exv10w1






Exhibit 10.1




EXECUTION COPY




 

 






Published CUSIP Number: 11132JAB2




CREDIT AGREEMENT




Dated as of November 19, 2010



among



BROADCOM CORPORATION,

as the Borrower,



BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and L/C Issuer,



and



The Other Lenders Party Hereto



 





MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

and

J.P. MORGAN SECURITIES LLC,

as Joint Lead Arrangers and Joint Book Managers,



J.P. MORGAN SECURITIES LLC,

as Syndication Agent,



and



MORGAN STANLEY SENIOR FUNDING, INC.,

as Documentation Agent



 

 


















 









 














TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	 
	 	 	 	 	 	 
	1.01

	 	Defined Terms
	 	 	1	 
	1.02

	 	Other Interpretive Provisions
	 	 	21	 
	1.03

	 	Accounting Terms
	 	 	22	 
	1.04

	 	Rounding
	 	 	22	 
	1.05

	 	Times of Day
	 	 	23	 
	1.06

	 	Letter of Credit Amounts
	 	 	23	 
	 
	 	 	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS	 	 	23	 
	 
	 	 	 	 	 	 
	2.01

	 	Committed Loans
	 	 	23	 
	2.02

	 	Borrowings, Conversions and Continuations of Committed Loans
	 	 	23	 
	2.03

	 	Letters of Credit
	 	 	25	 
	2.04

	 	Swing Line Loans
	 	 	34	 
	2.05

	 	Prepayments
	 	 	36	 
	2.06

	 	Termination or Reduction of Commitments
	 	 	37	 
	2.07

	 	Repayment of Loans
	 	 	38	 
	2.08

	 	Interest
	 	 	38	 
	2.09

	 	Fees
	 	 	38	 
	2.10

	 	Computation of Interest and Fees
	 	 	39	 
	2.11

	 	Evidence of Debt
	 	 	39	 
	2.12

	 	Payments Generally; Administrative Agent’s Clawback
	 	 	40	 
	2.13

	 	Sharing of Payments by Lenders
	 	 	41	 
	2.14

	 	Increase in Commitments
	 	 	42	 
	2.15

	 	Cash Collateral
	 	 	43	 
	2.16

	 	Defaulting Lenders
	 	 	44	 
	 
	 	 	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	47	 
	 
	 	 	 	 	 	 
	3.01

	 	Taxes
	 	 	47	 
	3.02

	 	Illegality
	 	 	51	 
	3.03

	 	Inability to Determine Rates
	 	 	52	 
	3.04

	 	Increased Costs; Reserves on Eurodollar Rate Committed Loans
	 	 	52	 
	3.05

	 	Compensation for Losses
	 	 	54	 
	3.06

	 	Mitigation Obligations; Replacement of Lenders
	 	 	55	 
	3.07

	 	Survival
	 	 	55	 
	 
	 	 	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO EFFECTIVENESS AND CREDIT EXTENSIONS	 	 	55	 
	 
	 	 	 	 	 	 
	4.01

	 	Conditions Precedent to Effectiveness
	 	 	55	 
	4.02

	 	Conditions to all Credit Extensions
	 	 	56	 
	 
	 	 	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES	 	 	57	 
	 
	 	 	 	 	 	 
	5.01

	 	Existence, Qualification and Power
	 	 	57	 
	5.02

	 	Authorization; No Contravention
	 	 	57	 






i 









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	5.03

	 	Governmental Authorization; Other Consents
	 	 	58	 
	5.04

	 	Binding Effect
	 	 	58	 
	5.05

	 	Financial Statements; No Material Adverse Effect
	 	 	58	 
	5.06

	 	Litigation
	 	 	58	 
	5.07

	 	No Default
	 	 	59	 
	5.08

	 	Ownership of Property; Liens
	 	 	59	 
	5.09

	 	Environmental Compliance
	 	 	59	 
	5.10

	 	Insurance
	 	 	59	 
	5.11

	 	Taxes
	 	 	59	 
	5.12

	 	ERISA Compliance
	 	 	59	 
	5.13

	 	Subsidiaries; Equity Interests
	 	 	60	 
	5.14

	 	Margin Regulations; Investment Company Act
	 	 	60	 
	5.15

	 	Disclosure
	 	 	61	 
	5.16

	 	Compliance with Laws
	 	 	61	 
	 
	 	 	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS	 	 	61	 
	 
	 	 	 	 	 	 
	6.01

	 	Financial Statements
	 	 	61	 
	6.02

	 	Certificates; Other Information
	 	 	62	 
	6.03

	 	Notices
	 	 	64	 
	6.04

	 	Payment of Obligations
	 	 	64	 
	6.05

	 	Preservation of Existence, Etc
	 	 	65	 
	6.06

	 	Maintenance of Properties
	 	 	65	 
	6.07

	 	Maintenance of Insurance
	 	 	65	 
	6.08

	 	Compliance with Laws
	 	 	65	 
	6.09

	 	Books and Records
	 	 	65	 
	6.10

	 	Inspection Rights
	 	 	65	 
	6.11

	 	Use of Proceeds
	 	 	66	 
	6.12

	 	Compliance with Environmental Laws
	 	 	66	 
	6.13

	 	Further Assurances
	 	 	66	 
	6.14

	 	Procedures to Ensure Information Dissemination
	 	 	66	 
	 
	 	 	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS	 	 	66	 
	 
	 	 	 	 	 	 
	7.01

	 	Liens
	 	 	66	 
	7.02

	 	Investments
	 	 	68	 
	7.03

	 	Indebtedness
	 	 	69	 
	7.04

	 	Fundamental Changes
	 	 	70	 
	7.05

	 	Restricted Payments
	 	 	70	 
	7.06

	 	Change in Nature of Business
	 	 	71	 
	7.07

	 	Transactions with Affiliates
	 	 	71	 
	7.08

	 	No Further Negative Pledge
	 	 	72	 
	7.09

	 	Use of Proceeds
	 	 	72	 
	7.10

	 	Financial Covenants
	 	 	72	 
	 
	 	 	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES	 	 	72	 
	 
	 	 	 	 	 	 
	8.01

	 	Events of Default
	 	 	72	 
	8.02

	 	Remedies Upon Event of Default
	 	 	74	 
	8.03

	 	Application of Funds
	 	 	75	 






ii 









 






	 	 	 	 	 	 	 
	Section	 	 	 	Page
	 
	 	 	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT	 	 	76	 
	 
	 	 	 	 	 	 
	9.01

	 	Appointment and Authority
	 	 	76	 
	9.02

	 	Rights as a Lender
	 	 	76	 
	9.03

	 	Exculpatory Provisions
	 	 	76	 
	9.04

	 	Reliance by Administrative Agent
	 	 	77	 
	9.05

	 	Delegation of Duties
	 	 	77	 
	9.06

	 	Resignation of Administrative Agent
	 	 	78	 
	9.07

	 	Non-Reliance on Administrative Agent and Other Lenders
	 	 	79	 
	9.08

	 	No Other Duties, Etc
	 	 	79	 
	9.09

	 	Administrative Agent May File Proofs of Claim
	 	 	79	 
	 
	 	 	 	 	 	 
	ARTICLE X. MISCELLANEOUS	 	 	80	 
	 
	 	 	 	 	 	 
	10.01

	 	Amendments, Etc
	 	 	80	 
	10.02

	 	Notices; Effectiveness; Electronic Communication
	 	 	81	 
	10.03

	 	No Waiver; Cumulative Remedies; Enforcement
	 	 	83	 
	10.04

	 	Expenses; Indemnity; Damage Waiver
	 	 	84	 
	10.05

	 	Payments Set Aside
	 	 	86	 
	10.06

	 	Successors and Assigns
	 	 	86	 
	10.07

	 	Treatment of Certain Information; Confidentiality
	 	 	90	 
	10.08

	 	Right of Setoff
	 	 	91	 
	10.09

	 	Interest Rate Limitation
	 	 	92	 
	10.10

	 	Counterparts; Integration; Effectiveness
	 	 	92	 
	10.11

	 	Survival of Representations and Warranties
	 	 	92	 
	10.12

	 	Severability
	 	 	92	 
	10.13

	 	Replacement of Lenders
	 	 	93	 
	10.14

	 	Governing Law; Jurisdiction; Etc
	 	 	93	 
	10.15

	 	Waiver of Jury Trial
	 	 	94	 
	10.16

	 	California Judicial Reference
	 	 	94	 
	10.17

	 	No Advisory or Fiduciary Responsibility
	 	 	95	 
	10.18

	 	Electronic Execution of Assignments and Certain Other Documents
	 	 	95	 
	10.19

	 	USA PATRIOT Act
	 	 	95	 
	10.20

	 	Amendments Effecting a Maturity Extension
	 	 	96	 
	 
	 	 	 	 	 	 
	SIGNATURES	 	S-1







iii 









 






	 	 	 

	SCHEDULES
	 
	 	 
	2.01

	 	Commitments and Applicable Percentages
	5.06

	 	Litigation
	5.13

	 	Subsidiaries; Equity Interests
	7.01

	 	Existing Liens
	7.03

	 	Existing Indebtedness
	10.02

	 	Administrative Agent’s Office; Certain Addresses for Notices
	 
	 	 
	EXHIBITS

     Form of
	 
	 	 
	A

	 	Committed Loan Notice
	B

	 	Swing Line Loan Notice
	C

	 	Note
	D

	 	Compliance Certificate
	E-1

	 	Assignment and Assumption
	E-2

	 	Administrative Questionnaire
	F

	 	Opinion of Latham & Watkins LLP







iv 











 





CREDIT AGREEMENT




     This CREDIT AGREEMENT (this “Agreement”) is entered into as of November 19, 2010,
among BROADCOM CORPORATION, a California corporation (the “Borrower”), each lender from
time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.



     The Borrower has requested that the Lenders provide a revolving credit facility, and the
Lenders are willing to do so on the terms and conditions set forth herein.



     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree as follows:



ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings
set forth below:



     “Administrative Agent” means Bank of America in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other address or account as
the Administrative Agent may from time to time notify to the Borrower and the Lenders.



     “Administrative Questionnaire” means an Administrative Questionnaire in substantially
the form of Exhibit E-2 or any other form approved by the Administrative Agent.



     “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.



     “Aggregate Commitments” means the Commitments of all the Lenders.



     “Agreement” has the meaning specified in the introductory paragraph hereto.



     “Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time, subject to adjustment as provided in Section 2.16. If the
commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Commitments
have expired, then the Applicable Percentage of each Lender shall be determined based on the
Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent
assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of
such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable.



1









 





     “Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Debt Rating as set forth below:



Applicable Rate




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Senior Unsecured	 	 	 	 	 	Eurodollar Rate	 	 
	 	 	Debt Rating	 	 	 	 	 	Committed Loans and	 	 
	Pricing Level	 	(S&P/Moody’s)	 	Commitment Fee	 	Letters of Credit	 	Base Rate Loans
	1
	 	A+/A1 or better	 	 	0.100	%	 	 	0.875	%	 	 	0.000	%
	2
	 	 	A/A2	 	 	 	0.125	%	 	 	1.000	%	 	 	0.000	%
	3
	 	 	A-/A3	 	 	 	0.150	%	 	 	1.250	%	 	 	0.250	%
	4
	 	BBB+/Baa1	 	 	0.200	%	 	 	1.500	%	 	 	0.500	%
	5
	 	BBB/Baa2	 	 	0.250	%	 	 	1.750	%	 	 	0.750	%
	6
	 	BBB-/Baa3 or worse	 	 	0.350	%	 	 	2.250	%	 	 	1.250	%







     “Debt Rating” means, as of any date of determination, the rating as determined
by either S&P or Moody’s (collectively, the “Debt Ratings”) of the Borrower’s
non-credit-enhanced, senior unsecured long-term debt; provided that (a) if the
respective Debt Ratings issued by the foregoing rating agencies differ by one level, then
the Pricing Level for the higher of such Debt Ratings shall apply (with the Debt Rating for
Pricing Level 1 being the highest and the Debt Rating for Pricing Level 6 being the lowest);
(b) if there is a split in Debt Ratings of more than one level, then the Pricing Level that
is one level lower than the Pricing Level of the higher Debt Rating shall apply; (c) if the
Borrower has only one Debt Rating, the Pricing Level that is one level lower than that of
such Debt Rating shall apply; and (d) if the Borrower does not have any Debt Rating, Pricing
Level 6 shall apply.



     Initially, the Applicable Rate shall be determined based upon the Debt Rating for Pricing
Level 3. Thereafter, each change in the Applicable Rate resulting from a publicly announced change
in the Debt Rating shall be effective, in the case of an upgrade, during the period commencing on
the date of delivery by the Borrower to the Administrative Agent of notice thereof pursuant to
Section 6.03(d) and ending on the date immediately preceding the effective date of the next
such change and, in the case of a downgrade, during the period commencing on the date of the public
announcement thereof and ending on the date immediately preceding the effective date of the next
such change.



     “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



     “Arrangers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan
Securities LLC, in their capacity as joint lead arrangers and joint book managers.



2









 





     “Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section
10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit
E-1 or any other form approved by the Administrative Agent.



     “Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP; and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended December 31, 2009, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Borrower and its Subsidiaries, including the notes thereto.



     “Auto-Extension Letter of Credit” has the meaning specified in Section
2.03(b)(iii).



     “Auto-Reinstatement Letter of Credit” has the meaning specified in Section
2.03(b)(iv).



     “Availability Period” means the period from and including the Effective Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender
to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to
Section 8.02.



     “Bank of America” means Bank of America, N.A. and its successors.



     “Base Rate” means for any day a fluctuating rate per annum equal to the
highest of (a) the Federal Funds Rate plus 1/2 of 1%; (b) the rate of interest in effect
for such day as publicly announced from time to time by Bank of America as its “prime rate”; and
(c) the Eurodollar Rate plus 1.00%. The “prime rate” is a rate set by Bank of America
based upon various factors including Bank of America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of
America shall take effect at the opening of business on the day specified in the public
announcement of such change.



     “Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.



     “Base Rate Loan” means a Loan that bears interest based on the Base Rate.



     “Borrower” has the meaning specified in the introductory paragraph hereto.



3









 





     “Borrower Materials” has the meaning specified in Section 6.02.



     “Borrowing” means a Committed Borrowing or a Swing Line Borrowing, as the context may
require.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate
Committed Loan, means any such day that is also a London Banking Day.



     “Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the Administrative Agent, L/C Issuer or Swing Line Lender (as applicable)
and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or
obligations of Lenders to fund participations in respect of either thereof (as the context may
require), cash or deposit account balances or, if the L/C Issuer or Swing Line Lender benefitting
from such collateral shall agree in its sole discretion, other credit support, in each case
pursuant to documentation in form and substance reasonably satisfactory to (a) the Administrative
Agent and (b) the L/C Issuer or the Swing Line Lender (as applicable). “Cash Collateral” shall have
a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and
other credit support.



     “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty; (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority; or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.



     “Change of Control” means an event or series of events by which:




     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act, but excluding any employee benefit plan of such person or its subsidiaries,
and any person or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) other than any Significant Shareholder or any combination of
Significant Shareholders becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, of 40% or more of the total voting power of
the Borrower’s Voting Stock; provided that a person shall not be deemed beneficial owner of,
or to own beneficially, (i) any securities tendered pursuant to a tender or exchange offer
made by or on behalf of such person or any of such person’s affiliates until such tendered
securities are accepted for purchase or exchange thereunder, or (ii) any securities if such
beneficial ownership (A) arises solely as a result of a revocable proxy delivered in
response to a proxy or consent solicitation made pursuant to the applicable rules and
regulations under the Exchange Act, and (B) is not also then reportable on Schedule 13D (or
any successor schedule) under the Exchange Act; or




     (b) the first day on which a majority of the members of the board of directors or other
equivalent governing body of the Borrower cease to be composed of individuals



4









 







(i) who were
members of that board or equivalent governing body on November 1, 2010, (ii) whose election
or nomination to that board or equivalent governing body was
approved by individuals referred to in clause (i) above constituting at the
time of such election or nomination at least a majority of that board or equivalent
governing body or (iii) whose election or nomination to that board or other equivalent
governing body was approved by individuals referred to in clauses (i) and
(ii) above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body.



     Notwithstanding the foregoing, a transaction (a “Holdco Reorganization”) will not be
deemed to involve a Change of Control if (i) the Borrower becomes a direct or indirect wholly-owned
Subsidiary of a holding company (“Holdco”) and (ii)(A) the direct or indirect holders of
the Voting Stock of Holdco immediately following such Holdco Reorganization are substantially the
same as the holders of the Borrower’s Voting Stock immediately prior to such Holdco Reorganization
or (B) immediately following such Holdco Reorganization, no Person (other than a holding company
satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of a
majority of the Voting Stock of Holdco; provided that (w) Holdco shall have been duly
incorporated as a corporation organized under the laws of any state of the United States, with
Organization Documents reasonably satisfactory in form and substance to the Administrative Agent,
and, pursuant to such Organization Documents, Holdco shall have elected a board of directors and
Holdco shall have elected and qualified officers authorized to act for Holdco; (x) the
Administrative Agent shall have received evidence that, upon consummation of such Holdco
Reorganization, Holdco and its Subsidiaries, on a consolidated basis, shall have a corporate family
rating from each of Moody’s and S&P that is the same as or better than the ratings from each for
the Borrower and its Subsidiaries on a consolidated basis immediately prior to the consummation of
such transactions; (y) the Administrative Agent shall have received such other documents,
instruments and other information as the Administrative Agent may reasonably request; and (z) both
before and immediately after giving effect to such Holdco Reorganization, no Default or Event of
Default shall have occurred and be continuing. This paragraph shall supersede any provision in any
Loan Document to the contrary, including Article VII and Section 10.01.



     “Code” means the Internal Revenue Code of 1986.



     “Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to
the Borrower pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and
(c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with this Agreement.



     “Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of
the same Type and, in the case of Eurodollar Rate Committed Loans, having the same Interest Period
made by each of the Lenders pursuant to Section 2.01.



     “Committed Loan” has the meaning specified in Section 2.01.



5









 





     “Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion
of Committed Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Committed
Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the
form of Exhibit A.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
D.



