exv10w6





Exhibit 10.6




 

 






Published CUSIP Number:                     




CREDIT AGREEMENT

Dated as of July 2, 2009

among

INSURANCE SERVICES OFFICE, INC.,

as the Borrower,

BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and

L/C Issuer,

and

The Other Lenders Party Hereto




BANC OF AMERICA SECURITIES LLC,

as

Lead Arranger and Book Manager




JPMORGAN CHASE BANK,

as

Syndications Agent




	 	 	 
	MORGAN STANLEY BANK, N.A.,
	 	WELLS FARGO BANK, N.A.,
	as 

Co-Documentation Agent
	 	as

Co-Documentation Agent






 

 






 









 





TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page	 
	 
	 	 	 	 
	Article I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	 
	 	 	 	 
	1.01 Defined Terms.
	 	 	1	 
	1.02 Other Interpretive Provisions.
	 	 	24	 
	1.03 Accounting Terms.
	 	 	25	 
	1.04 Rounding.
	 	 	25	 
	1.05 Times of Day.
	 	 	26	 
	1.06 Letter of Credit Amounts.
	 	 	26	 
	1.07 Interpretation and Construction of Exceptions/Carveouts to Article VII Negative Covenants.
	 	 	26	 
	1.08 Additional Alternative Currencies.
	 	 	26	 
	1.09 Exchange Rates; Currency Equivalents.
	 	 	27	 
	 
	 	 	 	 
	Article II. the COMMITMENTS and Credit Extensions
	 	 	27	 
	 
	 	 	 	 
	2.01 Committed Loans.
	 	 	27	 
	2.02 Borrowings, Conversions and Continuations of Committed Loans.
	 	 	27	 
	2.03 Letters of Credit.
	 	 	29	 
	2.04 Swing Line Loans.
	 	 	37	 
	2.05 Prepayments.
	 	 	40	 
	2.06 Termination or Reduction of Commitments.
	 	 	43	 
	2.07 Repayment of Loans.
	 	 	43	 
	2.08 Interest.
	 	 	43	 
	2.09 Fees.
	 	 	44	 
	2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.
	 	 	45	 
	2.11 Evidence of Debt.
	 	 	45	 
	2.12 Payments Generally; Administrative Agent’s Clawback.
	 	 	46	 
	2.13 Sharing of Payments by Lenders.
	 	 	47	 
	2.14 Increase in Commitments.
	 	 	48	 
	 
	 	 	 	 
	Article III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	49	 
	 
	 	 	 	 
	3.01 Taxes.
	 	 	49	 
	3.02 Illegality.
	 	 	53	 
	3.03 Inability to Determine Rates.
	 	 	53	 
	3.04 Increased Costs.
	 	 	54	 
	3.05 Compensation for Losses.
	 	 	55	 
	3.06 Mitigation Obligations; Replacement of Lenders.
	 	 	56	 
	3.07 Survival.
	 	 	56	 
	 
	 	 	 	 
	Article IV. CONDITIONS PRECEDENT TO Credit Extensions
	 	 	57	 
	 
	 	 	 	 
	4.01 Conditions of Initial Credit Extension.
	 	 	57	 






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	Section	 	Page	 
	 
	 	 	 	 
	4.02 Conditions to all Credit Extensions.
	 	 	58	 
	 
	 	 	 	 
	Article V. REPRESENTATIONS AND WARRANTIES
	 	 	59	 
	 
	 	 	 	 
	5.01 Existence, Qualification and Power.
	 	 	59	 
	5.02 Authorization; No Contravention.
	 	 	59	 
	5.03 Governmental Authorization; Other Consents.
	 	 	59	 
	5.04 Binding Effect.
	 	 	59	 
	5.05 Financial Statements; No Material Adverse Effect.
	 	 	60	 
	5.06 Litigation.
	 	 	60	 
	5.07 No Default.
	 	 	60	 
	5.08 Ownership of Property; Liens.
	 	 	60	 
	5.09 Environmental Compliance.
	 	 	61	 
	5.10 Insurance.
	 	 	61	 
	5.11 Taxes.
	 	 	61	 
	5.12 ERISA Compliance.
	 	 	61	 
	5.13 Subsidiaries; Equity Interests.
	 	 	62	 
	5.14 Margin Regulations; Investment Company Act.
	 	 	62	 
	5.15 Disclosure.
	 	 	62	 
	5.16 Compliance with Laws.
	 	 	63	 
	5.17 Taxpayer Identification Number.
	 	 	63	 
	5.18 Intellectual Property; Licenses, Etc.
	 	 	63	 
	 
	 	 	 	 
	Article VI. AFFIRMATIVE COVENANTS
	 	 	63	 
	 
	 	 	 	 
	6.01 Financial Statements.
	 	 	63	 
	6.02 Certificates; Other Information.
	 	 	64	 
	6.03 Notices.
	 	 	66	 
	6.04 Payment of Obligations.
	 	 	67	 
	6.05 Preservation of Existence, Etc.
	 	 	67	 
	6.06 Maintenance of Properties.
	 	 	67	 
	6.07 Maintenance of Insurance.
	 	 	67	 
	6.08 Compliance with Laws.
	 	 	67	 
	6.09 Books and Records.
	 	 	67	 
	6.10 Inspection Rights.
	 	 	68	 
	6.11 Use of Proceeds.
	 	 	68	 
	6.12 Additional Guarantors.
	 	 	68	 
	6.13 Pari Passu Status.
	 	 	68	 
	6.14 Most Favored Lender Status.
	 	 	68	 
	6.15 Private Placement Facilities.
	 	 	69	 
	 
	 	 	 	 
	Article VII. NEGATIVE COVENANTS
	 	 	69	 
	 
	 	 	 	 
	7.01 Liens.
	 	 	69	 
	7.02 Investments.
	 	 	70	 
	7.03 Priority Indebtedness.
	 	 	71	 
	7.04 Fundamental Changes.
	 	 	71	 






ii









 






	 	 	 	 	 
	Section	 	Page	 
	 
	 	 	 	 
	7.05 Dispositions.
	 	 	72	 
	7.06 Change in Nature of Business.
	 	 	73	 
	7.07 Transactions with Affiliates.
	 	 	73	 
	7.08 Burdensome Agreements.
	 	 	73	 
	7.09 Use of Proceeds.
	 	 	73	 
	7.10 Financial Covenants.
	 	 	73	 
	7.11 No Negative Pledges to Other Persons.
	 	 	73	 
	7.12 Subsidiary Restrictions.
	 	 	74	 
	7.13 Sales and Leasebacks.
	 	 	74	 
	7.14 Sale of Receivables.
	 	 	75	 
	7.15 Issuance of Equity Interests by Subsidiaries.
	 	 	75	 
	7.16 Restricted Payments
	 	 	76	 
	7.17 Capital Expenditures
	 	 	76	 
	7.18 Amendments of Organization Documents
	 	 	77	 
	7.19 Accounting Changes
	 	 	77	 
	7.20 Prepayments, Etc. of Indebtedness
	 	 	77	 
	7.21 Lease Obligations
	 	 	77	 
	 
	 	 	 	 
	Article VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	77	 
	 
	 	 	 	 
	8.01 Events of Default.
	 	 	77	 
	8.02 Remedies Upon Event of Default.
	 	 	79	 
	8.03 Application of Funds.
	 	 	79	 
	 
	 	 	 	 
	Article IX. ADMINISTRATIVE AGENT
	 	 	80	 
	 
	 	 	 	 
	9.01 Appointment and Authority.
	 	 	80	 
	9.02 Rights as a Lender.
	 	 	80	 
	9.03 Exculpatory Provisions.
	 	 	81	 
	9.04 Reliance by Administrative Agent.
	 	 	81	 
	9.05 Delegation of Duties.
	 	 	82	 
	9.06 Resignation of Administrative Agent.
	 	 	82	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders.
	 	 	83	 
	9.08 No Other Duties, Etc.
	 	 	83	 
	9.09 Administrative Agent May File Proofs of Claim.
	 	 	83	 
	9.10 Collateral and Guaranty Matters.
	 	 	84	 
	 
	 	 	 	 
	Article X. MISCELLANEOUS
	 	 	85	 
	 
	 	 	 	 
	10.01 Amendments, Etc.
	 	 	85	 
	10.02 Notices; Effectiveness; Electronic Communication.
	 	 	86	 
	10.03 No Waiver; Cumulative Remedies; Enforcement.
	 	 	88	 
	10.04 Expenses; Indemnity; Damage Waiver.
	 	 	88	 
	10.05 Payments Set Aside.
	 	 	90	 
	10.06 Successors and Assigns.
	 	 	90	 
	10.07 Treatment of Certain Information; Confidentiality.
	 	 	94	 
	10.08 Right of Setoff.
	 	 	95	 






iii









 






	 	 	 	 	 
	Section	 	Page	 
	 
	 	 	 	 
	10.09 Interest Rate Limitation.
	 	 	95	 
	10.10 Counterparts; Integration; Effectiveness.
	 	 	95	 
	10.11 Survival of Representations and Warranties.
	 	 	96	 
	10.12 Severability.
	 	 	96	 
	10.13 Replacement of Lenders.
	 	 	96	 
	10.14 Governing Law; Jurisdiction; Etc.
	 	 	97	 
	10.15 Waiver of Jury Trial.
	 	 	97	 
	10.16 No Advisory or Fiduciary Responsibility.
	 	 	98	 
	10.17 Electronic Execution of Assignments and Certain Other Documents.
	 	 	98	 
	10.18 USA PATRIOT Act.
	 	 	98	 
	10.19 Time of the Essence.
	 	 	99	 
	 
	 	 	 	 
	SIGNATURES.
	 	 	S-1	 






iv









 





CREDIT AGREEMENT



This CREDIT AGREEMENT (hereinafter, as it may be from time to time amended, modified, extended,
renewed, substituted, and/or supplemented, referred to as this “Agreement”) is entered into
as of July 2, 2009, among INSURANCE SERVICES OFFICE, INC., a Delaware 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 (the
“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” attached hereto and made a part hereof 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” means this Credit Agreement, as it may be from time to time amended, modified,
extended, renewed, substituted, and/or supplemented.



“Alternative Currency” means any currency (other than Dollars) that is approved in
accordance with Section 1.08.



“Alternative Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as
determined by the L/C Issuer at such time on the basis of the Spot Rate (determined in respect of
the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.



“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. 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 the following percentages per annum, based upon the Consolidated
Funded Debt Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 6.02(b):




Applicable Rate




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Consolidated	 	 	 	 	 	Eurodollar	 	 
	Pricing	 	Funded Debt	 	Commitment	 	Rate (and	 	Letters of
	Level	 	Leverage Ratio	 	Fee	 	Base Rate)	 	Credit
	1
	 	 	£2.00:1	 	 	37.5 bps	 	250.0 bps	 	250.0 bps
	2
	 	>2.00:1 but £3.00:1	 	50.0 bps	 	275.0 bps	 	275.0 bps





Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Funded
Debt Leverage Ratio shall become effective as of the first Business Day immediately following the
date a Compliance Certificate is delivered pursuant to Section 6.02(b); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with such
Section, then, upon the request of the Required Lenders, Pricing Level 2 shall apply as of the
first Business Day after the date on which such Compliance Certificate was required to have been
delivered and shall remain in effect until the date on which such Compliance Certificate is
delivered. The Applicable Rate in effect from the Closing Date through the date on which the
Administrative Agent receives the Borrower’s Compliance Certificate and related financial
statements for its second fiscal quarter of the 2009 fiscal year shall be determined based upon
Pricing Level 1.



For the purposes of calculating the Consolidated Funded Debt Leverage Ratio in connection with this
definition only, and for no other purpose, to the extent that the Borrower acquires a Person in
accordance with the terms, conditions, and provisions of this Agreement, the Administrative Agent
shall include in the calculation of Consolidated EBITDA for (a) the first quarterly test date
following the acquisition, 100% of the Consolidated EBITDA of the acquired Person for the
“Historical Period” (as such term is defined below), (b) the second quarterly test date following
the acquisition, 75% of the EBITDA of the acquired Person for the Historical Period, (c) the third
quarterly test date following the acquisition, 50% of the Consolidated EBITDA of the acquired
Person for the Historical Period, and (d) the fourth quarterly test date following the acquisition,
25% of the Consolidated EBITDA of the acquired Person for the Historical Period, in the case of
each of the foregoing clauses (a) through (d) as such Consolidated EBITDA of such acquired
Person is determined by the Administrative Agent, in its sole and absolute discretion, based on the
Administrative Agent’s review of the acquired Person’s financial statements for the twelve (12)
month period immediately preceding the last day of the last fiscal quarter of the acquired Person
occurring prior to the date of acquisition (the “Historical Period”).
Notwithstanding anything to the contrary contained in this definition, the determination of the
Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).



“Applicable Time” means, with respect to any payments in any Alternative Currency, the
local time in the place of settlement for such Alternative Currency as may be determined by the L/C
Issuer to be necessary for timely settlement on the relevant date in accordance with normal banking
procedures in the place of payment.



“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an


2









 






Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



“Arranger” means any Person (other than the Lead Arranger) acting as an arranger in
connection with the Commitments, which Person may act in such capacity with the prior written
consent of the Borrower, such consent not to be unreasonably withheld, conditioned, or delayed.



“Assets” means, at any time, the total assets of the Borrower and its Subsidiaries which
would be shown as assets on a consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as of such time prepared in accordance with GAAP, after eliminating all amounts
properly attributable to minority interests, if any, in the stock and surplus of Subsidiaries.



“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”
attached hereto and made a part hereof or any other form approved by the Administrative Agent.



“Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized 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 Capitalized Lease.



“Audited Financial Statements” means the audited consolidated balance sheet of the Borrower
and its Subsidiaries for the fiscal year ended December 31, 2008, 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.



“Availability Period” means the period from and including the Closing 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 Prime Rate for such day, (b) the sum of the Federal Funds Rate for such day plus
fifty basis points (0.50%), and (c) except during any Eurodollar Unavailability Period, the
Eurodollar Rate for a one month Interest Period beginning on such day (or if such day is not a
Business Day, the immediately preceding Business Day).



“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.



“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 Loan,
means any such day on which dealings in Dollar deposits are conducted by and between banks in
the London interbank eurodollar market.


3









 






“Capital Expenditures” means, with respect to any Person for any period, any expenditure in
respect of the purchase or other acquisition of any fixed or capital asset (excluding normal
replacements and maintenance which are properly charged to current operations). For purposes of
this definition, the purchase price of equipment that is purchased simultaneously with the trade-in
of existing equipment or with insurance proceeds shall be included in Capital Expenditures only to
the extent of the gross amount by which such purchase price exceeds the credit granted by the
seller of such equipment for the equipment being traded in at such time or the amount of such
insurance proceeds, as the case may be.



“Capitalized Leases” means all leases that have been or should be, in accordance with GAAP,
recorded as capitalized leases.



“Cash Collateralize” has the meaning specified in Section 2.03(g).



