
employees, agents, advisors or other representatives of such Person and such Person’s Affiliates.




          “Release” shall mean any release, spill, emission, leaking, dumping, injection,
pouring, deposit, disposal, discharge, dispersal, leaching or migration into the environment
(including ambient air, surface water, groundwater, land surface or subsurface strata) or within
any building, structure, facility or fixture.




          “Replaced Lender” shall mean any Lender that is required to assign all or a portion of
its rights, obligations, Loans and Commitments hereunder pursuant to the terms of Section
2.25 or Section 10.17.




          “Replacement Lender” shall mean, with respect to the exercise by the Borrower of its
rights under Section 2.25, any existing Lender or a new Lender designated by the Borrower
and reasonably approved by the Administrative Agent or, if the Administrative Agent is also the
Replaced Lender, by Lenders holding in the aggregate more than 50% of all Revolving Loans and LC
Commitments (of the Lenders that are not the Replaced Lender) then outstanding at such time plus
the aggregate unused Revolving Commitments (of the Lenders that are not the Replaced Lender) at
such time.




          “Required Lenders” shall mean, at any time, Lenders holding more than 50% of the
aggregate outstanding Revolving Commitments at such time or if the Lenders have no Commitments
outstanding, then Lenders holding more than 50% of the aggregate Revolving Credit Exposure of all
Lenders; provided however, that to the extent that any Lender is a Defaulting Lender, such
Defaulting Lender and all of its Revolving Commitments and Revolving Credit Exposure shall be
excluded for purposes of determining Required Lenders.




          “Requirement of Law” for any Person shall mean the articles or certificate of
incorporation, bylaws, partnership certificate and agreement, or limited liability company
certificate of organization and agreement, as the case may be, and other organizational and
governing documents of such Person, and any law, treaty, rule or regulation, or determination of a
Governmental Authority, in




23









 




each case applicable to or binding upon such Person or any of its property or to which such
Person or any of its property is subject.




          “Responsible Officer” shall mean with respect to the Borrower, the Chairman of the
Board of Directors, the Chief Executive Officer, the President, the Executive Vice President, the
Chief Financial Officer, the Chief Accounting Officer, the Chief Operating Officer and/or other
officers of the Borrower as may be agreed to by the Administrative Agent from time to time.




          “Restricted Payment” shall mean, for any Person, any dividend or distribution on any
class of its Capital Stock, or any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, retirement, defeasance or other acquisition of,
any shares of its Capital Stock, or any options, warrants, or other rights to purchase such Capital
Stock, whether now or hereafter outstanding.




          “Revolving Commitment” shall mean, with respect to each Lender, the commitment of such
Lender to make Revolving Loans to the Borrower and to acquire participations in Letters of Credit
and Swingline Loans in an aggregate principal amount not exceeding the amount set forth with
respect to such Lender on Schedule II, as such schedule may be amended pursuant to
Section 2.23, or in the case of a Person becoming a Lender after the Closing Date, the
amount of the assigned “Revolving Commitment” as provided in the Assignment and Acceptance executed
by such Person as an assignee, or the joinder executed by such Person, in each case as such
commitment may subsequently be increased or decreased pursuant to terms hereof.




          “Revolving Commitment Termination Date” shall mean the earliest of (i) November 19,
2015, (ii) the date on which all of the Revolving Commitments are terminated pursuant to
Section 2.8 and (iii) the date on which all amounts outstanding under this Agreement have
been declared or have automatically become due and payable (whether by acceleration or otherwise).




          “Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the
sum of the outstanding principal amount of such Lender’s Revolving Loans, LC Exposure and Swingline
Exposure.




          “Revolving Loan” shall mean a loan made by a Lender (other than the Swingline Lender)
to the Borrower under its Revolving Commitment, which may either be a Base Rate Loan or a
Eurodollar Loan.




          “S&P” shall mean Standard & Poor’s, a Division of the McGraw-Hill Companies.




          “Sale Leaseback Transaction” shall mean any direct or indirect arrangement with any
Person or to which any such Person is a party, providing for the leasing to a Loan Party of any
Property, whether owned by such Loan Party as of the Closing Date or later acquired, which has been
or is to be sold or transferred by such Loan Party to such Person or to any other Person from whom
funds have been, or are to be, advanced by such Person on the security of such Property.




          “Sanctioned Country” shall mean a country subject to a sanctions program identified on
the list maintained by OFAC and available at
http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise published
from time to time.




          “Sanctioned Person” shall mean (i) a Person named on the list of “Specially
Designated Nationals and Blocked Persons” maintained by OFAC available at




24









 




http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or as otherwise published
from time to time, or (ii) (A) an agency of the government of a Sanctioned Country, (B) an
organization controlled by a Sanctioned Country, or (C) a person resident in a Sanctioned Country,
to the extent subject to a sanctions program administered by OFAC.




          “Senior Note Indenture” shall mean (a) that certain indenture agreement for the
Borrower’s 5.40% Senior Notes due 2014, dated as of April 23, 2004, among the Borrower and the
holders party thereto and all documents and instruments executed in connection with such indenture
agreement and (b) any other indenture agreement (or similar agreement) entered into by the Borrower
with respect to the issuance of Senior Notes, and all documents and instruments executed in
connection with any such indenture agreement (or similar agreement).




          “Senior Notes” shall mean (a) the senior unsecured notes issued by the Borrower in an
aggregate principal amount of $150,000,000 pursuant to the Senior Note Indenture, as refinanced,
renewed or extended from time to time and (b) any other senior unsecured notes issued by the
Borrower from time to time.




          “Solvent” shall mean, with respect to any Person on a particular date, that on such
date (a) the fair value of the Property of such Person is greater than the total amount of
liabilities, including subordinated and contingent liabilities, of such Person; (b) the present
fair saleable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts and liabilities, including subordinated
and contingent liabilities as they become absolute and matured; (c) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay
as such debts and liabilities mature; and (d) such Person is not engaged in a business or
transaction, and is not about to engage in a business or transaction, for which such Person’s
Property would constitute an unreasonably small capital. The amount of contingent liabilities
(such as litigation, guaranties and pension plan liabilities) at any time shall be computed as the
amount that, in light of all the facts and circumstances existing at the time, represents the
amount that would reasonably be expected to become an actual or matured liability.




          “Subsidiary” shall mean, with respect to any Person (the “parent”), any
corporation, partnership, joint venture, limited liability company, association or other entity the
accounts of which would be consolidated with those of the parent in the parent’s consolidated
financial statements if such financial statements were prepared in accordance with GAAP as of such
date, (i) of which securities or other ownership interests representing more than 50% of the equity
or more than 50% of the ordinary voting power, or in the case of a partnership, more than 50% of
the general partnership interests are, as of such date, owned, controlled or held, or (ii) that is,
as of such date, otherwise controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent. Unless otherwise indicated, all
references to “Subsidiary” hereunder shall mean a Subsidiary of the Borrower.




          “Subsidiary Guaranty Agreement” shall mean the Subsidiary Guaranty Agreement, dated as
of the date hereof and substantially in the form of Exhibit B made by certain Subsidiaries
of the Borrower in favor of the Administrative Agent for the benefit of the Lenders.




          “Subsidiary Loan Party” shall mean any Subsidiary that executes or becomes a party to
the Subsidiary Guaranty Agreement.




          “Swingline Commitment” shall mean the commitment of the Swingline Lender to make
Swingline Loans in an aggregate principal amount at any time outstanding not to exceed $10,000,000.




25









 





          “Swingline Exposure” shall mean, with respect to each Lender, the principal amount of
the Swingline Loans in which such Lender is legally obligated either to make a Base Rate Loan or to
purchase a participation in accordance with Section 2.4, which shall equal such Lender’s
Pro Rata Share of all outstanding Swingline Loans.




          “Swingline Lender” shall mean Wells Fargo Bank, N.A.




          “Swingline Loan” shall mean a loan made to the Borrower by the Swingline Lender under
the Swingline Commitment.




          “Synthetic Lease” shall mean a lease transaction under which the parties intend that
(i) the lease will be treated as an “operating lease” by the lessee pursuant to Accounting
Standards Codification Sections 840-10 & 840-20, as amended and (ii) the lessee will be entitled to
various tax and other benefits ordinarily available to owners (as opposed to lessees) of like
Property.




          “Synthetic Lease Obligations” shall mean, with respect to any Person, the sum of (i)
all remaining rental obligations of such Person as lessee under Synthetic Leases which are
attributable to principal and, without duplication, (ii) all rental and purchase price payment
obligations of such Person under such Synthetic Leases assuming such Person exercises the option to
purchase the lease property at the end of the lease term.




          “Taxes” shall mean any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.




          “Termination Date” shall mean such time at which each of the following events shall
have occurred on or prior to such time: (i) the Commitments have terminated or expired, (ii) all
Obligations under the Loan Documents (other than indemnities and other contingent obligations not
then due and payable and as to which no claim has been made as of the time of determination) have
been paid in full, and (iii) all Letters of Credit have expired or terminated or the LC Exposure
has been cash collateralized (or as to which other arrangements satisfactory to Lenders and the
Issuing Bank shall have been made) as provided for in this Agreement.




          “Total Shareholders’ Equity” shall mean the Total Shareholders’ Equity as stated in
the most recent financial statement delivered to the Administrative Agent and the Lenders pursuant
to Section 5.1(a) or 5.1(b), subject to any adjustments thereto in accordance with
the terms of Section 1.3.




          “Type”, when used in reference to a Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Base Rate.




          “U.S. Person” shall mean any Person that is a “United States person” as defined in
Section 7701(a)(30) of the Code.




          “Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.




     Section 1.2. Classifications of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g. a “Revolving Loan”) or by Type
(e.g. a “Eurodollar Loan” or “Base Rate Loan”) or by Class and Type (e.g. “Revolving Eurodollar
Loan”). Borrowings also



26









 




may be classified and referred to by Class (e.g. “Revolving Borrowing”) or by Type (e.g.
“Eurodollar Borrowing”) or by Class and Type (e.g. “Revolving Eurodollar Borrowing”).




     Section 1.3. Accounting Terms and Determination. Unless otherwise defined
or specified herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to be delivered
hereunder shall be prepared, in accordance with GAAP as in effect from time to time, applied on a
Consistent Basis; provided, that if the Borrower notifies the Administrative Agent that the
Borrower wishes to amend any provision to eliminate the effect of any change in GAAP (or if the
Administrative Agent notifies the Borrower that the Required Lenders wish to amend any provision
for such purpose), then such provision shall be interpreted on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either such notice is
withdrawn or such provision is amended in a manner satisfactory to the Borrower and the Required
Lenders. With respect to (a) calculations of the financial covenants set forth in Article VI
(including, without limitation, calculations of such financial covenants on a Pro Forma Basis in
connection with a Permitted Acquisition), (b) calculations related to the negative covenants set
forth in Article VII and (c) any calculation of Total Shareholders’ Equity, each such
calculation shall be made excluding the effects of any impairment charges resulting from the
adoption and ongoing application of Financial Accounting Standards Board Statement of Financial
Accounting Standards Nos. 141 and 142 by the Borrower or its Affiliates. Notwithstanding any other
provision contained herein, all terms of an accounting or financial nature used herein shall be
construed, and all computations of amounts and ratios referred to herein shall be made, without
giving effect to any election under Accounting Standards Codification Section 825-10 (or any other
Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other
liabilities of any Loan Party or any Subsidiary of any Loan Party at “fair value”, as defined
therein.



     Section 1.4. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine and neuter forms. The words
“include”, “includes” and “including” shall be deemed to be followed by the phrase “without
limitation”. The word “will” shall be construed to have the same meaning and effect as the word
“shall”. In the computation of periods of time from a specified date to a later specified date,
the word “from” means “from and including” and the word “to” means “to but excluding”. Unless the
context requires otherwise (i) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
it was originally executed or as it may from time to time be amended, restated, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or modifications
set forth herein), (ii) any reference herein to any Person shall be construed to include such
Person’s successors and permitted assigns, (iii) the words “hereof”, “herein” and “hereunder” and
words of similar import shall be construed to refer to this Agreement as a whole and not to any
particular provision hereof, (iv) all references to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles, Sections, Exhibits and Schedules to this Agreement and (v)
all references to a specific time shall be construed to refer to the time in the city and state of
the Administrative Agent’s principal office, unless otherwise indicated.



ARTICLE II




AMOUNT AND TERMS OF THE COMMITMENTS



     Section 2.1. General Description of Facilities. Subject to and upon the
terms and conditions herein set forth, (i) the Lenders hereby establish in favor of the Borrower a
revolving credit facility pursuant to which each Lender severally agrees (to the extent of such
Lender’s Revolving Commitment)



27









 




to make Revolving Loans to the Borrower in accordance with Section 2.2, (ii) the
Issuing Bank may issue Letters of Credit in accordance with Section 2.22, (iii) the
Swingline Lender may make Swingline Loans in accordance with Section 2.4, and (iv) each
Lender agrees to purchase a participation interest in the Letters of Credit and the Swingline Loans
pursuant to the terms and conditions hereof; provided, that in no event shall the aggregate
principal amount of all outstanding Revolving Loans, Swingline Loans and outstanding LC Exposure
exceed the Aggregate Revolving Commitment Amount in effect from time to time.




     Section 2.2. Revolving Loans. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make Revolving Loans, ratably in proportion to its Pro Rata
Share of the Revolving Commitments, to the Borrower, from time to time during the Availability
Period, in an aggregate principal amount outstanding at any time that will not result in (a) such
Lender’s Revolving Credit Exposure exceeding such Lender’s Revolving Commitment or (b) the
aggregate Revolving Credit Exposures of all Lenders exceeding the Aggregate Revolving Commitment
Amount. During the Availability Period, the Borrower shall be entitled to borrow, prepay and
reborrow Revolving Loans in accordance with the terms and conditions of this Agreement;
provided, that the Borrower may not borrow or reborrow should there exist a Default or
Event of Default.



     Section 2.3. Procedure for Revolving Borrowings. The Borrower shall give the
Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of each
Revolving Borrowing substantially in the form of Exhibit 2.3 (a “Notice of Revolving
Borrowing”) (x) prior to 11:00 a.m. one (1) Business Day prior to the requested date of each
Base Rate Borrowing and (y) prior to 11:00 a.m. three (3) Business Days prior to the requested date
of each Eurodollar Borrowing. Each Notice of Revolving Borrowing shall be irrevocable and shall
specify: (i) the aggregate principal amount of such Borrowing, (ii) the date of such Borrowing
(which shall be a Business Day), (iii) the Type of such Revolving Loan comprising such Borrowing
and (iv) in the case of a Eurodollar Borrowing, the duration of the initial Interest Period
applicable thereto (subject to the provisions of the definition of Interest Period). Each
Revolving Borrowing shall consist entirely of Base Rate Loans or Eurodollar Loans, as the Borrower
may request. The aggregate principal amount of each Eurodollar Borrowing shall be not less than
$5,000,000 or a larger multiple of $1,000,000, and the aggregate principal amount of each Base Rate
Borrowing shall not be less than $1,000,000 or a larger multiple of $100,000; provided,
that Base Rate Loans made pursuant to Section 2.4 or Section 2.22(d) may be made in
lesser amounts as provided therein. At no time shall the total number of Eurodollar Borrowings
outstanding at any time exceed six. Promptly following the receipt of a Notice of Revolving
Borrowing in accordance herewith, the Administrative Agent shall advise each Lender of the details
thereof and the amount of such Lender’s Revolving Loan to be made as part of the requested
Revolving Borrowing.



     Section 2.4. Swingline Commitment.



          (a) Subject to the terms and conditions set forth herein, the Swingline Lender may,
in its sole discretion, make Swingline Loans to the Borrower, from time to time during the
Availability Period, in an aggregate principal amount outstanding at any time not to exceed the
lesser of (i) the Swingline Commitment then in effect and (ii) the difference between the Aggregate
Revolving Commitment Amount and the aggregate Revolving Credit Exposures of all Lenders;
provided, that the Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. The Borrower shall be entitled to borrow, repay and
reborrow Swingline Loans in accordance with the terms and conditions of this Agreement.




          (b) The Borrower shall give the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) of each Swingline Borrowing substantially in the form of
Exhibit 2.4 attached hereto (“Notice of Swingline Borrowing”) prior to 10:00 a.m.
on the requested date of each





28









 







Swingline Borrowing. Each Notice of Swingline Borrowing shall be irrevocable and shall
specify: (i) the principal amount of such Swingline Loan, (ii) the date of such Swingline Loan
(which shall be a Business Day) and (iii) the account of the Borrower to which the proceeds of such
Swingline Loan should be credited. The Administrative Agent will promptly advise the Swingline
Lender of each Notice of Swingline Borrowing. Each Swingline Loan shall accrue interest at the
Base Rate plus the Applicable Margin. The aggregate principal amount of each Swingline Loan shall
not be less than $100,000 or a larger multiple of $50,000, or such other minimum amounts agreed to
by the Swingline Lender and the Borrower. The Swingline Lender will make the proceeds of each
Swingline Loan available to the Borrower in Dollars in immediately available funds at the account
specified by the Borrower in the applicable Notice of Swingline Borrowing not later than 1:00 p.m.
on the requested date of such Swingline Loan.




          (c) The Swingline Lender, at any time and from time to time in its sole discretion,
may, but in no event no less frequently than once each calendar week shall, on behalf of the
Borrower (which hereby irrevocably authorizes and directs the Swingline Lender to act on its
behalf), give a Notice of Revolving Borrowing to the Administrative Agent requesting the Lenders
(including the Swingline Lender) to make Base Rate Loans in an amount equal to the unpaid principal
amount of any Swingline Loan. Each Lender will make the proceeds of its Base Rate Loan included in
such Borrowing available to the Administrative Agent for the account of the Swingline Lender in
accordance with Section 2.6, which will be used solely for the repayment of such Swingline
Loan.




          (d) If for any reason a Base Rate Borrowing may not be (as determined in the sole
discretion of the Administrative Agent), or is not, made in accordance with the foregoing
provisions, then each Lender (other than the Swingline Lender) shall purchase an undivided
participating interest in such Swingline Loan in an amount equal to its Pro Rata Share thereof on
the date that such Base Rate Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately available funds, the amount of its
participating interest to the Administrative Agent for the account of the Swingline Lender.




          (e) Each Lender’s obligation to make a Base Rate Loan pursuant to Section
2.4(c) or to purchase the participating interests pursuant to Section
2.4(d) shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff, counterclaim, recoupment, defense or
other right that such Lender or any other Person may have or claim against the Swingline Lender,
the Borrower or any other Person for any reason whatsoever, (ii) the existence of a Default or an
Event of Default or the termination of any Lender’s Revolving Commitment, (iii) the existence (or
alleged existence) of any event or condition which has had or could reasonably be expected to have
a Material Adverse Effect, (iv) any breach of this Agreement or any other Loan Document by any Loan
Party, the Administrative Agent or any Lender or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing. If such amount is not in fact made
available to the Swingline Lender by any Lender, the Swingline Lender shall be entitled to recover
such amount on demand from such Lender, together with accrued interest thereon for each day from
the date of demand thereof (i) at the Federal Funds Rate until the second Business Day after such
demand and (ii) at the Base Rate at all times thereafter. Until such time as such Lender makes its
required payment, the Swingline Lender shall be deemed to continue to have outstanding Swingline
Loans in the amount of the unpaid participation for all purposes of the Loan Documents. In
addition, such Lender shall be deemed to have assigned any and all payments made of principal and
interest on its Loans and any other amounts due to it hereunder, to the Swingline Lender to fund
the amount of such Lender’s participation interest in such Swingline Loans that such Lender failed
to fund pursuant to this Section 2.4, until such amount has been purchased in full.