     “Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, an amount equal to (a) Consolidated Net Income for such period; plus
(b) the following, without duplication, to the extent deducted in calculating such Consolidated Net
Income: (i) Consolidated Interest Charges for such period, (ii) income tax expenses for such
period, (iii) depreciation and amortization expense for such period and (iv) any extraordinary,
non-recurring or non-cash charges or expenses of the Borrower and its Subsidiaries reducing such
Consolidated Net Income or any future period, including, without limitation, restructuring,
litigation and settlement charges and impairment charges for goodwill and other intangible assets
or long-lived assets for such period (provided that the aggregate amount of any
extraordinary cash charges and non-recurring cash charges included in this clause (iv)
shall not exceed $100,000,000 for such period); minus (c) without duplication, to the
extent included in calculating such Consolidated Net Income, all extraordinary, non-recurring or
non-cash items of the Borrower and its Subsidiaries increasing Consolidated Net Income for such
period (provided that the aggregate amount of any extraordinary cash gains and
non-recurring cash gains included in this clause (c) shall not exceed $100,000,000 for such
period).



     “Consolidated Funded Indebtedness” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, without duplication, the sum of (a) the
outstanding principal amount of all obligations, whether current or long-term, for borrowed money
(including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan
agreements or other similar instruments; (b) all purchase money Indebtedness; (c) all direct
obligations arising under letters of credit (including standby and commercial), bankers’
acceptances, bank guaranties, surety bonds and similar instruments; (d) all obligations in respect
of the deferred purchase price of property or services (other than (i) contingent obligations in
respect of earn-outs incurred or otherwise entered into in connection with acquisitions and (ii)
trade accounts payable in the ordinary course of business, in each case not past due for more than
120 days); (e) Attributable Indebtedness in respect of capital leases and Synthetic Lease
Obligations; (f) without duplication, all Guarantees with respect to outstanding Indebtedness of
the types specified in clauses (a) through (e) above of Persons other than the
Borrower or any Subsidiary; and (g) all Indebtedness of the types referred to in clauses
(a) through (f) above of any partnership in which the Borrower or a Subsidiary is a
general partner, unless such Indebtedness is expressly made non-recourse to the Borrower or such
Subsidiary.



     “Consolidated Interest Charges” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, debt discount,
fees, charges and related expenses of the Borrower and its Subsidiaries in connection with borrowed
money (including capitalized interest) or in connection with the deferred purchase price of assets,
in each case paid in cash and treated as interest in accordance with GAAP; and (b) the portion of
rent expense of the Borrower and its Subsidiaries with respect to such period under capital leases
that is paid in cash and treated as interest in accordance with GAAP.



6









 





     “Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on such
date to (b) Consolidated Interest Charges for such period.



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period
of the four fiscal quarters most recently ended.



     “Consolidated Net Income” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, the net income of the Borrower and its Subsidiaries (excluding
extraordinary gains and extraordinary losses) for that period.



     “Consolidated Net Tangible Assets” means, as of any date of determination, the
aggregate amount of assets (less applicable reserves) after deducting therefrom: (a) all current
liabilities, except for current maturities of long-term debt and obligations under capital leases;
and (b) intangible assets, to the extent included in such aggregate amount of assets, as of the end
of the Borrower’s most recently completed accounting period for which financial statements are then
available and computed in accordance with GAAP.



     “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.



     “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.



     “Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension.



     “Debt Rating” has the meaning specified in the definition of “Applicable Rate.”



     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



     “Default” means any event or condition that constitutes an Event of Default or that,
with the giving of any notice, the passage of time, or both, would be an Event of Default.



     “Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if
any, applicable to Base Rate Loans plus (iii) 2% per annum (provided that with
respect to a Eurodollar Rate Committed Loan, the Default Rate shall be an interest rate equal to
the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2%
per annum); and



7









 




(b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate
plus 2% per annum.




     “Defaulting Lender” means, subject to Section 2.16(b), any Lender that, as
determined by the Administrative Agent, (a) has failed to perform any of its funding obligations
hereunder, including in respect of its Loans or participations in respect of Letters of Credit or
Swing Line Loans, within three Business Days of the date required to be funded by it hereunder; (b)
has notified the Borrower, the Administrative Agent or any Lender that it does not intend to comply
with its funding obligations or has made a public statement to that effect with respect to its
funding obligations hereunder or under other agreements in which it commits to extend credit; (c)
has failed, within three Business Days after request by the Administrative Agent, to confirm in a
manner satisfactory to the Administrative Agent that it will comply with its funding obligations;
or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a
proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator,
assignee for the benefit of creditors or similar Person charged with reorganization or liquidation
of its business or a custodian appointed for it, or (iii) taken any action in furtherance of, or
indicated its consent to, approval of or acquiescence in any such proceeding or appointment;
provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership
or acquisition of any equity interest in that Lender or any direct or indirect parent company
thereof by a Governmental Authority.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by any Person, including
any sale, assignment, transfer or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated therewith.



     “Dollar” and “$” mean lawful money of the United States.



     “Effective Date” has the meaning specified in Section 4.01.



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Sections 10.06(b)(iii) and (v) (subject to such consents, if any, as may be
required under Section 10.06(b)(iii)).



     “Environmental Laws” means any and all Federal, state, local, and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and discharges to waste or public systems.



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower or any of its Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the environment or (e) any



8









 




contract, agreement or other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.




     “Environmental Permit” means any permit, approval, identification number, license or
other authorization required under any Environmental Law.



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.



     “ERISA” means the Employee Retirement Income Security Act of 1974.



     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the
withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which such entity was a “substantial employer” as defined in Section
4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from
a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination
under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a
Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the
determination that any Pension Plan is considered an at-risk plan or a plan in endangered or
critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304
and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.



     “Eurodollar Rate” means:



     (a) for any Interest Period with respect to a Eurodollar Rate Committed Loan, the rate per
annum equal to (i) the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published
by Reuters (or such other commercially available source providing quotations of BBA LIBOR as may be
designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time,
two London Banking Days prior to the commencement of such Interest Period, for Dollar deposits (for
delivery on the first day of such Interest Period) with a term



9









 




equivalent to such Interest Period or, (ii) if such rate is not available at such time for any
reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits
in Dollars for delivery on the first day of such Interest Period in same day funds in the
approximate amount of the Eurodollar Rate Committed Loan being made, continued or converted and
with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch
to major banks in the London interbank eurodollar market at their request at approximately 11:00
a.m. (London time) two London Banking Days prior to the commencement of such Interest Period; and




     (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per
annum equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time determined two London
Banking Days prior to such date for Dollar deposits being delivered in the London interbank market
for a term of one month commencing that day or (ii) if such published rate is not available at such
time for any reason, the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the date of determination in same day funds in the
approximate amount of the Base Rate Loan being made or maintained and with a term equal to one
month would be offered by Bank of America’s London Branch to major banks in the London interbank
Eurodollar market at their request at the date and time of determination.



     “Eurodollar Rate Committed Loan” means a Committed Loan that bears interest at a rate
based on clause (a) of the definition of “Eurodollar Rate.”



     “Event of Default” has the meaning specified in Section 8.01.



     “Exchange Act” means the Security and Exchange Act of 1934.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) Taxes imposed on or measured by its overall net income or overall gross
income (however denominated), and franchise taxes or alternative minimum or other similar taxes
imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision
thereof) under the Laws of which such recipient is organized or in which its principal office is
located or in which it has or had a taxable presence (except to the extent that such presence is
solely a result of the execution, delivery, or enforcement, or otherwise with respect to, this
Agreement or Loan Document) or, in the case of any Lender, in which its applicable Lending Office
is located (or, in each case, any political subdivision thereof); (b) any branch profits taxes
imposed by the United States or any similar tax imposed by any other jurisdiction in which the
Borrower is located; (c) any backup withholding tax that is required by the Code to be withheld
from amounts payable to a Lender that has failed to comply with clause (A) of Section
3.01(e)(ii) and (d) in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Borrower under Section 10.13), any withholding tax that (i) is required to
be imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at the time such
Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) is attributable
to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply
with clause (B) of Section 3.01(e)(ii), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office
(or assignment), to receive



10









 




additional amounts from the Borrower with respect to such withholding tax pursuant to
Section 3.01(a)(ii) or (c).




     “FASB ASC” means the Accounting Standards Codification of the Financial Accounting
Standards Board.



     “Federal Funds Rate” means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided that (a) if such
day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined
by the Administrative Agent.



     “Fee Letter” means the letter agreement, dated as of October 29, 2010 among the
Borrower, the Administrative Agent and the Arrangers.



     “Foreign Lender” means any Lender that is not a United States person within the
meaning of Section 7701(a) of the Code.



     “FRB” means the Board of Governors of the Federal Reserve System of the United States.



     “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C
Obligations other than L/C Obligations as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the
terms hereof; and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable
Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance
with the terms hereof.



     “Fund” means 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 activities.



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as have been approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



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



11









 




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 (including any supra-national bodies such as the European Union or the European Central
Bank).




     “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part); or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.



     “Hazardous Materials” means 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.



     “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:




     (a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




     (b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and
similar instruments;




     (c) net obligations of such Person under any Swap Contract;



12









 






     (d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business and, in each
case, not past due for more than 120 days);




     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse, but limited, in the case of non-recourse
indebtedness, to the fair market value of the property;




     (f) capital leases and Synthetic Lease Obligations;




     (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest in such Person or any other Person,
valued, in the case of a redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends; and




     (h) all Guarantees of such Person in respect of any of the foregoing.



     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership in which such Person is a general partner, unless such Indebtedness is expressly made
non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date
shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any
capital lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date, but limited, in the case of
non-recourse Attributable Indebtedness, to the fair market value of the property underlying such
obligation.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 10.04(b).



     “Information” has the meaning specified in Section 10.07.



     “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date; provided
that if any Interest Period for a Eurodollar Rate Committed Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the
last Business Day of each March, June, September and December and the Maturity Date.



     “Interest Period” means as to each Eurodollar Rate Committed Loan, the period
commencing on the date such Eurodollar Rate Committed Loan is disbursed or (in the case of any
Eurodollar Rate Committed Loan) converted to or continued as a Eurodollar Rate Committed Loan and
ending on the date one, two, three or six months thereafter, as selected by the Borrower in its
Committed Loan Notice, or, in the case of Eurodollar Rate Committed Loans, such other period that,
subject to availability, is twelve months or less as requested by the Borrower and consented to by
all the Lenders; provided that:



13









 






     (a) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless, in the case of a Eurodollar
Rate Committed Loan, such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;




     (b) any Interest Period pertaining to a Eurodollar Rate Committed Loan that 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 the calendar month at the end of such Interest Period; and




     (c) no Interest Period shall extend beyond the Maturity Date.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person; (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other
Person; or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute a business unit. For purposes of covenant compliance,
the amount of any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.



     “IRS” means the United States Internal Revenue Service.



     “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such
later version thereof as may be in effect at the time of issuance).



     “Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit
Application, and any other document, agreement and instrument entered into by the L/C Issuer and
the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of
Credit.



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.



     “L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Applicable Percentage.



14









 





     “L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Committed
Borrowing.



     “L/C Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



     “L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.



     “Lender” has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.



     “Lending Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other office or offices as
a Lender may from time to time notify the Borrower and the Administrative Agent.



     “Letter of Credit” means any standby letter of credit issued hereunder.



     “Letter of Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.



     “Letter of Credit Expiration Date” means the day that is seven days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business
Day).



     “Letter of Credit Fee” has the meaning specified in Section 2.03(h).



     “Letter of Credit Sublimit” means an amount equal to $75,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



     “Loan” means an extension of credit by a Lender to the Borrower under Article
II in the form of a Committed Loan or a Swing Line Loan.



15









 





     “Loan Documents” means this Agreement, each Note, each Issuer Document, any agreement
creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.15
of this Agreement and the Fee Letter.



     “London Banking Day” means any day on which dealings in Dollar deposits are conducted
by and between banks in the London interbank eurodollar market.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, assets, properties, liabilities (actual or
contingent) or condition (financial or otherwise) of the Borrower or the Borrower and its
Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of the
Administrative Agent or the Lenders under any Loan Document, or of the ability of the Borrower to
perform its obligations under any Loan Document to which it is a party; or (c) a material adverse
effect upon the legality, validity, binding effect or enforceability against the Borrower of any
Loan Document to which it is a party.



     “Maturity Date” means November 19, 2014; provided that if such date is not a
Business Day, the Maturity Date shall be the next preceding Business Day.



     “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.



     “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



     “Multiple Employer Plan” means a Plan which has two or more contributing sponsors
(including the Borrower or any ERISA Affiliate) at least two of whom are not under common control,
as such a plan is described in Section 4064 of ERISA.



     “Non-Extension Notice Date” has the meaning specified in Section 2.03(b)(iii).



     “Non-Reinstatement Deadline” has the meaning specified in Section 2.03(b)(iv).



     “Note” means a promissory note made by the Borrower in favor of a Lender evidencing
Loans made by such Lender, substantially in the form of Exhibit C.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, the Borrower arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, in each case whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against the Borrower or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor
in such proceeding, regardless of whether such interest and fees are allowed claims in such
proceeding.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents



16









 




with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company,
the certificate or articles of formation or organization and operating agreement; and (c) with
respect to any partnership, joint venture, trust or other form of business entity, the partnership,
joint venture or other applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with its formation or
organization with the applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or organization of such
entity.




     “Other Permitted Liens” means, with respect to any Person, (a) Liens on the property
or assets of such Person existing at the time that such Person becomes a Subsidiary of the Borrower
(provided that such Liens are not incurred in anticipation of such Person’s becoming a
Subsidiary of the Borrower and do not extend to any property or assets other than those of such
Person); (b) Liens on the property or assets of such Person existing at the time of the acquisition
thereof by the Borrower or any of its Subsidiaries, or Liens to secure the payment of all or any
part of the purchase price thereof, or Liens to secure any Indebtedness incurred prior to, at the
time of, or within 180 days after, the latest of the acquisition thereof or, in the case of
property, the completion of construction, the completion of improvements or the commencement of
substantial commercial operation of such property for the purpose of financing all or any part of
the purchase price thereof, such construction or the making of such improvements; (c) Liens on the
property or assets of such Person existing at the time that such Person is merged into or
consolidated with the Borrower or any of its Subsidiaries or otherwise acquired by the Borrower or
any of its Subsidiaries or at the time of sale, lease or other disposition of all or substantially
all of the property or assets of such Person (provided that such Liens are not incurred in
anticipation of such merger or consolidation or sale, lease or other disposition and do not extend
to any property or assets other than those of the Person merged into or consolidated with the
Borrower or any of its Subsidiaries or such property or assets that are sold, leased or disposed);
(d) Liens in favor of any Governmental Authority to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any Indebtedness for the purpose of
financing all or any part of the purchase price or the cost of constructing or improving property
or assets subject to such Liens; (e) Liens in favor of the Borrower or any of its Subsidiaries; and
(f) Liens consisting of deposits of property or assets to secure (or in lieu of) safety, appeal or
customs bonds in proceedings to which the Borrower or any of its Subsidiaries is a party in the
ordinary course of business.



     “Other Taxes” means 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
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.



     “Outstanding Amount” means (a) with respect to Committed Loans and Swing Line Loans on
any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings
and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be,
occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such
L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date
and any other changes in the aggregate amount of the L/C Obligations as



17









 




of such date, including as a result of any reimbursements by the Borrower of Unreimbursed
Amounts.




     “Participant” has the meaning specified in Section 10.06(d).



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Act” means the Pension Protection Act of 2006.



     “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum
required contributions (including any installment payment thereof) to Pension Plans and set forth
in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412
of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter,
Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.



     “Pension Plan” means any employee pension benefit plan (including a Multiple Employer
Plan or a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA
Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards
under Section 412 of the Code.



     “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.



     “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA
(including a Pension Plan), maintained for employees of the Borrower or any ERISA Affiliate or any
such Plan to which the Borrower or any ERISA Affiliate is required to contribute on behalf of any
of its employees.



     “Platform” has the meaning specified in Section 6.02.



     “Public Filings” means any publicly filed information or reports filed by the Borrower
on or prior to the date of this Agreement pursuant to the Securities Act of 1933 or the Exchange
Act and the rules and regulations related thereto



     “Public Lender” has the meaning specified in Section 6.02.



     “Register” has the meaning specified in Section 10.06(c).



     “Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, trustees and advisors of such Person and of such
Person’s Affiliates.



     “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30 day notice period has been waived.



     “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Committed Loans, a Committed Loan Notice; (b) with respect to an L/C Credit



18









 




Extension, a Letter of Credit Application; and (c) with respect to a Swing Line Loan, a Swing
Line Loan Notice.




     “Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02, Lenders holding in the aggregate more than 50% of the Total Outstandings
(with the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total Outstandings
held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or principal accounting officer of the Borrower, and solely
for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the
secretary or any assistant secretary of the Borrower. Any document delivered hereunder that is
signed by a Responsible Officer of the Borrower shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the part of the Borrower
and such Responsible Officer shall be conclusively presumed to have acted on behalf of the
Borrower.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity Interest of the
Borrower or any Subsidiary, or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on
account of any return of capital to the Borrower’s stockholders, partners or members (or the
equivalent Person thereof).



     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successor thereto.



     “SEC” means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.



     “Senior Note Documents” means, collectively, (a) the Indenture, dated as of November
1, 2010, between the Borrower, as issuer, and Wilmington Trust FSB, as trustee; and (b) all other
agreements, instruments and other documents pursuant to which the Senior Notes have been or will be
issued or otherwise setting forth the terms of the Senior Notes.



     “Senior Notes” means, collectively, (a) the Borrower’s 1.500% Senior Notes due 2013
and (b) the Borrower’s 2.375% Senior Notes due 2015.



     “Significant Shareholder” means each of (a) Henry Samueli, Ph.D. and (b) Nicholas
Broadcom Trust dated February 7, 2007 and any trustees, settlors and beneficiaries of such trust.



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests



19









 




having ordinary voting power for the election of directors or other governing body (other than
securities or interests having such power only by reason of the happening of a contingency) are at
the time beneficially owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Borrower.




     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), 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.



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s); and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or
other readily available quotations provided by any recognized dealer in such Swap Contracts (which
may include a Lender or any Affiliate of a Lender).



     “Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section
2.04.



     “Swing Line Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.