“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) at any time prior to the creation of a Public Market, the owners of the Equity
Interests of the Borrower as of the Closing Date shall cease to own and control legally and
beneficially (free and clear of all Liens), either directly or indirectly, equity securities
in the Borrower representing more than 80% of the combined voting power of all of equity
securities entitled to vote for members of the board of directors or equivalent governing
body of the Borrower on a fully-diluted basis (and taking into account all such securities
that such owners have the right to acquire pursuant to any option right (as defined in
clause (b) below)); or




(b) at any time after the creation of a Public Market, any “person” or “group” (as such
terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, 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) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall be deemed to have
“beneficial ownership” of all securities that such person or group has the right to acquire,
whether such right is exercisable immediately or only after the passage of time (such right,
an “option right”)), directly or indirectly, of 25% or more of the equity securities
of the Borrower entitled to vote for members of the board of directors or equivalent
governing body of the Borrower on a fully-diluted basis (and taking into account all such
securities that such person or group has the right to acquire pursuant to any option right);




(c) during any period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Borrower cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (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



4









 






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 (excluding, in the case of both clause (ii) and clause
(iii), any individual whose initial nomination for, or assumption of office as, a member of
that board or equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or more directors by
any person or group other than a solicitation for the election of one or more directors by
or on behalf of the board of directors); or




(d) other than as a result of the occurrence of the Holding Company Reorganization, any
Person or two or more Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon consummation
thereof, will result in its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of the Borrower, or
control over the equity securities of the Borrower entitled to vote for members of the board
of directors or equivalent governing body of the Borrower on a fully-diluted basis (and
taking into account all such securities that such Person or group has the right to acquire
pursuant to any option right) representing 25% or more of the combined voting power of such
securities.


“Closing Date” means the first date all the conditions precedent in Section 4.01
are satisfied or waived in accordance with 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 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.



“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 Loans,
pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of
Exhibit “A” attached hereto and made a part hereof.



“Common Guaranty” means a collective reference to any guaranty or guaranties of any
Indebtedness of the Borrower and its Subsidiaries (a) under any of the Private Placement Facilities
or (b) any other Person provided that (i) such Person executes and delivers to the Administrative
Agent, for the benefit of the Lenders, a “Joinder Agreement” (as such term is defined in the
Sharing Agreement) and (ii) no Event of Default would result from the Borrower’s or such
Subsidiaries’ incurrence of such Indebtedness, as any of said guaranties may be from time to time
amended, modified, extended, renewed, substituted, and/or supplemented.



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



“Consolidated EBIT” means, for any period, for the Borrower and its Subsidiaries on a
consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the


5









 






following to the extent deducted in calculating such Consolidated Net Income: (i) interest expense
calculated on a GAAP basis for such period; (ii) the provision for Federal, state, local and
foreign income taxes payable by the Borrower and its Subsidiaries for such period; (iii) non-cash
charges for the appreciation of ESOP shares; (iv) non-cash stock option expenses under FAS 123R for
such period; (v) non-cash expenses in connection with the Borrower’s Top Hat Plan and Deferred
Compensation Plan for such period, to the extent such expenses are the result of increasing the
participant liabilities for said plans due to the appreciation in value of the investments held;
(vi) non-cash expenses other than temporary impairment of the Borrower’s Top Hat Plan and Deferred
Compensation Plan for such period, to the extent such expenses are the result of the depreciation
in value of the investments held in said plan; (vii) non-cash loss on the disposal of fixed assets
for such period; and (viii) other non-recurring expenses of the Borrower and its Subsidiaries
reducing such Consolidated Net Income which do not represent a cash item in such period or any
future period and minus (b) the following to the extent included in calculating such
Consolidated Net Income: (i) Federal, state, local and foreign income tax credits of the Borrower
and its Subsidiaries for such period; (ii) non-cash gains in connection with the Borrower’s Top Hat
Plan and Deferred Compensation Plan for such period, to the extent such gains are the result of
decreasing the participant liabilities for said plans due to the depreciation in value of the
investments held; and (iii) other non-recurring non-cash items increasing Consolidated Net Income
for such period.



“Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on a
consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the
following to the extent deducted in calculating such Consolidated Net Income: (i) interest expense
calculated on a GAAP basis; (ii) the provision for Federal, state, local and foreign income taxes
payable by the Borrower and its Subsidiaries for such period; (iii) depreciation and amortization
expense; (iv) non-cash charges for the appreciation of ESOP shares; (v) non-cash stock option
expenses under FAS 123R for such period; (vi) non-cash expenses in connection with the Borrower’s
Top Hat Plan and Deferred Compensation Plan for such period, to the extent such expenses are the
result of increasing the participant liabilities for said plans due to the appreciation in value of
the investments held; (vii) non-cash expenses other than temporary impairment of the Borrower’s Top
Hat Plan and Deferred Compensation Plan for such period, to the extent such expenses are the result
of the depreciation in value of the investments held; (viii) non-cash loss on the disposal of fixed
assets for such period; and (ix) other non-recurring expenses of the Borrower and its Subsidiaries
reducing such Consolidated Net Income which do not represent a cash item in such period or any
future period and minus (b) the following to the extent included in calculating such
Consolidated Net Income: (i) Federal, state, local and foreign income tax credits of the Borrower
and its Subsidiaries for such period; (ii) non-cash gains in connection with the Borrower’s Top Hat
Plan and Deferred Compensation Plan for such period, to the extent such gains are the result of
decreasing the participant liabilities for said plans due to the depreciation in value of the
investments held; and (iii) other non-recurring non-cash items increasing Consolidated Net Income
for such period.



“Consolidated Funded Debt Leverage Ratio” means, as of any date of determination, the ratio
of (a) the sum of (i) Consolidated Funded Indebtedness as of such date plus (ii) without
duplication, the redemption amount with respect to the capital stock of the Borrower required to be
redeemed during the twelve months next succeeding such date at the option of the holder (excluding,
however, the redemption amount with respect to any such capital stock (i) which may be put to the
Borrower
by the ESOP, except to the extent that the ESOP exercises such put and (ii) issuable upon the


6









 






exercise of any option granted to an employee of the Borrower or any of its Subsidiaries, except to
the extent such capital stock is actually put to the Borrower by such employee and the Borrower is
required to redeem such capital stock during the twelve (12) months next succeeding such date) to
(b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended.



“Consolidated Funded Indebtedness” means, as of any date of determination, for the Borrower
and its Subsidiaries on a consolidated basis, 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 obligations, whether contingent or
otherwise, arising under letters of credit (including standby and commercial letters of credit),
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 obligations to pay the
earn out portion of the purchase price for Permitted Acquisitions and trade accounts payable in the
ordinary course of business), (e) Attributable Indebtedness in respect of Capitalized 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 or joint venture (other than a joint venture that is
itself a corporation or limited liability company) in which the Borrower or a Subsidiary is a
general partner or joint venturer, 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, 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 (a) paid in cash and (b) to the extent treated as interest in accordance with GAAP paid
in cash.



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



“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.



“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.



“Customary Permitted Liens” means the following:





(a) Liens (other than Environmental Liens and any Lien imposed under ERISA) for taxes,
assessments or charges of any Governmental Authority or claims not yet due or which are
being contested in good faith by appropriate proceedings and with respect to
which adequate reserves or other appropriate provisions are being maintained to the



7









 







extent required by GAAP;




(b) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen
and other like Liens (other than any Lien imposed under ERISA) imposed by Laws, including,
without limitation, Liens in favor of any Governmental Authority securing progress payments
made under government contracts created in the ordinary course of business and for amounts
not yet due or which are being contested in good faith by appropriate proceedings which are
sufficient to prevent imminent foreclosure of such Liens, are promptly instituted and
diligently conducted and with respect to which adequate reserves or other appropriate
provision are being maintained to the extent required by GAAP;




(c) Liens (other than any Lien imposed under ERISA) incurred or deposits made in the
ordinary course of business (including, without limitation, surety bonds and appeal bonds)
in connection with workers’ compensation, unemployment insurance and other types of social
security benefits or to secure the performance of tenders, bids, leases, contracts,
statutory obligations and other similar obligations or arising as a result of progress
payments or deposits under government contracts (including foreign government contracts);
provided that in each such case such Liens (i) were not incurred or made in
connection with the incurrence or maintenance of Indebtedness, the borrowing of money, the
obtaining of advances or credit and (ii) do not in the aggregate materially detract from the
value of the Property so encumbered or materially impair the use thereof in the operation of
the Borrower’s or its consolidated Subsidiaries’ respective businesses;




(d) easements (including, without limitation, reciprocal easement agreements and utility
agreements), rights-of-way, covenants, consents, reservations, encroachments, variations and
other restrictions, charges or encumbrances (whether or not recorded) affecting the use of
real property or impairing the use thereof which are imposed by law or arise in the ordinary
course of business that do not secure any monetary obligations and do not materially detract
from the value of the affected property or interfere with the ordinary conduct of business
of the Person owning such Property;




(e) Liens arising out of and with respect to customer deposits made in the ordinary course
of the Borrower’s business;




(f) Liens arising as a result of the filing of any financing statement under any applicable
state uniform commercial code or comparable Laws of any jurisdiction covering consigned or
leased goods which do not constitute assets of the Borrower and which is not intended as
security; and




(g) extensions, renewals or replacements of any Lien referred to in clauses (a) through
(f) above; provided that (i) in the case of clauses (a) through (f) above, the
principal amount of the obligation secured thereby is not increased and (ii) any such
extension, renewal or replacement is limited to the Property originally encumbered thereby.


“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.


8









 






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



“Defaulting Lender” means any Lender that (a) has failed to fund any portion of the
Committed Loans, participations in L/C Obligations or participations in Swing Line Loans required
to be funded by it hereunder within one Business Day of the date required to be funded by it
hereunder unless such failure has been cured, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid by it hereunder
within one Business Day of the date when due, unless the subject of a good faith dispute or unless
such failure has been cured, or (c) has been deemed insolvent or become the subject of a bankruptcy
or insolvency proceeding.



“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.



“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency,
the equivalent amount thereof in Dollars as determined by the L/C Issuer at such time on the basis
of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of
Dollars with such Alternative Currency.



“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.



“Eligible Assignee” means any Person that meets the requirements to be an assignee under
Section 10.06(b)(iii), (v) and (vi) (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, any other Loan Party or any of their respective 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 contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.



“Environmental Lien” means a Lien in favor of any Governmental Authority for (a) any
liability under any Environmental Laws or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of any Hazardous


9









 






Materials into the environment.



“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) a withdrawal
by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during
a plan year in which it 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 Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer
Plan; (e) an 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 or Multiemployer
Plan; or (f) 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.



“ESOP” means that certain Insurance Services Office, Inc. Employee Stock Ownership Plan
established by the ESOP Trust Agreement dated January 3, 1997 as it may be amended and/or modified
from time to time, in a manner approved by the Administrative Agent (such approval not to be
unreasonably withheld or conditioned).



“Eurodollar Rate” means:





(a) For any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal
to (i) the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by
Reuters (or other commercially available source providing quotations of BBA LIBOR as
designated by the Administrative Agent from time to time) at approximately 11:00 a.m.,
London time, two Business 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 equivalent to
such Interest Period 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 first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by
Bank of America 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 Business Days prior to the commencement of such Interest Period.



10









 






(b) For any calculation of the Base Rate for any date of determination, the rate per annum
equal to (i) BBA LIBOR at approximately 11:00 a.m., London time, two Business Days prior to
such day for Dollar deposits (for delivery on such day) with a term equivalent to one month
or (ii) if such published rate is not available at such time for any reason, the rate
determined by the Administrative Agent to be the rate at which deposits in Dollars for
delivery on such date of determination in same day funds in the approximate amount of the
Base Rate Loan for which the Base Rate is being calculated, 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 Loan” means a Committed Loan that bears interest at a rate based on the
Eurodollar Rate.



“Eurodollar Unavailability Period” means any period of time during which a notice delivered
to the Borrower in accordance with Section 3.03(a) remains in full force and effect.



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




     “Excluded Issuances” by any Person means any secondary issuance or sale of Equity
Interests in such Person (i.e., the issuance or sale of such additional Equity Interests from which
such Person receives no cash proceeds) or issuances or sales of Equity Interests in such Person
pursuant to the issuance or exercise of options issued in connection with employee benefit plans.


“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 (however
denominated), and franchise 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 the case of any Lender, in which its applicable
Lending Office is located, (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
United States 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 additional
amounts from the Borrower with respect to such withholding tax pursuant to Section 3.01(a)(ii)
or (iii).



“Existing Letters of Credit” means those standby letters of credit issued by JPMorgan Chase
Bank, N.A. for the benefit of the Borrower and certain of its Subsidiaries, all as more fully
described on Schedule 1.01 attached hereto and made a part hereof.



“Extraordinary Receipt” means any cash received by or paid to or for the account of any
Person not in the ordinary course of business, including tax refunds, pension plan reversions,
proceeds of insurance (other than proceeds of business interruption insurance to the extent such
proceeds constitute compensation for lost earnings), condemnation awards (and payments in lieu
thereof), indemnity payments and any purchase price adjustments.



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




11









 







“Fair Market Value” means, at any time and with respect to any property, the sale value
that would be realized in an arm’s length sale between an informed and willing buyer and an
informed and willing seller, neither being under a compulsion to buy or sell, all as determined in
good faith by the Board of Directors of the Borrower.



“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 June 1, 2009, among the Borrower, the
Administrative Agent and the Lead Arranger.



“Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction other
than that in which the Borrower is resident for tax purposes (including such a Lender when acting
in the capacity of the L/C Issuer). For purposes of this definition, the United States, each State
thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.



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



“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 may be 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,
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




12









 







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.



“Guarantors” means, collectively, (a) ISO Claims Services, Inc., a Delaware corporation;
(b) ISO Investment Holdings, Inc., a Delaware corporation; (c) AIR Worldwide Corporation, a
Delaware corporation; (d) ISO Services, Inc., a Delaware corporation; (e) Xactware Solutions, Inc.,
a Delaware corporation; (f) Verisk Health, Inc., a Massachusetts corporation; (g) Interthinx, Inc.,
a California corporation; (h) D2Hawkeye, Inc., a Delaware corporation; and (i) any additional
guarantors added pursuant to the terms, conditions, and provisions of Section 6.12, all on
a joint and several basis.



“Guaranty” means the Continuing Guaranty made by the Guarantors in favor of the
Administrative Agent and the Lenders, substantially in the form of Exhibit “F” attached
hereto and made a part hereof, as said Continuing Guaranty may be from time to time amended,
modified, extended, renewed, substituted, and/or supplemented.



“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.



“Holding Company Reorganization” means the holding company reorganization and related
post-initial Public Offering governance arrangements referred to in the Proxy and Solicitation
Statement of Borrower, dated June 5, 2008.



“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;




(d) all obligations of such Person to pay the deferred purchase price of Property or
services (other than obligations to pay the earn out portion of the purchase price for
Permitted Acquisitions and trade accounts payable in the ordinary course of business);




(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



13









 






shall have been assumed by such Person or is limited in recourse;




(f) Capitalized 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 (specifically
excluding, with respect to Indebtedness of the Borrower and its Subsidiaries, any
guarantees, endorsements or other contingent obligations owing to or for the benefit of the
ESOP).


For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, 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 Capitalized Leases 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.