     Section 2.5. [Reserved]



29









 





     Section 2.6. Funding of Borrowings.



          (a) Each Lender will make available each Loan to be made by it hereunder on the
proposed date thereof by wire transfer in immediately available funds by 11:00 a.m. to the
Administrative Agent at the Payment Office; provided, that the Swingline Loans will be made
as set forth in Section 2.4. The Administrative Agent will make such Loans available to
the Borrower by promptly crediting the amounts that it receives, in like funds by the close of
business on such proposed date, to an account maintained by the Borrower with the Administrative
Agent or at the Borrower’s option, by effecting a wire transfer of such amounts to an account
designated by the Borrower to the Administrative Agent.




          (b) Unless the Administrative Agent shall have been notified by any Lender prior to
5:00 p.m. one (1) Business Day prior to the date of a Borrowing in which such Lender is to
participate that such Lender will not make available to the Administrative Agent such Lender’s
share of such Borrowing, the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on such date, and the Administrative Agent, in reliance on
such assumption, may make available to the Borrower on such date a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Agent by such Lender on
the date of such Borrowing, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest at the Federal Funds Rate
until the second Business Day after such demand and thereafter at the Base Rate. If such Lender
does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor,
the Administrative Agent shall promptly notify the Borrower, and the Borrower shall immediately pay
such corresponding amount to the Administrative Agent together with interest at the rate specified
for such Borrowing. Nothing in this subsection shall be deemed to relieve any Lender from its
obligation to fund its Pro Rata Share of any Borrowing hereunder or to prejudice any rights which
the Borrower may have against any Lender as a result of any default by such Lender hereunder.




          (c) All Revolving Borrowings shall be made by the Lenders on the basis of their
respective Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in
its obligations hereunder, and each Lender shall be obligated to make its Loans provided to be made
by it hereunder, regardless of the failure of any other Lender to make its Loans hereunder.




     Section 2.7. Interest Elections.



          (a) Each Borrowing initially shall be of the Type specified in the applicable Notice
of Borrowing. Thereafter, the Borrower may elect to convert such Borrowing into a different Type
or to continue such Borrowing, all as provided in this Section 2.7. The Borrower may elect
different options with respect to different portions of the affected Borrowing, in which case each
such portion shall be allocated ratably among the Lenders holding Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate Borrowing.




          (b) To make an election pursuant to this Section 2.7, the Borrower shall
give the Administrative Agent prior written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing substantially in the form of Exhibit 2.7 attached hereto (a
“Notice of Conversion/Continuation”) that is to be converted or continued, as the case may
be, (x) prior to 10:00 a.m. one (1) Business Day prior to the requested date of a conversion into a
Base Rate Borrowing and (y) prior to 11:00 a.m. three (3) Business Days prior to a continuation of
or conversion into a Eurodollar Borrowing. Each such Notice of Conversion/Continuation shall be
irrevocable and shall specify (i) the Borrowing to which such Notice of Conversion/Continuation
applies and if different options are being elected with respect to different portions thereof, the
portions thereof that are to be allocated to each
resulting Borrowing (in which case the information to be specified pursuant to clauses (iii)
and (iv) shall




30









 




be specified for each resulting Borrowing); (ii) the effective date of the election
made pursuant to such Notice of Conversion/Continuation, which shall be a Business Day; (iii)
whether the resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar Borrowing; and (iv)
if the resulting Borrowing is to be a Eurodollar Borrowing, the Interest Period applicable thereto
after giving effect to such election, which shall be a period contemplated by the definition of
“Interest Period”. If any such Notice of Conversion/Continuation requests a Eurodollar Borrowing
but does not specify an Interest Period, the Borrower shall be deemed to have selected an Interest
Period of one month. The principal amount of any resulting Borrowing shall satisfy the minimum
borrowing amount for Eurodollar Borrowings and Base Rate Borrowings set forth in Section
2.3.




          (c) If, on the expiration of any Interest Period in respect of any Eurodollar
Borrowing, the Borrower shall have failed to deliver a Notice of Conversion/ Continuation, then,
unless such Borrowing is repaid as provided herein, the Borrower shall be deemed to have elected to
convert such Borrowing to a Base Rate Borrowing. No Borrowing may be converted into, or continued
as, a Eurodollar Borrowing if a Default or an Event of Default exists, unless the Administrative
Agent and each of the Lenders shall have otherwise consented in writing. No conversion of any
Eurodollar Loans shall be permitted except on the last day of the Interest Period in respect
thereof.




          (d) Upon receipt of any Notice of Conversion/Continuation, the Administrative Agent
shall promptly notify each Lender of the details thereof and of such Lender’s portion of each
resulting Borrowing.




     Section 2.8. Optional Reduction and Termination of Commitments.



          (a) Unless previously terminated, all Revolving Commitments, Swingline Commitments
and LC Commitments shall terminate on the Revolving Commitment Termination Date.




          (b) Upon at least three (3) Business Days’ prior written notice (or telephonic
notice promptly confirmed in writing) to the Administrative Agent (which notice shall be
irrevocable), the Borrower may reduce the Aggregate Revolving Commitments in part or terminate the
Aggregate Revolving Commitments in whole; provided, that (i) any partial reduction shall
apply to reduce proportionately and permanently the Revolving Commitment of each Lender, (ii) any
partial reduction pursuant to this Section 2.8 shall be in an amount of at least $5,000,000
and any larger multiple of $1,000,000, and (iii) no such reduction shall be permitted which would
reduce the Aggregate Revolving Commitment Amount to an amount less than the aggregate outstanding
Revolving Credit Exposure of all Lenders. Any such reduction in the Aggregate Revolving Commitment
Amount below the principal amount of the Swingline Commitment and the LC Commitment shall result in
a dollar-for-dollar reduction in the Swingline Commitment and the LC Commitment. Any notice
pursuant to this Section 2.8(b) shall be irrevocable, provided that a notice of termination
of the Commitments delivered by the Borrower may state that such notice is conditioned upon the
occurrence of identified events, in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified effective date) if such condition
is not satisfied.




          (c) The Borrower may terminate (on a non-ratable basis) the unused amount of the
Revolving Commitment of a Defaulting Lender, and in such event the provisions of Section
2.26 will apply to all amounts thereafter paid by the Borrower for the account of any such
Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity
or other amounts), provided that such termination will not be deemed to be a waiver or release of
any claim the Borrower, the
Administrative Agent, the Issuing Bank, the Swingline Lender or any Lender may have against
such Defaulting Lender.




31









 








     Section 2.9. Repayment of Loans. The outstanding principal amount of all
Revolving Loans and Swingline Loans shall be due and payable (together with accrued and unpaid
interest thereon) on the Revolving Commitment Termination Date.



     Section 2.10. Evidence of Indebtedness. (a) Each Lender shall maintain in
accordance with its usual practice appropriate records evidencing the Indebtedness of the Borrower
to such Lender resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable thereon and paid to such Lender from time to time under
this Agreement. The Administrative Agent shall maintain appropriate records in which shall be
recorded (i) the Revolving Commitment of each Lender, (ii) the amount of each Loan made hereunder
by each Lender, the Class and Type thereof and the Interest Period applicable thereto, (iii) the
date of each continuation thereof pursuant to Section 2.7, (iv) the date of each conversion
of all or a portion thereof to another Type pursuant to Section 2.7, (v) the date and
amount of any principal or interest due and payable or to become due and payable from the Borrower
to each Lender hereunder in respect of such Loans and (vi) both the date and amount of any sum
received by the Administrative Agent hereunder from the Borrower in respect of the Loans and each
Lender’s Pro Rata Share thereof. The entries made in such records shall be prima facie evidence of
the existence and amounts of the obligations of the Borrower therein recorded; provided,
that the failure or delay of any Lender or the Administrative Agent in maintaining or making
entries into any such record or any error therein shall not in any manner affect the obligation of
the Borrower to repay the Loans (both principal and unpaid accrued interest) of such Lender in
accordance with the terms of this Agreement.



          (b) This Agreement evidences the obligation of the Borrower to repay the Loans and
is being executed as a “noteless” credit agreement. However, at the request of any Lender
(including the Swingline Lender) at any time, the Borrower agrees that it will prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by
such Lender, to such Lender and its registered assigns) and in a form approved by the
Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment permitted hereunder) be represented by one or more
promissory notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).




     Section 2.11. Optional Prepayments. The Borrower shall have the right at
any time and from time to time to prepay any Borrowing, in whole or in part, without premium or
penalty, by giving irrevocable written notice (or telephonic notice promptly confirmed in writing)
to the Administrative Agent no later than (i) in the case of prepayment of any Eurodollar
Borrowing, 11:00 a.m. not less than three (3) Business Days prior to any such prepayment, (ii) in
the case of any prepayment of any Base Rate Borrowing, not less than one Business Day prior to the
date of such prepayment, and (iii) in the case of Swingline Borrowings, prior to 11:00 a.m. on the
date of such prepayment. Each such notice shall be irrevocable and shall specify the proposed date
of such prepayment and the principal amount of each Borrowing or portion thereof to be prepaid,
provided, that, if a notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.8, then such notice of
prepayment may be revoked if such notice of termination is revoked in accordance with Section
2.8. Upon receipt of any such notice, the Administrative Agent shall promptly notify each
affected Lender of the contents thereof and of such Lender’s Pro Rata Share of any such prepayment.
If such notice is given, the aggregate amount specified in such notice shall be due and payable on
the date designated in such notice, together with accrued interest to such date on the amount so
prepaid in accordance with Section 2.13(d); provided, that if a Eurodollar
Borrowing is prepaid on a date other than
the last day of an Interest Period applicable thereto, the Borrower shall also pay all amounts
required pursuant to Section 2.19. Each partial prepayment of any Loan (other than a
Swingline Loan) shall be in an amount that would be permitted in the case of an advance of a
Revolving Borrowing of the same Type



32









 







pursuant to Section 2.2 or in the case of a Swingline
Loan pursuant to Section 2.4. Each prepayment of a Borrowing shall be applied ratably to
the Loans comprising such Borrowing.



     Section 2.12. Mandatory Prepayments. If at any time the Revolving Credit
Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to
Section 2.8 or otherwise, the Borrower shall immediately repay Swingline Loans and
Revolving Loans in an amount equal to such excess, together with all accrued and unpaid interest on
such excess amount and any amounts due under Section 2.19. Each prepayment shall be
applied first to the Swingline Loans to the full extent thereof, second to the Base Rate Loans to
the full extent thereof, and finally to Eurodollar Loans to the full extent thereof. If after
giving effect to prepayment of all Swingline Loans and Revolving Loans, the Revolving Credit
Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower shall Cash
Collateralize its reimbursement obligations with respect to all Letters of Credit in an amount
equal to such excess plus any accrued and unpaid fees thereon.



     Section 2.13. Interest on Loans.



          (a) The Borrower shall pay interest on (i) each Base Rate Loan at the Base Rate plus
the Applicable Margin in effect from time to time and (ii) each Eurodollar Loan at the Adjusted
LIBO Rate for the applicable Interest Period in effect for such Loan plus the Applicable Margin in
effect from time to time.




          (b) The Borrower shall pay interest on each Swingline Loan at the Base Rate plus the
Applicable Margin in effect from time to time.




          (c) Notwithstanding clauses (a) and (b) above, if an Event of Default has occurred
and is continuing, at the option of the Required Lenders, and after acceleration, the Borrower
shall pay interest (“Default Interest”) with respect to all Eurodollar Loans at the rate
per annum equal to 200 basis points above the otherwise applicable interest rate for such
Eurodollar Loans for the then-current Interest Period until the last day of such Interest Period,
and thereafter, and with respect to all Base Rate Loans and all other Obligations hereunder (other
than Loans), at the rate per annum equal to 200 basis points above the otherwise applicable
interest rate for Base Rate Loans.




          (d) Interest on the principal amount of all Loans shall accrue from and including
the date such Loans are made to but excluding the date of any repayment thereof. Interest on all
outstanding Base Rate Loans and Swingline Loans shall be payable quarterly in arrears on the last
day of each Fiscal Quarter of the Borrower and on the Revolving Commitment Termination Date.
Interest on all outstanding Eurodollar Loans shall be payable on the last day of each Interest
Period applicable thereto, and, in the case of any Eurodollar Loans having an Interest Period in
excess of three months, on each day which occurs every three months after the initial date of such
Interest Period, and on the Revolving Commitment Termination Date. Interest on any Loan which is
converted into a Loan of another Type or which is repaid or prepaid shall be payable on the date of
such conversion or on the date of any such repayment or prepayment (on the amount repaid or
prepaid) thereof. All Default Interest shall be payable on demand.




          (e) The Administrative Agent shall determine each interest rate applicable to the
Loans hereunder and shall promptly notify the Borrower and the Lenders of such rate in writing (or
by telephone, promptly confirmed in writing). Any such determination shall be conclusive and
binding for all purposes, absent manifest error.






33









 








     Section 2.14. Fees.



          (a) The Borrower shall pay to the Administrative Agent for its own account fees in
the amounts and at the times previously agreed upon in writing by the Borrower and the
Administrative Agent.




          (b) The Borrower agrees to pay to the Administrative Agent for the account of each
Lender a commitment fee, which shall accrue at the Applicable Percentage per annum (determined
daily in accordance with Schedule I) on the average daily amount of the unused Revolving
Commitment of such Lender during the Availability Period. For purposes of computing commitment
fees with respect to the Revolving Commitments, the Revolving Commitment of each Lender shall be
deemed used to the extent of the outstanding Revolving Loans and LC Exposure, but not Swingline
Exposure, of such Lender.




          (c) The Borrower agrees to pay (i) to the Administrative Agent, for the account of
each Lender, a letter of credit fee with respect to its participation in each Letter of Credit,
which shall accrue at a rate per annum equal to the Applicable Margin for Eurodollar Loans then in
effect on the average daily amount of such Lender’s LC Exposure attributable to such Letter of
Credit during the period from and including the date of issuance of such Letter of Credit to but
excluding the date on which such Letter of Credit expires or is drawn in full (including without
limitation any LC Exposure that remains outstanding after the Revolving Commitment Termination
Date) and (ii) to the Issuing Bank for its own account a fronting fee, which shall accrue at the
rate of 0.125% per annum on the average daily amount of the LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the Availability Period (or until the
date that such Letter of Credit is irrevocably cancelled, whichever is later), as well as the
Issuing Bank’s standard fees with respect to issuance, amendment, renewal or extension of any
Letter of Credit or processing of drawings thereunder. Notwithstanding the foregoing, if the
Required Lenders elect to increase the interest rate on the Loans to the Default Interest pursuant
to Section 2.13(c), the rate per annum used to calculate the letter of credit fee pursuant
to clause (i) above shall automatically be increased by 200 basis points.




          (d) The Borrower shall pay on the Closing Date to the Co-Syndication Agents and
their affiliates all fees in the Fee Letter that are due and payable on the Closing Date. The
Borrower shall pay on the Closing Date to the Administrative Agent and its affiliates all fees in
the Administrative Agent Fee Letter that are due and payable on the Closing Date. The Borrower
shall pay on the Closing Date to the Lenders all upfront fees previously agreed in writing.




          (e) Accrued fees under paragraphs (b) and (c) above shall be payable quarterly in
arrears on the last day of each Fiscal Quarter of the Borrower, commencing on [November 30, 2010]
and on the Revolving Commitment Termination Date (and if later, the date the Loans and LC Exposure
shall be repaid in their entirety); provided further, that any such fees accruing
after the Revolving Commitment Termination Date shall be payable on demand.




          (f) Anything herein to the contrary notwithstanding, during such period as a Lender
is a Defaulting Lender, such Defaulting Lender will not be entitled to commitment fees accruing
with respect to its Revolving Commitment during such period pursuant to Section 2.14(b) or
letter of credit fees accruing during such period pursuant to Section 2.14(c) (without
prejudice to the rights of the Lenders other than Defaulting Lenders in respect of such fees),
provided that (a) to the extent that a portion of the LC Exposure of such Defaulting Lender
is reallocated to the Non-Defaulting Lenders pursuant to Section 2.26, such fees that would
have accrued for the benefit of such Defaulting Lender will instead accrue for the benefit of and
be payable to such Non-Defaulting Lenders, pro rata in accordance
with their respective Revolving Commitments and (b) to the extent any portion of such LC
Exposure




34









 




cannot be so reallocated, such fees will instead accrue for the benefit of and be payable
to the Issuing Bank. The pro rata payment provisions of Section 2.21 shall automatically
be deemed adjusted to reflect the provisions of this subsection (f).




     Section 2.15. Computation of Interest and Fees.



          Other than calculations in respect of interest at the Wells Fargo prime rate (which shall be
made on the basis of actual number of days elapsed in a 365/366 day year), all computations of
interest and fees hereunder shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last day). Each
determination by the Administrative Agent of an interest rate or fee hereunder shall be made in
good faith and, except for manifest error, shall be final, conclusive and binding for all purposes.




     Section 2.16. Inability to Determine Interest Rates. If prior to the
commencement of any Interest Period for any Eurodollar Borrowing,




     (i) the Administrative Agent shall have determined (which determination shall
be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the
relevant interbank market, adequate means do not exist for ascertaining LIBOR for such
Interest Period, or




     (ii) the Administrative Agent shall have received notice from the Required
Lenders that the Adjusted LIBO Rate does not adequately and fairly reflect the cost to such
Lenders (or Lender, as the case may be) of making, funding or maintaining their (or its, as
the case may be) Eurodollar Loans for such Interest Period,


the Administrative Agent shall give written notice (or telephonic notice, promptly confirmed in
writing) to the Borrower and to the Lenders as soon as practicable thereafter. Until the
Administrative Agent shall notify the Borrower and the Lenders that the circumstances giving rise
to such notice no longer exist, (i) the obligations of the Lenders to make Eurodollar Revolving
Loans or to continue or convert outstanding Loans as or into Eurodollar Loans shall be suspended
and (ii) all such affected Loans shall be converted into Base Rate Loans on the last day of the
then current Interest Period applicable thereto unless the Borrower prepays such Loans in
accordance with this Agreement. Unless the Borrower notifies the Administrative Agent at least one
Business Day before the date of any Eurodollar Borrowing for which a Notice of Revolving Borrowing
or Notice of Conversion/Continuation has previously been given that it elects not to borrow on such
date, then such Revolving Borrowing shall be made as a Base Rate Borrowing.




     Section 2.17. Illegality. If any Change in Law shall make it unlawful or
impossible for any Lender to make, maintain or fund any Eurodollar Loan and such Lender shall so
notify the Administrative Agent, the Administrative Agent shall promptly give notice thereof to the
Borrower and the other Lenders, whereupon until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such suspension no longer exist, the obligation
of such Lender to make Eurodollar Loans, or to continue or convert outstanding Loans as or into
Eurodollar Loans, shall be suspended. In the case of the making of a Eurodollar Borrowing, such
Lender’s Revolving Loan shall be made as a Base Rate Loan as part of the same Revolving Borrowing
for the same Interest Period and if the affected Eurodollar Loan is then outstanding, such Loan
shall be converted to a Base Rate Loan either (i) on the last day of the then current Interest
Period applicable to such Eurodollar Loan if such Lender may lawfully continue to maintain such
Loan to such date or (ii) immediately if such Lender shall determine that it may not lawfully
continue to maintain such Eurodollar Loan to such date. Notwithstanding the foregoing, the
affected Lender shall, prior to giving such notice to the Administrative
Agent, designate a different Applicable Lending Office if such designation would avoid the
need for



35









 







giving such notice and if such designation would not otherwise be disadvantageous to such
Lender in the good faith exercise of its discretion.