     “Swing Line Loan” has the meaning specified in Section 2.04(a).



     “Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit
B.



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $25,000,000 and (b)
the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



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     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease; or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



     “Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other similar charges imposed by
any Governmental Authority, including any interest, additions to tax or penalties applicable
thereto.



     “Threshold Amount” means $100,000,000.



     “Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C
Obligations.



     “Type” means with respect to a Committed Loan, its character as a Base Rate Loan or a
Eurodollar Rate Committed Loan.



     “United States” and “U.S.” mean the United States of America.



     “Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).



     “Voting Stock” means, with respect to any Person as of any date, the Equity Interests
of such Person that is at the time entitled to vote generally in the election of the board of
directors of such Person.



     1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan
Document, unless otherwise specified herein or in such other Loan Document:



     (a) 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.”
Unless the context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organization Document) shall be construed as referring
to such agreement, instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements or modifications
set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (iii) the words “hereto,”
“herein,” “hereof” and “hereunder,” and words of similar import when used
in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to
any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall
include all statutory and regulatory provisions consolidating, amending, replacing or interpreting
such law and any reference to any law or regulation shall, unless otherwise specified,



21









 




refer to such law or regulation as amended, modified or supplemented from time to time, and
(vi) the words “asset” and “property” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.




     (b) In the computation of periods of time from a specified date to a later specified date, the
word “from” means “from and including;” the words “to” and “until”
each mean “to but excluding;” and the word “through” means “to and
including.”



     (c) Section headings herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Loan
Document.



     1.03 Accounting Terms. (a) Generally. All accounting terms not specifically or completely
defined herein shall be construed in conformity with, and all financial data (including financial
ratios and other financial calculations) required to be submitted pursuant to this Agreement shall
be prepared in conformity with GAAP, applied on a consistent basis, as in effect from time to time,
applied in a manner consistent with that used in preparing the Audited Financial Statements,
except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for
purposes of determining compliance with any covenant (including the computation of any financial
covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be
carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and
FASB ASC 470-20 on financial liabilities shall be disregarded.



     (b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or
the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance
with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative
Agent and the Lenders financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.



     (c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Borrower and its Subsidiaries or to the determination of
any amount for the Borrower and its Subsidiaries on a consolidated basis or any similar reference
shall, in each case, be deemed to include each variable interest entity that the Borrower is
required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a
Subsidiary as defined herein.



     1.04 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to
this Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of places by which such



22









 




ratio is expressed herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).




     1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be
references to Eastern time (daylight or standard, as applicable).



     1.06 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of
Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at
such time; provided that with respect to any Letter of Credit that, by its terms or the
terms of any Issuer Document related thereto, provides for one or more automatic increases in the
stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated
amount of such Letter of Credit after giving effect to all such increases, whether or not such
maximum stated amount is in effect at such time.



ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Committed Loans. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a “Committed Loan”) to the Borrower from
time to time, on any Business Day during the Availability Period, in an aggregate amount not to
exceed at any time outstanding the amount of such Lender’s Commitment; provided that after
giving effect to any Committed Borrowing, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender’s Commitment. Within the limits of each Lender’s Commitment, and
subject to the other terms and conditions hereof, the Borrower may borrow under this Section
2.01, prepay under Section 2.05, and reborrow under this Section 2.01.
Committed Loans may be Base Rate Loans or Eurodollar Rate Committed Loans, as further provided
herein.



     2.02 Borrowings, Conversions and Continuations of Committed Loans.



     (a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other,
and each continuation of Eurodollar Rate Committed Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice
must be received by the Administrative Agent not later than 1:00 p.m. (i) three Business Days prior
to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate
Committed Loans or of any conversion of Eurodollar Rate Committed Loans to Base Rate Committed
Loans, and (ii) on the requested date of any Borrowing of Base Rate Committed Loans;
provided that if the Borrower wishes to request Eurodollar Rate Committed Loans having an
Interest Period other than one, two, three or six months in duration as provided in the definition
of “Interest Period,” the applicable notice must be received by the Administrative Agent not later
than 1:00 p.m. four Business Days prior to the requested date of such Borrowing, conversion or
continuation, whereupon the Administrative Agent shall give prompt notice to the Lenders of such
request and determine whether the requested Interest Period is acceptable to all of them. Not
later than 1:00 p.m., three Business
Days before the requested date of such Borrowing, conversion or continuation, the



23









 




Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or not
the requested Interest Period has been consented to by all the Lenders. Each telephonic notice by
the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of
Eurodollar Rate Committed Loans shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c),
each Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a Committed Borrowing,
a conversion of Committed Loans from one Type to the other, or a continuation of Eurodollar Rate
Committed Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case
may be (which shall be a Business Day), (iii) the principal amount of Committed Loans to be
borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or to which
existing Committed Loans are to be converted, and (v) if applicable, the duration of the Interest
Period with respect thereto. If the Borrower fails to specify a Type of Committed Loan in a
Committed Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Committed Loans shall be made as, or converted to, Base Rate
Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of
the Interest Period then in effect with respect to the applicable Eurodollar Rate Committed Loans.
If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate
Committed Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will
be deemed to have specified an Interest Period of one month.




     (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage of the applicable Committed Loans,
and if no timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic conversion to Base
Rate Loans described in the preceding clause. In the case of a Committed Borrowing, each Lender
shall make the amount of its Committed Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent’s Office not later than 3:00 p.m. on the Business Day
specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions
set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension,
Section 4.01), the Administrative Agent shall make all funds so received available to the
Borrower in like funds as received by the Administrative Agent either by (i) crediting the account
of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer
of such funds, in each case in accordance with instructions provided to (and reasonably acceptable
to) the Administrative Agent by the Borrower; provided that if, on the date the Committed
Loan Notice with respect to such Borrowing is given by the Borrower, there are L/C Borrowings
outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in
full of any such L/C Borrowings, and second, shall be made available to the Borrower as
provided above.



     (c) Except as otherwise provided herein, a Eurodollar Rate Committed Loan may be continued or
converted only on the last day of an Interest Period for such Eurodollar Rate
Committed Loan. During the existence of an Event of Default, no Loans may be requested as,



24









 




converted to or continued as Eurodollar Rate Committed Loans without the consent of the Required
Lenders.




     (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Committed Loans upon
determination of such interest rate. At any time that Base Rate Loans are outstanding, the
Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America’s
prime rate used in determining the Base Rate promptly following the public announcement of such
change.



     (e) After giving effect to all Committed Borrowings, all conversions of Committed Loans from
one Type to the other, and all continuations of Committed Loans as the same Type, there shall not
be more than ten Interest Periods in effect with respect to Committed Loans.



     2.03 Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Effective Date until the Letter
of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its
Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in
accordance with clause (b) below, and (2) to honor drawings under the Letters of
Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for
the account of the Borrower or its Subsidiaries and any drawings thereunder;
provided that after giving effect to any L/C Credit Extension with respect to any
Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y)
the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower
for the issuance or amendment of a Letter of Credit shall be deemed to be a representation
by the Borrower that the L/C Credit Extension so requested complies with the conditions set
forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed.




     (ii) The L/C Issuer shall not issue any Letter of Credit, if:




     (A) subject to Section 2.03(b)(iii), the expiry date of the requested
Letter of Credit would occur more than twelve months after the date of issuance or
last extension, unless the Required Lenders have approved such expiry date; or



25









 






     (B) the expiry date of the requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the Lenders have approved such expiry
date.




     (iii) The L/C Issuer shall not be under any obligation to issue any Letter of Credit
if:




     (A) any order, judgment or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain the L/C Issuer from issuing the
Letter of Credit, or any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental Authority
with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or the Letter of Credit in
particular or shall impose upon the L/C Issuer with respect to the Letter of Credit
any restriction, reserve or capital requirement (for which the L/C Issuer is not
otherwise compensated hereunder) not in effect on the Effective Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Effective Date and which the L/C Issuer in good faith deems
material to it;




     (B) the issuance of the Letter of Credit would violate one or more policies of
the L/C Issuer applicable to letters of credit generally;




     (C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
the Letter of Credit is in an initial stated amount less than $500,000;




     (D) the Letter of Credit is to be denominated in a currency other than Dollars;
or




     (E) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has
entered into arrangements, including the delivery of Cash Collateral, satisfactory
to the L/C Issuer (in its sole discretion) with the Borrower or such Lender to
eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving
effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising
from either the Letter of Credit then proposed to be issued or that Letter of Credit
and all other L/C Obligations as to which the L/C Issuer has actual or potential
Fronting Exposure, as it may elect in its sole discretion.




     (iv) The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue the Letter of Credit in its amended form under the terms
hereof.




     (v) The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A)
the L/C Issuer would have no obligation at such time to issue the Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not
accept the proposed amendment to the Letter of Credit.




26











 






     (vi) The L/C Issuer shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer
shall have all of the benefits and immunities (A) provided to the Administrative Agent in
Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it and Issuer
Documents pertaining to such Letters of Credit as fully as if the term “Administrative
Agent” as used in Article IX included the L/C Issuer with respect to such acts or
omissions, and (B) as additionally provided herein with respect to the L/C Issuer.



     (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letter of
Credit; Auto-Reinstatement Letter of Credit.




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Responsible Officer of the Borrower. Such Letter of Credit Application must be received
by the L/C Issuer and the Administrative Agent not later than 1:00 p.m. at least two
Business Days (or such later date and time as the Administrative Agent and the L/C Issuer
may agree in a particular instance in their sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and
detail reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents
to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of
any certificate to be presented by such beneficiary in case of any drawing thereunder; (G)
the purpose and nature of the requested Letter of Credit; and (H) such other matters as the
L/C Issuer may reasonably require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall specify in form and
detail reasonably satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B)
the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of
the proposed amendment; and (D) such other matters as the L/C Issuer may reasonably require.
Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative Agent
such other documents and information pertaining to such requested Letter of Credit issuance
or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent
may reasonably require.




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the
L/C Issuer has received written notice from any Lender, the Administrative Agent or the
Borrower, at least one Business Day prior to the requested date of issuance or amendment of
the applicable Letter of Credit, that one or more applicable conditions contained in
Article IV shall not then be satisfied, then, subject to the terms and conditions
hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the
account of the Borrower (or the applicable Subsidiary) or enter into the



27









 







applicable amendment, as the case may be, in each case in accordance with the L/C
Issuer’s usual and customary business practices. Immediately upon the issuance of each
Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an
amount equal to the product of such Lender’s Applicable Percentage times the amount
of such Letter of Credit.




     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer will issue a Letter of Credit that has automatic extension provisions (each, an
“Auto-Extension Letter of Credit”); provided that any such Auto-Extension
Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in
each twelve-month period (commencing with the date of issuance of such Letter of Credit) by
giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension
Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of
Credit is issued. The Borrower shall not be required to make a specific request to the L/C
Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the
Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit
the extension of such Letter of Credit at any time to an expiry date not later than the
Letter of Credit Expiration Date; provided, however, that the L/C Issuer shall not permit
any such extension if (A) the L/C Issuer has determined that it would not be permitted, or
would have no obligation, at such time to issue such Letter of Credit in its revised form
(as extended) under the terms hereof (by reason of the provisions of clause (ii) or
(iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which
may be by telephone or in writing) on or before the day that is seven Business Days before
the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders
have elected not to permit such extension or (2) from the Administrative Agent, any Lender
or the Borrower that one or more of the applicable conditions specified in Section
4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit
such extension.




     (iv) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer will issue a Letter of Credit that permits the automatic reinstatement of all or
a portion of the stated amount thereof after any drawing thereunder (each, an
“Auto-Reinstatement Letter of Credit”). The Borrower shall not be required to make
a specific request to the L/C Issuer to permit such reinstatement. Once an
Auto-Reinstatement Letter of Credit has been issued, except as provided in the following
sentence, the Lenders shall be deemed to have authorized (but may not require) the L/C
Issuer to reinstate all or a portion of the stated amount thereof in accordance with the
provisions of such Letter of Credit. Notwithstanding the foregoing, if such
Auto-Reinstatement Letter of Credit permits the L/C Issuer to decline to reinstate all or
any portion of the stated amount thereof after a drawing thereunder by giving notice of such
non-reinstatement within a specified number of days after such drawing (the
“Non-Reinstatement Deadline”), the L/C Issuer shall not permit such reinstatement if it has
received a notice (which may be by telephone or in writing) on or before the day that is
seven Business Days before the Non-Reinstatement Deadline (A) from the Administrative Agent
that the Required Lenders have elected not to permit such reinstatement or (B) from the
Administrative Agent, any Lender or the Borrower that one or more of the applicable



28









 







conditions specified in Section 4.02 is not then satisfied (treating such
reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case,
directing the L/C Issuer not to permit such reinstatement.




     (v) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C
Issuer will also deliver to the Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. Not later than 2:00 p.m. on the date of any payment by the
L/C Issuer under a Letter of Credit, if the Borrower has been so notified at or before 1:00
p.m. on such date, otherwise not later than 2:00 p.m. on the next Business Day (each such
date, an “Honor Date”), the Borrower shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing. If the Borrower
fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly
notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the
“Unreimbursed Amount”), and the amount of such Lender’s Applicable Percentage
thereof. In such event, the Borrower shall be deemed to have requested a Committed
Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified in Section
2.02 for the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Commitments and the conditions set forth in Section
4.02 (other than the delivery of a Committed Loan Notice). Any notice given by the L/C
Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given
by telephone if immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding effect of such notice.




     (ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available (and the Administrative Agent may apply Cash Collateral provided for this
purpose) for the account of the L/C Issuer at the Administrative Agent’s Office in an amount
equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on
the Business Day specified in such notice by the Administrative Agent, whereupon, subject to
the provisions of Section 2.03(c)(iii), each Lender that so makes funds available
shall be deemed to have made a Base Rate Committed Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Committed Borrowing of Base Rate Loans because the conditions set forth in Section
4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have
incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that
is not so refinanced, which L/C Borrowing shall be due and payable on



29









 







demand (together with interest) and shall bear interest at the Default Rate. In such
event, each Lender’s payment to the Administrative Agent for the account of the L/C Issuer
pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in
satisfaction of its participation obligation under this Section 2.03.




     (iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be
solely for the account of the L/C Issuer.




     (v) Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse the
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Borrower, any Subsidiary or any other
Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the foregoing;
provided that each Lender’s obligation to make Committed Loans pursuant to this
Section 2.03(c) is subject to the conditions set forth in Section 4.02
(other than delivery by the Borrower of a Committed Loan Notice). No such making of an L/C
Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the
L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit,
together with interest as provided herein.




     (vi) If any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), then, without limiting the other provisions of this Agreement, the L/C
Issuer shall be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available to the L/C
Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by the L/C Issuer in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily charged by the
L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest
and fees as aforesaid), the amount so paid shall constitute such Lender’s Committed Loan
included in the relevant Committed Borrowing or L/C Advance in respect of the relevant L/C
Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under this clause
(vi) shall be conclusive absent manifest error.



     (d) Repayment of Participations.




     (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if the Administrative Agent receives for the



30









 







account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Applicable Percentage thereof in the same funds as those
received by the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.05 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal to the Federal
Funds Rate from time to time in effect. The obligations of the Lenders under this clause
shall survive the payment in full of the Obligations and the termination of this Agreement.



     (e) Obligations Absolute. The obligation of the Borrower to reimburse the L/C Issuer
for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:




     (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other Loan Document;




     (ii) the existence of any claim, counterclaim, setoff, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;




     (iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;




     (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or



31









 






     (v) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or any Subsidiary.



     The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s
instructions or other irregularity, the Borrower will immediately notify the L/C Issuer. The
Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.



     (f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document
or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided that this assumption is not intended to, and shall not, preclude
the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, the Administrative Agent,
any of their respective Related Parties nor any correspondent, participant or assignee of the L/C
Issuer shall be liable or responsible for any of the matters described in clauses (i)
through (v) of Section 2.03(e); provided that anything in such clauses to
the contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C
Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves
were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful
failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a
sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents
that appear on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.



     (g) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and the
Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of
Credit.



     (h) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the



32









 




“Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate
times the daily amount available to be drawn under such Letter of Credit; provided
that any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with
respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral
satisfactory to the L/C Issuer pursuant to this Section 2.03 shall be payable, to the
maximum extent permitted by applicable Law, to the other Lenders in accordance with the upward
adjustments in their respective Applicable Percentages allocable to such Letter of Credit pursuant
to Section 2.16(a)(iv), with the balance of such fee, if any, payable to the L/C Issuer for
its own account. For purposes of computing the daily amount available to be drawn under any Letter
of Credit, the amount of such Letter of Credit shall be determined in accordance with Section
1.06. Letter of Credit Fees shall be (i) due and payable on the first Business Day after the
end of each March, June, September and December, commencing with the first such date to occur after
the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable
Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall
be computed and multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained
herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of
Credit Fees shall accrue at the Default Rate.




     (i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to
each Letter of Credit, at the rate per annum specified in the fee letter dated as of October 29,
2010 between the Borrower and the Administrative Agent, computed on the daily amount available to
be drawn under such Letter of Credit on a quarterly basis in arrears Such fronting fee shall be
due and payable on the tenth Business Day after the end of each March, June, September and December
in respect of the most recently-ended quarterly period (or portion thereof, in the case of the
first payment), commencing with the first such date to occur after the issuance of such Letter of
Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.06. In addition, the
Borrower shall pay directly to the L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and charges, of the L/C
Issuer relating to letters of credit as from time to time in effect. Such customary fees and
standard costs and charges are due and payable on demand and are nonrefundable.



     (j) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.



     (k) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of a Subsidiary of the
Borrower, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all
drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit in support of obligations of a Subsidiary of the Borrower inures to the benefit
of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses
of its Subsidiaries.



33









 





     2.04 Swing Line Loans.



     (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender, in reliance upon the agreements of the other Lenders set forth in this Section
2.04, may in its sole discretion make loans (each such loan, a “Swing Line Loan”) to
the Borrower from time to time on any Business Day during the Availability Period in an aggregate
amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding
the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the
Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as Swing Line
Lender, may exceed the amount of such Lender’s Commitment; provided that after giving
effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender’s Commitment; and provided, further, that the Borrower
shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan.
Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may
borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this
Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making
of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an
amount equal to the product of such Lender’s Applicable Percentage times the amount of such
Swing Line Loan.