“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,
however, that if any Interest Period for a Eurodollar Rate 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 Loan, the period commencing on the date
such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and
ending on the date one, two, three or six months thereafter, as selected by the Borrower in its
Committed Loan Notice or such other period that is twelve months or less requested by the Borrower
and consented to by all the Lenders; provided that:





(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 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 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




14









 







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.



“IP Rights” has the meaning specified in Section 5.18.



“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.



“Joinder” means a joinder entered into by an Eligible 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-3” attached hereto and made a part hereof or
any other form approved by the Administrative Agent.



“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.



“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 (a) Bank of America in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder, and (b) solely with respect to
the Existing Letters of Credit, JPMorgan Chase Bank, N.A., its successors and assigns.



“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.



“Lead Arranger” means Banc of America Securities LLC, in its capacity as lead arranger and
book manager.



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




15









 







“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 and shall include
the Existing Letters of Credit. A Letter of Credit may not be a commercial letter of
credit. Letters of Credit may be issued in Dollars or in an Alternative Currency.



“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(i).



“Letter of Credit Sublimit” means an amount equal to $25,000,000.00. 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.



“Loan Documents” means this Agreement, each Note, each Issuer Document, the Fee Letter, and
the Guaranty.



“Loan Parties” means, collectively, the Borrower and each Guarantor.



“Material Adverse Effect” means a material adverse effect upon (a) the business, assets,
condition (financial or otherwise), performance, properties or operations of the Borrower and its
consolidated Subsidiaries, taken as a whole, (b) the ability of the Borrower to perform its
material obligations and duties under the Loan Documents, or (c) the ability of the Administrative
Agent to enforce the Obligations or to make use of any of the remedies available to the
Administrative Agent under the terms, conditions and provisions of this Agreement or any of the
other Loan Documents.



“Material Domestic Subsidiary” means any Domestic Subsidiary (a) which accounts for, or is
responsible for generating, ten percent (10%) or more of the consolidated operating income,
consolidated assets or consolidated revenue of the Borrower and its Subsidiaries, as of the most
recently ended fiscal quarter, or (b) which contributed more than ten percent (10%) of Consolidated
EBITDA for the most recently ended four fiscal quarter period.



“Maturity Date” means July 2, 2012; provided, however, that if such date is
not a Business Day, the Maturity Date shall be the next preceding Business Day.



“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.




     “Net Cash Proceeds” means:




     (a) with respect to any Disposition by any Loan Party or any of its respective
Subsidiaries, or any Extraordinary Receipt received or paid to the account of any Loan
Party or any of its Subsidiaries, the excess, if any, of (i) the sum of cash and cash



16









 






equivalents received in connection with such transaction (including any cash or cash
equivalents received by way of deferred payment pursuant to, or by monetization of, a note
receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the
principal amount of any Indebtedness that is secured by the applicable asset and that is
required to be repaid in connection with such transaction (other than Indebtedness under the
Loan Documents), (B) the reasonable and customary out-of-pocket expenses (including, without
limitation, any related income or transfer taxes) actually incurred by such Loan Party or
such Subsidiary in connection with such transaction and (C) appropriate amounts to be
provided by such Loan Party or such Subsidiary as a reserve required in accordance with GAAP
against any liabilities associated with such Disposition and retained by such Loan Party or
such Subsidiary, including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and any indemnification
obligations, all as described in reasonable detail in a written certificate signed by a
Responsible Officer of such Loan Party or such Subsidiary and delivered to the
Administrative Agent in connection with any such Disposition; provided that,
if the amount of any estimated taxes pursuant to subclause (B) above exceeds the
amount of taxes actually required to be paid in cash in respect of such Disposition, the
aggregate amount of such excess shall constitute Net Cash Proceeds; and




     (b) with respect to the sale or issuance of any Equity Interest by any Loan Party or
any of its respective Subsidiaries, or the incurrence or issuance of any Indebtedness by any
Loan Party or any of its respective Subsidiaries, the excess of (i) the sum of the cash and
cash equivalents received in connection with such transaction over (ii) the underwriting
discounts and commissions, and other reasonable and customary out-of-pocket expenses
(including, without limitation, any related income or transfer taxes) actually incurred by
such Loan Party or such Subsidiary in connection therewith; provided that,
if the amount of any estimated taxes pursuant to subclause (ii) above exceeds the
amount of taxes actually required to be paid in cash in respect of such Disposition, the
aggregate amount of such excess shall constitute Net Cash Proceeds.


“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” attached hereto and made a
part hereof.



“Obligations” means all advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or
Letter of Credit, 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 any Loan Party 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 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,


17









 






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 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 Dollar Equivalent amount of
the aggregate outstanding 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 of such date, including as a result of any reimbursements by the Borrower of
Unreimbursed Amounts.



“Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars,
the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the L/C Issuer
in accordance with banking industry rules on interbank compensation, and (b) with respect to any
amount denominated in an Alternative Currency, the rate of interest per annum at which overnight
deposits in the applicable Alternative Currency, in an amount approximately equal to the amount
with respect to which such rate is being determined, would be offered for such day by a branch or
Affiliate of Bank of America in the applicable offshore interbank market for such currency to major
banks in such interbank market.



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



“PBGC” means the Pension Benefit Guaranty Corporation.



“Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.



“Permitted Acquisition” means any merger, consolidation, or acquisition with or of any
Person which complies with each of the following conditions:





(a) said Person must be in a line of business substantially similar to those lines of
business conducted by the Borrower and its Subsidiaries as of the Closing Date or any
business substantially related, reasonably complimentary, or incidental thereto; and




(b) no Default or Event of Default shall exist at the time of, or shall result or be caused
by, such merger, consolidation, or acquisition; and




(c) all of the financial covenants set forth in Section 7.10 of this Agreement must
be complied with on both a pro forma combined basis for the then current period and on a
projected basis; and




(d) in the event the Borrower is not the surviving Person, then:




(i) the surviving Person shall be a domestic Person that expressly assumes, by a
written agreement satisfactory in form and substance to the Lenders (which
agreement may require, in connection with such assumption, the delivery of such



18









 






opinions of counsel (who may be in-house counsel) as the Lenders may reasonably
require), the obligations of the Borrower under the Loan Documents, including,
without limitation, all covenants contained therein, and such successor or acquiring
Person shall succeed to and be substituted for the Borrower with the same effect as
if it had been named herein as a party hereto, provided, however,
that no such sale shall release the Borrower from any of its obligations and
liabilities under this Agreement or any of the other Loan Documents unless such sale
is followed by the complete liquidation of the Borrower and substantially all the
assets of the Borrower immediately following such sale are distributed to the
successor or acquiring Person in such liquidation; and




(ii) the rolling twelve (12) month Consolidated EBITDA of the surviving Person and
its subsidiaries is at least as great as the rolling twelve (12) month Consolidated
EBITDA of the Borrower and its Subsidiaries immediately prior to such merger,
consolidation or acquisition; and




(e) if the closing date purchase price (excluding any earn out or contingent payments) with
respect to such merger, consolidation, or acquisition exceeds $15,000,000.00 but is less
than $100,000,000.00, the Administrative Agent shall have first received from the Borrower a
written certificate signed by a Responsible Officer showing, in reasonable detail, the
calculation of the pro-forma Consolidated Funded Debt Leverage Ratio of the Borrower and its
Subsidiaries, after giving effect to such merger, consolidation, or acquisition; and




(f) if the closing date purchase price (excluding any earn out or contingent payments) with
respect to such merger, consolidation, or acquisition exceeds $100,000,000.00, the
Administrative Agent shall have first received from the Borrower (i) a written certificate
signed by a Responsible Officer showing, in reasonable detail, the calculation of the
pro-forma Consolidated Funded Debt Leverage Ratio of the Borrower and its Subsidiaries,
after giving effect to such merger, consolidation, or acquisition, and (ii) the following
information, which certificate and information the Administrative Agent and all of the
Lenders shall have approved, in their reasonable discretion:




(A) pro-forma financial statements for the proposed merged, consolidated and/or to
be acquired Person showing the projected financial condition of said Person as of
the last day of the then current fiscal year; and




(B) to the extent available to the Borrower or any of its Subsidiaries under the
relevant acquisition, merger, or consolidation agreement, financial statements for
the prior three (3) fiscal years of the Person being acquired, merged with or
consolidated with or into; and




(g) if the pro-forma Consolidated Funded Debt Leverage Ratio of the Borrower and its
Subsidiaries, after giving effect to such merger, consolidation, or acquisition, is greater
than or equal to 2.25 -to- 1.0, the aggregate consideration paid, given, or otherwise
granted by the Borrower, the Guarantors, and their respective subsidiaries in connection
with such merger, consolidation, or acquisition and all other mergers, consolidations, or
acquisitions made or consummated within the 12 month period immediately preceding the date
of such merger, consolidation, or acquisition (including the date of such merger,
consolidation, or acquisition), does not exceed the lesser of (i) $250,000,000.00 or (ii)
50% of Consolidated EBITDA of the Borrower and its Subsidiaries during said 12 month
period. For the purposes of the foregoing clause (g)(ii), Consolidated EBITDA shall
be



19









 






calculated to include the Consolidated EBITDA from (A) the Person or business which is
the subject of the proposed merger, consolidation, or acquisition during said 12 month
period, and (B) any other Person or business acquired by the Borrower or its Subsidiaries
during said 12 month period, in the case of each of the foregoing clauses (A) and
(B), using the actual Consolidated EBITDA of such Person or business during said 12
month period without regard to whether said Consolidated EBITDA was generated prior to or
after the date such Person or business was acquired by the Borrower or its Subsidiaries.


Notwithstanding the foregoing conditions to the contrary, if the pro-forma Consolidated Funded Debt
Leverage Ratio of the Borrower and its Subsidiaries, after giving effect to any proposed merger,
consolidation, or acquisition, is greater than or equal to 2.25 -to- 1.0, and such merger,
consolidation, or acquisition fails to satisfy the conditions of the foregoing clause (g),
but otherwise satisfies the requirements of the foregoing clauses (a) through (f), as
applicable, such merger, consolidation, or acquisition will be a Permitted Acquisition so long as
the aggregate consideration paid, given, or otherwise granted by the Borrower, the Guarantors, and
their respective Subsidiaries in connection therewith and in connection with all other mergers,
consolidations, and acquisitions consummated in reliance on this paragraph during the applicable 12
month test period does not exceed $15,000,000.00.



“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” (as such term is defined in Section 3(3) of ERISA)
established by the Borrower or, with respect to any such plan that is subject to Section 412 of the
Code or Title IV of ERISA, any ERISA Affiliate.



“Platform” has the meaning specified in Section 6.02.



“Prime Rate” means the rate of interest in effect for such day as publicly announced from
time to time by Bank of America as its “prime rate.” 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 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.



“Priority Indebtedness” means, at any time, the sum (without duplication) of (a) all
Indebtedness (other than Indebtedness of the type specified in clauses (b) and (c) of the
definition of Indebtedness, or any Guarantee insofar as it relates to such types of Indebtedness)
of the Borrower secured by Liens not otherwise permitted by Sections 7.01(a) through (k),
inclusive, below plus (b) all Indebtedness of the Borrower’s Subsidiaries owed to any
Person other than to the Borrower or to a Wholly Owned Subsidiary (other than the Guaranty and any
Common Guaranty).



“Private Placement Documents” means any agreements, documents, promissory notes, or
certificates evidencing or executed and delivered in connection with any of the Private Placement
Facilities, together with any and all amendments, modifications, extensions, renewals,
substitutions, and/or supplements thereto or thereof.



“Private Placement Facility” and “Private Placement Facilities” means any of the
existing private placement facilities maintained by the Borrower as of the Closing Date with (a)
Prudential Capital Group / Prudential Investment Management, Inc., (b) Principal Global Investors
LLC, (c) New York Life Insurance Company, and (d) Aviva Investors North America, Inc., as any of
said
private placement facilities may be from time to time amended, modified, extended, renewed,


20









 






replaced, substituted, and/or supplemented.



“Private Placement Lender” and “Private Placement Lender” means any of the lenders
under any of the Private Placement Facilities, which lenders, as of the Closing Date, are (a)
Prudential Capital Group / Prudential Investment Management, Inc., (b) Principal Global Investors
LLC, (c) New York Life Insurance Company, and (d) Aviva Investors North America, Inc.




     “Property” or “Properties” shall mean any real or personal property, plant,
building, facility, structure, underground storage tank, equipment or unit, or other asset owned,
leased or operated by the Borrower and/or any of its Subsidiaries.



     “Public Market” shall exist if (a) a Public Offering has been consummated and (b) any
Equity Interests of the Borrower have been distributed by means of an effective registration
statement under the Securities Act of 1933.



     “Public Offering” means a public offering of the Equity Interests of the Borrower
pursuant to an effective registration statement under the Securities Act of 1933.


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



“Ratable Portion” means an amount equal to the product of (a) the amount of Net Cash
Proceeds, if any, being applied to the payment of (i) the Obligations in accordance with
Section 2.05(b)(i) or (ii) and (ii) all other Indebtedness, if any, of the Borrower or any
Subsidiary which may be secured but that is otherwise pari passu with the Obligations in right of
payment multiplied by (b) a fraction the numerator of which is the maximum principal amount
of the Aggregate Commitments and the denominator of which is the sum of (i) the maximum principal
amount of the Aggregate Commitments plus (ii) the aggregate principal amount of such other
Indebtedness.



“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.



“Release” shall mean release, spill, emission, leaking, pumping, injection, deposit,
disposal, discharge, dispersal, leaching or migration into the indoor or outdoor environment or
into or out of any Property, including the movement of Hazardous Materials through or in the air,
soil, surface water, groundwater or real property.



“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
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.




21









 







“Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or controller of a Loan Party and, solely for purposes of
notices given pursuant to Article II, any other officer or employee of the applicable Loan
Party so designated by any of the foregoing officers in a notice to the Administrative Agent. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed
to have acted on behalf of such Loan Party.



“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).



“Revaluation Date” means, with respect to any Letter of Credit, each of the following: (a)
each date of issuance of a Letter of Credit denominated in an Alternative Currency, (b) each date
of an amendment of any such Letter of Credit having the effect of increasing the amount thereof
(solely with respect to the increased amount), (c) each date of any payment by the L/C Issuer under
any Letter of Credit denominated in an Alternative Currency, and (d) such additional dates as the
Administrative Agent or the L/C Issuer shall determine or the Required Lenders shall require.



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



“Sharing Agreement” means a reference to that certain Second Amended and Restated Sharing
Agreement dated as of July 2, 2009, executed by and among the Administrative Agent, the Private
Placement Lenders, the “Prudential Noteholders” (as such term is defined therein), the “Principal
Noteholders” (as such term is defined therein), the “NY Life Noteholders” (as such term is defined
therein), and the “Aviva Noteholders” (as such term is defined therein), as said Second Amended and
Restated Sharing Agreement may be from time to time amended, modified, extended, renewed,
substituted, and/or supplemented, including, without limitation, by the execution and delivery of
any “Joinder Agreement” (as such term is defined in said Second Amended and Restated Sharing
Agreement).



“Significant Subsidiary” means any Subsidiary of the Borrower the aggregate book value of
which exceeds five percent (5%) of the Assets of the Borrower and its Subsidiaries as of the most
recently ended fiscal quarter or which contributed more than five percent (5%) of Consolidated
EBITDA for the most recently ended four fiscal quarter period.



