exv10w1






Exhibit 10.1




      




Published CUSIP Number: 293389-10-2




SECOND AMENDED AND RESTATED CREDIT AGREEMENT




dated




as of August 18, 2009




among




ENNIS, INC.,

as the Parent




EACH OF THE OTHER CO-BORROWERS PARTY HERETO,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and

L/C Issuer,




COMPASS BANK,

as Syndication Agent,




WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Documentation Agent,




and




The Other Lenders Party Hereto




BANC OF AMERICA SECURITIES LLC,

as

Sole Lead Arranger and Sole Book Manager




      




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	21	 
	1.03 Accounting Terms
	 	 	21	 
	1.04 Rounding
	 	 	22	 
	1.05 Times of Day
	 	 	22	 
	1.06 Letter of Credit Amounts
	 	 	22	 
	 
	 	 	 	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	22	 
	2.01 Revolving Loans
	 	 	22	 
	2.02 Borrowings, Conversions and Continuations of Revolving Loans
	 	 	23	 
	2.03 Letters of Credit
	 	 	24	 
	2.04 Swing Line Loans
	 	 	33	 
	2.05 Prepayments
	 	 	36	 
	2.06 Termination or Reduction of Commitments
	 	 	37	 
	2.07 Repayment of Loans
	 	 	37	 
	2.08 Interest
	 	 	38	 
	2.09 Fees
	 	 	38	 
	2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
	 	 	39	 
	2.11 Evidence of Debt
	 	 	40	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	40	 
	2.13 Sharing of Payments by Lenders
	 	 	42	 
	2.14 Increase in Commitments
	 	 	43	 
	2.15 Appointment of the Parent as Agent for Co-Borrowers; Reliance by Administrative Agent
	 	 	44	 
	 
	 	 	 	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	45	 
	3.01 Taxes
	 	 	45	 
	3.02 Illegality
	 	 	48	 
	3.03 Inability to Determine Rates
	 	 	49	 
	3.04 Increased Costs
	 	 	49	 
	3.05 Compensation for Losses
	 	 	51	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	51	 
	3.07 Survival
	 	 	52	 
	 
	 	 	 	 
	ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	52	 
	4.01 Conditions of Initial Credit Extension
	 	 	52	 
	4.02 Conditions to all Credit Extensions
	 	 	54	 
	 
	 	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES
	 	 	55	 
	5.01 Organization
	 	 	55	 
	5.02 Authorization; No Conflict
	 	 	55	 
	5.03 Validity and Binding Nature
	 	 	55	 
	5.04 Financial Statements; No Material Adverse Effect
	 	 	55	 
	5.05 Litigation and Contingent Liabilities
	 	 	56	 
	5.06 Ownership of Properties; Liens
	 	 	56	 
	5.07 Equity Ownership; Subsidiaries
	 	 	56	 
	5.08 ERISA Compliance
	 	 	56	 






-i-









 






	 	 	 	 	 
	Section	 	Page	 
	5.09 Margin Regulations; Investment Company Act
	 	 	57	 
	5.10 Taxes
	 	 	57	 
	5.11 Solvency, etc.
	 	 	57	 
	5.12 Environmental Compliance
	 	 	58	 
	5.13 Insurance
	 	 	58	 
	5.14 Real Property
	 	 	58	 
	5.15 Information
	 	 	58	 
	5.16 Intellectual Property
	 	 	59	 
	5.17 Burdensome Obligations
	 	 	59	 
	5.18 Labor Matters
	 	 	59	 
	5.19 No Default
	 	 	59	 
	5.20 Taxpayer Identification Number
	 	 	59	 
	5.21 Compliance with Laws
	 	 	59	 
	 
	 	 	 	 
	ARTICLE VI AFFIRMATIVE COVENANTS
	 	 	59	 
	6.01 Financial Statements
	 	 	59	 
	6.02 Certificates; Other Information
	 	 	60	 
	6.03 Notices
	 	 	62	 
	6.04 Books, Records and Inspections
	 	 	63	 
	6.05 Maintenance of Property; Insurance
	 	 	63	 
	6.06 Compliance with Laws; Payment of Taxes and Liabilities
	 	 	64	 
	6.07 Maintenance of Existence, etc.
	 	 	65	 
	6.08 Use of Proceeds
	 	 	65	 
	6.09 Further Assurances
	 	 	65	 
	6.10 Payment of Obligations
	 	 	66	 
	6.11 Real Estate Documents
	 	 	66	 
	 
	 	 	 	 
	ARTICLE VII NEGATIVE COVENANTS
	 	 	67	 
	7.01 Debt. Create, incur, assume or suffer to exist any Debt, except:
	 	 	67	 
	7.02 Liens
	 	 	68	 
	7.03 Restricted Payments
	 	 	69	 
	7.04 Mergers, Consolidations, Sales, Acquisitions
	 	 	70	 
	7.05 Modification of Organizational Documents; Factoring Facility
	 	 	71	 
	7.06 Transactions with Affiliates
	 	 	72	 
	7.07 Unconditional Purchase Obligations
	 	 	72	 
	7.08 Inconsistent Agreements
	 	 	72	 
	7.09 Business Activities
	 	 	72	 
	7.10 Investments
	 	 	72	 
	7.11 Restriction of Amendments to Certain Documents
	 	 	73	 
	7.12 Fiscal Year
	 	 	73	 
	7.13 Financial Covenants
	 	 	73	 
	7.14 Cancellation of Debt
	 	 	74	 
	7.15 Contingent Liabilities
	 	 	74	 
	 
	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES
	 	 	74	 
	8.01 Events of Default
	 	 	74	 
	8.02 Remedies Upon Event of Default
	 	 	76	 
	8.03 Application of Funds
	 	 	77	 
	 
	 	 	 	 
	ARTICLE IX ADMINISTRATIVE AGENT
	 	 	78	 
	9.01 Appointment and Authority
	 	 	78	 
	9.02 Rights as a Lender
	 	 	78	 






-ii-









 






	 	 	 	 	 
	Section	 	Page	 
	9.03 Exculpatory Provisions
	 	 	78	 
	9.04 Reliance by Administrative Agent
	 	 	79	 
	9.05 Delegation of Duties
	 	 	80	 
	9.06 Resignation of Administrative Agent
	 	 	80	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	81	 
	9.08 No Other Duties, Etc.
	 	 	81	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	81	 
	9.10 Collateral and Guaranty Matters
	 	 	82	 
	9.11 Bank Product Obligations and Secured Hedging Obligations
	 	 	82	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS
	 	 	83	 
	10.01 Amendments, Etc.
	 	 	83	 
	10.02 Notices; Effectiveness; Electronic Communication
	 	 	84	 
	10.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	86	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	87	 
	10.05 Payments Set Aside
	 	 	89	 
	10.06 Successors and Assigns
	 	 	90	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	94	 
	10.08 Right of Setoff
	 	 	95	 
	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
	 	 	98	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	98	 
	10.17 Electronic Execution of Assignments and Certain Other Documents
	 	 	99	 
	10.18 USA PATRIOT Act
	 	 	99	 
	10.19 Amendment and Restatement
	 	 	99	 
	10.20 ENTIRE AGREEMENT
	 	 	100	 
	 
	 	 	 	 
	ARTICLE XI CROSS-GUARANTY
	 	 	100	 
	11.01 Cross-Guaranty
	 	 	100	 
	11.02 Waivers by Co-Borrowers
	 	 	100	 
	11.03 Benefit of Guaranty
	 	 	101	 
	11.04 Waiver of Subrogation, Etc.
	 	 	101	 
	11.05 Election of Remedies
	 	 	101	 
	11.06 Limitation
	 	 	101	 
	11.07 Contribution with Respect to Guaranty Obligations
	 	 	102	 
	11.08 Liability Cumulative
	 	 	102	 
	11.09 Stay of Acceleration
	 	 	103	 
	11.10 Benefit to Co-Borrowers
	 	 	103	 
	 
	 	 	 	 
	SIGNATURES
	 	 	S-1	 






-iii-









 





	 
	SCHEDULE 1.01 Existing Letters of Credit

	SCHEDULE 2.01 Commitments and Applicable Percentages

	SCHEDULE 5.05 Existing Litigation

	SCHEDULE 5.07 Capital Securities

	SCHEDULE 5.13 Insurance

	SCHEDULE 5.14 Real Property

	SCHEDULE 5.18 Labor Matters

	SCHEDULE 5.20 Taxpayer Identification Number

	SCHEDULE 7.01 Existing Debt

	SCHEDULE 7.02 Existing Liens

	SCHEDULE 7.11 Existing Investments

	SCHEDULE 10.02 Administrative Agent’s Office; Certain Addresses for Notices







	 	 	 
	EXHIBITS

	 
	A 
	 	Form of Revolving Loan Notice
	B 
	 	Form of Swing Line Loan Notice
	C 
	 	Form of Note
	D 
	 	Form of Compliance Certificate
	E-1 
	 	Form of Assignment and Assumption
	E-2 
	 	Form of Administrative Questionnaire
	F 
	 	Form of Perfection Certificate
	G 
	 	Form of Joinder Agreement






-iv-









 





SECOND AMENDED AND RESTATED CREDIT AGREEMENT




     THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of August 18, 2009 (this
“Agreement”), is entered into among ENNIS, INC. (the “Parent”), each of the parties
listed under the heading co-borrowers on the signature pages hereto and any other Person added as a
co-borrower hereunder pursuant to a Joinder Agreement (individually with the Parent referred to
herein as a “Co-Borrower”, and collectively with the Parent called, the
“Co-Borrowers”), the financial institutions that are or may from time to time become
parties 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 Co-Borrowers, certain lenders party thereto and Administrative Agent are parties to the
Existing Credit Agreement and desire to amend and restate the terms thereof. The Lenders have
agreed to make available to the Co-Borrowers a revolving credit facility (which includes letters of
credit) upon the terms and conditions set forth in this Agreement.



     In consideration of the mutual covenants and agreements herein contained, the parties hereto
covenant and agree that the Existing Credit Agreement is hereby amended and restated in its
entirety as follows:



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




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



     “Account Debtor” has the meaning set forth in the Security Agreement.



     “Account” has the meaning set forth in the UCC.



     “Acquisition” means any transaction or series of related transactions for the purpose
of or resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the
assets of a Person, or of all or substantially all of any business or division of a Person, (b) the
acquisition of in excess of 50% of the Capital Securities of any Person, or otherwise causing any
Person to become a Subsidiary, or (c) a merger or consolidation or any other combination with
another Person (other than a Person that is already a Subsidiary).



     “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 Co-Borrowers and the Lenders.



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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 1









 





     “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.



     “Agent Fee Letter” means the Fee Letter dated as of June 23, 2009, among the Parent,
the Administrative Agent and the Arranger.



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



     “Agreement” has the meaning set forth in the Preamble.



     “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.



     “Applicable Rate” means the following percentages per annum, based upon the Total
Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 6.02(a):



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Rate
	 	 	 	 	 	 	 	 	 	Eurodollar	 	 	 
	 	 	 	 	 	 	 	 	 	Rate	 	 	 
	Pricing	 	 	 	 	 	Commitment	 	 	Letters of	 	 	 
	Level	 	 	Total Leverage Ratio	 	 	Fee	 	 	Credit	 	 	Base Rate
	 	 	 	 	 	 	 	 	 	 	 	 	 
	1
	 	 	≤ 0.50:1
	 	 	0.25%
	 	 	2.00%
	 	 	0.00%
	2
	 	 	> 0.50:1 but ≤ 1.00:1
	 	 	0.25%
	 	 	2.25%
	 	 	0.25%
	3
	 	 	> 1.00:1 but ≤ 1.50:1
	 	 	0.30%
	 	 	2.50%
	 	 	0.50%
	4
	 	 	> 1.50:1 but ≤ 2.00:1
	 	 	0.35%
	 	 	2.75%
	 	 	0.75%
	5
	 	 	> 2.00:1 but ≤ 2.50:1
	 	 	0.40%
	 	 	3.00%
	 	 	1.00%
	6
	 	 	> 2.50:1
	 	 	0.50%
	 	 	3.50%
	 	 	1.50%






     Any increase or decrease in the Applicable Rate resulting from a change in the Total 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(a); 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 and after three days notice to the
Co-Borrowers, Pricing Level 6 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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 2









 




through the date that the Compliance Certificate for the Fiscal Quarter ending August 31, 2009
is delivered pursuant to Section 6.02(a) shall be determined based upon Pricing Level 3.




     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).



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



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



     “Asset Disposition” means the sale, lease, assignment or other transfer for value
(each, a “Disposition”) by any Co-Borrower or any Subsidiary to any Person (other than a
Co-Borrower) of any asset or right of such Co-Borrower or such Subsidiary (including, the loss,
destruction or damage of any thereof or any actual or threatened (in writing to any Co-Borrower or
any Subsidiary) condemnation, confiscation, requisition, seizure or taking thereof) other than
(a) the Disposition of any asset which is to be replaced, and is in fact replaced, within 180 days
with another asset performing the same or a similar function, and (b) the sale or lease of
inventory in the ordinary course of business.



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



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



     “Attorney Costs” means, with respect to any Person, all reasonable fees and charges of
any legal counsel to such Person and all court costs and similar legal expenses.



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Parent and its Subsidiaries for the Fiscal Year ended February 28, 2009, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
Fiscal Year of the Parent 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.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 3









 





     “Bank Product Agreements” means those certain cash management service agreements
entered into from time to time between any Co-Borrower or any Subsidiary and a Cash Management Bank
in connection with any of the Bank Products.



     “Bank Product Obligations” means all obligations, liabilities, contingent
reimbursement obligations, fees, and expenses owing by the Co-Borrowers and any Subsidiary to any
Cash Management Bank pursuant to or evidenced by the Bank Product Agreements and irrespective of
whether for the payment of money, whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising, and including all such amounts that a Co-Borrower or
any Subsidiary is obligated to reimburse to the Administrative Agent or any Lender as a result of
the Administrative Agent or such Lender purchasing participations or executing indemnities or
reimbursement obligations with respect to the Bank Products provided to the Co-Borrowers and
Subsidiaries pursuant to the Bank Product Agreements.



     “Bank Products” means any service or facility (but excluding the Loans and the Letters
of Credit) extended to any Co-Borrower or any Subsidiary by any Cash Management Bank including:
(a) credit cards, (b) credit card processing services, (c) debit cards, (d) purchase cards, (e) ACH
Transactions or (f) cash management, including controlled disbursement accounts or services.



     “Base Rate” means for any day a fluctuating rate per annum equal to the
highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect
for such day as publicly announced from time to time by Bank of America as its “prime rate” and
(c) the Eurodollar Rate plus 2.00%. The “prime rate” is a rate set by Bank of America
based upon various factors including Bank of America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in the Federal Funds Rate, the Prime
Rate or the Eurodollar Rate shall be effective from and including the effective date of such change
in the Federal Funds Rate, the Prime Rate or the Eurodollar Rate, respectively.



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



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



     “Borrowing” means a Revolving 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.



     “Capital Expenditures” means all expenditures which, in accordance with GAAP, would be
required to be capitalized and shown on the consolidated balance sheet of the Parent and its
Subsidiaries, including expenditures in respect of Capital Leases, but excluding (i) expenditures
made to fund the purchase price of assets acquired in any Acquisition and (ii) expenditures made



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 4









 







in connection with the replacement, substitution or restoration of assets to the extent
financed (a) from insurance proceeds (or other similar recoveries) paid on account of the loss of
or damage to the assets being replaced or restored, (b) with awards of compensation arising from
the taking by eminent domain or condemnation of the assets being replaced or (c) with cash proceeds
of Asset Dispositions reinvested in replacement assets.



     “Capital Lease” means, with respect to any Person, any lease of (or other agreement
conveying the right to use) any real or personal property by such Person that, in conformity with
GAAP, is accounted for as a capital lease on the balance sheet of such Person.



     “Capital Securities” means, with respect to any Person, all shares, interests,
participations or other equivalents (however designated, whether voting or non-voting) of such
Person’s capital, whether now outstanding or issued or acquired after the Closing Date, including
common shares, preferred shares, membership interests in a limited liability company, limited or
general partnership interests in a partnership, interests in a trust, interests in other
unincorporated organizations or any other equivalent of such ownership interest.



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



     “Cash Equivalent Investment” means, at any time, (a) any evidence of Debt, maturing
not more than one year after such time, issued or guaranteed by the United States Government or any
agency thereof, (b) commercial paper, maturing not more than one year from the date of issue, or
corporate demand notes, in each case (unless issued by a Lender or its holding company) rated at
least A-1 by Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. or
P-1 by Moody’s Investors Service, Inc., (c) any certificate of deposit, time deposit or banker’s
acceptance, maturing not more than one year after such time, or any overnight Federal Funds
transaction that is issued or sold by any Lender or its holding company (or by a commercial banking
institution that is a member of the Federal Reserve System and has a combined capital and surplus
and undivided profits of not less than $500,000,000), (d) any repurchase agreement entered into
with any Lender (or commercial banking institution of the nature referred to in clause (c)) which
(i) is secured by a fully perfected security interest in any obligation of the type described in
any of clauses (a) through (c) above and (ii) has a market value at the time such repurchase
agreement is entered into of not less than 100% of the repurchase obligation of such Lender (or
other commercial banking institution) thereunder and (e) money market accounts or mutual funds
which invest exclusively in assets satisfying the foregoing requirements, and (f) other short term
liquid investments approved in writing by the Administrative Agent.