     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $1,000,000, and (ii) the requested borrowing date, which
shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the
Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing
Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing
Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first
proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Article IV is not then satisfied, then, subject to the terms and
conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the
Borrower at its office by crediting the account of the Borrower on the books of the Swing Line
Lender in immediately available funds.



34









 





     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole discretion may request, on behalf of
the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Lender make a Base Rate Committed Loan in an amount equal to such
Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be deemed to be a Committed
Loan Notice for purposes hereof) and in accordance with the requirements of Section
2.02, without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02. The Swing Line Lender
shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly
after delivering such notice to the Administrative Agent. Each Lender shall make an amount
equal to its Applicable Percentage of the amount specified in such Committed Loan Notice
available to the Administrative Agent in immediately available funds (and the Administrative
Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan)
for the account of the Swing Line Lender at the Administrative Agent’s Office not later than
1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to
Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to
have made a Base Rate Committed Loan to the Borrower in such amount. The Administrative
Agent shall remit the funds so received to the Swing Line Lender.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed
Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Committed
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request
by the Swing Line Lender that each of the Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed
payment in respect of such participation.




     (iii) If any Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum equal to the greater of
the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with
banking industry rules on interbank compensation, plus any administrative, processing or
similar fees customarily charged by the Swing Line Lender in connection with the foregoing.
If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid
shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing
or funded participation in the relevant Swing Line Loan, as the case may be. A certificate
of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.



35









 






     (iv) Each Lender’s obligation to make Committed Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against
the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided that each Lender’s
obligation to make Committed Loans pursuant to this Section 2.04(c) is subject to
the conditions set forth in Section 4.02. No such funding of risk participations
shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans,
together with interest as provided herein.



     (d) Repayment of Participations.




     (i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line
Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage thereof
in the same funds as those received by the Swing Line Lender.




     (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent
will make such demand upon the request of the Swing Line Lender. The obligations of the
Lenders under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.



     (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be
responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Lender
funds its Base Rate Committed Loan or risk participation pursuant to this Section 2.04 to
refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such
Applicable Percentage shall be solely for the account of the Swing Line Lender.



     (f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.



     2.05 Prepayments.



     (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay Committed Loans in whole or in part without premium or penalty;
provided that (i) such notice must be received by the Administrative Agent not later than
1:00 p.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate Committed
Loans and (B) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of
Eurodollar Rate Committed Loans shall be in a principal amount of $5,000,000 or



36









 




a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate
Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof or, in each case, if less, the entire principal amount thereof then outstanding.
Each such notice shall specify the date and amount of such prepayment and the Type(s) of Committed
Loans to be prepaid and, if Eurodollar Rate Committed Loans are to be prepaid, the Interest
Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt
of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment.
If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified therein. Any
prepayment of a Eurodollar Rate Committed Loan shall be accompanied by all accrued interest on the
amount prepaid, together with any additional amounts required pursuant to Section 3.05.
Subject to Section 2.16, each such prepayment shall be applied to the Committed Loans of
the Lenders in accordance with their respective Applicable Percentages.




     (b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by the Swing
Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal amount of $1,000,000. Each such
notice shall specify the date and amount of such prepayment. If such notice is given by the
Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein.



     (c) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments then
in effect, the Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess; provided that the Borrower shall
not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c)
unless after the prepayment in full of the Committed Loans and Swing Line Loans the Total
Outstandings exceed the Aggregate Commitments then in effect.



     2.06 Termination or Reduction of Commitments. The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce
the Aggregate Commitments; provided that (i) any such notice shall be received by the
Administrative Agent not later than 1:00 p.m. five Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not terminate or reduce
the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving
effect to any reduction of the Aggregate Commitments, the Letter of Credit Sublimit or the Swing
Line Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be automatically
reduced by the amount of such excess. The Administrative Agent will promptly notify the Lenders of
any such notice of termination or reduction of the Aggregate Commitments. Any reduction of the
Aggregate Commitments shall be applied to the Commitment of each Lender according to its Applicable
Percentage. All fees accrued until the effective date of any termination of the Aggregate
Commitments shall be paid on the effective date of such termination.



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     2.07 Repayment of Loans.



     (a) The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal
amount of Committed Loans outstanding on such date.



     (b) The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date ten
Business Days after such Loan is made and (ii) the Maturity Date.



     2.08 Interest.



     (a) Subject to the provisions of clause (b) below, (i) each Eurodollar Rate Committed
Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a
rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable
Rate; (ii) each Base Rate Committed Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base
Rate plus the Applicable Rate.



     (b) Notwithstanding the rates of interest specified in clause (a) above or elsewhere
in any Loan Document, effective immediately upon the occurrence of any Event of Default under
Section 8.01(a) and, in each case, for as long as such Event of Default shall be
continuing, the principal balance of all overdue Obligations (including any Obligation that bears
interest by reference to the rate applicable to any other Obligation) shall bear interest at a rate
per annum equal to the Default Rate, in the case of overdue principal, and, in the case of other
overdue amounts, to the extent permitted by Law, at a rate per annum equal to the Default Rate,
payable on demand or, in the absence of demand, on the date that would otherwise be applicable.



     (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein. Interest hereunder shall be
due and payable in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.



     2.09 Fees. In addition to certain fees described in clauses (h) and (i) of
Section 2.03:



     (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Lender, subject to Section 2.16, in accordance with its Applicable
Percentage, a commitment fee equal to the Applicable Rate times the actual daily amount by
which the Aggregate Commitments exceed the sum of (i) the Outstanding Amount of Committed Loans and
(ii) the Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section
2.16. The commitment fee shall accrue at all times during the Availability Period, including
at any time during which one or more of the conditions in Article IV is not met, and shall
be due and payable quarterly in arrears on the last Business Day of each March, June, September and
December, with payments commencing on March 31, 2011, and on the last day of the Availability
Period. The commitment fee shall be calculated quarterly in arrears, and if there is any change in
the Applicable Rate during any quarter, the actual daily amount shall be



38









 




computed and multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect.




     (b) Other Fees. (i) The Borrower shall pay to the Arrangers and the Administrative
Agent for their own respective accounts fees in the amounts and at the times specified in the Fee
Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever.




     (ii) The Borrower shall pay to the Lenders such fees as shall have been separately
agreed upon in writing in the amounts and at the times so specified. Such fees shall be
fully earned when paid and shall not be refundable for any reason whatsoever.



     2.10 Computation of Interest and Fees. All computations of interest for Base Rate Loans
(including Base Rate Loans determined by reference to the Eurodollar Rate) shall be made on the
basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year and actual days
elapsed (which results in more fees or interest, as applicable, being paid than if computed on the
basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is
made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid; provided that any Loan that is repaid on the same day on which it is made
shall, subject to Section 2.12(a), bear interest for one day. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.



     2.11 Evidence of Debt.



     (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the
Borrower and the interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender made through the Administrative Agent,
the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note,
which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may
attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.



     (b) In addition to the accounts and records referred to in clause (a), each Lender and
the Administrative Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing
Line Loans. In the event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of such matters,



39









 




the accounts and records of the Administrative Agent shall control in the absence of manifest
error.




     2.12 Payments Generally; Administrative Agent’s Clawback.



     (a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date
specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable
Percentage (or other applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender’s Lending Office. All payments received by the Administrative
Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower
shall come due on a day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing interest or fees, as the
case may be.



     (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Committed Borrowing of Eurodollar Rate Committed Loans (or, in the case of any Committed Borrowing
of Base Rate Loans, prior to 12:00 noon on the date of such Committed Borrowing) that such Lender
will not make available to the Administrative Agent such Lender’s share of such Committed
Borrowing, the Administrative Agent may assume that such Lender has made such share available on
such date in accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base
Rate Loans, that such Lender has made such share available in accordance with and at the time
required by Section 2.02) and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the
applicable Committed Borrowing available to the Administrative Agent, then the applicable Lender
and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in immediately available funds with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but excluding the date of
payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the
greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation, plus any administrative, processing or
similar fees customarily charged by the Administrative Agent in connection with the foregoing, and
(B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate
Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the
same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the
amount of such interest paid by the Borrower for such period. If such Lender pays its share of the
applicable Committed Borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender’s Committed Loan included in such Committed Borrowing. Any payment by the
Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall
have failed to make such payment to the Administrative Agent.



40









 






     (ii) Payments by Borrower; Presumptions by Administrative Agent. 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 L/C
Issuer 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 L/C Issuer, as the case
may be, the amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such Lender or the
L/C Issuer, in immediately available funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of payment 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.



     A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this clause (b) shall be conclusive, absent manifest error.



     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Credit Extension set forth in
Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make
payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender
to make any Committed Loan, to fund any such participation or to make any payment under Section
10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the failure of any other
Lender to so make its Committed Loan, to purchase its participation or to make its payment under
Section 10.04(c).



     (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.



     2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of
the Committed Loans made by it, or the participations in L/C Obligations or in Swing Line Loans
held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of
such Committed Loans or participations and accrued interest thereon greater than its pro rata share
thereof as provided herein, then the Lender receiving such greater



41









 




proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash
at face value) participations in the Committed Loans and subparticipations in L/C Obligations and
Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, 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 Committed Loans and other
amounts owing them; provided that:





     (i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and




     (ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by or on behalf of the Borrower pursuant to and in accordance with the express terms of
this Agreement (including the application of funds arising in connection with Section
2.14 or from the existence of a Defaulting Lender), (y) the application of Cash
Collateral provided for in Section 2.15, or (z) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Committed Loans
or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant,
other than an assignment to the Borrower or any Affiliate thereof (as to which the
provisions of this Section 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 setoff 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.



     2.14 Increase in Commitments.



     (a) Request for Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Borrower may from time to time,
request an increase in the Aggregate Commitments (which increase may take the form of new revolving
loan tranches) by an amount (for all such requests) not exceeding $100,000,000 in the aggregate;
provided that (i) any such request for an increase shall be in a minimum amount of
$10,000,000, and (ii) the Borrower may make a maximum of three such requests. At the time of
sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the
time period within which each Lender is requested to respond (which shall in no event be less than
ten Business Days from the date of delivery of such notice to the Lenders).



     (b) Lender Elections to Increase. Each Lender shall notify the Administrative Agent
within such time period whether or not it agrees to increase its Commitment and, if so, whether by
an amount equal to, greater than, or less than its Applicable Percentage of such requested
increase. Any Lender not responding within such time period shall be deemed to have declined to
increase its Commitment.



42









 





     (c) Notification by Administrative Agent; Additional Lenders. The Administrative
Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made
hereunder. To achieve the full amount of a requested increase and subject to the approval of the
Administrative Agent, the L/C Issuer and the Swing Line Lender (which approvals shall not be
unreasonably withheld or delayed), the Borrower may also invite additional Eligible Assignees to
become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.



     (d) Effective Date and Allocations. If the Aggregate Commitments are increased in
accordance with this Section, the Administrative Agent and the Borrower shall determine the
effective date (the “Increase Effective Date”) and the final allocation of such increase.
The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation
of such increase and the Increase Effective Date.



     (e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower
dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of the Borrower, certifying that, before and after giving effect to such
increase, (A) the representations and warranties contained in Article V and the other Loan
Documents are true and correct in all material respects on and as of the Increase Effective Date,
except that (i) to the extent such representations and warranties specifically refer to an earlier
date, they are true and correct in all material respects as of such earlier date, (ii) such
representations and warranties shall be true and correct in all respects to the extent that they
are qualified by a materiality standard and (iii) for purposes of this Section 2.14, the
representations and warranties contained in clauses (a) and (b) of Section
5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses
(a) and (b), respectively, of Section 6.01, and (B) no Default exists. The
Borrower shall prepay any Committed Loans outstanding on the Increase Effective Date (and pay any
additional amounts required pursuant to Section 3.05) to the extent necessary to keep the
outstanding Committed Loans ratable with any revised Applicable Percentages arising from any
nonratable increase in the Commitments under this Section.



     (f) Conflicting Provisions. This Section shall supersede any provisions in
Section 2.13 or 10.01 to the contrary.



     2.15 Cash Collateral.



     (a) Certain Credit Support Events. Upon the request of the Administrative Agent or
the L/C Issuer (i) if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of
Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall,
in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.
At any time that there shall exist a Defaulting Lender, immediately upon the request of the
Administrative Agent, the L/C Issuer or the Swing Line Lender, the Borrower shall deliver to the
Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after
giving effect to Section 2.16(a)(iv) and any Cash Collateral provided by such Defaulting
Lender).



43









 





     (b) Grant of Security Interest. All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America. The Borrower, and to the extent provided by any Lender, such Lender,
hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the
Administrative Agent, the L/C Issuer and the Lenders (including the Swing Line Lender), and agrees
to maintain, a first priority security interest in all such cash, deposit accounts and all balances
therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of
the foregoing, all as security for the obligations to which such Cash Collateral may be applied
pursuant to Section 2.15(c). If at any time the Administrative Agent determines that Cash
Collateral is subject to any right or claim of any Person other than the Administrative Agent as
herein provided, or that the total amount of such Cash Collateral is less than the applicable
Fronting Exposure and other obligations secured thereby, the Borrower or the relevant Defaulting
Lender will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative
Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.



     (c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section 2.15 or Sections
2.03, 2.04, 2.05, 2.16 or 8.02 in respect of Letters of Credit
or Swing Line Loans shall be held and applied to the satisfaction of the specific L/C Obligations,
Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral
provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for
which the Cash Collateral was so provided, prior to any other application of such property as may
be provided for herein.



     (d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations shall be released promptly following (i) the elimination of
the applicable Fronting Exposure or other obligations giving rise thereto (including by the
termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee
following compliance with Section 10.06(b)(vi))) or (ii) the Administrative Agent’s good
faith determination that there exists excess Cash Collateral; provided that (x) that Cash
Collateral furnished by or on behalf of the Borrower shall not be released during the continuance
of a Default or Event of Default (and following application as provided in this Section
2.15 may be otherwise applied in accordance with Section 8.03), and (y) the Person
providing Cash Collateral and the L/C Issuer or Swing Line Lender, as applicable, may agree that
Cash Collateral shall not be released but instead held to support future anticipated Fronting
Exposure or other obligations.



     2.16 Defaulting Lenders.



     (a) Adjustments. Notwithstanding anything to the contrary contained in this
Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no
longer a Defaulting Lender, to the extent permitted by applicable Law:




     (i) Waivers and Amendments. That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 10.01.



44









 






     (ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise,
and including any amounts made available to the Administrative Agent by that Defaulting
Lender pursuant to Section 10.08), shall be applied at such time or times as may be
determined by the Administrative Agent as follows: first, to the payment of any amounts
owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the
payment on a pro rata basis of any amounts owing by that Defaulting Lender to the L/C Issuer
or Swing Line Lender hereunder; third, if so determined by the Administrative Agent or
requested by the L/C Issuer or Swing Line Lender, to be held as Cash Collateral for future
funding obligations of that Defaulting Lender of any participation in any Swing Line Loan or
Letter of Credit; fourth, as the Borrower may request (so long as no Default or Event of
Default exists), to the funding of any Loan in respect of which that Defaulting Lender has
failed to fund its portion thereof as required by this Agreement, as determined by the
Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower,
to be held in a non-interest bearing deposit account and released in order to satisfy
obligations of that Defaulting Lender to fund Loans under this Agreement; sixth, to the
payment of any amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a result
of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer
or Swing Line Lender against that Defaulting Lender as a result of that Defaulting Lender’s
breach of its obligations under this Agreement; seventh, so long as no Default or Event of
Default exists, to the payment of any amounts owing to the Borrower as a result of any
judgment of a court of competent jurisdiction obtained by the Borrower against that
Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under
this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of
competent jurisdiction; provided that if (x) such payment is a payment of the
principal amount of any Loans or L/C Borrowings in respect of which that Defaulting Lender
has not fully funded its appropriate share and (y) such Loans or L/C Borrowings were made at
a time when the conditions set forth in Section 4.02 were satisfied or waived, such
payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all
non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any
Loans of, or L/C Borrowings owed to, that Defaulting Lender. Any payments, prepayments or
other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay
amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section
2.16(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each
Lender irrevocably consents hereto.




     (iii) Certain Fees. That Defaulting Lender (x) shall not be entitled to
receive any commitment fee pursuant to Section 2.09(a) for any period during which
that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such
fee that otherwise would have been required to have been paid to that Defaulting Lender) for
any period during which that Lender is a Defaulting Lender only to extent allocable to the
sum of (1) the Outstanding Amount of the Committed Loans funded by it and (2) its Applicable
Percentage of the stated amount of Letters of Credit and Swing Line Loans for which it has
provided Cash Collateral pursuant to Section 2.03, Section 2.04, Section
2.15, or Section 2.16(a)(ii), as applicable (and the Borrower shall (A) be
required to pay to each of the L/C Issuer and the Swing Line Lender, as applicable, the
amount of such



45









 







fee allocable to its Fronting Exposure arising from that Defaulting Lender and (B) not
be required to pay the remaining amount of such fee that otherwise would have been required
to have been paid to that Defaulting Lender) and (y) shall be limited in its right to
receive Letter of Credit Fees as provided in Section 2.03(h).




     (iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure.
During any period in which there is a Defaulting Lender, for purposes of computing the
amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit or Swing Line Loans pursuant to Sections 2.03
and 2.04, the “Applicable Percentage” of each non-Defaulting Lender shall be
computed without giving effect to the Commitment of that Defaulting Lender; provided
that (i) each such reallocation shall be given effect only if, at the date the applicable
Lender becomes a Defaulting Lender, no Default or Event of Default exists; and (ii) the
aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit and Swing Line Loans shall not exceed the positive
difference, if any, of (1) the Commitment of that non-Defaulting Lender minus (2)
the aggregate Outstanding Amount of the Committed Loans of that Lender.



     (b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swing Line
Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting Lender should
no longer be deemed to be a 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 (which may include arrangements with respect to any Cash Collateral), that Lender
will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or
take such other actions as the Administrative Agent may determine to be necessary to cause the
Committed Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to
be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without
giving effect to Section 2.16(a)(iv)), whereupon that Lender will cease to be a Defaulting
Lender; provided that no adjustments will be made retroactively with respect to fees
accrued or payments made by or on behalf of the Borrower while that 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 Lender will constitute a waiver or
release of any claim of any party hereunder arising from that Lender’s having been a Defaulting
Lender.