     Section 2.18. Increased Costs.



          (a) If any Change in Law shall:





     (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement that is not otherwise included in the determination of the Adjusted LIBO Rate
hereunder against assets of, deposits with or for the account of, or credit extended by, any
Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or




     (ii) impose on any Lender or on the Issuing Bank or the eurodollar interbank
market any other condition affecting this Agreement or any Eurodollar Loans made by such
Lender or any Letter of Credit or any participation therein;


and the result of either of the foregoing is to increase the cost to such Lender of making,
converting into, continuing or maintaining a Eurodollar Loan or to increase the cost to such Lender
or the Issuing Bank of participating in or issuing any Letter of Credit or to reduce the amount
received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest
or any other amount), then the Borrower shall promptly pay, within fifteen (15) days after receipt
by the Borrower from such Lender of a certificate described in Section 2.18(c) (with a copy
thereof to the Administrative Agent), to the Administrative Agent for the account of such Lender,
additional amount or amounts sufficient to compensate such Lender or the Issuing Bank, as the case
may be, for such additional costs incurred or reduction suffered.




          (b) If any Lender or the Issuing Bank shall have determined that on or after the
date of this Agreement any Change in Law regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital (or on the
capital of the Parent Company of such Lender or Issuing Bank) as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that which such Lender,
the Issuing Bank or the Parent Company of such Lender or Issuing Bank could have achieved but for
such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies or the
policies of the Parent Company of such Lender or Issuing Bank with respect to capital adequacy)
then, from time to time, within fifteen (15) days after receipt by the Borrower from such Lender of
a certificate described in Section 2.18(c) (with a copy thereof to the Administrative Agent), the
Borrower shall pay to such Lender such additional amounts as will compensate such Lender, the
Issuing Bank or the Parent Company of such Lender or the Issuing Bank for any such reduction
suffered.




          (c) A certificate of a Lender or the Issuing Bank setting forth in reasonable detail
the basis for, and the calculation of, the amount or amounts necessary to compensate such Lender,
the Issuing Bank or the Parent Company of such Lender or the Issuing Bank, as the case may be,
specified in paragraph (a) or (b) of this Section 2.18 shall be delivered to the Borrower
(with a copy to the Administrative Agent) and shall be conclusive, absent manifest error. The
Borrower shall pay any such Lender or the Issuing Bank, as the case may be, such amount or amounts
within fifteen (15) days after receipt thereof.




          (d) Failure or delay on the part of any Lender or the Issuing Bank to demand
compensation pursuant to this Section 2.18 shall not constitute a waiver of such Lender’s
or the Issuing Bank’s right to demand such compensation; provided that the Borrower shall
not be required to




36









 




compensate a Lender or an Issuing Bank pursuant to this Section 2.18 for
any increased costs or reductions incurred more than 180 days prior to the date that such Lender or
such Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender’s or such Issuing Bank’s intention to claim
compensation therefor; provided further that, if the Change in Law giving rise to
such increased costs or reductions is retroactive, then the 180-day period referred to above shall
be extended to include the period of retroactive effect thereof.




     Section 2.19. Funding Indemnity. In the event of (a) the payment of any
principal of a Eurodollar Loan other than on the last day of the Interest Period applicable thereto
(including as a result of an Event of Default), (b) the conversion or continuation of a Eurodollar
Loan other than on the last day of the Interest Period applicable thereto, or (c) the failure by
the Borrower to borrow, prepay, convert or continue any Eurodollar Loan on the date specified in
any applicable notice (regardless of whether such notice is withdrawn or revoked) (other than, in
the case of a claim for compensation based on the failure to borrow as specified in clause (c)
above, any Lender whose failure to make a Loan required to be made by it hereunder has resulted in
such failure to borrow), then, in any such event, the Borrower shall compensate each Lender, within
fifteen (15) days after written demand from such Lender, for any loss, cost or expense attributable
to such event. In the case of a Eurodollar Loan, such loss, cost or expense shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (A) the amount of interest
that would have accrued on the principal amount of such Eurodollar Loan if such event had not
occurred at the Adjusted LIBO Rate applicable to such Eurodollar Loan for the period from the date
of such event to the last day of the then current Interest Period therefor (or in the case of a
failure to borrow, convert or continue, for the period that would have been the Interest Period for
such Eurodollar Loan) over (B) the amount of interest that would accrue on the principal amount of
such Eurodollar Loan for the same period if the Adjusted LIBO Rate were set on the date such
Eurodollar Loan was prepaid or converted or the date on which the Borrower failed to borrow,
convert or continue such Eurodollar Loan. A certificate as to any additional amount payable under
this Section 2.19 submitted to the Borrower by any Lender (with a copy to the
Administrative Agent) shall be conclusive, absent manifest error.



     Section 2.20. Taxes.



          (a) Any and all payments made to a Payment Recipient by or on account of any
obligation of the Borrower under any Loan Document shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided, that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum
payable shall be increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.20) the Payment
Recipient shall receive an amount equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable law.




          (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.




          (c) The Borrower shall indemnify each Payment Recipient within fifteen (15) days
after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
such Payment Recipient on or with respect to any payment by or on account of any obligation of the
Borrower under any Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on
or
attributable to amounts payable under this Section 2.20) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to the Borrower
by a Lender or the Issuing Bank, or by




37









 




the Administrative Agent on its own behalf or on behalf of a
Lender or the Issuing Bank, shall be conclusive absent manifest error.




          (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by
the Borrower to a Governmental Authority, the Borrower shall deliver to the Payment Recipient, with
a copy to the Administrative Agent, the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to the Payment Recipient and the
Administrative Agent.




          (e) Status of Lenders. Each Payment Recipient that is entitled to an
exemption from, or reduction in, any withholding Tax with respect to any payments to be made to
such Payment Recipient under any Loan Document shall, at such times as are reasonably requested by
the Borrower, provide the Borrower with any documentation prescribed by applicable law, or
reasonably requested by the Borrower, certifying as to such Payment Recipient’s entitlement to such
exemption from, or reduction in, such withholding Tax. Unless the Borrower has received forms or
other documents satisfactory to it indicating that payments under this Agreement to or for such
Payment Recipient are not subject to withholding Tax or are subject to such Tax at a rate reduced
by an applicable Tax treaty, the Borrower or any other applicable withholding agent may withhold
amounts required to be withheld by applicable law from such payments at the applicable rate.




          Without limiting the generality of the foregoing:





     (i) if the Payment Recipient is a U.S. Person, the Payment Recipient shall
deliver to the Borrower on or before the date on which it becomes a party to any Loan
Document two properly completed and executed originals of Internal Revenue Service (“IRS”)
Form W-9 (or any successor form) certifying that the Payment Recipient is exempt from U.S.
federal backup withholding; and




     (ii) if the Payment Recipient is not a U.S. Person, then the Payment
Recipient shall deliver to the Borrower on or before the date on which it becomes a party to
any Loan Document (and from time to time thereafter when required by applicable law or upon
the reasonable request of Borrower) whichever of the following is applicable:




          (A) two properly completed and executed originals of IRS Form W-8BEN (or any successor
forms) claiming eligibility for benefits (if any) of an income tax treaty to which the
United States of America is a party,




          (B) two properly completed and executed originals of IRS Form W-8ECI (or any successor
forms),




          (C) to the extent the Payment Recipient is not the beneficial owner (for example, where
the Payment Recipient is a partnership or has granted a participation), two properly
completed and executed originals of IRS Form W-8IMY (or any successor forms) of the Payment
Recipient, accompanied by IRS Forms W-8ECI, W-8BEN, W-9 and/or any other required
information from each beneficial owner, as applicable, or




          (D) any other form prescribed by applicable requirements of U.S. federal income tax law
as a basis for claiming exemption from or a reduction in U.S. federal withholding
Tax, properly completed, together with such supplementary documentation as may be
prescribed by applicable requirements of law to permit the Borrower to determine the
withholding or deduction required to be made.



38









 





          If a payment made to a Payment Recipient under any Loan Document would be subject to U.S.
federal withholding Tax imposed by FATCA if the Payment Recipient fails to comply with the
applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b)
of the Code, as applicable), such Payment Recipient shall deliver to the Borrower documentation
reasonably requested by the Borrower sufficient for the Borrower to comply with its obligations
under FATCA and to determine (i) that the Payment Recipient has complied with such applicable
reporting requirements or (ii) the amount to deduct from any such payment.




          Each Payment Recipient shall, from time to time after the initial delivery by such Payment
Recipient of the forms described above, whenever a lapse in time or change in such Payment
Recipient’s circumstances renders such forms, certificates or other evidence so delivered expired,
obsolete or inaccurate, promptly (1) deliver to the Borrower (in such number of copies as shall be
requested) renewals, amendments or additional or successor forms, properly completed and duly
executed by such Payment Recipient, together with any other certificate or statement of exemption
required in order to confirm or establish such Payment Recipient’s status or that such Payment
Recipient is entitled to an exemption from or reduction in U.S. federal withholding Tax or (2)
notify the Borrower of its inability to deliver any such forms, certificates or other evidence.




          Notwithstanding any other provision to the contrary in this Section 2.20(e), a Payment
Recipient shall not be required to deliver any form that such Payment Recipient is not legally
eligible to deliver.




          (f) Treatment of Certain Refunds. If any Payment Recipient determines, in
its sole discretion, that it has received a refund of any Indemnified Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.20, it shall pay to the Borrower an amount
equal to such refund (but only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower under this Section 2.20 with respect to the Indemnified Taxes or
Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including
Taxes) of the Payment Recipient and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund net of any Taxes payable by the Payment
Recipient); provided that the Borrower, upon the request of the Payment Recipient, agrees to repay
the amount paid over to the Borrower pursuant to this Section 2.20(f) (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the Payment Recipient
in the event, and to the extent that, the Payment Recipient is required to repay such refund to
such Governmental Authority. This paragraph shall not be construed to require any Payment
Recipient to make available its Tax returns (or any other information relating to its Taxes that it
deems confidential) to the Borrower or any other Person. Notwithstanding anything to the contrary,
in no event will any Payment Recipient be required to pay any amount to the Borrower the payment of
which would place the Payment Recipient in a less favorable net after-Tax position than the Payment
Recipient would have been in if the additional amounts giving rise to such refund of any
Indemnified Taxes or Other Taxes had never been paid.




     Section 2.21. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.



          (a) The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under
Sections 2.18, 2.19 or 2.20, or otherwise) prior to 12:00 noon on the date
when due, in immediately available funds, free and clear of any defenses, rights of set-off,
counterclaim, or withholding or deduction of taxes. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All such payments shall
be made to the Administrative Agent at





39












 




the Payment Office, except payments to be made directly to
the Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.18, 2.19 and 2.20 and 10.3 shall be made directly to
the Persons entitled thereto. The Administrative Agent shall distribute any such payments received
by it for the account of any other Person to the appropriate recipient promptly following receipt
thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be made payable for the period of such extension. All
payments hereunder shall be made in Dollars.




          (b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest
and fees then due hereunder, such funds shall be applied: first, to Administrative Agent’s
fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents;
second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses
of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the
Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses;
third, to interest and fees then due and payable hereunder, pro rata to the Lenders based
on their respective pro rata shares of such interest and fees; and fourth, to the payment
of principal of the Loans and unreimbursed LC Disbursements then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.




          (c) If any Lender shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of its Loans or
participations in LC Disbursements or Swingline Loans that would result in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Credit Exposure and
accrued interest and fees thereon than the proportion received by any other Lender with respect to
its Revolving Credit Exposure, then the Lender receiving such greater proportion shall purchase
(for cash at face value) participations in the Revolving Credit Exposure of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on their respective
Revolving Credit Exposure; provided, that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any payment made by the
Borrower pursuant to and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a participation in any of
its Revolving Credit Exposure to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The
Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.




          (d) Unless the Administrative Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Administrative Agent for the account of the
Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount or amounts due. In such event, if the Borrower has not in fact made
such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or
Issuing Bank with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment




40









 







to the Administrative Agent, at the greater
of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.




          (e) Notwithstanding anything herein to the contrary, any amount paid by the Borrower
for the account of a Defaulting Lender under this Agreement (whether on account of principal,
interest, fees, reimbursement of LC Disbursements, indemnity payments or other amounts) will be
retained by the Administrative Agent in a segregated non-interest bearing account until the
Revolving Commitment Termination Date (or such earlier date as determined by the Administrative
Agent or Required Lenders) at which time the funds in such account will be applied by the
Administrative Agent, to the fullest extent permitted by law, in the following order of priority:
first to the payment of any amounts owing by such Defaulting Lender to the Administrative
Agent under this Agreement, second to the payment of any amounts owing by such Defaulting
Lender to the Issuing Bank and the Swingline Lender under this Agreement, third to the
payment of interest due and payable to the Lenders hereunder that are not Defaulting Lenders,
ratably among them in accordance with the amounts of such interest then due and payable to them,
fourth to the payment of fees then due and payable to the Lenders hereunder that are not
Defaulting Lenders, ratably among them in accordance with the amounts of such fees then due and
payable to them, fifth to pay principal and unreimbursed LC Disbursements then due and
payable to the Lenders hereunder that are not Defaulting Lenders, ratably in accordance with the
amounts thereof then due and payable to them, sixth to the ratable payment of other amounts
then due and payable to the Lenders hereunder that are not Defaulting Lenders, and seventh
to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent
jurisdiction may otherwise direct.




     Section 2.22. Letters of Credit.



          (a) During the Availability Period, the Issuing Bank, in reliance upon the
agreements of the other Lenders pursuant to Section 2.22(d), may, in its sole discretion,
issue, at the request of the Borrower, Letters of Credit for the account of the Borrower on the
terms and conditions hereinafter set forth; provided, that (i) each Letter of Credit shall
expire on the earlier of (A) the date one year after the date of issuance of such Letter of Credit
(or in the case of any renewal or extension thereof, one year after such renewal or extension) and
(B) the date that is five (5) Business Days prior to the Revolving Commitment Termination Date;
(ii) each Letter of Credit shall be in a stated amount of at least $25,000 or such lesser amounts
as may be agreed to by the Issuing Bank and (iii) the Borrower may not request any Letter of
Credit, if, after giving effect to such issuance (A) the aggregate LC Exposure would exceed the LC
Commitment or (B) the aggregate Revolving Credit Exposure of all Lenders would exceed the Aggregate
Revolving Commitment Amount. Each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank without recourse a participation in each
Letter of Credit equal to such Lender’s Pro Rata Share of the aggregate amount available to be
drawn under such Letter of Credit (i) on the Closing Date with respect to all Existing Letters of
Credit and (ii) on the date of issuance with respect to all other Letters of Credit. Each issuance
of a Letter of Credit shall be deemed to utilize the Revolving Commitment of each Lender by an
amount equal to the amount of such participation.




          (b) To request the issuance of a Letter of Credit (or any amendment, renewal or
extension of an outstanding Letter of Credit), the Borrower shall give the Issuing Bank and the
Administrative Agent irrevocable written notice at least three (3) Business Days prior to the
requested date of such issuance specifying the date (which shall be a Business Day) such Letter of
Credit is to be issued (or amended, extended or renewed, as the case may be), the expiration date
of such Letter of Credit, the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. In addition to the satisfaction of the conditions in Article
III, the issuance of such Letter of Credit (or any amendment which increases the amount of such
Letter of Credit) will be subject to the further conditions





41









 







that such Letter of Credit shall be in
such form and contain such terms as the Issuing Bank shall approve and that the Borrower shall have
executed and delivered any additional applications, agreements and instruments relating to such
Letter of Credit as the Issuing Bank shall reasonably require; provided, that in the event
of any conflict between such applications, agreements or instruments and this Agreement, the terms
of this Agreement shall control.




          (c) At least two Business Days prior to the issuance of any Letter of Credit, the
Issuing Bank will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received such notice and if not, the Issuing Bank will provide the
Administrative Agent with a copy thereof. Unless the Issuing Bank has received notice from the
Administrative Agent on or before the Business Day immediately preceding the date the Issuing Bank
is to issue the requested Letter of Credit (1) directing the Issuing Bank not to issue the Letter
of Credit because such issuance is not then permitted hereunder because of the limitations set
forth in Section 2.22(a) or that one or more conditions specified in Article III
are not then satisfied, then, subject to the terms and conditions hereof, the Issuing Bank shall,
on the requested date, issue such Letter of Credit in accordance with the Issuing Bank’s usual and
customary business practices.




          (d) The Issuing Bank shall examine all documents purporting to represent a demand
for payment under a Letter of Credit promptly following its receipt thereof. The Issuing Bank
shall notify the Borrower and the Administrative Agent of such demand for payment and whether the
Issuing Bank has made or will make a LC Disbursement thereunder; provided, that any failure
to give or delay in
giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing
Bank and the Lenders with respect to such LC Disbursement. The Borrower shall be irrevocably and
unconditionally obligated to reimburse the Issuing Bank for any LC Disbursements paid by the
Issuing Bank in respect of such drawing, without presentment, demand or other formalities of any
kind. Unless the Borrower shall have notified the Issuing Bank and the Administrative Agent prior
to 11:00 a.m. on the Business Day immediately prior to the date on which such drawing is honored
that the Borrower intends to reimburse the Issuing Bank for the amount of such drawing in funds
other than from the proceeds of Revolving Loans, the Borrower shall be deemed to have timely given
a Notice of Revolving Borrowing to the Administrative Agent requesting the Lenders to make a Base
Rate Borrowing on the date on which such drawing is honored in an exact amount due to the Issuing
Bank; provided, that for purposes solely of such Borrowing, the conditions precedent set
forth in Section 3.2 hereof shall not be applicable. The Administrative Agent shall notify
the Lenders of such Borrowing in accordance with Section 2.3, and each Lender shall make
the proceeds of its Base Rate Loan included in such Borrowing available to the Administrative Agent
for the account of the Issuing Bank in accordance with Section 2.6. The proceeds of such
Borrowing shall be applied directly by the Administrative Agent to reimburse the Issuing Bank for
such LC Disbursement.




          (e) If for any reason a Base Rate Borrowing may not be (as determined in the sole
discretion of the Administrative Agent), or is not, made in accordance with the foregoing
provisions, then each Lender (other than the Issuing Bank) shall be obligated to fund the
participation that such Lender purchased pursuant to subsection (a) in an amount equal to its Pro
Rata Share of such LC Disbursement on and as of the date which such Base Rate Borrowing should have
occurred. Each Lender’s obligation to fund its participation shall be absolute and unconditional
and shall not be affected by any circumstance, including without limitation (i) any setoff,
counterclaim, recoupment, defense or other right that such Lender or any other Person may have
against the Issuing Bank or any other Person for any reason whatsoever, (ii) the existence of a
Default or an Event of Default or the termination of the Aggregate Revolving Commitments, (iii) any
adverse change in the condition (financial or otherwise) of the Borrower or any of its
Subsidiaries, (iv) any breach of this Agreement by the Borrower or any other Lender, (v) any
amendment, renewal or extension of any Letter of Credit or (vi) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing. On the date that such





42









 







participation is required to be funded, each Lender shall promptly transfer, in immediately
available funds, the amount of its participation to the Administrative Agent for the account of the
Issuing Bank. Whenever, at any time after the Issuing Bank has received from any such Lender the
funds for its participation in a LC Disbursement, the Issuing Bank (or the Administrative Agent on
its behalf) receives any payment on account thereof, the Administrative Agent or the Issuing Bank,
as the case may be, will distribute to such Lender its Pro Rata Share of such payment;
provided, that if such payment is required to be returned for any reason to the Borrower or
to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy proceeding,
such Lender will return to the Administrative Agent or the Issuing Bank any portion thereof
previously distributed by the Administrative Agent or the Issuing Bank to it.