     “Cash Management Bank” means any Person that, at the time it enters into any Bank
Product Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Bank
Product Agreement.



     “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.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 5









 





     “Change of Control” means the occurrence of any of the following events: (a) any
Person or group of Persons (within the meaning of Section 13 or 14 of the Securities Exchange Act
of 1934) shall acquire beneficial ownership (within the meaning of Rule 13d-3 promulgated under
such Act) of more than 50% of the outstanding securities (on a fully diluted basis and taking into
account any securities or contract rights exercisable, exchangeable or convertible into equity
securities) of the Parent having voting rights in the election of directors under normal
circumstances; (b) a majority of the members of the Board of Directors of the Parent shall cease to
be Continuing Members; or (c) the Parent shall cease to, directly or indirectly, own and control
100% of each class of the outstanding Capital Securities of each other Co-Borrower and of each
other Subsidiary. For purposes of the foregoing, “Continuing Member” means a member of the Board
of Directors of the Parent who either (i) was a member of the Parent ‘s Board of Directors on the
day before the Closing Date and has been such continuously thereafter or (ii) became a member of
such Board of Directors after the day before the Closing Date and whose election or nomination for
election was approved by a vote of the majority of the Continuing Members then members of the
Parent’s Board of Directors.



     “Closing Date” means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 10.01.



     “Co-Borrower” has the meaning set forth in the Preamble.



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



     “Code” means the Internal Revenue Code of 1986.



     “Collateral Access Agreement” means an agreement in form and substance reasonably
satisfactory to the Administrative Agent pursuant to which a mortgagee or lessor of real property
on which collateral is stored or otherwise located, or a warehouseman, processor or other bailee of
Inventory or other property owned by any Co-Borrower, acknowledges the Liens of the Administrative
Agent and waives or subordinates any Liens held by such Person on such property, and, in the case
of any such agreement with a mortgagee or lessor, permits the Administrative Agent reasonable
access to and use of such real property following the occurrence and during the continuance of an
Event of Default to assemble, complete and sell any collateral stored or otherwise located thereon.



     “Collateral Documents” means, collectively, the Security Agreement, each Mortgage,
each Collateral Access Agreement, each Perfection Certificate, each control agreement and any other
agreement or instrument pursuant to which any Co-Borrower grants or purports to grant collateral to
the Administrative Agent for the benefit of the Lenders or otherwise relates to such collateral.



     “Commitment” means, as to each Lender, its obligation to (a) make Revolving Loans to
the Co-Borrowers 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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 6









 







party hereto, as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement.



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



     “Computation Period” means each period of four consecutive Fiscal Quarters ending on
the last day of a Fiscal Quarter.



     “Contingent Liability” means, with respect to any Person, each obligation and
liability of such Person and all such obligations and liabilities of such Person incurred pursuant
to any agreement, undertaking or arrangement by which such Person: (a) guarantees, endorses or
otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to invest in, a debtor,
or otherwise to assure a creditor against loss) the indebtedness, dividend, obligation or other
liability of any other Person in any manner (other than by endorsement of instruments in the course
of collection), including any indebtedness, dividend or other obligation which may be issued or
incurred at some future time; (b) guarantees the payment of dividends or other distributions upon
the Capital Securities of any other Person; (c) undertakes or agrees (whether contingently or
otherwise): (i) to purchase, repurchase, or otherwise acquire any indebtedness, obligation or
liability of any other Person or any property or assets constituting security therefor, (ii) to
advance or provide funds for the payment or discharge of any indebtedness, obligation or liability
of any other Person (whether in the form of loans, advances, stock purchases, capital contributions
or otherwise), or to maintain solvency, assets, level of income, working capital or other financial
condition of any other Person, or (iii) to make payment to any other Person other than for value
received; (d) agrees to lease property or to purchase securities, property or services from such
other Person with the purpose or intent of assuring the owner of such indebtedness or obligation of
the ability of such other Person to make payment of the indebtedness or obligation; (e) to induce
the issuance of, or in connection with the issuance of, any letter of credit for the benefit of
such other Person; or (f) undertakes or agrees otherwise to assure a creditor against loss. The
amount of any Contingent Liability shall (subject to any limitation set forth herein) be deemed to
be the outstanding principal amount (or maximum permitted principal amount, if larger) of the
indebtedness, obligation or other liability guaranteed or supported thereby.



     “Consolidated Net Income” means, with respect to the Parent and its Subsidiaries for
any period, the net income (or loss) of the Parent and its Subsidiaries for such period, excluding
any gains or losses from Asset Dispositions, any extraordinary gains or losses and any gains or
losses from discontinued operations.



     “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.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 7









 





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



     “Debt” of any Person means, without duplication, (a) all indebtedness of such Person
(excluding trade accounts payable in the ordinary course of business and accrued expenses arising
in the ordinary course of business), (b) all borrowed money of such Person, whether or not
evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person as
lessee under Capital Leases which have been or should be recorded as liabilities on a balance sheet
of such Person in accordance with GAAP, (d) all obligations of such Person to pay the deferred
purchase price of property or services (excluding trade accounts payable in the ordinary course of
business and accrued expenses arising in the ordinary course of business), (e) all indebtedness
secured by a Lien on the property of such Person, whether or not such indebtedness shall have been
assumed by such Person; provided that if such Person has not assumed or otherwise become
liable for such indebtedness, such indebtedness shall be measured at the fair market value of such
property securing such indebtedness at the time of determination, (f) all obligations, contingent
or otherwise, with respect to the face amount of all letters of credit (whether or not drawn),
bankers’ acceptances and similar obligations issued for the account of such Person (including the
Letters of Credit), (g) all Hedging Obligations of such Person, (h) all guarantees of indebtedness
of any Person, and (i) all Debt of any partnership of which such Person is a general partner.



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



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



     “Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if
any, applicable to Base Rate Loans plus (iii) 2% per annum; provided,
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
Revolving 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.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 8









 





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



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



     “EBITDA” means, for any period, Consolidated Net Income for such period plus,
(a) without duplication and to the extent deducted in determining such Consolidated Net Income,
(i) Interest Expense for such period, (ii) income tax expense for such period, (iii) depreciation
and amortization for such period, (iv) non-cash charges for such period related to the impairment
of goodwill and other intangibles, and (v) transaction expenses incurred in such period in
connection with the transactions contemplated by this Agreement and the other Loan Documents (not
to exceed $1,000,000 in aggregate amount for all periods), minus (b) without duplication and to the
extent added in determining such Consolidated Net Income, any non-cash items of income for such
period.



     “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 any
Co-Borrower 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.



     “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 a Co-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 any Co-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 any Co-Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 9









 







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 any Co-Borrower or any ERISA Affiliate.



     “Eurodollar Rate” means:




     (a) For any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum
equal to 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. If such rate is not available at such time for any reason, then the
“Eurodollar Rate” for such Interest Period shall be 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.




     (b) For any day with respect to an interest rate calculation for a Base Rate Loan, 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 day in same day funds in the approximate amount of the Base Rate Loan
being made, continued or converted by Bank of America and with a term equivalent to one
month would be offered by Bank of America’s London Branch to major banks in the London
interbank eurodollar market at approximately 11:00 a.m. (London time) two Business Days
prior to such day.



     “Eurodollar Rate Loan” means a Revolving Loan that bears interest at a rate based on
the Eurodollar Rate.



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



     “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 a
Co-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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 10









 







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 a Co-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 Co-Borrowers 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 Co-Borrowers with respect to such withholding tax pursuant to
Section 3.01(a)(ii) or (iii).



     “Existing Credit Agreement” means that certain Amended and Restated Credit Agreement,
dated as of March 31, 2006 among the Parent, the other Co-Borrowers, Bank of America, N.A., as
administrative agent and documentation agent, JPMorgan Chase Bank, N.A., as syndication agent, and
a syndicate of lenders.



     “Existing Letters of Credit” means those Letters of Credit set forth on
Schedule 1.01.



     “Factoring Facility” means any factoring facility of any Co-Borrower which has terms,
covenants, pricing and other terms which have been approved in writing by the Required Lenders
(such approval not to be unreasonably withheld or delayed).



     “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.



     “Fiscal Quarter” means a fiscal quarter of a Fiscal Year.



     “Fiscal Year” means the fiscal year of the Parent and its Subsidiaries, which period
shall be the 12-month period ending on February 28th (or February 29th, in the case of a leap year)
of each year. References to a Fiscal Year with a number corresponding to any calendar year (e.g.,
“Fiscal Year 2009”) refer to the Fiscal Year ending on February 28th of such calendar year
(or February 29th, in the case of a leap year).



     “Fixed Charge Coverage Ratio” means, for any Computation Period, the ratio of (a) the
total for such period of EBITDA minus the sum of income taxes paid in cash by the Parent and



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 11









 







its Subsidiaries and all unfinanced Capital Expenditures (excluding Capital Expenditures
related to the Mexican Expansion in an aggregate amount not to exceed $45,000,000) to (b) the sum
for such period of (i) cash Interest Expense plus (ii) required payments of principal of
Funded Debt (excluding the Revolving Loans, Hedging Obligations and contingent obligations in
respect of letters of credit) plus (iii) an amount equal to the advances, dividends and
distributions (other than (x) non-cash distributions of equity securities of the Parent and
(y) distributions on equity securities of the Parent to the extent already included in the
calculation of Consolidated Net Income), and redemptions and repurchases of equity securities of
the Parent (to the extent otherwise permitted herein) made by the Parent to holders of its Capital
Securities.



     “Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction
other than that in which a Co-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.



     “Foreign Subsidiary” means a Subsidiary that is not a Domestic Subsidiary.



     “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.



     “Funded Debt” means, as to any Person, all Debt of such Person that matures more than
one year from the date of its creation (or is renewable or extendible, at the option of such
Person, to a date more than one year from such date).



     “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).



     “Guarantor Payment” has the meaning set forth in Section 11.07(a).



     “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,



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 12









 







infectious or medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.



     “Hedge Bank” means any Person that, at the time it enters into a Hedging Agreement
permitted under Article VI or VII, is a Lender or an Affiliate of a Lender, in its
capacity as a party to such Hedging Agreement.



     “Hedging Agreement” means any interest rate, currency or commodity swap agreement, cap
agreement or collar agreement, and any other agreement or arrangement designed to protect a Person
against fluctuations in interest rates, currency exchange rates or commodity prices.



     “Hedging Obligation” means, with respect to any Person, any liability of such Person
under any Hedging Agreement. The amount of any Person’s obligation in respect of any Hedging
Obligation shall be deemed to be the incremental obligation that would be reflected in the
financial statements of such Person in accordance with GAAP.



     “Impacted Lender” means a Defaulting Lender or a Lender as to which (a) the L/C Issuer
or the Administrative Agent has a good faith belief that the Lender has defaulted in fulfilling its
obligations under one or more other syndicated credit facilities or (b) an entity that Controls the
Lender has been deemed insolvent or becomes subject to a bankruptcy or other similar proceeding.



     “Increase Effective Date” has the meaning specified in Section 2.14(d).



     “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 Expense” means for any period the consolidated interest expense of the
Parent and its Subsidiaries for such period (including all imputed interest on Capital Leases).



     “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 calendar quarter 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 a Co-Borrower in
its Revolving Loan Notice; provided that:




     (i) 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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 13









 






Business Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Business Day;




     (ii) 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




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



     “Inventory” has the meaning set forth in the Security Agreement.



     “Investment” means, with respect to any Person, any investment in another Person,
whether by acquisition of any debt or Capital Security, by making any loan or advance, by becoming
obligated with respect to a Contingent Liability in respect of obligations of such other Person
(other than travel and similar advances to employees in the ordinary course of business) or by
making an Acquisition.



     “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 a
Co-Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of
Credit.



     “Joinder Agreement” means the Joinder to Credit Agreement, Security Agreement and
related Notes and Agreements executed by a Domestic Subsidiary created or acquired after the
Closing Date, substantially in the form of Exhibit G.



     “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 Revolving
Borrowing.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 14









 





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



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



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



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



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



     “Letter of Credit” means any letter of credit issued hereunder and shall include the
Existing Letters of Credit. A Letter of Credit may be a commercial letter of credit or a standby
letter of credit.



     “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. 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 Co-Borrowers under
Article II in the form of a Revolving Loan or a Swing Line Loan.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 15









 





     “Loan Documents” means this Agreement, each Note, each Issuer Document, the Collateral
Documents, each Joinder Agreement, the Agent Fee Letter and all documents, instruments and
agreements delivered in connection with the foregoing.



     “Margin Stock” means any “margin stock” as defined in Regulation U.



     “Material” means, with respect to any Co-Borrower or any Subsidiary, at the time of
determination that either the assets of such Co-Borrower or such Subsidiary comprised more than 10%
of the assets of the Parent and its Subsidiaries taken as a whole or the contribution of such
Co-Borrower or such Subsidiary to EBITDA, determined as of the most recently ended four Fiscal
Quarter period, was 10% or more of EBITDA for such period.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the financial condition, operations, assets, business, properties or prospects
of the Parent and its Subsidiaries taken as a whole, (b) a material impairment of the ability of
any Material Co-Borrower to perform any of the Obligations under any Loan Document (provided that,
if an incident, or series of incidents, affects more than one Co-Borrower with assets that in the
aggregate comprise more than 20% of the assets of the Parent and its Subsidiaries taken as a whole
or the contribution of such Co-Borrower to EBITDA, determined as of the most recently ended four
Fiscal Quarter period, was 20% or more of EBITDA for such period, all such Co-Borrowers shall be
determined to be Material for the purposes of this definition of Material Adverse Effect) or (c) a
material adverse effect upon any substantial portion of the collateral under the Collateral
Documents or upon the legality, validity, binding effect or enforceability against any Co-Borrower
of any Loan Document.



     “Maturity Date” means August 18, 2012; provided, however, that if such
date is not a Business Day, the Maturity Date shall be the next preceding Business Day.



     “Mexican Expansion” means the construction and operation of a new manufacturing
facility in the town of Agua Prieta in the state of Sonora, Mexico and any related purchase of
equipment, furniture and fixtures with respect thereto.



     “Mortgage” means a mortgage, deed of trust, leasehold mortgage or similar instrument
granting the Administrative Agent a Lien on real property of any Co-Borrower.



     “Multiemployer Plan” means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which any Co-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.



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



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Co-Borrower 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 Co-Borrower or any



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 16









 







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, 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 (i) with respect to Revolving 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 Revolving Loans and Swing Line Loans, as the case may be,
occurring on such date; and (ii) with respect to any L/C Obligations on any date, the amount of
such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements by the Co-Borrowers of Unreimbursed Amounts.



     “Parent” has the meaning set forth in the Preamble.



     “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 any Co-Borrower or any ERISA Affiliate or to which any Co-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.



     “Perfection Certificate” means a perfection certificate executed and delivered to the
Administrative Agent by a Co-Borrower, substantially in the form of Exhibit F.



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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 17









 





     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by any Co-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.



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



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



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



     “Regulation U” has the meaning specified in Regulation U of the FRB.



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



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



     “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Revolving Loans, a Revolving 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, at least two 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, at least two Lenders holding in the aggregate more than 50% of the Total
Outstandings (with the aggregate amount of each Lender’s risk participation and funded
participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for
purposes of this definition); provided that the Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making
a determination of Required Lenders.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, chief operating officer or treasurer, of a Co-Borrower and, solely for purposes of notices
given pursuant to Article II, any other officer or employee of the applicable Co-Borrower
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 Co-Borrower shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Co-Borrower and such Responsible Officer shall be conclusively presumed
to have acted on behalf of such Co-Borrower.



     “Revolving Borrowing” means a borrowing consisting of simultaneous Revolving 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.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 18









 





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



     “Revolving Loan Notice” means a notice of (a) a Revolving Borrowing, (b) a conversion
of Revolving 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.



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



     “Secured Hedging Obligations” means all Hedging Obligations permitted hereunder which
are owed to any Hedge Bank.



     “Secured Party” has the meaning given to such term in each Security Agreement.



     “Secured Obligations” means, collectively, (a) the Obligations, (b) all Secured
Hedging Obligations, (c) all Bank Product Obligations, (d) any and all out-of-pocket expenses
(including, without limitation, expenses and reasonable counsel fees and expenses of any Secured
Party) incurred by any Secured Party in enforcing its rights under this Agreement or under any
other Loan Document, and (e) all present and future amounts in respect of the foregoing that would
become due but for the operation of any provision of Debtor Relief Laws, and all present and future
accrued and unpaid interest, including, without limitation, post-petition interest if any
Co-Borrower voluntarily or involuntarily becomes subject to any Debtor Relief Laws.



     “Security Agreement” means the Second Amended and Restated Security Agreement dated as
of the date hereof executed and delivered by each Co-Borrower, together with any joinders thereto
and any other collateral security agreement executed by a Co-Borrower, in each case in form and
substance satisfactory to the Administrative Agent.



     “Subordinated Debt” means any unsecured Debt of any Co-Borrower which has
subordination terms, covenants, pricing and other terms which have been approved in writing by the
Required Lenders.



     “Subordinated Debt Documents” means all documents and instruments relating to
Subordinated Debt and all amendments and modifications thereof approved by the Administrative
Agent.