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ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



     (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. (i)
Any and all payments by or on account of any obligation of the Borrower hereunder or under any
other Loan Document shall, to the extent permitted by applicable Laws, be made free and clear of
and without reduction or withholding for any Taxes. If, however, applicable Laws require the
Borrower or the Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld or
deducted in accordance with such Laws as determined by the Borrower or the Administrative Agent, as
the case may be, upon the basis of the information and documentation to be delivered pursuant to
clause (e) below.




     (ii) If the Borrower or the Administrative Agent shall be required by the Code to
withhold or deduct any Taxes, including both United States Federal backup withholding and
withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or
make such deductions as are determined by the Administrative Agent to be required based upon
the information and documentation it has received pursuant to clause (e) below, (B)
the Administrative Agent shall timely pay the full amount withheld or deducted to the
relevant Governmental Authority in accordance with the Code, and (C) to the extent that the
withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum
payable by the Borrower shall be increased as necessary so that after any required
withholding or the making of all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or L/C Issuer,
as the case may be, receives an amount equal to the sum it would have received had no such
withholding or deduction been made.



     (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
clause (a) above, the Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable Laws.



     (c) Tax Indemnifications. (i) Without limiting the provisions of clause (a)
or (b) above and without duplication thereof, the Borrower shall, and does hereby,
indemnify the Administrative Agent, each Lender and the L/C Issuer, and shall make payment in
respect thereof within 30 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by the Administrative Agent, such
Lender or the L/C Issuer, as the case may be, 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;
provided that any such written demand shall set forth in reasonable detail the basis and
calculation of the amounts for which an indemnity is sought. The Borrower shall also, and does
hereby indemnify the Administrative Agent, and shall make payment in respect thereof within 15 days
after demand thereof, for any amount which a Lender or the L/C Issuer for any reason fails to pay
indefeasibly to the Administrative Agent as required by clause (ii) below. The applicable
Lender shall indemnify the Borrower, and make payment in respect thereof, within 10 days after
demand



47









 




therefor, for any amount which Borrower is required to pay to the Administrative Agent
pursuant to the immediately preceding sentence. A certificate as to the amount of any such payment
or liability delivered to the Borrower by a Lender or the L/C Issuer (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or
the L/C Issuer, shall be conclusive absent manifest error. In the event that the Administrative
Agent, a Lender or the L/C Issuer receives an Indemnification payment pursuant to this clause (c)
and the Borrower makes a written request to the Administrative Agent, a Lender or the L/C Issuer
for its cooperation, the Administrative Agent, relevant Lender or the L/C Issuer shall cooperate
with the Borrower in challenging such Indemnified Taxes or Other Taxes, provided that (i)
the Administrative Agent, Lender or the L/C Issuer reasonably determines in good faith that it will
not suffer any adverse effect as a result thereof, (ii) all costs of such challenge are for the
account of the Borrower, and (iii), the Borrower delivers to the Administrative Agent, Lender or
the L/C Issuer an opinion of counsel reasonably satisfactory to the Administrative Agent, Lender or
the L/C Issuer to the effect that there is substantial authority (within the meaning of Code
section 6662(d)(2)(B)(i)) to prevail on such refund claim.





     (ii) Without limiting the provisions of clause (a) or (b) above, each
Lender and the L/C Issuer shall, and does hereby, indemnify the Borrower and the
Administrative Agent, and shall make payment in respect thereof within 30 days after written
demand therefor, against any and all Taxes and any and all related losses, claims,
liabilities, penalties, interest and expenses (including the fees, charges and disbursements
of any counsel for the Borrower or the Administrative Agent) incurred by or asserted against
the Borrower or the Administrative Agent by any Governmental Authority as a result of the
failure by such Lender or the L/C Issuer, as the case may be, to deliver, or as a result of
the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered by
such Lender or the L/C Issuer, as the case may be, to the Borrower or the Administrative
Agent pursuant to clause (e) below. Each Lender and the L/C Issuer hereby
authorizes the Administrative Agent to set off and apply any and all amounts at any time
owing to such Lender or the L/C Issuer, as the case may be, under this Agreement or any
other Loan Document against any amount due to the Administrative Agent under this clause
(ii). The agreements in this clause (ii) shall survive the resignation and/or
replacement of the Administrative Agent, any assignment of rights by, or the replacement of,
a Lender or the L/C Issuer, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all other Obligations.



     (d) Evidence of Payments. Upon request by the Borrower or the Administrative Agent,
as the case may be, after any payment of Taxes by the Borrower or by the Administrative Agent to a
Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the
Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be,
the original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of any return required by Laws to report such payment or other evidence of such
payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.



     (e) Status of Lenders; Tax Documentation. (i) Each Lender and each L/C Issuer shall
deliver to the Borrower and to the Administrative Agent, at the time or times prescribed by
applicable Laws or when reasonably requested by the Borrower or the Administrative Agent,



48









 




such properly completed and executed documentation prescribed by applicable Laws or by the
taxing authorities of any jurisdiction and such other reasonably requested information as will
permit the Borrower or the Administrative Agent, as the case may be, to determine (A) whether or
not payments made hereunder or under any other Loan Document are subject to Taxes, (B) if
applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any
available exemption from, or reduction of, applicable Taxes in respect of all payments to be made
to such Lender by the Borrower pursuant to this Agreement or otherwise to establish such Lender’s
status for withholding tax purposes in the applicable jurisdiction.





     (ii) Without limiting the generality of the foregoing, if the Borrower is resident for
tax purposes in the United States,




     (A) any Lender or L/C Issuer that is a “United States person” within the
meaning of Section 7701(a)(30) of the Code shall deliver to the Borrower and the
Administrative Agent executed originals of Internal Revenue Service Form W-9 or such
other documentation or information prescribed by applicable Laws or reasonably
requested by the Borrower or the Administrative Agent as will enable the Borrower or
the Administrative Agent, as the case may be, to determine whether or not such
Lender or L/C Issuer is subject to backup withholding or information reporting
requirements; and




     (B) each Foreign Lender or L/C Issuer that is entitled under the Code or any
applicable treaty to an exemption from or reduction of withholding tax with respect
to payments hereunder or under any other Loan Document shall deliver to the Borrower
and the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender or L/C Issuer
becomes a Lender or L/C Issuer under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but only if
such Foreign Lender or L/C Issuer is legally entitled to do so), whichever of the
following is applicable:




(I) executed originals of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States
is a party,




(II) executed originals of Internal Revenue Service Form W-8ECI,




(III) executed originals of Internal Revenue Service Form W-8IMY and all
required supporting documentation,




(IV) in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under section 881(c) of the Code, (x) a certificate
to the effect that such Foreign Lender is not (A) a “bank” within the
meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder”
of the Borrower within the meaning of section 881(c)(3)(B) of the Code, or
(C) a “controlled foreign corporation” described in section



49









 







881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue
Service Form W-8BEN, or




(V) executed originals of any other form prescribed by applicable Laws as a
basis for claiming exemption from or a reduction in United States Federal
withholding tax together with such supplementary documentation as may be
prescribed by applicable Laws to permit the Borrower or the Administrative
Agent to determine the withholding or deduction required to be made.




     (iii) Each Lender or L/C Issuer shall promptly (A) notify the Borrower and the
Administrative Agent of any change in circumstances which would modify or render invalid any
claimed exemption or reduction, and (B) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be reasonably
necessary (including the re-designation of its Lending Office) to avoid any requirement of
applicable Laws of any jurisdiction that the Borrower or the Administrative Agent make any
withholding or deduction for taxes from amounts payable to such Lender.



     (f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund
of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as
the case may be. If the Administrative Agent, any Lender or the L/C Issuer determines, in its sole
discretion, that it has received a refund of any 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, 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 with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses incurred by the Administrative Agent, such Lender or the L/C Issuer, as the
case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that the Borrower, upon the request of the
Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such
Governmental Authority. This clause (f) shall not be construed to require the
Administrative Agent, any Lender or the L/C Issuer 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.



     (g) FATCA. In addition, each Lender and L/C Issuer, on or prior to the date on which
such Lender and such L/C Issuer becomes a Lender and an L/C Issuer, respectively, hereunder and
from time to time thereafter either upon the request of the Borrower or the Administrative Agent or
their respective agents or upon expiration or obsolescence of any previously delivered
documentation, shall furnish the Borrower and the Administrative Agent with any documentation that
is required under the Code or applicable Treasury regulations to enable the Borrower or the
Administrative Agent to determine their duties and liabilities with



50









 




respect to any Taxes they may be required to withhold in respect of Section 1471 or 1472 of
the Code; provided that the furnishing of such documentation would not result in a material
adverse consequence to such Lender. In the event that either (i) the documentation required to be
delivered pursuant to the immediately preceding sentence fails to establish a complete exemption
from withholding of amounts under Section 1471 and 1472 or (ii) no such required documentation is
delivered, the Borrower shall not be obligated to pay any additional amounts to any Lender or L/C
Issuer pursuant to clause (a)(ii)(C), or to indemnify any Lender or L/C Issuer or pursuant
to clause (c) above, in respect of any such withholding imposed under Sections 1471 or
1472.




     3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar
Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental
Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or
to take deposits of, Dollars in the London interbank eurodollar market, then, on notice thereof by
such Lender to the Borrower through the Administrative Agent, (a) any obligation of such Lender to
make or continue Eurodollar Rate Committed Loans or to convert Base Rate Committed Loans to
Eurodollar Rate Committed Loans shall be suspended, and (b) if such notice asserts the illegality
of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by
reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate
Loans of such Lender shall, if necessary to avoid such illegality, be determined by the
Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each
case until such Lender notifies the Administrative Agent and the Borrower that the circumstances
giving rise to such determination no longer exist; provided that before making such
determination and issuing such notice, each Lender agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a different Lending
Office if the making of such a designation would allow such Lender or its Lending Office to
continue to perform its obligations to make Eurodollar Rate Committed Loans or to continue to fund
or maintain Eurodollar Rate Committed Loans and would not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender. Upon receipt of such notice, (x) the Borrower shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all Eurodollar Rate Committed Loans of such Lender to Base Rate Loans (the interest rate on
which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by
the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate),
either on the last day of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurodollar Rate Committed Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Committed Loans and (y) if such notice asserts
the illegality of such Lender determining or charging interest rates based upon the Eurodollar
Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate
applicable to such Lender without reference to the Eurodollar Rate component thereof until the
Administrative Agent is advised in writing by such Lender that it is no longer illegal for such
Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or
converted.



51









 





     3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason in
connection with any request for a Eurodollar Rate Committed Loan or a conversion to or continuation
thereof that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar
market for the applicable amount and Interest Period of such Eurodollar Rate Committed Loan, (b)
adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested
Interest Period with respect to a proposed Eurodollar Rate Committed Loan or in connection with an
existing or proposed Base Rate Loan, or (c) the Eurodollar Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Committed Loan does not adequately and fairly reflect
the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the
Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain
Eurodollar Rate Committed Loans shall be suspended, and (y) in the event of a determination
described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate,
the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended,
in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurodollar Rate Committed Loans or, failing that,
will be deemed to have converted such request into a request for a Committed Borrowing of Base Rate
Loans in the amount specified therein.



     3.04 Increased Costs; Reserves on Eurodollar Rate Committed Loans.



     (a) Increased Costs Generally. If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
contemplated by Section 3.04(e)) or the L/C Issuer; or




     (ii) impose on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Rate Committed Loans made
by such Lender or any Letter of Credit or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Committed Loan (or of maintaining its obligation to make any such
Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or
maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue
any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or
the L/C Issuer hereunder (whether of principal, interest or any other amount) then, within five
days after written request of such Lender or the L/C Issuer, the Borrower will pay to such Lender
or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such
Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction
suffered; provided, however, that the Borrower shall not be liable under this
Section 3.04(a) for the payment of any such amounts incurred or accrued more than 110 days
prior to the date on which notice of the event or occurrence giving rise to the obligation to make
such payment is given to the Borrower hereunder; provided, further, that (1) if the
Borrower objects in good faith to any payment demanded under this Section 3.04(a) on or
before the date such payment is due,






52









 







then the Borrower and the Lender or the L/C Issuer demanding such payment shall enter into
discussions to review the amount due and the Borrower’s obligation to pay such amount to such
Lender or the L/C Issuer, as the case may be, shall be deferred for 30 days after the original
request for payment and (2) if the Borrower and such Lender or the L/C Issuer, as the case may be,
do not otherwise reach agreement on the amount due during such 30 day period, the Borrower shall
pay to such Lender or the L/C Issuer, as the case may be, at the end of such 30 day period the
amount requested by such Lender or the L/C Issuer to be due. If any Lender shall request any
payment from the Borrower under this Section 3.04(a) in respect of any increased costs,
such Lender agrees, upon request by the Borrower, to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different Lending Office if
the making of such a designation would avoid or reduce any such increased costs and would not, in
the judgment of such Lender, be otherwise disadvantageous to such Lender. Any increase in the cost
to Lenders relating to any Taxes shall be excluded from this Section 3.04, and shall solely
be governed by Section 3.01 hereof.




     (b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change
in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such
Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on
the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below
that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C
Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with
respect to capital adequacy), then from time to time the Borrower will pay to such Lender or the
L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or
the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction
suffered; provided that the Borrower shall not be liable under this Section 3.04(b)
for the payment of any such amounts incurred or accrued more than 110 days prior to the date on
which notice of the event or occurrence giving rise to the obligation to make such payment is given
to the Borrower hereunder; and provided, further, that (A) if the Borrower objects
in good faith to any payment demanded under this Section 3.04(b) on or before the date that
such payment is due, then the Borrower and the Lender or the L/C Issuer demanding such payment
shall enter into discussions to review the amount due and the Borrower’s obligation to pay such
amount to such Lender or the L/C Issuer, as the case may be, shall be deferred for 30 days after
the original request for payment and (B) if the Borrower and such Lender or the L/C Issuer, as the
case may be, do not otherwise reach agreement on the amount due during such 30 day period, the
Borrower shall pay to such Lender or the L/C Issuer, as the case may be, at the end of such 30 day
period the amount requested by such Lender or the L/C Issuer to be due.



     (c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its
holding company, as the case may be, as specified in clause (a) or (b) of this
Section and delivered to the Borrower shall be conclusive absent manifest error. The Borrower
shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.



53









 





     (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than nine months prior to the date that such Lender or the L/C Issuer, 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 the L/C Issuer’s intention to claim compensation therefor (except that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect thereof).



     (e) Reserves on Eurodollar Rate Committed Loans. The Borrower shall pay to each
Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities
or assets consisting of or including Eurocurrency funds or deposits (currently known as
“Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurodollar
Rate Committed Loan equal to the actual costs of such reserves allocated to such Loan by such
Lender (as determined by such Lender in good faith, which determination shall be conclusive), which
shall be due and payable on each date on which interest is payable on such Loan; provided
that the Borrower shall have received at least 10 days’ prior notice (with a copy to the
Administrative Agent) of such additional interest from such Lender. If a Lender fails to give
notice 10 days prior to the relevant Interest Payment Date, such additional interest shall be due
and payable 10 days from receipt of such notice.



     3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative
Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such
Lender harmless from any loss, cost or expense incurred by it as a result of:



     (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate
Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise);



     (b) any failure by the Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by the Borrower; or



     (c) any assignment of a Eurodollar Rate Committed Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section
10.13;


including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.



For purposes of calculating amounts payable by the Borrower to the Lenders under this Section
3.05, each Lender shall be deemed to have funded each Eurodollar Rate Committed Loan made by it
at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the






54









 







London interbank eurodollar market for a comparable amount and for a comparable period, whether or
not such Eurodollar Rate Committed Loan was in fact so funded.




     3.06 Mitigation Obligations; Replacement of Lenders.



     (a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Borrower is required to pay any additional amount to any Lender,
the L/C Issuer, or any Governmental Authority for the account of any Lender or the L/C Issuer
pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02,
then such Lender or the L/C Issuer shall, as applicable, 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 judgment of
such Lender or the L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or
eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each
case, would not subject such Lender or the L/C Issuer, as the case may be, to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the case
may be. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender
or the L/C Issuer in connection with any such designation or assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, 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 3.01, the Borrower
may replace such Lender in accordance with Section 10.13.



     3.07 Survival. All of the Borrower’s obligations under this Article III shall survive
termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and
resignation of the Administrative Agent.



ARTICLE IV. CONDITIONS PRECEDENT TO EFFECTIVENESS AND CREDIT EXTENSIONS




     4.01 Conditions Precedent to Effectiveness. This Agreement shall become effective on and as
of the first date (the “Effective Date”) on which the following conditions precedent have
been satisfied or waived in accordance with Section 10.01:



     (a) The Administrative Agent’s receipt of the following, each of which shall be originals or
telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the Borrower, each dated the Effective Date (or, in the case of certificates
of governmental officials, a recent date before the Effective Date) and each in form and substance
reasonably satisfactory to the Arrangers, the Administrative Agent and each of the Lenders:




     (i) executed counterparts of this Agreement, sufficient in number for distribution to
the Administrative Agent, each Lender and the Borrower;




     (ii) a Note executed by the Borrower in favor of each Lender requesting a Note;



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     (iii) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of the Borrower as the Administrative Agent may
reasonably require evidencing the identity, authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in connection with this Agreement
and the other Loan Documents to which the Borrower is a party;




     (iv) a certificate as to the good standing of the Borrower as of a recent date from the
Secretary of State of its jurisdiction of organization;




     (v) a favorable opinion of Latham & Watkins LLP, counsel to the Borrower, addressed to
the Administrative Agent and each Lender, substantially in the form set forth in Exhibit
F; and




     (vi) a certificate signed by a Responsible Officer of the Borrower certifying (A) that
the conditions specified in Sections 4.02(a) and (b) have been satisfied;
(B) except as set forth in the Public Filings, that there has been no event or circumstance
since June 30, 2010, that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect; and (C) that there are no
actions, suits, investigations or proceedings pending or, to the knowledge of the Borrower,
threatened in any court or before any arbitrator or Governmental Authority by or against the
Borrower or any of its Subsidiaries that could reasonably be expected to have a Material
Adverse Effect.