“Spot Rate” for a currency means the rate determined by the Administrative Agent or the L/C
Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate
for the purchase by such Person of such currency with another currency through its principal
foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to
the date as of which the foreign exchange computation is made; provided that the
Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution
designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does
not have as of the date of determination a spot buying rate for any such currency;
and provided further that the L/C Issuer may use such spot rate quoted on the date
as of which


22









 






the foreign exchange computation is made in the case of any Letter of Credit
denominated in an Alternative Currency.



“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
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) $30,000,000.00 and (b) the
Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the Aggregate
Commitments.



“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).




23









 







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



“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 Loan.



“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under
Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in
accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the
Code for the applicable plan year.



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



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



“Wholly Owned Subsidiary” and “Wholly Owned Subsidiary” shall mean any Subsidiary
or Subsidiaries of the Borrower all of the Equity Interests (other than directors’ qualifying
shares but not in excess of the minimum number of shares necessary to satisfy local ownership legal
requirements) of which is/are, at the time as of which any such determination is being made, owned
by the Borrower, either directly or through any other Wholly Owned Subsidiary or Wholly Owned
Subsidiaries.




     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 “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, 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”



24









 






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.


(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 Interpretation No. 46 — Consolidation of Variable Interest Entities:
an interpretation of ARB No. 51 (January 2003) 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 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).




25











 





     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 Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time;
provided, however, 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 Dollar
Equivalent of 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.



     1.07 Interpretation and Construction of Exceptions/Carveouts to Article VII Negative
Covenants.


In connection with the exceptions/carveouts to the negative covenants set forth and described in
Article VII of this Agreement, each such exception/carveout shall be available as described
therein independent of, and separate, distinct, and apart from, any other such
exceptions/carveouts, including, without limitation, any other exceptions/carveouts expressly set
forth and described within the same section of said Article VII. Any and all such
exceptions/carveouts which make reference to an aggregate dollar amount (i.e., a “basket”) shall be
deemed to refer to the aggregate dollar amount which the Lenders will permit the Borrower and its
Subsidiaries to incur or to have incurred and to permit to remain outstanding subsequent to the
Closing Date, however, such aggregate dollar amount (i.e., a “basket”) shall be deemed to be
inclusive of, and not in addition to, the aggregate dollar amount of each such exception/carevout
which may have been previously incurred and which is currently outstanding as of the Closing Date.




     1.08 Additional Alternative Currencies.



     (a) The Borrower and its Subsidiaries may from time to time request that Letters of Credit be
issued in an Alternative Currency; provided that such Alternative Currency is a
lawful currency (other than Dollars) that is readily available and freely transferable and
convertible into Dollars. Any such request shall be subject to the approval of the Administrative
Agent and the L/C Issuer.



     (b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m., 20
Business Days prior to the desired issuance date of the proposed Letter of Credit (or such other
time or date as may be agreed by the Administrative Agent and the L/C Issuer, in their sole and
absolute discretion). The Administrative Agent shall promptly notify the L/C Issuer of such
request. The L/C Issuer shall notify the Administrative Agent, not later than 11:00 a.m., ten
Business Days after receipt of such request whether it consents, in its sole and absolute
discretion, to the issuance of Letters of Credit in the requested Alternative Currency.


Any failure by the L/C Issuer to respond to such request within the time period specified in the
preceding sentence shall be deemed to be a refusal by the L/C Issuer to permit Letters of Credit
to be issued in such requested Alternative Currency. If the Administrative Agent and the L/C
Issuer consent to the issuance of Letters of Credit in such requested Alternative Currency, the


26









 






Administrative Agent shall so notify the Borrower or the applicable Subsidiary and such currency
shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of
any Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any
request for an additional Alternative Currency under this Section 1.08, the Administrative
Agent shall promptly so notify the Borrower and such Subsidiary. Any specified currency of an
Existing Letter of Credit that is not Dollars shall be deemed to be an Alternative Currency with
respect to such Existing Letter of Credit only.




     1.09
Exchange Rates; Currency Equivalents. (a) The L/C Issuer shall determine the Spot Rates as of each Revaluation Date to be used for
calculating Dollar Equivalent amounts of Outstanding Amounts denominated in Alternative Currencies.
Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates
employed in converting any amounts between the applicable currencies until the next Revaluation
Date to occur.



     (b) Wherever in this Agreement in connection with the issuance, amendment or extension of a
Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in
Dollars, but such Letter of Credit is denominated in an Alternative Currency, such amount shall be
the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of
such Alternative Currency, with 0.50 of a unit being rounded upward), as determined by the L/C
Issuer.



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, however, 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 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 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 11:00 a.m. (i) three Business Days prior to the
requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of
any conversion of Eurodollar Rate Loans to Base Rate Committed


27









 






 Loans, and (ii) on the requested
date of any Borrowing of Base Rate Committed Loans; provided, however, that if the
Borrower wishes to request Eurodollar Rate 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 11:00 a.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 11:00 a.m., three
Business Days before the requested date of such Borrowing, conversion or continuation, the
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 Loans shall be in a principal amount of $5,000,000.00 or a whole multiple of
$1,000,000.00 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 $500,000.00 or a whole multiple of $100,000.00 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 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 Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar
Rate 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 subsection. 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 1:00 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,
however, that if,


28









 






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 Loan may be continued or converted only
on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of a
Default, no Loans may be requested as, converted to or continued as Eurodollar Rate 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 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 the Prime 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 Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit denominated in Dollars or in one or more
Alternative Currencies for the account of the Borrower or its Subsidiaries, and to amend or
extend Letters of Credit previously issued by it, in accordance with subsection (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. All Existing Letters of Credit
shall be
deemed to have been issued pursuant hereto, and from and after the Closing Date shall be
subject to and governed by the terms and conditions hereof. The Borrower hereby covenants
and agrees that on or before September 2, 2009, it shall cause new Letters of Credit to be
issued hereunder by Bank of America in replacement for the Existing Letters of Credit and
that it shall cause the Existing Letters of Credit to be returned to JPMorgan



29









 







Chase Bank, N.A.




(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 such 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





(B) the expiry date of such 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 such 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 such Letter of Credit
in particular or shall impose upon the L/C Issuer with respect to such 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 Closing Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good faith deems material
to it;




(B) the issuance of such 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, such
Letter of Credit is in an initial stated amount less than $2,500.00;




(D) except as otherwise agreed by the Administrative Agent and the L/C Issuer, such
Letter of Credit is to be denominated in a currency other than Dollars or an
Alternative Currency;




(E) such Letter of Credit contains any provisions for automatic reinstatement of the
stated amount after any drawing thereunder;




(F) a default of any Lender’s obligations to fund under Section 2.03(c)
exists or any Lender is at such time (1) a Defaulting Lender hereunder or (2) a
Lender as to which (x) the L/C Issuer has a good faith belief that such Lender has
defaulted in fulfilling its obligations under one or more other syndicated credit
facilities or (y) an entity that controls such Lender has been deemed insolvent or
become subject to a bankruptcy or other similar proceeding, unless in any such event
the L/C Issuer has entered into arrangements (satisfactory to the L/C Issuer) with
the Borrower or such Lender to eliminate the L/C Issuer’s risk with respect to such
Lender, including, without limitation, the posting of cash collateral or other
security with respect to such Lender’s obligations in connection with such Letter
of Credit; or




(G) the L/C Issuer does not as of the issuance date of such requested Letter of
Credit issue Letters of Credit in the requested currency.




(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 such Letter of Credit in its amended
form under the terms hereof.



30









 







(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 such Letter of Credit in its amended
form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept
the proposed amendment to such Letter of Credit.




(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 Letters 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 11:00 a.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 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 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 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 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 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 any Loan Party, at least one Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit,
that one or more



31









 







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 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 may, in its sole and absolute discretion, agree to 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. Unless otherwise
directed by the L/C Issuer, 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) 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. In the case of a Letter of Credit denominated in an Alternative Currency,
the Borrower shall reimburse the L/C Issuer in such Alternative
Currency, unless (A) the L/C Issuer (at its option) shall have specified in such notice that
it will require reimbursement in Dollars, or (B) in the absence of any such requirement for
reimbursement in Dollars, the Borrower shall have notified the L/C Issuer promptly following
receipt of the notice of drawing that the Borrower will reimburse the L/C Issuer in Dollars.
In the case of any such reimbursement in Dollars of a drawing under a Letter



32









 







of Credit denominated in an Alternative Currency, the L/C Issuer shall notify the Borrower of the
Dollar Equivalent of the amount of the drawing promptly following the determination thereof.
Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of
Credit to be reimbursed in Dollars, or the Applicable Time on the date of any payment by the
L/C Issuer under a Letter of Credit to be reimbursed in an Alternative Currency (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 and in the applicable
currency. 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 (expressed in Dollars in the amount of the Dollar Equivalent thereof in
the case of a Letter of Credit denominated in an Alternative Currency) (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 to the Administrative Agent for the account of the L/C Issuer, in Dollars, at the
Administrative Agent’s Office for Dollar-denominated payments 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 in Dollars.




(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 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



33









 







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 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, however, 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), 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 applicable
Overnight Rate from time to time in effect, 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 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 Dollars and 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 applicable
Overnight Rate from time to time in effect. The obligations of the Lenders under this
clause (ii) 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




34









 








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;




(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; or




(vi) any adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Borrower or any Subsidiary or in the relevant currency
markets generally.


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



35









 






Letter of Credit; provided, however, 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, however, 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) Cash Collateral. Upon the request of the Administrative Agent, (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. Sections 2.05 and
8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder.
For purposes of this Section 2.03, Section 2.05 and Section 8.02(c),
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the L/C Obligations,
cash or deposit account balances pursuant to documentation in form and substance satisfactory to
the Administrative Agent and the L/C Issuer (which documents are hereby consented to by the
Lenders). Derivatives of such term have corresponding meanings. The Borrower hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a security interest in all
such cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash
Collateral shall be maintained in blocked, non-interest bearing deposit accounts at Bank of
America.



(h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer and
the Borrower when a Letter of Credit is issued (including any such agreement applicable to an
Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit,
and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce at the time of issuance shall apply to each
commercial Letter of Credit.



(i) 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
“Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate
times the Dollar Equivalent of the daily amount available to be drawn under such Letter of
Credit. 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,


36









 






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.



(j) 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, computed on the Dollar
Equivalent of 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, in Dollars, 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.



(k) 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.



(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit
issued or outstanding hereunder is in support of any obligations of, or is for the account of, a
Subsidiary, 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 for the account of Subsidiaries inures to the benefit of the Borrower, and that
the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.




     2.04 Swing Line Loans.


(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing Line
Lender agrees, such agreement being made in reliance upon the agreements of the other Lenders set
forth in this Section 2.04, to make loans (each such loan, a “Swing Line Loan”) to
the Borrower (in Dollars only) 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, however, that
the Swing Line Lender shall not be permitted or required to make any
Swing Line Loan if: (i) after giving effect to any Swing Line Loan, (A) the Total Outstandings
shall exceed the Aggregate Commitments, or (B) 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 exceed such Lender’s Commitment, or (ii) unless


37









 






otherwise agreed to by
the Swing Line Lender, in its sole and absolute discretion, in writing, a default of any Lender’s
obligations to fund under this Section 2.04 exists or any Lender is at such time (A) a
Defaulting Lender hereunder or (B) a Lender as to which (x) the Swing Line Lender has a good faith
belief that such Lender has defaulted in fulfilling its obligations under one or more other
syndicated credit facilities or (y) an entity that controls such Lender has been deemed insolvent
or become subject to a bankruptcy or other similar proceeding, unless in any such event the Swing
Line Lender has entered into arrangements (satisfactory to the Swing Line Lender) with the Borrower
or such Lender to eliminate the Swing Line Lender’s risk with respect to such Lender, including,
without limitation, the posting of cash collateral or other security with respect to such Lender’s
obligations in connection with such Swing Line Loan. 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 $1,000,000.00, 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.



(c) Refinancing of Swing Line Loans.





(i) The Swing Line Lender at any time in its sole and absolute 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



38









 







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 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.




(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,
however, 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.



39









 





(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) Optional. (i) 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 (A) such notice must be received by the Administrative Agent
not later than 11:00 a.m. (1) three Business Days prior to any date of prepayment of Eurodollar
Rate Loans and (2) on the date of prepayment of Base Rate Committed Loans; (B) any prepayment of
Eurodollar Rate Loans shall be in a principal amount of $5,000,000.00 or a whole multiple of
$1,000,000.00 in excess thereof; and (C) any prepayment of Base Rate Committed Loans shall be in a
principal amount of $500,000.00 or a whole multiple of $100,000.00 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 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
Loan shall be accompanied by all accrued interest on the amount prepaid, together with any
additional amounts required pursuant to Section 3.05. Each such prepayment shall be
applied to the Committed Loans of the Lenders in accordance with their respective
Applicable Percentages.





     (ii) 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 (A) such
notice must be received by the Swing Line Lender and the Administrative Agent not later than



40









 







1:00 p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum
principal amount of $100,000.00. 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.



(b) Mandatory.





(i) If any Loan Party or any of its respective Subsidiaries Disposes of any Property (other
than any Disposition of any Property permitted by Section 7.05(b)) which results in
the realization by such Person of Net Cash Proceeds, the Borrower shall prepay Loans in an
aggregate principal amount equal to (A) 100% of such Net Cash Proceeds multiplied by
(B) the Ratable Portion of the Aggregate Commitments, immediately upon receipt thereof by
such Person (such prepayments to be applied as set forth in clause (v) below);
provided, however, that, with respect to any Net Cash Proceeds realized
under a Disposition described in this Section 2.05(b)(i), at the election of the
Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of
such Disposition), and so long as no Default shall have occurred and be continuing, such
Loan Party or such Subsidiary may cause said Net Cash Proceeds to be reinvested in
outstanding capital stock of the Borrower, Permitted Acquisitions, internal product
development or Investments of the type described in the “Investment Guidelines” of the
Borrower dated July 1999, a copy of which has been previously delivered to and approved by
the Lenders, in the case of any of the foregoing within 90 days of the receipt of such Net
Cash Proceeds; and provided, further, however, that any Net Cash
Proceeds not applied as described hereinabove within 90 days of the receipt thereof shall be
immediately applied to the prepayment of the Loans as set forth in this Section
2.05(b)(i).




(ii) Upon the sale or issuance by any Loan Party or any of its respective Subsidiaries of
any of its Equity Interests (other than (x) Excluded Issuances, (y) in connection with a
Public Offering or (z) sales or issuances of Equity Interests to another Loan Party), which
results in the realization by such Person of Net Cash Proceeds, the Borrower shall prepay
Loans in an aggregate principal amount equal to (A) 100% of such Net Cash Proceeds
multiplied by (B) the Ratable Portion of the Aggregate Commitments, immediately upon
receipt thereof by such Person (such prepayments to be applied as set forth in clause
(v) below); provided, however, that, with respect to any Net Cash
Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the
election of the Borrower (as notified by the Borrower to the Administrative Agent on or
prior to the date of such Disposition), and so long as no Default shall have occurred and be
continuing, such Loan Party or such Subsidiary may cause said Net Cash Proceeds to be
reinvested in outstanding capital stock of the Borrower, Permitted Acquisitions, internal
product development or Investments of the type described in the “Investment Guidelines” of
the Borrower dated July 1999, a copy of which has been previously delivered to and approved
by the Lenders, in the case of any of the foregoing within 90 days of the receipt of such
Net Cash Proceeds; and provided, further, however, that any Net Cash
Proceeds
not applied as described hereinabove within 90 days of the receipt thereof shall be
immediately applied to the prepayment of the Loans as set forth in this Section
2.05(b)(ii).



41









 






(iii) Upon the incurrence or issuance by any Loan Party or any of its respective
Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred
or issued pursuant to Section 7.02), the Borrower shall prepay an aggregate
principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom
immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to
be applied as set forth in clause (v) below).




(iv) Upon any Extraordinary Receipt in excess of $50,000,000.00 received by or paid to or
for the account of any Loan Party or any of its respective Subsidiaries, and not otherwise
included in clauses (i), (ii) or (iii) of this Section 2.05(b), the Borrower
shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds
received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary
(such prepayments to be applied as set forth in clause (v) below); provided,
however, that with respect to any proceeds of insurance, condemnation awards (or
payments in lieu thereof) or indemnity payments, at the election of the Borrower (as
notified by the Borrower to the Administrative Agent on or prior to the date of receipt of
such insurance proceeds, condemnation awards or indemnity payments), and so long as no
Default or Event of Default shall have occurred and be continuing, such Loan Party or such
Subsidiary may apply such net insurance proceeds, condemnation awards or indemnity payments
(A) to the repayment in full of any Indebtedness which was secured by the Property or
Properties so damaged, destroyed, or condemned or (B) to reinvest such net insurance
proceeds, condemnation awards or indemnity payments in outstanding Equity Interests of the
Borrower, Permitted Acquisitions, internal product development or Investments of the type
described in the “Investment Guidelines” of the Borrower dated July 1999, a copy of which
has been previously delivered to and approved by the Lenders), in either case within 180
days of the receipt thereof; provided, further, however, that any
cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as
set forth in this Section 2.05(b)(iv).




(v) Prepayments made pursuant to this Section 2.05(b) shall not permanently
reduce the Aggregate Commitments and, first, shall be applied ratably to the L/C
Borrowings and the Swing Line Loans, second, shall be applied ratably to the
outstanding Committed Loans, and, third, shall be used to Cash Collateralize the
remaining L/C Obligations; and the amount remaining, if any, after the prepayment in full of
all L/C Borrowings, Swing Line Loans and Committed Loans outstanding at such time and the
Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment
amounts, cash collateralization amounts and remaining amount being, collectively, the
“Reduction Amount”) may be retained by the Borrower for use in the ordinary course
of its business, and the Aggregate Commitments shall not be permanently reduced by
the Reduction Amount. Upon the drawing of any Letter of Credit that has been Cash
Collateralized, the funds held as Cash Collateral shall be applied (without any further
action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C
Issuer or the Lenders, as applicable.




(vi) There shall be no annual “clean-down” required in connection with any of the
outstanding Committed Loans.


(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


42









 






Obligations
in an aggregate amount equal to such excess; provided, however, 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 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 11:00 a.m. five Business Days
prior to the date of termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $10,000,000.00 or any whole multiple of $1,000,000.00 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.



     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 subsection (b) below, (i) each Eurodollar Rate 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) (i) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.





(ii) If any amount (other than principal of any Loan) payable by the Borrower under
any Loan Document is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, then upon the request of the
Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate
per annum at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.




(iii) Upon the request of the Required Lenders, while any Event of Default exists, the



43









 







Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder
at a fluctuating interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.




(iv) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.


(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 subsections (i) and (j) of Section 2.03:



(a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the account of
each Lender 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. 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,
commencing with the first such date to occur after the Closing Date, 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 computed and
multiplied by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect. For purposes of computing the commitment fee, Swing Line Loans
shall not be counted towards or considered to be usage of the Aggregate Commitments.




44









 





(b) Other Fees.




(i) The Borrower shall pay (A) to the Lead Arranger and the Administrative Agent for their
own respective accounts fees in the amounts and at the times specified in the Fee Letter and
(B) to any other Arranger fees in such amounts and at such times as are agreed upon between
such Arranger and the Borrower. 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; Retroactive Adjustments of Applicable Rate.
(a) All computations of interest for Base Rate Loans 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.



     (b) If, as a result of any restatement of or other adjustment to the financial statements of the
Borrower or for any other reason, the Borrower or the Lenders determine that (i) the Consolidated
Funded Debt Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate
and (ii) a proper calculation of the Consolidated Funded Debt Leverage Ratio would have resulted in
higher pricing for such period, the Borrower shall immediately and retroactively be obligated to
pay to the Administrative Agent for the account of the applicable Lenders or the L/C Issuer, as the
case may be, promptly on demand by the Administrative Agent (or, after 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, automatically and without further action by the Administrative Agent, any Lender
or the L/C Issuer), an amount equal to the excess of the amount of interest and fees that should
have been paid for such period over the amount of interest and fees actually paid for such period.
This paragraph shall not limit the rights of the Administrative Agent, any Lender or the L/C
Issuer, as the case may be, under Section 2.03(c)(iii), 2.03(i) or 2.08(b)
or under Article VIII or elsewhere under this Agreement. The Borrower’s obligations under
this paragraph shall survive the termination of the Aggregate Commitments and the repayment of all
other Obligations hereunder.



     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


45









 






 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 subsection (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, 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 (i) after 2:00 p.m., in the case of payments in Dollars, or (ii) after the Applicable Time
specified by the Administrative Agent in the case of payments in an Alternative Currency, shall in
each case 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 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 Overnight
Rate, plus any administrative, processing or similar
fees customarily charged by the Administrative Agent in connection with the foregoing, and (B)


46









 






 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.




          (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 Overnight Rate.



A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing
under this subsection (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


47









 






greater than its pro rata share thereof
as provided herein, then the Lender receiving such greater 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 the Borrower pursuant to and in accordance with the express terms of this Agreement or
(y) 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 to the Borrower or any Subsidiary
thereof (as to which the provisions of this Section shall apply).


Each Loan Party 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 such Loan Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of
such participation.



Notwithstanding any term, condition or provision of this Section 2.13 or any other
provision of this Agreement to the contrary, any payment or other amount received by the L/C Issuer
or the Swing Line Lender, respectively, from cash or deposit account balances used to Cash
Collateralize obligations of a Lender to (A) the L/C Issuer, in accordance with the terms,
conditions, and provisions of Section 2.03(a)(iii)(F), or (B) the Swing Line Lender, in
accordance with the terms, conditions, and provisions of Section 2.04(a)(ii), shall be the
for the sole benefit of the L/C Issuer and the Swing Line Lender, respectively, and shall not be
subject to the sharing provisions of this Section 2.13.




     2.14 Increase in Commitments.


(a) Continuing Syndication of the Facility. For a period of time commencing on the date
hereof and continuing through September 30, 2009, provided there exists no Default, the Lead
Arranger and any other Arranger(s) shall continue to syndicate the Facility in an attempt, on a
best efforts basis, to obtain additional Commitments from additional Lenders sufficient to bring
the total amount of Commitments hereunder up to an aggregate maximum principal of $500,000,000.00.
Notwithstanding any references contained in this Agreement or elsewhere to the contrary, the
aggregate maximum principal amount of the Commitments shall never exceed a maximum aggregate
principal amount of $500,000,000.00.



(b) Notification by Lead Arranger; Additional Lenders. The Lead Arranger shall notify the
Borrower and the Administrative Agent (who shall, in turn, notify each Lender) when any Eligible
Assignee desires to become a Lender hereunder. Subject to the approval of the Administrative Agent
(which approval shall not be unreasonably withheld or conditioned), the
Borrower may also invite additional Eligible Assignees to become Lenders hereunder. Each such
Eligible Assignee who desires to become a Lender and provide a Commitment hereunder


48









 






shall do so
pursuant to a Joinder, which such Eligible Assignee shall execute and deliver to the Administrative
Agent, together with a processing and recordation fee in the amount of $3,500.00; provided,
however, that the Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any Joinder. The Eligible Assignee shall also
deliver to the Administrative Agent an Administrative Questionnaire. In no event shall any such
Eligible Assignee be entitled to become a Lender hereunder in the event such Eligible Assignee
would not be entitled to become a Lender pursuant to Section 10.06.



(c) 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”) of such increase. The Administrative Agent
shall promptly notify the Borrower and the Lenders of the Increase Effective Date with respect to
such increase in the Aggregate Commitments.



(d) Conditions to Effectiveness of Increase. As a condition precedent to any such
increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party
dated as of the applicable Increase Effective Date (in sufficient copies for each Lender) signed by
a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by
such Loan Party approving or consenting to such increase, and (ii) in the case 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 on and
as of the Increase Effective Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct as of such earlier
date, and except that for purposes of this Section 2.15, the representations and warranties
contained in subsections (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. Effective on any Increase Effective Date, all
Committed Loans and risk participations outstanding under Section 2.03 or Section
2.04, in each case outstanding on the Increase Effective Date, shall be reallocated by the
Administrative Agent (with notice to the Lenders) to the extent necessary to keep said outstanding
Committed Loans and risk participations ratable with the current Applicable Percentages, after
giving effect to the applicable increase in the Aggregate Commitments.



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




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 subsection (e) below.





(ii) If the Borrower or the Administrative Agent shall be required by the Code to



49









 







withhold or deduct any Taxes, including both United States Federal backup withholding and withholding
taxes, from any payment, then (A) the Administrative Agent or the Borrower, as the case may
be, shall withhold or make such deductions as are determined by the Administrative Agent or
the Borrower, as the case may be, to be required based upon the information and
documentation it has received pursuant to subsection (e) below, (B) the
Administrative Agent or the Borrower, as the case may be, 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 subsection
(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 subsection (a) or
(b) above, 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 10 days after 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) withheld or
deducted by the Borrower or the Administrative Agent or paid by the Administrative Agent, such
Lender or the L/C Issuer, as the case may be, on or with respect to any payment by or on account of
any obligation of the Borrower hereunder or otherwise with respect to any Loan Document, 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. The Borrower shall also, and does hereby, indemnify the
Administrative Agent, and shall make payment in respect thereof within 10 days after demand
therefor, 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) of this subsection. 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.





     (ii) Without limiting the provisions of subsection (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 10 days after 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 subsection (e). Each Lender and the L/C Issuer
hereby



50









 







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 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, 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 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,
at the request of the Borrower or the Administrative Agent, respectively, 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 is subject to backup
withholding or information reporting requirements; and


(B) each Foreign Lender 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 becomes a Lender
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 is legally entitled to do so), whichever of the following is applicable:




(I) executed originals of Internal Revenue Service Form W-8BEN



51









 







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 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 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.





(iv) The Administrative Agent shall deliver to the Borrower, when reasonably requested by
the Borrower, a properly completed and executed applicable IRS form to permit the Borrower
to determine (A) whether or not payments made hereunder or under any other Loan Document are
subject to U.S. Federal withholding tax, (B) if applicable, the required rate of withholding
or deduction of such tax, and (C) the Administrative Agent’s entitlement to any available
exemption from, or reduction of, U.S. federal withholding tax in respect of payments to be
made to the Administrative Agent by a Loan Party pursuant to this Agreement or any other
Loan Document.


(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 (or a credit against its future tax liability in lieu of
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 3.01, it
shall pay to the Borrower an amount equal to such refund or credit in lieu thereof (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 or credit in lieu


52









 






 thereof), 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 or credit in lieu thereof), 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 and delivers to the Borrower evidence reasonably satisfactory
to such Loan Parties of such repayment. This subsection 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.




     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 Eurodollar Rate Loans, 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 market, then,
on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation
of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Committed Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert (a) all Eurodollar Rate Loans of such
Lender and (b) all Base Rate Loans of such Lender as to which the interest rate is determined with
reference to the Eurodollar Rate to Base Rate Loans as to which the interest rate is not determined
with reference to the Eurodollar Rate, either on the last day of the Interest Period therefor, if
such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans or
Base Rate Loans. Notwithstanding the foregoing to the contrary and despite the illegality for such
a Lender to make, maintain or fund Eurodollar Rate Loans or Base Rate Loans as to which the
interest rate is determined with reference to the Eurodollar Rate, that Lender shall remain
committed to make Base Rate Loans and shall be entitled to recover interest thereon at the Base
Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted.



     3.03 Inability to Determine Rates.
If the Required Lenders determine that for any reason in connection with any request for a
Eurodollar Rate 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 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 Loan or in connection with a Base Rate Loan, or (c) the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with
a Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding
or maintaining such Loan, the Administrative Agent will promptly so notify the Borrower and each
Lender. Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate Loans and
Base 



53











 




Rate Loans as to which the interest rate is determined with reference to the Eurodollar Rate shall
be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice; provided that any Eurodollar Rate Loan outstanding prior to the giving
of such notice may remain outstanding after the giving of such notice until the end of the then
applicable Interest Period with respect thereto (without giving effect to any subsequent
continuation or conversion), unless such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans or Base Rate Loans for the remaining duration of such Interest Period. Upon
receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion
to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such
request into a request for a Committed Borrowing of Base Rate Loans as to which the interest rate
is not determined with reference to the Eurodollar Rate in the amount specified therein.




     3.04 Increased Costs.


(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;




(ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with respect to
this Agreement, any Letter of Credit, any participation in a Letter of Credit or any
Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such Lender
or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by
Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax
payable by such Lender or the L/C Issuer); or




(iii) 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 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 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, upon 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.




(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




54









 







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.



(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 subsection (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.



(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 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 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 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;



(c) any failure by the Borrower to make payment of any drawing under any Letter of Credit (or
interest due thereon) denominated in an Alternative Currency on its scheduled due date or any
payment thereof in a different currency; or



(d) any assignment of a Eurodollar Rate 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




55









 







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 Loan made by it at the
Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate 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.



(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.



56









 





ARTICLE IV.

CONDITIONS PRECEDENT TO Credit Extensions




     4.01 Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to
make its initial Credit Extension hereunder is subject to satisfaction of the following conditions
precedent:



(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 signing Loan Party, each dated the Closing Date (or, in the case of
certificates of governmental officials, a recent date before the Closing Date) and each in form and
substance satisfactory to the Administrative Agent and each of the Lenders:





(i) executed counterparts of this Agreement and the Guaranty, 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;




(iii) such certificates of resolutions or other action, incumbency certificates and/or other
certificates of Responsible Officers of each Loan Party as the Administrative Agent may
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 such Loan Party is a party;




(iv) such documents and certifications as the Administrative Agent may reasonably require to
evidence that each Loan Party is duly organized or formed, and that each of the Borrower and
the Guarantors is validly existing, in good standing and qualified to engage in business in
each jurisdiction where its ownership, lease or operation of properties or the conduct of
its business requires such qualification, except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect;




(v) a favorable opinion of McCarter & English, LLP, counsel to the Loan Parties, addressed
to the Administrative Agent and each Lender, as to the matters set forth in Exhibit
“G” attached hereto and made a part hereof and such other matters concerning the Loan
Parties and the Loan Documents as the Required Lenders may reasonably request;




(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies
of all consents, licenses and approvals required in connection with the execution, delivery
and performance by such Loan Party and the validity against such Loan Party of the Loan
Documents to which it is a party, and such consents, licenses and approvals shall be in full
force and effect, or (B) stating that no such consents, licenses or approvals are so
required;




(vii) 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, and
(B) that there has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either individually or in
the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Funded
Debt Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on March
31, 2009;



57









 






(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of
the Borrower ended on March 31, 2009, signed by a Responsible Officer of the Borrower;




(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents
has been obtained and is in effect;




(x) evidence that the Borrower’s bilateral credit facilities maintained with each of (A)
Bank of America, N.A., (B) JPMorgan Chase Bank, N.A., (C) Morgan Stanley Bank, N.A., and (D)
Wachovia Bank, N.A., have been or concurrently with the Closing Date are being terminated;
and




(xi) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders
reasonably may require.


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



(c) Unless waived by the Administrative Agent, the Borrower shall have paid (a) all reasonable
actual fees, charges and disbursements of counsel to the Administrative Agent and the Lead Arranger
(directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to
or on the Closing 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) and (b)
all reasonable actual due diligence expenses (not to exceed $10,000.00 without the Borrower’s prior
written consent) incurred by the Administrator Agent and the Lead Arranger, in connection with the
syndication of the credit facilities provided for herein and the preparation, negotiation,
execution, and delivery of the Loan Documents; provided, however, the fees paid to
counsel to the Administrative Agent and the Lead Arranger shall in no event exceed $150,000.00
(exclusive of its actual reasonable out-of-pocket costs and expenses).



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 Closing 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 Loans) is subject to the following
conditions precedent:



(a) The representations and warranties of the Borrower and each other Loan Party contained in
Article V or any other Loan Document, or which are contained in any document furnished at
any time under or in connection herewith or therewith, shall be true and correct on and as of the
date of such Credit Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and correct as of such
earlier date, and except that for purposes of this Section 4.02, the representations and
warranties contained in subsections (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.




58









 







(b) No Default shall exist, 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 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. Each Loan Party (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 each Loan Party
of each Loan Document to which such Person 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 such Person’s 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 material
Contractual Obligation to which such Person is a party or (ii) any order, injunction, writ or
decree of any Governmental Authority or any arbitral award to which such Person or its Property is
subject; or (c) violate any Law.



     5.03 Governmental Authorization; Other Consents. No approval, consent, exemption, authorization,
or other action by, or notice to, or filing with, any Governmental Authority is necessary or
required in connection with the execution, delivery or performance by any Loan Party of this
Agreement or any other Loan Document and, except as set forth on Schedule 5.03, no consent
of any other Person is required in connection with the execution, delivery or performance by any
Loan Party of this Agreement or any other Loan Document except any such consent the failure of
which to obtain could not reasonably be expected to have a Material Adverse Effect.



     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other Laws affecting creditors’ rights generally and



59









 







subject to general principals of equity (regardless of whether such enforceability is 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; (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; and (iii) show all material indebtedness and other liabilities, direct or
contingent, of the Borrower and its Subsidiaries as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness.



(b) The unaudited consolidated balance sheets of the Borrower and its Subsidiaries dated March 31,
2009, 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. Schedule 5.05 sets forth all material indebtedness and
other liabilities, direct or contingent, of the Borrower and its consolidated Subsidiaries as of
the date of such financial statements, including liabilities for taxes, material commitments and
Indebtedness.



(c) Since the date of the Audited Financial Statements, 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.



(d) The consolidated pro forma balance sheets of the Borrower and its Subsidiaries as at March 31,
2009, and the related consolidated pro forma statements of income and cash flows of the Borrower
and its Subsidiaries for the three months then ended, certified by the chief financial officer or
treasurer of the Borrower, copies of which have been furnished to each Lender, fairly present in
all material respects the consolidated pro forma financial condition of the Borrower and its
Subsidiaries as at such date and the consolidated pro forma results of operations of the Borrower
and its Subsidiaries for the period ended on such date, all in accordance with GAAP.




     5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the Borrower, threatened in writing, 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 determined
adversely, could reasonably be expected to have a Material Adverse Effect.



     5.07 No Default. Neither any Loan Party 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 Property



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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 Borrower and its Subsidiaries conduct in the ordinary course of
business a review of 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, and as a result thereof the Borrower has reasonably concluded that,
except as specifically disclosed in Schedule 5.09, such Environmental Laws and claims 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, state and other material tax
returns and reports required to be filed, and have paid all Federal, state and other material
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 any Loan Party nor any
Subsidiary thereof is party to any tax sharing agreement.



     5.12 ERISA Compliance.


(a) Each Plan is in compliance in all material respects with the applicable provisions of ERISA,
the Code and other Federal or state Laws. Each Plan that is intended to qualify under Section
401(a) of the Code has received a favorable determination letter from the IRS or an application for
such a letter is currently being processed by the IRS with respect thereto and, to the best
knowledge of the Borrower, nothing has occurred which would prevent, or cause the loss of, such
qualification. The Borrower and each ERISA Affiliate have made all required contributions to each
Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of
any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.



(b) There are no pending or, to the best 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 or is reasonably expected to occur that could reasonably be
expected to have a Material Adverse Effect; (ii) other than as disclosed on Schedule 5.12,
no Pension Plan has any Unfunded Pension Liability which, either individually or when aggregated
with the Unfunded Pension Liability of all other Pension Plans, could reasonably be expected to
have a Material Adverse Effect; (iii) neither the Borrower nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of




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ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section
4007 of ERISA); (iv) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with
respect to a Multiemployer Plan; and (v) neither the Borrower nor any ERISA Affiliate has engaged
in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.





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



     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.



(b) None of the Borrower, any Person Controlling the Borrower, or 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 report, financial statement,
certificate or other information furnished (whether in writing or orally) by or on behalf of any
Loan Party 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, as modified or supplemented by other information so furnished)
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; 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 recognized that projections to future events are not to be
viewed as facts and that the actual results during the period or periods covered by any projections
may materially differ from the projected results).



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     5.16 Compliance with Laws. Each Loan Party 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.



     5.17 Taxpayer Identification Number. The Borrower’s true and correct U.S. taxpayer identification
number is set forth on Schedule 10.02.



     5.18 Intellectual Property; Licenses, Etc. The Borrower and its Subsidiaries own, or possess the
right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person except where the failure to own or possess the
right to use such IP Rights, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect. To the best knowledge of the Borrower, no slogan or
other advertising device, product, process, method, substance, part or other material now employed,
or now contemplated to be employed, by the Borrower or any Subsidiary infringes upon any rights
held by any other Person except where such infringement, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect. Except as specifically
disclosed in Schedule 5.18, no claim or litigation regarding any of the foregoing is
pending or, to the best knowledge of the Borrower, threatened, which, either individually or in the
aggregate, could 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 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
satisfactory to the Administrative Agent and the Required Lenders:


(a) as soon as available, but in any event within 120 days after the end of each fiscal year of the
Borrower (commencing with the fiscal year ended December 31, 2009), 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 comparative form the figures for the previous fiscal year, all
in reasonable detail and prepared in accordance with GAAP, such consolidated statements to be
audited and accompanied by a report and opinion of an independent certified public accountant of
nationally recognized standing 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; and



(b) as soon as available, but in any event within 60 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter




63









 







ended June 30, 2009), 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, such consolidated statements to be
certified by the chief executive officer, chief financial officer, treasurer or controller 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.




(c) as soon as available, but in any event at least 30 days after the commencement of each fiscal
year of the Borrower, annual projections for the Borrower and its Subsidiaries on a consolidated
basis, including forecasts prepared by management of the Borrower, in form satisfactory to the
Administrative Agent and the Required Lenders, of consolidated balance sheets and statements of
income or operations and cash flows of the Borrower and its Subsidiaries, on a quarterly basis for
such fiscal year.



As to any information contained in materials furnished pursuant to Section 6.02(d), the
Borrower shall not be separately required to furnish such information under clauses (a), (b) or
(c) 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), (b) and (c) above at the
times specified therein.




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


(a) concurrently with the delivery of the financial statements referred to in
Section 6.01(a), to the extent obtainable with commercially reasonable efforts, a
certificate of its independent certified public accountants certifying such financial statements
and stating that in making the examination necessary therefor no knowledge was obtained of any
Default under the financial covenants set forth and contained in Section 7.10 or, if any
such Default shall exist, stating the nature and status of such event;



(b) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b) (commencing with the delivery of the financial statements
for the fiscal quarter ended June 30, 2009), a duly completed Compliance Certificate signed by the
chief executive officer, chief financial officer, treasurer or controller of the Borrower;



(c) promptly after any request by the Administrative Agent or any Lender, copies of any detailed
audit reports, management letters or recommendations submitted to the board of directors (or the
audit committee of the board of directors) of the Borrower by independent accountants in connection
with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;



(d) promptly after the same are available, copies of each report, proxy or financial statement or
other report or communication sent to the stockholders or bondholders 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 Securities Exchange
Act of 1934 and the Securities Act of 1933, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto;



(e) promptly after the furnishing thereof, copies of any statement or report furnished to any




64









 







holder of debt securities of any Loan Party 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;



(f) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or
any Subsidiary thereof, copies of each 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
any Loan Party or any Subsidiary thereof, excluding routine comment letters from the SEC regarding
(i) registration statements that the Borrower has previously filed or may file with the SEC under
the Securities Act of 1933 and (ii) periodic and other reports that the Borrower may file with the
SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934;



(g) not later than five Business Days after receipt thereof by any Loan Party or any Subsidiary
thereof, copies of all notices, requests and other documents (including amendments, waivers and
other modifications) so received under or pursuant to any Private Placement Document regarding or
related to any breach or default by any party thereto or any other event that could materially
impair the value of the interests or the rights of any Loan Party or otherwise have a Material
Adverse Effect and, from time to time upon request by the Administrative Agent, such information
and reports regarding the Private Placement Documents as the Administrative Agent may reasonably
request; and



(h) 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(d) (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 that requests 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. Notwithstanding anything contained herein,
in every instance the Borrower shall be required to provide paper copies of the Compliance
Certificates required by Section 6.02(b) to the Administrative Agent. Except for such
Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery
or to maintain 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 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, the Lead Arranger, and/or any
other Arranger(s) 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 




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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, so long as the Borrower is the issuer of any outstanding debt or
equity securities that are registered or issued pursuant to a private offering or is actively
contemplating issuing any such securities, (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 Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative
Agent, the Lead Arranger, any other Arranger, 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,
however, 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, the Lead Arranger, and any other Arranger(s) 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 that is not designated “Public Side Information.”
Notwithstanding the foregoing to the contrary, the Borrower shall be under no obligation to mark
any Borrower Materials “PUBLIC.”




     6.03 Notices. Promptly following a Responsible Officer’s having knowledge thereof, notify the
Administrative Agent (who, in turn, will notify each other Lender):


(a) of the occurrence of any Default;



(b) of any matter that has resulted or could reasonably be expected to result in a Material Adverse
Effect, including (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; or (iii) the
commencement of, or any material adverse development in, any litigation or proceeding affecting the
Borrower or any Subsidiary, including pursuant to any applicable Environmental Laws;



(c) of the occurrence of any ERISA Event;



(d) of any material change in accounting policies or financial reporting practices by the Borrower
or any Subsidiary, including any determination by the Borrower referred to in Section
2.10(b); and



(e) of the (i) occurrence of any Disposition of Property for which the Borrower is required to make
a mandatory prepayment pursuant to Section 2.05(b)(i), (ii) occurrence of any sale of
capital stock or other Equity Interests for which the Borrower is required to make a mandatory
prepayment pursuant to Section 2.05(b)(ii), (iii) incurrence or issuance of any
Indebtedness for which the Borrower is required to make a mandatory prepayment pursuant to
Section 2.05(b)(iii), and (iv) receipt of any Extraordinary Receipt for which the Borrower
is required to make a mandatory prepayment pursuant to
Section 2.05(b)(iv).


Each notice pursuant to this Section 6.03 (other than any notice pursuant to Section
6.03(e)) 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




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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 due and payable, all its
obligations and liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets; (b) all lawful claims which, if unpaid,
would by law become a Lien upon its Property; and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness, except where, in regard to the matters described in clauses (a),
(b) and (c) above, the same are being contested in good faith by appropriate proceedings
diligently conducted and adequate reserves in accordance with GAAP are being maintained by the
Borrower or such Subsidiary, or the failure to make payment could not reasonably be expected to
have a Material Adverse Effect.



     6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect the
Borrower’s and each Material Domestic Subsidiary’s 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 Section 7.05, (ii) in connection with the Holding Company Reorganization, or
(iii) any other changes to such legal existence as may be approved by the Administrative Agent, in
its reasonable discretion, in connection with any Public Offering; (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 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 in the reasonable judgment of the Borrower; and (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.



     6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance companies,
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, of such types and
in such amounts (after giving effect to any self-insurance compatible with the following 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. (a) 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; and (b) maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or such Subsidiary, as the case may
be.



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     6.10 Inspection Rights. Permit representatives and independent contractors of the Administrative Agent
and each Lender 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 directors, officers, and independent public accountants, all at the
expense of the Administrative Agent and Lenders so long as no Event of Default exists, and at such
reasonable times during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Borrower; provided, however, 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.



     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for working capital, Permitted
Acquisitions, and other general corporate purposes not in contravention of any Law or of any Loan
Document.



     6.12 Additional Guarantors. Notify the Administrative Agent at the time that any Person becomes
(a) a Material Domestic Subsidiary or (b) the parent company of the Borrower (whether in connection
with a Public Offering or otherwise), and promptly thereafter (and in any event within 30 days (in
the case of the foregoing clause (a), within 30 days of the most recently ended fiscal
quarter)), cause such Person to (i) become a Guarantor by executing and delivering to the
Administrative Agent a counterpart of the Guaranty or such other document as the Administrative
Agent shall reasonably deem appropriate for such purpose and (ii) deliver to the Administrative
Agent documents of the types referred to in clauses (iii) and (iv) of Section
4.01(a) and favorable opinions of counsel (who may be in-house counsel) to such Person (which
shall cover, among other things, the legality, validity, binding effect and enforceability of the
documentation referred to in the foregoing clause (i)), all in form, content and scope
reasonably satisfactory to the Administrative Agent.



     6.13 Pari Passu Status.



     Cause the Obligations to rank at least pari passu with all other present and future unsecured
Indebtedness of the Borrower and its Subsidiaries.



     6.14 Most Favored Lender Status.



     Deem this Agreement to be automatically amended (such amendment to be effective as of the date
of the applicable incurrence, creation, assumption or amendment or modification) to include the
representations, warranties, covenants and/or event of default provisions of any of the documents,
indentures, agreements, or other evidence of any additional Indebtedness (or amendment or
modification thereof), created, incurred or assumed by the Borrower or any Subsidiary after the
date of this Agreement in favor of any lender or creditor, in the event and only to the extent such
representations, warranties, covenants and/or event of default provisions are more favorable to
such lender or creditor than, or are in addition to, those already set forth and contained in this
Agreement and the other Loan Documents; provided, however, that any such amendment
of this Agreement shall be deemed to terminate automatically upon the repayment in full and
termination of such additional Indebtedness. Within three (3) Business Days thereafter, the
Borrower shall deliver a written conforming amendment to this Agreement. Prior to the execution
and delivery of such documents by the Borrower and before such additional Indebtedness shall have
been repaid in full and terminated, this Agreement shall be deemed to contain each such more
favorable (or, as the case may be, such additional)



68









 







representation, warranty, covenant and/or event of default provision for purposes of determining
the rights and obligations hereunder.



     6.15 Private Placement Facilities.


Provide the Administrative Agent with copies of any and all amendments, modifications,
restatements, replacements, extensions, renewals, and supplements to the Private Placement
Documents occurring after the Closing Date, promptly upon their full execution and delivery.




ARTICLE VII.

NEGATIVE COVENANTS



So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation 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 or
revenues, whether now owned or hereafter acquired, other than the following:


(a) Customary Permitted Liens;



(b) Liens in existence on the date hereof as set forth on Schedule 7.01 attached hereto and
made a part hereof and any extensions, renewals, or replacements thereof, provided
that (i) the aggregate principal amount of the Indebtedness secured by such Lien(s)
immediately prior to such extension, renewal, or replacement is not increased or the maturity
thereof changed and (ii) such Lien(s) is not extended to any other Property in violation of this
Agreement;



(c) Liens incidental to the conduct of its business or the ownership of its Property which were not
incurred in connection with the borrowing of money or the obtaining of advances of credit and which
in the aggregate do not materially detract from the use or value of its Property or materially
impair the use thereof in the operation of its business;



(d) Liens in favor of the Borrower or any Wholly Owned Subsidiary on Property of a Subsidiary to
secure obligations of such Subsidiary to the Borrower or to a Wholly Owned Subsidiary;



(e) any attachment or judgment Lien, unless the judgment it secures shall not, within thirty (30)
days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or
shall not have been discharged within thirty (30) days after the expiration of any such stay,
provided that the aggregate amount of such attachments or judgment Liens shall not
secure obligations in excess of $20,000,000.00 at any time;



(f) Liens existing (i) on any Property of a Person at the time such Person becomes a Subsidiary of
or is merged with or into the Borrower or a Subsidiary of the Borrower or (ii) at the time of the
acquisition by the Borrower or a Subsidiary of any Property, provided that (A) such
Liens shall not have been created, incurred, or assumed in contemplation of such purchase, merger,
consolidation, acquisition, or other event, (B) such Liens shall be confined solely to the
Property so acquired, and (C) all of such Properties shall not secure more than $20,000,000.00 in
principal Indebtedness in the aggregate;



(g) Liens provided for in equipment leases (including financing statements and undertakings to file
the same), provided that such Liens are limited to the equipment subject to such
leases, accessions thereto and the proceeds thereof;



(h) Liens in or upon and any right of offset against, moneys, deposit balances, security or




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other Property, or interests therein, held or received by or for or left in the possession of any
lender (or any affiliate of such lender) in connection with working capital facilities, lines of
credit, term loans or other credit facilities entered into in the ordinary course of business;
provided, however, that in no event shall (i) the Borrower be subject to a minimum
or compensating balance or similar arrangement or arrangement requiring it to maintain minimum cash
funds or deposits with such lender or lenders or (ii) either the Borrower or any Subsidiary
maintain in all of its respective accounts with all such lenders, at any time, overnight cleared
cash balances in demand deposit accounts that are subject to set-off rights, in excess of
$5,000,000.00 in the aggregate for all such accounts of either the Borrower or any such Subsidiary,
respectively, as the case may be (in each case other than, for the avoidance of doubt, any such
balances held in commercial paper or money market funds);



(i) Liens securing Indebtedness or other obligations to any counterparty under repurchase or
securities loan agreements;



(j) Liens existing solely with respect to cash or deposit account balances used to Cash
Collateralize obligations of a Lender to (i) the L/C Issuer, in accordance with the terms,
conditions, and provisions of Section 2.03(a)(iii)(F) or (ii) the Swing Line Lender, in
accordance with the terms, conditions, and provisions of Section 2.04(a)(ii);



(k) Liens created by this Agreement or any other Loan Document; and



(l) Liens in respect of Priority Indebtedness permitted under Section 7.03; provided that
such Liens do not secure Indebtedness owing by the Borrower or any of its Subsidiaries in respect
of (i) any of the Private Placement Facilities, (ii) any other private placement or note purchase
facility or facilities or (iii) any senior credit facility or facilities (including, without
limitation, the Facility).



If, notwithstanding the prohibitions contained in this Section 7.01, the Borrower shall, or
shall permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien other
than those expressly permitted by clauses (a) through (l) above, then the Borrower shall
make or cause to be made effective provision whereby the Obligations shall be secured equally and
ratably with any and all other obligations secured by any such Lien, such security to be pursuant
to agreements reasonably satisfactory to the Administrative Agent and the Lenders and, in any such
case, the Administrative Agent and the Lenders shall have the benefit, to the fullest extent that,
and with such priority as, they may be entitled under applicable Laws, of an equitable Lien on such
Property. Such violation of this Section 7.01 shall, in any event, constitute an Event of
Default, whether or not provision is made for an equal and ratable Lien pursuant to this
Section 7.01.




     7.02 Investments. Make any Investments, except:


(a) Investments in any Wholly Owned Subsidiary;




     (b) Investments in the form of the purchase or acquisition of any Equity Interests in
(including as a result of a merger or consolidation), or all or substantially all of the property
of, or a business unit or division of, any Person that, upon the consummation thereof, will be a
consolidated Subsidiary of the Borrower;


(c) obligations backed by the full faith and credit of the United States Government (whether issued
by the United States Government or an agency thereof), and obligations guarantied by the United
States Government, in each case which mature within one year from the date acquired;




     (d) demand and time deposits with, eurodollar deposits with or certificates of deposit issued
by any commercial bank or trust company (i) organized under the laws of the United States or any of
its states or having branch offices therein, (ii) having equity capital in excess of



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$500,000,000.00, and (iii) who issues either (A) senior debt securities rated A or better by
Standard & Poor’s Corporation or A2 or better by Moody’s Investors Service, Inc. or (B) commercial
paper rated A-1 or better by Standard & Poor’s Corporation or P-1 or better by Moody’s Investors
Service, Inc., in each case payable in the United States in Dollars and in each case which mature
within one (1) year from the date acquired;




(e) readily marketable commercial paper rated as A-1 or better by Standard & Poor’s Corporation or
Prime-1 or better by Moody’s Investors Service, Inc. and maturing not more than two hundred seventy
(270) days from the date acquired;




     (f) (i) loans or advances to officers, directors and employees of the Borrower or any
Subsidiary so long as (A) such loans or advances are used to (1) purchase shares in connection with
any of the Borrower’s stock option or award programs, as approved by the Board of Directors of the
Borrower acting in good faith or (2) pay any tax liability incurred at the time of exercise of any
stock options issued pursuant to such a program and (B) such shares are pledged to the Borrower to
secure such loans or advances; and (ii) loans or advances to officers, directors and employees of
the Borrower or any Subsidiary at any time outstanding for travel, entertainment, relocation and
analogous ordinary business purposes, to the extent the loans and advances described in this
subsection (f)(ii) do not exceed $20,000,000.00 in the aggregate at any one time;


(g) Investments of the type described in the “Investment Guidelines” of the Borrower dated July
1999, a copy of which has been previously delivered to and approved by the Lenders;



(h) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility,
workers’ compensation, performance and similar deposits, in each case to be used in the ordinary
course of business of the Borrower and its Subsidiaries;



(i) current assets arising from the sale of goods and services in the ordinary course of business
of the Borrower and its Subsidiaries;



(j) Investments received in settlement of litigation, bankruptcy proceedings or in the good faith
settlement of indebtedness;



(k) Investments in existence on the date hereof as set forth on Schedule 7.02;



(l) the purchase or redemption of all or a portion of the Obligations and the purchase or
redemption of any other Indebtedness of the Borrower or its Subsidiaries in accordance with its
terms and the terms of this Agreement, if applicable;



(m) Investments made by the Borrower’s Top Hat Plan and Deferred Compensation Plan;



(n) Investments other than those set forth in the preceding clauses (a) through (m);
provided that, at the time of making any such Investment, the aggregate amount of
all such Investments under this clause (n), valued at the greater of (i) the original cost
thereof or (ii) Fair Market Value thereof, shall not exceed five percent (5%) of Assets as of the
same date of determination; and



(o) loans by Subsidiaries to the Borrower or any Guarantor to the extent a comparable dividend or
distribution in such amount could otherwise be made pursuant to Section 7.16; provided that
such loans are subordinate to the Obligations either by their terms or by such documentation as the
Administrative Agent may reasonably require.




     7.03 Priority Indebtedness. Create, incur, assume or suffer to exist any Priority Indebtedness in
excess at any time of an amount equal to two and one half percent (2.5%) of Assets at such time.



     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



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substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person or, with respect to the Borrower, change its structure as a corporation, except that, so
long as no Default exists or would result therefrom,



(a) the Borrower and its Subsidiaries may consummate Permitted Acquisitions;



(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 Guarantor is merging with another Subsidiary, the Guarantor shall be
the continuing or surviving Person;



(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 Guarantor, then the transferee must either be the
Borrower or a Guarantor; and



(d) the Borrower and its Subsidiaries may consummate the Holding Company Reorganization.




     7.05 Dispositions. Make any Disposition or enter into any agreement to make any Disposition,
except:


(a) any Subsidiary may Dispose of assets to the Borrower or any Subsidiary of the Borrower;



(b) the Borrower or any Subsidiary may Dispose of inventory in the ordinary course of its business
(including the Disposition of obsolete inventory);



(c) the Borrower or any Subsidiary may Dispose of assets that, in its good faith, reasonable
judgment, have no further useful or productive capacity, are fully used or depreciated, are
obsolete or are no longer necessary or productive in the ordinary course of its business;



(d) the Borrower or any Subsidiary may otherwise Dispose of assets, provided that,
after giving effect thereto, (i) the aggregate book value of assets Disposed of during the
twelve-month period most recently ended prior to such Disposition does not exceed ten percent (10%)
of Assets of the Borrower and its Subsidiaries as of the end of the fiscal quarter most recently
ended prior to such Disposition or (ii) such Disposed assets did not contribute more than
ten percent (10%) of Consolidated EBITDA for the four fiscal quarter period most recently ended
prior to such Disposition;



(e) the Borrower or any Subsidiary may Dispose of assets other than as set forth in the preceding
clauses (a) through (d) and the succeeding clause (f) if (i) the Net Cash Proceeds
therefrom, if any, are used or applied as set forth and described in Section 2.05(b)(i) and
(ii), as appropriate, and (ii) except in the case of a Disposition of any Investment permitted
by Section 7.02, the Borrower or such Subsidiary provides the Administrative Agent with a
written certificate signed by a Responsible Officer at least five (5) Business Days prior to such
Disposition which identifies the assets to be sold and the anticipated use of proceeds therefrom
and certifying that the Net Cash Proceeds, if any, from such Disposition will be used or applied as
set forth and described in Section 2.05(b)(i) and (ii), as appropriate;



(f) the Borrower and its Subsidiaries may enter into and consummate transactions permitted by
Section 7.04 and Section 7.13;




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(g) the Borrower or any Subsidiary may grant non-exclusive licenses or sublicenses of rights or
interests in intellectual property to third parties in the ordinary course of its business; and



(h) the Borrower or any Subsidiary may lease and sublease Property to other Persons in the ordinary
course of its business.




     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, reasonably complimentary 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 fair and reasonable
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, other than (a) pursuant to agreements in existence on the date hereof and
(b) Investments permitted pursuant to Section 7.02.



     7.08 Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement or
any other Loan Document) that (a) limits the ability (i) of any Subsidiary to transfer Property to
the Borrower or any Guarantor, (ii) of any Subsidiary to Guarantee the Indebtedness of the Borrower
or (iii) of the Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on
Property of such Person; provided that any such Contractual Obligation of a Person existing at the
time such Person is merged with or into or consolidated with or acquired, or existing at the time
of the acquisition of assets that are subject to such a Contractual Obligation, shall be permitted
so long as such Contractual Obligation was not entered into in contemplation of, and was in
existence prior to such merger, consolidation or acquisition and does not extend to any assets
other than those acquired or the assets of the Person merged into or consolidated that were subject
to such Contractual Obligation prior to such merger, consolidation or acquisition, and any renewal,
extension or replacement thereof so long as such renewal, extension or replacement does not expand
the scope of such Contractual Obligation to any material extent.



     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 3.0 -to- 1.0.



(b) Consolidated Funded Debt Leverage Ratio. Permit the Consolidated Funded Debt Leverage
Ratio at any time during any period of four fiscal quarters of the Borrower to be greater than 3.0
-to- 1.0.





     7.11 No Negative Pledges to Other Persons. Grant to another Person a covenant commonly referred to
as a “negative pledge” with respect to its respective assets and properties other than (a) in
connection with any Indebtedness constituting purchase-money Indebtedness secured by purchase-money
security interests and Capitalized Leases, in each case, to the extent



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permitted under Section 7.03, and solely to the extent such covenant is limited to the
Property covered by such Liens; (b) customary non-assignment provisions of leases, subleases,
licenses and sublicenses; and (c) with respect to specific Property to be sold pursuant to an
executed definitive purchase agreement in connection with a Disposition permitted under Section
7.05.



     7.12 Subsidiary Restrictions.


Enter into or be otherwise subject to any contract, agreement or other binding obligation that
directly or indirectly limits the amount of, or otherwise restricts (a) the payment to the Borrower
of dividends or other redemptions or distributions with respect to its capital stock by any
Subsidiary, (b) the repayment to the Borrower by any Subsidiary of intercompany loans or advances,
or (c) other intercompany transfers to the Borrower of Property by Subsidiaries other than:





(i) restrictions in existence on the date hereof as set forth on Schedule 7.12
attached hereto and made a part hereof and any extensions, renewals or replacements thereof,
provided that any such extension, renewal, or replacement shall not contain
restrictions more restrictive than those in effect on the date hereof;




(ii) restrictions pertaining to Property subject to a Lien permitted by Section
7.01) existing in agreements relating to such Lien or the Indebtedness secured by such
Lien;




(iii) customary non-assignment provisions in leases, subleases, licenses and sublicenses,
and agreements entered into in the ordinary course of business and consistent with past
practices;




(iv) restrictions existing under or by reason of applicable Laws;




          (v) restrictions in any agreement relating to a Disposition permitted under Section
7.05 insofar as it relates to the Property being Disposed of;




          (vi) any encumbrance or restriction, with respect to a Person that is not a Subsidiary
of the Borrower on the date hereof, in existence at the time such Person becomes a
Subsidiary of the Borrower and not incurred in connection with, or in contemplation of, such
Person becoming a Subsidiary, provided that such encumbrances and
restrictions are not applicable to the Borrower or any Subsidiary or the Properties of the
Borrower or any Subsidiary other than such Person which is becoming a Subsidiary; and




(vii) any encumbrance or restriction in the case of clause (c) of this Section
7.12 arising or agreed to in the ordinary course of business, not relating to any
Indebtedness, and that does not, individually or in the aggregate, detract from the value of
Property of the Borrower or any Subsidiary in any manner material to the Borrower or any
Subsidiary.