     “Subordination Agreements” means all subordination agreements executed by a holder of
Subordinated Debt in favor of the Administrative Agent and the Lenders from time to time after the
Closing Date.



     “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 Parent.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 19









 





     “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) $20,000,000 and
(b) the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



     “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 Funded Debt” means all Debt of the Parent and its Subsidiaries, determined on a
consolidated basis, excluding, without duplication, (a) contingent obligations in respect of
Contingent Liabilities (except to the extent constituting Contingent Liabilities in respect of Debt
of a Person other than any Co-Borrower or any Subsidiary), (b) Hedging Obligations and (c) Debt of
a Co-Borrower to Subsidiaries and Debt of Subsidiaries to a Co-Borrower or to other Subsidiaries.



     “Total Leverage Ratio” means, as of the last day of any Fiscal Quarter, the ratio of
(a) Total Funded Debt as of such day to (b) EBITDA for the Computation Period ending on such day.



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



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



     “UCC” has the meaning set forth in the Security Agreement.



     “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).



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 20









 





     “Wholly-Owned Subsidiary” means, as to any Person, a Subsidiary all of the Capital
Securities of which (except directors’ qualifying Capital Securities) are at the time directly or
indirectly owned by such Person and/or another Wholly-Owned Subsidiary of such Person.



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




     (a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning
and effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or modifications set forth herein or in any
other Loan Document), (ii) any reference herein to any Person shall be construed to include
such Person’s successors and assigns, (iii) the words “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” 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.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 21









 






     (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 Co-Borrowers or the Required Lenders shall so request, the Administrative Agent, the
Lenders and the Co-Borrowers 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 Co-Borrowers 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 Parent and its Subsidiaries or to the determination
of any amount for the Parent 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
Parent 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 Co-Borrowers
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).



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



     1.06 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in
effect at such time; provided, 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 maximum stated amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect at such time.



ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Revolving Loans. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans (each such loan, a “Revolving Loan”) to the
Co-Borrowers 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 Revolving Borrowing, (i) the



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 22









 




Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate
Outstanding Amount of the Revolving 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 Co-Borrowers may borrow under this Section 2.01, prepay under
Section 2.05, and reborrow under this Section 2.01. Revolving Loans may be Base
Rate Loans or Eurodollar Rate Loans, as further provided herein.




     2.02 Borrowings, Conversions and Continuations of Revolving Loans.




     (a) Each Revolving Borrowing, each conversion of Revolving Loans from one Type to the
other, and each continuation of Eurodollar Rate Loans shall be made upon the Co-Borrowers’
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
Revolving Loans, and (ii) on the requested date of any Borrowing of Base Rate Revolving
Loans. Each telephonic notice by the Co-Borrowers pursuant to this Section 2.02(a)
must be confirmed promptly by delivery to the Administrative Agent of a written Revolving
Loan Notice, appropriately completed and signed by a Responsible Officer of the Parent.
Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except
as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion
to a Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof. Each Revolving Loan Notice (whether telephonic or written)
shall specify (i) whether the Co-Borrowers are requesting a Revolving Borrowing, a
conversion of Revolving 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 Revolving Loans
to be borrowed, converted or continued, (iv) the Type of Revolving Loans to be borrowed or
to which existing Revolving Loans are to be converted, and (v) if applicable, the duration
of the Interest Period with respect thereto. If the Co-Borrowers fails to specify a Type of
Revolving Loan in a Revolving Loan Notice or if the Co-Borrowers fail to give a timely
notice requesting a conversion or continuation, then the applicable Revolving 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 Co-Borrowers request a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such Revolving 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 Revolving Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Applicable Percentage of the applicable
Revolving Loans, and if no timely notice of a conversion or continuation is provided by the
Co-Borrowers, the Administrative Agent shall notify each Lender of the



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 23









 






details of any automatic conversion to Base Rate Loans described in the preceding
subsection. In the case of a Revolving Borrowing, each Lender shall make the amount of its
Revolving 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 Revolving 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 Co-Borrowers in like funds as received by the Administrative Agent either by
(i) crediting the account of the Co-Borrowers 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
Co-Borrowers; provided, however, that if, on the date the Revolving Loan
Notice with respect to such Borrowing is given by the Co-Borrowers, 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 Co-Borrowers 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 (i) Default (other than an Event of Default), no Loans may be requested
as, converted to or continued as Eurodollar Rate Loans with an Interest Period in excess of
one month without the consent of the Required Lenders and (ii) during the existence of an
Event of Default, no Loans may be requested as, converted or continued as Eurodollar Rate
Loans without the consent of the Required Lenders.




     (d) The Administrative Agent shall promptly notify the Co-Borrowers 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 Co-Borrowers and the Lenders of any change in Bank of
America’s prime rate used in determining the Base Rate promptly following the public
announcement of such change.




     (e) After giving effect to all Revolving Borrowings, all conversions of Revolving Loans
from one Type to the other, and all continuations of Revolving Loans as the same Type, there
shall not be more than ten Interest Periods in effect with respect to Revolving 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 for the account of each Co-Borrower, and to amend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and (2) to honor



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 24









 






drawings under the Letters of Credit; and (B) the Lenders severally agree to
participate in Letters of Credit issued for the account of any Co-Borrower 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
Revolving 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 Co-Borrowers for the
issuance or amendment of a Letter of Credit shall be deemed to be a representation
by the Co-Borrowers 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 Co-Borrowers’ ability to
obtain Letters of Credit shall be fully revolving, and accordingly the Co-Borrowers
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.




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




     (A) the expiry date of such requested Letter of Credit would occur more
than twelve months after the date of issuance, 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;



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 25









 






     (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
$100,000, in the case of a standby Letter of Credit, or $50,000, in the case
of a commercial Letter of Credit;




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




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




     (F) a default of any Lender’s obligations to fund under
Section 2.03(c) exists or any Lender is at such time an Impacted
Lender hereunder, unless the L/C Issuer has entered into arrangements
satisfactory to the L/C Issuer with the Co-Borrowers or such Lender to
eliminate the L/C Issuer’s risk with respect to such Lender.




     (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.




     (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.




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon
the request of a Co-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 Parent. 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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 26









 






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 Co-Borrowers 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 Co-Borrowers 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, any Co-Borrower or any Subsidiary, at least one
Business Day prior to the requested date of issuance or amendment of the applicable
Letter of Credit, that one or more applicable conditions contained in
Article IV shall not then be satisfied, then, subject to the terms and
conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of
Credit for the account of the Co-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) 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 Co-Borrowers and the Administrative
Agent a true and complete copy of such Letter of Credit or amendment.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 27









 






     (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 Co-Borrowers
and the Administrative Agent thereof. Not later than 11:00 a.m. on the date of any
payment by the L/C Issuer under a Letter of Credit (each such date, an “Honor
Date”), the Co-Borrowers shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing. If the
Co-Borrowers fail to so reimburse the L/C Issuer by such time, the Administrative
Agent shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such
Lender’s Applicable Percentage thereof. In such event, the Co-Borrowers shall be
deemed to have requested a Revolving 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 Revolving 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
at the Administrative Agent’s Office in an amount equal to its Applicable Percentage
of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in
such notice by the Administrative Agent, whereupon, subject to the provisions of
Section 2.03(c)(iii), each Lender that so makes funds available shall be
deemed to have made a Base Rate Revolving Loan to the Co-Borrowers in such amount.
The Administrative Agent shall remit the funds so received to the L/C Issuer.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Revolving Borrowing of Base Rate Loans because the conditions set forth in
Section 4.02 cannot be satisfied or for any other reason, the Co-Borrowers
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 Revolving Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the L/C Issuer for any amount drawn



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 28









 






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 Revolving Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated
by this Section 2.03(c), shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the L/C Issuer, any
Co-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 Revolving Loans pursuant to this Section 2.03(c)
is subject to the conditions set forth in Section 4.02 (other than delivery
by the Co-Borrowers of a Revolving Loan Notice). No such making of an L/C Advance
shall relieve or otherwise impair the obligation of the Co-Borrowers 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 greater of the Federal Funds Rate and a rate determined by the L/C
Issuer in accordance with banking industry rules on interbank compensation, plus any
administrative, processing or similar fees customarily charged by the L/C Issuer in
connection with the foregoing. If such Lender pays such amount (with interest and
fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan
included in the relevant Revolving 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 Co-Borrowers or
otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 29









 






Lender its Applicable Percentage thereof in the same funds as those received by
the Administrative Agent.




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




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




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




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




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




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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 30









 






     (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, a Co-Borrower or any
Subsidiary.




     The Co-Borrowers 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 Co-Borrowers’ instructions or other irregularity, the Co-Borrowers will immediately
notify the L/C Issuer. The Co-Borrowers 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 each Co-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 Co-Borrowers hereby assume all risks of the
acts or omissions of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and
shall not, preclude the Co-Borrowers’ 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 Co-Borrowers may have a claim against the L/C Issuer, and the L/C
Issuer may be liable to the Co-Borrowers, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by the Co-Borrowers which
the Co-Borrowers prove 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.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 31









 






     (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 Co-Borrowers
shall, in each case, immediately Cash Collateralize such L/C Borrowing or the then
Outstanding Amount of such L/C Obligations, as applicable. 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 Co-Borrowers hereby grant 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 Co-Borrowers 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 Co-Borrowers 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 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 calendar quarter, 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 Co-Borrowers shall pay directly to the L/C Issuer for its own account a fronting fee
(i) with respect to each commercial Letter of Credit, at the rate specified in the Agent Fee
Letter, computed on the amount of such Letter of Credit, and payable upon the issuance or
renewal thereof, (ii) with respect to any amendment of a commercial



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 32









 






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




     (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.



     2.04 Swing Line Loans.




     (a) The Swing Line. Subject to the terms and conditions set forth herein, the
Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in
this Section 2.04, but in its sole discretion and without any obligation, to make
loans (each such loan, a “Swing Line Loan”) to the Co-Borrowers 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 Revolving 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 after giving
effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of
all Swing Line Loans shall not exceed such Lender’s Commitment, and provided,
further, that the Co-Borrowers 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 Co-Borrowers 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.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 33









 






     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the
Co-Borrowers’ 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 $100,000, and
(ii) the requested borrowing date, which shall be a Business Day. Each such telephonic
notice must be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed
by a Responsible Officer of the Parent. 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 Co-Borrowers
at its office by crediting the account of the Co-Borrowers on the books of the Swing Line
Lender in immediately available funds.




     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender, at any time and from time to time no less frequently
than once weekly, shall on behalf of the Co-Borrowers (which hereby irrevocably
authorize the Swing Line Lender to so request on their behalf) request that each
Lender make a Base Rate Revolving Loan in an amount equal to such Lender’s
Applicable Percentage of the amount of Swing Line Loans then outstanding (the
“Refunded Swing Line Loan”). Such request shall be made in writing (which
written request shall be deemed to be a Revolving Loan Notice for purposes hereof)
and in accordance with the requirements of Section 2.02, without regard to
the minimum and multiples specified therein for the principal amount of Base Rate
Loans, but subject to the unutilized portion of the Aggregate Commitments and the
conditions set forth in Section 4.02. The Swing Line Lender shall furnish
the Co-Borrowers with a copy of the applicable Revolving 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 Revolving
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 Revolving 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 Revolving Loan to the Co-Borrowers in such
amount. The Administrative Agent



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 34









 






shall remit the funds so received to the Swing Line Lender and applied to repay
the Refunded Swing Line Loan.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a
Revolving Borrowing in accordance with Section 2.04(c)(i), the request for
Base Rate Revolving 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 Revolving Loan included in the relevant
Revolving 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 Revolving 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, any Co-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
Revolving 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 Co-Borrowers
to repay Swing Line Loans, together with interest as provided herein.




     (d) Repayment of Participations.




     (i) At any time after any Lender has purchased and funded a risk participation
in a Swing Line Loan, if the Swing Line Lender receives any



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 35









 






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 Co-Borrowers for interest on the Swing Line Loans. Until each
Lender funds its Base Rate Revolving 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 Co-Borrowers shall make all
payments of principal and interest in respect of the Swing Line Loans directly to the Swing
Line Lender.



     2.05 Prepayments.




     (a) The Co-Borrowers may, upon notice to the Administrative Agent, at any time or from
time to time voluntarily prepay Revolving Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the Administrative Agent
not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of
Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Revolving Loans;
(ii) any prepayment of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or
a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate
Revolving Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000
in excess thereof or, in each case, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount of such prepayment and the
Type(s) of Revolving 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 Co-Borrowers, the
Co-Borrowers 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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 36









 






Section 3.05. Each such prepayment shall be applied to the Revolving Loans of
the Lenders in accordance with their respective Applicable Percentages.




     (b) The Co-Borrowers may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans
in whole or in part without premium or penalty; provided that (i) such notice must
be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m.
on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal
amount of $100,000. Each such notice shall specify the date and amount of such prepayment.
If such notice is given by the Co-Borrowers, the Co-Borrowers shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the date specified
therein.




     (c) If for any reason the Total Outstandings at any time exceed the Aggregate
Commitments then in effect, the Co-Borrowers shall immediately prepay Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount equal to such excess;
provided, however, that the Co-Borrowers 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 Co-Borrowers 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
$5,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Co-Borrowers 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 Co-Borrowers shall repay to the Lenders on the Maturity Date the aggregate
principal amount of Revolving Loans outstanding on such date.




     (b) The Co-Borrowers shall repay each Swing Line Loan on the earlier to occur of
(i) demand by the Swing Line Lender and (ii) the Maturity Date.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 37









 





     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 Revolving 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
Co-Borrowers under any Loan Document is not paid when due (after giving effect 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 Co-Borrowers 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 Co-Borrowers 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 Revolving 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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 38









 






in arrears on the last Business Day of each calendar quarter, 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.




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




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




     (b) If, as a result of any restatement of or other adjustment to the financial
statements of the Parent and its Subsidiaries or for any other reason, the Co-Borrowers or
the Lenders determine that (i) the Total Leverage Ratio as calculated by the Co-Borrowers as
of any applicable date was inaccurate and (ii) a proper calculation of the Total Leverage
Ratio would have resulted in higher pricing for such period, the Co-Borrowers 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 any Co-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. The Co-Borrowers’



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 39









 






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 Co-Borrowers 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 Co-Borrowers hereunder to pay any amount owing with respect to
the Obligations. In the event of any conflict between the accounts and records maintained
by any Lender and the accounts and records of the Administrative Agent in respect of such
matters, the accounts and records of the Administrative Agent shall control in the absence
of manifest error. Upon the request of any Lender made through the Administrative Agent,
the Co-Borrowers 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 Co-Borrowers shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by the Co-Borrowers hereunder shall be
made to the Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the Administrative Agent’s Office in Dollars and in immediately
available funds not later than 2:00 p.m. on the date specified herein. The Administrative
Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable
share as provided herein) of such payment in like funds as received by wire transfer to such
Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m.
shall be deemed received on the next succeeding Business Day and any applicable interest or
fee shall continue to accrue. If any payment to be made by the Co-Borrowers 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.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 40









 






(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 Revolving Borrowing of Eurodollar Rate Loans (or, in the
case of any Revolving Borrowing of Base Rate Loans, prior to 12:00 noon on the date
of such Revolving Borrowing) that such Lender will not make available to the
Administrative Agent such Lender’s share of such Revolving 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 Revolving
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 Co-Borrowers a corresponding
amount. In such event, if a Lender has not in fact made its share of the applicable
Revolving Borrowing available to the Administrative Agent, then the applicable
Lender and the Co-Borrowers 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 Co-Borrowers to but excluding the date of payment to the
Administrative Agent (provided the Administrative Agent shall first demand payment
from the Lender which has not made its share of the applicable Revolving Borrowing
available to the Administrative Agent prior to making demand on the Co-Borrowers),
at (A) in the case of a payment to be made by such Lender, the greater of the
Federal Funds Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the Administrative Agent in
connection with the foregoing, and (B) in the case of a payment to be made by the
Co-Borrowers, the interest rate applicable to Base Rate Loans. If the Co-Borrowers
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
Co-Borrowers the amount of such interest paid by the Co-Borrowers for such period.
If such Lender pays its share of the applicable Revolving Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender’s
Revolving Loan included in such Revolving Borrowing. Any payment by the
Co-Borrowers shall be without prejudice to any claim the Co-Borrowers may have
against a Lender that shall have failed to make such payment to the Administrative
Agent.




     (ii) Payments by Co-Borrowers; Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received notice from the Co-Borrowers
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 Co-Borrowers will not
make such payment, the Administrative Agent may assume that the Co-Borrowers have
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 Co-Borrowers have 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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 41









 






Administrative Agent forthwith on demand the amount so distributed to such
Lender or the L/C Issuer, in immediately available funds with interest thereon, for
each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.




     A notice of the Administrative Agent to any Lender or the Co-Borrowers 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 Co-Borrowers 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 Revolving 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 Revolving 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 Revolving 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 Revolving 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 Revolving Loans or participations and accrued interest thereon 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 Revolving 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 Revolving Loans and other
amounts owing them, provided that:



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 42









 






     (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 Co-Borrowers pursuant to and in accordance with the express
terms of this Agreement, (y) any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Revolving Loans or
subparticipations in L/C Obligations or Swing Line Loans to any assignee or
participant, other than to the Co-Borrowers or any Subsidiary thereof (as to which
the provisions of this Section shall apply) or (z) any payment obtained by the L/C
Issuer or Swing Line Lender in connection with cash collateral or other arrangements
made in respect of an Impacted Lender.