     (b) Any fees required to be paid on or before the Effective Date shall have been paid.



     (c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges
and disbursements of counsel to the Administrative Agent required to be paid under Section
10.04(a) (directly to such counsel if requested by the Administrative Agent) to the extent
invoiced prior to or on the Effective Date, plus such additional amounts of such fees,
charges and disbursements as shall constitute its reasonable estimate of such fees, charges and
disbursements incurred or to be incurred by it through the closing proceedings; provided
that such estimate shall not thereafter preclude a final settling of accounts between the Borrower
and the Administrative Agent.



     Without limiting the generality of the provisions of the last paragraph of Section
9.03, for purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this 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 Effective Date specifying
its objection thereto.



     4.02 Conditions to all Credit Extensions. The obligation of each Lender to honor any Request
for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed
Loans to the other Type, or a continuation of Eurodollar Rate Committed Loans) is subject to the
following conditions precedent:



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     (a) The representations and warranties of the Borrower contained in Article V (other
than such representations and warranties contained in Sections 5.05(c) and 5.06) or
any other Loan Document or in any document furnished at any time under or in connection herewith or
therewith, shall be true and correct in all material respects on and as of the date of such Credit
Extension, except that (i) to the extent such representations and warranties specifically refer to
an earlier date, they shall be true and correct in all material respects as of such earlier date,
(ii) such representations and warranties shall be true and correct in all respects to the extent
that they are qualified by a materiality standard and (iii) for purposes of this Section
4.02, the representations and warranties contained in clauses (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01.



     (b) No Default or Event of Default shall have occurred and be continuing or would result from
such proposed Credit Extension or from the application of the proceeds thereof.



     (c) The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall
have received a Request for Credit Extension in accordance with the requirements hereof.



     Each Request for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Committed Loans to the other Type or a continuation of Eurodollar Rate Committed
Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the
conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of
the date of the applicable Credit Extension.



ARTICLE V. REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Administrative Agent and the Lenders that:



     5.01 Existence, Qualification and Power. The Borrower (a) is duly organized or formed,
validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and
carry on its business and (ii) execute, deliver and perform its obligations under the Loan
Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in
good standing under the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or license, except, in each
case referred to in clause (b)(i) or (c), to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect.



     5.02 Authorization; No Contravention. The execution, delivery and performance by the Borrower
of each Loan Document to which it is party, have been duly authorized by all necessary corporate or
other organizational action, and do not and will not (a) contravene the terms of any of its
Organization Documents; (b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation
to which it is a party or affecting it or the properties of the Borrower or any of its Subsidiaries
or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award
to which the Borrower or its property is subject; or (c) violate



57









 




any Law, except, in each case referred to in clause (b) or (c), as could not
reasonably be expected to have a Material Adverse Effect.




     5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or performance by,
or enforcement against, the Borrower of this Agreement or any other Loan Document other than (a)
any such approval, consent, exemption, authorization, action, notice or filings as has been
obtained, taken or made on or prior to the Effective Date and (b) filings with the SEC to the
extent required by the Exchange Act.



     5.04 Binding Effect. This Agreement has been, and each other Loan Document to which it is
party, when delivered hereunder, will have been, duly executed and delivered by the Borrower. This
Agreement constitutes, and each other such Loan Document when so delivered will constitute, a
legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance
with its terms, except as may be limited by applicable Debtor Relief Laws and general principles of
equity, regardless of whether considered in a proceeding in equity or at law.



     5.05 Financial Statements; No Material Adverse Effect.



     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; and
(ii) fairly present in all material respects the financial condition of the Borrower and its
Subsidiaries as of the date thereof and their results of operations for the period covered thereby
in accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein.



     (b) The unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated
September 30, 2010, and the related consolidated statements of income or operations, shareholders’
equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present in all material respects the financial condition of the
Borrower and its Subsidiaries as of the date thereof and their results of operations for the period
covered thereby, subject, in the case of clauses (i) and (ii), to the absence of
footnotes and to normal year-end audit adjustments.



     (c) Except as set forth in the Public Filings, since June 30, 2010, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.



     5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of the Borrower after reasonable inquiry, threatened, at law, in equity, in
arbitration or before any Governmental Authority, by or against the Borrower or any of its
Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain
to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or
(b) except as specifically disclosed in Schedule 5.06, either individually or in the
aggregate, if



58









 




determined adversely, could reasonably be expected to have a Material Adverse Effect, and
there has been no adverse change in the status, or financial effect on the Borrower or any
Subsidiary thereof, of the matters described on Schedule 5.06.




     5.07 No Default. Neither the Borrower nor any Subsidiary thereof is in default under or with
respect to any Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has occurred and is
continuing or would result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.



     5.08 Ownership of Property; Liens. Each of the Borrower and each Subsidiary has good record
and marketable title in fee simple to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
property of the Borrower and its Subsidiaries is subject to no Liens, other than Liens permitted by
Section 7.01.



     5.09 Environmental Compliance. The effect of existing Environmental Laws and claims alleging
potential liability or responsibility for violation of any Environmental Law on their respective
businesses, operations and properties of the Borrower and its Subsidiaries could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.



     5.10 Insurance. The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts
(after giving effect to any self-insurance compatible with the following standards), with such
deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Borrower or the applicable
Subsidiary operates.



     5.11 Taxes. The Borrower and its Subsidiaries have filed all Federal, and material state and
other tax returns and reports required to be filed, and have paid all Federal, and material state
and other taxes, assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax assessment against
the Borrower or any Subsidiary that would, if made, have a Material Adverse Effect. Neither the
Borrower nor any Subsidiary thereof is party to any tax sharing agreement.



     5.12 ERISA Compliance.



     (a) Each Plan is in compliance with the applicable provisions of ERISA, the Code and other
Federal or state laws, except where noncompliance could not reasonably be expected to have a
Material Adverse Effect. Each Pension Plan that is intended to be a qualified plan under Section
401(a) of the Code has received a favorable determination letter from the Internal Revenue Service
to the effect that the form of such Plan is qualified under Section 401(a) of the Code and the
trust related thereto has been determined by the Internal Revenue Service to be exempt from federal
income tax under Section 501(a) of the Code, or an application for such a



59









 




letter is currently being processed by the Internal Revenue Service. To the knowledge of the
Borrower, nothing has occurred that would prevent or cause the loss of such tax-qualified status.




     (b) There are no pending or, to the knowledge of the Borrower, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably
be expected to have a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could
reasonably be expected to result in a Material Adverse Effect.



     (c) (i) No ERISA Event has occurred that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect, and neither the Borrower nor any ERISA
Affiliate is aware of any fact, event or circumstance that could reasonably be expected to
constitute or result in an ERISA Event with respect to any Pension Plan; (ii) the Borrower and each
ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of
each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules
has been applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan,
the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or
higher and neither the Borrower nor any ERISA Affiliate knows of any facts or circumstances that
could reasonably be expected to cause the funding target attainment percentage for any such plan to
drop below 60% as of the most recent valuation date; (iv) neither the Borrower nor any ERISA
Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there
are no premium payments which have become due that are unpaid; (v) neither the Borrower nor any
ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section
4212(c) of ERISA; and (vi) no Pension Plan has been terminated by the plan administrator thereof
nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be
expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any
Pension Plan.



     (d) Neither the Borrower or any ERISA Affiliate has any obligation to contribute to, or
liability under, any active or terminated Pension Plan.



     5.13 Subsidiaries; Equity Interests. As of the Effective Date, the Borrower has no
Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13,
and, as of the Effective Date, all of the outstanding Equity Interests in such Subsidiaries have
been validly issued, are fully paid and nonassessable and are owned by the Borrower in the amounts
specified on Part (a) of Schedule 5.13 free and clear of all Liens. As of the
Effective Date, the Borrower has no equity investments in any other corporation or entity other
than those specifically disclosed in Part (b) of Schedule 5.13.



     5.14 Margin Regulations; Investment Company Act.



     (a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock.



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     (b) Neither the Borrower nor any Subsidiary is or is required to be registered as an
“investment company” under the Investment Company Act of 1940.



     5.15 Disclosure. The Borrower has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries
is subject, and all other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. No written report, financial
statement, certificate or other written information, and no other information delivered at any
formal due diligence meeting with the Administrative Agent or the Lenders, furnished by or on
behalf of the Borrower to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or
under any other Loan Document (in each case, other than projected financial information,
information of a general economic nature, industry information and forward looking statements) (in
each case, as modified or supplemented by other information so furnished), taken as a whole,
contains any material misstatement of fact or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading at the time they were provided; provided that, with respect to projected
financial information, the Borrower represents only that such information was prepared in good
faith based upon assumptions believed to be reasonable at the time (it being understood and agreed
that such projected financial information is subject to significant uncertainties and
contingencies, many of which are beyond the control of the Borrower, that no assurance is given
that any particular projection will be realized, that actual results may differ from such
projections and that such differences may be material).



     5.16 Compliance with Laws. The Borrower and each Subsidiary thereof is in compliance in all
material respects with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or (b) the failure to comply therewith, either individually or in
the aggregate, could not reasonably be expected to have a Material Adverse Effect.



ARTICLE VI. AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other
than any contingent indemnification or similar obligation not yet due and payable) hereunder shall
remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower shall,
and shall (except in the case of the covenants set forth in Sections 6.01, 6.02,
and 6.03) cause each Subsidiary to:



     6.01 Financial Statements. Deliver to the Administrative Agent and each Lender, in form and
detail reasonably satisfactory to the Administrative Agent and the Required Lenders:



     (a) as soon as available, but in any event within 90 days after the end of each fiscal year of
the Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of
such fiscal year, and the related consolidated statements of income or operations, changes in
shareholders’ equity, and cash flows for such fiscal year, setting forth in each case in



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comparative form the figures for the previous fiscal year, all in reasonable detail and
prepared in accordance with GAAP, audited and accompanied by a report and opinion of KPMG LLP or
other independent certified public accountants of nationally recognized standing or otherwise
reasonably acceptable to the Required Lenders, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be subject to any “going
concern” or like qualification or exception or any qualification or exception as to the scope of
such audit (other than a “going concern” or like qualification included in any such report and
opinion solely as a result of any then current Indebtedness of the Borrower and its Subsidiaries
for which such auditor has not considered the Borrower and/or such Subsidiary’s ability to meet
such maturing obligations with reasonable and available financing alternatives (and other than
through or in connection with the sale of operating assets or other material revisions of
operations)); and




     (b) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal quarter, the related consolidated
statements of income or operations for such fiscal quarter and for the portion of the Borrower’s
fiscal year then ended, and the related consolidated statements of changes in shareholders’ equity,
and cash flows for the portion of the Borrower’s fiscal year then ended, in each case setting forth
in comparative form, as applicable, the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable
detail, certified by a Responsible Officer of the Borrower as fairly presenting the financial
condition, results of operations, shareholders’ equity and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes.



As to any information contained in materials furnished pursuant to Section 6.02(b), the
Borrower shall not be separately required to furnish such information under clause (a) or
(b) above, but the foregoing shall not be in derogation of the obligation of the Borrower
to furnish the information and materials described in clauses (a) and (b) above at
the times specified therein.



     6.02 Certificates; Other Information. Deliver to the Administrative Agent and each Lender, in
form and detail reasonably satisfactory to the Administrative Agent and the Required Lenders:



     (a) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b), a duly completed Compliance Certificate signed by a Responsible
Officer of the Borrower (which delivery may, unless the Administrative Agent or a Lender requests
executed originals, be by electronic communication including fax or email and shall be deemed to be
an original authentic counterpart thereof for all purposes);



     (b) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the Borrower, and copies of
all annual, regular, periodic and special reports and registration statements which the Borrower
may file or be required to file with the SEC under Section 13 or 15(d) of the Exchange Act, and not
otherwise required to be delivered to the Administrative Agent pursuant hereto;




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     (c) promptly after the furnishing thereof, copies of any statement or report furnished to any
holder of debt securities of the Borrower or any Subsidiary thereof pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise required to be furnished to the
Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;



     (d) promptly, and in any event within ten Business Days after receipt thereof by the Borrower
or any Subsidiary thereof, copies of each written notice or other correspondence received from the
SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or
possible investigation or other inquiry by such agency regarding financial or other operational
results of the Borrower or any Subsidiary thereof; and



     (e) promptly, such additional information regarding the business, financial or corporate
affairs of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as
the Administrative Agent or any Lender may from time to time reasonably request.



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(b) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on
the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or
any Lender upon its request to the Borrower to deliver such paper copies until a written request to
cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the
Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail)
of the posting of any such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall
have no obligation to request the delivery of or to maintain paper copies of the documents referred
to above, and in any event shall have no responsibility to monitor compliance by the Borrower with
any such request by a Lender for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.



     The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the
“Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have
personnel who do not wish to receive material non-public information with respect to the Borrower
or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in
investment and other market-related activities with respect to such Persons’ securities. The
Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the
word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower



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Materials
“PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers,
the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to the Borrower or its securities for purposes of United States
Federal and state securities laws (provided that to the extent such Borrower Materials
constitute Information, they shall be treated as set forth in Section 10.07); (y) all
Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Side Information”; and (z) the Administrative Agent and the Arrangers
shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable
only for posting on a portion of the Platform not designated “Public Side Information.”
Notwithstanding any of the foregoing, for so long as the Borrower has not received notice from the
Administrative Agent that there are Public Lenders party to this Agreement, the Borrower shall be
under no obligation to mark any Borrower Materials “PUBLIC”.



     6.03 Notices. Promptly notify the Administrative Agent and each Lender upon any Responsible
Officer of the Borrower obtaining actual knowledge of:



     (a) the occurrence of any Default;



     (b) any of the following to the extent that it has resulted or could reasonably be expected to
result in a Material Adverse Effect: (i) breach or non-performance of, or any default under, a
Contractual Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between the Borrower or any Subsidiary and any Governmental
Authority; (iii) the commencement of, or any material development in, any litigation or proceeding
affecting the Borrower or any Subsidiary, including pursuant to any applicable Environmental Laws;
or (iv) the occurrence of any ERISA Event;



     (c) any material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary; and



     (d) any announcement by Moody’s or S&P of any change in a Debt Rating.



     Each notice pursuant to this Section 6.03 (other than Section 6.03(d)) shall
be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken and proposes to take
with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with
particularity any and all provisions of this Agreement and any other Loan Document that have been
breached.



     6.04 Payment of Obligations. Pay and discharge as the same shall become delinquent (a) all
tax liabilities, assessments and governmental charges or levies upon it or its properties or
assets; and (b) all lawful claims which, if unpaid, would by law become a Lien upon its property,
unless, in each case, the same are being contested in good faith by appropriate proceedings
diligently conducted and adequate reserves are being maintained in accordance with GAAP by the
Borrower or such Subsidiary, or the failure to so pay or discharge could not reasonably be expected
to have, either individually or in the aggregate, a Material Adverse Effect.



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     6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect its legal existence and good standing under the Laws of the jurisdiction of its organization
except (i) in a transaction permitted by Section 7.04 or (ii) in the case of a Subsidiary
of the Borrower, where the failure to do so could not reasonably be expected to have a Material
Adverse Effect; (b) take all reasonable action to maintain all rights, privileges, permits,
licenses and franchises necessary or desirable in the normal conduct of its business, except (i) in
a transaction permitted by Section 7.04 or (ii) to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its
registered patents, trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.



     6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation
and maintenance of its facilities.



     6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of the Borrower, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons engaged in the same or
similar business and owning similar properties in localities where the Borrower or any of its
Subsidiaries operates, of such types and in such amounts (after giving effect to any self-insurance
compatible with such standards) as are customarily carried under similar circumstances by such
other Persons.



     6.08 Compliance with Laws. Comply in all material respects with the requirements of all Laws
and all orders, writs, injunctions and decrees applicable to it or to its business or property,
except in such instances in which (a) such requirement of Law or order, writ, injunction or decree
is being contested in good faith by appropriate proceedings diligently conducted; or (b) the
failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.



     6.09 Books and Records. Maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Borrower or such Subsidiary, as
the case may be.



     6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its Responsible Officers during such visit, not more than twice
in any twelve month period, during normal business hours upon reasonable advance notice to the
Borrower and at the expense of the Borrower; provided that when an Event of Default exists
the Administrative Agent or any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the Borrower at any time during normal
business hours and without advance notice.



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     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for working capital, capital
expenditures, permitted acquisitions and other general corporate purposes not in contravention of
any Law or of any Loan Document, including the backstop of any commercial paper of the Borrower and
its Subsidiaries.



     6.12 Compliance with Environmental Laws. Except in each case where failure to do so could not
reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect,
comply, and use commercially reasonable efforts to cause all lessees and other Persons operating or
occupying its properties to comply, in all material respects, with all applicable Environmental
Laws and Environmental Permits; obtain and renew all Environmental Permits necessary for its
operations and properties; and conduct any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the requirements of all
Environmental Laws; provided that neither the Borrower nor any of its Subsidiaries shall be
required to undertake any such cleanup, removal, remedial or other action to the extent that its
obligation to do so is being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances in accordance with GAAP.



     6.13 Further Assurances. Promptly upon reasonable request by the Administrative Agent, or any
Lender through the Administrative Agent, (a) correct any material defect or error that may be
discovered in any Loan Document or in the execution or, acknowledgement thereof, unless the
Borrower reasonably disagrees with the characterization of the provision to be changed as a
material defect or error; and (b) do, execute, acknowledge and, deliver, any all such further acts,
certificates, assurances and other instruments as the Administrative Agent, or any Lender through
the Administrative Agent, may reasonably require from time to time in order to carry out more
effectively the purposes of the Loan Documents.



     6.14 Procedures to Ensure Information Dissemination. Establish and maintain adequate policies
and procedures to ensure that at least one Responsible Officer is promptly informed of all matters
referenced in this Agreement for which the Lenders are relying on a Responsible Officer’s
knowledge.