     7.13 Sales and Leasebacks.


Enter into any arrangement with any lender or investor or to which such lender or investor is a
party providing for the leasing by the Borrower or any Subsidiary of real or personal property
which has been or is to be Disposed of by the Borrower or any Subsidiary to such lender or investor
or to any Person to whom funds have been or are to be advanced by such lender or investor on the
security of such property or rental obligations of the Borrower or any Subsidiary unless (a) the
assets so Disposed of are subject to, and may be Disposed of in compliance with, Section
7.05 and (b) such lease obligations are Capitalized Leases and, immediately after giving





74









 







effect to such transaction, no Default exists or would exist after giving effect to such
transaction, including, without limitation, any Default with respect to the financial covenants set
forth in Section 7.10.




     7.14 Sale of Receivables.


Sell with recourse, discount, transfer, dispose of or incur a Lien on any of its accounts
receivable, except accounts receivable the collection of which is doubtful in accordance with GAAP.




     7.15 Issuance of Equity Interests by Subsidiaries.


Either directly, or indirectly by the issuance of rights or options for, or securities convertible
into, such shares, to issue, sell or dispose of any shares of a Subsidiary’s stock of any class
(other than shares owned by the Borrower or any other Subsidiary) except (a) for directors’
qualifying shares or other shares issued to comply with local ownership legal requirements (but not
in excess of the minimum number of shares necessary to satisfy such requirement), (b) shares issued
pursuant to employee stock option plans approved by the Board of Directors of such Subsidiary
acting in good faith and shares issued in connection with the settlement of stock appreciation
rights or as part of stock awards pursuant to plans or arrangements approved by the Board of
Directors of such Subsidiary acting in good faith, (c) to the Borrower or a Wholly Owned
Subsidiary, and (d) shares issued for fair market value (as determined in good faith by the
Borrower and set forth in a written certificate signed by a Responsible Officer delivered to the
Administrative Agent at least five (5) Business Days prior to such issuance which certificate
identifies the shares to be issued and the anticipated use of proceeds therefrom and certifying
that the Net Cash Proceeds, if any, from such issuance will be used in compliance with Section
2.05(b)(ii)).




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     7.16 Restricted Payments.


Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, or issue or sell any Equity Interests or accept any capital
contributions, except that, so long as no Default shall have occurred and be continuing at the time
of any action described below or would result therefrom:




(a) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower
that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary,
ratably according to their respective holdings of the type of Equity Interest in respect of which
such Restricted Payment is being made;



(b) (i) the Borrower and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common Equity Interests of such Person
and (ii) subsequent to the Holding Company Reorganization, the Borrower may, as a publicly traded
company, declare and make cash dividend payments to its stockholders;



(c) except to the extent the Net Cash Proceeds thereof are required to be applied to the prepayment
of the Loans pursuant to Section 2.05(b)(ii), the Borrower and each Subsidiary may
purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from
the substantially concurrent issue of new common Equity Interests;



(d) the Borrower may issue and sell Equity Interests in connection with a Public Offering provided
that the requirements of Section 6.12 shall be satisfied; and



(e) the Borrower may otherwise issue and sell its common Equity Interests, so long as the Net Cash
Proceeds thereof are applied pursuant to Section 2.05(b)(ii).




     7.17 Capital Expenditures.


Make or become legally obligated to make any Capital Expenditure, except for Capital Expenditures
in the ordinary course of business not exceeding, in the aggregate for the Borrower and its
Subsidiaries during each fiscal year set forth below, the amount set forth opposite such fiscal
year:




	 	 	 	 	 
	Fiscal Year	 	Amount
	2009
	 	$	40,000,000.00	 
	2010
	 	$	42,000,000.00	 
	2011
	 	$	44,000,000.00	 
	2012
	 	$	46,000,000.00	 





; provided, however, that so long as no Default has occurred and is continuing or
would result from such expenditure, any portion of any amount set forth above, if not expended in
the fiscal year for which it is permitted above, may be carried over for expenditure in successive
fiscal years; and provided, further, if any such amount is so carried over, it will
be deemed used in the applicable subsequent fiscal years before the respective amounts set forth
opposite such fiscal years above.




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     7.18 Amendments of Organization Documents.


Amend any of its Organization Documents other than (a) in connection with and as a result of the
Holding Company Reorganization and (b) such restatements and amendments that do not substantively
change such Organization Documents.




     7.19 Accounting Changes.


Make any change in its (a) accounting policies or reporting practices, except as required or
permitted by GAAP, or (b) fiscal year.




     7.20 Prepayments, Etc. of Indebtedness.


Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in
any manner, or make any payment in violation of any subordination terms of, any Indebtedness,
except (a) the prepayment of the Obligations in accordance with the terms of this Agreement and
(b) the prepayment of other Indebtedness not prohibited by the terms of this Agreement in
accordance with the terms thereof.




     7.21 Lease Obligations.


Create, incur, assume or suffer to exist any obligations as lessee for the rental or hire of any
Property under leases or agreements to lease (including Capitalized Leases) having an original term
of one year or more that would cause the direct and contingent liabilities of the Borrower and its
Subsidiaries, on a consolidated basis, in respect of all such obligations to exceed at any time an
amount equal to two and one half percent (2.5%) of Assets at such time.




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 or any other Loan Party 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 (iii) within five days after the same becomes due, any other amount
payable hereunder or under any other Loan Document; or



(b) Specific Covenants. The Borrower fails to perform or observe any term, covenant or
agreement contained in (i) any of Sections 6.05, 6.10, 6.11, or Article
VII or (ii) Sections 6.01 or 6.02 and such failure continues for 10 days; or



(c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on
its part to be performed or observed and such failure continues for 30 days; or



(d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party
herein, in any other Loan Document, or in any document delivered in connection herewith or
therewith shall be incorrect or misleading in any substantial and 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 and
after the giving of any required notice and the running of any applicable grace or cure




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periods) 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 $10,000,000.00, 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, or any other event occurs, the
effect of which default or other event (but only after the giving of any required notice, the
expiration of any permitted grace period or both) is to cause, or to permit the holder or holders
of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent
on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of
notice if required, 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 $10,000,000.00; or



(f) Insolvency Proceedings, Etc. Any Loan Party or any Significant Subsidiary 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 respective 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



(g) Inability to Pay Debts; Attachment. (i) The Borrower or any Significant 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 any Property of any such Person in an aggregate principal amount of more than
$10,000,000.00 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 judgments or orders for the payment of money in an aggregate amount (as to all such judgments
or orders) exceeding $10,000,000.00 (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
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 30 consecutive days during which
a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in
effect; or




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(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan
which, when taken together with all other ERISA Events that have occurred, has resulted or would
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 $5,000,000.00, 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 $5,000,000.00;
or



(j) Invalidity of Loan Documents. Any 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 any Loan Party or any other Person acting on behalf of a Loan Party contests in any manner the
validity or enforceability of any provision of any Loan Document; or any Loan Party 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, other than as a result of the
occurrence of the Holding Company Reorganization; or



(l) Material Adverse Change. There occurs a material adverse change in the business,
financial condition, financial performance, Properties, or operations of the Borrower and its
Subsidiaries taken as a whole.




     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;



(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, however, 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 be applied by the



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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 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; and


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 Section 2.03(c), 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 Lenders specifically authorize the
Administrative Agent to enter into and deliver the Sharing Agreement on their behalf. The
provisions of this Article IX are solely for the benefit of the Administrative Agent, the
Lenders and the L/C Issuer, and neither the Borrower nor any other Loan Party shall 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



80









 







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, 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




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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 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. 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



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Administrative
Agent was acting as Administrative Agent.


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 its or 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.




     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, Lead Arranger, other Arrangers, syndications agents, or co-documentation agents, if
any, 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 any Loan Party, 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(i) and (j), 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




83









 







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 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.




     9.10 Collateral and Guaranty Matters. The Lenders and the L/C Issuer irrevocably authorize the
Administrative Agent, at its option and in its discretion,




(a) to release any Lien on any Property granted to or held by the Administrative Agent under
any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of
all Obligations (other than contingent indemnification obligations) and the expiration or
termination of all Letters of Credit (other than Letters of Credit as to which other
arrangements satisfactory to the Administrative Agent and the L/C Issuer shall have been
made), (ii) that is sold or to be sold as part of or in connection with any sale permitted
hereunder or under any other Loan Document, or (iii) subject to Section 10.01, if
approved, authorized or ratified in writing by the Required Lenders; and





(b) to release any Guarantor from its obligations under the Guaranty if such Person ceases
to be a Subsidiary as a result of a transaction permitted hereunder.


Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing
the Administrative Agent’s authority to release or subordinate its interest in particular types or
items of Property, or to release any Guarantor from its obligations under the Guaranty pursuant to
this Section 9.10.







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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 or any other Loan Party therefrom, shall
be effective unless in writing signed by the Required Lenders and the Borrower or the applicable
Loan Party, as the case may be, 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, however, that no such amendment, waiver or consent shall:


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



(c) postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding
mandatory prepayments) 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 prior
express written consent of each Lender directly affected thereby; provided,
however, that only the consent of the Required Lenders shall be necessary (i) 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 or (ii) to amend any financial covenant hereunder (or any
defined term used therein) even if the effect of such amendment would be to reduce the rate of
interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;



(e) change Section 2.13 or Section 8.03 in a manner that would alter the pro rata
sharing of payments required thereby without the written consent of each Lender;



(f) amend Section 1.08 or the definition of “Alternative Currency” without the written
consent of the L/C Issuer;



(g) change any provision of this Section 10.01 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; or



(h) release all or substantially all of the value of the Guaranty without the prior express written
consent of each Lender, except to the extent the release of any Guarantor is permitted pursuant to
Section 9.10 (in which case such release may be made by the Administrative Agent acting
alone);



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




85









 







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 to the
contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except that the Commitment of such Lender may not be increased or
extended without the consent of such 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 subsection (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.


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 subsection (b) below, shall
be effective as provided in such subsection (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.



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.




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(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, however, 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 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




87









 







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
Loan Parties or any of them 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, however, 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 any Loan Party 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.



     10.04 Expenses; Indemnity; Damage Waiver.


(a) Costs and Expenses. The Borrower shall pay (i) all reasonable actual out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable actual
fees, charges and disbursements of counsel for the Administrative Agent (subject to the limits on
such fees as set forth in Section 4.01(c))), 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 actual 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 actual out-of-pocket expenses
incurred by the Administrative Agent, any Lender or the L/C Issuer (including the reasonable actual
fees, charges and disbursements of any counsel for 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




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negotiations in respect of such Loans or Letters of Credit. The Borrower shall have no obligation
to pay, or reimburse any Person for, the fees and time charges of attorneys who are employees of
the Administrative Agent, any Lender or the L/C Issuer.



(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 actual fees, charges and disbursements of any counsel for any Indemnitee
excluding the fees, time charges and disbursements for attorneys who may be employees of any
Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by
the Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their respective
obligations 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 or by the Borrower or any other Loan Party, and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (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 or (y) result from a claim brought by the Borrower or any other Loan Party
against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under
any other Loan Document, if the Borrower or such other Loan Party has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction.



(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (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 subsection (c) are
subject to the provisions of Section 2.12(d).




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(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 subsection (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 fifteen
(15) 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.




     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 applicable Overnight Rate
from time to time in effect, in the applicable currency of such recovery or payment. 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 neither the Borrower nor any other Loan Party may 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
subsection (b) of this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a
security interest





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subject to the restrictions of subsection (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
subsection (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 subsection (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





(B) in any case not described in subsection (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 $5,000,000.00 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,
however, 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 subsection (b)(i)(B) of this Section and, in addition:




(A) the consent of the Borrower (such consent not to be unreasonably withheld or
delayed) 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



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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 $3,500.00; provided, however, that the
Administrative Agent may, in its sole discretion, elect to waive such processing and
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 Borrower. No such assignment shall be made to the Borrower or
any of the Borrower’s Affiliates or Subsidiaries.




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


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection
(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 reasonable 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 subsection 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 subsection (d) of this Section.



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




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(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 and
(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.



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 subsection
(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 subsection (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 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 that would be a Foreign Lender if it were a Lender 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) 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
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 subsection (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, however, 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




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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 instructed 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 2.15 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 consent of the Borrower or (h) to the 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.


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.




94









 








     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 or any other Loan
Party against any and all of the obligations of the Borrower or such Loan Party 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 or such Loan
Party 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.
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.



     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. (a) 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.


(b) 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 (including the credit
facilities and letters of credit referenced in paragraphs of this
Section 10.10.


(c) The Lenders acknowledge and agree that all outstanding principal, accrued and unpaid interest
and other payments and other obligations of the Borrower under the Borrower’s existing credit
facilities maintained with each of (i) Bank of America, N.A., (ii) JPMorgan Chase Bank, N.A., (iii)
Morgan Stanley Bank, N.A., and (iv) Wachovia Bank, N.A., have been satisfied in full by Committed
Borrowings under this Agreement and such credit facilities are hereby terminated and of no further
force and effect.


(d) 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




95









 







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 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.



     10.13 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, or if any Lender is a
Defaulting Lender, or if any other circumstance exists hereunder that gives the Borrower the right
to replace a Lender as a party hereto, 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 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 by such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.




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     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 OF THE PARTIES 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 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. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY
RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR
ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.



          (c) WAIVER OF VENUE. THE BORROWER 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 PARAGRAPH (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



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



     10.17 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.



     10.18 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



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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
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 requests in order to comply with
its ongoing obligations under applicable “know your customer” and anti-money laundering rules and
regulations, including the Act.





     10.19 Time of the Essence. Time is of the essence of the Loan Documents.



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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.




	 	 	 	 	 
	 	 	INSURANCE SERVICES OFFICE, INC.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Mark V. Anquillare
	 

	 	 	 	 
	 	 	Name: Mark V. Anquillare

	 	 	Title: Senior Vice President and Chief Financial Officer






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	 	 	BANK OF AMERICA, N.A., as

	 	 	Administrative Agent
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Kristine Thennes
	 

	 	 	 	 
	 	 	Name: Kristine Thennes

	 	 	Title: Vice President






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

Issuer and Swing Line Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ William T. Franey
	 

	 	 	 	 
	 	 	Name: William T. Franey

	 	 	Title: Senior Vice President






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	 	 	JPMORGAN CHASE BANK, N.A., as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Suzanne D. Ergastolo
	 

	 	 	 	 
	 	 	Name: Suzanne D. Ergastolo

	 	 	Title: Vice President






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	 	 	MORGAN STANLEY BANK, N.A., as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Melissa James
	 

	 	 	 	 
	 	 	Name: Melissa James
	 	 	Title: Authorized Signatory






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	 	 	WELLS FARGO BANK, N.A., as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Donald Schwartz
	 

	 	 	 	 
	 	 	Name: Donald Schwartz

	 	 	Title: Senior Vice President







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