          (f) To the extent that any Lender shall fail to pay any amount required to be paid
pursuant to paragraphs (d) or (e) of this Section on the due date therefor, such Lender shall pay
interest to the Issuing Bank (through the Administrative Agent) on such amount from such due date
to the date such payment is made at a rate per annum equal to the Federal Funds Rate;
provided, that if such Lender shall fail to make such payment to the Issuing Bank within
three (3) Business Days of such due date, then, retroactively to the due date, such Lender shall be
obligated to pay interest on such amount at the rate set forth in Section 2.13(c).




          (g) If any Event of Default shall occur and be continuing, on the Business Day that
the Borrower receives notice from the Administrative Agent or the Required Lenders demanding that
its reimbursement obligations with respect to the Letters of Credit be Cash Collateralized pursuant
to this
paragraph, the Borrower shall deposit in an account with the Administrative Agent, in the name
of the Administrative Agent and for the benefit of the Issuing Bank and the Lenders, an amount in
cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon;
provided, that such obligation to Cash Collateralize the reimbursement obligations of the
Borrower with respect to the Letters of Credit shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or notice of any kind, upon the occurrence
of any Event of Default with respect to the Borrower described in clause (g) or (h) of Section
8.1. Such deposit shall be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of withdrawal, over such
account. Borrower agrees to execute any documents and/or certificates to effectuate the intent of
this paragraph. Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the Administrative Agent and at the
Borrower’s risk and expense, such deposits shall not bear interest. Interest and profits, if any,
on such investments shall accumulate in such account. Moneys in such account shall be applied by
the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it had not
been reimbursed and to the extent so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated, with the consent of the Required Lenders, be applied to satisfy
other obligations of the Borrower under this Agreement and the other Loan Documents. If the
Borrower is required to Cash Collateralize its reimbursement obligations with respect to the
Letters of Credit as a result of the occurrence of an Event of Default, such cash collateral so
posted (to the extent not so applied as aforesaid) shall be returned to the Borrower within three
(3) Business Days after all Events of Default have been cured or waived.




          (h) Upon the request of any Lender, but no more frequently than quarterly, the
Issuing Bank shall deliver (through the Administrative Agent) to each Lender and the Borrower a
report describing the aggregate Letters of Credit then outstanding. Upon the request of any Lender
from time to time, the Issuing Bank shall deliver to such Lender any other information reasonably
requested by such Lender with respect to each Letter of Credit then outstanding.




43









 








          (i) The Borrower’s obligation to reimburse LC Disbursements hereunder shall be
absolute, unconditional and irrevocable and shall be performed strictly in accordance with the
terms of this Agreement under all circumstances whatsoever and irrespective of any of the following
circumstances:





     (i) Any lack of validity or enforceability of any Letter of Credit or
this Agreement;




     (ii) The existence of any claim, set-off, defense or other right which
the Borrower or any Subsidiary or Affiliate of the Borrower may have at any time against
a beneficiary or any transferee of any Letter of Credit (or any Persons or entities for
whom any such beneficiary or transferee may be acting), any Lender (including the
Issuing Bank) or any other Person, whether in connection with this Agreement or the
Letter of Credit or any document related hereto or thereto or any unrelated transaction;




     (iii) Any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement therein
being untrue or inaccurate in any respect;




     (iv) Payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document to the Issuing Bank that does not comply with
the terms of such Letter of Credit;




     (v) Any other event or circumstance whatsoever, whether or not similar to
any of the foregoing, that might, but for the provisions of this Section 2.22,
constitute a legal or equitable discharge of, or provide a right of setoff against, the
Borrower’s obligations hereunder; or




     (vi) The existence of a Default or an Event of Default.


Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related Party of any of the
foregoing shall have any liability or responsibility by reason of or in connection with the
issuance or transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to above), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any consequence arising from causes
beyond the control of the Issuing Bank; provided, that the foregoing shall not be construed
to excuse the Issuing Bank from liability to the Borrower to the extent of any actual direct
damages (as opposed to special, indirect (including claims for lost profits or other consequential
damages), or punitive damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by the Issuing Bank’s
failure to exercise due care when determining whether drafts or other documents presented under a
Letter of Credit comply with the terms thereof. The parties hereto expressly agree, that in the
absence of gross negligence or willful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have
exercised due care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to documents presented that
appear on their face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or information to the
contrary, or refuse to accept and make payment upon such documents if such documents are not in
strict compliance with the terms of such Letter of Credit.




44









 








          (j) Unless otherwise expressly agreed by the Issuing Bank and the Borrower when a
Letter of Credit is issued and subject to applicable laws, (i) each standby Letter of Credit shall
be governed by the “International Standby Practices 1998” (ISP98) (or such later revision as may be
published by the Institute of International Banking Law & Practice on any date any Letter of Credit
may be issued), (ii) each documentary Letter of Credit shall be governed by the Uniform Customs and
Practices for Documentary Credits (2007 Revision), International Chamber of Commerce Publication
No. 600 (or such later revision as may be published by the International Chamber of Commerce on any
date any Letter of Credit may be issued) and (iii) the Borrower shall specify the foregoing in each
letter of credit application submitted for the issuance of a Letter of Credit.




     Section 2.23. Increase of Commitments; Additional Lenders.



          (a) So long as no Event of Default has occurred and is continuing, from time to time
after the Closing Date, Borrower may, upon at least 30 days’ written notice to the Administrative
Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the
Aggregate Revolving Commitments by an amount not to exceed $200,000,000 (the amount of any such
increase, the
“Additional Commitment Amount”), provided that (i) any new lenders are approved by the
Administrative Agent and the Lead Arrangers (such approval not to be unreasonably withheld), (ii)
no Commitment of any Lender shall be increased without the consent of such Lender, and (iii) the
Borrower is in compliance with Section 3.2, Article IV, Article V,
Article VI, Article VII and Section 8.1. Each Lender shall have the right
for a period of 15 days following receipt of such notice, to elect by written notice to the
Borrower and the Administrative Agent to increase its Revolving Commitment by a principal amount
equal to its Pro Rata Share of the Additional Commitment Amount. No Lender (or any successor
thereto) shall have any obligation to increase its Revolving Commitment or its other obligations
under this Agreement and the other Loan Documents, and any decision by a Lender to increase its
Revolving Commitment shall be made in its sole discretion independently from any other Lender. If
any Lender shall fail to notify the Borrower and the Administrative Agent in writing about whether
it will increase its Revolving Commitment within 15 days after receipt of such notice, such Lender
shall be deemed to have declined to increase its Revolving Commitment.




          (b) The Borrower may also designate another bank or other financial institution
(which may be, but need not be, one or more of the existing Lenders) which at the time agrees to,
in the case of any such Person that is an existing Lender, increase its Revolving Commitment and in
the case of any other such Person (an “Additional Lender”), become a party to this
Agreement; provided, however, that any new bank or financial institution must be
acceptable to the Administrative Agent and the Co-Syndication Agents, which acceptance will not be
unreasonably withheld or delayed. The sum of the increases in the Revolving Commitments of the
existing Lenders pursuant to this subsection (b) plus the Revolving Commitments of the Additional
Lenders shall not in the aggregate exceed the unsubscribed amount of the Additional Commitment
Amount.




          (c) An increase in the aggregate amount of the Revolving Commitments pursuant to
this Section 2.23 shall become effective upon the receipt by the Administrative Agent of a
supplement or joinder in form and substance satisfactory to the Administrative Agent and the
Co-Syndication Agents executed by the Borrower, by each Additional Lender and by each other Lender
whose Revolving Commitment is to be increased, setting forth the new Revolving Commitments of such
Lenders and setting forth the agreement of each Additional Lender to become a party to this
Agreement and to be bound by all the terms and provisions hereof and such evidence of appropriate
corporate authorization on the part of the Borrower with respect to the increase in the Revolving
Commitments and such opinions of counsel for the Borrower with respect to the increase in the
Revolving Commitments as the Administrative Agent or any Co-Syndication Agents may reasonably
request.





45









 








          (d) Upon the acceptance of any such supplement or joinder by the Administrative
Agent, the Aggregate Revolving Commitment Amount shall automatically be increased by the amount of
the Revolving Commitments added through such supplement or joinder and Schedule II shall
automatically be deemed amended to reflect the Revolving Commitments of all Lenders after giving
effect to the addition of such Revolving Commitments.




          (e) Upon any increase in the aggregate amount of the Revolving Commitments pursuant
to this Section 2.23 that is not pro rata among all Lenders, (x) within five Business Days,
in the case of any Base Rate Loans then outstanding, and at the end of the then current Interest
Period with respect thereto, in the case of any Eurodollar Loans then outstanding, the Borrower
shall prepay such Loans in their entirety and, to the extent the Borrower elects to do so and
subject to the conditions specified in Article III, the Borrower shall reborrow Loans from
the Lenders in proportion to their respective Revolving Commitments after giving effect to such
increase, until such time as all outstanding Loans are held by the Lenders in proportion to their
respective Commitments after giving effect to such increase and (y) effective upon such increase,
the amount of the participations held by each Lender in each Letter of Credit then outstanding
shall be adjusted automatically such that, after giving effect to such
adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion
to their respective Revolving Commitments.




     Section 2.24. Mitigation of Obligations. If any Lender requests
compensation under Section 2.18, or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.20, then such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the sole judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts payable under
Section 2.18 or Section 2.20, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by
any Lender in connection with such designation or assignment.



     Section 2.25. Replacement of Lenders. If any Lender requests compensation
under Section 2.18, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority of the account of any Lender pursuant to Section 2.20,
or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrower may, at its
sole expense and effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions
set forth in Section 10.4(b)) all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may be another Lender
if such Lender accepts such assignment); provided, that (i) the Borrower shall have
received the prior written consent of the Administrative Agent, to the extent required under
Section 10.4(a), which consent shall not be unreasonably withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal amount of all Loans owed to
it, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (in the case of such outstanding principal and accrued interest) and from the Borrower (in
the case of all other amounts), (iii) in the case of a claim for compensation under Section
2.18 or payments required to be made pursuant to Section 2.20, such assignment will
result in a reduction in such compensation or payments, and (iv) in the case of any such assignment
resulting from the status of such Lender as a Non-Consenting Lender, such assignment, together with
any assignment by other Non-Consenting Lenders, will enable the Borrower to obtain sufficient
consents to cause the applicable amendment, modification or waiver to become effective. A Lender
shall not be required to make any such assignment and delegation if, prior thereto, as a result of
a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.



46









 





     Section 2.26. Reallocation and Cash Collateralization of Defaulting Lender or
Potential Defaulting Lender Commitment.



     (a) If a Revolving Lender becomes, and during the period it remains, a Defaulting Lender or
Potential Defaulting Lender, the following provisions shall apply, notwithstanding anything to the
contrary in this Agreement:




     (1) the LC Exposure and Swingline Exposure of such Defaulting
Lender will, subject to the limitation in the first proviso below,
automatically be reallocated (effective on the day such Revolving
Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders
pro rata in accordance with their respective
Revolving
Commitments (calculated as if the Defaulting Lender’s Revolving
Commitment was reduced to zero and each Non-Defaulting Lender’s
Revolving Commitment had been increased proportionately);
provided that (a) the sum of each Non-Defaulting Lender’s
total Revolving Credit Exposure may not in any event exceed the
Revolving Commitment of such Non-Defaulting Lender as in effect at
the time of such reallocation and (b) neither such reallocation nor
any payment by a Non-Defaulting Lender pursuant thereto will
constitute a waiver or release of any claim the Borrower, the
Administrative Agent, the Issuing Bank, the Swingline Lender or any
other Lender may have against such Defaulting Lender or cause such
Defaulting Lender to be a Non-Defaulting Lender; and




     (2) to the extent that any portion (the “unreallocated
portion”) of the LC Exposure and Swingline Exposure of any
Defaulting Lender cannot be reallocated pursuant to clause (1) for
any reason, or with respect to the LC Exposure and Swingline
Exposure of any Potential Defaulting Lender, the Borrower will, not
later than two (2) Business Days after demand by the Administrative
Agent (at the direction of the Issuing Bank and/or the Swingline
Lender), (a) Cash Collateralize the obligations of the Borrower to
the Issuing Bank or Swingline Lender in respect of such LC Exposure
or Swingline Exposure, as the case may be, in an amount at least
equal to the aggregate amount of the unreallocated portion of the LC
Exposure and Swingline Exposure of such Defaulting Lender or the LC
Exposure and Swingline Exposure of such Potential Defaulting Lender,
or (b) in the case of such Swingline Exposure, prepay and/or Cash
Collateralize in full the unreallocated portion thereof, or (c) make
other arrangements satisfactory to the Administrative Agent, the
Issuing Bank and the Swingline Lender in their sole discretion to
protect them against the risk of non-payment by such Defaulting
Lender or Potential Defaulting Lender.



     (b) If the Borrower, the Administrative Agent, the Issuing Bank and the Swingline Lender agree
in writing in their discretion that any Defaulting Lender has ceased to be a Defaulting Lender or
Potential Defaulting Lender has ceased to be a Potential Defaulting Lender, the Administrative
Agent will so notify the parties hereto, whereupon as of the effective date specified in such
notice and subject to any conditions set forth therein, the LC Exposure and the Swingline Exposure
of the other Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment, and
such Lender will purchase at par such portion of outstanding Revolving Loans of the other Lenders
and/or make such other adjustments as



47









 







the Administrative Agent may determine to be necessary to
cause the Revolving Credit Exposure of the Lenders to be on a pro rata basis in accordance with
their respective Revolving Commitments, whereupon such Lender will cease to be a Defaulting Lender
or Potential Defaulting Lender, as the case may be, and will be a Non-Defaulting Lender (and such
Revolving Credit Exposure of each Lender will automatically be adjusted on a prospective basis to
reflect the foregoing). If any cash collateral has been posted with respect to the LC Exposure or
Swingline Exposure of such Defaulting Lender or Potential Defaulting Lender, the Administrative
Agent will promptly return such cash collateral to the Borrower; provided that no adjustments will
be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower
while such Lender was a Defaulting Lender; and provided, further, that except to the extent
otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to
Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder
arising from such Lender’s having been a Defaulting Lender.



ARTICLE III




CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT



     Section 3.1. Conditions To Effectiveness. The obligations of the Lenders
(including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to issue any
Letter of Credit hereunder shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 10.2).



          (a) The Administrative Agent and Co-Syndication Agents shall have received payment
of all fees, expenses and other amounts due and payable on or prior to the Closing Date, including
without limitation reimbursement or payment of all out-of-pocket expenses of the Administrative
Agent, the Co-Syndication Agents and their Affiliates (including reasonable fees, charges and
disbursements of counsel to the Co-Syndication Agents) required to be reimbursed or paid by the
Borrower hereunder, under any other Loan Document and under any agreement with the Administrative
Agent or the Lead Arrangers.




          (b) The Administrative Agent and the Co-Syndication Agents (or their counsel) shall
have received the following, each to be in form and substance satisfactory to the Administrative
Agent:





     (i) a counterpart of this Agreement signed by or on behalf of each party
hereto or written evidence satisfactory to the Administrative Agent (which may include
telecopy transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement;




     (ii) the Subsidiary Guaranty Agreement duly executed by each direct and
indirect wholly owned Domestic Subsidiary which is a Material Subsidiary of the Borrower,
other than the Excluded Subsidiaries;




     (iii) copies of duly executed payoff letters, in form and substance
satisfactory to Administrative Agent, executed by each of the Existing Lenders or the agent
thereof, which letters will confirm the full payoff of the Existing Credit Agreement;




     (iv) a certificate of the Secretary or Assistant Secretary of each Loan Party
in the form of Exhibit 3.1(b)(iv), attaching and certifying copies of its bylaws and
of the resolutions of its board of directors, or partnership agreement or limited liability
company agreement, or



48









 







comparable organizational documents and authorizations, authorizing
the execution, delivery and performance of the Loan Documents to which it is a party and
certifying the name, title and true signature of each officer of such Loan Party executing
the Loan Documents to which it is a party;




     (v) certified copies of the articles or certificate of incorporation,
certificate of organization or limited partnership, or other registered organizational
documents of each Loan Party, together with certificates of good standing or existence, as
may be available from the Secretary of State of the jurisdiction of organization of such
Loan Party and each other jurisdiction where such Loan Party is required to be qualified to
do business as a foreign corporation;




     (vi) (A) a favorable written opinion of Baker Botts L.L.P., counsel to the
Loan Parties and (B) a favorable written opinion of Gary Crotty, General Counsel of the
Borrower, in each case addressed to the Administrative Agent, the Issuing Bank and each of
the Lenders, and covering such matters relating to the Loan Parties, the Loan Documents and
the transactions contemplated therein as the Administrative Agent or the Required Lenders
shall reasonably request;




     (vii) a certificate in the form of Exhibit 3.1(b)(vii), dated the
Closing Date and signed by a Responsible Officer, certifying that after giving effect to any
initial revolving credit advance, (x) no Default or Event of Default exists, (y) all
representations and warranties of each Loan Party set forth in the Loan Documents are true
and correct and (z) since the date of the financial statements of the Borrower described in
Section 4.4, there shall have been no change which has had or could reasonably be
expected to have a Material Adverse Effect;




     (viii) a duly executed Notice of Borrowing;




     (ix) a duly executed funds disbursement agreement, together with a report
setting forth the sources and uses of the proceeds hereof ;




     (x) certified copies of all consents, approvals, authorizations,
registrations and filings and orders required or advisable to be made or obtained under any
Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with
the execution, delivery, performance, validity and enforceability of the Loan Documents or
any of the transactions contemplated thereby, and such consents, approvals, authorizations,
registrations, filings and orders shall be in full force and effect and all applicable
waiting periods shall have expired, and no investigation or inquiry by any governmental
authority regarding the Commitments or any transaction being financed with the proceeds
thereof shall be ongoing; and




     (xi) copies of (A) the unaudited quarterly financial statements of the
Borrower and its Subsidiaries on a consolidated basis for the Fiscal Quarter ending on
August 31, 2010, (B) the audited consolidated and unaudited consolidating financial
statements for Borrower and its Subsidiaries for the Fiscal Year ending November 30, 2009
and (C) annual cash flow projections on a quarterly basis for fiscal year ending November
30, 2010 and annually thereafter through 2014.



          (c) The Administrative Agent and Co-Syndication Agents shall have received from each
Loan Party all documentation and other information that the Administrative Agent or the
Co-Syndication Agents request in order to comply with its ongoing obligations under applicable
“know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)).





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     Without limiting the generality of the provisions of Section 3.1, for purposes of
determining compliance with the conditions specified in this Section 3.1, each Lender that
has signed this Credit Agreement shall be deemed to have consented to, approved or accepted or to
be satisfied with, each document or other matter required thereunder to be consented to or approved
by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its objection thereto.



     Section 3.2. Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing and of the Issuing Bank to
issue, amend, renew or extend any Letter of Credit is subject to the satisfaction of the
following conditions:



          (a) at the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or
Event of Default shall exist;




          (b) at the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all
representations and warranties of each Loan Party set forth in the Loan Documents shall be true and
correct in all material respects (other than those representations and warranties that are
expressly qualified by an Material Adverse Effect or other materiality, in which case such
representations and warranties shall be true and correct in all respects), on and as of the date of
such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit,
in each case before and after giving effect thereto except to the extent any such representations
and warranties are expressly limited to an earlier date, in which case, on and as of the date of
such Borrowing or the date of issuance, amendment or extension of such Letter of Credit, as
applicable, such representations and warranties shall continue to be true and correct as of such
specified earlier date; and




          (c) the Borrower shall have delivered the required Notice of Borrowing.




     In addition to the other conditions precedent herein set forth, if any Revolving Lender is a
Defaulting Lender or a Potential Defaulting Lender at the time of and immediately after giving
effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit,
as applicable, set forth in this Section 3.2, the Issuing Bank will not be required to
issue, amend or increase any Letter of Credit and the Swingline Lender will not be required to make
any Swingline Loans, unless they are satisfied that 100% of the related LC Exposure and Swingline
Exposure is fully covered or eliminated by any combination satisfactory to the Issuing Bank or the
Swingline Lender, as the case may be, of the following:




     (i) in the case of a Defaulting Lender, the LC Exposure and
Swingline Exposure of such Defaulting Lender is reallocated, as
to outstanding and future Letters of Credit, to the
Non-Defaulting Lenders as provided in Section
2.26(a)(1); and




     (ii) in the case of a Defaulting Lender or a Potential
Defaulting Lender, without limiting the provisions of
Section 2.26(a)(2), the Borrower Cash Collateralizes its
reimbursement obligations in respect of such Letter of Credit or
Swingline Loan in an amount at least equal to the aggregate
amount of the unreallocated obligations (contingent or
otherwise) of such Defaulting Lender or Potential Defaulting
Lender in respect of such Letter of Credit or



50









 







Swingline Loan, or
the Borrower makes other arrangements satisfactory to the
Administrative Agent, the Issuing Bank and the Swingline Lender,
as the case may be, in their sole discretion to protect them
against the risk of non-payment by such Defaulting Lender or
Potential Defaulting Lender;



          provided, however, that (a) the sum of each Non-Defaulting Lender’s total
Revolving Credit Exposure may not in any event exceed the Revolving Commitment of such
Non-Defaulting Lender, and (b) neither any such reallocation nor any payment by a Non-Defaulting
Lender pursuant
thereto nor any such Cash Collateralization or reduction will constitute a waiver or release
of any claim the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any
other Lender may have against such Defaulting Lender, or cause such Defaulting Lender to be a
Non-Defaulting Lender.




          Each Borrowing and each issuance, amendment, extension or renewal of any Letter of Credit
shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as
to the matters specified in paragraphs (a), (b) and (c) of this Section 3.2.




     Section 3.3. Delivery of Documents. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this Article
III, unless otherwise specified, shall be delivered to the Administrative Agent for the account
of each of the Lenders and in sufficient counterparts or copies for each of the Lenders and shall
be in form and substance satisfactory in all respects to the Administrative Agent.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES



          The Borrower represents and warrants to the Administrative Agent and each Lender as follows:




     Section 4.1. Existence; Power. The Borrower and each of its Subsidiaries
(i) is duly organized, validly existing and in good standing as a corporation, partnership or
limited liability company under the laws of the jurisdiction of its organization, (ii) has all
requisite power and authority to carry on its business as now conducted, and (iii) is duly
qualified to do business, and is in good standing, in each jurisdiction where such qualification is
required, except where a failure to be so qualified could not reasonably be expected to result in a
Material Adverse Effect.



     Section 4.2. Organizational Power; Authorization. The execution, delivery
and performance by each Loan Party of the Loan Documents to which it is a party are within such
Loan Party’s organizational powers and have been duly authorized by all necessary organizational,
and if required, shareholder, partner or member, action. This Agreement has been duly executed and
delivered by the Borrower, and constitutes, and each other Loan Document to which any Loan Party is
a party, when executed and delivered by such Loan Party, will constitute, valid and binding
obligations of the Borrower or such Loan Party (as the case may be), enforceable against it in
accordance with their respective terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors’
rights generally and by general principles of equity.



     Section 4.3. Governmental Approvals; No Conflicts. The execution, delivery
and performance by the Borrower of this Agreement, and by each Loan Party of the other Loan
Documents to



51









 







which it is a party (a) do not require any consent or approval of, registration or
filing with, or any action by, any Governmental Authority, except those as have been obtained or
made and are in full force and effect, (b) will not violate any Requirements of Law applicable to
the Borrower or any of its Subsidiaries or any judgment, order or ruling of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
agreement or other instrument binding on the Borrower or any of its Subsidiaries or any of its
assets or give rise to a right thereunder to require any payment to be made by the Borrower or any
of its Subsidiaries and (d) will not result in the creation or imposition of any Lien on any asset
of the Borrower or any of its Subsidiaries, except Liens (if any) permitted by Section 7.2.



     Section 4.4. Financial Statements. The Borrower has furnished the
Administrative Agent (i) the audited consolidated balance sheet of the Borrower and its
Subsidiaries as of November 30, 2009 and the related consolidated statements of income,
shareholders’ equity and cash flows for the Fiscal Year then ended audited by Ernst & Young LLP and
(ii) the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of August 31,
2010, and the related unaudited consolidated statements of income and cash flows for the Fiscal
Quarter and year-to-date period then ending, certified by a Responsible Officer. As of the Closing
Date, such financial statements fairly present in all material respects the consolidated financial
condition of the Borrower and its Subsidiaries as of such dates and the consolidated results of
operations for such periods in conformity with GAAP on a Consistent Basis, subject to year end
audit adjustments and the absence of footnotes in the case of the statements referred to in clause
(ii). As of the Closing Date, except as disclosed in the Disclosure Documents, since November 30,
2009, there have been no changes with respect to the Borrower and its Subsidiaries which have had
or could reasonably be expected to have, singly or in the aggregate, a Material Adverse Effect.



     Section 4.5. Litigation and Environmental Matters.



          (a) As of the Closing Date, no litigation, investigation or proceeding of or before
any arbitrators or Governmental Authorities is pending against or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination that could reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect or (ii) which in any
manner draws into question the validity or enforceability of this Agreement or any other Loan
Document.




          (b) Except for the matters set forth on Schedule 4.5 or where such
circumstance could not reasonably be expected to have a Material Adverse Effect, neither the
Borrower nor any of its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability.




     Section 4.6. Compliance with Laws. The Borrower and each Subsidiary is in
compliance with all Requirements of Law and all judgments, decrees and orders of any Governmental
Authority, except where non-compliance, either singly or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.



     Section 4.7. Investment Company Act, Etc. Neither the Borrower nor any of
its Subsidiaries is (a) an “investment company” or is “controlled” by an “investment company”, as
such terms are defined in, or subject to regulation under, the Investment Company Act of 1940, as
amended, or (b) otherwise subject to any other regulatory scheme limiting its ability to incur debt
or requiring any approval or consent from or registration or filing with, any Governmental
Authority in connection therewith.



52









 





     Section 4.8. Taxes. The Borrower and its Subsidiaries have timely filed or
caused to be filed all Federal and state income tax returns and all other material tax returns that
are required to be filed by them, and have paid all taxes shown to be due and payable on such
returns or on any assessments made against it or its Property and all other taxes, fees or other
charges imposed on it or any of its Property by any Governmental Authority, except (i) where the
same are currently being contested in good faith by appropriate proceedings and for which the
Borrower or such Subsidiary, as the case may be, has set aside on its books adequate reserves in
accordance with GAAP, or (ii) to the extent the failure to do so could not reasonably be expected
to result in a Material Adverse Effect.



     Section 4.9. Margin Regulations. None of the proceeds of any of the Loans
or Letters of Credit will be used, directly or indirectly, for “purchasing” or “carrying” any
“margin stock” with the respective meanings of each of such terms under Regulation U or for any
purpose that violates the provisions of the Regulation T, U or X. Neither the Borrower nor its
Subsidiaries is engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying “margin stock.”



     Section 4.10. ERISA. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for which liability is
reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect.
The present value of all accumulated benefit obligations under each Plan (based on the assumptions
used for purposes of Statement of Financial Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market value of the assets of
such Plan, and the present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts, exceed the fair market
value of the assets of all such underfunded Plans.



     Section 4.11. Disclosure. As of the Closing Date, there is no fact known to
the Borrower that would reasonably be expected to have a Material Adverse Effect that has not been
set forth herein or in the Disclosure Documents. Neither the Information Memorandum nor any of the
reports (including without limitation all reports that the Borrower is required to file with the
Securities and Exchange Commission), financial statements, certificates or other factual
information furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in
connection with the negotiation or syndication of this Agreement or any other Loan Document or
delivered hereunder or thereunder (as modified or supplemented by any other information so
furnished) contains any untrue statement of a material fact or omits to state any material fact
necessary to make the statements therein, taken as a whole, in light of the circumstances under
which they were made, not misleading; provided, that with respect to projected financial
information, the Borrower represents only that such information was prepared in good faith based
upon assumptions believed by management of the Borrower to be reasonable as of the date such
projections where prepared.



     Section 4.12. Subsidiaries. Schedule 4.12 sets forth the name of,
the ownership interest of the Borrower in, the jurisdiction of incorporation or organization of,
and the type of, each Subsidiary and identifies each Subsidiary that is a Subsidiary Loan Party, in
each case as of the Closing Date.



     Section 4.13. Solvency. As of the Closing Date, after giving effect to the
execution and delivery of the Loan Documents, the making of the Loans under this Agreement, each
Loan Party is Solvent.



     Section 4.14. OFAC. None of the Borrower, any Subsidiary of the Borrower or
any Affiliate of the Borrower or any Guarantor (i) is a Sanctioned Person, (ii) has more than 15%
of its assets in Sanctioned Countries, or (iii) derives more than 15% of its operating income from
investments in, or



53









 







transactions with Sanctioned Persons or Sanctioned Countries. No part of the
proceeds of any Loans hereunder will be used directly or indirectly to fund any operations in,
finance any investments or activities in or make any payments to, a Sanctioned Person or a
Sanctioned Country or for any payments to any governmental official or employee, political party,
official of a political party, candidate for political office, or anyone else acting in an official
capacity, in order to obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977, as amended.



     Section 4.15. Patriot Act. Neither any Loan Party nor any of its
Subsidiaries is an “enemy” or an “ally of the enemy” within the meaning of Section 2 of the Trading
with the Enemy Act of the United States of America (50 U.S.C. App. §§ 1 et seq.), as amended or any
enabling legislation or executive order relating thereto. Neither any Loan Party nor any or its
Subsidiaries is in violation of (a) the Trading with the Enemy Act, as amended, (b) any of the
foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B,
Chapter V, as amended) or any enabling legislation or executive order relating thereto or (c) the
Patriot Act. None of the Loan Parties (i) is a blocked person described in section 1 of the
Anti-Terrorism Order or (ii) to the best of its knowledge, engages in any dealings or transactions,
or is otherwise associated, with any such blocked person.



ARTICLE V




AFFIRMATIVE COVENANTS



          The Borrower covenants and agrees that until the Termination Date:




     Section 5.1. Financial Statements and Other Information. The Borrower will
deliver to the Administrative Agent and each Lender:



          (a) as soon as available, and in any event no later than the earlier of (i) the date
the Borrower is required by the SEC to deliver its Form 10-K for any fiscal year of the Borrower
(taking into account any extension of the time to file by the SEC) and (ii) ninety (90) days after
the end of each fiscal year of the Borrower, the Borrower shall furnish a copy of the consolidated
financial statements of the Borrower prepared in accordance with GAAP on a Consistent Basis,
together with an unqualified letter of an independent certified public accounting firm selected by
the Borrower and reasonably acceptable to the Required Lenders and such other information as may be
reasonably requested by the Required Lenders. Such statements shall include a balance sheet, a
statement of income and expenses, a statement of cash flow, a comparison of such statement from the
prior year with the statement for the year-to-date and such other and further reports and schedules
as may reasonably be requested by the Required Lenders, including without limitation verification
of the Borrower’s compliance with the financial covenants set forth in Sections 6.1 and
6.2. Such statements shall be certified as to their correctness by a Responsible Officer
of Borrower; provided that filing with the Securities and Exchange Commission within the
time period specified above the Borrower’s Annual Report on Form 10-K for such fiscal year
(together with the Borrower’s annual report to shareholders, if any, prepared pursuant to Rule
14a-3 under the Exchange Act) prepared in accordance with the requirements therefor shall be deemed
to satisfy the requirements of
this Section 5.1(a), provided, further, that the Borrower shall be
deemed to have made such delivery of such Form 10-K if it shall have timely made such Form 10-K
available on “EDGAR” and on its home page on the worldwide web (at the date of this Agreement
located at: http//www.internationalspeedwaycorporation.com), such availability and notice thereof
being referred to as “Electronic Delivery”;




          (b) as soon as available, and in any event no later than the earlier of (i) the date
the Borrower is required by the SEC to deliver its Form 10-Q for any fiscal quarter of the Borrower
(taking




54









 







into account any extension of the time to file by the SEC) and (ii) forty-five (45) days
after the end of each fiscal quarter of the Borrower (other than the last fiscal quarter of each
fiscal year), the Borrower shall furnish to each Lender a copy of the unaudited management-prepared
quarterly consolidated financial statements of the Borrower, prepared in accordance with GAAP on a
Consistent Basis. Such statements shall include a balance sheet, a statement of income and
expenses, a statement of cash flow, a comparison of such statement from the prior year with the
statement for the year-to-date and such other and further reports and schedules as may reasonably
be requested by the Required Lenders, and verification of the Borrower’s compliance with the
financial covenants set forth in Sections 6.1 and 6.2. Such statements shall also
be certified as to their correctness by a Responsible Officer of the Borrower; provided
that filing with the Securities and Exchange Commission within the time period specified above of
the Borrower’s Quarterly Report on Form 10-Q prepared in compliance with the requirements therefor
shall be deemed to satisfy the requirements of this Section 5.1(b), and, provided,
further, that the Borrower shall be deemed to have made such delivery of such Form 10-Q if
it shall have timely made Electronic Delivery thereof;




          (c) concurrently with the delivery of the financial statements referred to in
clauses (a) and (b) above, a Compliance Certificate signed by the principal executive officer or
the principal financial officer of the Borrower (i) certifying as to whether there exists a Default
or Event of Default on the date of such certificate, and if a Default or an Event of Default then
exists, specifying the details thereof and the action which the Borrower has taken or proposes to
take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating
compliance with the financial covenants set forth in Article VI, (iii) specifying any
change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from
the Subsidiaries identified to the Lenders on the Closing Date or as of the most recent Fiscal Year
or Fiscal Quarter, as the case may be and (iv) stating whether any change in GAAP or the
application thereof has occurred since November 30, 2009, and if any change has occurred,
specifying the effect of such change on the financial statements accompanying such Compliance
Certificate;




          (d) promptly after the same become publicly available, copies of all registration
statements (other than the exhibits thereto and any registration statements on Form S-8 or its
equivalent) and reports on Form 10-K, 10-Q and 8-K (or their equivalents) filed with the Securities
and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said
Commission; provided that filing with the Securities and Exchange Commission within the
time period specified above of any of the Borrower’s registration statements prepared in accordance
with the requirements therefor shall be deemed to satisfy the requirements of this
Section 5.1(d), provided, further, that the Borrower shall be deemed to
have made such delivery of such registration statements if it shall have timely made Electronic
Delivery thereof; and




          (e) promptly following any request therefor, such other information regarding the
results of operations, business affairs and financial condition of the Borrower or any Subsidiary
as the Administrative Agent or any Lender through the Administrative Agent may reasonably request.




     Section 5.2. Notices of Material Events. Promptly after a Responsible
Officer of the Borrower becomes aware thereof, the Borrower will furnish to the Administrative
Agent and each Lender prompt written notice of the following:



          (a) the occurrence of any Default or Event of Default;




          (b) the filing or commencement of, or any material development in, any action, suit
or proceeding by or before any arbitrator or Governmental Authority against or, to the knowledge of
the Borrower, affecting the Borrower or any Subsidiary which could reasonably be expected to result
in a Material Adverse Effect;




55









 








          (c) the occurrence of any ERISA Event that alone, or together with any other ERISA
Events that have occurred, affecting the Borrower or any Subsidiary which could reasonably be
expected to result in a Material Adverse Effect;




          (d) any change in the Rating Category of the Borrower or any Subsidiary which could
reasonably be expected to result in a Material Adverse Effect; or




          (e) any other development that results in, or could reasonably be expected to result
in, a Material Adverse Effect.



Each notice delivered under this Section 5.2 shall be accompanied by a written statement of
a Responsible Officer setting forth the details of the event or development requiring such notice
and any action taken or proposed to be taken with respect thereto.




     Section 5.3. Existence; Conduct of Business. The Borrower will, and will
cause each of its Material Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and maintain in full force and effect its legal existence and its respective
rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names
material to the conduct of its business; provided, that (a) nothing in this Section
5.3 shall prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 7.3; (b) neither the Borrower nor any of its Subsidiaries shall be required to
preserve, renew or keep in full force and effect any right, license, permit, privileges,
franchises, patents, copyrights, trademarks or trade names to the extent that the failure to do so
would not reasonably be expected to have a Material Adverse Effect; and (c) any Subsidiary may
change its form of organization if the Borrower in good faith determines that such change is not
materially disadvantageous to the Lenders.



     Section 5.4. Compliance with Laws, Etc. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and requirements of any
Governmental Authority applicable to its business and properties, including without limitation, all
Environmental Laws, ERISA and OSHA, except where the failure to do so, either individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect.



     Section 5.5. Payment of Obligations. The Borrower will, and will cause each
of its Subsidiaries to, pay and discharge at or before maturity, all of its obligations and
liabilities (including without limitation all taxes, assessments and other governmental charges,
levies and all other claims that could result in a statutory Lien), that if not paid, could
reasonably be expected to result in a Material Adverse Effect, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b) the Borrower or
such
Subsidiary has set aside on its books adequate reserves with respect thereto in accordance
with GAAP and (c) the failure to make payment pending such contest could not reasonably be expected
to result in a Material Adverse Effect.



     Section 5.6. Books and Records. The Borrower will, and will cause each of
its Subsidiaries to, keep proper books of record and account in which full, true and correct
entries shall be made of all dealings and transactions in relation to its business and activities
to the extent necessary to prepare the consolidated financial statements of Borrower in conformity
with GAAP.



     Section 5.7. Visitation, Inspection, Etc. The Borrower will, and will cause
each of its Subsidiaries to, permit, during regular business hours and upon reasonable notice by
the Administrative Agent or any Lender, any representative of the Administrative Agent or any
Lender, to visit and inspect any of its properties and examine and make abstracts from any of its
consolidated books and records (other than materials protected by the attorney-client privilege and
materials which the Borrower or Subsidiary may not disclose without violation of the
confidentiality obligation binding upon it) at any



56









 







reasonable time and as often as may reasonably
be desired; provided, that the Administrative Agent and the Lenders as a group shall be
limited to one visit and inspection per calendar year; provided, further, that
during the existence of a Default or Event of Default, (a) the foregoing limitation on the number
of visits and inspections shall not apply and any visit and inspection made during such period
shall not be taken into account for purposes of such limitation and (b) any inspection of the books
and records of the Borrowers and any of its Subsidiaries (and any abstracts made thereof) shall not
be limited to only “consolidated” books and records



     Section 5.8. Maintenance of Properties; Insurance. The Borrower will, and
will cause each of its Material Subsidiaries to, (a) keep and maintain all Property material to the
conduct of its business in good working order and condition, ordinary wear and tear excepted, and
(b) maintain with financially sound and reputable insurance companies, insurance with respect to
its properties and business, and the properties and business of its Subsidiaries, against loss or
damage of the kinds customarily insured against by companies in the same or similar businesses
operating in the same or similar locations (including, without limitation, by the maintenance of
adequate self-insurance reserves to the extent customary among such companies).



     Section 5.9. Use of Proceeds and Letters of Credit. The Borrower will use
the proceeds of all Loans to refinance existing Indebtedness, finance working capital needs and for
other general corporate purposes of the Borrower and its Subsidiaries, including without
limitation, to purchase, redeem or otherwise retire Capital Stock of the Borrower or to make
Permitted Acquisitions. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that would violate any rule or regulation of the Board of Governors of
the Federal Reserve System, including Regulations T, U or X. All Letters of Credit will be used
for general corporate purposes.



     Section 5.10. Additional Subsidiaries.



     If any wholly-owned Domestic Subsidiary that is a Material Subsidiary (other than an Excluded
Subsidiary) is acquired or formed after the Closing Date, the Borrower will promptly notify the
Administrative Agent thereof and, within thirty (30) Business Days after any such Subsidiary is
acquired or formed, will cause such Subsidiary to become a Subsidiary Loan Party. A Subsidiary
shall become an additional Subsidiary Loan Party by executing and delivering to the Administrative
Agent a supplement
to the Subsidiary Guaranty Agreement in form and substance reasonably satisfactory to the
Administrative Agent, accompanied by (i) all other Loan Documents related thereto, (ii) certified
copies of certificates or articles of incorporation or organization, by-laws, membership operating
agreements, and other organizational documents, appropriate authorizing resolutions of the board of
directors of such Subsidiaries, and opinions of counsel (who may be in-house counsel for the
Borrower) comparable to those delivered pursuant to Section 3.1(b), and (iii) such other
documents as the Administrative Agent may reasonably request.



ARTICLE VI




FINANCIAL COVENANTS



          The Borrower covenants and agrees that until the Termination Date:




     Section 6.1. Leverage Ratio. The Borrower shall, as of the last day of each
Fiscal Quarter, maintain a Leverage Ratio less than or equal to 3.5 to 1.0; provided that
the Leverage Ratio required pursuant to this Section 6.1 shall be increased to 4.00 to 1.0
for the four quarters ending after any



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Permitted Acquisition and, for purposes of determining
compliance with this Section 6.1 on a Pro Forma Basis, for the fiscal quarter ending on the date of
such Permitted Acquisition or immediately prior thereto.



     Section 6.2. Interest Coverage Ratio. The Borrower shall maintain, as of
the last day of each Fiscal Quarter, an Interest Coverage Ratio greater than or equal to 2.50 to
1.0.



ARTICLE VII




NEGATIVE COVENANTS



          The Borrower covenants and agrees that until the Termination Date:




     Section 7.1. Indebtedness. The Borrower will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness, except:



          (a) Indebtedness created pursuant to the Loan Documents;




          (b) Indebtedness of the Borrower and its Subsidiaries existing on the date hereof
and set forth on Schedule 7.1;




          (c) so long as no Event of Default results therefrom, the incurrence of Indebtedness
represented by Capital Lease Obligations, and other Indebtedness and obligations described in item
(viii) of the definition of Permitted Encumbrances;




          (d) intercompany Indebtedness between the Borrower and its Subsidiaries to the
extent permitted under Section 7.4 and intercompany Indebtedness between Subsidiaries to
the extent permitted under Section 7.4;




          (e) Hedging Transactions entered into in the ordinary course of business other than
Hedging Transactions for speculative purposes or of a speculative nature and guarantees with
respect thereto;




          (f) Indebtedness incurred to finance Permitted Acquisitions or track development and
Permitted Acquisition Indebtedness; provided that (i) such Indebtedness shall not exceed
the cost of such acquisition or development and any expenses reasonably related thereto, (ii) such
Indebtedness shall not be secured by assets of the Loan Parties other than any assets acquired or
developed with the proceeds of such Indebtedness and any other assets of the Subsidiary so acquired
or that acquires such assets or develops such track and (iii) after giving effect to the incurrence
of such Indebtedness on a pro forma basis, the Loan Parties shall be in compliance with Section
6.1 ;




          (g) the incurrence or issuance by any Subsidiary of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of which shall be used to extend, refinance,
renew, replace, defease, discharge, refund or otherwise retire for value, in whole or in part,
Indebtedness of the Borrower or any of its Subsidiaries (other than intercompany Indebtedness) or
Disqualified Stock of any Subsidiary, in each case that was permitted to be incurred pursuant to
Section (b), (c) or (f).




          (h) the incurrence by any Subsidiary of Indebtedness in respect of bid performance,
surety and similar bonds issued for the account of any Subsidiary in the ordinary course of
business, including guarantees and obligations of any Subsidiary with respect to letters of credit
supporting such obligations (in each case other than an obligation for money borrowed);





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          (i) the incurrence by any Subsidiary of Indebtedness arising from the honoring by a
bank or other financial institution of a check, draft or similar instrument inadvertently drawn
against insufficient funds in the ordinary course of business;




          (j) other Indebtedness incurred by any Subsidiary, not to exceed an aggregate
principal amount at any time outstanding greater than $50,000,000 (the “Subsidiary Debt Basket
Amount”);




          (k) Guarantee obligations with respect to the foregoing Indebtedness and
liabilities; and




          (l) Indebtedness not otherwise permitted under any other clause of Section
7.1 so long as each Subsidiary incurring such Indebtedness has in force a Subsidiary Guaranty
Agreement in substantially the form of Exhibit B, provided that such Subsidiary
Guaranty Agreement shall contain a provision that such Subsidiary Guaranty Agreement, and all
obligations thereunder of the Subsidiary Loan Party party thereto, shall be terminated with respect
to any Subsidiary that is not a wholly-owned Domestic Subsidiary that is a Material Subsidiary,
upon notice by the Borrower to the Administrative Agent that (i) the aggregate principal amount of
Indebtedness of all Subsidiaries outstanding pursuant to the preceding clause (k) and this clause
(l) is equal to or less than the Subsidiary Debt Basket Amount and (ii) no Default or Event of
Default has occurred and is continuing.




     Section 7.2. Negative Pledge. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien on any of its assets
or Property now owned or hereafter acquired, except Permitted Encumbrances.



     Section 7.3. Fundamental Changes.



          (a) The Borrower will not, and will not permit any Subsidiary to, merge into or
consolidate into any other Person, or permit any other Person to merge into or consolidate with it,
or liquidate or dissolve; provided, that if at the time thereof and immediately after
giving effect thereto, no Default or Event of Default shall have occurred and be continuing (i)
subject to compliance with Section 7.4 the Borrower or any Subsidiary may merge with a
Person if the Borrower (or such Subsidiary if the Borrower is not a party to such merger) is the
surviving Person, (ii) any Subsidiary may merge into another Subsidiary or the Borrower; and (iii)
any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its
assets to the Borrower or to another Subsidiary, and (iv) any Subsidiary (other than a Subsidiary
Loan Party) may liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders, and (d) any Subsidiary Guarantor may liquidate or dissolve so long
as any assets of such Guarantor are transferred to another Loan Party.




          (b) The Borrower will not, and will not permit any of its Subsidiaries to, engage in
any business which is material to the Borrower and its Subsidiaries, taken as a whole, other than
the businesses of the type conducted by the Borrower and its Subsidiaries on the date hereof and
businesses reasonably related thereto.




     Section 7.4. Investments, Loans, Etc. The Borrower will not, and will not
permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with
any Person that was not a wholly-owned Subsidiary prior to such merger), any Capital Stock,
evidence of indebtedness or other securities (including any option, warrant, or other right to
acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist
any



59









 







investment or any other interest in, any other
Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any
assets of any other Person that constitute a business unit (all of the foregoing being collectively
called “Investments”), except Permitted Investments.



     Section 7.5. Restricted Payments. The Borrower will not, and will not
permit any of its Subsidiaries to make any Restricted Payment except for:



          (a) repurchases, redemptions or retirements of Capital Stock of the Borrower in
advance of a regularly scheduled date for such retirement in connection with the Borrower’s
long-term incentive compensation plans approved by the Borrower’s shareholders and on file with the
SEC;




          (b) (i) any transfers expressly permitted herein, (ii) dividends by the Borrower in
an amount not to exceed (A) on an annual basis, an amount equal to ten percent (10%) of the Total
Shareholders’ Equity, (B) on an aggregate basis, an amount equal to twenty-five percent (25%) of
the Total Shareholders’ Equity), and (iii) dividends by a Subsidiary on a pro rata basis to its
equity holders; or




          (c) other Restricted Payments in an amount not to exceed (i) on an annual basis, an
amount equal to ten percent (10%) of the Total Shareholders’ Equity and (ii) on an aggregate basis,
an amount equal to twenty-five percent (25%) of the Total Shareholders’ Equity;



unless prior to and upon giving effect to such event described in (a), (b), (c) or any other
Restricted Payment, the Borrower shall have delivered to the Administrative Agent a Pro Forma
Compliance Certificate demonstrating that prior to and upon giving effect to such event, the
Borrower’s Leverage Ratio is less than or equal to 3.25 to 1.0.



Any Restricted Payments in exchange for, or out of the net cash proceeds of the substantially
concurrent (1) contribution to the equity capital of the Borrower or (2) sale (other than to a
Subsidiary of the Borrower) of Capital Stock of the Borrower (other than Disqualified Stock), with
a sale being deemed substantially concurrent if such redemption, repurchase, retirement, or
acquisition occurs not more than 120 days after such sale, shall not be subject to this Section
7.5.




     Section 7.6. Sale of Assets. The Borrower will not, and will not permit any
of its Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of, any of its
assets, business or Property, whether now owned or hereafter acquired, or, in the case of any
Subsidiary, issue or sell any shares of such Subsidiary’s Capital Stock to any Person other than
the Borrower or a Subsidiary (or to qualify directors if required by applicable law), except:



          (a) the sale or other disposition of obsolete or worn out Property or other Property
not necessary for operations disposed of in the ordinary course of business;




          (b) the sale of inventory or Permitted Investments in the ordinary course of
business;




          (c) any issuance by the Borrower or any Subsidiary of (A) shares of its Capital
Stock, (B) any shares of its Capital Stock pursuant to the exercise of options or warrants or (C)
any shares of its Capital Stock pursuant to the conversion of any debt securities to equity;




          (d) Sale Leaseback Transactions set forth on Schedule 7.6 hereto and to the
extent permitted by Section 7.1 and 7.2,




          (e) the sale or disposition of assets between or among the Borrower and its
Subsidiaries (other than to Excluded Subsidiaries);




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          (f) dispositions of equipment or real Property to the extent that (i) such Property
is exchanged for credit against the purchase price of similar replacement Property or (ii) the
proceeds of such disposition are reasonably promptly applied to the purchase price of such
replacement Property;




          (g) dispositions permitted by Sections 7.3, 7.4 and 7.5;




          (h) such other sales, leases, assignments, transfers or other dispositions of
assets; provided that (A) the consideration for such assets disposed of represents the fair
market value of such assets at the time of such asset sale; and (B) the cumulative net book value
of all asset sales by the Borrower and any of its Subsidiaries pursuant to this clause (h) during
any single fiscal year shall not exceed fifteen percent (15%) of the Total Shareholders’ Equity; or




          (i) the sale or other disposition of any other assets or Property if prior to and
upon giving effect to such sale or disposition, the Borrower’s Leverage Ratio is less than or equal
to 3.25 to 1.0.




     Section 7.7. Transactions with Affiliates. The Borrower will not, and will
not permit any of its Subsidiaries to, sell, lease or otherwise transfer any Property or assets to,
or purchase, lease or otherwise acquire any Property or assets from, or otherwise engage in any
other transactions with, any of its Affiliates, except (a) in the ordinary course of business at
prices and on terms and conditions not materially less favorable to the Borrower or such Subsidiary
taken as a whole than could be obtained on an arm’s-length basis from unrelated third parties, (b)
transactions between or among the Borrower and any Subsidiary not involving any other Affiliates,
(c) any Restricted Payment permitted by Section 7.5, (d) customary fees and expenses paid
to directors, (e) any employment agreement or arrangement, equity award, equity option or cash
and/or equity settled equity appreciation agreement or plan, employee benefit plan, officer or
director indemnification agreement, severance agreement, consulting agreement or other compensation
plan or arrangement entered into by the Borrower or any of its Subsidiaries in the ordinary course
of business, and payments, awards, grants or issuance of securities pursuant thereto, (f) provided
that no Default or Event of Default shall result therefrom, transactions involving payments to the
France Family individually (or family-related entities controlled by France Family members) or to
NASCAR in the ordinary course of business in accordance with past practices of the Loan Parties,
(g) transactions with a Person that is an Affiliate of the Borrower solely because the Borrower
owns, directly or indirectly, an equity interest in, or otherwise controls, such Person and/or has
nominated or appointed a person to the board of directors of that Person but only to the extent
that the aggregate consideration with respect to such transactions does not exceed $10,000,000 at
any time outstanding (calculated at such time after giving effect to any repayments), and (h) (1)
Guarantees by the Borrower or any of its Subsidiaries of obligations of joint ventures in the
ordinary course of business to the extent permitted by Section 7.1 or 7.4 and (2)
pledges by the Borrower or any Subsidiary of equity interests in joint ventures for the benefit of
lenders or other creditors of such joint ventures, and (i) transactions entered into by a Person
prior to the time such Person becomes a Subsidiary or is merged or consolidated into the Borrower
or a Subsidiary (provided such transaction is not entered into in contemplation of such event) to
the extent permitted by Section 7.1 or 7.4.



     Section 7.8. Restrictive Agreements. The Borrower will not, and will not
permit any Subsidiary to, directly or indirectly, enter into, incur or permit to exist any
agreement that prohibits, restricts or imposes any condition upon the ability of any Subsidiary
(other than a Guarantor) to directly or indirectly pay dividends or other distributions with
respect to its Capital Stock to the Borrower or, to make advances to the Borrower;
provided, that the foregoing shall not apply to: (i) restrictions or conditions imposed by
law or by this Agreement or any other Loan Document, (ii) customary restrictions and conditions
contained in agreements relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is sold and such sale is permitted



61









 







hereunder, (iii) encumbrances or restrictions contained in, or existing by reason of, any agreement
or instrument relating to any debt of, or otherwise to, any Subsidiary at the time such Subsidiary
was merged or consolidated with or into, or acquired by, Borrower or a Subsidiary or became a
Subsidiary and was not created in contemplation thereof; (iv) restrictions contained in any
agreement or instrument relating to Indebtedness of a Subsidiary which is not a Material Subsidiary
permitted to be incurred by this Agreement; and (v) restrictions existing as of the Closing Date
and described on Schedule 7.8.



     Section 7.9. Accounting Changes. The Borrower will not, and will not permit
any of its Subsidiaries to, make any significant change in accounting treatment or reporting
practices, except as required by GAAP, or change the fiscal year of the
Borrower or of any of its Subsidiaries, except to change the fiscal year of a Subsidiary to
conform its fiscal year to that of the Borrower.



     Section 7.10. Government Regulation. Neither the Borrower nor any of its
Subsidiaries shall (a) be or become subject at any time to any law, regulation, or list of any
Government Authority of the United States (including, without limitation, the U.S. Office of
Foreign Asset Control list) that prohibits or limits Lenders or the Administrative Agent from
making any advance or extension of credit to Borrower or from otherwise conducting business with
the Loan Parties, or (b) fail to provide documentary and other evidence of the identity of the Loan
Parties as may be requested by Lenders or the Administrative Agent at any time to enable Lenders or
the Administrative Agent to verify the identity of the Loan Parties or to comply with any
applicable law or regulation, including, without limitation, Section 326 of the USA Patriot Act of
1 U.S.C. Section 5318.



ARTICLE VIII




EVENTS OF DEFAULT



     Section 8.1. Events of Default. If any of the following events (each an
“Event of Default”) shall occur:



          (a) the Borrower shall fail to pay any principal of any Loan or of any reimbursement
obligation in respect of any LC Disbursement under Section 2.22(a) when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed for prepayment or
otherwise; or




          (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount payable under clause (a) of this Section 8.1 or an amount
related to a Bank Product Obligation) payable under this Agreement or any other Loan Document, when
and as the same shall become due and payable, and such failure shall continue unremedied for a
period of three (3) Business Days; or




          (c) any representation or warranty made or deemed made by or on behalf of the
Borrower or any Subsidiary in or in connection with this Agreement or any other Loan Document
(including the Schedules attached thereto) and any amendments or modifications hereof or waivers
hereunder, or in any certificate, report, financial statement or other document submitted to the
Administrative Agent or the Lenders by any Loan Party or any representative of any Loan Party
pursuant to or in connection with this Agreement or any other Loan Document shall prove to be
incorrect in any material respect (other than those representations and warranties that are
expressly qualified by a Material Adverse Effect or other materiality, in which case such
representations and warranties shall prove to be incorrect in any respect) when made or deemed made
or submitted; or




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          (d) the Borrower shall fail to observe or perform any covenant or agreement
contained in Sections 5.1, 5.2, or 5.3 (with respect to the Borrower’s
existence) or Articles VI or VII; or




          (e) any Loan Party shall fail to observe or perform any covenant or agreement
contained in this Agreement (other than those referred to in clauses (a), (b) and (d) above) or any
other Loan Document and such failure shall remain unremedied for 30 days after the earlier of
(i) any
Responsible Officer of the Borrower becomes aware of such failure, or (ii) notice thereof
shall have been given to the Borrower by the Administrative Agent; or




          (f) the Borrower or any Subsidiary (whether as primary obligor or as guarantor or
other surety) shall fail to pay any principal of, or premium or interest on, any Material
Indebtedness that is outstanding, when and as the same shall become due and payable (whether at
scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the agreement or instrument
evidencing or governing such Indebtedness; or any other event shall occur or condition shall exist
under any agreement or instrument relating to such Indebtedness and shall continue after the
applicable grace period, if any, specified in such agreement or instrument, if the effect of such
event or condition is to accelerate, or permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable, or required to be
prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption),
purchased or defeased, or any offer to prepay, redeem, purchase or defease such Indebtedness shall
be required to be made, in each case prior to the stated maturity thereof; or




          (g) the Borrower or any Material Subsidiary shall (i) commence a voluntary case or
other proceeding or file any petition seeking liquidation, reorganization or other relief under any
federal, state or foreign bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a custodian, trustee, receiver, liquidator or other similar official of
it or any substantial part of its Property, (ii) consent to the institution of, or fail to contest
in a timely and appropriate manner, any proceeding or petition described in clause (i) of this
Section 8.1(g), (iii) apply for or consent to the appointment of a custodian, trustee,
receiver, liquidator or other similar official for the Borrower or any such Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general assignment for the benefit of
creditors, or (vi) take any action for the purpose of effecting any of the foregoing; or




          (h) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any
Material Subsidiary or its debts, or any substantial part of its assets, under any federal, state
or foreign bankruptcy, insolvency or other similar law now or hereafter in effect or (ii) the
appointment of a custodian, trustee, receiver, liquidator or other similar official for the
Borrower or any Material Subsidiary or for a substantial part of its assets, and in any such case,
such proceeding or petition shall remain undismissed for a period of 90 days or an order or decree
approving or ordering any of the foregoing shall be entered; or




          (i) the Borrower or any Material Subsidiary shall become unable to pay, shall admit
in writing its inability to pay, or shall fail to pay, its debts as they become due; or




          (j) an ERISA Event shall have occurred that, in the opinion of the Required Lenders,
when taken together with other ERISA Events that have occurred, could reasonably be expected to
result in liability to the Borrower and the Subsidiaries in an aggregate amount exceeding
$30,000,000; or




63









 








          (k) any judgment or order for the payment of money in excess of $30,000,000 in the
aggregate (to the extent not paid when due or covered by insurance) shall be rendered against the
Borrower or any Material Subsidiary, and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall be a period of
45 consecutive days during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or




          (l) a Change in Control shall occur or exist; or




          (m) except pursuant to Section 7.1(l) or 10.2(c) hereof, any provision of any
Subsidiary Guaranty Agreement shall for any reason cease to be valid and binding on, or enforceable
against, any Subsidiary Loan Party, or any Subsidiary Loan Party shall so state in writing, or any
Subsidiary Loan Party shall seek to terminate its Subsidiary Guaranty Agreement; or




          (n) any Event of Default under and as defined in the Senior Note Indenture;



then, and in every such event (other than an event with respect to the Borrower described in clause
(g), (h) or (i) of this Section 8.1) and at any time thereafter during the continuance of
such event, the Administrative Agent may, and upon the written request of the Required Lenders
shall, by notice to the Borrower, take any or all of the following actions, at the same or
different times: (i) terminate the Commitments, whereupon the Commitment of each Lender shall
terminate immediately, (ii) declare the principal of and any accrued interest on the Loans, and all
other Obligations owing hereunder, to be, whereupon the same shall become, due and payable
immediately, without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower, (iii) exercise all remedies contained in any other Loan Document,
and (iv) exercise any other remedies available at law or in equity; and that, if an Event of
Default specified in clause (g), (h) or (i) shall occur, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued interest thereon,
and all fees, and all other Obligations shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the
Borrower.




ARTICLE IX




THE ADMINISTRATIVE AGENT



     Section 9.1. Appointment of Administrative Agent.



          (a) Each Lender irrevocably appoints Wells Fargo Bank, N.A. as the Administrative
Agent and authorizes it to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent under this Agreement and the other Loan Documents, together
with all such actions and powers that are reasonably incidental thereto. The Administrative Agent
may perform any of its duties hereunder or under the other Loan Documents by or through any one or
more sub-agents or attorneys-in-fact appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent or attorney-in-fact may perform any and all of its duties and exercise
its rights and powers through their respective Related Parties. The exculpatory provisions set
forth in this Article shall apply to any such sub-agent or attorney-in-fact and the Related Parties
of the Administrative Agent, any such sub-agent and any such attorney-in-fact and shall apply to
their respective activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.




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          (b) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters
of Credit issued by it and the documents associated therewith until such time and except for so
long as the Administrative Agent may agree at the request of the Required Lenders to act for the
Issuing Bank with respect thereto; provided, that the Issuing Bank shall have all the benefits and
immunities (i) provided to the Administrative Agent in this Article with respect to any acts taken
or omissions suffered by the
Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining to the Letters of Credit as
fully as if the term “Administrative Agent” as used in this Article included the Issuing Bank with
respect to such acts or omissions and (ii) as additionally provided in this Agreement with respect
to the Issuing Bank.




     Section 9.2. Nature of Duties of Administrative Agent. The Administrative
Agent shall not have any duties or obligations except those expressly set forth in this Agreement
and the other Loan Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default or an Event of Default has occurred and is continuing, (b) the Administrative
Agent shall not have any duty to take any discretionary action or exercise any discretionary
powers, except those discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the circumstances as provided
in Section 10.2), and (c) except as expressly set forth in the Loan Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it, its
sub-agents or attorneys-in-fact with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the circumstances as provided
in Section 10.2) or in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents or
attorneys-in-fact selected by it with reasonable care. The Administrative Agent shall not be
deemed to have knowledge of any Default or Event of Default unless and until written notice thereof
(which notice shall include an express reference to such event being a “Default” or “Event of
Default” hereunder) is given to the Administrative Agent by the Borrower or any Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of any of the covenants,
agreements, or other terms and conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in Article III
or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent. The Administrative Agent may consult with legal counsel
(including counsel for the Borrower) concerning all matters pertaining to such duties.



     Section 9.3. Lack of Reliance on the Administrative Agent. Each of the
Lenders, the Swingline Lender and the Issuing Bank acknowledges that it has, independently and
without reliance upon the Administrative Agent, any Issuing Bank or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each of the Lenders, the Swingline Lender and the Issuing
Bank also acknowledges that it will, independently and without reliance upon the Administrative
Agent, any Issuing Bank or any other Lender and based on such documents and information as it has
deemed appropriate, continue to make its own decisions in taking or not taking of any action under
or based on this Agreement, any related agreement or any document furnished hereunder or
thereunder.



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     Section 9.4. Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the
Required Lenders with respect to any action or actions (including the failure to act) in
connection with this Agreement, the Administrative Agent shall be entitled to refrain from such act
or taking such act, unless and until it shall have received instructions from such Lenders; and the
Administrative Agent shall not incur liability to any Person by reason of so refraining. Without
limiting the foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or refraining from acting
hereunder in accordance with the instructions of the Required Lenders where required by the terms
of this Agreement.



     Section 9.5. Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or other writing (including any
electronic message, posting or other distribution) believed by it to be genuine and to have been
signed, sent or made by the proper Person. The Administrative Agent may also rely upon any
statement made to it orally or by telephone and believed by it to be made by the proper Person and
shall not incur any liability for relying thereon. The Administrative Agent may consult with legal
counsel (including counsel for the Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or not taken by it in accordance with
the advice of such counsel, accountants or experts.



     Section 9.6. The Administrative Agent in its Individual Capacity. The bank
serving as the Administrative Agent shall have the same rights and powers under this Agreement and
any other Loan Document in its capacity as a Lender as any other Lender and may exercise or refrain
from exercising the same as though it were not the Administrative Agent; and the terms “Lenders”,
“Required Lenders”, or any similar terms shall, unless the context clearly otherwise indicates,
include the Administrative Agent in its individual capacity. The bank acting as the Administrative
Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind
of business with the Borrower or any Subsidiary or Affiliate of the Borrower as if it were not the
Administrative Agent hereunder.



     Section 9.7. Successor Administrative Agent.



          (a) The Administrative Agent may resign at any time by giving notice thereof to the
Lenders and the Borrower. Upon any such resignation, the Required Lenders shall have the right to
appoint a successor Administrative Agent, subject to the approval by the Borrower provided that no
Default or Event of Default shall exist at such time. If no successor Administrative Agent shall
have been so appointed, and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent, which shall
be a commercial bank organized under the laws of the United States of America or any state thereof
or a bank which maintains an office in the United States, having a combined capital and surplus of
at least $500,000,000.




          (b) Upon the acceptance of its appointment as the Administrative Agent hereunder by
a successor, such successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and obligations under this
Agreement and the other Loan Documents. If within 45 days after written notice is given of the
retiring Administrative Agent’s resignation under this Section 9.7 no successor
Administrative Agent shall have been appointed and shall have accepted such appointment, then on
such 45th day (i) the retiring Administrative Agent’s resignation shall become
effective, (ii) the retiring Administrative Agent shall thereupon be discharged
from its duties and obligations under the Loan Documents and (iii) the Required Lenders shall
thereafter perform all duties of the retiring Administrative Agent under the Loan Documents until
such time as the Required Lenders appoint a successor Administrative Agent as provided above.
After any retiring




66









 




Administrative Agent’s resignation hereunder, the provisions of this Article
shall continue in effect for the benefit of such retiring Administrative Agent and its
representatives and agents in respect of any actions taken or not taken by any of them while it was
serving as the Administrative Agent.




          (c) Any resignation by Wells Fargo Bank, as Administrative Agent pursuant to this
Section 9.7 shall also constitute its resignation as Issuing Lender and Swingline Lender but shall
not confer any duties on the Required Lenders to act as Issuing Lender or as Swingline Lender.
Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (a) such
successor shall succeed to and become vested with all rights, powers, privileges and duties of the
retiring Issuing Lender and Swingline Lender, (b) the retiring Issuing Lender and Swingline Lender
shall be discharged from all of their respective duties and obligations hereunder or under the
other Loan Documents, and (c) the successor Issuing Lender shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to the retiring Issuing Lender to effectively assume the
obligations of the retiring Issuing Lender with respect to such Letters of Credit.




          (d) In addition to the foregoing, if a Lender becomes, and during the period it
remains, a Defaulting Lender, and if any Default has arisen from a failure of the Borrower to
comply with Section 2.26(a), then the Issuing Bank and the Swingline Lender may, upon prior
written notice to the Borrower and the Administrative Agent, resign as Issuing Bank or as Swingline
Lender, as the case may be, effective at the close of business New York, New York time on a date
specified in such notice (which date may not be less than five (5) Business Days after the date of
such notice).



     Section 9.8. Withholding Tax. To the extent required by any applicable law, the Administrative Agent
may withhold from any interest payment to any Lender an amount equivalent to any applicable
withholding tax. If the Internal Revenue Service or any authority of the United States or other
jurisdiction asserts a claim that the Administrative Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the appropriate form was not delivered,
was not properly executed, or because such Lender failed to notify the Administrative Agent of a
change in circumstances that rendered the exemption from, or reduction of, withholding tax
ineffective, or for any other reason), such Lender shall indemnify the Administrative Agent (to the
extent that the Administrative Agent has not already been reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so) fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax or otherwise, including penalties and interest,
together with all expenses incurred, including legal expenses, allocated staff costs and any out of
pocket expenses.




     Section 9.9. Administrative Agent May File Proofs of Claim.



          (a) In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding
relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any
Loan or any Revolving Credit Exposure shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent shall have made any
demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or
otherwise:





     (i) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans or Revolving Credit Exposure and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary or advisable
in order to have the claims of the Lenders, Issuing Bank and the Administrative Agent
(including any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders, Issuing Bank and the Administrative Agent and its agents and counsel and all
other



67









 







amounts due the Lenders, Issuing Bank and the Administrative Agent under Section
10.3) allowed in such judicial proceeding; and




     (ii) to collect and receive any monies or other Property payable or deliverable on any
such claims and to distribute the same; and



          (b) Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each Lender and the
Issuing Bank to make such payments to the Administrative Agent and, if the Administrative Agent
shall consent to the making of such payments directly to the Lenders and the Issuing Bank, to pay
to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Section 10.3.



Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the Issuing Bank any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of
any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.




     Section 9.10. Authorization to Execute other Loan Documents. Subject to the
consent of each Lender, each Lender hereby authorizes the Administrative Agent to execute on behalf
of all Lenders all Loan Documents other than this Agreement.



     Section 9.11. Syndication Agent. Each Lender hereby designates SunTrust
Bank and JPMorgan Chase Bank, N.A. as Co-Syndication Agents and agrees that the Co-Syndication
Agents shall have no duties or obligations under any Loan Documents to the Administrative Agent,
the Issuing Bank, the Swingline Lender, any other Lender or any Loan Party.



ARTICLE X




MISCELLANEOUS



     Section 10.1. Notices.



          (a) Written Notices.





     (i) Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications to any party herein
to
be effective shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:



	 	 	 

	To the Borrower:

	 	International Speedway Corporation
	 

	 	International Motorsports Center
	 

	 	One Daytona Boulevard
	 

	 	Daytona Beach, FL 32114
	 

	 	Attention: Dan Houser
	 

	 	Telecopy Number: 386-681-6684
	 
	 	 
	With copies to:

	 	Brett M. Scharback






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	 	International Motorsports Center
	 

	 	One Daytona Boulevard
	 

	 	Daytona Beach, FL 32114
	 

	 	Telecopy Number: 386-681-4946
	 
	 	 
	 

	 	and
	 
	 	 
	 

	 	Baker Botts L.L.P.
	 

	 	The Warner
	 

	 	1299 Pennsylvania Ave. NW
	 

	 	Washington, DC 20004-2400
	 

	 	Attention: Michael A. Gold
	 

	 	Telecopy Number: 202.585.1024
	 
	 	 
	To the Administrative Agent 

or Swingline Lender or 

Issuing Bank:

	 	Wells Fargo Bank, N.A.
	 

	 	800 N. Magnolia Avenue
	 

	 	MAC Z0244-084
	 

	 	Suite 800
	 

	 	Orlando, FL 32803
	 

	 	Attention: Paul Richards
	 

	 	Telecopy Number:
	 
	 	 
	 

	 	and
	 
	 	 
	 

	 	Wells Fargo Bank, N.A.
	 

	 	1525 West W.T. Harris Blvd. 1B1
	 

	 	Charlotte, NC 28262
	 

	 	Attention: Lisa White
	 
	 	 
	With a copy to:

	 	SunTrust Bank
	 

	 	303 Peachtree Street, N. E.
	 

	 	Atlanta, Georgia 30308
	 

	 	Attention: Marybeth Coke
	 

	 	Telecopy Number:
	 
	 	 
	 

	 	JPMorgan Chase Bank, N.A.
	 

	 	3475 Piedmont Road, N.E.
	 

	 	Suite 1800
	 

	 	Atlanta, GA 30305
	 

	 	Attention: John Horst
	 

	 	Telecopy Number: 404-926-2579
	 
	 	 
	With a copy to:

	 	W. Todd Holleman
	 

	 	King & Spalding
	 

	 	100 North Tryon Street
	 

	 	Suite 3900
	 

	 	Charlotte, North Carolina 28209
	 

	 	Telecopy Number: 704-503-2567






69









 






	 	 	 

	To the Co-Syndication 

Agents:

	 	SunTrust Bank
	 

	 	303 Peachtree Street, N. E.
	 

	 	Atlanta, Georgia 30308
	 

	 	Attention:
	 

	 	Telecopy Number:
	 
	 	 
	 

	 	JPMorgan Chase Bank, N.A.
	 

	 	3475 Piedmont Road, N.E.
	 

	 	Suite 1800
	 

	 	Atlanta, GA 30305
	 

	 	Attention: John Horst
	 

	 	Telecopy Number: 404-926-2579
	 
	 	 
	To any other Lender:

	 	the address set forth in the Administrative
Questionnaire or the Assignment and Acceptance Agreement executed by such
Lender







Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such notices and
other communications shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day) delivery, or transmitted in legible
form by facsimile machine, respectively, or if mailed, upon the third Business Day after
the date deposited into the mail or if delivered, upon delivery; provided, that notices
delivered to the Administrative Agent, the Issuing Bank or the Swingline Lender shall
not be effective until actually received by such Person at its address specified in this
Section 10.1.




     (ii) Any agreement of the Administrative Agent, the Issuing Bank and the
Lenders herein to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrower. The Administrative Agent, the Issuing Bank
and the Lenders shall be entitled to rely on the authority of any Person purporting to be a
Person authorized by the Borrower to give such notice and the Administrative Agent, the
Issuing Bank and the Lenders shall not have any liability to the Borrower or other Person on
account of any action taken or not taken by the Administrative Agent, the Issuing Bank and
the Lenders in reliance upon such telephonic or facsimile notice. The obligation of the
Borrower to repay the Loans and all other Obligations hereunder shall not be affected in any
way or to any extent by any failure of the Administrative Agent, the Issuing Bank and the
Lenders to receive written confirmation of any telephonic or facsimile notice or the receipt
by the Administrative Agent, the Issuing Bank and
the Lenders of a confirmation which is at variance with the terms understood by the
Administrative Agent, the Issuing Bank and the Lenders to be contained in any such
telephonic or facsimile notice.



          (b) Electronic Communications.





     (i) Notices and other communications to the Lenders and the Issuing Bank
hereunder may be delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender or the Issuing
Bank pursuant to Article 2 unless such Lender, the Issuing Bank, as applicable, and
Administrative Agent have agreed to



70









 







receive notices under such Section by electronic
communication and have agreed to the procedures governing such communications.
Administrative Agent or Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved
by it; provided that approval of such procedures may be limited to particular
notices or communications.




     (ii) Unless Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the sender’s receipt
of an acknowledgement from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement); provided
that if such notice or other communication is not sent during the normal business hours of
the recipient, such notice or communication shall be deemed to have been sent at the opening
of business on the next Business Day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the deemed receipt
by the intended recipient at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying the website
address therefor.



     Section 10.2. Waiver; Amendments.



          (a) No failure or delay by the Administrative Agent, the Issuing Bank or any Lender
in exercising any right or power hereunder or any other Loan Document, and no course of dealing
between the Borrower and the Administrative Agent or any Lender, shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power or any abandonment or
discontinuance of steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or thereunder. The rights and
remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or remedies provided by
law. No waiver of any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section 10.2, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not
be construed as a waiver of any Default or Event of Default, regardless of whether the
Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default or Event of Default at the time.




          (b) No amendment or waiver of any provision of this Agreement or the other Loan
Documents (other than the Fee Letter and the Administrative Agent Fee Letter), nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the same shall be in
writing
and signed by the Borrower and the Required Lenders or the Borrower and the Administrative
Agent with the consent of the Required Lenders and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given; provided, that
no amendment or waiver shall: (i) increase the Commitment of any Lender without the written consent
of such Lender, (ii) reduce the principal amount of any Loan or reduce the rate of interest
thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the date fixed for any payment of any principal of, or interest on, any
Loan or interest thereon or any fees hereunder or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date for the termination or reduction of any Commitment, without
the written consent of each Lender affected thereby, (iv) change Section 2.11 or change
Section 2.21(b) or (c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender, (v) change any of the
provisions of this Section 10.2 or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders which are required to waive, amend
or modify any rights hereunder or




71









 







make any determination or grant any consent hereunder, without
the consent of each Lender; (vi) release all or substantially all of the Guarantors without the
written consent of each Lender; (vii) release all or substantially all collateral (if any) securing
any of the Obligations, without the written consent of each Lender; provided further, that
no such agreement shall amend, modify or otherwise affect the rights, duties or obligations of the
Administrative Agent, the Swingline Lender or the Issuing Bank without the prior written consent of
such Person. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any
right to approve or disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended, and amounts payable to such Lender
hereunder may not be permanently reduced without the consent of such Lender (other than reductions
in fees and interest in which such reduction does not disproportionately affect such Lender).
Notwithstanding anything contained herein to the contrary, this Agreement may be amended and
restated without the consent of any Lender (but with the consent of the Borrower and the
Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall
no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender
shall have terminated (but such Lender shall continue to be entitled to the benefits of
Sections 2.18, 2.19, 2.20 and 10.3), such Lender shall have no
other commitment or other obligation hereunder and shall have been paid in full all principal,
interest and other amounts owing to it or accrued for its account under this Agreement.




          (c) If at any time a Guarantor ceases to be a wholly-owned Domestic Subsidiary that
is a Material Subsidiary, such Guarantor shall be released from the Subsidiary Guaranty, and all
obligations thereunder, promptly following written notice by the Borrower to the Administrative
Agent that such Subsidiary is no longer a Material Subsidiary.




     Section 10.3. Expenses; Indemnification.



          (a) The Borrower shall pay (i) all reasonable, out-of-pocket costs and expenses of
the Administrative Agent and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent and its Affiliates, in connection with the
syndication of the credit facilities provided for herein, the preparation and administration of the
Loan Documents and any amendments, modifications or waivers thereof (whether or not the
transactions contemplated in this Agreement or any other Loan Document shall be consummated),
including the reasonable fees, charges and disbursements of counsel for the Administrative Agent
and its Affiliates, (ii) all reasonable out-of-pocket expenses incurred by the Issuing Bank in
connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket costs and expenses (including, without
limitation, the reasonable fees, charges and disbursements of outside counsel and the allocated
cost of inside counsel) incurred by the Administrative Agent, the Issuing Bank, the Swingline
Lender or any Lender in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section 10.3, or in
connection with the Loans made or any Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of
such Loans or Letters of Credit.




          (b) The Borrower shall indemnify the Administrative Agent (and any sub-agent
thereof), each Lender, the Swingline Lender and the Issuing Bank, and each Related Party of any of
the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold
each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and
shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements
for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by the Borrower or any other Loan Party arising out
of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any
other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance
by the parties hereto of their respective obligations




72









 







hereunder or thereunder or the consummation
of the transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence
or Release of Hazardous Materials on or from any Property owned or operated by the Borrower or any
of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of
its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto, provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to
have resulted from (x) the gross negligence or willful misconduct of such Indemnitee or (y) a claim
brought by the Borrower or any other Loan Party against an Indemnitee for breach in bad faith of
such Indemnitee’s obligations hereunder or under any other Loan Document. No Indemnitee shall be
liable for any damages arising from the use by others of any information or other materials
obtained through Syndtrak or any other Internet or intranet website, except as a result of such
Indemnitee’s gross negligence or willful misconduct as determined by a court of competent
jurisdiction in a final and nonappealable judgment. This Section 10.3(b) shall not apply to Taxes.




          (c) The Borrower shall pay, and hold the Administrative Agent, the Issuing Bank and
each of the Lenders harmless from and against, any and all present and future stamp, documentary,
and other similar taxes with respect to this Agreement and any other Loan Documents, any collateral
described therein, or any payments due thereunder, and save the Administrative Agent, the Issuing
Bank and each Lender harmless from and against any and all liabilities with respect to or resulting
from any delay or omission to pay such taxes.




          (d) To the extent that the Borrower fails to pay any amount required to be paid to
the Administrative Agent, the Issuing Bank or the Swingline Lender under clauses (a), (b) or (c)
hereof, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lender’s Pro Rata Share (determined as of the time that
the unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided,
that the unreimbursed expense or indemnified payment, claim, damage, liability or related expense,
as the case may be, was incurred by or asserted against the Administrative Agent, the Issuing Bank
or the Swingline Lender in its capacity as such.




          (e) To the extent permitted by applicable law, the Borrower shall not assert, and
hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to actual or direct damages) arising out of, in
connection with or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the transactions contemplated therein, any Loan or any Letter of Credit or the use of
proceeds thereof.




          (f) All amounts due under this Section 10.3 shall be payable promptly after
written demand therefor.




     Section 10.4. Successors and Assigns.



          (a) The provisions of this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of the Administrative Agent and each Lender, and no Lender may assign or
otherwise




73









 







transfer any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of paragraph (b) of this Section, (ii) by way of participation in
accordance with the provisions of paragraph (d) of this Section or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of paragraph (f) of this Section (and
any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in paragraph (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.




          (b) Any Lender may at any time assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of its Commitments,
Loans, and other Revolving Credit Exposure at the time owing to it); provided that any such
assignment shall be subject to the following conditions:





     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitments, Loans and other Revolving Credit Exposure at the
time owing to it or in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund, no minimum amount need be assigned; and




     (B) in any case not described in paragraph (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans and
Revolving Credit Exposure outstanding thereunder) or, if the applicable Commitment
is not then in effect, the principal outstanding balance of the Loans and Revolving
Credit Exposure of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent or, if “Trade Date” is specified in the
Assignment and Acceptance, as of the Trade Date) shall not be less than $5,000,000
with respect to Revolving Loans and in minimum increments of $1,000,000, unless each
of the Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed).




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans, other Revolving Credit Exposure or the
Commitments assigned.




     (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by paragraph (b)(i)(B) of this Section and, in addition:




     (A) the consent of the Borrower (such consent not to be unreasonably withheld)
shall be required unless (x) an Event of Default has occurred and is continuing at
the time of such assignment or (y) such assignment is to a Lender, an Affiliate of a
Lender or an Approved Fund; provided, that, the Borrower shall be
deemed to have consented to any such assignment unless it shall object thereto by
written notice to the Administrative Agent within five (5) Business Days after
having received notice thereof;



74









 






     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments to a Person that
is not a Lender with a Commitment, an Affiliate of a Lender or an Approved Fund; and




     (C) the consent of the Issuing Bank (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment that increases the
obligation of the assignee to participate in exposure under one or more Letters of
Credit (whether or not then outstanding), and the consent of the Swingline Lender
(such consent not to be unreasonably withheld or delayed) shall be required for any
assignment in respect of the Revolving Commitments.




          (iv) Assignment and Acceptance. The parties to each assignment shall deliver
to the Administrative Agent (A) a duly executed Assignment and Acceptance, (B) a processing
and recordation fee of $3,500, (C) an Administrative Questionnaire unless the assignee is
already a Lender and (D) the documents required under Section 2.20.




          (v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c)
of this Section 10.4, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and
10.3 with respect to facts and circumstances occurring prior to the effective date of such
assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale
by such Lender of a participation in such rights and obligations in accordance with paragraph (d)
of this Section 10.4. If the consent of the Borrower to an assignment is required
hereunder (including a consent to an assignment which does not meet the minimum assignment
thresholds specified above), the Borrower shall
be deemed to have given its consent five Business Days after the date notice thereof has actually
been delivered by the assigning Lender (through the Administrative Agent) to the Borrower, unless
such consent is expressly refused by the Borrower prior to such fifth Business Day.




          (c) The Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at Wells Fargo Bank, N.A., 1525 West W.T. Harris Boulevard, 1B1,
Charlotte, NC 28262, MAC D1109-019 a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Commitments of, and
principal amount of the Loans and Revolving Credit Exposure owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”). Information contained in the Register
with respect to any Lender shall be available for inspection by such Lender at any reasonable time
and from time to time upon reasonable prior notice; information contained in the Register shall
also be available for inspection by the Borrower at any reasonable time and from time to time upon
reasonable prior notice. In establishing and maintaining the Register, Administrative Agent shall
serve as Borrower’s agent solely for tax purposes and solely with respect to the actions described
in this Section, and the Borrower hereby agrees that, to





75











 




the extent Wells Fargo Bank, N.A.
serves in such capacity, Wells Fargo Bank, N.A. and its officers, directors, employees, agents,
sub-agents and affiliates shall constitute “Indemnitees.”




          (d) Any Lender may at any time, without the consent of, or notice to, the Borrower,
the Administrative Agent, the Swingline Lender or the Issuing Bank sell participations to any
Person (other than a natural person, the Borrower or any of the Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or
obligations under this Agreement (including all or a portion of its Commitment and/or the Loans
owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders, the
Issuing Bank and the Swingline Lender shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under this Agreement.




          (e) Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this Agreement
and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver with respect to the
following to the extent affecting such Participant: (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without
the written consent of each Lender affected thereby, (iii) postpone the date fixed for any payment
of any principal of, or interest on, any Loan or LC Disbursement or interest thereon or any fees
hereunder or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date
for the termination or reduction of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.21(b) or (c) in a manner that would alter
the pro rata sharing of payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section 10.4 or the definition of “Required Lenders”
or any other provision hereof specifying the number or percentage of Lenders which are required to
waive, amend or modify any rights hereunder or make any determination or grant any consent
hereunder, without the consent of each Lender; (vi) release any guarantor or limit the liability of
any such guarantor under any guaranty agreement without the written consent of each Lender except
to the extent such release is expressly provided under the terms of such guaranty agreement; or
(vii) release all or substantially all collateral (if any) securing any of the Obligations.
Subject to paragraph (e) of this Section 10.4, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.18, 2.19, and 2.20 to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section
10.4. To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.7 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.21 as though it were a Lender.




          (f) A Participant shall not be entitled to receive any greater payment under
Section 2.18 and Section 2.20 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written consent to such sale
and such increased payment. A Participant shall not be entitled to the benefits of
Section 2.20 unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with Section
2.20(e) and (f) as though it were a Lender.




          (g) Any Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such Lender, including without
limitation any pledge or assignment to secure obligations to a Federal Reserve Bank;
provided that no




76









 




such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.




     Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process.



          (a) This Agreement and the other Loan Documents shall be construed in accordance
with and be governed by the law of the State of New York (without giving effect to the conflict of
law principles thereof except for Sections 5-1401 and 5-1402 of the New York General Obligations
Law).




          (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its
Property, to the exclusive jurisdiction of the United States District Court of the Southern
District of New York, and of the Supreme Court of the State of New York sitting in New York county
and any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Agreement or any other Loan Document or the transactions contemplated hereby or thereby, or
for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or proceeding may be heard
and determined in such District Court or New York state court or, to the extent permitted by
applicable law, such Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or any other Loan
Document against the Borrower or its properties in the courts of any jurisdiction.




          (c) The Borrower irrevocably and unconditionally waives any objection which it
may now or hereafter have to the laying of venue of any such suit, action or proceeding described
in paragraph (b) of this Section 10.5 and brought in any court referred to in paragraph (b)
of this Section 10.5. Each of the parties hereto irrevocably waives, to the fullest extent
permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.




          (d) Each party to this Agreement irrevocably consents to the service of process in
the manner provided for notices in Section 10.1. Nothing in this Agreement or in any other
Loan Document will affect the right of any party hereto to serve process in any other manner
permitted by law.




     Section 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     Section 10.7. Right of Setoff. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights, each Lender and the
Issuing Bank shall have the right, at any time or from time to time upon the occurrence and during
the continuance of an Event of Default, without prior notice to the Borrower, any such notice being
expressly waived by the



77









 







Borrower to the extent permitted by applicable law, to set off and apply
against all deposits (general or special, time or demand, provisional or final) of the Borrower at
any time held or other obligations at any time owing by such Lender and the Issuing Bank to or for
the credit or the account of the Borrower against any and all obligations held by such Lender or
the Issuing Bank, as the case may be, irrespective of whether such Lender or the Issuing Bank shall
have made demand hereunder and although such obligations may be unmatured. Each Lender and the
Issuing Bank agree promptly to notify the Administrative Agent and the Borrower after any such
set-off and any application made by such Lender and the Issuing Bank, as the case may be;
provided, that the failure to give such notice shall not affect the validity of such
set-off and application.



     Section 10.8. Counterparts; Integration. This Agreement may be executed by
one or more of the parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to constitute one and the
same instrument. This Agreement, the Fee Letter, the other Loan Documents, and any separate letter
agreement(s) relating to any fees payable to the Administrative Agent and its Affiliates constitute
the entire agreement among the parties hereto and thereto and their affiliates regarding the
subject matters hereof and thereof and supersede all prior agreements and understandings, oral or
written, regarding such subject matters. Delivery of an executed counterpart to this Agreement or
any other Loan Document by facsimile transmission or by electronic mail in pdf format shall be as
effective as delivery of a manually executed counterpart hereof.



     Section 10.9. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered to have been relied upon by the
other parties hereto and shall survive the execution and delivery of this Agreement and the making
of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any
such other party or on its behalf and notwithstanding that the Administrative Agent, the Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of Sections
2.18, 2.19, 2.20, and 10.3 and
Article IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of this Agreement or
any provision hereof. All representations and warranties made herein, in the certificates,
reports, notices, and other documents delivered pursuant to this Agreement shall survive the
execution and delivery of this Agreement and the other Loan Documents, and the making of the Loans
and the issuance of the Letters of Credit.



     Section 10.10. Severability. Any provision of this Agreement or any other
Loan Document held to be illegal, invalid or unenforceable in any jurisdiction, shall, as to such
jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability
without affecting the legality, validity or enforceability of the remaining provisions hereof or
thereof; and the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction.



     Section 10.11. Confidentiality. Each of the Administrative Agent, the
Issuing Bank and the Lenders agrees to take normal and reasonable precautions to maintain the
confidentiality of any information relating to the Borrower or any of its Subsidiaries or any of
their respective businesses, to the extent designated in writing as confidential and provided to it
by the Borrower or any Subsidiary, other than any such information that is available to the
Administrative Agent, the Issuing Bank or any Lender



78









 







on a nonconfidential basis prior to disclosure
by the Borrower or any of its Subsidiaries, except that such information may be disclosed (i) to
any Related Party of the Administrative Agent, the Issuing Bank or any such Lender including
without limitation accountants, legal counsel and other advisors, (ii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (iii) to the extent
requested by any regulatory agency or authority purporting to have jurisdiction over it (including
any self-regulatory authority such as the National Association of Insurance Commissioners), (iv) to
the extent that such information becomes publicly available other than as a result of a breach of
this Section 10.11, or which becomes available to the Administrative Agent, the Issuing
Bank, any Lender or any Related Party of any of the foregoing on a non-confidential basis from a
source other than the Borrower, (v) in connection with the exercise of any remedy hereunder or
under any other Loan Documents or any suit, action or proceeding relating to this Agreement or any
other Loan Documents or the enforcement of rights hereunder or thereunder, (vii) subject to an
agreement containing provisions substantially the same as those of this Section 10.11, to
(A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, or (B) any actual or prospective party (or its Related
Parties) to any swap or derivative or similar transaction under which payments are to be made by
reference to the Borrower and its obligations, this Agreement or payments hereunder, (viii) any
rating agency, (ix) the CUSIP Service Bureau or any similar organization, or (x) with the consent
of the Borrower. Any Person required to maintain the confidentiality of any information as
provided for in this Section 10.11 shall be considered to have complied with its obligation
to do so if such Person has exercised the same degree of care to maintain the confidentiality of
such information as such Person would accord its own confidential information.



     Section 10.12. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan, together with all fees,
charges and other amounts which may be treated as interest on such Loan under applicable law
(collectively, the “Charges”), shall exceed the maximum lawful rate of interest (the
“Maximum Rate”) which may be contracted for, charged, taken, received or reserved by a
Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to
the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable
in respect of such Loan but were not payable as a result of the operation of this Section
10.12 shall be
cumulated and the interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Rate to the date of repayment (to the extent
permitted by applicable law), shall have been received by such Lender.



     Section 10.13. Reserved.



     Section 10.14. Patriot Act. The Administrative Agent and each Lender
hereby notifies the Loan Parties that pursuant to the requirements of the USA PATRIOT Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to
obtain, verify and record information that identifies each Loan Party, which information includes
the name and address of such Loan Party and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify such Loan Party in accordance with the Patriot
Act.



     Section 10.15. No Advisory or Fiduciary Responsibility. In connection with
all aspects of each transaction contemplated hereby (including in connection with any amendment,
waiver or other modification hereof or of any other Loan Document), Borrower and each other Loan
Party acknowledges and agrees and acknowledges its Affiliates’ understanding that that: (i) (A)
the services regarding this Agreement provided by the Administrative Agent and/or Lenders are
arm’s-length commercial transactions between Borrower, each other Loan Party and their respective
Affiliates, on the one hand, and the Administrative Agent and the Lenders, on the other hand, (B)
each of Borrower and the other



79









 







Loan Parties have consulted their own legal, accounting, regulatory
and tax advisors to the extent they have deemed appropriate, and (C) Borrower and each other Loan
Party is capable of evaluating and understanding, and understands and accepts, the terms, risks and
conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each
of the Administrative Agent and Lenders is and has been acting solely as a principal and, except
as expressly agreed in writing by the relevant parties, has not been, is not, and will not be
acting as an advisor, agent or fiduciary, for Borrower, any other Loan Party, or any of their
respective Affiliates, or any other Person and (B) neither the Administrative Agent nor any Lender
has any obligation to Borrower, any other Loan Party or any of their Affiliates with respect to
the transaction contemplated hereby except those obligations expressly set forth herein and in the
other Loan Documents; and (iii) the Administrative Agent, the Lenders and their respective
Affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of Borrower, the other Loan Parties and their respective Affiliates, and each of the
Administrative Agent and Lenders has no obligation to disclose any of such interests to Borrower ,
any other Loan Party of any of their respective Affiliates. To the fullest extent permitted by
law, each of Borrower and the other Loan Parties hereby waive and release, any claims that it may
have against the Administrative Agent and each Lender with respect to any breach or alleged breach
of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.



     Section 10.16. Location of Closing. Each Lender acknowledges and agrees
that it has delivered, with the intent to be bound, its executed counterparts of this Agreement to
the Administrative Agent, c/o King & Spalding LLP, 1185 Avenue of the Americas, New York, New York
10036. Borrower acknowledges and agrees that it has delivered, with the intent to be bound, its
executed counterparts of this Agreement and each other Loan Document, together with all other
documents, instruments, opinions, certificates and other items required under Section 3.1,
to the Administrative Agent, c/o King & Spalding LLP, 1185 Avenue of the Americas, New York, New
York 10036. All parties agree that closing of the transactions contemplated by this Agreement has
occurred in New York.



(remainder of page left intentionally blank)






80









 








          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed in the
case of the Borrower by their respective authorized officers as of the day and year first above
written.




	 	 	 	 	 
	 	INTERNATIONAL SPEEDWAY CORPORATION

 	 
	 	By  	/s/ Daniel W. Houser
 	 
	 	 	Name:  	Daniel W. Houser 	 
	 	 	Title:  	Senior Vice President and Chief Financial Officer 	 
	 
	 	WELLS FARGO BANK, N.A.

as Administrative Agent, as Issuing Bank, as

Swingline Lender and as a Lender

 	 
	 	By  	/s/ Paul Richards
 	 
	 	 	Name:  	Paul Richards 	 
	 	 	Title:  	Senior Vice President 	 
	 



[SIGNATURE PAGE TO

REVOLVING CREDIT AGREEMENT]





 









 








	 	 	 	 	 
	 	SUNTRUST BANK

as Co-Syndication Agent and as a Lender

 	 
	 	By  	/s/ Tesha Winslow
 	 
	 	 	Name:  	Tesha Winslow 	 
	 	 	Title:  	Vice President 	 
	 



[SIGNATURE PAGE TO

REVOLVING CREDIT AGREEMENT]








 









 








	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.

as Co-Syndication Agent and as a Lender

 	 
	 	By  	/s/ John A. Horst
 	 
	 	 	Name:  	John A. Horst 	 
	 	 	Title:  	Credit Executive 	 
	 




 









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A.

as Co-Documentation Agent and as a Lender

 	 
	 	By  	/s/ Cameron Cardozo
 	 
	 	 	Name:  	Cameron Cardozo 	 
	 	 	Title:  	Senior Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	REGIONS BANK

as Co-Documentation Agent and as a Lender

 	 
	 	By  	/s/ Todd A. Banes
 	 
	 	 	Name:  	Todd A. Banes 	 
	 	 	Title:  	Senior Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	U.S. BANK N.A.

as Co-Documentation Agent and as a Lender

 	 
	 	By  	/s/ Steven L. Sawyer
 	 
	 	 	Name:  	Steven L. Sawyer 	 
	 	 	Title:  	Senior Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	COMPASS BANK

as a Lender

 	 
	 	By  	/s/ Peter Lewin
 	 
	 	 	Name:  	Peter Lewin 	 
	 	 	Title:  	Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	PNC BANK, N.A.

as a Lender

 	 
	 	By  	/s/ Jose Mazariegos
 	 
	 	 	Name:  	Jose Mazariegos 	 
	 	 	Title:  	Senior Vice President 	 
	 




 









 





	 	 	 	 	 
	 	TD BANK, N.A.

as a Lender

 	 
	 	By  	/s/ Edward Hopkinson
 	 
	 	 	Name:  	Edward Hopkinson 	 
	 	 	Title:  	Managing Director 	 
	 




 









 





	 	 	 	 	 
	 	BRANCH BANKING & TRUST COMPANY

as a Lender

 	 
	 	By  	/s/ C. William Buchholz
 	 
	 	 	Name:  	C. William Buchholz 	 
	 	 	Title:  	Senior Vice President