ARTICLE VII. NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other
than any contingent indemnification or similar obligation not yet due and
payable) hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain
outstanding, the Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly:



     7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the following:



     (a) Liens pursuant to any Loan Document;



     (b) Liens existing on the date hereof and listed on Schedule 7.01;



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     (c) Liens for Taxes not yet delinquent or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect thereto are
maintained on the books of the applicable Person in accordance with GAAP;



     (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, workmen’s, landlords’,
bailees’ or other like Liens arising in the ordinary course of business which are not overdue for a
period of more than 60 days or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;



     (e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any Lien
imposed by ERISA;



     (f) Liens (i) incurred in the ordinary course of business to secure the performance of
tenders, statutory obligations, surety, stay, customs and appeal bonds, statutory bonds, bids,
leases, government contracts, trade contracts, performance and return of money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed money) or (ii) arising by
virtue of deposits made in the ordinary course of business to secure liability for premiums to
insurance carriers;



     (g) easements, rights-of-way, restrictions, licenses, encroachments, protrusions and other
similar charges or encumbrances, and minor title deficiencies, affecting real property which, in
the aggregate, are not substantial in amount, and which do not in any case materially detract from
the value of the property subject thereto or materially interfere with the ordinary conduct of the
business of the applicable Person;



     (h) Liens securing judgments for the payment of money not constituting an Event of Default
under Section 8.01(h);



     (i) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by Borrower or any Subsidiary in the ordinary
course of business in accordance with the past practices of Borrower or such Subsidiary;



     (j) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to
cash and Cash Equivalents on deposit in one or more accounts maintained by the Borrower or any
Subsidiary, in each case granted in the ordinary course of business in favor of the bank or banks
with which such accounts are maintained, securing amounts owing to such bank with
respect to cash management and operating account arrangements, including those involving
pooled accounts and netting arrangements;



     (k) licenses of Intellectual Property granted by Borrower or any Subsidiary in the ordinary
course of business and not interfering in any material respect with the ordinary conduct of
business of the Borrower and it Subsidiaries;



     (l) the filing of UCC financing statements solely as a precautionary measure in connection
with operating leases or consignment of goods;



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     (m) Liens upon real property (under operating or capital leases) in the ordinary course of
business by the Borrower or any of its Subsidiaries, as lessee, in favor of the lessor of such
property created at the inception of the lease transaction, securing obligations of the Borrower or
any of its Subsidiaries under or in respect of such lease and extending to or covering only the
property subject to such lease and improvements thereon;



     (n) Other Permitted Liens;



     (o) Liens securing Indebtedness permitted under Sections 7.03(a)(iii) and (b);
and



     (p) extensions, renewals and replacements of any Lien permitted by any of the preceding
clauses; provided that (i) such Lien does not extend to any additional assets (other than
improvements and accessions to, and replacements of, the assets originally subject to such Lien),
(ii) the amount secured or benefited thereby is not increased (except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in
connection with any refinancing and by an amount equal to any existing commitments unutilized
thereunder), and (iii) any extension, renewal or replacement of the obligations secured or
benefited thereby is permitted by clause (g) of Section 7.03.



     7.02 Investments. Make any Investments, unless, both before and immediately after giving
effect to the making of any such Investment, (a) the Borrower shall be in compliance with the
financial covenants set forth in Section 7.10, on a pro forma basis, and (b) no Event of
Default shall have occurred and be continuing, except:



     (a) Investments held by the Borrower or any of its Subsidiaries existing on the date hereof;



     (b) the Borrower and any Subsidiary may (i) acquire and hold accounts receivable owing to any
of them if created or acquired in the ordinary course of business and payable or dischargeable in
accordance with customary terms, (ii) invest in, acquire and hold cash and cash equivalents, (iii)
endorse negotiable instruments held for collection in the ordinary course of business or (iv) make
lease, utility and other similar deposits in the ordinary course of business;



     (c) loans, advances and reimbursements to directors, employees and officers of Borrower and
its Subsidiaries for bona fide business purposes, including, without limitation, for travel,
entertainment and relocation;



     (d) Investments in securities of trade creditors or customers in the ordinary course of
business received upon foreclosure or pursuant to any plan of reorganization or liquidation or
similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers;



     (e) purchases and other acquisitions of inventory, materials, equipment and tangible property
in the ordinary course of business;



     (f) leases of real or personal property in the ordinary course of business;



     (g) transactions constituting Investments otherwise permitted under this Agreement.



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     7.03 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:



     (a) solely with respect to the Borrower:




     (i) Indebtedness arising under the Loan Documents;




     (ii) Indebtedness arising under the Senior Note Documents;




     (iii) secured Indebtedness; provided that the aggregate amount of all such
secured Indebtedness (together with the amount of all Indebtedness incurred by Subsidiaries
of the Borrower in accordance with clause (b) below) shall not at any time exceed
the greater of (A) an amount equal to 15% of the Borrower’s Consolidated Net Tangible Assets
calculated as of the date of the incurrence of the Indebtedness and (B) $300,000,000;




     (iv) Indebtedness secured by Liens permitted by Section 7.01 (other than
Section 7.01(o)); and




     (v) other unsecured Indebtedness, without limit;



     (b) solely with respect to Subsidiaries of the Borrower, Indebtedness, whether secured or
unsecured, not otherwise permitted under this Section 7.03; provided that the
aggregate amount of all such Indebtedness (together with the amount of all secured Indebtedness
incurred by the Borrower in accordance with clause (a)(iii) above) shall not at any time
exceed the greater of (A) an amount equal to 15% of the Borrower’s Consolidated Net Tangible Assets
calculated as of the date of the incurrence of the Indebtedness and (B) $300,000,000;



     (c) Indebtedness outstanding on the date hereof and listed on Schedule 7.03;



     (d) (i) Indebtedness (other than Guarantees) of such Subsidiary owing to Borrower or any other
Subsidiary and (ii) Guarantees of such Subsidiary in respect of Indebtedness of the Borrower or in
respect of Indebtedness permitted hereunder of any Subsidiary;



     (e) Indebtedness secured by Liens permitted by clauses (b) and (d) of the
definition of Other Permitted Liens;



     (f) obligations (contingent or otherwise) of such Subsidiary existing or arising under any
Swap Contract; provided that (i) such obligations are (or were) entered into by such
Subsidiary in the ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such Person, and not
for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain
any provision exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party; and



     (g) any refinancings, refundings, renewals, replacements or extensions of any Indebtedness
permitted by the preceding clauses; provided that (i) the amount of such Indebtedness is
not increased at the time of such refinancing, refunding, renewal, replacement or



69









 







extension except
by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder and (ii) the terms relating to principal amount, amortization,
maturity, collateral (if any) and subordination (if any), and other material terms taken as a
whole, of any such refinancing, refunding, renewing, replacing or extending Indebtedness, and of
any agreement entered into and of any instrument issued in connection therewith, are no less
favorable in any material respect to such Subsidiary or the Lenders than the terms of any agreement
or instrument governing the Indebtedness being refinanced, refunded, renewed, replaced or extended
and the interest rate applicable to any such refinancing, refunding, renewing, replacing or
extending Indebtedness does not exceed the then applicable market interest rate.



     7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except that, so long as no Event of Default exists or would result therefrom:



     (a) the Borrower or any Subsidiary may merge with any other Person; provided that
either the Borrower or such Subsidiary shall be the continuing or surviving Person;



     (b) any Subsidiary may merge with (i) the Borrower; provided that the Borrower shall
be the continuing or surviving Person, or (ii) any one or more other Subsidiaries; provided
that when any wholly-owned Subsidiary is merging with another Subsidiary, the wholly-owned
Subsidiary shall be the continuing or surviving Person; and



     (c) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or to another Subsidiary; provided that if the
transferor in such a transaction is a wholly-owned Subsidiary, then the transferee must either be
the Borrower or a wholly-owned Subsidiary.



     7.05 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, unless, both before and immediately after
giving effect to the making of any such Restricted Payment (a) the Borrower shall be in compliance
with the financial covenants set forth in Section 7.10, on a pro forma basis, and (b) no
Event of Default shall have occurred and be continuing, except:



     (a) each Subsidiary may declare and make Restricted Payments to the Borrower and to any other
Subsidiary (and, in the case of a Restricted Payment by a non-wholly-owned Subsidiary, to the
Borrower and any Subsidiary and to each other owner of Equity Interests of such Restricted
Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);



     (b) the Borrower may declare and make Restricted Payments payable solely in the common stock
or other common Equity Interests of Borrower to the then holders of such Equity Interests;



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     (c) to the extent constituting Restricted Payments, the Borrower and any Subsidiary may enter
into and consummate transactions not prohibited by any provision of Section 7.02,
7.04, 7.07(b), or 7.07(d);



     (d) the Borrower or any Subsidiary may (i) pay cash in lieu of fractional Equity Interests in
connection with any dividend, split or combination thereof and (ii) honor any conversion request by
a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in
connection with any such conversion and may make payments on convertible Indebtedness in accordance
with its terms; and



     (e) the payment of any dividend or distribution within 120 days after the date of declaration
thereof, if on the date of declaration such payment would have complied with the provisions of this
Agreement.



     7.06 Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by the Borrower and its Subsidiaries on the date
hereof or any business substantially related or incidental thereto.



     7.07 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate
of the Borrower, whether or not in the ordinary course of business, other than on terms
substantially as favorable to the Borrower or such Subsidiary as would be obtainable by the
Borrower or such Subsidiary at the time in a comparable arm’s length transaction with a Person
other than an Affiliate, except that the following shall be permitted:



     (a) transactions with Affiliates existing as of the date hereof;



     (b) transactions otherwise permitted hereunder between or among the Borrower and any of its
Subsidiaries or between and among any such Subsidiaries;



     (c) transactions the disclosure of which is not required by Item 404 of Regulation S-K;



     (d) expense reimbursement, indemnities, salaries, bonuses and other compensation to current
and former officers, directors, consultants, advisors and employees of the Borrower or any
Subsidiary, or (ii) entering into (and payments under) employment, benefit plans, service and
severance arrangements with current and former officers, directors, consultants, advisors and
employees of the Borrower or any Subsidiary, including, without limitation, grants of securities,
stock options, retirement plans, health plans and similar rights, as determined in good faith by
the
board of directors, a committee thereof or senior management of the Borrower or such
Subsidiary, as applicable;



     (e) any issuance and sale of Equity Interests of the Borrower;



     (f) transactions with customers, clients, suppliers, joint venture partners or purchasers or
sellers of goods and services, in each case in the ordinary course of business and otherwise not
prohibited by the Loan Documents; and



     (g) Restricted Payments not prohibited by Section 7.06.



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     7.08 No Further Negative Pledge. Enter into any Contractual Obligation (other than this
Agreement or any other Loan Document) that (a) limits the ability of the Borrower or any Subsidiary
to create, incur, assume or suffer to exist Liens on property of such Person; or (b) requires the
grant of a Lien to secure an obligation of such Person, except that this Section 7.08 shall
not prohibit:



     (a) any such limitations contained in documents governing any Indebtedness of the Borrower or
any of its Subsidiaries not prohibited under Section 7.03;



     (b) customary restrictions and conditions contained in agreements relating to the sale of a
Subsidiary or any property pending the consummation of such sale, provided such restrictions and
conditions apply only to the Subsidiary or property that is to be sold and such sale is permitted
hereunder;



     (c) customary provisions in leases and other contracts restricting the assignment thereof;



     (d) any such limitations in any other agreement that do not restrict in any manner the ability
to create Liens to secure the Obligations; and



     (e) restrictions and conditions in any indenture, agreement, document, instrument or other
arrangement relating to the assets or business of any Subsidiary existing prior to the consummation
of an acquisition in which such Subsidiary was acquired by the Borrower (and not created in
contemplation of such acquisition).



     7.09 Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.



     7.10 Financial Covenants.



     (a) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio as of the end of any fiscal quarter of the Borrower to be less than 3.00:1.



     (b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio at any time
during any period of four fiscal quarters of the Borrower to be greater than 3.25:1.



ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:



     (a) Non-Payment. The Borrower fails to pay (i) when and as required to be paid
herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within five days after
the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder
or any other amount payable hereunder or under any other Loan Document; or



72









 





     (b) Specific Covenants. The Borrower fails to perform or observe any term, covenant
or agreement contained in any of Section 6.01, 6.02(a), 6.03, 6.05
or 6.11 or Article VII; or



     (c) Other Defaults. The Borrower fails to perform or observe any other covenant or
agreement (not specified in clause (a) or (b) above) contained in any Loan Document
on its part to be performed or observed and such failure continues for 30 days after the earlier to
occur of (i) a Responsible Officer of the Borrower’s becoming aware of such default and (ii) notice
of such default from the Administrative Agent or the Required Lenders; or



     (d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower herein, in any other Loan
Document, or in any document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or



     (e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise)
beyond any applicable grace period in respect of any Indebtedness or Guarantee (other than
Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B)
fails to observe or perform any other agreement or condition relating to any such Indebtedness or
Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, the
effect of which default is to cause such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there
occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which the Borrower or any
Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event
(as so defined) under such Swap Contract as to which the Borrower or any Subsidiary is an Affected
Party (as so defined) and, in either event, the Swap Termination Value owed by the Borrower or such
Subsidiary as a result thereof is greater than the Threshold Amount, and in the case of any Early
Termination Date resulting from such a Termination Event, such Early Termination Date is not
rescinded or such
Swap Termination Value is not paid within 5 Business Days following such Early Termination
Date; or



     (f) Insolvency Proceedings, Etc. The Borrower or any of its Subsidiaries institutes
or consents to the institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or
for all or any material part of its property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any
proceeding under any Debtor Relief Law relating to any such Person or to all or any material part
of its property is instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or



73









 





     (g) Inability to Pay Debts; Attachment. (i) The Borrower or any Subsidiary becomes
unable or admits in writing its inability or fails generally to pay its debts as they become due,
or (ii) any writ or warrant of attachment or execution or similar process is issued or levied
against all or any material part of the property of any such Person and is not released, vacated or
fully bonded within 30 days after its issue or levy; or



     (h) Judgments. There is entered against the Borrower or any Subsidiary (i) one or
more final, non-appealable judgments or orders for the payment of money in an aggregate amount (as
to all such judgments or orders) exceeding the Threshold Amount (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute coverage), or (ii) any
one or more non-monetary final, non-appealable judgments that have, or could reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A)
enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is
a period of 20 consecutive days during which a stay of enforcement of such judgment, by reason of a
pending appeal or otherwise, is not in effect; or



     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of the Borrower
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when
due, after the expiration of any applicable grace period, any installment payment with respect to
its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of the Threshold Amount; or



     (j) Invalidity of Loan Documents. Any material provision of any Loan Document, at any
time after its execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force
and effect; or the Borrower or any other Person contests in any manner the validity or
enforceability of any provision of any Loan Document; or the Borrower denies that it has any or
further liability or obligation under any Loan Document, or purports to revoke, terminate or
rescind any provision of any Loan Document; or



     (k) Change of Control. There occurs any Change of Control.



     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the
Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:



     (a) declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer
to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be
terminated;



     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower;



74









 





     (c) require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and



     (d) exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies
available to it, the Lenders and the L/C Issuer under the Loan Documents;


provided that upon the occurrence of an actual or deemed entry of an order for relief with
respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each
Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and
other amounts as aforesaid shall automatically become due and payable, and the obligation of the
Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or any Lender.




     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), any amounts received on account of the Obligations shall, subject to the
provisions of Sections 2.15 and 2.16, be applied by the Administrative Agent in the
following order:



     First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders
and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuer (including fees and time charges for attorneys who may be employees of any
Lender or the L/C Issuer) and amounts payable under Article III), ratably among them in
proportion to the respective amounts described in this clause Second payable to
them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and the L/C Issuer in proportion to the respective amounts described in this
clause Third payable to them;



     Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuer in proportion to the
respective amounts described in this clause Fourth held by them;



     Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections
2.03 and 2.15; and



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     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by Law.


Subject to Sections 2.03(c) and 2.15, amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall
be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains
on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired,
such remaining amount shall be applied to the other Obligations, if any, in the order set forth
above.




ARTICLE IX. ADMINISTRATIVE AGENT




     9.01 Appointment and Authority. Each of the Lenders and the L/C Issuer hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the
other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and the Borrower shall not have rights as a third party beneficiary of any of such
provisions.



     9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.



     9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:




     (a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;




     (b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan Documents);
provided that the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and




     (c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose,



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any
information relating to the Borrower or any of its Affiliates that is communicated to or
obtained by the Person serving as 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 (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.



     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 this Agreement or
any other 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 or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



     9.04 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,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such Lender
or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary
from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter
of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent 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 any such counsel, accountants
or experts.



     9.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document by or through any one or
more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and powers by or through
their respective Related Parties. The exculpatory provisions of this Article shall apply to any
such sub-agent and to the Related Parties of the Administrative Agent and any



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such sub-agent, 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.



     9.06 Resignation of Administrative Agent. (a) The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt of any
such notice of resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this Section). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the retiring Administrative
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article
and Section 10.04 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.



     (b) Any resignation by Bank of America as Administrative Agent pursuant to this Section shall
also constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all
of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the
successor L/C Issuer 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 L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect
to such Letters of Credit.



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     9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and the L/C Issuer
acknowledges that it has, independently and without reliance upon the Administrative Agent or any
other Lender or any of their Related Parties 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
Lender and the L/C Issuer also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or thereunder.



     9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the
Bookrunners, Arrangers or Syndication Agent listed on the cover page hereof shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to the Borrower, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation 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:



     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations 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, the L/C Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other amounts due the Lenders,
the L/C Issuer and the Administrative Agent under Sections 2.03(h) and (i),
2.09 and 10.04) allowed in such judicial proceeding; and



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


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, 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 Sections 2.09 and 10.04.




     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 L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of



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any Lender or the
L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or
the L/C Issuer in any such proceeding.



ARTICLE X. MISCELLANEOUS




     10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower therefrom, shall be effective unless
in writing signed by the Required Lenders and the Borrower and acknowledged by the Administrative
Agent, and each such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided that no such amendment, waiver or consent shall:



     (a) waive any condition set forth in Section 4.01(a) without the written consent of
each Lender;



     (b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.02) without the written consent of such Lender;



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment or
mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of
them) hereunder or under any other Loan Document without the written consent of each Lender
directly affected thereby;



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby; provided that only the consent of the
Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any
obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate;



     (e) change Section 8.03 in a manner that would alter the pro rata sharing of payments
required thereby without the written consent of each Lender; or



     (f) change any provision of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender;


and provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything


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to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent
hereunder (and any amendment, waiver or consent which by its terms requires the consent of all
Lenders or each affected Lender may be effected with the consent of the applicable Lenders other
than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be
increased or extended without the consent of such Lender and (y) any waiver, amendment or
modification requiring the consent of all Lenders or each affected Lender that by its terms affects
any Defaulting Lender more adversely than other affected Lenders shall require the consent of such
Defaulting Lender.