     Each Co-Borrower consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Co-Borrower rights of setoff and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of such Co-Borrower in the
amount of such participation.



     2.14 Increase in Commitments.




     (a) Request for Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Co-Borrowers may from
time to time, request an increase in the Aggregate Commitments by up to an aggregate amount
(for all such requests) not exceeding $50,000,000; provided that (i) any such
request for an increase shall be in a minimum amount of $10,000,000, and (ii) the
Co-Borrowers may make a maximum of three such requests. At the time of sending such notice,
the Co-Borrowers (in consultation with the Administrative Agent) shall specify the time
period within which each Lender is requested to respond (which shall in no event be less
than ten Business Days from the date of delivery of such notice to the Lenders).




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




     (c) Notification by Administrative Agent; Additional Lenders. The
Administrative Agent shall notify the Co-Borrowers and each Lender of the Lenders’ responses
to each request made hereunder. To achieve the full amount of a requested increase and
subject to the approval of the Administrative Agent, the L/C Issuer and the Swing Line
Lender (which approvals shall not be unreasonably withheld), the Co-Borrowers may also
invite additional Eligible Assignees to become Lenders pursuant to a



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 43









 






joinder agreement in form and substance satisfactory to the Administrative Agent and
its counsel.




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




     (e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrower shall deliver to the Administrative Agent a certificate of each
Co-Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender)
signed by a Responsible Officer of such Co-Borrower (i) certifying and attaching the
resolutions adopted by such Co-Borrower approving or consenting to such increase, and
(ii) certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article V and the other Loan Documents
are true and correct in all material respects (except that any representation or warranty
that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct
in all respects) 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 in all material respects (except that any representation or warranty that
is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in
all respects) as of such earlier date, and except that for purposes of this
Section 2.14, 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. The Co-Borrowers shall prepay any Loans outstanding on the Increase Effective Date
(and pay any additional amounts required pursuant to Section 3.05) to the extent
necessary to keep the outstanding Loans ratable with any revised Applicable Percentages
arising from any nonratable increase in the Commitments under this Section.




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



     2.15 Appointment of the Parent as Agent for Co-Borrowers; Reliance by Administrative
Agent. Each Co-Borrower irrevocably appoints the Parent as its agent hereunder to make
requests on such Co-Borrower’s behalf under Article II hereof for borrowings to be made by
such Co-Borrower and for Letters of Credit to be issued for such Co-Borrower’s sole or joint
account, to select on such Co-Borrower’s behalf the interest rate to be applicable under
Article II hereof to Borrowings made by such Co-Borrower and to take any other action
contemplated by the Loan Documents with respect to credit extended hereunder to such Co-Borrower.
The Administrative Agent and the Lenders shall be entitled to conclusively presume that any action
by the Parent under the Loan Documents is taken on behalf of any one or more of the relevant
Co-Borrowers whether or not the Parent so indicates.




SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 44











 





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 Co-Borrowers
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 Co-Borrowers 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 Co-Borrowers 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 Co-Borrowers or the Administrative Agent shall be required by the
Code to withhold or deduct any Taxes, including both United States Federal backup
withholding and withholding taxes, from any payment, then (A) the Administrative
Agent shall withhold or make such deductions as are determined by the Administrative
Agent to be required based upon the information and documentation it has received
pursuant to subsection (e) below, (B) the Administrative Agent shall timely pay the
full amount withheld or deducted to the relevant Governmental Authority in
accordance with the Code, and (C) to the extent that the withholding or deduction is
made on account of Indemnified Taxes or Other Taxes, the sum payable by the
Co-Borrowers 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 Co-Borrowers. Without limiting the
provisions of subsection (a) above, the Co-Borrowers 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 Co-Borrowers 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 Co-Borrowers
or the Administrative Agent or paid by the Administrative Agent, such Lender or the L/C
Issuer, as the case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. The
Co-Borrowers shall also, and does hereby,



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 45









 







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 Co-Borrowers 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 Co-Borrowers 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 Attorney Costs of any
counsel for the Co-Borrowers or the Administrative Agent) incurred by or asserted
against the Co-Borrowers 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 Co-Borrowers or the Administrative Agent pursuant to subsection (e).
Each Lender and the L/C Issuer hereby authorizes the Administrative Agent to set off
and apply any and all amounts at any time owing to such Lender or the L/C Issuer, as
the case may be, under this Agreement or any other Loan Document against any amount
due to the Administrative Agent under this clause (ii). The agreements in this
clause (ii) shall survive the resignation and/or replacement of the Administrative
Agent, any assignment of rights by, or the replacement of, a Lender or the L/C
Issuer, the termination of the Aggregate Commitments and the repayment, satisfaction
or discharge of all other Obligations.




     (d) Evidence of Payments. Upon request by the Co-Borrowers or the
Administrative Agent, as the case may be, after any payment of Taxes by the Co-Borrowers or
by the Administrative Agent to a Governmental Authority as provided in this
Section 3.01, the Co-Borrowers shall deliver to the Administrative Agent or the
Administrative Agent shall deliver to the Co-Borrowers, 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 Co-Borrowers or the Administrative Agent, as the case
may be.




     (e) Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to the
Co-Borrowers and to the Administrative Agent, at the time or times prescribed by applicable
Laws or when reasonably requested by the Co-Borrowers 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 Co-Borrowers 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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 46









 







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 Co-Borrowers 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 Co-Borrowers are
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 Co-Borrowers and the
Administrative Agent executed originals of Internal Revenue Service Form W-9
or such other documentation or information prescribed by applicable Laws or
reasonably requested by the Co-Borrowers or the Administrative Agent as will
enable the Co-Borrowers 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 Co-Borrowers 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 Co-Borrowers 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
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 any of the Co-Borrowers 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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 47









 






(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 Co-Borrowers or the Administrative Agent to determine
the withholding or deduction required to be made.




     (iii) Each Lender shall promptly (A) notify the Co-Borrowers 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 Co-Borrowers
or the Administrative Agent make any withholding or deduction for taxes from amounts
payable to such Lender.




     (f) Treatment of Certain Refunds. Unless required by applicable Laws, at no
time shall the Administrative Agent have any obligation to file for or otherwise pursue on
behalf of a Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C
Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such
Lender or the L/C Issuer, as the case may be. If the Administrative Agent, any Lender or
the L/C Issuer determines, in its sole discretion, that it has received a refund of any
Taxes or Other Taxes as to which it has been indemnified by the Co-Borrowers or with respect
to which the Co-Borrowers has paid additional amounts pursuant to this Section, it shall pay
to the Co-Borrowers an amount equal to such refund (but only to the extent of indemnity
payments made, or additional amounts paid, by the Co-Borrowers under this Section with
respect to the Taxes or Other Taxes giving rise to such refund), net of all reasonable
out-of-pocket expenses incurred by the Administrative Agent, such Lender or the L/C Issuer,
as the case may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that the Co-Borrowers,
upon the request of the Administrative Agent, such Lender or the L/C Issuer, agrees to repay
the amount paid over to the Co-Borrowers (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender or
the L/C Issuer in the event the Administrative Agent, such Lender or the L/C Issuer is
required to repay such refund to such Governmental Authority. This 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 Co-Borrowers 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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 48









 







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 Co-Borrowers
through the Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate
Loans or to convert Base Rate Revolving Loans to Eurodollar Rate Loans shall be suspended until
such Lender notifies the Administrative Agent and the Co-Borrowers that the circumstances giving
rise to such determination no longer exist. Upon receipt of such notice, the Co-Borrowers shall,
upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, 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. Upon any such prepayment or conversion, the Co-Borrowers 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 (c) the Eurodollar Rate for any requested
Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly
reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so
notify the Co-Borrowers and each Lender. Thereafter, the obligation of the Lenders to make or
maintain Eurodollar Rate Loans shall be suspended until the Administrative Agent (upon the
instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the
Co-Borrowers 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 Revolving Borrowing of Base Rate Loans 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 reflected in the Eurodollar Rate) 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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 49









 







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 Co-Borrowers 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 holding company with respect to capital adequacy), then
from time to time the Co-Borrowers 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 Co-Borrowers shall be conclusive absent manifest error.
The Co-Borrowers 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 Co-Borrowers shall not be required to compensate a Lender or the
L/C Issuer pursuant to the foregoing provisions of this Section for any



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 50









 







increased costs incurred or reductions suffered more than six months prior to the date
that such Lender or the L/C Issuer, as the case may be, notifies the Co-Borrowers 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 six-month period
referred to above shall be extended to include the period of retroactive effect thereof).



     3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Co-Borrowers 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 Co-Borrowers (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 Co-Borrowers; or




     (c) 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 Co-Borrowers pursuant to
Section 10.13;


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




     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 Co-Borrowers are required to pay any
additional amount to any Lender, the L/C Issuer, or any Governmental Authority for the
account of any Lender or the L/C Issuer pursuant to Section 3.01, or if any Lender
gives a notice pursuant to Section 3.02, then such Lender or the L/C Issuer shall,
as applicable, use reasonable efforts to designate a different Lending Office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if, in the judgment of such Lender or the L/C Issuer,
such designation or assignment (i) would eliminate or reduce amounts payable pursuant to
Section 3.01 or 3.04, as the case may be, in the future, or eliminate the
need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case,
would not subject such Lender or the L/C Issuer, as the case may be, to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer,
as the case may be. The Co-Borrowers hereby agree to pay all reasonable costs and expenses



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 51









 







incurred by any Lender or the L/C Issuer in connection with any such designation or
assignment.




     (b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Co-Borrowers are 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 Co-Borrowers may replace such Lender in accordance with
Section 10.13.



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



ARTICLE IV




CONDITIONS PRECEDENT TO 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 Co-Borrower, 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 each Security Agreement,
together with related UCC-1 financing statements, intellectual property filings and
stock or other appropriate certificates, if applicable, for 100% of all Equity
Interests of each Domestic Subsidiary and for 65% of all Equity Interests of each
Foreign Subsidiary and stock or other appropriate powers, sufficient in number for
distribution to the Administrative Agent, each Lender and the Co-Borrowers;




     (ii) a Note executed by the Co-Borrowers 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 Co-Borrower 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
Co-Borrower is a party;




     (iv) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Co-Borrower is duly organized or



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 52









 







formed, and that each Co-Borrower 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 Patton Boggs LLP, counsel to the Co-Borrowers,
addressed to the Administrative Agent and each Lender, as to matters concerning the
Co-Borrowers and the Loan Documents as the Required Lenders may reasonably request;




     (vi) a certificate of a Responsible Officer of each Co-Borrower either
(A) attaching copies of all consents, licenses and approvals required in connection
with the execution, delivery and performance by such Co-Borrower and the validity
against such Co-Borrower 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 Parent 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;




     (viii) a duly completed Perfection Certificate, signed by a Responsible Officer
of the Parent;




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




     (x) 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 Co-Borrowers shall have paid all
Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested
by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus
such additional Attorney Costs as shall constitute its reasonable estimate of Attorney Costs
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 Co-Borrowers
and the Administrative Agent).




     (d) The Closing Date shall have occurred on or before August 28, 2009.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 53









 






     (e) With respect to each parcel of real property owned by any Co-Borrower on the date
hereof and for which a Mortgage was previously delivered to Administrative Agent in
connection with the Existing Credit Agreement or any predecessor credit agreement, a duly
executed Amendment to Mortgage providing for the continuation of the fully perfected Lien,
in favor of the Administrative Agent, in all right, title and interest of such Co-Borrower
in such real property.


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 Revolving Loan Notice requesting only a conversion of
Revolving 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 Co-Borrowers 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 in all material respects (except that any representation or warranty that is
qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all
respects) 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 in all material respects (except that any representation or
warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true
and correct in all respects) 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.




     (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 Revolving Loan Notice requesting only a
conversion of Revolving Loans to the other Type or a continuation of Eurodollar Rate Loans)
submitted by the Co-Borrowers 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.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 54









 





ARTICLE V




REPRESENTATIONS AND WARRANTIES




     The Co-Borrowers represent and warrant to the Administrative Agent and the Lenders that:



     5.01 Organization. Each Co-Borrower and each Subsidiary is validly existing and in
good standing under the laws of its jurisdiction of organization; and each Co-Borrower and each
Subsidiary is duly qualified to do business in each jurisdiction where, because of the nature of
its activities or properties, such qualification is required, except for such jurisdictions where
the failure to so qualify would not have a Material Adverse Effect.



     5.02 Authorization; No Conflict. Each Co-Borrower is duly authorized to execute and
deliver each Loan Document to which it is a party, each Co-Borrower is duly authorized to borrow
monies hereunder and each Co-Borrower is duly authorized to perform its Obligations under each Loan
Document to which it is a party. The execution, delivery and performance by each Co-Borrower of
each Loan Document to which it is a party, and the borrowings by the Co-Borrowers hereunder, do not
and will not (a) require any consent or approval of any governmental agency or authority (other
than any consent or approval which has been obtained and is in full force and effect), (b) conflict
with (i) any provision of law, (ii) any Organization Documents of any Co-Borrower or (iii) any
agreement, indenture, instrument or other document, or any judgment, order or decree, which is
binding upon any Co-Borrower or any of their respective properties or (c) require, or result in,
the creation or imposition of any Lien on any asset of any Co-Borrower (other than Liens in favor
of the Administrative Agent created pursuant to the Collateral Documents).



     5.03 Validity and Binding Nature. Each of this Agreement and each other Loan Document
to which any Co-Borrower is a party is the legal, valid and binding obligation of such Person,
enforceable against such Person in accordance with its terms, subject to bankruptcy, insolvency and
similar laws affecting the enforceability of creditors’ rights generally and to general principles
of equity.



     5.04 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 the financial condition of the Parent 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 Parent and its Subsidiaries as of the date
thereof, including liabilities for taxes, material commitments and Debt.




     (b) The unaudited consolidated balance sheet of the Parent and its Subsidiaries dated
May 31, 2009, and the related consolidated statements of income or operations, shareholders’
equity and cash flows for the Fiscal Quarter ended on that date



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 55









 







(i) were prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the
financial condition of the Parent and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby, subject, in the case of clauses (i)
and (ii), to the absence of footnotes and to normal year-end audit adjustments.




     (c) 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.



     5.05 Litigation and Contingent Liabilities. No litigation (including derivative
actions), arbitration proceeding or governmental investigation or proceeding is pending or, to the
Co-Borrowers’ knowledge, threatened in writing against any Co-Borrower or any Subsidiary which
might reasonably be expected to have a Material Adverse Effect, except as set forth in
Schedule 5.05. Other than any liability incident to such litigation or proceedings, no
Co-Borrower or Subsidiary has any material Contingent Liabilities not permitted by
Sections 7.01 or 7.15.



     5.06 Ownership of Properties; Liens. Each Co-Borrower and each Subsidiary owns good
and, in the case of real property, marketable title to all of its properties and assets, real and
personal, tangible and intangible, of any nature whatsoever (including patents, trademarks, trade
names, service marks and copyrights), free and clear of all Liens, charges and claims (including
infringement claims with respect to patents, trademarks, service marks, copyrights and the like)
except as permitted by Section 7.02.



     5.07 Equity Ownership; Subsidiaries. All issued and outstanding Capital Securities of
each Co-Borrower and each Subsidiary are duly authorized and validly issued, fully paid,
non-assessable, and free and clear of all Liens other than those in favor of the Administrative
Agent, and such securities were issued in compliance with all applicable state and federal laws
concerning the issuance of securities. Schedule 5.07 sets forth the authorized Capital
Securities of each Co-Borrower and each Subsidiary as of the Closing Date. All of the issued and
outstanding Capital Securities of the Co-Borrowers are owned as set forth on Schedule 5.07
as of the Closing Date, and all of the issued and outstanding Capital Securities of each
Wholly-Owned Subsidiary are, directly or indirectly, owned by the Co-Borrowers. As of the Closing
Date, except as set forth on Schedule 5.07, there are no pre-emptive or other outstanding
rights, options, warrants, conversion rights or other similar agreements or understandings for the
purchase or acquisition of any Capital Securities of any Co-Borrower or any Subsidiary.



     5.08 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 Co-Borrowers, nothing has occurred which would
prevent, or cause the loss of, such qualification. The Co-Borrowers and each ERISA
Affiliate have made all required



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 56









 







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 Co-Borrowers, 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; (ii) no Pension
Plan has any Unfunded Pension Liability; (iii) neither any Co-Borrower nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of
ERISA with respect to any Pension Plan (other than premiums due and not delinquent under
Section 4007 of ERISA); (iv) neither any Co-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 any
Co-Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA.



     5.09 Margin Regulations; Investment Company Act.




     (a) None of the Co-Borrowers is engaged and none of the Co-Borrowers will 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 Co-Borrowers, any Person Controlling a Co-Borrower, or any Subsidiary
is or is required to be registered as an “investment company” under the Investment Company
Act of 1940.



     5.10 Taxes. Each Co-Borrower and each Subsidiary has timely filed all tax returns and
reports required by law to have been filed and have paid all 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 in accordance with GAAP shall have been set
aside on its books. Each Co-Borrower and each Subsidiary have made adequate reserves on their
books and records in accordance with GAAP for all taxes that have accrued but which are not yet due
and payable. There is no proposed tax assessment against any Co-Borrower or any Subsidiary that
would, if made, have a Material Adverse Effect. No Co-Borrower or Subsidiary is party to any tax
sharing agreement.



     5.11 Solvency, etc. On the Closing Date, and immediately prior to and after giving
effect to the issuance of each Letter of Credit and each Borrowing hereunder and the use of the
proceeds thereof, with respect to each Co-Borrower, individually, (a) the fair value of its assets
is



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greater than the amount of its liabilities (including disputed, contingent and unliquidated
liabilities) as such value is established and liabilities evaluated in accordance with GAAP,
(b) the present fair saleable value of its assets is not less than the amount that will be required
to pay the probable liability on its debts as they become absolute and matured, (c) it is able to
realize upon its assets and pay its debts and other liabilities (including disputed, contingent and
unliquidated liabilities) as they mature in the normal course of business, (d) it does not intend
to, and does not believe that it will, incur debts or liabilities beyond its ability to pay as such
debts and liabilities mature and (e) it is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which its property would constitute unreasonably
small capital.



     5.12 Environmental Compliance. Each Co-Borrower and each Subsidiary conducts 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 each Co-Borrower and each
Subsidiary has reasonably concluded that such Environmental Laws and claims could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.



     5.13 Insurance. Set forth on Schedule 5.13 is a complete and accurate summary
of the property and casualty insurance program of the Co-Borrowers and the Subsidiaries as of the
Closing Date (including the names of all insurers, policy numbers, expiration dates, amounts and
types of coverage, annual premiums, exclusions, deductibles, self-insured retention, and a
description in reasonable detail of any self-insurance program, retrospective rating plan, fronting
arrangement or other risk assumption arrangement involving any Co-Borrower or any Subsidiary).
Each Co-Borrower and each Subsidiary and their properties are insured with financially sound and
reputable insurance companies which are not Affiliates of the Co-Borrowers, in such amounts, with
such deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where such Co-Borrower or such Subsidiary
operate.



     5.14 Real Property. Set forth on Schedule 5.14 is a complete and accurate
list, as of the Closing Date, of the address of all real property owned or leased by any
Co-Borrower or any Subsidiary, together with, in the case of leased property, the name and mailing
address of the lessor of such property.



     5.15 Information. All information heretofore or contemporaneously herewith furnished
in writing by any Co-Borrower to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement and the transactions contemplated hereby is, and all written
information hereafter furnished by or on behalf of any Co-Borrower to the Administrative Agent or
any Lender pursuant hereto or in connection herewith will be, true and accurate in every material
respect on the date as of which such information is dated or certified, and none of such
information is or will be incomplete by omitting to state any material fact necessary to make such
information not misleading in light of the circumstances under which it was made; it being hereby
acknowledged by the Administrative Agent and the Lenders that any projections and forecasts
provided by the Co-Borrowers are based on good faith estimates and assumptions believed by the
Co-Borrowers to be reasonable as of the date of the applicable projections or assumptions and that
actual results during the period or periods covered by any such projections and forecasts may
differ from projected or forecasted results.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 58









 





     5.16 Intellectual Property. Each Co-Borrower and each Subsidiary owns and possesses
or has a license or other right to use all patents, patent rights, trademarks, trademark rights,
trade names, trade name rights, service marks, service mark rights and copyrights as are necessary
for the conduct of the businesses of the Co-Borrowers and the Subsidiaries, without any
infringement upon rights of others which could reasonably be expected to have a Material Adverse
Effect.



     5.17 Burdensome Obligations. No Co-Borrower is a party to any agreement or contract
or subject to any restriction contained in its Organization Documents which could reasonably be
expected to have a Material Adverse Effect.



     5.18 Labor Matters. Except as set forth on Schedule 5.18, no Co-Borrower or
Subsidiary is subject to any labor or collective bargaining agreement. There are no existing or
threatened strikes, lockouts or other labor disputes involving any Co-Borrower or Subsidiary that
singly or in the aggregate could reasonably be expected to have a Material Adverse Effect. Hours
worked by and payment made to employees of the Co-Borrowers and Subsidiaries are not in violation
of the Fair Labor Standards Act or any other applicable law, rule or regulation dealing with such
matters.



     5.19 No Default. No Co-Borrower or 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.



     5.20 Taxpayer Identification Number. The true and correct U.S. taxpayer
identification number for each Co-Borrower is set forth on Schedule 5.20.



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



ARTICLE VI




AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Co-Borrowers 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:



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     (a) Annual Reports. Promptly when available and in any event within 90 days
after the end of each Fiscal Year of the Parent (commencing with the Fiscal Year ended
February 28, 2010), a copy of the annual audit report of the Parent and its Subsidiaries for
such Fiscal Year, including therein consolidated balance sheets and statements of earnings
and cash flows of the Parent and its Subsidiaries as at the end of such Fiscal Year,
certified without adverse reference to going concern value and without qualification by
independent auditors of recognized standing selected by the Parent and reasonably acceptable
to the Administrative Agent, together with a comparison with the previous Fiscal Year
certified by a Responsible Officer of the Parent.




     (b) Interim Reports. Promptly when available and in any event within 45 days
after the end of each Fiscal Quarter (except the last Fiscal Quarter of each Fiscal Year)
consolidated (and if requested by Administrative Agent, consolidating) balance sheets of the
Parent and its Subsidiaries as of the end of such Fiscal Quarter, together with consolidated
(and, if requested by Administrative Agent, consolidating) statements of earnings and cash
flows for such Fiscal Quarter and for the period beginning with the first day of such Fiscal
Year and ending on the last day of such Fiscal Quarter, certified by a Responsible Officer
of the Parent.




     (c) Projections. As soon as practicable, and in any event not later than 45
days after the commencement of each Fiscal Year, financial projections for the Parent and
its Subsidiaries for such Fiscal Year (including quarterly operating and cash flow budgets)
prepared in a manner consistent with the projections delivered by the Parent to the Lenders
prior to the Closing Date or otherwise in a manner reasonably satisfactory to the
Administrative Agent, accompanied by a certificate of a Responsible Officer of the Parent on
behalf of the Parent to the effect that (a) such projections were prepared by the Parent in
good faith, (b) the Parent has a reasonable basis for the assumptions contained in such
projections and (c) such projections have been prepared in accordance with such assumptions.



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



     6.02 Certificates; Other Information. Deliver to the Administrative Agent:




     (a) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by
the chief executive officer, chief financial officer, chief operating officer or treasurer
of the Parent;




     (b) 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 Parent by independent
accountants in connection with the accounts or books of the Parent or any Subsidiary, or any
audit of any of them;



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     (c) promptly after the same are available, copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of the Parent,
and copies of all annual, regular, periodic and special reports and registration statements
which the Parent may file or be required to file with the SEC under Section 13 or 15(d) of
the Securities Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto;




     (d) promptly after the furnishing thereof, copies of any statement or report furnished
to any holder of debt securities of the Co-Borrowers 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;




     (e) promptly, and in any event within five Business Days after receipt thereof by any
Co-Borrower, 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 Co-Borrower; and




     (f) promptly following receipt, copies of any notices (including notices of default or
acceleration) received from any holder or trustee of, under or with respect to any Debt
(including Subordinated Debt).




     (g) promptly, such additional information (including any financial statements or
notices required to be delivered to the Administrative Agent pursuant to
Section 6.01, 6.02, or 6.03, in which case such financial statements
and notices will be promptly delivered to the Lender making such request) regarding the
business, financial or corporate affairs of the Co-Borrower and the Subsidiaries, 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(c) (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 Parent posts such documents, or provides a link thereto on
the Parent’s website on the Internet at the website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Parent’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 Parent shall deliver paper copies of such documents to the Administrative Agent or any
Lender that requests the Parent 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 Parent
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 Parent shall be required to provide paper copies of the Compliance
Certificates required by Section 6.02(a) to the Administrative Agent. Except for such
Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery
or to



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maintain copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Parent 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 Co-Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Co-Borrowers hereunder (collectively, “Co-Borrower Materials”) by posting the
Co-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 Co-Borrowers or their 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 Co-Borrowers hereby agree
that (w) all Co-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 Co-Borrower Materials “PUBLIC,” the
Co-Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C
Issuer and the Lenders to treat such Co-Borrower Materials as not containing any material
non-public information with respect to the Co-Borrowers or their securities for purposes of United
States Federal and state securities laws (provided, however, that to the extent
such Co-Borrower Materials constitute Information, they shall be treated as set forth in
Section 10.07); (y) all Co-Borrower Materials marked “PUBLIC” are permitted to be made
available through a portion of the Platform designated “Public Side Information;” and (z) the
Administrative Agent and the Arranger shall be entitled to treat any Co-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”.



     6.03 Notices. Promptly notify the Administrative Agent:




     (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 any Co-Borrower or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between any Co-Borrower or Subsidiary and any
Governmental Authority; or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting any Co-Borrower or Subsidiary, including pursuant to any
applicable Environmental Laws;




     (c) of the occurrence of any ERISA Event; and




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



     Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a
Responsible Officer of the Parent setting forth details of the occurrence referred to therein and
stating what action the Co-Borrowers have taken and propose to take with respect thereto. Each



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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 Books, Records and Inspections. Keep, and cause each other Co-Borrower and each
Subsidiary to keep, its books and records in accordance with sound business practices sufficient to
allow the preparation of financial statements in accordance with GAAP; permit, and cause each other
Co-Borrower and each Subsidiary to permit, any Lender or the Administrative Agent or any
representative thereof to inspect the properties and operations of the Co-Borrowers and the
Subsidiaries; and permit, and cause each other Co-Borrower and each Subsidiary to permit, at any
reasonable time and with reasonable notice (or at any time without notice if an Event of Default
exists), any Lender or the Administrative Agent or any representative thereof to visit any or all
of its offices, to discuss its financial matters with its officers and its independent auditors
(and the Co-Borrowers hereby authorize such independent auditors to discuss such financial matters
with any Lender or the Administrative Agent or any representative thereof), and to examine (and, at
the expense of the Co-Borrowers, photocopy extracts from) any of its books or other records; and
permit, and cause each other Co-Borrower and each Subsidiary to permit, the Administrative Agent
and its representatives to inspect the Inventory and other tangible assets of the Co-Borrowers and
the Subsidiaries, to perform, after the occurrence and during the continuation of any Event of
Default, appraisals of the equipment of the Co-Borrowers and the Subsidiaries, and to inspect,
audit, check and make copies of and extracts from the books, records, computer data, computer
programs, journals, orders, receipts, correspondence and other data relating to Inventory, Accounts
and any other collateral. All such inspections or audits by the Administrative Agent shall be at
the Co-Borrowers’ expense; provided that so long as no Default or Event of Default shall have
occurred and be continuing (i) there shall be no more than one (1) such inspection or audit per
Fiscal Year and (ii) the maximum expense for which the Co-Borrowers shall be responsible shall be
$25,000.



     6.05 Maintenance of Property; Insurance.




     (a) Keep, and cause each other Co-Borrower and Subsidiary to keep, all property useful
and necessary in the business of the Co-Borrowers in good working order and condition,
ordinary wear and tear excepted.




     (b) Maintain, and cause each other Co-Borrower and Subsidiary to maintain, with
responsible insurance companies, such insurance coverage as may be required by any law or
governmental regulation or court decree or order applicable to it and such other insurance,
to such extent and against such hazards and liabilities, as is customarily maintained by
companies similarly situated, but which shall insure against all risks and liabilities of
the type identified on Schedule 5.13 and shall have insured amounts no less than,
and deductibles no higher than, those set forth on such schedule; and, upon request of the
Administrative Agent or any Lender, furnish to the Administrative Agent or such Lender a
certificate setting forth in reasonable detail the nature and extent of all insurance
maintained by the Co-Borrowers and the Subsidiaries. The Co-Borrowers shall cause each
issuer of an insurance policy to provide the Administrative Agent with an endorsement
(i) showing the Administrative Agent as loss payee with respect to each policy of property
or casualty insurance and naming the Administrative Agent and each Lender as an additional
insured with respect to each policy of liability insurance,



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(ii) providing that 30 days’ notice will be given to the Administrative Agent prior to
any cancellation of, material reduction or change in coverage provided by or other material
modification to such policy and (iii) reasonably acceptable in all other respects to the
Administrative Agent. The Co-Borrowers shall execute and deliver to the Administrative
Agent a collateral assignment, in form and substance satisfactory to the Administrative
Agent, of each business interruption insurance policy maintained by the Co-Borrowers.




     (c) Unless the Co-Borrowers provide the Administrative Agent with evidence of the
insurance coverage required by this Agreement, after not less than fifteen (15) days written
notice to the Co-Borrowers, the Administrative Agent may purchase insurance at the
Co-Borrowers’ expense to protect the Administrative Agent’s and the Lender’s interests in
the Collateral. This insurance may, but need not, protect any Co-Borrower’s interests. The
coverage that the Administrative Agent purchases may not pay any claim that is made against
any Co-Borrower in connection with the Collateral. The Co-Borrowers may later cancel any
insurance purchased by the Administrative Agent, but only after providing the Administrative
Agent with evidence that the Co-Borrowers have obtained insurance as required by this
Agreement. If the Administrative Agent purchases insurance for the Collateral, the
Co-Borrowers will be responsible for the costs of that insurance, including interest and any
other charges that may be imposed with the placement of the insurance, until the effective
date of the cancellation or expiration of the insurance. The costs of the insurance may be
added to the principal amount of the Loans owing hereunder. The costs of the insurance may
be more than the cost of the insurance the Co-Borrowers may be able to obtain on their own.



     6.06 Compliance with Laws; Payment of Taxes and Liabilities. (a) Comply, and cause
each other Co-Borrower and Subsidiary to comply, in all material respects with all applicable Laws,
rules, regulations, decrees, orders, judgments, licenses and permits, except where (i) failure to
comply could not reasonably be expected to have a Material Adverse Effect or (ii) such compliance
is being contested in good faith by appropriate proceedings diligently conducted; (b) without
limiting clause (a) above, ensure, and cause each other Co-Borrower and Subsidiary to ensure, that
no person who owns a controlling interest in or otherwise controls a Co-Borrower or a Subsidiary is
or shall be (i) listed on the Specially Designated Nationals and Blocked Person List maintained by
the Office of Foreign Assets Control (“OFAC”), Department of the Treasury, and/or any other
similar lists maintained by OFAC pursuant to any authorizing statute, Executive Order or regulation
or (ii) a person designated under Section 1(b), (c) or (d) of Executive Order No. 13224
(September 23, 2001), any related enabling legislation or any other similar Executive Orders;
(c) without limiting clause (a) above, comply, and cause each other Co-Borrower and Subsidiary to
comply, in all material respects with all applicable Bank Secrecy Act (“BSA”) and
anti-money laundering laws and regulations; and (d) pay, and cause each other Co-Borrower and
Subsidiary to pay, prior to delinquency, all taxes and other governmental charges against it or any
collateral, as well as claims of any kind which, if unpaid, could become a Lien on any of its
property; provided that the foregoing shall not require any Co-Borrower or Subsidiary to
pay any such tax or charge so long as it shall contest the validity thereof in good faith by
appropriate proceedings and shall set aside on its books adequate reserves with respect thereto in
accordance with GAAP and, in the case of a claim which could become a Lien on any collateral, such
contest proceedings shall stay the foreclosure of such Lien or the sale of any portion of the
collateral to satisfy such claim.



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     6.07 Maintenance of Existence, etc. Maintain and preserve, and (subject to
Section 7.04) cause each other Co-Borrower and Subsidiary to maintain and preserve, (a) its
existence and good standing in the jurisdiction of its organization and (b) its qualification to do
business and good standing in each jurisdiction where the nature of its business makes such
qualification necessary (other than such jurisdictions in which the failure to be qualified or in
good standing could not reasonably be expected to have a Material Adverse Effect).



     6.08 Use of Proceeds. Use the proceeds of the Loans, and the Letters of Credit,
solely for working capital purposes, for Acquisitions permitted by Section 7.04, for
Capital Expenditures and for other general business purposes; and not use or permit any proceeds of
any Loan to be used, either directly or indirectly, for the purpose, whether immediate, incidental
or ultimate, of “purchasing or carrying” any Margin Stock.



     6.09 Further Assurances.




     (a) Except as otherwise provided in this Agreement, take, and cause each other
Co-Borrower to take, such actions as are necessary or as the Administrative Agent or the
Required Lenders may reasonably request from time to time to ensure that the Secured
Obligations of each Co-Borrower under the Loan Documents are secured by substantially all of
the assets (except as set froth herein or in the Collateral Documents) of the Co-Borrowers
(as well as all Capital Securities of each Domestic Subsidiary and 65% of all Capital
Securities of each direct Foreign Subsidiary) and each domestic Subsidiary becomes a
Co-Borrower (including, upon the acquisition or creation thereof, any Subsidiary acquired or
created after the Closing Date), in each case as the Administrative Agent may determine,
including (i) the execution and delivery of a Joinder Agreement by any Wholly-Owned
Domestic Subsidiary created or acquired following the date hereof, together with documents
of the types referred to in clauses (iii) and (iv) of Section 4.01(a), (ii) the
execution and delivery of guaranties, security agreements, pledge agreements, mortgages
(with respect to each parcel of real property with a net book value of $5,000,000 or
greater), together with the documents required by Section 6.09(b) below, financing
statements and other documents, and the filing or recording of any of the foregoing,
(iii) the delivery of certificated securities and other collateral with respect to which
perfection is obtained by possession and (iv) if requested by the Administrative Agent,
favorable opinions of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation referred to in
clauses (i) and (ii)), all in form, content and scope reasonably satisfactory to the
Administrative Agent; provided, however, that the Co-Borrowers shall have 30
days (or such longer period as acceptable to the Administrative Agent) to execute and
deliver any mortgages (with respect to each parcel of real property with a net book value of
$5,000,000 or greater) required pursuant to this Section 6.09 and provided,
further, to the extent the requirements of this Section 6.09 are applicable
to any new Subsidiary formed following the date hereof, or applicable to a Subsidiary or
assets acquired in connection with an Acquisition where the entire consideration is less
than $10,000,000, the Co-Borrowers shall have (A) 30 days (or such longer period as
acceptable to the Administrative Agent) to execute and deliver any mortgages (with respect
to each parcel of real property with a net book value of $5,000,000 or greater) required
pursuant to this Section 6.09 and (B) 10 days following the date of such



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formation or Acquisition, as applicable, to fully comply with all other requirements of
this Section 6.09. Further, and notwithstanding anything to the contrary set forth
above, no Secured Obligations of any Co-Borrower will be secured by any parcel of real
property owned or acquired by the Co-Borrowers on or after the date hereof with a net book
value at such time of less than $5,000,000 and for which no Mortgage was previously
delivered to Administrative Agent in connection with the Existing Credit Agreement or
predecessor credit agreement.




     (b) With respect to each parcel of real property with a net book value of $5,000,000 or
greater owned on the date hereof or acquired at any time after the date hereof, by any
Co-Borrower, a duly executed Mortgage providing for a fully perfected Lien, in favor of the
Administrative Agent, in all right, title and interest of such Co-Borrower in such real
property, together with:




     (i) an ALTA Loan Title Insurance Policy, issued by an insurer acceptable to the
Administrative Agent, insuring the Administrative Agent’s Lien on such real property
and containing such endorsements as the Administrative Agent may reasonably require
(it being understood that the amount of coverage, exceptions to coverage and status
of title set forth in such policy shall be acceptable to the Administrative Agent);




     (ii) copies of all documents of record concerning such real property as shown
on the commitment for the ALTA Loan Title Insurance Policy referred to above;




     (iii) original or certified copies of all insurance policies required to be
maintained with respect to such real property by this Agreement, the applicable
Mortgage or any other Loan Document;




     (iv) a survey certified to the Administrative Agent meeting such standards as
the Administrative Agent may reasonably establish and otherwise reasonably
satisfactory to the Administrative Agent; and




     (v) a flood insurance policy concerning such real property, if required by the
Flood Disaster Protection Act of 1973.



     6.10 Payment of Obligations. Pay and discharge as the same shall become due and
payable, all its obligations and liabilities, including (a) all lawful claims which, if unpaid,
would by law become a Lien upon its property; and (b) all Debt, as and when due and payable, but
subject to any subordination provisions contained in any instrument or agreement evidencing such
Debt.



     6.11 Real Estate Documents. Within 45 days after the Closing Date, with respect to
each parcel of real property owned by any Co-Borrower on the Closing Date and for which a duly
executed Amendment to Mortgage was delivered to the Administrative Agent on the Closing Date,
deliver the following:



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     (i) A “date down” endorsement to each existing ALTA Loan Title Insurance
Policy, issued by an insurer acceptable to the Administrative Agent, insuring the
Administrative Agent’s Lien on such real property and containing such endorsements
as the Administrative Agent may reasonably require (it being understood that the
amount of coverage, exceptions to coverage and status of title set forth in such
policy shall be acceptable to the Administrative Agent);




     (ii) copies of all documents of record not previously delivered to
Administrative Agent concerning such real property as shown on the commitment for
the ALTA Loan Title Insurance Policy referred to above;




     (iii) original or certified copies of all insurance policies required to be
maintained with respect to such real property by this Agreement, the applicable
Mortgage or any other Loan Document; and




     (iv) if not previously delivered in connection with the Existing Credit
Agreement, a flood insurance policy concerning such real property, if required by
the Flood Disaster Protection Act of 1973.



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
Co-Borrowers shall not, nor shall they permit any Subsidiary to, directly or indirectly:



     7.01 Debt. Create, incur, assume or suffer to exist any Debt, except:




     (a) Obligations under this Agreement and the other Loan Documents;




     (b) Debt secured by Liens permitted by Sections 7.02(d), 7.02(h) and
7.02(j), and extensions, renewals and refinancings thereof; provided that the
aggregate amount of all such Debt at any time outstanding shall not exceed $25,000,000;




     (c) Debt of a Co-Borrower to any domestic Wholly-Owned Subsidiary or Debt of any
Wholly-Owned Subsidiary to a Co-Borrower or to a domestic Wholly-Owned Subsidiary;
provided that such Debt shall be evidenced by a demand note in form and substance
reasonably satisfactory to the Administrative Agent and pledged and delivered to the
Administrative Agent pursuant to the Collateral Documents as additional collateral security
for the Obligations, and the obligations under such demand note shall be subordinated to the
Obligations of the Co-Borrowers hereunder in a manner reasonably satisfactory to the
Administrative Agent;




     (d) Subordinated Debt;



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     (e) Hedging Obligations approved by Administrative Agent and incurred in favor of a
Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation;




     (f) Debt described on Schedule 7.01 and any extension, renewal or refinancing
thereof so long as the principal amount thereof is not increased;




     (g) Debt in respect of secured obligations pursuant to one or more Factoring
Facilities, not to exceed $30,000,000 in the aggregate amount at any one time outstanding;




     (h) Debt assumed in connection with Acquisitions permitted under Section 7.05
not to exceed $10,000,000 at any time outstanding;




     (i) Debt consisting of seller financing incurred in connection with Acquisitions
permitted under Section 7.05 not to exceed $10,000,000 at any time outstanding;




     (j) Debt incurred by a Co-Borrower or any Subsidiaries arising from agreements
providing for indemnification, adjustment of purchase price, earn-outs or similar
obligations, or from guaranties or letters of credit, surety bonds or performance bonds
securing the performance of such Co-Borrower or any such Subsidiary pursuant to such
agreements;




     (k) guaranties by any Co-Borrower or any Subsidiary of Debt of any other Co-Borrower or
any Subsidiary with respect to, in each case, Debt otherwise permitted to be incurred
pursuant to this Section 7.01; and




     (l) so long as there exists no Default before and immediately after giving effect to
the incurrence of any such Debt, other unsecured Debt, in addition to the Debt listed above,
in an aggregate outstanding amount not at any time exceeding $25,000,000.



     7.02 Liens. Create or permit to exist any Lien on any of its real or personal
properties, assets or rights of whatsoever nature (whether now owned or hereafter acquired),
except:




     (a) Liens for taxes or other governmental charges not at the time delinquent or
thereafter payable without penalty or being contested in good faith by appropriate
proceedings and, in each case, for which it maintains adequate reserves;




     (b) Liens arising in the ordinary course of business (such as (i) Liens of carriers,
warehousemen, mechanics and materialmen and other similar Liens imposed by law and
(ii) Liens in the form of deposits or pledges incurred in connection with worker’s
compensation, unemployment compensation and other types of social security (excluding Liens
arising under ERISA) or in connection with surety bonds, bids, performance bonds and similar
obligations) for sums not overdue or being contested in good faith by appropriate
proceedings and not involving any advances or borrowed money or the deferred purchase price
of property or services and, in each case, for which it maintains adequate reserves;



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     (c) Liens described on Schedule 7.02 as of the Closing Date;




     (d) subject to the limitation set forth in Section 7.01(b), (i) Liens arising
in connection with Capital Leases (and attaching only to the property being leased),
(ii) Liens existing on property at the time of the acquisition thereof by any Co-Borrower
(and not created in contemplation of such acquisition) and (iii) Liens that constitute
purchase money security interests on any property securing debt incurred for the purpose of
financing all or any part of the cost of acquiring such property, provided that any such
Lien attaches to such property within 20 days of the acquisition thereof and attaches solely
to the property so acquired;




     (e) attachments, appeal bonds, judgments and other similar Liens, for sums not
exceeding $5,000,000 arising in connection with court proceedings, provided the execution or
other enforcement of such Liens is effectively stayed and the claims secured thereby are
being actively contested in good faith and by appropriate proceedings;




     (f) easements, rights of way, restrictions, minor defects or irregularities in title
and other similar Liens not interfering in any material respect with the ordinary conduct of
the business of any Co-Borrower;




     (g) Liens arising under the Loan Documents;




     (h) subject to the limitation set forth in Section 7.01(b), Liens (i) existing
on assets acquired, or on the assets of Person acquired, in connection with an Acquisition
permitted by Section 7.05 (and not created in contemplation of such Acquisition)
(ii) on assets of Foreign Subsidiaries;




     (i) the replacement, extension or renewal of any Lien permitted by clause (c) above
upon or in the same property subject thereto arising out of the extension, renewal or
replacement of the Debt secured thereby (without increase in the amount thereof); and




     (j) subject to the limitations set forth in Section 7.01(b), Liens to secure
Debt in respect of letters of credit.



     7.03 Restricted Payments. (a) Unless both before and after giving effect thereto no
Default or Event of Default would result therefrom (determined, in the case of the financial
covenants under Section 7.13, as if such distribution had been made on the last day of the
then-ending or most recently ended fiscal quarter of the Parent), make any distribution to any
holder of its Capital Securities (excluding distributions not prohibited by clause (b) of this
Section 7.03), (b) make any distribution to any holders of its Capital Securities or
purchase or redeem any of its Capital Securities in excess of $5,000,000 per annum, except in
connection with the repurchase of Capital Securities pursuant to and in accordance with the
provisions of any existing employee stock option or benefit plan, (c) pay any management fees or
similar fees to any of its equityholders or any Affiliate thereof (but excluding compensation paid
to employees who are holders of its Capital Securities which compensation is reasonable and
customary or has been approved by the Compensation Committee of the Board of Directors of the
Parent), (d) make any redemption, prepayment, defeasance, repurchase or any other payment (subject
to the immediately following sentence) in respect of any Subordinated Debt or (e) set



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 69









 







aside funds for any of the foregoing. Notwithstanding the foregoing, (i) any Subsidiary may
pay dividends or make other distributions to a Co-Borrower or to a domestic Wholly-Owned
Subsidiary; and (ii) the Co-Borrowers may make regularly scheduled payments in respect of
Subordinated Debt to the extent permitted under the subordination provisions thereof.



     7.04 Mergers, Consolidations, Sales, Acquisitions. (a) Be a party to any merger or
consolidation, or purchase or otherwise acquire all or substantially all of the assets or any
Capital Securities of any class of, or any partnership or joint venture interest in, any other
Person, (b) sell, transfer, convey or lease all or any substantial part of its assets or Capital
Securities (including the sale of Capital Securities of any Subsidiary) except for sales of
inventory in the ordinary course of business, or (c) sell or assign with or without recourse any
receivables, except:




     (i) any such merger, consolidation, sale, transfer, conveyance, lease or assignment of
or by any Wholly-Owned Subsidiary into a Co-Borrower or into any other domestic Wholly-Owned
Subsidiary;




     (ii) any sales of receivables pursuant to any Factoring Facility,




     (iii) any such purchase or other acquisition by a Co-Borrower or any domestic
Wholly-Owned Subsidiary of the assets or Capital Securities of any Wholly-Owned Subsidiary;
and




     (iv) any Acquisition by a Co-Borrower or any domestic Wholly-Owned Subsidiary where:




     (A) the business or division acquired are for use, or the Person acquired is
engaged, in businesses permitted by Section 7.09 hereof;




     (B) immediately before and after giving effect to such Acquisition, no Default
or Event of Default shall exist;




     (C) (i) the entire consideration to be paid by such Co-Borrower or such
Subsidiary is comprised of common stock issued by the Parent or (ii) the aggregate
consideration to be paid by such Co-Borrower or such Subsidiary (including any Debt
assumed or issued in connection therewith, the amount thereof to be calculated in
accordance with GAAP, but not including any common stock issued by the Parent as
part of the consideration thereof, for which the limitations set forth in this
Section 7.04(iv)(C) shall not apply) in connection with such Acquisition (or
any series of related Acquisitions) is less than $25,000,000;




     (D) immediately after giving effect to such Acquisition, the Co-Borrowers is in
pro forma compliance with all the financial ratios and restrictions set forth in
Section 7.13;




     (E) in the case of the Acquisition of any Person, the Board of Directors or
similar governing body of such Person has approved such Acquisition;



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     (F) reasonably prior to an Acquisition wherein the entire consideration is
$10,000,000 or greater, the Administrative Agent shall have received complete
execution or conformed copies of each material document, instrument and agreement to
be executed in connection with such Acquisition together with all lien search
reports and, except in connection with Liens which will continue pursuant to
applicable exceptions set forth in clauses (a) through (i) of Section 7.02
lien release letters and other documents as the Administrative Agent may require to
evidence the termination of Liens on the assets or business to be acquired;




     (G) not less than ten Business Days prior to an Acquisition wherein the entire
consideration is $10,000,000 or greater, the Administrative Agent shall have
received an acquisition summary with respect to the Person and/or business or
division to be acquired, such summary to include a reasonably detailed description
thereof (including financial information) and operating results (including financial
statements for the most recent 12 month period for which they are available and as
otherwise available), the terms and conditions, including economic terms, of the
proposed Acquisition, and the Co-Borrowers’ calculation of pro forma EBITDA relating
thereto;




     (H) the Administrative Agent shall have approved the Co-Borrowers’ computation
of pro forma EBITDA wherein the entire consideration is $10,000,000 or greater (such
approval by the Administrative Agent not to be unreasonably withheld or delayed);




     (I) (1) consents have been obtained in favor of and delivered to the
Administrative Agent and the Lenders consenting to the collateral assignment of
rights and indemnities under the related Acquisition documents, (2) if required by
the Administrative Agent, opinions of counsel for the Co-Borrowers in favor of the
Administrative Agent and the Lenders as to the enforceability of such collateral
assignment of rights and indemnities under the related Acquisition documents, and
(3) to the extent an opinion of counsel to the selling party is delivered in
connection with such Acquisition, permission for the Administrative Agent and the
Lenders to rely on such opinion, each wherein the entire consideration is
$10,000,000 or greater; and




     (J) the provisions of Section 6.09 have been satisfied and, to the
extent a Foreign Subsidiary is acquired or created by such Acquisition, the
Co-Borrowers Investment in such Foreign Subsidiary is permitted by Section
7.10(h).


Notwithstanding the foregoing requirements of this Section 7.04, for Acquisitions where the entire
consideration is less than $10,000,000 the requirements of (iv)(F), (G), and (I) above shall be
satisfied within sixty (60) days following the consummation of the Acquisition and the requirements
of (iv)(H) above shall be waived.




     7.05 Modification of Organizational Documents; Factoring Facility. Permit the
charter, by-laws or other organizational documents, or the Factoring Facility of any Co-Borrower




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to be amended or modified in any way which could reasonably be expected to materially adversely
affect the interests of the Lenders.




     7.06 Transactions with Affiliates. Enter into, or cause, suffer or permit to exist
any transaction, arrangement or contract with any of its other Affiliates (other than the
Co-Borrowers) which is on terms which are less favorable than are obtainable from a Person which is
not one of its Affiliates.



     7.07 Unconditional Purchase Obligations. Enter into or be a party to any contract for
the purchase of materials, supplies or other property or services if such contract requires that
payment be made by it regardless of whether delivery is ever made of such materials, supplies or
other property or services.



     7.08 Inconsistent Agreements. Enter into any agreement containing any provision which
would (a) be violated or breached by any borrowing by any Co-Borrower hereunder or by the
performance by any Co-Borrower of any of its Obligations hereunder or under any other Loan
Document, (b) prohibit any Co-Borrower from granting to the Administrative Agent and the Lenders, a
Lien on any of its assets or (c) create or permit to exist or become effective any encumbrance or
restriction on the ability of any Subsidiary to (i) pay dividends or make other distributions to a
Co-Borrower or any other Subsidiary, or pay any Debt owed to a Co-Borrower or any other Subsidiary,
(ii) make loans or advances to any Co-Borrower or (iii) transfer any of its assets or properties to
any Co-Borrower, other than (A) customary restrictions and conditions contained in agreements
relating to the sale of all or a substantial part of the assets of any Subsidiary pending such
sale, provided that such restrictions and conditions apply only to the Subsidiary to be sold and
such sale is permitted hereunder (B) restrictions or conditions imposed by any agreement relating
to purchase money Debt, Capital Leases and other secured Debt permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such Debt and (C)
customary provisions in leases and other contracts restricting the assignment thereof.



     7.09 Business Activities. Engage in any line of business other than (a) the
businesses engaged in on the date hereof, (b) the printing, forms, and apparel business, (c) lines
of business which are similar or complementary thereto, and (d) lines of business set forth in the
Co-Borrowers’ strategic business plan, as it may be amended from time to time by the Co-Borrowers.



     7.10 Investments. Make or permit to exist any Investment in any other Person, except
the following:




     (a) contributions by a Co-Borrower to the capital of any domestic Wholly-Owned
Subsidiary, or by any Subsidiary to the capital of any other domestic Wholly-Owned
Subsidiary, so long as the recipient of any such capital contribution has guaranteed the
Obligations and such guaranty is secured by a pledge of all of its Capital Securities and
substantially all of its real and personal property, in each case in accordance with
Section 6.09;



     (b) Investments constituting Debt permitted by Section 7.01;



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     (c) Contingent Liabilities permitted by Section 7.14 or Liens permitted by
Section 7.02;




     (d) Cash Equivalent Investments;




     (e) Investments in securities of Account Debtors received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such account
debtors;




     (f) Investments to consummate Acquisitions permitted by Section 7.04;




     (g) Investments listed on Schedule 7.10 as of the Closing Date;




     (h) Investments in Foreign Subsidiaries, provided no such additional Investments may be
made at any time after a Default shall have occurred and be continuing;




     (i) Investments that represent non-cash consideration received in Asset Dispositions
permitted hereunder; and




     (j) Investments not otherwise permitted pursuant to clauses (a) through (i) above, not
to exceed $2,500,000 in aggregate amount outstanding at any time.


provided that (x) any Investment which when made complies with the requirements of the definition
of the term “Cash Equivalent Investment” may continue to be held notwithstanding that such
Investment if made thereafter would not comply with such requirements; (y) no Investment otherwise
permitted by clause (b), (c), (h) or (j) shall be permitted to be made if, immediately before or
after giving effect thereto, any Default or Event of Default exists.




     7.11 Restriction of Amendments to Certain Documents. Amend or otherwise modify, or
waive any rights under, any documents relating to Subordinated Debt if, in any case, such
amendment, modification or waiver could be materially adverse to the interests of the Lenders.



     7.12 Fiscal Year. Change its Fiscal Year.



     7.13 Financial Covenants.




     (a) Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio for
any Computation Period to be less than 1.25:1.00. For purposes of this Section
7.13(a), the measurement of EBITDA shall include the pro form effect of Acquisitions and
Dispositions during the relevant measurement period as if such Acquisition or such
Disposition, as applicable, had been consummated at the beginning of the relevant
measurement period.




     (b) Total Leverage Ratio. Permit the Total Leverage Ratio as of the last day
of any Computation Period to exceed 3.00:1.00. For purposes of this Section
7.13(b), the measurement of EBITDA shall include the pro form effects of Acquisitions
and Dispositions during the relevant measurement period as if any Acquisition or such



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Disposition, as applicable, had been consummated at the beginning of the relevant
measurement period.




     (c) Minimum Consolidated Tangible Net Worth. Permit the Consolidated Tangible
Net Worth of the Parent and its Subsidiaries to be less than $90,000,000 plus 25% of
Consolidated Net Income commencing with the Parent’s Fiscal Quarter ending August 31, 2009.
As used herein “Consolidated Tangible Net Worth” means for the Parent and its Subsidiaries,
on a consolidated basis, as at the end of any Fiscal Quarter, (i) the total amount of all
consolidated assets that, in accordance with GAAP, are properly shown as such on the
consolidated balance sheet of the Parent and its Subsidiaries as at the end of such Fiscal
Quarter, prepared in accordance with GAAP (with Inventory being valued at the lower of cost
or market value), after deducting all proper reserves (including reserves for depreciation
and amortization), minus (ii) the total amount of all consolidated liabilities of the Parent
and its Subsidiaries that, in accordance with GAAP, are properly shown as such on such
balance sheet, minus (iii) the total amount of all assets of the Parent and its Subsidiaries
that are considered to be intangible assets (including goodwill) in accordance with GAAP.




     (d) Maximum Consolidated Assets Owned by Foreign Subsidiaries. Permit more than
30% of consolidated assets that, in accordance with GAAP, are properly shown as such on the
consolidated balance sheet of the Parent and its Subsidiaries as at the end of any Fiscal
Quarter, to be owned by Foreign Subsidiaries.



     7.14 Cancellation of Debt. Cancel any claim or debt owing to it, except for
reasonable consideration or in the ordinary course of business, and except for the cancellation of
debts or claims not to exceed $100,000 in any Fiscal Year.



     7.15 Contingent Liabilities. Except for those Contingent Liabilities of the
Co-Borrowers owed pursuant to this Agreement or otherwise relating to Debt permitted by Section
7.01, not, and not permit any other Co-Borrower or Subsidiary to, incur any Contingent
Liabilities.



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 of the Loans, etc. Failure to pay when due the principal of
any Loan or L/C Obligation; or failure to pay within five days after the due date, any
interest on any Loan or L/C Obligation, any fee, or other amount payable by the Co-Borrowers
hereunder or under any other Loan Document; or




     (b) Non-Payment of Other Debt. Any default, event or condition shall occur
under the terms applicable to any Debt of any Co-Borrower or any Subsidiary in an aggregate
amount (for all such Debt so affected and including undrawn committed or available amounts
and amounts owing to all creditors under any combined or syndicated credit arrangement)
exceeding $500,000 and such default, event or condition shall



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(a) continue beyond any applicable notice and cure periods, (b) consist of the failure to
pay such Debt when due, whether by acceleration or otherwise, or (c) result in the
acceleration of the maturity of such Debt or permit the holder or holders thereof, or any
trustee or agent for such holder or holders, to cause such Debt to become due and payable
(or require any Co-Borrower or Subsidiary to purchase or redeem such Debt or post cash
collateral in respect thereof) prior to its expressed maturity; or




     (c) Other Material Obligations. Default in the payment when due, or in the
performance or observance of, any material obligation of, or condition agreed to by, any
Co-Borrower or any Subsidiary with respect to any material purchase or lease of goods or
services where such default, singly or in the aggregate with all other such defaults, could
reasonably be expected to have a Material Adverse Effect; or




     (d) Bankruptcy, Insolvency Proceedings, etc. Any Co-Borrower or any Subsidiary
becomes insolvent or generally fails to pay, or admits in writing its inability or refusal
to pay, debts as they become due; or any Co-Borrower or any Subsidiary applies for, consents
to, or acquiesces in the appointment of a trustee, receiver or other custodian for such
Co-Borrower or such Subsidiary or any property thereof, or makes a general assignment for
the benefit of creditors; or, in the absence of such application, consent or acquiescence, a
trustee, receiver or other custodian is appointed for any Co-Borrower or any Subsidiary or
for a substantial part of the property of any thereof and is not discharged within 60 days;
or any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution or liquidation proceeding, is commenced in
respect of any Co-Borrower or any Subsidiary, and if such case or proceeding is not
commenced by such Co-Borrower or such Subsidiary, it is consented to or acquiesced in by
such Co-Borrower or such Subsidiary, or remains for 60 days undismissed; or any Co-Borrower
or any Subsidiary takes any action to authorize, or in furtherance of, any of the foregoing;
or




     (e) Non-Compliance with Loan Documents. (a) Failure by any Co-Borrower to
comply with or to perform any term, covenant or agreement set forth in any of Section
6.03, 6.05, 6.07, 6.08, or Article VII; or (b) failure
by any Co-Borrower to comply with or to perform any other provision of this Agreement or any
other Loan Document (and not constituting an Event of Default under any other provision of
this Section 8.01) and continuance of such failure described in this clause (b) for
30 days; or




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




     (g) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result in liability
of a Co-Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC
in an aggregate amount in excess of $3,500,000, or (ii) any Co-Borrower or any ERISA
Affiliate fails to pay when due, after the expiration of any



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 75 









 






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 $3,500,000; or




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




     (i) Judgments. Final judgments which exceed an aggregate of $2,500,000 shall
be rendered against any Co-Borrower or any Subsidiary and shall not have been paid,
discharged or vacated or had execution thereof stayed pending appeal within 30 days after
entry or filing of such judgments; 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 Co-Borrower or any Subsidiary contests in any manner the validity
or enforceability of any provision of any Loan Document; or any Co-Borrower denies that it
has any or further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any provision of any Loan Document; or




     (k) Invalidity of Subordination Provisions, etc. Any subordination provision
in any document or instrument governing any Subordinated Debt, or any subordination
provision in any guaranty by any Subsidiary of any Subordinated Debt, shall cease to be in
full force and effect, or any Co-Borrower or any other Person (including the holder of any
applicable Subordinated Debt) shall contest in any manner the validity, binding nature or
enforceability of any such provision; or




     (l) Change of Control. A Change of Control shall occur.



     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 Co-Borrowers;



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 76 









 






     (c) require that the Co-Borrowers 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 any Co-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 Co-Borrowers 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 Secured Obligations shall be
applied by the Administrative Agent in the following order:



     First, to payment of that portion of the Secured Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs 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 Attorney Costs 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 Secured 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 Secured Obligations constituting unpaid
principal of the Loans and L/C Borrowings and Secured Obligations then owing under Secured Hedge
Agreements and Bank Product Agreements, ratably among the Lenders, the L/C Issuer, the Hedge Banks
and the Cash Management Banks 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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 77 









 





     Last, the balance, if any, after all of the Secured Obligations have been indefeasibly
paid in full, to the Co-Borrowers 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.



Notwithstanding the foregoing, Secured Obligations arising under Bank Product Agreements and
Secured Hedge Agreements shall be excluded from the application described above if the
Administrative Agent has not received written notice thereof, together with such supporting
documentation as the Administrative Agent may request, from the applicable Cash Management Bank or
Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to the Credit
Agreement that has given the notice contemplated by the preceding sentence shall, by such notice,
be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to
the terms of Article IX hereof for itself and its Affiliates as if a “Lender” party hereto.




ARTICLE IX




ADMINISTRATIVE AGENT




     9.01 Appointment and Authority. Each of the Lenders and the L/C Issuer hereby
irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof
or thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and none of the Co-Borrowers nor any Subsidiary 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 advisor or in any
other advisory capacity for and generally engage in any kind of business with the Co-Borrowers 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:



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 78 









 






     (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 Co-Borrowers or any of their 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 Co-Borrowers, a Lender or the L/C Issuer.



     The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



     9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such Lender



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 79 









 




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
Co-Borrowers), 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 Co-Borrowers. Upon receipt
of any such notice of resignation, the Required Lenders shall have the right, in consultation with
the Co-Borrowers, 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 Co-Borrowers 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
Co-Borrowers to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Co-Borrowers and such successor. After the
retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Article and Section 10.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 80 









 





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



     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, or Arrangers 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
Co-Borrower, the Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on the Co-Borrowers)
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;



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 81 









 




and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.




     Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of 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;




     (b) to subordinate any Lien on any property granted to or held by the Administrative
Agent under any Loan Document to the holder of any Lien on such property that is permitted
by Section 7.02(d); and




     (c) to release any Co-Borrower (other than the Parent) from its obligations under
Article XI 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 Co-Borrower (other than the Parent) from its
obligations under Article XI pursuant to this Section 9.10.



     9.11 Bank Product Obligations and Secured Hedging Obligations. Except as otherwise
expressly set forth herein or in any Collateral Document, no Cash Management Bank or Hedge Bank
that obtains the benefits of Section 8.03 or any Collateral by virtue of the provisions
hereof or of any Collateral Document shall have any right to notice of any action or to consent to,
direct or object to any action hereunder or under any other Loan Document or otherwise in respect
of the Collateral (including the release or impairment of any Collateral) other than in its
capacity as a Lender and, in such case, only to the extent expressly provided in the Loan
Documents.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 82 









 




Notwithstanding any other provision of this Article IX to the contrary, the
Administrative Agent shall not be required to verify the payment of, or that other satisfactory
arrangements have been made with respect to, Bank Product Obligations and Secured Hedging
Obligations unless the Administrative Agent has received written notice of such Bank Product
Obligations or Secured Hedging Obligations, as applicable, together with such supporting
documentation as the Administrative Agent may request, from the applicable Cash Management Bank or
Hedge Bank, as the case may be.




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 Co-Borrowers therefrom, shall be
effective unless in writing signed by the Required Lenders and the Co-Borrowers 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 written
consent of each Lender;




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




     (c) postpone any date fixed by this Agreement or any other Loan Document for any
payment (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 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 Co-Borrowers 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) change any provision of this Section or the definition of “Required Lenders” or any
other provision hereof specifying the number or percentage of Lenders required to amend,
waive or otherwise modify any rights hereunder or make any



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 83 









 






determination or grant any consent hereunder without the written consent of each
Lender; or




     (g) release any Co-Borrower from the provisions of Article XI without the
written consent of each Lender, except to the extent the release of any Co-Borrower 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 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.



If any Lender does not consent to a proposed amendment, waiver, consent or release with respect to
any Loan Document that requires the consent of each Lender and that has been approved by the
Required Lenders, the Co-Borrowers may replace such non-consenting Lender in accordance with
Section 10.13; provided that such amendment, waiver, consent or release can be effected as
a result of the assignment contemplated by such Section (together with all other such assignments
required by the Co-Borrowers to be made pursuant to this paragraph).




     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 Co-Borrowers, 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;



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 84 









 






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
Co-Borrowers may, in their 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.




     (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
CO-BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE CO-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 CO-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 any Co-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
Co-Borrowers’ or the Administrative Agent’s transmission of Co-Borrower Materials through
the Internet, except to the extent that such losses, claims,



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 85 









 






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 any Co-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 Co-Borrowers, 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 Co-Borrowers, 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 Co-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 Co-Borrowers or
their 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 Revolving Loan Notices and Swing Line Loan Notices)
purportedly given by or on behalf of the Co-Borrowers 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 Co-Borrowers 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 Co-Borrowers. All telephonic notices to and other
telephonic communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such recording.



     10.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, the L/C
Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 86 









 




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
Co-Borrowers 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 Co-Borrower under any Debtor Relief Law; and
provided, further, that if at any time there is no Person acting as Administrative
Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the
rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in
addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject
to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any
rights and remedies available to it and as authorized by the Required Lenders.



     10.04 Expenses; Indemnity; Damage Waiver.




     (a) Costs and Expenses. The Co-Borrowers shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including
the Attorneys Costs of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable
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 out-of-pocket expenses incurred by the Administrative Agent (including
Attorney Costs of any counsel for the Administrative Agent), in connection with the
enforcement or protection of its rights (A) in connection with this Agreement and the other
Loan Documents, including its rights under this Section, or (B) in connection with the Loans
made or Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit. In addition, the Co-Borrowers agree to pay, and to save the
Administrative Agent and the Lenders harmless from all liability for, any fees of the
Parents’ auditors in connection with any reasonable exercise by the Administrative Agent and
the Lenders of their rights pursuant to Section 6.04.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 87 









 






     (b) INDEMNIFICATION BY THE CO-BORROWERS. THE CO-BORROWERS 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 ATTORNEY COSTS OF ANY
COUNSEL FOR ANY INDEMNITEE), INCURRED BY ANY INDEMNITEE OR ASSERTED AGAINST ANY INDEMNITEE
BY ANY THIRD PARTY OR BY ANY CO-BORROWER ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT
OF (I) THE EXECUTION OR DELIVERY OF THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT
OR INSTRUMENT CONTEMPLATED HEREBY OR THEREBY, THE PERFORMANCE BY THE PARTIES HERETO OF THEIR
RESPECTIVE OBLIGATIONS HEREUNDER OR THEREUNDER, THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, OR, IN THE CASE OF THE ADMINISTRATIVE AGENT (AND ANY
SUB-AGENT THEREOF) AND ITS RELATED PARTIES ONLY, THE ADMINISTRATION OF THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS (INCLUDING IN RESPECT OF ANY MATTERS ADDRESSED IN SECTION
3.01), (II) ANY LOAN OR LETTER OF CREDIT OR THE USE OR PROPOSED USE OF THE PROCEEDS
THEREFROM (INCLUDING ANY REFUSAL BY THE L/C ISSUER TO HONOR A DEMAND FOR PAYMENT UNDER A
LETTER OF CREDIT IF THE DOCUMENTS PRESENTED IN CONNECTION WITH SUCH DEMAND DO NOT STRICTLY
COMPLY WITH THE TERMS OF SUCH LETTER OF CREDIT), (III) ANY ACTUAL OR ALLEGED PRESENCE OR
RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY OWNED OR OPERATED BY THE CO-BORROWER
OR ANY OF THEIR SUBSIDIARIES, OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO THE
CO-BORROWERS OR ANY OF THEIR 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 A CO-BORROWER OR
ANY OTHER SUBSIDIARY, AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO, IN ALL
CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE,
CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; 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
CO-BORROWER OR ANY OTHER SUBSIDIARY AGAINST AN INDEMNITEE FOR BREACH IN BAD FAITH OF SUCH
INDEMNITEE’S OBLIGATIONS HEREUNDER OR UNDER ANY OTHER LOAN DOCUMENT, IF A CO-



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 88 









 






BORROWER OR SUCH OTHER SUBSIDIARY 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 Co-Borrowers 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).




     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Co-Borrowers 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 ten Business Days after demand therefor.




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



     10.05 Payments Set Aside. To the extent that any payment by or on behalf of the
Co-Borrowers 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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 89 









 




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




     10.06 Successors and Assigns.




     (a) Successors and Assigns Generally. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that no Co-Borrower 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 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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 90 









 






includes Loans outstanding thereunder) or, if the Commitment is not
then in effect, the principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment, determined as of the date
the Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000 unless each of the Administrative Agent and, so long as no Event
of Default has occurred and is continuing, the Co-Borrowers otherwise
consent (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 Co-Borrowers (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 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,




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together with a processing and recordation fee in the amount of $3,500 (for
which the Borrower shall not be responsible); 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 any Co-Borrower. No such assignment shall be made
to any Co-Borrower or any of the Co-Borrowers’ 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 Co-Borrowers (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this 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 Co-Borrowers, 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
Co-Borrowers, 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 Co-Borrowers 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 Co-Borrowers or the Administrative Agent, sell participations to any Person
(other than a natural person or a Co-Borrower or any of the Co-Borrowers’ Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights
and/or obligations under this Agreement (including all or a portion of its Commitment and/or
the



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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 Co-Borrowers, 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 Co-Borrowers agree 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, provided such Participant agrees to be subject to
Section 3.06 as though it were a Lender. 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, 3.04 or 3.05 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 Co-Borrowers’ 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
Co-Borrowers are notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Co-Borrowers, 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 Co-Borrowers and the Lenders, resign as L/C Issuer
and/or (ii) upon 30 days’ notice to the Co-Borrowers, resign as Swing Line Lender. In the
event of any such resignation as L/C Issuer or Swing Line Lender, the Co-Borrowers 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 Co-Borrowers to appoint
any such successor shall affect the resignation of Bank of America as L/C Issuer



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 93




 









 









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 Revolving Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)). If Bank of America resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with
respect to Swing Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Base Rate Revolving 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 (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Co-Borrowers and their obligations, (g) with the consent of the Co-Borrowers 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 Co-Borrowers.



     For purposes of this Section, “Information” means all information received from the
Co-Borrowers or any Subsidiary relating to the Co-Borrowers 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
Co-Borrowers or any Subsidiary, provided that, in the case of information received from the
Co-Borrowers 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



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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 Co-Borrowers or a
Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of
material non-public information and (c) it will handle such material non-public information in
accordance with applicable Law, including United States Federal and state securities Laws.



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by applicable law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any time owing by such
Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of the
Co-Borrowers against any and all of the obligations of the Co-Borrowers 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 Co-Borrowers 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 Co-Borrowers
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 Co-Borrowers. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum
Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that
is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or
unequal parts the total amount of interest throughout the contemplated term of the Obligations
hereunder.



     10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 95




 









 







understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed
by the Administrative Agent and when the Administrative Agent shall have received counterparts
hereof that, when taken together, bear the signatures of each of the other parties hereto.
Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other
electronic imaging means shall be effective as delivery of a manually executed counterpart of this
Agreement.




     10.11 Survival of Representations and Warranties. All representations and warranties
made hereunder and in any other Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by the Administrative
Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other Obligation 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 Co-Borrowers 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 the circumstances permitting a replacement Lender as provided
in the last paragraph of Section 10.01 exist, then the Co-Borrowers may, at their 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 Co-Borrowers 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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 96




 









 









outstanding
principal and accrued interest and fees) or the Co-Borrowers (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 Co-Borrowers to
require such assignment and delegation cease to apply.



     10.14 Governing Law; Jurisdiction; Etc.




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




     (b) SUBMISSION TO JURISDICTION. EACH CO-BORROWER IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF
THE COURTS OF THE STATE OF TEXAS SITTING IN DALLAS COUNTY AND OF THE UNITED STATES DISTRICT
COURT OF THE NORTHERN DISTRICT OF TEXAS, 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 TEXAS 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 ANY CO-BORROWER OR
ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.




     (c) WAIVER OF VENUE. EACH CO-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



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 97




 









 









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 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), each Co-Borrower acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent and the Arranger, are arm’s-length
commercial transactions between each Co-Borrower and their respective Affiliates, on the one hand,
and the Administrative Agent and, the Arranger, on the other hand, (B) each of the Co-Borrowers has
consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate, and (C) each Co-Borrower is capable of evaluating, and understands and accepts, the
terms, risks and conditions of the transactions contemplated hereby and by the other Loan
Documents; (ii) (A) the Administrative Agent and the 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 any Co-Borrower or any of their
respective Affiliates, or any other Person and (B) neither the Administrative Agent nor the
Arranger nor any other Lead Arranger has any obligation to any Co-Borrower 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 (iii) the Administrative Agent and
the Arranger and their respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of each Co-Borrower



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 98




 









 







and their respective Affiliates, and
neither the Administrative Agent nor the Arranger has any obligation to disclose any of such
interests to any Co-Borrower or any of their respective Affiliates. To the fullest extent
permitted by law, each of the Co-Borrowers hereby waives and
releases any claims that it may have against the Administrative Agent and the Arranger with
respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect
of any transaction contemplated hereby.




     10.17 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 Co-Borrowers that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify
and record information that identifies each Co-Borrower, which information includes the name and
address of each Co-Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify each Co-Borrower in accordance with the Act. Each Co-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 Amendment and Restatement. This Agreement is a renewal, amendment and
restatement of the Existing Credit Agreement, and, as such, except for the “Obligations” as defined
in the Existing Credit Agreement (which shall, except with respect to such “Obligations” owing to
JPMorgan Chase Bank, N.A. and Wachovia Bank, N.A. under the Existing Credit Agreement, survive, be
renewed and restated by the terms of this Agreement), all other terms and provisions supersede in
their entirety the Existing Credit Agreement. All security agreements, mortgages and other
documents and instruments granting a security interest or Lien in the assets of the Co-Borrowers
that restate any previously granted security interest or Liens shall supersede any security
agreements, mortgages and other documents and instruments granting any such security interest that
were executed and delivered in connection with the Existing Credit Agreement (the “Original
Security Documents”), except for the security interests and Liens created under the Original
Security Documents which shall remain valid, binding and enforceable security interests and Liens
against the Co-Borrowers and each of the other Persons granting any such security interests and
Liens. Except to the extent specifically released, all other Original Security Documents shall
continue to secure the Secured Obligations as herein defined, and shall be in full force and
effect. The Lenders acknowledge that the intent of this paragraph is to maintain the priority of
the security interests and Liens on the assets of the Co-Borrowers to secure the Secured
Obligations.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 99




 









 








     10.20 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE
FINAL AGREEMENT AMONG THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.



ARTICLE XI




CROSS-GUARANTY.




     11.01 Cross-Guaranty. Each Co-Borrower hereby agrees that such Co-Borrower is jointly
and severally liable for, and hereby absolutely and unconditionally guarantees to the
Administrative Agent and Lenders and their respective successors and assigns, the full and prompt
payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Secured
Obligations owed or hereafter owing to the Administrative Agent and Lenders by each other
Co-Borrower. Each Co-Borrower agrees that its guaranty obligation hereunder is a continuing
guaranty of payment and performance and not of collection, that its obligations under this
Article XI shall not be discharged until payment and performance, in full, of the Secured
Obligations has occurred, and that its obligations under this Article XI shall be absolute
and unconditional, irrespective of, and unaffected by,




     (a) the genuineness, validity, regularity, enforceability or any future amendment of,
or change in, this Agreement, any other Loan Document or any other agreement, document or
instrument to which any Co-Borrower is or may become a party;




     (b) the absence of any action to enforce this Agreement (including this Article
XI) or any other Loan Document or the waiver or consent by the Administrative Agent and
Lenders with respect to any of the provisions thereof;




     (c) the insolvency of any Co-Borrower or Subsidiary; or




     (d) any other action or circumstances that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor.


Each Co-Borrower shall be regarded, and shall be in the same position, as principal debtor with
respect to the Secured Obligations guaranteed hereunder.




     11.02 Waivers by Co-Borrowers. Each Co-Borrower expressly waives all rights it may
have now or in the future under any statute, or at common law, or at law or in equity, or
otherwise, to compel the Administrative Agent or Lenders to marshal assets or to proceed in respect
of the Secured Obligations guaranteed hereunder against any other Co-Borrower or Subsidiary, any
other party or against any security for the payment and performance of the Secured Obligations
before proceeding against, or as a condition to proceeding against, such Co-Borrower. It is agreed
among each Co-Borrower, the Administrative Agent and Lenders that the foregoing waivers are of the
essence of the transaction contemplated by this Agreement and the other Loan Documents and that,
but for the provisions of this Article XI and such waivers, the Administrative Agent and
Lenders would decline to enter into this Agreement.



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 100





 









 








     11.03 Benefit of Guaranty. Each Co-Borrower agrees that the provisions of this
Article XI are for the benefit of the Administrative Agent and Lenders and their respective
successors,
transferees, endorsees and assigns, and nothing herein contained shall impair, as between any
other Co-Borrower and the Administrative Agent or Lenders, the obligations of such other Co-
Borrower under the Loan Documents.



     11.04 Waiver of Subrogation, Etc. Notwithstanding anything to the contrary in this
Agreement or in any other Loan Document, and except as set forth in Section 11.07, each
Co-Borrower hereby expressly and irrevocably waives any and all rights at law or in equity to
subrogation, reimbursement, exoneration, contribution, indemnification or set off and any and all
defenses available to a surety, guarantor or accommodation co-obligor. Each Co-Borrower
acknowledges and agrees that this waiver is intended to benefit the Administrative Agent and
Lenders and shall not limit or otherwise affect such Co-Borrower’s liability hereunder or the
enforceability of this Article XI, and that the Administrative Agent, Lenders and their
respective successors and assigns are intended third party beneficiaries of the waivers and
agreements set forth in this Section 11.04.



     11.05 Election of Remedies. If the Administrative Agent or any Lender may, under
applicable law, proceed to realize its benefits under any of the Loan Documents, the Administrative
Agent or any Lender may, at its sole option, determine which of its remedies or rights it may
pursue without affecting any of its rights and remedies under this Article XI. If, in the
exercise of any of its rights and remedies, the Administrative Agent or any Lender shall forfeit
any of its rights or remedies, including its right to enter a deficiency judgment against any
Co-Borrower or any other Person, whether because of any applicable laws pertaining to “election of
remedies” or the like, each Co-Borrower hereby consents to such action by the Administrative Agent
or such Lender and waives any claim based upon such action, even if such action by the
Administrative Agent or such Lender shall result in a full or partial loss of any rights of
subrogation that each Co-Borrower might otherwise have had but for such action by the
Administrative Agent or such Lender. Any election of remedies that results in the denial or
impairment of the right of the Administrative Agent or any Lender to seek a deficiency judgment
against any Co-Borrower shall not impair any other Co-Borrower’s obligation to pay the full amount
of the Obligations.



     11.06 Limitation. Notwithstanding any provision herein contained to the contrary,
each Co-Borrower’s liability under this Article XI (which liability is in any event in
addition to amounts for which such Co-Borrower is primarily liable under Article II) shall
be limited to an amount not to exceed as of any date of determination the greater of:




     (a) the net amount of all Loans advanced to any other Co-Borrower under this Agreement
and then re-loaned or otherwise transferred to, or for the benefit of, such Co-Borrower; and




     (b) the amount that could be claimed by the Administrative Agent and Lenders from such
Co-Borrower under this Article XI without rendering such claim voidable or avoidable
under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law
after taking into account, among other things, such



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 101




 









 









Co-Borrower’s right of contribution and
indemnification from each other Co-Borrower under Section 11.07.



     11.07 Contribution with Respect to Guaranty Obligations.




     (a) To the extent that any Co-Borrower shall make a payment under this Article
XI of all or any of the Secured Obligations (other than Loans made to that Co-Borrower
for which it is primarily liable) (a “Guarantor Payment”) that, taking into account
all other Guarantor Payments then previously or concurrently made by any other Co-Borrower,
exceeds the amount that such Co-Borrower would otherwise have paid if each Co-Borrower had
paid the aggregate Obligations satisfied by such Guarantor Payment in the same proportion
that such Co-Borrower’s “Allocable Amount” (as defined below) (as determined immediately
prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the
Co-Borrowers as determined immediately prior to the making of such Guarantor Payment, then,
following indefeasible payment in full in cash of the Secured Obligations and termination of
the Commitments, such Co-Borrower shall be entitled to receive contribution and
indemnification payments from, and be reimbursed by, each other Co-Borrower for the amount
of such excess, pro rata based upon their respective Allocable Amounts in effect immediately
prior to such Guarantor Payment.




     (b) As of any date of determination, the “Allocable Amount” of any Co-Borrower shall be
equal to the maximum amount of the claim that could then be recovered from such Co-Borrower
under this Article XI without rendering such claim voidable or avoidable under
Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law.




     (c) This Section 11.07 is intended only to define the relative rights of
Co-Borrowers and nothing set forth in this Section 11.07 is intended to or shall
impair the obligations of Co-Borrowers, jointly and severally, to pay any amounts as and
when the same shall become due and payable in accordance with the terms of this Agreement,
including Section 11.01. Nothing contained in this Section 11.07 shall
limit the liability of any Co-Borrower to pay the Loans made directly or indirectly to that
Co-Borrower and accrued interest, fees and expenses with respect thereto for which such
Co-Borrower shall be primarily liable.




     (d) The parties hereto acknowledge that the rights of contribution and indemnification
hereunder shall constitute assets of the Co-Borrower to which such contribution and
indemnification is owing.




     (e) The rights of the indemnifying Co-Borrowers against other Co- Borrowers under this
Section 11.07 shall be exercisable upon the full and indefeasible payment of the
Obligations and the termination of the Commitments.



     11.08 Liability Cumulative. The liability of Co-Borrowers under this Article
XI is in addition to and shall be cumulative with all liabilities of each Co-Borrower to the
Administrative



SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 102




 









 




Agent and Lenders under this Agreement and the other Loan Documents to which such
Co-Borrower is a party or in respect of any Obligations or obligation of the other Co-Borrower,
without any limitation as to amount, unless the instrument or agreement evidencing or creating
such other liability specifically provides to the contrary.




     11.09 Stay of Acceleration. If acceleration of the time for payment of any amount
payable by the Co-Borrowers under this Agreement is stayed upon the insolvency, bankruptcy or
reorganization of any of the Co-Borrowers, all such amounts otherwise subject to acceleration under
the terms of this Agreement shall nonetheless be payable jointly and severally by the Co- Borrower
hereunder forthwith on demand by the Administrative Agent made at the request of the Required
Lenders.



     11.10 Benefit to Co-Borrowers. All of the Co-Borrowers and their Subsidiaries are
engaged in related businesses and integrated to such an extent that the financial strength and
flexibility of each such Person has a direct impact on the success of each other Person. Each
Co-Borrower and each Subsidiary will derive substantial direct and indirect benefit from the
extension of credit hereunder.



[signature pages follow]




SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 103




 









 








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



	 	 	 	 	 	 	 
	 	 	CO-BORROWERS	 	 
	 
	 	 	 	 	 	 
	 	 	Ennis, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Richard L. Travis, Jr. Vice President and
	 	 
	 

	 	 	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	Ennis Business Forms of Kansas, Inc.	 	 
	 	 	Connolly Tool and Machine Company	 	 
	 	 	Admore, Inc.	 	 
	 	 	PFC Products, Inc.	 	 
	 	 	Ennis Acquisitions, Inc.	 	 
	 	 	Northstar Computer Forms, Inc.	 	 
	 	 	General Financial Supply, Inc.	 	 
	 	 	Calibrated Forms Co. Inc.	 	 
	 	 	Crabar/GBF, Inc.	 	 
	 	 	Royal Business Forms Inc.	 	 
	 	 	Alstyle Apparel LLC	 	 
	 	 	A and G, Inc.	 	 
	 	 	Alstyle Ensenada LLC	 	 
	 	 	Alstyle Hermosilla LLC	 	 
	 	 	Diaco USA, LLC	 	 
	 	 	Tennessee Business Forms Company	 	 
	 	 	TBF Realty, LLC	 	 
	 	 	Block Graphics, Inc.	 	 
	 	 	Specialized Printed Forms, Inc.	 	 
	 	 	B&D Litho of Arizona, Inc.	 	 
	 	 	Skyline Business Forms, Inc.	 	 
	 	 	Skyline Business Properties LLC	 	 
	 	 	SPF Realty, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Richard L. Travis, Jr. Vice President of each	 	 







Signature Page to Second Amended and Restated Credit Agreement




1









 





	 	 	 	 	 	 	 
	 	 	American Forms I, L.P.	 	 
	 	 	Adams McClure I, L.P.	 	 
	 	 	Texas EBF, L.P.	 	 
	 	 	Ennis Sales, L.P.	 	 
	 	 	Ennis Management, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Ennis, Inc., the sole general partner of each	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Richard L. Travis, Jr. Vice President and
	 	 
	 

	 	 	 	Chief Financial Officer	 	 






Signature Page to Second Amended and Restated Credit Agreement




2









 








	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,	 	 
	 	 	as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





Signature Page to Second Amended and Restated Credit Agreement




3









 








	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.,	 	 
	 	 	as a Lender, L/C Issuer and Swing Line Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Signature Page to Second Amended and Restated Credit Agreement




4









 








	 	 	 	 	 	 	 
	 	 	COMPASS BANK,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Signature Page to Second Amended and Restated Credit Agreement




5









 





	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Signature Page to Second Amended and Restated Credit Agreement




6









 








	 	 	 	 	 	 	 
	 	 	REGIONS BANK,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






Signature Page to Second Amended and Restated Credit Agreement





7