     10.02 Notices; Effectiveness; Electronic Communication.



     (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in clause (b) below),
all notices and other communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier
as follows, and all notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:




     (i) if to the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 10.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire (including, as
appropriate, notices delivered solely to the Person designated by a Lender on its
Administrative Questionnaire then in effect for the delivery of notices that may contain
material non-public information relating to the Borrower).


Notices and other communications sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received; notices and other
communications sent by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have been given at the
opening of business on the next business day for the recipient). Notices and other communications
delivered through electronic communications to the extent provided in clause (b) below,
shall be effective as provided in such clause (b).




     (b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuer hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent; provided that the foregoing shall not apply to notices to any Lender or the L/C
Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the 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.



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     Unless the 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.



     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any
Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of
any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided that in no event shall any
Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or any other Person for
indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual
damages).



     (d) Change of Address, Etc. Each of the Borrower, the Administrative Agent, the L/C
Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuer
and the Swing Line Lender. In addition, each Lender agrees to notify the Administrative Agent from
time to time to ensure that the Administrative Agent has on record (i) an effective address,
contact name, telephone number, telecopier number and electronic mail address to which notices and
other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore,
each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to
at all times have selected the “Private Side Information” or similar designation on the content
declaration screen of the Platform in order to enable such Public Lender or its delegate, in
accordance with such Public Lender’s compliance procedures and applicable Law, including United
States Federal and state securities Laws, to make reference to Borrower Materials that are not made
available through the “Public Side Information” portion of the



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Platform and that may contain
material non-public information with respect to the Borrower or its securities for purposes of
United States Federal or state securities laws.



     (e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of
the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete
or were not preceded or followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall
indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of
them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on
each notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other
telephonic communications with the Administrative Agent may be recorded by the Administrative
Agent, and each of the parties hereto hereby consents to such recording.



     10.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, the L/C Issuer
or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.



     Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Borrower shall be vested exclusively in, and all actions and proceedings at law in connection with
such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in
accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuer;
provided that the foregoing shall not prohibit (a) the Administrative Agent from exercising
on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as
Administrative Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer or the Swing
Line Lender from exercising the rights and remedies that inure to its benefit (solely in its
capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other Loan
Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.08
(subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim or
appearing and filing pleadings on its own behalf during the pendency of a proceeding relative
to the Borrower under any Debtor Relief Law; and provided, further, that if at any
time there is no Person acting as Administrative Agent hereunder and under the other Loan
Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the
Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth
in clauses (b), (c) and (d) of the preceding proviso and subject to
Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights
and remedies available to it and as authorized by the Required Lenders.



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     10.04 Expenses; Indemnity; Damage Waiver.  



     (a) Costs and Expenses. The Borrower shall pay (i) all reasonable, documented
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of no more than one counsel for the Administrative
Agent), in connection with the syndication of the credit facilities provided for herein, the
preparation, negotiation, execution, delivery and administration of this Agreement and the other
Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable, documented out-of-pocket expenses incurred by the L/C Issuer in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all reasonable, documented out-of-pocket expenses incurred by the
Administrative Agent, any Lender or the L/C Issuer (including the reasonable fees, charges and
disbursements of no more than one counsel for the Administrative Agent, one counsel acting on the
collective behalf of the Lenders and the L/C Issuer, necessary local counsel and additional counsel
in the case of any conflict of interest), and shall pay all fees and time charges for attorneys who
may be employees of the Administrative Agent, any Lender or the L/C Issuer, in connection with the
enforcement or protection of its rights (A) in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or (B) in connection with the Loans made or
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) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the L/C Issuer, 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 reasonable fees, charges and disbursements of one counsel for the
Administrative Agent, one counsel acting on the collective behalf of all other Indemnitees,
necessary local counsel and additional counsel in the case of any conflict of interest), 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 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 hereunder or thereunder, the consummation of the transactions contemplated
hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its
Related Parties only, the administration
of this Agreement and the other Loan Documents (including in respect of any matters addressed
in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the L/C Issuer 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



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or by the Borrower, 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 (x) are determined by a
court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee, (y) result from a claim brought by the
Borrower against an Indemnitee for breach of such Indemnitee’s obligations hereunder or under any
other Loan Document, if the Borrower has obtained a final and nonappealable judgment in its favor
on such claim as determined by a court of competent jurisdiction, or (z) arise solely out of claims
among Indemnitees.



     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under clause (a) or (b) of this Section to be
paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related
Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s
Applicable Percentage (determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its
capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The
obligations of the Lenders under this clause (c) are subject to the provisions of
Section 2.12(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest 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
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
No Indemnitee referred to in clause (b) above shall be liable for any damages arising from
the use by unintended recipients of any information or other materials distributed to such
unintended recipients by such Indemnitee through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other Loan Documents or
the transactions contemplated hereby or thereby other than for direct or actual damages resulting
from the gross negligence or willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.



     (e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.



     (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.



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     10.05 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is
made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the
L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the Administrative
Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a)
to the extent of such recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or
such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the
Administrative Agent upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from
time to time in effect. The obligations of the Lenders and the L/C Issuer under clause (b)
of the preceding sentence shall survive the payment in full of the Obligations and the termination
of this Agreement.



     10.06 Successors and Assigns.



     (a) Successors and Assigns Generally. 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 transfer any of its rights or obligations
hereunder except (i) to an assignee in accordance with the provisions of clause (b) of this
Section, (ii) by way of participation in accordance with the provisions of clause (d) of
this Section, or (iii) by way of pledge or assignment of a security interest subject to the
restrictions of clause (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 clause (d)
of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of
the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.



     (b) Assignments by Lenders. 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 Commitment and the Loans (including for purposes of this clause (b),
participations in L/C Obligations and in Swing Line Loans) 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 Commitment and the Loans 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



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     (B) in any case not described in clause (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $5,000,000 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); provided that
concurrent assignments to members of an Assignee Group and concurrent assignments
from members of an Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group) will be treated as a single assignment
for purposes of determining whether such minimum amount has been met.




     (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 or the Commitment assigned, except that this
clause (ii) shall not apply to the Swing Line Lender’s rights and obligations in
respect of Swing Line Loans;




     (iii) Required Consents. No consent shall be required for any assignment
except to the extent required by clause (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 (1) an Event of Default has occurred and is continuing at
the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a
Lender or an Approved Fund;




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




     (C) the consent of the L/C Issuer (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




     (D) the consent of the Swing Line Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment.




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided that the
Administrative Agent may, in its sole discretion, elect to waive such processing and



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recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to Certain Persons. No such assignment shall be made (A) to
the Borrower or any of the Borrower’s Affiliates or Subsidiaries, or (B) to any Defaulting
Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder,
would constitute any of the foregoing Persons described in this clause (B), or (C)
to a natural person.




     (vi) Certain Additional Payments. In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be effective
unless and until, in addition to the other conditions thereto set forth herein, the parties
to the assignment shall make such additional payments to the Administrative Agent in an
aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright
payment, purchases by the assignee of participations or subparticipations, or other
compensating actions, including funding, with the consent of the Borrower and the
Administrative Agent, the applicable pro rata share of Loans previously requested but not
funded by the Defaulting Lender, to each of which the applicable assignee and assignor
hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then
owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and
interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share
of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with
its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment
of rights and obligations of any Defaulting Lender hereunder shall become effective under
applicable Law without compliance with the provisions of this clause, then the assignee of
such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement
until such compliance occurs.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause
(c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, 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 Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption 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 3.01, 3.04, 3.05, and
10.04 with respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this clause 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
clause (d) of this Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower (and such agency being solely for tax purposes), shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a



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register for the
recordation of the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. In addition, the Administrative Agent shall maintain on the
Register information regarding the designation, and revocation of designation, of any Lender as a
Defaulting Lender. The Register shall be available for inspection by the Borrower and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person, a Defaulting Lender or 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 (including such
Lender’s participations in L/C Obligations and/or Swing Line 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, (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall
continue to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement, and (iv) such Lender shall maintain a register with respect to
such Participant in a manner consistent with that required under Section 10.06(c).



     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, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to clause (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to clause (b) of this Section. To the
extent permitted by law, each Participant also shall be entitled to the benefits of Section
10.08 as though it were a Lender; provided that such Participant agrees to be subject
to Section 2.13 as though it were a Lender.



     (e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 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. A Participant shall not be entitled to the benefits of Section 3.01 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 3.01(e) and (g) as though it were a
Lender.



     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal



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Reserve Bank; provided that no 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.



     (g) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Commitment and Loans pursuant to clause (b) above, Bank of America may, (i) upon 30 days’
notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to
the Borrower, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or
Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders a successor L/C
Issuer or Swing Line Lender hereunder; provided that no failure by the Borrower to appoint
any such successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line
Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall retain all the
rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of
Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C
Obligations with respect thereto (including the right to require the Lenders to make Base Rate
Committed Loans or fund risk participations in Unreimbursed Amounts pursuant to Section
2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retain all the rights of
the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and
outstanding as of the effective date of such resignation, including the right to require the
Lenders to make Base Rate Committed Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or
Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be,
and (b) the successor L/C Issuer 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 Bank of America to effectively assume the obligations of Bank of America with respect to such
Letters of Credit.



     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent,
the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents, trustees, advisors and
representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and shall have agreed to keep such
Information confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or any
Eligible Assignee invited to be a Lender pursuant to Section 2.14(c) or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrower and its obligations, (g) with the prior written consent of the Borrower or (h) to the



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extent such Information (x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of
their respective Affiliates on a nonconfidential basis from a source other than the Borrower and
that is not in breach of a confidentiality obligation to the Borrower. For purposes of this
Section, “Information” means all information received from the Borrower or any Subsidiary relating
to the Borrower or any Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by the Borrower or any Subsidiary; provided that,
in the case of information received from the Borrower or any Subsidiary after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section 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 to its own
confidential information.



     Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Borrower or a Subsidiary, as
the case may be, (b) it has developed compliance procedures regarding the use of material
non-public information and (c) it will handle such material non-public information in accordance
with applicable Law, including United States Federal and state securities Laws.



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final, in whatever currency) at
any time held and other obligations (in whatever currency) at any time owing by such Lender, the
L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower against any
and all of the obligations of the Borrower now or hereafter existing under this Agreement or any
other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or
the L/C Issuer shall have made any demand under this Agreement or any other Loan Document and
although such obligations of the Borrower may be contingent or unmatured or are owed to a branch or
office of such Lender or the L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness; provided that in the event that any Defaulting Lender shall
exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the
Administrative Agent for further application in accordance with the provisions of Section
2.16 and, pending such payment, shall be segregated by such
Defaulting Lender from its other funds and deemed held in trust for the benefit of the
Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the
Administrative Agent a statement describing in reasonable detail the Obligations owing to such
Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the
L/C Issuer and their respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective
Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and application; provided that the
failure to give such notice shall not affect the validity of such setoff and application.



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     10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If
the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum
Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations hereunder.



     10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging
means shall be effective as delivery of a manually executed counterpart of this Agreement.



     10.11 Survival of Representations and Warranties. All representations and warranties made
hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery hereof and thereof.
Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or
on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default at the time of any Credit Extension, and shall continue in full force
and effect as long as any Loan or any other Obligation (other than any contingent indemnification
or similar obligation not yet due and payable) hereunder shall remain unpaid or unsatisfied or any
Letter of Credit shall remain outstanding.



     10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction. Without limiting the foregoing provisions of this
Section 10.12, if and to the extent that the enforceability of any provisions in this
Agreement



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relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in
good faith by the Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable,
then such provisions shall be deemed to be in effect only to the extent not so limited.



     10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04
or is unable to make Eurodollar Rate Committed Loans pursuant to Section 3.02, 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 3.01, or if any Lender is a Defaulting
Lender, or if a Lender refuses to give its consent to any amendment or waiver of any provision of
this Agreement or any other Loan Document that requires the consent of such Lender to be effective
pursuant to Section 10.01 and the Borrower and the Required Lenders have given their
consent to such amendment or waiver, 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 contained in, and consents
required by, Section 10.06), all of its interests, rights and obligations under this
Agreement and the related Loan Documents to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided that:



     (a) the Borrower shall have paid to the Administrative Agent the assignment fee specified in
Section 10.06(b);



     (b) such Lender shall have received payment of an amount equal to 100% of the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including any amounts under
Section 3.05) from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts);



     (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter; and



     (d) such assignment does not conflict with applicable Laws.



     A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver or consent by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.



     10.14 Governing Law; Jurisdiction; Etc.



     (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.



     (b) SUBMISSION TO JURISDICTION. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING



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ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN 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.



     (c) WAIVER OF VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN CLAUSE (B) OF THIS SECTION. EACH OF THE
PARTIES HERETO HEREBY 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) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY 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 OR RELATING TO 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 PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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.



     10.16 California Judicial Reference. If any action or proceeding is filed in a court of the
State of California by or against any party hereto in connection with any of the transactions
contemplated by this Agreement or any other Loan Document, (a) the court shall, and is hereby
directed to, make a general reference pursuant to California Code of Civil Procedure Section 638 to
a referee (who shall be a single active or retired judge) to hear and determine all of the issues



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in such action or proceeding (whether of fact or of law) and to report a statement of decision;
provided that at the option of any party to such proceeding, any such issues pertaining to
a “provisional remedy” as defined in California Code of Civil Procedure Section 1281.8 shall be
heard and determined by the court, and (b) without limiting the generality of Section
10.04, the Borrower shall be solely responsible to pay all fees and expenses of any referee
appointed in such action or proceeding.



     10.17 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), the Borrower acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent and each Arranger are arm’s-length
commercial transactions between the Borrower and its Affiliates, on the one hand, and the
Administrative Agent and each such Arranger, on the other hand, (B) the Borrower has consulted its
own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C)
the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions
of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the
Administrative Agent and each Arranger each 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 the Borrower or any of its Affiliates, or any other
Person and (B) neither the Administrative Agent nor either Arranger has any obligation to the
Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those
obligations expressly set forth herein and in the other Loan Documents; and (iii) the
Administrative Agent and each Arranger and their respective Affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the Borrower and its
Affiliates, and neither the Administrative Agent nor either Arranger has any obligation to disclose
any of such interests to the Borrower or its Affiliates. To the fullest extent permitted by law,
the Borrower hereby waives and releases any claims that it may have against the Administrative
Agent and each Arranger with respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.



     10.18 Electronic Execution of Assignments and Certain Other Documents. The words “execution,”
“signed,” “signature,” and words of like import in any Assignment and Assumption or in any
amendment or other modification hereof (including waivers and consents) shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the case may be, to the extent
and as provided for in any applicable law, including the Federal Electronic Signatures in Global
and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions Act.



     10.19 USA PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and
the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower
that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information
that identifies the Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender or the Administrative



95









 







Agent, as applicable, to
identify the Borrower in accordance with the Act. The Borrower shall, promptly following a request
by the Administrative Agent or any Lender, provide all documentation and other information that the
Administrative Agent or such Lender reasonably requests in order to comply with its ongoing
obligations under applicable “know your customer” and anti-money laundering rules and regulations,
including the Act.



     10.20 Amendments Effecting a Maturity Extension. In addition, notwithstanding any other
provision of this Agreement to the contrary:



     (a) The Borrower may, by written notice to the Administrative Agent (who shall forward such
notice to all applicable Lenders) make an offer (each such offer, a “Loan Modification
Offer”) to all the Lenders to make one or more amendments or modifications to allow the
maturity of the Loans and/or Commitments of the Accepting Lenders (as defined below) to be
extended, and, in connection with such extension, to (i) reduce, eliminate or otherwise modify the
scheduled amortization, if any, of the applicable Loans of the Accepting Lenders, (ii) modify the
Applicable Percentage and/or fees payable with respect to the applicable Loans and/or Commitments
of the Accepting Lenders and the payment of additional fees or other consideration to the Accepting
Lenders, and/or (iii) change such additional terms and conditions of this Agreement solely as
applicable to the Accepting Lenders (such additional changed terms and conditions (to the extent
not otherwise approved by the requisite Lenders under Section 10.01) to be effective only
during the period following the original maturity date prior to its extension by such Accepting
Lenders) (collectively, “Permitted Amendments”) pursuant to procedures reasonably
acceptable to each of the Administrative Agent and the Borrower. Such notice shall set forth (i)
the terms and conditions of the requested Permitted Amendment and (ii) the date on which such
Permitted Amendment is requested to become effective (which shall not be less than five Business
Days nor more than 45 Business Days after the date of such notice). Permitted Amendments shall
become effective only with respect to the Loans and/or Commitments of the Lenders that accept the
Loan Modification Offer (such Lenders, the “Accepting Lenders”) and, in the case of any
Accepting Lender, only with respect to such Lender’s Loans and/or Commitments as to which such
Lender’s acceptance has been made. The Borrower and each Accepting Lender shall execute and
deliver to the Administrative Agent a loan modification agreement (“Loan Modification
Agreement”) and such other documentation as the Administrative Agent shall reasonably specify
to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The
Administrative Agent shall promptly notify each Lender as to the effectiveness of the Loan
Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of
the Loan Modification Agreement,
this Agreement shall be deemed amended to the extent (but only to the extent) necessary to
reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect
to the Loans and Commitments of the Accepting Lenders as to which such Lenders’ acceptance has been
made.



     (b) This Section shall supersede any provisions of this Agreement to the contrary, including
Section 2.13 or 10.01, it being understood, however, that nothing in this Section
shall impair or limit the effectiveness of any amendment effectuated in accordance with Section
10.01 (including, without limitation, any amendment effectuated simultaneously with any
Permitted Amendment).



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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	BROADCOM CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as

Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as a Lender, L/C

Issuer and Swing Line Lender

 	 
	 	By:  	 	 
	 	 	Name:  	Sugeet Manchanda Madan 	 
	 	 	Title:  	Senior Vice President 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: