Exhibit 10.1





EXHIBIT 10.1




EXECUTION VERSION




 





Published CUSIP Number: [                    ]




AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of August 31, 2009




among




MONSTER WORLDWIDE, INC.




and




CERTAIN SUBSIDIARIES,

as Borrowers,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and

L/C Issuer,




and




The Other Lenders Party Hereto




BANC OF AMERICA SECURITIES LLC,

as Sole Lead Arranger and Sole Book Manager




 




 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	 	 
	 
	 	 	 	 
	1.01 Defined Terms
	 	 	2	 
	 
	 	 	 	 
	1.02 Other Interpretive Provisions
	 	 	29	 
	 
	 	 	 	 
	1.03 Accounting Terms
	 	 	30	 
	 
	 	 	 	 
	1.04 Rounding
	 	 	30	 
	 
	 	 	 	 
	1.05 Exchange Rates; Currency Equivalents
	 	 	31	 
	 
	 	 	 	 
	1.06 Additional Alternative Currencies
	 	 	31	 
	 
	 	 	 	 
	1.07 Change of Currency
	 	 	32	 
	 
	 	 	 	 
	1.08 Times of Day
	 	 	32	 
	 
	 	 	 	 
	1.09 Letter of Credit Amounts
	 	 	32	 
	 
	 	 	 	 
	1.10 Financial Determinations
	 	 	33	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	 	 
	 
	 	 	 	 
	2.01 Loans
	 	 	33	 
	 
	 	 	 	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	34	 
	 
	 	 	 	 
	2.03 Letters of Credit
	 	 	36	 
	 
	 	 	 	 
	2.04 Swing Line Loans
	 	 	45	 
	 
	 	 	 	 
	2.05 Prepayments
	 	 	48	 
	 
	 	 	 	 
	2.06 Termination or Reduction of Commitments
	 	 	49	 
	 
	 	 	 	 
	2.07 Repayment of Loans
	 	 	50	 
	 
	 	 	 	 
	2.08 Interest
	 	 	51	 
	 
	 	 	 	 
	2.09 Fees
	 	 	52	 
	 
	 	 	 	 
	2.10 Computation of Interest and Fees
	 	 	52	 
	 
	 	 	 	 
	2.11 Evidence of Debt
	 	 	53	 
	 
	 	 	 	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	53	 
	 
	 	 	 	 
	2.13 Sharing of Payments by Lenders
	 	 	56	 
	 
	 	 	 	 
	2.14 Designated Borrowers
	 	 	56	 
	 
	 	 	 	 
	2.15 Extension of Maturity Date in respect of Revolving Credit Facility
	 	 	57	 
	 
	 	 	 	 
	2.16 Increase in Revolving Credit Facility
	 	 	59	 





 


i 









 





TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	 	 
	 
	 	 	 	 
	3.01 Taxes
	 	 	61	 
	 
	 	 	 	 
	3.02 Illegality
	 	 	63	 
	 
	 	 	 	 
	3.03 Inability to Determine Rates
	 	 	64	 
	 
	 	 	 	 
	3.04 Increased Costs
	 	 	64	 
	 
	 	 	 	 
	3.05 Compensation for Losses
	 	 	66	 
	 
	 	 	 	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	67	 
	 
	 	 	 	 
	3.07 Survival
	 	 	67	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	 	 
	 
	 	 	 	 
	4.01 Conditions of Effectiveness of this Agreement and Term Loan Borrowing
	 	 	67	 
	 
	 	 	 	 
	4.02 Conditions to all Credit Extensions
	 	 	70	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	 	 
	 
	 	 	 	 
	5.01 Existence, Qualification and Power
	 	 	71	 
	 
	 	 	 	 
	5.02 Authorization; No Conflict
	 	 	71	 
	 
	 	 	 	 
	5.03 Governmental Authorization; Other Consents
	 	 	71	 
	 
	 	 	 	 
	5.04 Binding Effect
	 	 	71	 
	 
	 	 	 	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	72	 
	 
	 	 	 	 
	5.06 Litigation
	 	 	72	 
	 
	 	 	 	 
	5.07 No Default
	 	 	72	 
	 
	 	 	 	 
	5.08 Ownership of Property; Liens
	 	 	73	 
	 
	 	 	 	 
	5.09 Environmental Compliance
	 	 	73	 
	 
	 	 	 	 
	5.10 Insurance
	 	 	73	 
	 
	 	 	 	 
	5.11 Taxes
	 	 	73	 
	 
	 	 	 	 
	5.12 ERISA Compliance
	 	 	73	 
	 
	 	 	 	 
	5.13 Subsidiaries; Equity Interests
	 	 	74	 
	 
	 	 	 	 
	5.14 Margin Regulations; Investment Company Act
	 	 	74	 
	 
	 	 	 	 
	5.15 Disclosure
	 	 	74	 
	 
	 	 	 	 
	5.16 Compliance with Laws
	 	 	74	 
	 
	 	 	 	 
	5.17 Taxpayer Identification Number; Other Identifying Information
	 	 	75	 
	 
	 	 	 	 
	5.18 Collateral Documents
	 	 	75	 
	 
	 	 	 	 
	5.19
Intellectual Property; Licenses, Etc.
	 	 	75	 
	 
	 	 	 	 
	5.20 Representations as to Foreign Obligors
	 	 	75	 





 


ii 









 





TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	 	 
	 
	 	 	 	 
	6.01 Financial Statements
	 	 	76	 
	 
	 	 	 	 
	6.02 Certificates; Other Information
	 	 	77	 
	 
	 	 	 	 
	6.03 Notices
	 	 	79	 
	 
	 	 	 	 
	6.04 Payment of Obligations
	 	 	79	 
	 
	 	 	 	 
	6.05
Preservation of Existence, Etc.
	 	 	80	 
	 
	 	 	 	 
	6.06 Maintenance of Properties
	 	 	80	 
	 
	 	 	 	 
	6.07 Maintenance of Insurance
	 	 	80	 
	 
	 	 	 	 
	6.08 Compliance with Laws
	 	 	80	 
	 
	 	 	 	 
	6.09 Books and Records
	 	 	80	 
	 
	 	 	 	 
	6.10 Inspection Rights
	 	 	80	 
	 
	 	 	 	 
	6.11 Use of Proceeds
	 	 	81	 
	 
	 	 	 	 
	6.12 Approvals and Authorizations
	 	 	81	 
	 
	 	 	 	 
	6.13 Guarantee Obligations and Security
	 	 	81	 
	 
	 	 	 	 
	6.14 Lien Searches
	 	 	82	 
	 
	 	 	 	 
	6.15 Further Assurances
	 	 	82	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	 	 
	 
	 	 	 	 
	7.01 Liens
	 	 	83	 
	 
	 	 	 	 
	7.02 Investments
	 	 	84	 
	 
	 	 	 	 
	7.03 Indebtedness
	 	 	86	 
	 
	 	 	 	 
	7.04 Fundamental Changes
	 	 	87	 
	 
	 	 	 	 
	7.05 Dispositions
	 	 	87	 
	 
	 	 	 	 
	7.06 Restricted Payments
	 	 	89	 
	 
	 	 	 	 
	7.07 Change in Nature of Business
	 	 	89	 
	 
	 	 	 	 
	7.08 Transactions with Affiliates
	 	 	89	 
	 
	 	 	 	 
	7.09 Burdensome Agreements
	 	 	90	 
	 
	 	 	 	 
	7.10 Use of Proceeds
	 	 	90	 
	 
	 	 	 	 
	7.11 Financial Covenants
	 	 	90	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	 	 
	 
	 	 	 	 
	8.01 Events of Default
	 	 	91	 
	 
	 	 	 	 
	8.02 Remedies Upon Event of Default
	 	 	93	 
	 
	 	 	 	 
	8.03 Application of Funds
	 	 	94	 





 


iii 









 





TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	 	 
	 
	 	 	 	 
	9.01 Appointment and Authority
	 	 	95	 
	 
	 	 	 	 
	9.02 Rights as a Lender
	 	 	95	 
	 
	 	 	 	 
	9.03 Exculpatory Provisions
	 	 	95	 
	 
	 	 	 	 
	9.04 Reliance by Administrative Agent
	 	 	96	 
	 
	 	 	 	 
	9.05 Delegation of Duties
	 	 	97	 
	 
	 	 	 	 
	9.06 Resignation of Administrative Agent
	 	 	97	 
	 
	 	 	 	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	98	 
	 
	 	 	 	 
	9.08 No
Other Duties, Etc.
	 	 	98	 
	 
	 	 	 	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	98	 
	 
	 	 	 	 
	9.10 Collateral and Guaranty Matters
	 	 	99	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	10.01
Amendments, Etc.
	 	 	100	 
	 
	 	 	 	 
	10.02 Additional Restrictions on Amendments
	 	 	101	 
	 
	 	 	 	 
	10.03 Notices; Effectiveness; Electronic Communication
	 	 	102	 
	 
	 	 	 	 
	10.04 No Waiver; Cumulative Remedies
	 	 	104	 
	 
	 	 	 	 
	10.05 Expenses; Indemnity; Damage Waiver
	 	 	105	 
	 
	 	 	 	 
	10.06 Payments Set Aside
	 	 	106	 
	 
	 	 	 	 
	10.07 Successors and Assigns
	 	 	107	 
	 
	 	 	 	 
	10.08 Treatment of Certain Information; Confidentiality
	 	 	111	 
	 
	 	 	 	 
	10.09 Right of Setoff
	 	 	113	 
	 
	 	 	 	 
	10.10 Interest Rate Limitation
	 	 	113	 
	 
	 	 	 	 
	10.11 Counterparts; Integration; Effectiveness
	 	 	113	 
	 
	 	 	 	 
	10.12 Survival of Representations and Warranties
	 	 	113	 
	 
	 	 	 	 
	10.13 Severability
	 	 	114	 
	 
	 	 	 	 
	10.14 Replacement of Lenders
	 	 	114	 
	 
	 	 	 	 
	10.15
Governing Law; Jurisdiction; Etc.
	 	 	114	 
	 
	 	 	 	 
	10.16 Waiver of Jury Trial
	 	 	116	 
	 
	 	 	 	 
	10.17 No Advisory or Fiduciary Responsibility
	 	 	116	 
	 
	 	 	 	 
	10.18 USA PATRIOT Act Notice
	 	 	117	 
	 
	 	 	 	 
	10.19 Judgment Currency
	 	 	117	 
	 
	 	 	 	 
	10.20 Effect of Amendment and Restatement of the Existing Credit Agreement
	 	 	117	 





 


iv 









 





SCHEDULES




	 	 	 	 	 
	 

	 	1.01 
	 	Mandatory Cost Formulae
	 

	 	1.02 
	 	Existing Letters of Credit
	 

	 	2.01 
	 	Commitments and Applicable Percentages
	 

	 	5.11 
	 	Taxes
	 

	 	5.13 
	 	Subsidiaries; Other Equity Investments
	 

	 	5.17 
	 	Taxpayer Identification Number; Other Identifying Information
	 

	 	7.01(b) 
	 	Existing Liens
	 

	 	7.01(f) 
	 	Auction Rate Securities
	 

	 	7.02 
	 	Existing Investments
	 

	 	7.03 
	 	Existing Indebtedness
	 

	 	10.03 
	 	Administrative Agent’s Office; Certain Addresses for Notices






EXHIBITS




	 	 	 	 	 
	 

	 	 
	 	Form of
	 
	 

	 	A
	 	Loan Notice
	 

	 	B
	 	Swing Line Loan Notice
	 

	 	C-1
	 	Revolving Credit Note
	 

	 	C-2
	 	Term Note
	 

	 	D
	 	Compliance Certificate
	 

	 	E
	 	Assignment and Assumption
	 

	 	F
	 	Company Guaranty
	 

	 	G
	 	Subsidiary Guaranty
	 

	 	H
	 	Designated Borrower Request and Assumption Agreement
	 

	 	I
	 	Designated Borrower Notice
	 

	 	J
	 	U.S. Pledge Agreement






 


v 









 







AMENDED AND RESTATED CREDIT AGREEMENT




This AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) is entered into as of
August 31, 2009, among MONSTER WORLDWIDE, INC., a Delaware corporation (the “Company”),
certain Subsidiaries of the Company party hereto pursuant to Section 2.14 (each a
“Designated Borrower” and, together with the Company, the “Borrowers” and, each a
“Borrower”), each lender from time to time party hereto (collectively, the
“Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer.



PRELIMINARY STATEMENTS




Pursuant to the Credit Agreement, dated as of December 21, 2007 (as amended, supplemented or
otherwise modified prior to the Closing Date, the “Existing Credit Agreement”), among the
Company, certain of the Company’s Subsidiaries, Bank of America, N.A., as Administrative Agent,
Citibank, N.A., as Syndication Agent, and the other lenders from time to time party thereto (the
“Existing Lenders”), the Existing Lenders agreed to make extensions of credit to the
Company and its Subsidiaries on the terms and conditions set forth therein, including making loans
(the “Existing Loans”) to the Company and its Subsidiaries, and the L/C Issuer agreed to
issue Letters of Credit to the Company and its Subsidiaries on the terms and conditions set forth
therein.



The Company has requested that the Existing Credit Agreement be amended and restated in its
entirety to become effective and binding on the Company and its Subsidiaries pursuant to the terms
of this Agreement, and the Lenders (including certain of the Existing Lenders) have agreed (subject
to the terms of this Agreement) to amend and restate the Existing Credit Agreement in its entirety
to read as set forth in this Agreement, and it has been agreed by the parties to the Existing
Credit Agreement that (a) the commitments which the Existing Lenders have agreed to extend to the
Borrowers under the Existing Credit Agreement shall be extended or advanced upon the amended and
restated terms and conditions contained in this Agreement; and (b) the Existing Loans, all Letters
of Credit (including the Existing Letters of Credit) and other Obligations (as defined in the
Existing Credit Agreement) outstanding under the Existing Credit Agreement shall be governed by and
deemed to be outstanding under the amended and restated terms and conditions contained in this
Agreement, with the intent that the terms of this Agreement shall supersede the terms of the
Existing Credit Agreement (each of which shall hereafter have no further effect upon the parties
thereto, other than for accrued and unpaid fees and expenses, and indemnification obligations, if
any, accrued and owing, under the terms of the Existing Credit Agreement on or prior to the Closing
Date or arising (in the case of indemnification) under the terms of the Existing Credit Agreement).


 


 









 





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



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




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



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



“Administrative Agent’s Office” means, with respect to any currency, the
Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.03
with respect to such currency, or such other address or account with respect to such currency as
the Administrative Agent may from time to time notify to the Company and the Lenders.



“Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.



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



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



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



“Alternative Currency” means each of Euro, Sterling, Yen, Swedish Krona and each other
currency (other than Dollars) that is approved in accordance with Section 1.06.



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



“Applicable Foreign Obligor Documents” has the meaning specified in Section
5.20.



“Applicable Percentage” means:




(a) in respect of the Term Facility, with respect to any Term Lender at any time, the
percentage (carried out to the ninth decimal place) of the Term Facility represented by (i)
on the Closing Date, such Term Lender’s Term Commitment at such time and (ii) thereafter,
the principal amount of such Term Lender’s Term Loans at such time; and




(b) in respect of the Revolving Credit Facility, with respect to any Revolving Credit
Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving
Credit Facility represented by such Revolving Credit Lender’s Revolving Credit Commitment at
such time.


 


2









 






If the commitment of each Revolving Credit Lender to make Revolving Credit 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 Revolving Credit Commitments have expired, and, in each case, the
Revolving Credit Loans are outstanding then the Applicable Percentage of each Revolving Credit
Lender in respect of the Revolving Credit Facility shall be determined based on the Applicable
Percentage of such Revolving Credit Lender in respect of the Revolving Credit Facility most
recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage
of each Lender in respect of each Facility 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, from time to time, the following rates per annum (expressed
in basis points), determined by reference to the Consolidated Leverage Ratio as set forth in the
most recent Compliance Certificate received by the Administrative Agent pursuant to Section
6.02(a):



Applicable Rate




	 	 	 	 	 	 	 	 	 
	 	 	Consolidated	 	Eurocurrency Rate	 	 	 	 
	 	 	Leverage	 	Loans/ Letters of	 	 	 	 
	Pricing Level	 	Ratio	 	Credit	 	Base Rate Loans	 	Commitment Fee
	1
	 	< 0.50:1.00
	 	300.0 bps
	 	200.0 bps
	 	50.0 bps
	2
	 	> 0.50:1.00

but <

1.00:1.00
	 	325.0 bps
	 	225.0 bps
	 	50.0 bps
	3
	 	> 1.00:1.00

but <

1.50:1.00
	 	350.0 bps
	 	250.0 bps
	 	62.5 bps
	4
	 	> 1.50:1.00

but <

2.00:1.00
	 	375.0 bps
	 	275.0 bps
	 	62.5 bps
	5
	 	> 2.00:1.00
	 	400.0 bps
	 	300.0 bps
	 	75.0 bps






Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
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 that if a
Compliance Certificate is not delivered when due in accordance with such Section, then the next
higher Pricing Level to the Pricing Level then in effect (with Pricing Level 1 being the lowest and
Pricing Level 5 being the highest) shall apply as of the first Business Day after the date on which
such Compliance Certificate was required to have been delivered. Notwithstanding anything to the
contrary contained in this definition, the determination of the Applicable Rate for any period
shall be subject to the provisions of Section 2.10(b).



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


 


3









 





“Applicant Borrower” has the meaning specified in Section 2.14.



“Appropriate Lender” means, at any time, (a) with respect to any of the Term Facility
or the Revolving Credit Facility, a Lender that has a Commitment with respect to such Facility or
holds a Term Loan or a Revolving Credit Loan, respectively, at such time, (b) with respect to the
Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued
pursuant to Section 2.03(a), the Revolving Credit Lenders and (c) with respect to the Swing
Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant
to Section 2.04(a), the Revolving Credit Lenders.



“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.



“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 Eligible Assignee (with the consent of any party whose consent is required by
Section 10.07(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit E or any other form approved by the Administrative Agent.



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



“Audited Financial Statements” means the audited consolidated balance sheet of the
Company and its Subsidiaries for the fiscal year ended December 31, 2008, and the related
consolidated statements of operations, shareholders’ equity and cash flows for such fiscal year of
the Company and its Subsidiaries, including the notes thereto.



“Availability Period” means, in respect of the Revolving Credit Facility, the period
from and including the Closing Date to the earliest of (a) the Maturity Date for the Revolving
Credit Facility, (b) the date of termination of the Revolving Credit Facility pursuant to
Section 2.06, and (c) the date of termination of the commitment of each Revolving Credit
Lender to make Revolving Credit 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.



“Bankruptcy Code” shall mean the United States Bankruptcy Code (11 U.S.C. §§ 101 et
seq.).


 


4









 





“Base Rate” means, for any day, a rate per annum equal to the highest of (a) the Prime
Rate for such day, (b) the sum of 0.50% plus the Federal Funds Rate for such day and (c)
except during a Eurocurrency Unavailability Period, the sum of 1.00% plus the 1-month
Eurocurrency Rate.



“Base Rate Loan” means a Revolving Credit Loan or a Term Loan that bears interest
based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.



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



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



“Borrowing” and “Committed Borrowing” means a Revolving Credit Borrowing, a
Swing Line Borrowing or a Term 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 of
New York:




(a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in
respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried
out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such
day on which dealings in deposits in Dollars are conducted by and between banks in the
London interbank eurodollar market;




(b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Euro, any fundings, disbursements, settlements and payments in Euro in
respect of any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out
pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET
Day;




(c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in a currency other than Dollars or Euro, means any such day on which dealings
in deposits in the relevant currency are conducted by and between banks in the London or
other applicable offshore interbank market for such currency; and




(d) if such day relates to any fundings, disbursements, settlements and payments in a
currency other than Dollars or Euro in respect of a Eurocurrency Rate Loan denominated in a
currency other than Dollars or Euro, or any other dealings in any currency other than
Dollars or Euro to be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan (other than any interest rate settings), means any such day on which
banks are open for foreign exchange business in the principal financial center of the
country of such currency.



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


 


5









 





“Cash Management Agreement” means any agreement to provide cash management services,
including treasury, depository, overdraft, credit or debit card, electronic funds transfer and
other cash management arrangements.



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



“CFC” means a Person that is a controlled foreign corporation under Section 957 of the
Code.



“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 interpretation or application thereof by any
Governmental Authority with competent jurisdiction.



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




(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) (other than Andrew McKelvey or any of his
spouse, parents, siblings, children, beneficiaries, affiliates, executors, administrators or
heirs) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall be deemed to have
“beneficial ownership” of all securities that such person or group has the right to acquire,
whether such right is exercisable immediately or only after the passage of time (such right,
an “option right”)), directly or indirectly, of 25% or more of the equity securities
of the Company entitled to vote for members of the board of directors or equivalent
governing body of the Company on a fully-diluted basis (and taking into account all such
securities that such person or group has the right to acquire pursuant to any option right);




(b) during any period of 24 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of the Company cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or
(iii) whose election or nomination to that board or other equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body (excluding, in the case of both clause (ii) and clause (iii), any individual whose
initial nomination for, or assumption of office as, a member of that board or equivalent
governing body occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by
any person or group other than a solicitation for the election of one or more directors
by or on behalf of the board of directors); or


 


6









 






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



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



“Code” means the Internal Revenue Code of 1986, as amended to the date hereof and from
time to time hereafter, and any successor statute.



“Collateral” means all of the collateral referred to in the Collateral Documents and
all of the other property that is or is intended under the terms of the Collateral Documents to be
subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties.



“Collateral Documents” means, collectively, the U.S. Pledge Agreement, each Foreign
Pledge Agreement, and any supplements thereto, and any other pledge agreement or similar agreements
delivered to the Administrative Agent pursuant to Section 6.13, and each of the other
agreements, instruments or documents that creates or purports to create a Lien in favor of the
Administrative Agent for the benefit of the Secured Parties.



“Commitment” means a Term Commitment or a Revolving Credit Commitment, as the context
may require.



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



“Company Guaranty” means the Company Guaranty made by the Company in favor of the
Administrative Agent and the Lenders, substantially in the form of Exhibit F.



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



“Consolidated EBITDA” means, for any period, for the Company and its Subsidiaries on a
consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the
following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated
Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income
taxes payable by the Company and its Subsidiaries for such period, (iii) depreciation and
amortization expense, (iv) other expenses of the Company and its Subsidiaries reducing such
Consolidated Net Income which do not represent a cash item in such period or any future period
and (v) any costs or expenses incurred pursuant to any management equity plan or stock option
plan or any other management or employee benefit plan or agreement or any stock subscription or
shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds
contributed to the capital of the Company or net cash proceeds of an issuance of Equity Interests
and minus (b) the following to the extent included in calculating such Consolidated Net
Income: (i) Federal, state, local and foreign income tax credits of the Company and its
Subsidiaries for such period and (ii) all non-cash items increasing Consolidated Net Income for
such period.


 


7









 





“Consolidated Funded Indebtedness” means, as of any date of determination, for the
Company and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under
letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety
bonds and similar instruments, (d) all obligations in respect of the deferred purchase price of
property or services (other than trade accounts payable in the ordinary course of business), (e)
Attributable Indebtedness in respect of capital leases and Synthetic Lease Obligations, (f) without
duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in
clauses (a) through (e) above of Persons other than the Company or any Subsidiary,
and (g) all Indebtedness of the types referred to in clauses (a) through (f) above
of any partnership or joint venture (other than a joint venture that is itself a corporation,
limited partnership or limited liability company) in which the Company or a Subsidiary is a general
partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the Company
or such Subsidiary (or the Company or such Subsidiary is not otherwise liable for such
indebtedness).



“Consolidated Interest Charges” means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, debt discount,
fees, charges and related expenses of the Company and its Subsidiaries in connection with borrowed
money (including capitalized interest) or in connection with the deferred purchase price of assets,
in each case to the extent treated as interest in accordance with GAAP, (b) any losses on hedging
obligations or other derivative instruments entered into for the purposes of hedging interest rate
risk, minus interest income and gains on such hedging obligations and (c) the portion of
rent expense of the Company and its Subsidiaries with respect to such period under capital leases
that is treated as interest in accordance with GAAP, in each case paid in cash during such period.
For the avoidance of doubt, Consolidated Interest Charges shall not include any interest in
respect of any item excluded from the definition of Indebtedness.



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



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


 


8









 





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



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



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



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



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



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



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



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



“Designated Borrower Notice” has the meaning specified in Section 2.14.



“Designated Borrower Request and Assumption Agreement” has the meaning specified in
Section 2.14.


 


9









 





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



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



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



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



“Election Period” has the meaning specified in Section 2.16(a).



“Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 10.07(b) (subject to such consents, if any, as may be required under
Section 10.07(b)).



“EMU Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency.



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



“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Company, any other Loan Party or any of their respective Subsidiaries directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure
to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.



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


 


10









 





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



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



“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company
or any ERISA Affiliate.



“Euro” and “EUR” mean the lawful currency of the Participating Member States
introduced in accordance with the EMU Legislation.



“Eurocurrency Rate” means, for any Interest Period with respect to a Eurocurrency 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 (or, in the case of
Eurocurrency Loans denominated in Alternative Currencies as to which market practice differs from
the foregoing, in accordance with such market practice), for deposits in the relevant currency (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 “Eurocurrency Rate” for such
Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate
at which deposits in the relevant currency for delivery on the first day of such Interest Period in
Same Day Funds in the approximate amount of the Eurocurrency 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 (or other Bank of America branch or Affiliate) to major banks in
the London or other offshore interbank market for such currency at their request at approximately
11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.



“Eurocurrency Rate Loan” means a Revolving Credit Loan or a Term Loan that bears
interest at a rate based on the Eurocurrency Rate. Eurocurrency Rate Loans may be denominated
in Dollars or in an Alternative Currency. All Loans denominated in an Alternative Currency
must be Eurocurrency Rate Loans.


 


11









 





“Eurocurrency Unavailability Period” means any period of time during which a notice
delivered to the Borrower in accordance with Section 3.03 shall remain in force and effect.



“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 any
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however denominated
and whether worldwide or only insofar as such net income is considered to arise in or relate to a
particular jurisdiction), and franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the Laws of which such recipient is
organized or in which its principal office is, or formerly was, located or, in the case of any
Lender, in which its applicable Lending Office is located and/or in which it (and/or, in the case
of a Lender, its Lending Office) is deemed to be doing business, (b) any branch profits taxes
imposed by the United States or any similar tax imposed by any other jurisdiction in which such
Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Company under Section 10.14), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or
designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability
(other than as a result of a Change in Law) to comply with Section 3.01(e), 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 applicable Borrower
with respect to such withholding tax pursuant to Section 3.01(a). Notwithstanding anything
to the contrary contained in this definition, “Excluded Taxes” shall not include any withholding
tax imposed at any time on payments made by or on behalf of a Foreign Obligor to any Lender
hereunder or under any other Loan Document, provided that such Lender shall have complied
with the last paragraph of Section 3.01(e).



“Existing Credit Agreement” has the meaning specified in the preliminary statements
hereto.



“Existing Lenders” has the meaning specified in the preliminary statements hereto.



“Existing Letters of Credit” means, collectively, the letters of credit listed on
Schedule 1.02.



“Existing Loans” has the meaning specified in the preliminary statements hereto.



“Facility” means the Term Facility or the Revolving Credit Facility, as the context
may require.



“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.


 


12









 





“Fee Letter” means the letter agreement, dated July 16, 2009, among the Company, the
Administrative Agent and the Arranger.



“Foreign Lender” means, with respect to any Borrower, any Lender that is organized
under the Laws of a jurisdiction other than that in which such Borrower is resident for tax
purposes. 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 Obligor” means a Loan Party that is a Foreign Subsidiary.



“Foreign Pledge Agreements” means any supplemental pledge agreement governed by the
laws of a jurisdiction other than the United States, a State thereof or the District of Columbia,
executed and delivered by the Company or any Domestic Subsidiary pursuant to the terms of this
Agreement, in form and substance reasonably satisfactory to the Administrative Agent, as may be
necessary under the laws of organization or incorporation of a Material Foreign Subsidiary to
further protect or perfect the Administrative Agent’s Lien on any Collateral.



“Foreign Subsidiary” means any Subsidiary that is organized under the laws of a
jurisdiction other than the United States, a State thereof or the District of Columbia.



“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 business.



“GAAP” means generally accepted accounting principles in the United States.



“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).


 


13









 





“Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation, (ii) to purchase or lease property, securities or services
for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the
payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level of income or cash
flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the
term “Guarantee” shall not include endorsements of instruments for deposit or collection in the
ordinary course of business or customary and reasonable indemnity obligations in effect on the
Closing Date or entered into in connection with any acquisition or disposition of assets permitted
under this Agreement. The amount of any Guarantee referred to (x) in clause (a) shall be deemed to
be an amount equal to the stated or determinable amount of the related primary obligation, or
portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith and (y) shall be the lesser of the amount referred to in clause (x) and the
value of the property subject to a lien, to the extent that such obligation is non-recourse other
than to such property. The term “Guarantee” as a verb has a corresponding meaning.



“Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other hazardous or toxic 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 Swap Contract
permitted under Article VI or VII, is a Lender or an Affiliate of a Lender, in its
capacity as a party to such Swap Contract.



“Inactive Subsidiary” means each of the Subsidiaries designated as such on
Schedule 5.13; provided that if such Subsidiary becomes active and has either (a)
revenues for any fiscal year in excess of $100,000 or (b) assets at any time in excess of $100,000,
then such Subsidiary shall no longer qualify as an Inactive Subsidiary.



“Increase Effective Date” has the meaning specified in Section 2.16(e).



“Incremental Term Loan” has the meaning specified in Section 2.16(a).


 


14









 





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




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




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




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




(d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business and, in each
case, not past due for more than 60 days after the date on which such trade account payable
is due);




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




(f) capital leases and Synthetic Lease Obligations;




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




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



For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation, limited
partnership or limited liability company) in which such Person is a general partner or a joint
venturer, unless such Indebtedness is expressly made non-recourse to such Person (or such Person is
not otherwise liable for such indebtedness). The amount of any net obligation under any Swap
Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The
amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed to be the
amount of Attributable Indebtedness in respect thereof as of such date. Notwithstanding the
foregoing, the term Indebtedness shall not include deferred or prepaid revenue.



“Indemnified Taxes” means Taxes other than Excluded Taxes.



“Indemnitees” has the meaning specified in Section 10.05(b).



“Information” has the meaning specified in Section 10.08.


 


15









 





“Interest Payment Date” means, (a) as to any Eurocurrency Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date of the Facility under which
such Loan was made; provided that if any Interest Period for a Eurocurrency Rate Loan
exceeds three months, the respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a
Swing Line Loan), the last Business Day of each March, June, September and December and the
Maturity Date of the Facility under which such Loan was made (with Swing Line Loans being deemed
made under the Revolving Credit Facility for purposes of this definition).



“Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on
the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency
Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the
Company in its Loan Notice or such other period that is twelve months or less requested by the
Company and consented to by all the Appropriate Lenders; 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 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 of the Facility under
which such Loan was made.



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



“IP Rights” means all material trademarks, service marks, trade names, copyrights,
patents, patent rights, franchises, licenses and other intellectual property rights.



“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 (or such later
version thereof as may be in effect at the time of issuance).



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


 


16









 





“Laws” means, collectively, all applicable international, foreign, Federal, state and
local statutes, treaties, rules, regulations, ordinances, codes and binding and current
administrative or judicial precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority with competent jurisdiction charged with the
enforcement, interpretation or administration thereof, and all applicable administrative orders,
licenses, authorizations and permits of, and agreements with, any such Governmental Authority.



“L/C Advance” means, with respect to each Revolving Credit Lender, such Revolving
Credit Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable
Percentage. All L/C Advances shall be denominated in Dollars.



“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 Credit
Borrowing. All L/C Borrowings shall be denominated in Dollars.



“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, collectively, Bank of America and such other Revolving Credit
Lenders (not to exceed five in the aggregate) as the Company may select, in their capacities as
issuers 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 1.09. 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 Company and the Administrative Agent.



“Letter of Credit” means any standby letter of credit issued hereunder and shall
include Existing Letters of Credit. Letters of Credit may be issued in Dollars or in an
Alternative Currency.



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


 


17









 





“Letter of Credit Expiration Date” means the day that is seven days prior to the
Maturity Date then in effect for the Revolving Credit Facility (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 $50,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.



“Lien” means any mortgage, pledge, hypothecation, assignment, 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 a Term Loan, a Revolving Credit Loan, a Swing Line Loan or an Incremental
Term Loan, as the context may require.



“Loan Documents” means this Agreement, each Designated Borrower Request, each
Assumption Agreement, each Note, each Issuer Document, the Fee Letter, the Original Fee Letter, the
Company Guaranty, the Subsidiary Guaranty and the Collateral Documents.



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



“Loan Parties” means, collectively, the Company, each Subsidiary Guarantor, each
Designated Borrower and each Domestic Subsidiary that is party to the U.S. Pledge Agreement or a
Foreign Pledge Agreement.



“Mandatory Cost” means, with respect to any period, the percentage rate per annum
determined in accordance with Schedule 1.01.



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



“Material Foreign Subsidiary” means, as of the first day of each fiscal quarter of the
Company (as calculated by the Company within 30 days of such date) with respect to the immediately
prior fiscal quarter, any Foreign Subsidiary of the Company all of whose Capital Stock is
wholly-owned directly by the Company or any Domestic Subsidiary that is a Loan Party
and which Foreign Subsidiary (together with its Subsidiaries) accounts for 5% or more of the
revenues of the Company and its Subsidiaries on a consolidated basis for such period.


 


18









 





“Maturity Date” means (a) with respect to the Revolving Credit Facility, the later of
(i) December 21, 2012 and (ii) if maturity is extended pursuant to Section 2.15, such
extended maturity date as determined pursuant to such Section, (b) with respect to the Term Loans
made on the Closing Date, December 21, 2012 and (c) if any Incremental Term Loans are made pursuant
to Section 2.16, the maturity date for such Incremental Term Loans as agreed to by the
Borrowers and the Term Lenders pursuant to such Section; provided that, in each case, if
such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.



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



“Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Company 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 Term Note or a Revolving Credit Note, as the context may require.



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



“Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, 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.



“Original Closing Date” means, December 21, 2007, the date of the effectiveness of the
Existing Credit Agreement.



“Original Fee Letter” means the letter agreement, dated November 5, 2007, among the
Company, the Administrative Agent, the Arranger and Citibank, N.A.



“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.


 


19









 





“Outstanding Amount” means (a) with respect to Term Loans or Revolving Credit Loans on
any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of such Term Loans and Revolving
Credit Loans, as the case may be, occurring on such date; (b) with respect to Swing Line Loans on
any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings
and prepayments or repayments of such Swing Line Loans occurring on such date; and (c) with respect
to any L/C Obligations on any date, the Dollar Equivalent amount of the aggregate outstanding
amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements by the Company of Unreimbursed Amounts.



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



“Parent Entity” means the Company or any Domestic Subsidiary that owns directly all of
the equity interests of (a) a Domestic Subsidiary (other than an Inactive Subsidiary), (b) a
Material Foreign Subsidiary or (c) any Foreign Subsidiary that owns directly or indirectly all of
the equity interests of a Material Foreign Subsidiary.



“Participant” has the meaning specified in Section 10.07(d).



“Participating Member State” means each state so described in any EMU Legislation.



“PBGC” means the Pension Benefit Guaranty Corporation.



“PCAOB” means the Public Company Accounting Oversight Board.



“Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Company or any ERISA Affiliate or to which the Company 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.


 


20









 





“Permitted Investments” means:




(a) securities issued or unconditionally guaranteed or insured by the United States
government or any agency or instrumentality thereof, in each case having maturities of not
more than one year from the date of acquisition thereof; provided that the full
faith and credit of the United States of America is pledged in support thereof;




(b) securities with maturities of 18 months or less from the date of acquisition issued
or fully guaranteed by any state, commonwealth or territory of the United States, by any
political subdivision or taxing authority of any such state, commonwealth or territory or by
any foreign government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are rated at least
A by S&P or A by Moody’s;




(c) commercial paper issued by (i) a Lender or any bank holding company owning a Lender
or (ii) any Person organized under the laws of any state of the United States of America and
rated at least Prime-1 (or the then equivalent grade) by Moody’s or at least A-1 (or the
then equivalent grade) by S&P, in each case in an aggregate amount per issuer outstanding at
any time not exceeding 15% of the investment portfolio of the Company and its Subsidiaries
on a consolidated basis, and with maturities of not more than 6 months from the date of
acquisition thereof;




(d) time deposits or eurodollar time deposits with, or certificates of deposit or
bankers’ acceptances of, any commercial bank that (i) (A) is a Lender or (B) is organized
under the laws of the United States of America, any state thereof or the District of
Columbia or is the principal banking subsidiary of a bank holding company organized under
the laws of the United States of America, any state thereof or the District of Columbia and
(ii) has combined capital and surplus of not less than $500,000,000, in each case with
maturities of not more than 18 months from the date of acquisition thereof;




(e) securities with maturities of 18 months or less from the date of acquisition backed
by standby letters of credit issued by any Lender or any commercial bank satisfying the
requirements of clause (d) of this definition;




(f) shares of Dollar denominated money market mutual or similar funds which invest
exclusively in assets satisfying the requirements in one or more of clauses (a),
(b), (c), (d) or (e) of this definition or money market
funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment
Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s or (iii) have portfolio
assets of at least $1,000,000,000;




(g) Investments consisting of (i) auction rate securities each having, at the time of
acquisition thereof, a minimum short-term rating of SP-1 or A-1 or a minimum long-term
rating of AA or equivalent by S&P or a minimum short-term rating of MIG-1 or VMIG-1 or
Prime-1 or a minimum long-term rating of Aa or equivalent by Moody’s and (ii) the Series C-2
Auction Rate Securities Rights issued by UBS; and




(h) in the case of Investments by any Foreign Subsidiary or Investments made in a
country outside the United States of America, substantially similar Investments to those set
forth in clauses (a) through (g) of this definition denominated in foreign
currencies; provided that, references to the United States shall be deemed to mean
foreign countries having a sovereign rating of A or better from either S&P or Moody’s.


 


21









 





“Permitted Liens” means:




(a) Liens for taxes, assessments or governmental charges or claims not yet due or which
are being contested in good faith and by appropriate proceedings diligently conducted for
which appropriate reserves have been established in accordance with GAAP;




(b) Liens in respect of property or assets of the Company or any of its Subsidiaries
imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens and other similar
Liens arising in the ordinary course of business in respect of liabilities which are not
overdue for a period of more than 60 days or which are being contested in good faith and by
appropriate proceedings diligently conducted for which appropriate reserves have been
established;




(c) Liens arising from judgments or decrees in circumstances not constituting an Event
of Default under Article 8;




(d) Liens incurred or deposits made in connection with workers’ compensation,
unemployment insurance and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases (other than
Indebtedness), trade contracts and leases, government contracts, performance and
return-of-money bonds and other similar obligations incurred in the ordinary course of
business or otherwise constituting Investments permitted by Section 7.02, other than
any Lien imposed by ERISA;




(e) ground leases in respect of real property on which facilities owned or leased by
the Company or any of its Subsidiaries are located;




(f) easements, rights-of-way, restrictions, defects or irregularities in title and
other similar charges or encumbrances not interfering in any material respect with the
business of the Company and its Subsidiaries, taken as a whole;




(g) any interest or title of a lessor or secured by a lessor’s interest under any lease
permitted by this Agreement;




(h) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of good in the ordinary
course of business;




(i) Liens on goods the purchase price of which is financed by a documentary letter of
credit issued for the account of the Company or any of its Subsidiaries, provided
that such Lien secures only the obligations of the Company or such Subsidiaries in
respect of such letter of credit to the extent permitted under Section 7.03;


 


22









 






(j) Liens arising from precautionary UCC financing statement or similar filings made in
respect of operating leases entered into by the Company or any of its Subsidiaries;




(k) Liens arising as a matter of law and created in the ordinary course of business in
favor of banks and other financial institutions over credit balances of any bank accounts of
the Company or any of its Subsidiaries held at such banks or financial institutions, as the
case may be, to facilitate the operation of cash pooling and/or interest set-off
arrangements in respect of such bank accounts in the ordinary course of business;




(l) Liens encumbering reasonable customary initial deposits and margin deposits and
similar Liens attaching to commodity trading accounts or other brokerage accounts incurred
in the ordinary course of business and not for speculative purposes;




(m) leases or subleases permitted pursuant to this Agreement; and




(n) Liens securing the Obligations or granted or issued in connection with any Loan
Document, Letter of Credit, Secured Cash Management Agreement or Secured Hedge Agreement.



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



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



“Pledged Equity” means all Equity Interests that constitute “Collateral” under the
U.S. Pledge Agreement, the Foreign Pledge Agreements and in any other pledge agreement or
supplement thereto entered into by a Loan Party pursuant to Section 6.13, as applicable.



“Prime Rate” means the rate of interest in effect for such day as publicly announced
from time to time by the Administrative Agent as its “prime rate”. Any change in such rate
announced by the Administrative Agent shall take effect at the opening of business on the day
specified in the public announcement of such change.



“Register” has the meaning specified in Section 10.07(c).



“Registered Public Accounting Firm” has the meaning specified in the Securities Laws
and shall be independent of the Company as prescribed by the Securities Laws.




 


23











 




“Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents 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 Term Loans or Revolving Credit Loans, a Loan Notice, (b) with respect to an L/C
Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a
Swing Line Loan Notice.



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



“Required Revolving Lenders” means, as of any date of determination, Revolving Credit
Lenders having more than 50% of the sum of (a) the Total Revolving Credit Outstandings (with the
aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in
L/C Obligations and Swing Line Loans being deemed “held” by such Revolving Credit Lender for
purposes of this definition) and (b) the aggregate unused Revolving Credit Commitments;
provided that the unused Revolving Credit Commitment of, and the portion of the Total
Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Revolving Lenders.



“Required Term Lenders” means, as of any date of determination, (a) if there are three
or more Term Lenders, Term Lenders which collectively hold more than 50% of the Term Facility on
such date and (b) if there are two or fewer Term Lenders, all Term Lenders; provided that
the portion of the Term Facility held by any Defaulting Lender shall be excluded for purposes of
making a determination of Required Term Lenders.



“Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or controller of a Loan Party. Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to
have been authorized by all necessary corporate, partnership and/or other action on the part of
such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.


 


24









 





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



“Revaluation Date” means (a) with respect to any Loan, each of the following:
(i) each date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency,
(ii) each date of a continuation of a Eurocurrency Rate Loan denominated in an Alternative Currency
pursuant to Section 2.02, and (iii) such additional dates as the Administrative Agent shall
determine or the Required Lenders shall require; and (b) with respect to any Letter of Credit, each
of the following: (i) each date of issuance of a Letter of Credit denominated in an Alternative
Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of
increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any
payment by the L/C Issuer under any Letter of Credit denominated in an Alternative Currency and
(iv) such additional dates as the Administrative Agent or the L/C Issuer shall determine or the
Required Lenders shall require (including with respect to Existing Letters of Credit).



“Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving
Credit Loans of the same Type, in the same currency, and, in the case of Eurocurrency Rate Loans,
having the same Interest Period made by each of the Revolving Credit Lenders pursuant to
Section 2.01(a).



“Revolving Credit Commitment” means, as to each Lender, its obligation to (a) make
Revolving Credit Loans to the Borrowers pursuant to Section 2.01(a), (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 under the caption “Revolving Credit Commitment” or
opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time in accordance with
this Agreement.



“Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving
Credit Lenders’ Revolving Credit Commitments at such time.



“Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit
Commitment at such time.



“Revolving Credit Loan” has the meaning specified in Section 2.01(a) and
includes any Existing Loans.



“Revolving Credit Note” means a promissory note made by a Borrower in favor of a
Revolving Credit Lender evidencing Revolving Credit Loans or Swing Line Loans, as the case may be,
made by such Revolving Credit Lender, substantially in the form of Exhibit C-1.



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


 


25









 





“Same Day Funds” means (a) with respect to disbursements and payments in Dollars,
immediately available funds, and (b) with respect to disbursements and payments in an Alternative
Currency, same day or other funds as may be determined by the Administrative Agent or the L/C
Issuer, as the case may be, to be customary in the place of disbursement or payment for the
settlement of international banking transactions in the relevant Alternative Currency.




“Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.



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



“Secured Cash Management Agreement” means any Cash Management Agreement that is
entered into in writing by and between any Loan Party and any Cash Management Bank, and which has
been identified by the applicable Loan Party by written notice to the Administrative Agent.



“Secured Hedge Agreement” means any Swap Contract permitted under Article VI
or VII that is entered into by and between any Loan Party and any Hedge Bank.



“Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C
Issuer, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the
Administrative Agent from time to time pursuant to Section 9.05, and the other Persons the
Obligations owing to which are or are purported to be secured by the Collateral under the terms of
the Collateral Documents.



“Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the PCAOB.



“Special Notice Currency” means at any time an Alternative Currency, other than the
currency of a country that is a member of the Organization for Economic Cooperation and Development
at such time located in North America or Europe.



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




“Sterling” and “£” mean the lawful currency of the United Kingdom.


 


26









 





“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” shall refer to a Domestic Subsidiary or a
Foreign Subsidiary of the Company and all references to “Subsidiaries” shall refer to Domestic
Subsidiaries or Foreign Subsidiaries of the Company.



“Subsidiary Guarantors” means, collectively, all Domestic Subsidiaries (other than any
Inactive Subsidiary) or those Domestic Subsidiaries that are required to be a Subsidiary Guarantor
from time to time pursuant to Section 6.13. The Subsidiary Guarantors as of the Closing
Date are set forth in Part (a) of Schedule 5.13.



“Subsidiary Guaranty” means the Subsidiary Guaranty made by the Subsidiary Guarantors
in favor of the Administrative Agent and the Lenders, substantially in the form of Exhibit
G.



“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.



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



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


 


27









 





“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 Revolving Credit Facility. The Swing Line Sublimit is part of, and not in addition to, the
Revolving Credit Facility.



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



“TARGET Day” means any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be
operative, such other payment system (if any) determined by the Administrative Agent to be a
suitable replacement) is open for the settlement of payments in Euro.



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



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



“Term Commitment” means, as to each Lender, its obligation to make Term Loans to the
Borrowers pursuant to Section 2.01(b) 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
under the caption “Term Commitment” or opposite such caption in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement. For purposes of the definition of “Aggregate
Commitment” if the commitment of each Lender to make Term Loans have been terminated pursuant to
Section 2.01(b), the Term Commitment of such Lender shall be deemed to be the Outstanding
Amount of Term Loans held by such Lender.



“Term Facility” means, at any time, the aggregate principal amount of the Term Loans
of all Term Lenders outstanding at such time.



“Term Lender” means, at any time, any Lender that holds Term Loans at such time.




“Term Loan” has the meaning specified in Section 2.01(b).


 


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“Term Note” means a promissory note made by a Borrower in favor of a Term Lender
evidencing Term Loans made by such Term Lender, substantially in the form of Exhibit C-2.



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



“Total Revolving Credit Outstandings” means the aggregate Outstanding Amount of all
Revolving Credit Loans, Swing Line Loans and L/C Obligations.



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



“UCC” means the Uniform Commercial Code as in effect in the State of New York;
provided that, if perfection or the effect of perfection or non-perfection or the priority
of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect
in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in
effect from time to time in such other jurisdiction for purposes of the provisions hereof relating
to such perfection, effect of perfection or non-perfection or priority.




“U.S. Pledge Agreement” has the meaning specified in Section 4.01(a)(iii).



“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).




“Yen” and “¥” mean the lawful currency of Japan.



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


 


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“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, preliminary statements, Exhibits and Schedules shall be construed to refer to Articles,
preliminary statements 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.



(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 Company or the
Required Lenders shall so request, the Administrative Agent, the Lenders and the Company 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 Company shall provide to the Administrative
Agent and the Lenders unaudited 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.



1.04 Rounding. Any financial ratios required to be maintained by the Company pursuant to this
Agreement (or required to be satisfied in order for a specific action to be permitted under 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).


 


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1.05 Exchange Rates; Currency Equivalents. (a) The Administrative Agent or the L/C Issuer,
as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for
calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in
Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and
shall be the Spot Rates employed in converting any amounts between the applicable currencies until
the next Revaluation Date to occur. Except for purposes of financial statements delivered by Loan
Parties hereunder or calculating financial covenants hereunder or except as otherwise provided
herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan
Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or
the L/C Issuer, as applicable.



(b) Wherever in this Agreement in connection with a Borrowing, conversion, continuation or
prepayment of a Eurocurrency Rate Loan or the issuance, amendment or extension of a Letter of
Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such
Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in an Alternative Currency,
such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to
the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as
determined by the Administrative Agent or the L/C Issuer, as the case may be.



1.06 Additional Alternative Currencies. (a) The Company may from time to time request that
Eurocurrency Rate Loans be made and/or Letters of Credit be issued in a currency other than those
specifically listed in the definition of “Alternative Currency”; provided that such
requested currency is a lawful currency (other than Dollars) that is readily available and freely
transferable and convertible into Dollars. In the case of any such request with respect to the
making of Eurocurrency Rate Loans, such request shall be subject to the approval of the
Administrative Agent and the Lenders; and in the case of any such request with respect to the
issuance of Letters of Credit, such request shall be subject to the approval of the Administrative
Agent and the L/C Issuer.



(b) Any such request shall be made to the Administrative Agent not later than 11:00 a.m., 10
Business Days prior to the date of the desired Credit Extension (or such other time or date as may
be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of
Credit, the L/C Issuer, in its or their sole discretion). In the case of any such request
pertaining to Eurocurrency Rate Loans, the Administrative Agent shall promptly notify each Lender
thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative
Agent shall promptly notify the L/C Issuer thereof. Each Lender (in the case of any such request
pertaining to Eurocurrency Rate Loans) or the L/C Issuer (in the case of a request pertaining to
Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m., five Business
Days after receipt of such request whether it consents, in its sole discretion, to the making of
Eurocurrency Rate Loans or the issuance of Letters of Credit, as the case may be, in such requested
currency.


 


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(c) Any failure by a Lender or the L/C Issuer, as the case may be, to respond to such request
within the time period specified in the preceding sentence shall be deemed to be a refusal by such
Lender or the L/C Issuer, as the case may be, to permit Eurocurrency Rate Loans to be made or
Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the
Lenders consent to making Eurocurrency Rate Loans in such requested currency, the Administrative
Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes to
be an Alternative Currency hereunder for purposes of any Committed Borrowings of Eurocurrency Rate
Loans; and if the Administrative Agent and the L/C Issuer consent to the issuance of Letters of
Credit in such requested currency, the Administrative Agent shall so notify the Company and such
currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for
purposes of any Letter of Credit issuances. If the Administrative Agent shall fail to obtain
consent to any request for an additional currency under this Section 1.06, the
Administrative Agent shall promptly so notify the Company. Any specified currency of an Existing
Letter of Credit that is neither Dollars nor one of the Alternative Currencies specifically listed
in the definition of “Alternative Currency” shall be deemed an Alternative Currency with respect to
such Existing Letter of Credit only.



1.07 Change of Currency. (a) Each obligation of the Borrowers to make a payment denominated
in the national currency unit of any member state of the European Union that adopts the Euro as its
lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption
(in accordance with the EMU Legislation); provided that if and to the extent that such
legislation or member state provides that any such obligation may be paid by the debtor either in
Euro or such other currency, then the applicable Borrower shall be permitted to repay such amount
either in the Euro or such other currency. If, in relation to the currency of any such member
state, the basis of accrual of interest expressed in this Agreement in respect of that currency
shall be inconsistent with any convention or practice in the London interbank market for the basis
of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such
convention or practice with effect from the date on which such member state adopts the Euro as its
lawful currency; provided that if any Borrowing in the currency of such member state is
outstanding immediately prior to such date, such replacement shall take effect, with respect to
such Borrowing, at the end of the then current Interest Period.



(b) Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to reflect
the adoption of the Euro by any member state of the European Union and any relevant market
conventions or practices relating to the Euro.



(c) Each provision of this Agreement also shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to reflect
a change in currency of any other country and any relevant market conventions or practices relating
to the change in currency.



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



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


 


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1.10 Financial Determinations. As of any date of determination, for purposes of determining
the Consolidated Interest Coverage Ratio or Consolidated Leverage Ratio (and any financial
calculations required to be made or included within such ratios), or required for purposes of
preparing any Compliance Certificate to be delivered pursuant to Section 6.02(a), the
calculation of such ratios and other financial calculations shall include or exclude, as the case
may be, the effect of any assets or businesses that have been acquired or Disposed of by the
Company or any of its Subsidiaries pursuant to the terms hereof (including through mergers or
consolidations) as of such date of determination, as determined by the Company on a pro forma basis
in accordance with GAAP, which determination may include one-time adjustments or reductions in
costs, if any, directly attributable to any such permitted Disposition or permitted acquisition, as
the case may be, in each case (x) calculated in accordance with applicable Securities Laws for the
period of four fiscal quarters ended on or immediately prior to the date of determination of any
such ratios (without giving effect to any cost-savings or adjustments relating to synergies
resulting from any such permitted acquisition except as the Administrative Agent shall otherwise
agree) and (y) giving effect to any such permitted acquisition or permitted Disposition, as the
case may be, as if it had occurred on the first day of such four fiscal quarter period.



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS





2.01 Loans.



(a) Revolving Credit Loans. Subject to the terms and conditions set forth herein,
each Revolving Credit Lender severally agrees to make loans (each such loan, a “Revolving
Credit Loan”) to the Borrowers in Dollars or in one or more Alternative Currencies 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 Revolving Credit Commitment; provided that
after giving effect to any Revolving Credit Borrowing, (a) the Total Revolving Credit Outstandings
shall not exceed the Revolving Credit Facility, and (b) the aggregate Outstanding Amount of the
Revolving Credit Loans of any Lender, plus such Revolving Credit Lender’s Applicable
Percentage of the Outstanding Amount of all L/C Obligations, plus such Revolving Credit
Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed
such Revolving Credit Lender’s Revolving Credit Commitment. Within the limits of each Revolving
Credit Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof,
the Borrowers may borrow under this Section 2.01(a), prepay under Section 2.05, and
reborrow under this Section 2.01(a). Revolving Credit Loans may be Base Rate Loans or
Eurocurrency Rate Loans, as further provided herein.



(b) Term Loans. Subject to the terms and conditions set forth herein, each Term
Lender severally agrees to make a single loan (each such loan, a “Term Loan”) to the
Borrowers on the Closing Date in an amount not to exceed such Term Lender’s Term Commitment. The
Term Borrowing shall consist of Term Loans made simultaneously by the Term Lenders in accordance
with their respective Applicable Percentage of the Term Facility. Amounts borrowed under this
Section 2.01(b) and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate
Loans or Eurocurrency Rate Loans, as further provided herein.


 


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2.02 Borrowings, Conversions and Continuations of Loans. (a) Each Term Borrowing, each
Revolving Credit Borrowing, each conversion of Revolving Credit Loans or Term Loans from one Type
to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Company’s
irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice
must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days
prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate
Loans denominated in Dollars or of any conversion of Eurocurrency Rate Loans denominated in Dollars
to Base Rate Loans, (ii) four Business Days (or five Business Days in the case of a Special Notice
Currency) prior to the requested date of any Borrowing or continuation of Eurocurrency Rate Loans
denominated in Alternative Currencies, and (iii) on the requested date of any Borrowing of Base
Rate Loans; provided that if the Company wishes to request Eurocurrency Rate Loans having
an Interest Period other than one, two, three or six months in duration as provided in the
definition of “Interest Period”, the applicable notice must be received by the Administrative Agent
not later than 11:00 a.m. (i) four Business Days prior to the requested date of such Borrowing,
conversion or continuation of Eurocurrency Rate Loans denominated in Dollars, or (ii) five Business
Days (or six Business days in the case of a Special Notice Currency) prior to the requested date of
such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in Alternative
Currencies, whereupon the Administrative Agent shall give prompt notice to the Lenders of such
request and determine whether the requested Interest Period is acceptable to all of them. In the
case of any request for a Eurocurrency Rate Loan with an Interest Period greater than six months
duration, not later than 11:00 a.m., (i) three Business Days before the requested date of such
Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in Dollars, or
(ii) four Business Days (or five Business days in the case of a Special Notice Currency) prior to
the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans
denominated in Alternative Currencies, the Administrative Agent shall notify the Company (which
notice may be by telephone) whether or not the requested Interest Period has been consented to by
all the Lenders. Each telephonic notice by the Company pursuant to this Section 2.02(a)
must be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice,
appropriately completed and signed by a Responsible Officer of the Company. Each Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided in
Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans
shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each
Loan Notice (whether telephonic or written) shall specify (i) whether the Company is requesting a
Term Borrowing, a Revolving Credit Borrowing, a conversion of Term Loans or Revolving Credit Loans
from one Type to the other, or a continuation of Eurocurrency 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 Loans to be borrowed, converted or
continued, (iv) the Type of Loans to be borrowed or to which existing Term Loans or Revolving
Credit Loans are to be converted, (v) if applicable, the duration of the Interest Period with
respect thereto, (vi) the currency of the Loans to be borrowed, and (vii) if applicable, the
Designated Borrower. If the Company fails to specify a currency in a Loan Notice


 


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requesting a Borrowing, then the Loans so requested shall be made in Dollars. If the Company fails to specify a
Type of Loan in a Loan Notice or if the Company fails to give a timely notice requesting a
conversion or continuation, then the applicable Term Loans or Revolving Credit Loans shall be made
as, or converted to, Base Rate Loans; provided that in the case of a failure to timely
request a continuation of Loans denominated in an Alternative Currency, such Loans shall be
continued as Eurocurrency Rate Loans in their original currency with an Interest Period of one
month. Any 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 Eurocurrency Rate Loans. If the
Company requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any
such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month. No Loan may be converted into or continued as a Loan denominated in
a different currency, but instead must be prepaid in the original currency of such Loan and
reborrowed in the other currency.



(b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify (and
within the same day if such Loan Notice is received prior to 11:00 a.m.) each Lender of the amount
(and currency) of its Applicable Percentage under the applicable Facility of the applicable Term
Loans or Revolving Credit Loans, and if no timely notice of a conversion or continuation is
provided by the Company, the Administrative Agent shall notify each Lender of the details of any
automatic conversion to Base Rate Loans or continuation of Loans denominated in a currency other
than Dollars, in each case as described in Section 2.02(a). In the case of a Term
Borrowing or a Revolving Credit Borrowing, each Appropriate Lender shall make the amount of its
Loan available to the Administrative Agent in Same Day Funds at the Administrative Agent’s Office
for the applicable currency not later than 1:00 p.m., in the case of any Loan denominated in
Dollars, and not later than the Applicable Time specified by the Administrative Agent in the case
of any Loan denominated in an Alternative Currency, in each case on the Business Day specified in
the applicable Loan Notice. Each Lender may, at its option, make any Loan available to any Foreign
Obligor by causing any foreign or domestic branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of such Foreign
Obligor to repay such Loan in accordance with the terms of this Agreement. 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 Company or the other applicable Borrower in like funds as received by the
Administrative Agent either at the option of the Company or the applicable Borrower by
(i) crediting the account of such Borrower on the books of Bank of America with the amount of such
funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to
(and reasonably acceptable to) the Administrative Agent by the Company; provided that if,
on the date the Loan Notice with respect to a Revolving Credit Borrowing denominated in Dollars is
given by the Company, there are L/C Borrowings outstanding, then the proceeds of such Revolving
Credit Borrowing, first, shall be applied to the payment in full of any such L/C
Borrowings, and, second, shall be made available to the applicable Borrower as provided
above.



(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. Upon the
occurrence and during the continuance of an Event of Default, no Loans may be requested as,
converted to or continued as Eurocurrency Rate Loans (whether in Dollars or any Alternative
Currency) without the consent of the Required Lenders, and the Required Lenders may demand that any
or all of the then outstanding Eurocurrency Rate Loans denominated in an Alternative Currency be
prepaid, or redenominated into Dollars in the amount of the Dollar Equivalent thereof, on the last
day of the then current Interest Period with respect thereto.


 


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(d) The Administrative Agent shall promptly notify the Company and the Lenders of the interest
rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such
interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall
notify the Company and the Lenders of any change in the Prime Rate used in determining the Base
Rate promptly following the public announcement of such change.



(e) After giving effect to all Term Borrowings or Revolving Credit Borrowings, all conversions
of Term Loans or Revolving Credit Loans from one Type to the other, and all continuations of
Term Loans or Revolving Credit Loans as the same Type, there shall not be more than fifteen
Interest Periods in effect with respect to both Facilities in the aggregate.




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 Revolving Credit Lenders set forth in this
Section 2.03, (1) from time to time on any Business Day during the period from the
Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit
denominated in Dollars or in one or more Alternative Currencies for the account of the
Company or its Subsidiaries, and to amend Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor drawings under the Letters of
Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of
Credit issued for the account of the Company or its Subsidiaries and any drawings
thereunder; provided that after giving effect to any L/C Credit Extension with
respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not
exceed the Revolving Credit Facility, (y) the aggregate Outstanding Amount of the Revolving
Credit Loans of any Revolving Credit 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 Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Company for
the issuance or amendment of a Letter of Credit shall be deemed to be a representation by
the Company 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 Company’s ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Company 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.


 


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(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 Revolving 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 Revolving Credit 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 material restriction, reserve or capital requirement (for which the L/C
Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was
not applicable on the Closing Date and which the L/C Issuer in good faith deems
material to it;




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




(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial stated amount less than $100,000;




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




(E) the L/C Issuer does not as of the issuance date of such requested Letter of
Credit issue Letters of Credit in the requested currency other than Dollars and
Alternative Currencies designated as of the Closing Date; or




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


 


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(iv) The L/C Issuer shall not amend any Letter of Credit without the written consent of
the applicable Borrower and 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 Revolving Credit 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 the Company 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 Company. Such Letter of Credit Application must be received by
the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two Business
Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree
in a particular instance in their sole discretion) prior to the proposed issuance date or
date of amendment, as the case may be. In the case of a request for an initial issuance of
a Letter of Credit, such Letter of Credit Application shall specify in form and detail
reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount and currency 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; and (G) such other matters as the L/C Issuer may reasonably require. In the
case of a request for an amendment of any outstanding Letter of Credit, such Letter of
Credit Application shall specify in form and detail reasonably satisfactory to the L/C
Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof
(which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as the L/C Issuer may reasonably require. Additionally, the Company shall
furnish to the L/C Issuer and the Administrative Agent such other documents and information
pertaining to such requested Letter of Credit issuance or amendment, including any
Issuer Documents, as the L/C Issuer or the Administrative Agent may reasonably require.


 


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(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 Company and, if not,
the L/C Issuer will promptly provide the Administrative Agent with a copy thereof. Unless
the L/C Issuer has received written notice from any Revolving Credit Lender, the
Administrative Agent or any Loan Party, at least one Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that one or more
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 Company (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 Revolving Credit 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 Revolving Credit 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 Company and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.




(c) Drawings and Reimbursements; Funding of Participations.




(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Company and the
Administrative Agent thereof. In the case of a Letter of Credit denominated in an
Alternative Currency, the Company shall reimburse the L/C Issuer in such Alternative
Currency, unless the Company shall have notified the L/C Issuer promptly following receipt
of the notice of drawing that the Company will reimburse the L/C Issuer in Dollars. In the
case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated
in an Alternative Currency, the L/C Issuer shall notify the Company of the Dollar Equivalent
of the amount of the drawing promptly following the determination thereof. Not later than
11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit to be
reimbursed in Dollars, or the Applicable Time on the date of any payment by the L/C Issuer
under a Letter of Credit to be reimbursed in an Alternative Currency (each such date, an
“Honor Date”), the Company shall reimburse the L/C Issuer through the Administrative
Agent in an amount equal to the amount of such drawing and in the applicable currency. If
the Company fails to so reimburse the L/C Issuer by such time, the Administrative Agent
shall promptly notify each Revolving Credit Lender of the Honor Date, the amount of the
unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in
the case of a Letter of Credit denominated in an Alternative Currency) (the
“Unreimbursed Amount”), and the amount
of such Revolving Credit Lender’s Applicable Percentage thereof. In such event, the
Company shall be deemed to have requested a Revolving Credit 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 Revolving Credit
Commitments and the conditions set forth in Section 4.02 (other than the delivery of
a 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.


 


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




(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in
Section 4.02 cannot be satisfied or for any other reason, the Company 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 Revolving Credit 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 Revolving Credit Lender funds its Revolving Credit Loan or L/C Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn
under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of
such amount shall be solely for the account of the L/C Issuer.




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


 


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(vi) If any Revolving Credit 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 Revolving Credit
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 Revolving Credit Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the L/C Issuer at a rate per annum
equal to the applicable Overnight Rate from time to time in effect, plus any administrative,
processing or similar fees customarily charged by the L/C Issuer in connection with the
foregoing. If such Revolving Credit Lender pays such amount (with interest and fees as
aforesaid), the amount so paid (other than any additional interest as a result of such
Revolving Credit Lender’s failure to pay any amount required to be paid pursuant to this
Section 2.03(c)) shall constitute such Revolving Credit Lender’s Loan included in
the relevant 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 Revolving Credit Lender (through
the Administrative Agent) with respect to any amounts owing under this
Section 2.03(c)(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 Revolving Credit Lender such Revolving Credit 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 Company or otherwise,
including proceeds of cash collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Lender its Applicable Percentage thereof in
Dollars and in the same funds as those received by the Administrative Agent.




(ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.06 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Revolving Credit Lender shall pay to
the Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof
on demand of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate per annum equal to the
applicable Overnight Rate from time to time in effect. The obligations of the Revolving
Credit Lenders under this clause shall survive the payment in full of the Obligations and
the termination of this Agreement.


 


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




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




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




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




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




(v) any adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Company or any Subsidiary or in the relevant currency
markets generally; or




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



The Company 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 Company’s
instructions or other irregularity, the Company will immediately notify the L/C Issuer. The
Company 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.


 


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



(g) Cash Collateral. (i) Upon the request of the Administrative Agent, (A) 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 (B) if, as of the Letter of Credit Expiration Date,
any L/C Obligation for any reason remains outstanding, the Company shall, in each case, immediately
Cash Collateralize the then Outstanding Amount of all L/C Obligations.




(ii) In addition, if the Administrative Agent notifies the Company at any time that the
Outstanding Amount of all L/C Obligations at such time exceeds 105% of the Letter of Credit
Sublimit then in effect, then, within two Business Days after receipt of such notice, the
Company shall Cash Collateralize the L/C Obligations in an amount equal to the amount by
which the Outstanding Amount of all L/C Obligations exceeds the Letter of Credit Sublimit.




(iii) The Administrative Agent may, at any time and from time to time after the initial
deposit of cash collateral, request that additional cash collateral be provided in order to
protect against the results of exchange rate fluctuations.


 


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(iv) 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 reasonably satisfactory to the Administrative Agent and the L/C Issuer (which
documents are hereby consented to by the Revolving Credit Lenders). Derivatives of such
term have corresponding meanings. The Company hereby grants to the Administrative Agent,
for the benefit of the L/C Issuer and the Revolving Credit 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. If at any time the Administrative Agent determines that any funds held as
cash collateral pursuant to this Section 2.03 are subject to any right or claim of
any Person other than the Administrative Agent, the L/C Issuer or the Revolving Credit
Lenders or that the total amount of such funds is less than the aggregate Outstanding Amount
of all L/C Obligations required to be cash collateralized pursuant to this Section
2.03, the Company will, promptly upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited as cash collateral, an amount
equal to the excess of (x) such aggregate Outstanding Amount over (y) the total amount of
funds, if any, then held as cash collateral that the Administrative Agent determines to be
free and clear of any such right and claim. Upon the drawing of any Letter of Credit for
which funds are on deposit as cash collateral, such funds shall be applied, to the extent
permitted under applicable Laws, to reimburse the L/C Issuer and any amounts remaining after
such payment shall be promptly returned to the Company.



(h) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and the
Company when a Letter of Credit is issued (including any such agreement applicable to an Existing
Letter of Credit), the rules of the ISP shall apply to each Letter of Credit.



(i) Letter of Credit Fees. The Company shall pay to the Administrative Agent for the
account of each Revolving Credit Lender in accordance with its Applicable Percentage, in Dollars, a
Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the
Applicable Rate times the Dollar Equivalent of the daily amount available to be drawn under
such Letter of Credit. For purposes of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.09. Letter of Credit Fees shall be (i) due and payable on the first Business Day
after the end of each March, June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and
thereafter on demand and (ii) computed on a quarterly basis in arrears. If there is any change in
the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of
Credit shall be computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary
contained herein, upon the request of the Required Revolving Lenders, while any Event of Default
exists, all Letter of Credit Fees shall accrue at the Default Rate.


 


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(j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Company shall pay directly to the L/C Issuer for its own account, in Dollars, a fronting fee with
respect to each Letter of Credit, at the rate per annum specified in the Original
Fee Letter or as otherwise agreed by the Company and the applicable L/C Issuer, computed on
the Dollar Equivalent of the daily amount available to be drawn under such Letter of Credit on a
quarterly basis in arrears. Such fronting fee shall be due and payable on the tenth Business Day
after the end of each March, June, September and December in respect of the most recently-ended
quarterly period (or portion thereof, in the case of the first payment), commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.09. In addition, the Company shall pay directly to the L/C Issuer for its
own account, in Dollars, the customary issuance, presentation, amendment and other processing fees,
and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time
to time in effect. Such customary fees and standard costs and charges are due and payable on
demand and are nonrefundable.



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



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




2.04 Swing Line Loans.



(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, in reliance upon the agreements of the other Revolving Credit Lenders set forth
in this Section 2.04, to make loans denominated in Dollars (each such loan, a “Swing
Line Loan”) to the Company 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 Credit Loans and L/C Obligations of the Lender acting as
Swing Line Lender, may exceed the amount of such Lender’s Revolving Credit Commitment;
provided that after giving effect to any Swing Line Loan, (i) the Total Revolving Credit
Outstandings shall not exceed the Revolving Credit Facility at such time, and (ii) the aggregate
Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus such
Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus such Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all
Swing Line Loans at such time shall not exceed such Lender’s Revolving Credit Commitment, and
provided, further, that the Company 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 Company 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 Revolving
Credit 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 Revolving Credit Lender’s Applicable
Percentage times the amount of such Swing Line Loan.


 


45









 





(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Company’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $1,000,000, and (ii) the requested borrowing date, which
shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the
Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Company. 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
Revolving Credit 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 Company at its office by either, at the option of the Company, by crediting the
account of the Company on the books of the Swing Line Lender in Same Day Funds or by wire transfer
of such funds in accordance with instructions provided by the Company.




(c) Refinancing of Swing Line Loans.




(i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Company (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Revolving Credit Lender make a Base Rate Loan in an amount
equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans then
outstanding. Such request shall be made in writing (which written request shall be deemed
to be a 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 Revolving
Credit Facility and the conditions set forth in Section 4.02. The Swing Line Lender
shall furnish the Company with a copy of the applicable Loan Notice promptly after
delivering such notice to the Administrative Agent. Each Revolving Credit Lender shall make
an amount equal to its Applicable Percentage of the amount specified in such Loan Notice
available to the Administrative Agent in Same Day Funds for the account of the Swing Line
Lender at the Administrative Agent’s Office for Dollar denominated payments not later than
1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to
Section 2.04(c)(ii), each Revolving Credit Lender that so makes funds available
shall be deemed to have made a
Base Rate Loan to the Company in such amount. The Administrative Agent shall remit the
funds so received to the Swing Line Lender.


 


46









 






(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving
Credit Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate
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 Revolving Credit Lenders fund its risk
participation in the relevant Swing Line Loan and each Revolving Credit 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 Revolving Credit 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
Revolving Credit 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 Revolving Credit 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 applicable Overnight Rate from time to time in effect, plus
any administrative, processing or similar fees customarily charged by the Swing Line Lender
in connection with the foregoing. If such Revolving Credit Lender pays such amount (with
interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Loan
included in the relevant 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 Revolving
Credit Lender (through the Administrative Agent) with respect to any amounts owing under
this clause (iii) shall be conclusive absent manifest error.




(iv) Each Revolving Credit Lender’s obligation to make Revolving Credit 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 Revolving Credit Lender may have against the Swing Line Lender, the Company or
any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default,
or (C) any other occurrence, event or condition, whether or not similar to any of the
foregoing; provided that each Revolving Credit Lender’s obligation to make Revolving
Credit 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 Company to repay Swing Line Loans, together with interest as
provided herein.


 


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(d) Repayment of Participations.




(i) At any time after any Revolving Credit Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account
of such Swing Line Loan, the Swing Line Lender will distribute to
such Revolving Credit 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 10.06 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Revolving Credit
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 applicable Overnight 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 Company for interest on the Swing Line Loans. Until each Revolving
Credit Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04
to refinance such Revolving Credit Lender’s Applicable Percentage of any Swing Line Loan, interest
in respect of such Applicable Credit Percentage shall be solely for the account of the Swing Line
Lender.



(f) Payments Directly to Swing Line Lender. The Company 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) Each Borrower may, upon notice from the Company to the Administrative
Agent, at any time or from time to time voluntarily prepay Term Loans and/or Revolving Credit 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 Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or
five, in the case of prepayment of Loans denominated in Special Notice Currencies) prior to any
date of prepayment of Eurocurrency Rate Loans denominated in Alternative Currencies, and (C) on the
date of prepayment of Base Rate Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated
in Dollars shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess
thereof; (iii) any prepayment of Eurocurrency Rate Loans denominated in Alternative Currencies
shall be in a minimum principal amount of $1,000,000 or a whole multiple of $500,000 in excess
thereof; and (iv) any prepayment of Base Rate 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 Loans to be prepaid and, if Eurocurrency 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 ratable portion of such prepayment
(based on such Lender’s Applicable Percentage in respect of the relevant Facility). If such notice
is given by the Company, the applicable Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein. Any prepayment of
a Eurocurrency Rate Loan shall be accompanied by all accrued
interest on the amount prepaid, together with any additional amounts required pursuant to
Section 3.05. Each prepayment of the outstanding Term Loans pursuant to this
Section 2.05(a) shall be applied to the principal repayment installments thereof on a
pro-rata basis, and each such prepayment shall be paid to the Term Lenders in accordance with their
respective Applicable Percentages in respect of the Term Facility. Each prepayment of outstanding
Revolving Credit Loans shall be applied to the Revolving Credit Lenders in accordance with their
respective Applicable Percentages in respect of the Revolving Credit Facility.


 


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(b) The Company 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 Company, the
Company shall make such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein.



(c) If the Administrative Agent notifies the Company at any time that the Outstanding Amount
under the Revolving Credit Facility at such time exceeds an amount equal to 105% of all Revolving
Credit Commitments then in effect, then, within two Business Days after receipt of such notice, the
Borrowers shall prepay Revolving Credit Loans and/or the Company shall Cash Collateralize the L/C
Obligations in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of
payment to an amount not to exceed 100% of the Revolving Credit Commitments then in effect;
provided that, subject to the provisions of Section 2.03(g)(ii), the Company 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 Revolving Credit Loans the Total Revolving Credit
Outstandings exceed the Revolving Credit Commitments then in effect. The Administrative Agent may,
at any time and from time to time after the initial deposit of such cash collateral, request that
additional cash collateral be provided in order to protect against the results of further exchange
rate fluctuations.




2.06 Termination or Reduction of Commitments.



(a) Optional. The Company may, upon notice to the Administrative Agent, terminate the
Revolving Credit Facility, the Letter of Credit Sublimit or the Swing Line Sublimit, or from time
to time permanently reduce the Revolving Credit Facility, the Letter of Credit Sublimit or the
Swing Line Sublimit; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof and (iii) the Company shall not terminate or reduce
(A) the Revolving Credit Facility if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Revolving Credit Outstandings would exceed the Revolving Credit Facility,
(B) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C
Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, or
(C) the Swing Line Sublimit if, after giving effect thereto and to any concurrent prepayments
hereunder, the Outstanding Amount of Swing Line Loans would exceed the Swing Line Sublimit.


 


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(b) Mandatory:




(i) The Term Commitments shall be automatically and permanently reduced to zero on the
date of the Term Borrowing.




(ii) If, after giving effect to any reduction of the Revolving Credit Commitments, the
Letter of Credit Sublimit or the Swing Line Sublimit exceeds the Revolving Credit Facility
at such time, the Letter of Credit Sublimit or the Swing Line Sublimit, as the case may be,
shall be automatically reduced by the amount of such excess.



(c) Application of Commitment Reductions; Payment of Fees. The Administrative Agent
will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit,
Swing Line Sublimit or the Revolving Credit Commitment under this Section 2.06. Upon any
reduction of the Revolving Credit Commitments, the Revolving Credit Commitment of each Revolving
Credit Lender shall be reduced by such Lender’s Applicable Percentage of such reduction amount.
All fees in respect of the Revolving Credit Facility accrued and unpaid until the effective date of
any termination of the Revolving Credit Facility shall be paid on the effective date of such
termination.




2.07 Repayment of Loans.



(a) Term Loans. The Borrowers shall repay to the Term Lenders the aggregate principal
amount of all Term Loans outstanding on the following dates in the respective amounts set forth
opposite such dates (which amounts shall be reduced as a result of the application of prepayments
in accordance with the order of priority set forth in Section 2.05):



	 	 	 	 	 
	Date	 	Amount
	August 31, 2010
	 	$	5,000,000
	August 31, 2011
	 	$	5,000,000
	August 31, 2012
	 	$	5,000,000
	Maturity Date for Term Loans
	 	$	35,000,000






provided that the final principal repayment installment of the Term Loans shall be repaid
on the Maturity Date for the Term Facility and in any event shall be in an amount equal to the
aggregate principal amount of all Term Loans outstanding on such date.



(b) Revolving Credit Loans. The Borrowers shall repay to the Revolving Credit Lenders
on the Maturity Date for the Revolving Credit Facility the aggregate principal amount of all
Revolving Credit Loans outstanding on such date.



(c) Swing Line Loans. The Company shall repay each Swing Line Loan on the earlier to
occur of (i) the date ten Business Days after such Loan is made and (ii) the Maturity Date for the
Revolving Credit Facility.


 


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2.08 Interest. (a) Subject to the provisions of Section 2.08(b) below, (i) each
Eurocurrency Rate Loan under a Facility shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurocurrency Rate for such
Interest Period plus the Applicable Rate plus (in the case of a Eurocurrency Rate
Loan of any Lender which is lent from a Lending Office in the United Kingdom or a Participating
Member State) the Mandatory Cost; (ii) each Base Rate 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 for Base Rate Loans.



(b) (i) If any amount of principal of any Loan is not paid when due (after taking into account
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 any Borrower under any
Loan Document is not paid when due (after taking into account 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, upon the occurrence and during the
continuance of an Event of Default, the 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.


 


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



(a) Commitment Fee. The Company shall pay to the Administrative Agent for the account
of each Revolving Credit Lender in accordance with its Applicable Percentage, a commitment fee in
Dollars equal to the Applicable Rate times the actual daily amount by which the Revolving
Credit Facility exceeds the sum of (i) the Outstanding Amount of Revolving Credit Loans and
(ii) the Outstanding Amount of L/C Obligations. The commitment fee shall accrue at all times
during the Availability Period, including at any time during which one or
more of the conditions in Article IV is not met, and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Closing Date, and on the last day of the
Availability Period. The commitment fee shall be calculated quarterly in arrears, and if there is
any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.



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



2.10 Computation of Interest and Fees. (a) All computations of interest for Base Rate Loans
shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable, being paid than if
computed on the basis of a 365-day year) or, in the case of interest in respect of Loans
denominated in Alternative Currencies as to which market practice differs from the foregoing, in
accordance with such market practice. 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 Company or for any other reason, the Company or the Lenders determine that (i) the Consolidated
Leverage Ratio as calculated by the Company as of any applicable date was inaccurate and (ii) a
proper calculation of the Consolidated Leverage Ratio as of such date would have resulted in higher
pricing for such period, the Company shall be obligated to pay to the Administrative Agent for the
account of the applicable Lenders or L/C Issuer, as the case may be, promptly on demand by the
Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief
with respect to the Borrower under the Bankruptcy Code of the United States, automatically and
without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal
to the excess of the amount of interest and fees that should have been paid for such period over
the amount of interest and fees actually paid for such period. This paragraph shall not limit the
rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under
Section 2.03(c)(iii), 2.03(i) or 2.08(b) or under Article VIII.
The Company’s obligations under this paragraph shall survive for a period of two years following
the termination of the Aggregate Commitments and the repayment of all other Obligations (other than
(i) contingent indemnification obligations, (ii) obligations and liabilities under Secured Cash
Management Agreements and Secured Hedge Agreements and, (iii) to the extent Cash Collateralized,
L/C Obligations).


 


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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 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 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 to a Borrower made through the Administrative Agent, such Borrower
shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall
evidence such Lender’s Loans to such Borrower in addition to such accounts or records. Each Lender
may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount,
currency and maturity of its Loans and payments with respect thereto.



(b) In addition to the accounts and records referred to in Section 2.11(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 Borrowers shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein and except with respect to principal of and interest on Loans denominated in an
Alternative Currency, all payments by the Borrowers hereunder shall be made to the Administrative
Agent, for the account of the respective Lenders to which such payment is owed, at the applicable
Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date
specified herein. Except as otherwise expressly provided herein, all payments by the Borrowers
hereunder with respect to principal and interest on Loans denominated in an Alternative Currency
shall be made to the Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the applicable Administrative Agent’s Office in such Alternative Currency and
in Same Day Funds not later than the Applicable Time specified by the Administrative Agent on the
dates specified herein. Without limiting the generality of the foregoing, the Administrative Agent
may require that any payments due under this Agreement be made in the United States. If, for any
reason, any Borrower is prohibited by any Law from making any required payment hereunder in an
Alternative Currency, such Borrower shall make such payment in Dollars in the Dollar Equivalent of
the Alternative Currency payment amount. The Administrative Agent will promptly distribute to each
Lender its Applicable Percentage in respect of the relevant Facility (or other applicable share as
provided herein) of such payment in like funds as received by wire transfer to such Lender’s
Lending Office. All payments received by the Administrative Agent (i) after 2:00 p.m., in the case
of payments in Dollars, or (ii) after the Applicable Time specified by the Administrative Agent in
the case of payments in an Alternative Currency, shall in each case be deemed received on the next
succeeding Business Day and any applicable interest or fee
shall continue to accrue. If any payment to be made by any Borrower shall come due on a day
other than a Business Day, payment shall be made on the next following Business Day, and such
extension of time shall be reflected in computing interest or fees, as the case may be.


 


53









 





(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
Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to
12:00 noon on the date of such Borrowing) that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in accordance with Section 2.02
(or, in the case of a 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 applicable Borrower a corresponding amount. In such event, if a
Lender has not in fact made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with interest
thereon, for each day from and including the date such amount is made available to such Borrower to
but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to
be made by such Lender, the Overnight Rate, plus any administrative, processing or similar fees
customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the
case of a payment to be made by such Borrower, the interest rate applicable to the Borrowing. If
such Borrower and such Lender shall pay such interest to the Administrative Agent for the same or
an overlapping period, the Administrative Agent shall promptly remit to such Borrower the amount of
such interest paid by such Borrower for such period. If such Lender pays its share of the
applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such
Lender’s Loan included in such Borrowing. Any payment by such Borrower shall be without prejudice
to any claim such Borrower may have against a Lender that shall have failed to make such payment to
the Administrative Agent.




(ii) Payments by Borrowers; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders or the L/C
Issuer hereunder that such Borrower will not make such payment, the Administrative Agent may
assume that such Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Appropriate Lenders or the L/C Issuer,
as the case may be, the amount due. In such event, if such Borrower has not in fact made
such payment, then each of the Appropriate Lenders or the L/C Issuer, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or the L/C Issuer, in Same Day Funds with interest thereon, for
each day from and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the Overnight Rate. Any such payment by any
Lender or the L/C Issuer shall be without prejudice to any claim it may have against any
Borrower for failure to make such payment.


 


54









 





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



(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender to any Borrower as provided in
the foregoing provisions of this Article II, and such funds are not made available to such
Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set
forth in Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall promptly 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
Term Loans and Revolving Credit Loans, to fund participations in Letters of Credit and Swing Line
Loans and to make payments pursuant to Section 10.05(c) are several and not joint. The
failure of any Lender to make any Loan, to fund any such participation or to make any payment under
Section 10.05(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 Loan, to purchase its participation or to make its payment under
Section 10.05(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.



(f) Insufficient Funds. If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first, toward payment
of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of interest and fees then due to such parties, and (ii) second, toward
payment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties.



(g) Use of Foreign Lending Officers. Each Lender may, at its option, make any Loan
available to any Designated Borrower that is a wholly-owned Foreign Subsidiary of the Company by
causing any foreign or domestic branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of such
Designated Borrower to repay such Loan in accordance with the terms of this Agreement.


 


55









 





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 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 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
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 Loans and other amounts owing them; provided that:




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




(ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by a Borrower pursuant to and in accordance with the express terms of this Agreement or
(y) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or subparticipations in L/C Obligations or Swing Line
Loans to any assignee or participant, other than to the Company or any Subsidiary thereof
(as to which the provisions of this Section shall apply).



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



2.14 Designated Borrowers. (a) The Company may at any time, upon not less than 15 Business
Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed
by the Administrative Agent in its sole discretion), designate any additional wholly-owned Foreign
Subsidiary or Domestic Subsidiary of the Company (an “Applicant Borrower”) as a Designated
Borrower to receive Loans hereunder by delivering to the Administrative Agent (which shall promptly
deliver counterparts thereof to each Lender) a duly executed notice and agreement in substantially
the form of Exhibit H (a “Designated Borrower Request and Assumption Agreement”).
The parties hereto acknowledge and agree that prior to any Applicant Borrower becoming entitled to
utilize the credit facilities provided for herein the Administrative Agent and the Lenders shall
have received a duly executed Company Guaranty and such supporting resolutions, incumbency
certificates, opinions of counsel and other documents or information, in form, content and scope
reasonably satisfactory to the Administrative Agent, as may be reasonably required by the
Administrative Agent or the Required Lenders in their sole discretion, and Notes signed by such new
Borrowers to the extent any Lenders so require. Promptly following receipt of all such requested
resolutions, incumbency certificates, opinions of counsel and other documents or information (and
the consent of the Administrative Agent and the Required Lenders if the Applicant Borrower is not a
Subsidiary Guarantor), the Administrative Agent shall send a notice in substantially the form of
Exhibit I (a “Designated Borrower Notice”) to the Company and the Lenders
specifying the effective date upon which the Applicant Borrower shall constitute a Designated
Borrower for purposes hereof, whereupon each of the Lenders agrees to permit such Designated
Borrower to receive Loans hereunder, on the terms and conditions set forth herein, and each of the
parties agrees that such Designated Borrower otherwise shall be a Borrower for all purposes of this
Agreement; provided that no Loan Notice or Letter of Credit Application may be submitted by
or on behalf of such Designated Borrower until the date five Business Days after such effective
date.


 


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(b) The Obligations of the Company and each Designated Borrower that is a Domestic Subsidiary
shall be joint and several in nature. The Obligations of all Designated Borrowers that are Foreign
Subsidiaries shall be several in nature.



(c) Each Subsidiary of the Company that is or becomes a “Designated Borrower” pursuant to this
Section 2.14 hereby irrevocably appoints the Company as its agent for all purposes relevant
to this Agreement and each of the other Loan Documents, including (i) the giving and receipt of
notices, (ii) the execution and delivery of all documents, instruments and certificates
contemplated herein and all modifications hereto, and (iii) the receipt of the proceeds of any
Loans made by the Lenders, to any such Designated Borrower hereunder. Any acknowledgment, consent,
direction, certification or other action which might otherwise be valid or effective only if given
or taken by all Borrowers, or by each Borrower acting singly, shall be valid and effective if given
or taken only by the Company, whether or not any such other Borrower joins therein. Any notice,
demand, consent, acknowledgement, direction, certification or other communication delivered to the
Company in accordance with the terms of this Agreement shall be deemed to have been delivered to
each Designated Borrower.



(d) The Company may from time to time, upon not less than 15 Business Days’ notice from the
Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative
Agent in its sole discretion), terminate a Designated Borrower’s status as such; provided
that there are no outstanding Loans payable by such Designated Borrower, or other amounts payable
by such Designated Borrower on account of any Loans made to it, as of the effective date of such
termination. The Administrative Agent will promptly notify the Lenders of any such termination of a
Designated Borrower’s status.




2.15 Extension of Maturity Date in respect of Revolving Credit Facility.



(a) Requests for Extension. The Company may, by notice to the Administrative Agent
(who shall promptly, and in any event within 5 Business Days, notify the Lenders) not earlier than
60 days and not later than 30 days prior to each of the first two anniversaries of the Original
Closing Date, request that each Revolving Credit Lender extend such Revolving Credit Lender’s
Maturity Date in respect of the Revolving Credit Facility for an additional one year from the
Maturity Date then in effect (the “Existing Maturity Date”).



(b) Lender Elections to Extend. Each Revolving Credit Lender, acting in its sole and
individual discretion, shall, by notice to the Administrative Agent given not later than 20 days
following the date on which the Administrative Agent notifies such Revolving Credit Lender of the
Company’s request for an extension (the “Lender Notice Date”), advise the Administrative
Agent whether or not such Revolving Credit Lender agrees to such extension (and each Revolving
Credit Lender that determines not to so extend its Maturity Date (a “Non-Extending Lender”)
shall notify the Administrative Agent of such fact promptly after such determination (but in any
event no later than the Lender Notice Date)) and any Revolving Credit Lender that does not so
advise the Administrative Agent on or before the Lender Notice Date
shall be deemed to be a Non-Extending Lender. The election of any Revolving Credit Lender to
agree to such extension shall not obligate any other Revolving Credit Lender to so agree.


 


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(c) Notification by Administrative Agent. The Administrative Agent shall notify the
Company of each Revolving Credit Lender’s determination under this Section no later than the date 5
Business Days after the Lender Notice Date (or, if such date is not a Business Day, on the next
preceding Business Day).



(d) Additional Commitment Lenders. The Company shall have the right on or before the
Existing Maturity Date to replace each Non-Extending Lender with, and add as “Revolving Credit
Lenders” under this Agreement in place thereof, one or more Eligible Assignees (each, an
“Additional Commitment Lender”) as provided in Section 10.14, each of which
Additional Commitment Lenders shall have entered into an Assignment and Assumption pursuant to
which such Additional Commitment Lender shall, effective as of the Existing Maturity Date,
undertake a Revolving Credit Commitment (and, if any such Additional Commitment Lender is already a
Revolving Credit Lender, its Revolving Credit Commitment shall be in addition to any other
Revolving Credit Commitment of such Lender hereunder on such date).



(e) Minimum Extension Requirement. If (and only if) the total of the Revolving Credit
Commitments of the Revolving Credit Lenders that have agreed so to extend their Maturity Date
(each, an “Extending Lender”) and the additional Revolving Credit Commitments of the
Additional Commitment Lenders shall be more than 50% of the aggregate amount of the Revolving
Credit Commitments in effect immediately prior to the Existing Maturity Date, then the Maturity
Date in respect of the Revolving Credit Facility of each Extending Lender and of each Additional
Commitment Lender shall be extended to the date falling one year after the Existing Maturity Date
(except that, if such date is not a Business Day, such Maturity Date as so extended shall be the
next preceding Business Day) and each Additional Commitment Lender shall thereupon become a
“Revolving Credit Lender” for all purposes of this Agreement.



(f) Conditions to Effectiveness of Extensions. Notwithstanding the foregoing, the
extension of the Maturity Date pursuant to this Section shall not be effective with respect to any
Lender unless:




(i) no Default shall have occurred and be continuing on the date of such extension and
after giving effect thereto;




(ii) the representations and warranties contained in this Agreement are true and
correct in all material respects on and as of the date of such extension and after giving
effect thereto (other than representations and warranties qualified by materiality, which
shall be true and correct in all respects), as though made on and as of such date (or, if
any such representation or warranty is expressly stated to have been made as of a specific
date, as of such specific date); and




(iii) on the Existing Maturity Date of each Non-Extending Lender, the Borrowers shall
prepay any Revolving Credit Loans outstanding on such date (and pay
any additional amounts required pursuant to Section 3.05) to the extent
necessary to keep outstanding Revolving Credit Loans ratable with any revised Applicable
Percentages of the respective Lenders effective as of such date.



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




 


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2.16 Increase in Revolving Credit Facility and Term Loan Facility.



(a) Request for Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Revolving Credit Lenders or the Term Lenders,
as applicable), the Company may from time to time request either (x) an increase in the Revolving
Credit Facility and/or (y) that the Term Lenders make an incremental term loan (an “Incremental
Term Loan”), provided that (i) the total aggregate principal amount of any and all such
requests shall not exceed $250,000,000, (ii) any such request for an increase in the Revolving
Credit Facility or the making of an Incremental Term Loan shall be in a minimum amount of
$25,000,000, and (iii) the Company may make a maximum of five such requests (for all such combined
requests). At the time of sending such notice, the Company (in consultation with the
Administrative Agent) shall specify the time period (the “Election Period”) within which
each Revolving Credit Lender or each Term Lender, as applicable, 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
Revolving Credit Lenders or the Term Lenders, as applicable).



(b) Additional Requirements for Incremental Term Loans. In addition to the
requirements set forth in clause (a) above, no Incremental Term Loan shall have (i) an
average life to maturity that is shorter than the average life to maturity of the existing Term
Loans or (ii) a maturity date that is prior to the Maturity Date for the existing Term Loans;
provided that if the pricing (including margins and original issue discounts and fees) of
the Incremental Term Loans is greater than the pricing (after taking into account margins and
original issue discounts and fees) of the existing Term Loans, then, the pricing of the existing
Term Loans shall be increased to effectively equal the pricing of the Incremental Term Loans. The
Company and the Administrative Agent further agree to make (and the Lenders hereby approve)
conforming amendments to the provisions of this Agreement relevant to the Term Loans necessary to
reflect the terms of such Incremental Term Loans agreed to in accordance with this Section.



(c) Lender Elections to Increase. Each Revolving Credit Lender and each Term Lender,
as applicable, in its sole discretion shall notify the Administrative Agent within the Election
Period whether or not it agrees to increase its Revolving Credit Commitment or make an Incremental
Term Loan and, if so, whether by an amount equal to, greater than, or less than its Applicable
Percentage of such request to increase the Revolving Credit Facility or make an Incremental Term
Loan. Any Revolving Credit Lender or Term Lender, as applicable, not responding within the
Election Period shall be deemed to have declined to increase its Revolving Credit Commitment or
make an Incremental Term Loan.



(d) Notification by Administrative Agent; Additional Revolving Credit Lenders. The
Administrative Agent shall notify the Company and each Revolving Credit Lender or Term Lender, as
applicable, of the Revolving Credit Lenders’ or the Term Lenders’ responses to each request made
hereunder. To achieve the full amount of a requested increase and subject to the approval (not to
be unreasonably withheld) of the Administrative Agent and in the case of the Revolving Credit
Facility, the L/C Issuer and the Swing Line Lender (which approvals shall not be unreasonably
withheld), at any time following the end of the Election Period, the Company may also invite
additional Eligible Assignees to become Revolving Credit Lenders or Term Lenders, as applicable,
pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative
Agent and its counsel (with any such Person consented to by
the Administrative Agent (and the L/C Issuer and the Swing Line Lender in the case of the
Revolving Credit Facility) automatically becoming a Lender hereunder).


 


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(e) Effective Date and Allocations. If the Revolving Credit Facility is increased or
an Incremental Term Loan is made in accordance with this Section, the Administrative Agent and the
Company shall determine the effective date (the “Increase Effective Date”) and the final
allocation of such increase. The Administrative Agent shall promptly notify the Company and the
Revolving Credit Lenders or the Term Lenders, as applicable, of the final allocation of such
increase and the Increase Effective Date.



(f) Conditions to Effectiveness of Increase. As a condition precedent to an increase
in the Revolving Credit Facility or the making of an Incremental Term Loan, the Company shall
deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase
Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan
Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or
consenting to such increase in the Revolving Credit Facility or making of an Incremental Term Loan,
and (ii) in the case of the Company, certifying that, before and after giving effect to such
increase in the Revolving Credit Facility or making of an Incremental Term Loan, (A) the
representations and warranties contained in Article V and the other Loan Documents are true
and correct in all material respects (other than representations and warranties qualified by
materiality, which 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 (other than
representations and warranties qualified by materiality, which shall be true and correct in all
respects) as of such earlier date, and except that for purposes of this Section 2.16, 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 exists
and (C) the Company is in pro forma compliance with the Consolidated Leverage Ratio
covenant set forth in Section 7.11(b). With respect to an increase in the Revolving Credit
Facility, the Borrowers shall prepay any Revolving Credit Loans outstanding on the applicable
Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05)
to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised
Applicable Percentages arising from any nonratable increase in the Revolving Credit Commitments
under this Section.



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


 


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ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




3.01 Taxes.



(a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the respective Borrowers hereunder or under any other Loan Document shall be made free and clear
of and without reduction or withholding for any Indemnified Taxes or Other Taxes; provided
that if the applicable Borrower shall be required by applicable law to deduct any
Indemnified Taxes (or any Other Taxes) from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative Agent, any Lender or
the L/C Issuer, as the case may be, receives an amount equal to the sum it would have received had
no such deductions been made, (ii) such Borrower shall make such deductions and (iii) such Borrower
shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with
applicable law.



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



(c) Indemnification by the Borrowers. Each Borrower shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, 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) 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. A certificate as to the amount of such payment or liability delivered to a
Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be
conclusive absent manifest error.



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



(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which a Borrower is resident for
tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Company (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Company or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if requested by the Company or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Company or the Administrative Agent as will enable the Company or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements.


 


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Without limiting the generality of the foregoing, in the event that any Borrower is resident
for tax purposes in the United States, each Foreign Lender shall deliver to Company 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 Company or the Administrative Agent, but only if
such Foreign Lender is then legally entitled to do so), whichever of the following is applicable:




(i) duly and properly completed and executed original copies of Internal Revenue
Service Form W-8BEN (or any successor form) claiming eligibility for benefits of an income
tax treaty to which the United States is a party,




(ii) duly and properly completed and executed original copies of Internal Revenue
Service Form W-8ECI (or any successor form),




(iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that
such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (B) a “10 percent shareholder” of the applicable Borrower within the meaning of
section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in
section 881(c)(3)(C) of the Code and (y) duly and properly completed and executed original
copies of Internal Revenue Service Form W-8BEN (or any successor form), or




(iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law to permit the Company to
determine the withholding or deduction required to be made.



Without limiting the obligations of the Lenders set forth above regarding delivery of certain
forms and documents to establish each Lender’s status for U.S. withholding tax purposes, each
Lender agrees promptly to deliver to the Administrative Agent or the Company, as the Administrative
Agent or the Company shall reasonably request, on or prior to the Closing Date, and in a timely
fashion thereafter, such other documents and forms required by any relevant taxing authorities
under the Laws of any other jurisdiction, duly executed and completed by such Lender, as are
required under such Laws to confirm or continue such Lender’s entitlement to any available
exemption from, or reduction of, applicable withholding taxes in respect of all payments to be made
to such Lender outside of the U.S. by the Borrowers pursuant to this Agreement or otherwise to
establish such Lender’s status or continued status for withholding tax purposes in such other
jurisdiction. Each Lender shall promptly (i) notify the Administrative Agent of any change in
circumstances which would modify or render invalid any such claimed exemption or reduction, and
(ii) 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 such jurisdiction that any Borrower make
any deduction or withholding for taxes from amounts payable to such Lender. Additionally, each of
the Borrowers shall promptly deliver to the Administrative Agent or any Lender, as the
Administrative Agent or such Lender shall reasonably request, on or prior to the Closing Date, and
in a timely fashion thereafter, such documents and forms required by any relevant taxing
authorities under the Laws of any jurisdiction, duly executed and completed by such Borrower, as
are required to be furnished by
such Lender or the Administrative Agent under such Laws in connection with any payment by the
Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in connection with the
Loan Documents, with respect to such jurisdiction.


 


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(f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or the L/C
Issuer determines, in its sole discretion exercised in good faith, that it has received a refund
of, or that it has been able to offset its liability for Taxes with a credit attributable to such
Taxes paid (a “utilized credit”) for any Taxes or Other Taxes as to which it has been
indemnified by any Borrower or with respect to which any Borrower has paid additional amounts
pursuant to this Section, it shall promptly after the date of such determination pay to such
Borrower an amount equal to such refund or utilized credit (but only to the extent of indemnity
payments made, or additional amounts paid, by such Borrower under this Section with respect to the
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of 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 each Borrower, upon the request of the Administrative Agent, such Lender or
the L/C Issuer, agrees to repay the amount paid over to such Borrower (plus any penalties, interest
or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such
Lender or the L/C Issuer in the event the Administrative Agent, such Lender or the L/C Issuer is
required to repay such refund or utilized credit 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 any Borrower or any other Person.



3.02 Illegality. If any Lender determines in good faith 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 Eurocurrency Rate Loans (whether denominated in Dollars or
an Alternative Currency), or to determine or charge interest rates based upon the Eurocurrency
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 or any Alternative Currency in the
applicable interbank market, then, on notice thereof by such Lender to the Company through the
Administrative Agent, any obligation of such Lender to make or continue Eurocurrency Rate Loans in
the affected currency or currencies or, in the case of Eurocurrency Rate Loans in Dollars, to
convert Base Rate Loans to Eurocurrency Rate Loans, shall be suspended until such Lender notifies
the Administrative Agent and the Company that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, the Borrowers shall, upon written demand from such
Lender (with a copy to the Administrative Agent), prepay or, if applicable and such Loans are
denominated in Dollars, convert all such Eurocurrency 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 Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such Eurocurrency Rate Loans. Upon any such prepayment or conversion, the
Borrowers shall also pay accrued interest on the amount so prepaid or converted.


 


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3.03 Inability to Determine Rates. If the Required Lenders determine in good faith that for
any reason in connection with any request for a Eurocurrency Rate Loan or a conversion to or
continuation thereof that (i) deposits (whether in Dollars or an Alternative Currency) are
not being offered to banks in the applicable offshore interbank market for such currency for
the applicable amount and Interest Period of such Eurocurrency Rate Loan, (ii) adequate and
reasonable means do not exist for determining the Eurocurrency Rate for any requested Interest
Period with respect to a proposed Eurocurrency Rate Loan (whether denominated in Dollars or an
Alternative Currency), or (iii) the Eurocurrency Rate for any requested Interest Period with
respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost to
such Lenders of funding such Eurocurrency Rate Loan, the Administrative Agent will promptly so
notify the Company and each Lender. Within a reasonable time thereafter, the obligation of the
Lenders to make or maintain Eurocurrency Rate Loans in the affected currency or currencies shall be
suspended until the Administrative Agent reasonably believes that such circumstances no longer
exist. Upon receipt of such notice, the Company may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans in the affected currency or currencies or,
failing that, will be deemed to have converted such request into a request for a 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 (A) any reserve requirement
reflected in the Eurocurrency Rate and (B) the requirements of the Bank of England and the
Financial Services Authority or the European Central Bank reflected in the Mandatory Cost,
other than as set forth below) 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 Eurocurrency Rate Loan made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender or the L/C Issuer);




(iii) result in the failure of the Mandatory Cost, as calculated hereunder, to
represent the cost to any Lender of complying with the requirements of the Bank of England
and/or the Financial Services Authority or the European Central Bank in relation to its
making, funding or maintaining Eurocurrency Rate Loans; or




(iv) impose on any Lender or the L/C Issuer any other material condition, cost or
expense affecting this Agreement or Eurocurrency Rate Loans made by such Lender or any
Letter of Credit or participation therein;


 


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and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency 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 Company will pay (or cause the applicable Designated Borrower to
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 Company will pay (or cause the applicable
Designated Borrower to 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 Company shall be conclusive absent manifest error. The Company shall
pay (or cause the applicable Designated Borrower to 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 no Borrower shall be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than six months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies
the Company 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).


 


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(e) Additional Reserve Requirements. The Company shall pay (or cause the applicable
Designated Borrower to pay) to each Lender, as long as such Lender shall be required to comply with
any reserve ratio requirement or analogous requirement of any central banking or financial
regulatory authority imposed after the date hereof in respect of the maintenance of the Commitments
or the funding of the Eurocurrency Rate Loans, such additional costs (expressed as a percentage per
annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual
costs allocated to such Commitment or Loan by such Lender (as determined
by such Lender in good faith, which determination shall be conclusive absent manifest error),
which shall be due and payable on each date on which interest is payable on such Loan;
provided the Company shall have received at least 10 days’ prior notice (with a copy to the
Administrative Agent) of such additional costs from such Lender. If a Lender fails to give notice
10 days prior to the relevant Interest Payment Date, such additional costs shall be due and payable
10 days from receipt of such notice.



3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative
Agent) from time to time, the Company shall promptly compensate (or cause the applicable Designated
Borrower to 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 any Borrower (for a reason other than the failure of such Lender to make a
Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in
the amount notified by the Company or the applicable Designated Borrower;



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



(d) any assignment of a Eurocurrency Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Company pursuant to Section 10.14;



including any loss or expense incurred from the liquidation or reemployment of funds obtained by it
to maintain such Loan, from fees payable to terminate the deposits from which such funds were
obtained or from the performance of any foreign exchange contract. The Company shall also pay (or
cause the applicable Designated Borrower to pay) any customary and reasonable administrative fees
charged by such Lender in connection with the foregoing.




For purposes of calculating amounts payable by the Company (or the applicable Designated Borrower)
to any Lender under this Section 3.05, such calculation shall, if applicable, include any
losses to such Lender resulting from such Lender having funded a Eurocurrency Rate Loan made by it
at the Eurocurrency Rate for such Loan by making a matching deposit or other borrowing in the
offshore interbank market for such currency for a comparable amount and for a comparable period. A
certificate of any Lender setting forth the amount or amounts necessary to compensate such Lender
as specified in this Section shall be conclusive absent manifest error.



 


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3.06 Mitigation Obligations; Replacement of Lenders.



(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or any Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such
Lender shall use all commercially 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 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 to any cost or expense and would not otherwise be
disadvantageous to such Lender. The Company hereby agrees to pay (or to cause the applicable
Designated Borrower to pay) all reasonable costs and expenses incurred by any Lender in connection
with any such designation or assignment.



(b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if any Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 3.01, the
Company may replace such Lender in accordance with Section 10.14.



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



ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




4.01 Conditions of Effectiveness of this Agreement and Term Loan Borrowing. The effectiveness
of this Agreement and the obligation of the Lenders to make the Term Loans on the Closing Date are
subject to the satisfaction (or waiver by the Administrative Agent), immediately prior to or
concurrently with the amendment and restatement of the Existing Credit Agreement or the making of
such Term Loans, of the following conditions precedent, in addition to the conditions precedent set
forth in Section 4.02:



(a) The Administrative Agent’s receipt of the following, each of which shall be originals,
telecopies or images in “portable document format” delivered by e-mail (followed promptly by
originals) unless otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental
officials, a recent date before the Closing Date) and each in form and substance reasonably
satisfactory to the Administrative Agent and each of the Lenders:


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




(ii) Notes executed by the Borrowers in favor of each Lender requesting Notes;



 


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(iii) a pledge agreement, in substantially the form of Exhibit J (together with
each other pledge agreement supplement delivered pursuant to Section 6.13, in each
case as amended, the “U.S. Pledge Agreement”), duly executed by the Company and each
Loan Party required to be signatory thereto, together with:




(A) certificates representing the Pledged Equity referred to therein
accompanied by undated stock powers executed in blank,




(B) proper UCC-1 financing statements in form appropriate for filing under the
UCC of all jurisdictions that the Administrative Agent may reasonably deem necessary
or desirable in order to perfect the Liens created under the U.S. Pledge Agreement,
covering the Collateral described in the U.S. Pledge Agreement,




(C) a listing of the financing statements referred to in clause (B)
above and all other effective financing statements filed in the jurisdictions
referred to in clause (B) above that name any Loan Party as debtor, together with
copies of such other financing statements,




(D) evidence of the completion of all other actions, recordings and filings of
or with respect to the U.S. Pledge Agreement that the Administrative Agent may
reasonably deem necessary or desirable in order to perfect the Liens created
thereby, and




(E) evidence that all other action that the Administrative Agent may reasonably
deem necessary or desirable in order to perfect the Liens created under the U.S.
Pledge Agreement has been taken;




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




(v) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed, and that each Loan
Party 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;


 


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(vi) a favorable opinion of (A) Dechert LLP, counsel to the Loan Parties and (B) Baker
& McKenzie LLP, California counsel to the Loan Parties, in each case addressed to the
Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the
Loan Documents as the Required Lenders may reasonably request;




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




(viii) a certificate signed by a Responsible Officer of the Company certifying (A) that
the conditions specified in Sections 4.02(a) and (b) have been satisfied,
and (B) that there has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either individually or in
the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage
Ratio as of the last day of the fiscal quarter of the Company most recently ended prior to
the Closing Date; and




(ix) such other assurances, certificates, documents or consents 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 Company shall have paid all fees, charges
and disbursements of counsel (including, to the extent reasonably required, foreign and local
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 amounts of such
fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges
and disbursements incurred or to be incurred by it through the closing proceedings (provided that
such estimate shall not thereafter preclude a final settling of accounts between the Company and
the Administrative Agent).



(d) The Closing Date shall have occurred on or before September 30, 2009.



Without limiting the generality of the provisions 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.


 


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



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



(b) No Default shall exist, or would result from such proposed Credit Extension or 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.



(d) If the applicable Borrower is a Designated Borrower, then the conditions of
Section 2.14 to the designation of such Borrower as a Designated Borrower shall have been
met to the reasonable satisfaction of the Administrative Agent.



(e) In the case of a Credit Extension to be denominated in an Alternative Currency, there
shall not have occurred any change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which in the reasonable opinion of the
Administrative Agent, the Required Revolving Lenders (in the case of any Revolving Credit Loans to
be denominated in an Alternative Currency) or the L/C Issuer (in the case of any Letter of Credit
to be denominated in an Alternative Currency) would make it impracticable for such Credit Extension
to be denominated in the relevant Alternative Currency.



Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of
Loans to the other Type or a continuation of Eurocurrency Rate Loans) submitted by the Company
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.


 


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ARTICLE V.

REPRESENTATIONS AND WARRANTIES




Except as otherwise provided in Section 5.19, each Borrower represents and warrants to
the Administrative Agent and the Lenders that:



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



5.02 Authorization; No Conflict. The execution, delivery and performance by each Loan Party
of each Loan Document to which such Person is party, have been duly authorized by
all necessary corporate or other organizational action, and do not and will not (a) conflict
with the terms of any of such Person’s Organization Documents; (b) conflict with or result in any
breach of, or the creation of any Lien (other than a Permitted Lien) under, or require any payment
to be made under (i) any Contractual Obligation to which such Person is a party or affecting such
Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction,
writ or decree of any Governmental Authority or any arbitral award to which such Person or its
property is subject; or (c) violate any Law, except in each case referred to in clause (b) and (c),
to the extent that such conflict, breach, creation, payment or violation could not reasonably be
expected to have a Material Adverse Effect.



5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with (a) the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, (b) the
grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, or (c) the
perfection or maintenance of the Liens created under the Collateral Documents (including the first
priority nature thereof), except for (i) such approvals, consents, exemptions, authorizations,
actions, notices or filings that the failure to obtain could not reasonably be in expected to have
a Material Adverse Effect and (ii) the filings relating to the perfection or maintenance of
security interests under the Collateral Documents or under the Law of any foreign jurisdiction.



5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms subject to the effect of any applicable bankruptcy,
moratorium, insolvency, reorganization or other similar laws affecting the enforceability of
creditors rights generally and to the effect of general principles of equity which may limit the
availability of equitable remedies (whether in a proceeding at law or in equity).


 


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5.05 Financial Statements; No Material Adverse Effect. (a) The Audited Financial Statements
(i) were prepared in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; (ii) fairly present in all material respects
the financial condition of the Company 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 Company and its
Subsidiaries as of the date thereof which would be required to be disclosed by GAAP, including
liabilities for taxes, material commitments and Indebtedness.



(b) The unaudited consolidated balance sheets of the Company and its Subsidiaries dated June
30, 2009, and the related consolidated statements of income or operations, shareholders’ equity and
cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present in all material respects the financial condition of the Company
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.



(d) The consolidated forecasted balance sheet and statements of income and cash flows of the
Company and its Subsidiaries delivered pursuant to Section 6.01(c) were prepared in good
faith on the basis of the assumptions stated therein, which assumptions were reasonable in light of
the conditions existing at the time of delivery of such forecasts, and represented, at the time of
delivery, the Company’s good faith estimate of its future financial condition and performance (it
being recognized by the Agent and the Lenders that such projections as to future events are not
viewed as facts and that actual results during the period or periods covered thereby may differ
from projected results).



5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to
the knowledge of the Company, threatened, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Company or any of its Subsidiaries or against any of
their properties or revenues that (a) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby, or (b) either individually or in the
aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect.



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



 


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



5.09 Environmental Compliance. The Company and its Subsidiaries conduct in the ordinary
course of business a review of the effect of existing Environmental Laws and claims against the
Company and its Subsidiaries alleging potential liability or responsibility for violation of any
Environmental Law on their respective businesses, operations and properties, and as a result
thereof the Company 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.



5.10 Insurance. The properties of the Company and its Subsidiaries are insured with insurance
companies not Affiliates of the Company that the Company believes (in the good faith
judgment of the management of the Company) are financially sound and reputable and in such
amounts, with such deductibles and covering such risks, as the Company believes (in the good faith
judgment of management of the Company) as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Company or the applicable
Subsidiary operates.



5.11 Taxes. The Company and its Subsidiaries (other than Inactive Subsidiaries to the extent
no material tax or financial consequences results therefrom) have filed or caused to be filed all
Federal, state and other material tax returns and reports required to be filed (or extensions
thereof have been obtained in accordance with applicable Law), and have paid or caused to be paid
all Federal, state and other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due and payable, except
those which are being contested in good faith by appropriate proceedings diligently conducted and
for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax
assessment against the Company or any Subsidiary that could reasonably be expected to have a
Material Adverse Effect. Except as set forth in Schedule 5.11, neither any Loan Party nor
any Subsidiary thereof is party to any tax sharing agreement other than tax sharing agreements as
to which the Company or its Subsidiaries are the only parties.



5.12 ERISA Compliance. (a) The Company and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made
with respect to any Plan.



(b) There are no pending or, to the knowledge of the Company, 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.


 


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(c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability; (iii) neither the Company 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 the
Company nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no
event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in
such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and
(v) neither the Company nor any ERISA Affiliate has engaged in a transaction that could be subject
to Section 4069 or 4212(c) of ERISA.



5.13 Subsidiaries; Equity Interests. As of the Closing Date, the Company has no Subsidiaries
other than those specifically disclosed in Part (a) of Schedule 5.13, and, to the extent
applicable, all of the outstanding Equity Interests in such Subsidiaries have been validly issued,
and, to the extent applicable, are fully paid and nonassessable and are owned by the Persons in the
amounts specified on Part (a) of Schedule 5.13 free and clear of all Liens except Permitted
Liens. As of the Closing Date, the Company has no equity investments in excess of $2,500,000
in any other corporation or entity other than those specifically disclosed in Part (b) of
Schedule 5.13 (which Schedule may be updated from time to time upon request by the
Administrative Agent). All of the outstanding Equity Interests in the Company have been validly
issued and are fully paid and nonassessable.



5.14 Margin Regulations; Investment Company Act.



(a) No Borrower is engaged or 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 in
violation of applicable law.



(b) None of the Company, any Person Controlling the Company, or any or is required to be
registered as an “investment company” under the Investment Company Act of 1940.



5.15 Disclosure. No written report, financial statement, certificate or other information
(taken as a whole) furnished in writing by or on behalf of any Loan Party to the Administrative
Agent or any Lender on or before the Closing Date in connection with the transactions contemplated
hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan
Document (in each case, as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to make the statements
therein (taken as a whole), in the light of the circumstances under which they were made, not
misleading; provided that it is understood and agreed that for purposes of this
Section 5.15, such reports, statements, certificates and information shall not include
projections and pro forma financial information or any information of a general economic or
industry nature.



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


 


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5.17 Taxpayer Identification Number; Other Identifying Information. The true and correct U.S.
taxpayer identification number of the Company and each Designated Borrower that is a party hereto
on the Closing Date is set forth on Schedule 5.17. The true and correct unique
identification number of each Designated Borrower that is a Foreign Subsidiary and a party hereto
on the Closing Date that has been issued by its jurisdiction of organization and the name of such
jurisdiction are set forth on Schedule 5.17.



5.18 Collateral Documents. The provisions of the Collateral Documents are effective to create
in favor of the Administrative Agent for the benefit of the Secured Parties a legal, valid and
enforceable first priority Lien (subject to Liens permitted by Section 7.01) on all right,
title and interest of the respective Loan Parties in the Collateral described therein. Except for
filings completed prior to the Closing Date and as contemplated hereby and by the Collateral Documents
and those relating to the perfection of security interests under the Collateral Documents, no
filing or other action will be necessary to perfect or, to the extent certificates representing any
equity interests are maintained in the possession of the Administrative Agent as required by law,
protect such Liens.



5.19 Intellectual Property; Licenses, Etc. The Company and its Subsidiaries own, or possess
the right to use under license, all material IP Rights that are reasonably necessary for the
operation of their respective businesses as currently conducted except as could not reasonably be
expected to have a Material Adverse Effect. To the knowledge of the Company, no slogan or other
advertising device, product, process, method, substance, part or other material now employed, or
now planned to be employed in the Company’s current written business plans, by the Company or any
Subsidiary infringes upon any IP Rights held by any other Person. The Company has not received any
written claim and no litigation is pending or, to the knowledge of the Company, threatened, in
which it is asserted that the Company infringed, misappropriated or violated the IP Rights of any
other Person which, either individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.



5.20 Representations as to Foreign Obligors. Each of the Company and each Foreign Obligor
represents and warrants to the Administrative Agent and the Lenders that:



(a) Such Foreign Obligor is subject to civil and commercial Laws with respect to its
obligations under this Agreement and the other Loan Documents to which it is a party (collectively
as to such Foreign Obligor, the “Applicable Foreign Obligor Documents”), and the execution,
delivery and performance by such Foreign Obligor of the Applicable Foreign Obligor Documents
constitute and will constitute private and commercial acts and not public or governmental acts.
Neither such Foreign Obligor nor any of its property has any immunity from jurisdiction of any
court or from any legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) under the laws of the jurisdiction in which
such Foreign Obligor is organized and existing in respect of its obligations under the Applicable
Foreign Obligor Documents.


 


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(b) The Applicable Foreign Obligor Documents are in proper legal form under the Laws of the
jurisdiction in which such Foreign Obligor is organized and existing for the enforcement thereof
against such Foreign Obligor under the Laws of such jurisdiction, and to ensure the legality,
validity, enforceability, priority or admissibility in evidence of the Applicable Foreign Obligor
Documents. It is not necessary to ensure the legality, validity, enforceability, priority or
admissibility in evidence of the Applicable Foreign Obligor Documents that the Applicable Foreign
Obligor Documents be filed, registered or recorded with, or executed or notarized before, any court
or other authority in the jurisdiction in which such Foreign Obligor is organized and existing or
that any registration charge or stamp or similar tax be paid on or in respect of the Applicable
Foreign Obligor Documents or any other document, except for (i) any such filing, registration,
recording, execution or notarization as has been made or is not required to be made until the
Applicable Foreign Obligor Document or any other document is sought to be enforced and (ii) any
charge or tax as has been timely paid.



(c) There is no tax, levy, impost, duty, fee, assessment or other governmental charge, or any
deduction or withholding, imposed by any Governmental Authority in or of the jurisdiction in which
such Foreign Obligor is organized and existing either (i) on or by virtue of the execution or
delivery of the Applicable Foreign Obligor Documents or (ii) on any payment to be made by such
Foreign Obligor pursuant to the Applicable Foreign Obligor Documents, except as has been disclosed
to the Administrative Agent.



(d) The execution, delivery and performance of the Applicable Foreign Obligor Documents
executed by such Foreign Obligor are, under applicable foreign exchange control regulations of the
jurisdiction in which such Foreign Obligor is organized and existing, not subject to any
notification or authorization except (i) such as have been made or obtained or (ii) such as cannot
be made or obtained until a later date (provided that any notification or authorization
described in clause (ii) shall be made or obtained as soon as is reasonably practicable).



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 (other than (a) contingent indemnification obligations
and (b) obligations and liabilities under Secured Cash Management Agreements and Secured Hedge
Agreements), or any Letter of Credit shall remain outstanding (except to the extent Cash
Collateralized), the Company 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 for distribution to each
Lender:



(a) as soon as available, but in any event within 90 days after the end of each fiscal year of
the Company (commencing with the fiscal year ended December 31, 2009), a consolidated balance sheet
of the Company and its Subsidiaries as at the end of such fiscal year, and the related consolidated
statements of operations, shareholders’ equity and cash flows for such fiscal year, setting forth
in each case in comparative form the figures for the previous fiscal year, all in reasonable detail
and prepared in accordance with GAAP, such consolidated statements to be audited and accompanied by
(i) a report and opinion of a Registered Public Accounting Firm of nationally recognized standing,
which report and opinion shall be prepared in accordance with generally accepted auditing standards
and applicable Securities Laws and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of such audit or with
respect to the absence of any material misstatement (it being understood that such financial
statements and opinion may be furnished if included therein, in the form of the Company’s Annual
Report on Form 10-K and any related Annual Report filed with the SEC);


 


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(b) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Company (commencing with the fiscal quarter ended
September 30, 2009), a consolidated balance sheet of the Company and its Subsidiaries as at the end
of such fiscal quarter, and the related consolidated statements of
operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of
the Company’s fiscal year then ended, setting forth in each case in comparative form the figures
for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of
the previous fiscal year, all in reasonable detail, such consolidated statements to be certified by
the chief executive officer, chief financial officer, treasurer or controller of the Company as
fairly presenting in all material respects the financial condition, results of operations,
shareholders’ equity and cash flows of the Company and its Subsidiaries in accordance with GAAP,
subject only to normal year-end audit adjustments and the absence of footnotes (it being understood
that such financial statements may be furnished, if included therein, in the form of the Company’s
Quarterly Report on Form 10-Q filed with the SEC); and



(c) as soon as available, but in any event at least 60 days after the end of each fiscal year
of the Company, forecasts prepared by management of the Company as customarily prepared, of
consolidated balance sheets and statements of income or operations and cash flows of the Company
and its Subsidiaries on an annual basis for the immediately following fiscal year (including the
fiscal year in which the Maturity Date occurs).



As to any information contained in materials furnished pursuant to Section 6.02(c), the
Company 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 Company 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 for distribution to
each Lender in form and detail reasonably satisfactory to the Administrative Agent:



(a) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b) (commencing with the delivery of the financial statements
for the fiscal year ended December 31, 2009), a duly completed Compliance Certificate signed by the
chief executive officer, chief financial officer, treasurer or controller of the Company;



(b) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports submitted to the board of directors (or the audit committee of the board of
directors) of the Company by independent accountants in connection with the accounts or books of
the Company 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 Company, and copies of
all annual, regular, periodic and special reports and registration statements which the Company 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, and in any event within five Business Days after receipt thereof by any Loan
Party or any Subsidiary thereof, copies of each notice or other correspondence received from the
SEC (or comparable agency in any applicable non-U.S. jurisdiction)
concerning any investigation or possible investigation or other inquiry by such agency
regarding financial or other operational results of any Loan Party or any Subsidiary thereof; and



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



Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Company posts such documents, or provides a link thereto on
the Company’s website on the Internet at the website address listed on Schedule 10.03; or
(ii) on which such documents are posted on the Company’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: the
Company shall notify the Administrative Agent (who will notify each Lender by telecopier or e-mail)
of the posting of any such documents. Notwithstanding anything contained herein, in every instance
the Company 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 maintain copies of the
documents referred to above, and in any event shall have no responsibility to monitor compliance by
the Company 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.



Each Borrower hereby acknowledges 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 such Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to
receive material non-public information with respect to any Borrower or its securities) (each, a
“Public Lender”). Each Borrower hereby agrees that, so long as the Company is required to
file periodic reports under the Exchange Act, (w) all Borrower Materials that are to be made
available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum,
shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by
marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the
Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials
as not containing any material non-public information with respect to the Borrowers or their
respective securities for purposes of United States Federal and state securities laws
(provided that to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 10.08); (y) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated “Public Investor;” and
(z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials
that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not
designated “Public Investor.” Notwithstanding the foregoing, no Borrower shall be under any
obligation to mark any Borrower Materials “PUBLIC.”


 


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6.03 Notices. Promptly notify the Administrative Agent:



(a) of the occurrence of any Default;



(b) of any matter that has resulted, or to any Loan Party’s knowledge could reasonably be
expected to result, in a Material Adverse Effect, including (to the extent that any such event
could reasonably be expected to result in a Material Adverse Effect) (i) breach or non-performance
of, or any default under, a Contractual Obligation of the Company or any Subsidiary; (ii) any
dispute, litigation, investigation, proceeding or suspension between the Company or any Subsidiary
and any Governmental Authority; or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting the Company or any 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 the
Company or any Subsidiary.



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



6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all
its material obligations and liabilities, including (a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Company or such Subsidiary (other than any
Inactive Subsidiaries to the extent no material tax or financial consequences results therefrom);
(b) all lawful claims which, if unpaid, would by law become a Lien (other than a Permitted Lien)
upon a material piece or portion of its property; and (c) all material Indebtedness, as and when
due and payable, but subject to any subordination provisions contained in any instrument or
agreement evidencing such Indebtedness.


 


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6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and
effect its legal existence and good standing under the Laws of the jurisdiction of its organization
except in a transaction permitted by Section 7.04 or 7.05; (b) take all reasonable
action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable
in the normal conduct of its business, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its
registered patents, trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.



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



6.07 Maintenance of Insurance. Maintain with insurance companies not Affiliates of the
Company that the Company believes (in the good faith judgment of the management of the Company) are
financially sound and reputable insurance with respect to its properties and business against loss
or damage as the Company believes (in the good faith of management of the Company) of the kinds
customarily insured against by Persons engaged in the same or similar business, of such types and
in such amounts as the Company believes (in the good faith of management of the Company) as are
customarily carried under similar circumstances by such other Persons.



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



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



6.10 Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent to visit and inspect any of its properties, to examine its corporate,
financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its directors, officers, and so long as a Responsible Officer
of the Company is present, independent public accountants, all at the expense of the Company and at
such reasonable times during normal business hours, upon reasonable advance written notice to the
Company; provided that when an Event of Default has occurred and is continuing the
Administrative Agent or any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the Company at any time during normal
business hours and without advance notice; provided that notwithstanding the foregoing, if
no Event of Default has occurred and is continuing, such visits and inspections shall not occur
more than once per calendar year.


 


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6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for general corporate
purposes not in contravention of any Law or of any Loan Document.



6.12 Approvals and Authorizations. Maintain all authorizations, consents, approvals and
licenses from, exemptions of, and filings and registrations with, each Governmental Authority of
the jurisdiction in which each Foreign Obligor is organized and existing, and all approvals and
consents of each other Person in such jurisdiction, in each case that are required in connection
with the Loan Documents.



6.13 Guarantee Obligations and Security. (a) Upon the formation or acquisition, in each
case, after the date hereof, of any new Domestic Subsidiary or Material Foreign Subsidiary by any
Loan Party or, if after the date hereof, any Domestic Subsidiary no longer qualifies as an Inactive
Subsidiary, the Company shall promptly (and in any event within 30 days) after such formation,
acquisition or change of qualification, at the Company’s expense:




(i) cause any such Domestic Subsidiary, and cause the Parent Entity of such Domestic
Subsidiary (if it has not already done so), to duly execute and deliver to the
Administrative Agent a joinder to the Subsidiary Guaranty, in form and substance reasonably
satisfactory to the Administrative Agent,




(ii) cause the Parent Entity of any such Domestic Subsidiary or Material Foreign
Subsidiary (if it has not already done so) to duly execute and deliver to the Administrative
Agent a joinder to the U.S. Pledge Agreement and/or a Foreign Pledge Agreement, in each case
in form and substance reasonably satisfactory to the Administrative Agent,




(iii) cause such Domestic Subsidiary and the Parent Entity of any such Domestic
Subsidiary or Material Foreign Subsidiary (if it has not already done so) to take whatever
action (including the filing of UCC financing statements) as may be reasonably necessary in
the reasonable opinion of the Administrative Agent to vest in the Administrative Agent, on
behalf of the Lenders, valid and subsisting Liens on the Pledged Equity purported to be
subject to the U.S. Pledge Agreement or the applicable Foreign Pledge Agreement, and




(iv) deliver to the Administrative Agent, upon the reasonable request of the
Administrative Agent, a signed copy of a favorable opinion, addressed to the Administrative
Agent and the other Secured Parties, of counsel for the Loan Parties acceptable to the
Administrative Agent as to the execution of the joinder to the Subsidiary Guaranty, the
joinder to the U.S. Pledge Agreement and/or a Foreign Pledge Agreement, and, in each case,
as to such other matters as the Administrative Agent may reasonably request,


 


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(b) At any time upon the reasonable request of the Administrative Agent, promptly execute and
deliver any and all further instruments and documents and take all such other action as the
Administrative Agent may reasonably deem necessary in obtaining the full benefits of, or (as
applicable) in perfecting and preserving the Liens of such U.S. Pledge Agreement or such Foreign
Pledge Agreement, and



(c) Promptly following the Closing Date, but in any event no later than sixty days after the
Closing Date (or such longer period as agreed to by the Administrative Agent), the Company shall
deliver or cause to be delivered (i) Foreign Pledge Agreements with respect to the Pledged Equity
of Monster Worldwide Holdings Limited, Monster Worldwide Deutschland Holdings GmbH and Monster
Worldwide Netherlands Holding B.V. and (ii) a signed favorable opinion of foreign counsel with
respect to each such Foreign Pledge Agreement, in each case addressed to the Administrative Agent
and the Lenders as to matters concerning each such Foreign Pledge Agreements as the Required
Lenders may reasonably request.



Notwithstanding anything to the contrary in any Loan Document, (a) no more than 65% of each class
of the voting Equity Interests of any Material Foreign Subsidiary that is a CFC shall be pledged as
security for the Obligations of the Company or any other Loan Party, (b) no Subsidiary shall be
required to execute any Collateral Documents to the extent, and for so long as, any Law (including
any exchange control, financial assistance, minimum capitalization, fraudulent conveyance,
mandatory labor advice or similar rules or regulations) would be violated thereby if all relevant
Persons have taken all commercially reasonable steps to avoid or cure such violation and (c)
subject to this Section 6.13, no Inactive Subsidiary shall be required to execute any Loan
Document.




6.14 Lien Searches. Promptly following receipt of the acknowledgment copy of any financing
statements filed under the UCC in any jurisdiction by or on behalf of the Secured Parties, deliver
to the Administrative Agent completed requests for information listing such financing statement.



6.15 Further Assurances. Promptly upon reasonable request by the Administrative Agent, or any
Lender through the Administrative Agent, do, execute, acknowledge, deliver, record, re-record,
file, re-file, register and re-register any and all such further acts, deeds, certificates,
assurances and other instruments as the Administrative Agent, or any Lender through the
Administrative Agent, may reasonably require from time to time in order to (a) carry out more
effectively the purposes of the Loan Documents, (b) to the fullest extent permitted by applicable
law, subject any Loan Party’s or any of its Subsidiaries’ properties, assets, rights or interests
to the Liens now or hereafter intended to be covered by any of the Collateral Documents,
(c) perfect and maintain the validity, effectiveness and priority of any of the Collateral
Documents and any of the Liens intended to be created be each of the parties thereunder and (d)
convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured
Parties the rights granted or now or hereafter intended to be granted by each of the parties to the
Secured Parties under any Loan Document or under any other instrument executed in connection with
any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be a party, and
cause each of its Subsidiaries to do so.


 


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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 (other than (a) contingent indemnification obligations
and (b) obligations and liabilities under Secured Cash Management Agreements and Secured Hedge
Agreements), or any Letter of Credit shall remain outstanding (except to the extent Cash
Collateralized), the Company shall not, nor shall it permit any Subsidiary to, directly or
indirectly:



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



(a) Permitted Liens;



(b) Liens existing on the Original Closing Date and listed on Schedule 7.01(b) and any
renewals or extensions thereof; provided that (i) the property covered thereby is not
changed, (ii) the amount secured or benefited thereby is not increased except as contemplated by
Section 7.03(b), (iii) the direct or any contingent obligor with respect thereto is not
changed, and (iv) any renewal or extension of the obligations secured or benefited thereby is
permitted by Section 7.03(b);



(c) Liens securing Indebtedness permitted under Section 7.03(e); provided that
(i) such Liens do not at any time encumber any property other than the property financed by such
Indebtedness except for accessions to such property and the proceeds and the products thereof and
(ii) individual financings of equipment provided by one lender may be cross collateralized to other
financings of equipment provided by such lender;



(d) Liens arising from licenses of IP Rights owned by the Company or any Subsidiary which are
granted in the ordinary course of business;



(e) Liens securing Indebtedness permitted under (i) Section 7.03(g)(i) in an aggregate
amount not to exceed $20,000,000 and (ii) under Section 7.03(g)(ii) in an aggregate amount
not to exceed $50,000,000; and



(f) Liens securing Indebtedness permitted under Section 7.03(h); provided that
such Liens do not encumber any property other than auction rate securities held by the Company and
its Subsidiaries as listed on Schedule 7.01(f).


 


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7.02 Investments. Make any Investments, except:



(a) Permitted Investments;



(b) loans and advances to officers, directors and employees of the Company or any of its
Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation
and analogous ordinary business purposes (including employee payroll advances), (ii) in connection
with such Person’s purchase of Equity Interests of the Company or any of its Subsidiaries to the
extent that the amount of such loans and advances are contributed to the Company or any such
Subsidiary in cash and (iii) for purposes not described in the foregoing clauses (i) and (ii), in
an aggregate principal amount outstanding not to exceed $5,000,000;



(c) Investments existing on, or contemplated as of, the Original Closing Date and listed on
Schedule 7.02 and any extensions, renewals or reinvestments thereof, so long as the
aggregate amount of all Investments pursuant to this clause (d) is not increased at any time above
the amount of such Investments existing on the Original Closing Date;



(d) Investments received in connection with the bankruptcy or reorganization of suppliers or
customers and in settlement of delinquent obligations of, and other disputes with, customers
arising in the ordinary course of business or upon foreclosure with respect to any secured
Investment or other transfer of title with respect to any secured Investment;



(e) Investments of any Loan Party in another Loan Party and of any Subsidiary that is not a
Loan Party into another Subsidiary that is not a Loan Party;



(f) the purchase or other acquisition of all of the Equity Interests in, or all or
substantially all of the property of, any Person that, upon the consummation thereof, will be
wholly-owned directly by the Company or one or more of its wholly-owned Subsidiaries (including as
a result of a merger or consolidation); provided that, with respect to each purchase or
other acquisition made pursuant to this Section 7.02(f):




(i) any such newly-created or acquired Subsidiary shall comply (as applicable) with the
requirements of Section 6.13;




(ii) the lines of business of the Person to be (or the property of which is to be) so
purchased or otherwise acquired shall be reasonably related to the lines of business as one
or more of the principal businesses of the Company and its Subsidiaries in the ordinary
course (except for companies acquired to serve as a holding company for tax purposes);




(iii) (A) immediately before and immediately after giving pro forma effect to any such
purchase or other acquisition, no Default shall have occurred and be continuing and
(B) immediately after giving effect to such purchase or other acquisition, the Company and
its Subsidiaries shall be in pro forma compliance with all of the covenants set forth in
Section 7.11, such compliance to be determined on the basis of the financial
information most recently delivered to the Administrative Agent and the Lenders pursuant to
Section 6.01(a) or (b) as though such purchase or other acquisition had been
consummated as of the first day of the fiscal period covered thereby, and the Company shall
deliver to the Administrative Agent a Compliance Certificate demonstrating such compliance
if the total cash and noncash consideration (including the fair market value of all Equity
Interests issued or transferred to the sellers thereof, all indemnities, earnouts and other
contingent payment obligations to, and the aggregate amounts paid or to be paid under
noncompete, consulting and other affiliated agreements with, the sellers thereof, all
write-downs of property and reserves for liabilities with respect thereto and all
assumptions of debt, liabilities and other obligations in connection therewith) paid by or
on behalf of the Company and its Subsidiaries for any such purchase or other acquisition
exceeds $100,000,000; and


 


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(iv) the Company shall have delivered to the Administrative Agent and each Lender,
prior to the date on which any such purchase or other acquisition is to be consummated, a
certificate of a Responsible Officer, in form and substance reasonably satisfactory to the
Administrative Agent, certifying that all of the requirements set forth in this clause (f)
have been satisfied or will be satisfied on or prior to the consummation of such purchase or
other acquisition;



(g) Investments constituting non-cash proceeds of sales, transfers and other dispositions of
assets to the extent permitted by Section 7.05;



(h) Investments permitted under Section 7.06;



(i) Investments of a Subsidiary acquired after the Original Closing Date or of any Person
merged into the Company or merged or consolidated with a Subsidiary in accordance
with Section 7.04 after the Original Closing Date to the extent that such Investments
were not made in contemplation of or in connection with such acquisition, merger or consolidation
and were in existence on the date of such acquisition, merger or consolidation;



(j) the creation of new subsidiaries so long as they comply with Section 6.13 (to the
extent applicable);



(k) contingent obligations with respect to any Swap Contract, or hedging agreements otherwise
permitted by this Agreement;



(l) Investments constituting inter-company Indebtedness to the extent permitted under
Section 7.03;



(m) prepaid expenses in the ordinary course of business;



(n) Investments (including Investments in joint ventures or similar entities that do not
constitute wholly-owned Subsidiaries and including Investments by Loan Parties in non-Loan
Parties), as valued at the fair market value of such Investment at the time each such Investment is
made, in an amount that, at the time such Investment is made, would not exceed, together with all
other Investments made after the Original Closing Date pursuant to this Section 7.02(n),
the sum of $50,000,000 plus an amount equal to any repayments, interest, returns, profits,
distributions, income and similar amounts actually received in cash in respect of any Investment
made after the Original Closing Date pursuant to this Section 7.02(n); and



(o) Intercompany Investments by any Loan Party in any Subsidiary that is not a Loan Party;
provided that all amounts with respect to such Investment are loaned, dividended or
otherwise paid by such Person to any Loan Party within one week of such Investment.


 


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



(a) Indebtedness under the Loan Documents;



(b) Indebtedness outstanding on the Original Closing Date and listed on Schedule 7.03
and any refinancings, refundings, renewals or extensions thereof; provided that the amount
of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or
extension except by an amount equal to a reasonable premium or other reasonable amount paid, and
fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder;



(c) Guarantees of the Company or any Subsidiary in respect of Indebtedness otherwise permitted
hereunder of the Company or any wholly-owned Subsidiary;



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



(e) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money
obligations for fixed or capital assets within the limitations set forth in
Section 7.01(c);



(f) Indebtedness with respect to any Investment permitted under Section 7.02(o) and
unsecured Indebtedness of any Subsidiary that is not a Loan Party owed to any Loan Party or any
other Subsidiary that is not a Loan Party; provided that all such Indebtedness of a
Subsidiary that is not a Loan Party owed to a Loan Party (other than Indebtedness in connection
with Investments permitted pursuant to Sections 7.02(c), (f) and (o)) shall
not exceed $50,000,000 outstanding at any time plus the amount of any Indebtedness
permitted and available pursuant to Section 7.03(g)(ii);



(g) Indebtedness (i) of the Loan Parties without limit and (ii) of Subsidiaries that are not
Loan Parties in an aggregate principal amount not to exceed $100,000,000 at any time outstanding;
and



(h) Indebtedness in respect of auction rate securities held by the Company and its
Subsidiaries as listed on Schedule 7.01(f).



The maximum amount of Indebtedness that the Company or any Subsidiary may incur pursuant to this
Section 7.03 shall not be deemed to be exceeded solely as the result of fluctuations in the
exchange rates of currencies and the amount of any Indebtedness denominated in a currency other
than Dollars shall be calculated by converting such Indebtedness to Dollars at the exchange rate
prevailing at the time such Indebtedness is incurred.


 


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



(a) any Subsidiary may merge with the Company; provided that the Company shall be the
continuing or surviving Person;



(b) any Subsidiary or any other Person may be merged, amalgamated or consolidated with or into
any one or more Subsidiaries, provided that (i) a Subsidiary shall be the continuing or surviving
Person (or the surviving entity becomes a Subsidiary upon the effectiveness of such merger,
amalgamation or consolidation) or (ii) if any wholly-owned, directly or indirectly, Subsidiary is
merging, consolidating, combining or amalgamating with or into another Subsidiary, the continuing
or surviving Person shall, immediately after such merger, amalgamation, consolidation or
combination be (whether at the time or as a result of the transaction) a wholly-owned, direct or
indirect, Subsidiary;



(c) any Subsidiary may Dispose of all or any part of its assets (whether as a contribution to
capital, dividend, upon voluntary liquidation or otherwise) to the Company or to another
Subsidiary; provided that (i) if the transferor in such a transaction is a wholly-owned,
directly or indirectly, Subsidiary, then the transferee must either be the Company or a
wholly-owned, directly or indirectly, Subsidiary (whether at the time or as a result of the
transfer) and (ii) if the transferor in such transaction is a Loan Party then the transferee must
be a Loan Party unless such transaction is otherwise permitted under Section 7.05(c); and



(d) any Subsidiary which is not a Subsidiary Guarantor may liquidate or dissolve if the
Company determines in good faith that such liquidation or dissolution is in the best interests of
the Company and is not materially disadvantageous to the Lenders.



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



(a) the Company and any Subsidiary may Dispose of (i) obsolete or surplus equipment and
vehicles, (ii) inventory and other assets in the ordinary course of business and (iii) Permitted
Investments;



(b) the Company and any Subsidiary make Dispositions of other assets (other than accounts
receivable) for fair value, provided that:




(i) with respect to any Disposition pursuant to this clause (b) for a purchase price in
excess of $50,000,000, the Company or a Subsidiary shall receive not less than 75% of such
consideration in the form of cash or Permitted Investments; provided that any
liabilities of the Company or such Subsidiary (as shown on the Company’s or such
Subsidiary’s most recent balance sheet provided hereunder or in the footnotes thereto) that
are assumed by the transferee with respect to the applicable Disposition and for which the
Company and all of the Subsidiaries shall have been validly released by all applicable
creditors in writing shall be deemed to be cash under this clause (i);




(ii) with respect to any such Disposition (or series of related Dispositions), the
Company shall be in compliance, on a pro forma basis after giving effect to such
Disposition, with the covenant set forth in Section 7.11, as such covenant is
recomputed as at the last day of the most recently ended test period under such Section as
if such Disposition had occurred on the first day of such test period;




 


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(iii) the amount of any such Disposition under this Section 7.05(b) shall not
exceed $250,000,000 in the aggregate with all other Dispositions made after the Original
Closing Date under this Section 7.05(b); and



(iv) immediately prior to the occurrence of and after giving effect to any such
Disposition, no Default or Event of Default shall have occurred and be continuing.



(c) any Subsidiary may make Dispositions of assets to the Company or to any Subsidiary;
provided that if the transferor of such property is a Subsidiary Guarantor, the transferee
must either be the Company or a Subsidiary Guarantor; provided further that with
respect to any such Dispositions to Subsidiaries that are not Subsidiary Guarantors by a Subsidiary
Guarantor:




(i) such Disposition shall be for fair value; and




(ii) immediately prior to the occurrence of and after giving effect to any such
Disposition, no Default or Event of Default shall have occurred and be continuing;



(d) the Company and any Subsidiary may effect any transaction permitted by
Sections 7.02, 7.04 or 7.06;



(e) the Company and any of its Subsidiaries may Dispose of, sell or discount without recourse
in a manner consistent with past practices accounts receivable arising in the ordinary course of
business in connection with the compromise or collection thereof;



(f) the Company and any of its Subsidiaries may lease, sublease, license or sublicense (on a
non-exclusive basis with respect to any intellectual property) real, personal or intellectual
property in the ordinary course of business;



(g) Dispositions of property to the extent that (i) such property is exchanged for credit
against the purchase price of similar replacement property or (ii) the proceeds of such Disposition
are reasonably promptly applied to the purchase price of such replacement property;



(h) Dispositions of Investments in joint ventures to the extent required by, or made pursuant
to customary buy/sell arrangements between, the joint venture parties set forth in joint venture
arrangements and similar binding arrangements; and



(i) The Company may Dispose of all or substantially all of its Equity Interests in Tickle,
Inc., a Delaware corporation, or Tickle, Inc. may sell all or substantially all of its assets;
provided that any proceeds received by the Company in excess of $10,000,000 shall be
subject to clause (b) above.



 


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7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so except that:



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



(b) the Company and each Subsidiary may declare and make dividend payments or other
distributions payable solely in the common stock or other common Equity Interests of such Person so
long as no Default shall have occurred and be continuing at the time of such dividend or
distribution;



(c) the Company and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests
issued by it with the proceeds received from the substantially concurrent issue of new shares of
its common stock or other common Equity Interests so long as no Default shall have occurred and be
continuing at the time of such purchase, redemption or acquisition; and



(d) the Company may purchase, redeem or otherwise acquire Equity Interests issued by it or pay
dividends on its Equity Interests; provided that, (i) no Default shall have occurred and be
continuing at the time of such purchase, redemption or acquisition and (ii) both before and after
giving effect thereto, the Company and its Subsidiaries shall be in pro forma
compliance with all of the covenants set forth in Section 7.11, such compliance to be
determined on the basis of the financial information most recently delivered to the Administrative
Agent and the Lenders pursuant to Section 6.01(a) or (b) as though such purchase or
other acquisition had been consummated as of the first day of the fiscal period covered thereby.



7.07 Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by the Company and its Subsidiaries on the
Original Closing Date or any business related or incidental thereto.



7.08 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate
of the Company, whether or not in the ordinary course of business, other than (a) on fair and
reasonable terms substantially as favorable to the Company or such Subsidiary as would be
obtainable by the Company or such Subsidiary at the time in a comparable arm’s length transaction
with a Person other than an Affiliate or (b) (x) customary fees to, and indemnifications of,
directors of the Loan Parties and their respective Subsidiaries in the ordinary course of business
and (y) compensation, bonuses and indemnification arrangements and benefit plans for officers and
employees of the Loan Parties and their respective Subsidiaries in the ordinary course of business.


 


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7.09 Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement
or any other Loan Document) that limits the ability (a) of any Subsidiary to make Restricted
Payments to the Company or any Subsidiary Guarantor or to otherwise transfer property to the
Company or any Subsidiary Guarantor, (b) of any Subsidiary to Guarantee the Indebtedness of the
Company or (c) of the Company or any Subsidiary to create, incur, assume
or suffer to exist Liens on property of such Person; provided that the foregoing shall
not apply to Contractual Obligations which (i) are customary provisions in joint venture agreements
and other similar agreements applicable to joint ventures permitted under Section 7.02 and
applicable solely to such joint venture entered into in the ordinary course of business; (ii)
represent Indebtedness of Subsidiaries that are not Loan Parties and Indebtedness of Loan Parties
acquired after the Original Closing Date (but only Contractual Obligations relating to such new
Loan Party and its Subsidiaries and not incurred in contemplation of such acquisition); (iii) are
customary restrictions on leases, subleases, licenses or sale agreements otherwise permitted hereby
so long as such restrictions relate to the assets or entities sold subject thereto; (iv) comprise
restrictions imposed by any agreement relating to secured Indebtedness permitted pursuant to
Section 7.03 to the extent that such restrictions apply only to the property or assets
securing, or the subject of, such Indebtedness or, applicable, to the Subsidiaries incurring or
guaranteeing such Indebtedness; (v) are customary provisions restricting subletting or assignment
of any lease governing a leasehold interest of the Company or any Subsidiary; (vi) are customary
provisions restricting assignment of any agreement entered into in the ordinary course of business
and not otherwise prohibited hereunder; and (vii) are restrictions on cash or other deposits
imposed by customers under contracts entered into in the ordinary course of business and not
otherwise prohibited hereunder.



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



7.11 Financial Covenants.



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



(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio at any time
during any period of four fiscal quarters of the Company set forth below to be greater than the
ratio set forth below opposite such period:



	 	 	 
	 	 	Maximum
	 	 	Consolidated
	Four Fiscal Quarters Ending	 	Leverage Ratio
	The Closing Date through September 29, 2010

	 	3.50:1
	September 30, 2010 through September 29, 2011

	 	3.00:1
	September 30, 2011 and any time thereafter

	 	2.75:1





 


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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. Any Borrower or any other Loan Party fails to pay (i) when and as
required to be paid herein, and in the currency required hereunder, any amount of principal of any
Loan or any L/C Obligation, or (ii) within three Business Days after the same becomes due, any
interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within five
Business Days after the same becomes due, any other amount payable hereunder or under any other
Loan Document; or



(b) Specific Covenants. (a) The Company fails to perform or observe any term,
covenant or agreement contained in any of Section 6.01, 6.02(a) through
(d), 6.05, 6.10, 6.11 or 6.13 or Article VII, or
(b) any Subsidiary Guarantor fails to perform or observe any term, covenant or agreement contained
in Article IV of the Subsidiary Guaranty to the extent such term, covenant or agreement requires
such Subsidiary Guarantor to comply with and be bound by the Sections listed in clause (a);
or



(c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) on its part to be
performed or observed contained in (a) Sections 6.03(a), (b) and (c) and
such failure continues for 5 days, or (b) any Loan Document and such failure continues for 30 days
after the earlier of (i) receipt by such Person of written notice from the Administrative Agent or
any Lender of such failure and (ii) the time at which such Person or any Responsible Officer knew
or became aware of such failure; or



(d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Company or any other Loan Party
herein, in any other Loan Document, shall be incorrect in any material respect (other than
representations qualified by materiality, which shall be true and correct in all respects) when
made or deemed made; or



(e) Cross-Default. (i) The Company or any Subsidiary (A) fails to make any payment
when due and beyond the applicable grace period (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other
than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal
amount (including undrawn committed or available amounts and including amounts owing to all
creditors under any combined or syndicated credit arrangement) of more than the $25,000,000
outstanding, or (B) fails to observe or perform any other agreement or condition relating to any
such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event occurs the effect of which default or other event is to cause,
or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such
Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due or
to be repurchased, prepaid, defeased or redeemed prior to its stated maturity, or an offer to
repurchase, prepay, defease or redeem such Indebtedness to be
made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in
respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination
Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap
Contract as to which the Company or any Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which the
Company or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by the Company or such Subsidiary as a result thereof is greater than the
$25,000,000 outstanding; or


 


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



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



(h) Judgments. There is entered against the Company or any Subsidiary (i) one or more
final judgments or orders for the payment of money in an aggregate amount (as to all such judgments
or orders) exceeding $25,000,000 (to the extent not covered by independent third-party insurance as
to which the insurer does not dispute coverage), or (ii) any one or more non-monetary final
judgments that have, or could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any
creditor upon such judgment or order, or (B) there is a period of 10 consecutive days during which
a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in
effect; or



(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of the Company under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of $1,000,000, or (ii) the Company or any ERISA Affiliate fails to pay when due, after the
expiration of any applicable grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess
of $1,000,000; 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 (other than (i)
contingent indemnification obligations, (ii) obligations and liabilities under Secured Cash
Management Agreements and Secured Hedge Agreements and, (iii) to the extent Cash Collateralized,
L/C Obligations) ceases to be in full force and effect; or any Loan Party contests in any manner
the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that
it has any or further liability or obligation under any Loan Document, or revokes, terminates or
rescinds any provision of any Loan Document;


 


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(k) Collateral Documents. At any time after the execution and delivery thereof, any
of the Collateral Documents shall cease to be in full force and effect (other than, except in the
case of documents governed by other than U.S. law, due to the effect of applicable foreign law or
action of any foreign government or as otherwise provided in any Loan Document) or shall cease to
give the Administrative Agent for the benefit of the Secured Parties the Liens, rights, powers and
privileges purported to be created thereby (including, without limitation, a first priority
perfected security interest in, and Lien (subject to Permitted Liens) on, all of the Collateral),
in favor of Administrative Agent for the benefit of the Secured Parties superior to and prior to
the rights of all third Persons and subject to no other Liens (except to the extent expressly
permitted herein or therein); or



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



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



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



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



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



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



provided that upon the occurrence of an actual or deemed entry of an order for relief with
respect to any 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
Company 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.


 


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



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



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



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



Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans, L/C Borrowings and Obligations then owing under Secured Hedge Agreements and Secured
Cash Management 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



Last, the balance, if any, after all of the Obligations have been paid in full (other
than (i) contingent indemnification obligations and, (ii) to the extent Cash Collateralized, any
L/C Obligations), to the Company 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, Obligations arising under Secured Cash Management 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.


 


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ARTICLE IX.

ADMINISTRATIVE AGENT




9.01 Appointment and Authority. (a) 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 neither any Borrower nor any other Loan Party shall have rights as a third
party beneficiary of any of such provisions other than Section 9.06.



(b) The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders (in its capacities as a potential Hedge Bank, a potential Cash
Management Bank, a Lender, a Swing Line Lender (if applicable)) and the L/C Issuer hereby
irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and
the L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral
granted by any of the Loan Parties to secure any of the Obligations, together with such powers and
discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as
“collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the
Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien
on the Collateral (or any portion thereof) granted under the Collateral Documents, or for
exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall
be entitled to the benefits of all provisions of this Article IX and Article X
(including Section 10.05(c), as though such co-agents, sub-agents and attorneys-in-fact
were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect
thereto.



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 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:



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


 


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(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
any of the Borrowers or any of their respective 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 Company, 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 the creation,
perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the
value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.



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


 


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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 Company. Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, with the consent of the Company
(which consent will not be reasonably withheld or delayed), 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 Company 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 and the Company 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 as the administrative agent hereunder or under the other Loan Documents (if not already
discharged therefrom as provided above in this Section). The fees payable by the Company to a
successor Administrative Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Company and such successor. After the retiring Administrative Agent’s
resignation hereunder and under the other Loan Documents, the provisions of this Article and
Section 10.05 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.


 


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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, the Arranger
shall not have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C
Issuer hereunder.



9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on any Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise



(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the claims of
the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other amounts due the Lenders,
the L/C Issuer and the Administrative Agent under Sections 2.03(i) and (j),
2.09 and 10.05) allowed in such judicial proceeding; and


 


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



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.05.



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. Each of the Lenders (including in its capacities as a
potential Cash Management Bank and a potential Hedge Bank) and the L/C Issuer irrevocably authorize
the Administrative Agent and the Administrative Agent hereby agrees:



(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 (a) contingent indemnification obligations, (b) obligations and liabilities
under Secured Cash Management Agreements and Secured Hedge Agreements and, (c) to the extent Cash
Collateralized, L/C Obligations), (ii) that is sold, transferred or otherwise disposed of or to be
sold, transferred or otherwise disposed of as part of or in connection with any sale, transfer or
disposal permitted hereunder or under any other Loan Document, (iii) if approved, authorized or
ratified in writing in accordance with Section 10.01, (iv) that is owned by a Subsidiary
Guarantor that is permitted to be released under this Agreement or any other Loan Document, or (v)
constituting property in which the Borrower or any Loan Party owned no interest at the time the
Administrative Agent’s Lien was granted nor at any time thereafter;



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



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 Subsidiary Guarantor from its obligations under the
Subsidiary Guaranty, pursuant to this Section 9.10. In each case as specified in this
Section 9.10, the Administrative Agent will, at the Company’s expense, execute and deliver
to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence
the release of such item of Collateral from the assignment and security interest granted under the
Collateral Documents or to subordinate its interest in such item, or to release such
Subsidiary Guarantor from its obligations under the Subsidiary Guaranty, in each case in
accordance with the terms of the Loan Documents and this Section 9.10.


 


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No Cash Management Bank or Hedge Bank that obtains the benefits of Section 8.03, any
Guaranty or any Collateral by virtue of the provisions hereof or of any Guarantee or 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. 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, Obligations arising under Secured Cash Management Agreements and Secured Hedge
Agreements unless the Administrative Agent has received written notice of such Obligations,
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 Company or any other Loan Party therefrom,
shall be effective unless in writing signed by the Required Lenders and the Company or the
applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each
such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided 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 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 (v) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Loan Document, or change the manner
of computation of any financial ratio (including any change in any applicable defined term) used in
determining the Applicable Rate that would result in a reduction of any interest rate on any Loan
or any fee payable hereunder without the written consent of each Lender directly affected thereby;
provided 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 any Borrower to pay interest or Letter
of Credit Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or
any defined term used therein) even if the effect of such amendment would be to reduce the
rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;


 


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



(f) amend Section 1.06 or the definition of “Alternative Currency” without the written
consent of each Lender;



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



(h) release the Company from the Company Guaranty or all or substantially all of the value of
the Subsidiary Guaranty without the written consent of each Lender;



and provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. Notwithstanding anything 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 Company may replace such non-consenting Lender in accordance with
Section 10.14; 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 Company to be made pursuant to this paragraph).



10.02 Additional Restrictions on Amendments. In addition to Section 10.01 (including
the last two paragraphs thereof), no amendment or waiver of any provision of this Agreement or any
other Loan Document, shall:



(a) release all or substantially all of the Collateral in any transaction or series of related
transactions, without the written consent of each Lender (except the release of substantially all
of the Collateral in connection with the sale of assets permitted hereunder);



(b) change the order of application of any prepayment of Loans among the Facilities from the
application thereof set forth in the applicable provisions of Section 2.05 or
2.06, respectively, in any manner that materially and adversely affects the Lenders
under a Facility without the written consent of (i) if such Facility is the Term Facility, the
Required Term Lenders and (ii) if such Facility is the Revolving Credit Facility, the Required
Revolving Lenders;


 


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(c) change any provision of the definition of “Required Revolving Lenders” or “Required Term
Lenders” without the written consent of each Lender under the applicable Facility; or



(d) impose any greater restriction on the ability of any Lender under a Facility to assign any
of its rights or obligations hereunder without the written consent of (i) if such Facility is the
Term Facility, the Required Term Lenders and (ii) if such Facility is the Revolving Credit
Facility, the Required Revolving Lenders.



10.03 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 a Borrower, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, telecopier number, e-mail address or telephone number specified for
such Person on Schedule 10.03; and




(ii) if to any other Lender, to the address, telecopier number, e-mail address or
telephone number specified in its Administrative Questionnaire.



Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices 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 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 Company may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be limited to
particular notices or communications.


 


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



(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to any 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 any Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the Internet except to the extent
that such losses, claims, damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Agent Party; provided that in no event shall any Agent Party
have any liability to any 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).
The Administrative Agent will use commercially reasonable efforts to notify any Person that is
provided access to Borrower Materials that such Person is bound by the confidentiality provisions
set forth in Section 10.08.



(d) Change of Address, Etc. Each of the Company, the other Loan Parties, 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 Company, 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 e-mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender.


 


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(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 Loan Notices and Swing Line Loan Notices) purportedly given by
or on behalf of any Borrower even if (i) such notices were not made in a manner specified herein,
were incomplete or were not preceded or followed by any other form of notice specified herein, or
(ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The
Company 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 any Borrower other than
as the result of the gross negligence or willful misconduct of any such Person. 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.



10.04 No Waiver; Cumulative Remedies. 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 or under any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided and provided under each
other Loan Document are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.



Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and
the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its
benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan
Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights and remedies that
inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may
be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in
accordance with Section 10.09 (subject to the terms of Section 2.13), or (d) any
Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and
provided, further, that if at any time there is no Person acting as Administrative
Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the
rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in
addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject
to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any
rights and remedies available to it and as authorized by the Required Lenders.


 


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10.05 Expenses; Indemnity; Damage Waiver.



(a) Costs and Expenses. The Company shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of up to one counsel for the Administrative Agent
and the Arranger), 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 reasonable out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the fees, charges and disbursements of any counsel for the Administrative
Agent, any Lender or the L/C Issuer) in connection with the enforcement or protection of its rights
(A) in connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in
respect of such Loans or Letters of Credit.



(b) Indemnification by the Company. The Company 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 fees, charges and disbursements of any counsel for any Indemnitee;
provided that each Lender (whether such Lender is the Administrative Agent or the L/C
Issuer) and its Related Parties shall be limited to reimbursement for only one counsel) incurred by
any Indemnitee or asserted against any Indemnitee by any third party or by any Borrower or any
other Loan Party arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective obligations hereunder
or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case
of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the
administration of this Agreement and the other Loan Documents, (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 Company
or any of its Subsidiaries, or any Environmental Liability related in any way to the Company or any
of its Subsidiaries, or (iv) any actual claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory, whether brought by a
third party or by the Company or any other Loan Party, and regardless of whether any Indemnitee is
a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined
by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the
Company or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s
obligations hereunder or under any other Loan Document, if the Company or such Loan Party has
obtained a final and nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction. No Indemnitee will consent to any settlement of any claim made under this
Section 10.05 without the consent of the Company (which consent will not be unreasonably
withheld and delayed).


 


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(c) Reimbursement by Lenders. To the extent that the Loan Parties for any reason fail
to indefeasibly pay any amount required under subsection (a) or (b) of this Section
to be paid by the Company to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or
any Related Party of any of the foregoing, but without affecting the Company’s reimbursement
obligations hereunder, 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, no Borrower shall 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 provided that such Indemnitee took commercially
reasonable efforts to safeguard such information of other materials, other than for direct or
actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as
determined by a final 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.



10.06 Payments Set Aside. To the extent that any payment by or on behalf of any Borrower is
made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the
L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the Administrative
Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a)
to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender
and the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable
share (without duplication) of any amount so recovered from or repaid by the Administrative Agent,
plus interest thereon from the date of such demand to the date such payment is made at a rate per
annum equal to the applicable Overnight Rate from time to time in effect, in the applicable
currency of such recovery or payment. The obligations of the Lenders and the L/C Issuer under
clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the
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10.07 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 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 under any Facility and the Loans at the time owing to
it under such Facility or in the case of an assignment to a Lender, an Affiliate of
a Lender or an Approved Fund, no minimum amount need be assigned; and




(B) in any case not described in subsection (b)(i)(A) of this Section,
the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative
Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the
Trade Date, shall not be less than $5,000,000, in the case of any assignment in
respect of the Revolving Credit Facility, or $1,000,000, in the case of any
assignment in respect of the Term Facility, unless each of the Administrative Agent
and, so long as no Event of Default has occurred and is continuing, the Company
otherwise consents (each such consent not to be unreasonably withheld or delayed);
provided that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met.


 


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(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 (A) apply to the Swing Line Lender’s rights and obligations in
respect of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of
its rights and obligations among separate Facilities on a non-pro rata basis;




(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 Company (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 for assignments in respect of
(1) any Term Commitment or Revolving Credit Commitment if such assignment is to a
Person that is not a Lender with a Commitment in respect of the applicable Facility,
an Affiliate of such Lender or an Approved Fund with respect to such Lender or (2)
any Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an
Approved Fund;




(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 and the L/C Issuer (in each case such
consent not to be unreasonably withheld or delayed) shall be required for any
assignment in respect of the Revolving Credit Facility.


 


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(iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided that the
Administrative Agent may, in its sole discretion, elect to waive such processing and
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 Company. No such assignment shall be made to the Company
or any of the Company’s Affiliates (as determined at the time of such assignment) or
Subsidiaries.




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




(vii) No Assignment Resulting in Additional Indemnified Taxes. No such
assignment shall be made to any Person that, through its Lending Offices, is not capable of
lending the applicable Alternative Currencies to the relevant Borrowers without the
imposition of any additional Indemnified Taxes.



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
other than pursuant to Section 10.08 (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 10.05 with respect to facts and circumstances
occurring prior to the effective date of such assignment. Upon request, each Borrower (at its
expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with this 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 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 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 Borrowers and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.


 


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(d) Participations. Any Lender may at any time, without the consent of, or notice to,
any Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Company or any of the Company’s Affiliates (as determined at the time of such sale)
or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or
obligations under this Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the 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 and Section 10.02 that affects such Participant. Subject to
subsection (e) of this Section, each Borrower agrees that each Participant shall be
entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to subsection
(b) of this Section. To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 10.09 as though it were a Lender; provided that such
Participant agrees to be subject to Section 2.13 as though it were a Lender and shall be
subject to Section 10.08.



(e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Company’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.01 unless the Company is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with
Section 3.01(e) as though it were a Lender.



(f) Certain Pledges. Any Lender may at any time, without the consent of, or notice
to, any Borrower or the Administrative Agent, 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) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption 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.


 


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(h) 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
Revolving Credit Commitment and Revolving Credit Loans pursuant to subsection (b) above,
Bank of America may, (i) upon 30 days’ notice to the Company and the Lenders, resign as L/C Issuer
and/or (ii) upon 30 days’ notice to the Company, resign as Swing Line Lender. In the event of any
such resignation as L/C Issuer or Swing Line Lender, the Company shall be entitled to appoint from
among the Lenders a successor L/C Issuer or Swing Line Lender hereunder, subject to such Lender’s
acceptance of such appointment; provided that no failure by the Company to appoint any such
successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as
the case may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers,
privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding
as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate 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 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.



10.08 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, advisors and
representatives who need to know such Information (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 in accordance with this Section and it is agreed
to and understood that the Agent, Lender and the L/C Issuer shall be responsible for (and liable to
the Company for) any breach of this Section by any such Person), (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), in which case such Person
thereby requested agrees to use commercially reasonable efforts to inform the Company promptly
following such request and, to the extent practical, will use commercially reasonable efforts to
notify (unless such notice is prohibited by law or regulation) the Company prior to such disclosure
(other than with respect to routine regulatory requests), (c) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process, in



 


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which case such Person thereby
requested agrees to use commercially reasonable efforts to inform the Company promptly following such request and, to the extent practical, will use commercially
reasonable efforts to notify (unless such notice is prohibited by law or regulation) the Company
prior to such disclosure (other than with respect to routine matters), (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;
provided that such assignee, Participant, prospective assignee or prospective Participant
agrees to use the information solely for evaluating its investment hereunder and is advised of and
agrees to be bound by the provisions of this Section 10.08, or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to a
Borrower and its obligations; provided that such counterparty agrees to use the Information
so disclosed solely with respect to such transaction and is advised of and agrees to be bound by
the provisions of this Section 10.08, (g) with the consent of the Company 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 Company that is
not known to be subject to a confidentiality or similar agreement with the Company or any of its
Subsidiaries.



For purposes of this Section, “Information” means all information received from the
Company or any Subsidiary relating to the Company 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 Company or any
Subsidiary from a Person that is not known to be subject to a confidentiality or similar agreement
with the Company or any of its Subsidiaries; provided that, in the case of information
received from the Company or any Subsidiary after the Original Closing Date, such information is
clearly identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.



Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Company 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 those procedures and applicable Law, including Federal and state securities Laws.


 


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10.09 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 any
Borrower against any and all of the obligations of such Borrower now or hereafter existing
under this Agreement or any other Loan Document to such Lender or the L/C Issuer, irrespective of
whether or not such Lender or the L/C Issuer shall have made any demand under this Agreement or any
other Loan Document and although such obligations of such Borrower may be contingent or unmatured
or are owed to a branch or office of such Lender or the L/C Issuer different from the branch or
office holding such deposit or obligated on such indebtedness. 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 Company 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.



10.10 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 Company. 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.



10.11 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 and any confidentiality agreement entered into prior to
the date hereof constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or written, relating
to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall
become effective when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery
of a manually executed counterpart of this Agreement.



10.12 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.


 


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10.13 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.



10.14 Replacement of Lenders. If any Lender requests compensation under Section 3.04,
or if any Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, or if any Lender is a
Defaulting Lender or if any other circumstance exists hereunder that gives the Company the right to
replace a Lender as a party hereto, then the Company may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained in, and consents
required by, Section 10.07), 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 Company shall have paid (or caused a Subsidiary to pay) to the Administrative Agent
the assignment fee specified in Section 10.07(b);



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



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



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



10.15 Governing Law; Jurisdiction; Etc.



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


 


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(b) SUBMISSION TO JURISDICTION. EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY AND OF THE
UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT, AND ANY APPELLATE COURT FROM ANY
THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY
OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C
ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AGAINST ANY BORROWER OR EACH OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.



(c) WAIVER OF VENUE. EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH
(B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.



(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.03. EACH FOREIGN OBLIGOR HEREBY
IRREVOCABLY APPOINTS THE COMPANY AS ITS AUTHORIZED AGENT TO RECEIVE ON ITS BEHALF SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT AND CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY
SUCH COURTS BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO SUCH AGENT IN THE
MANNER PROVIDED FOR NOTICES IN SECTION 10.03, AND AGREES THAT SUCH SERVICE, TO THE FULLEST
EXTENT PERMITTED BY LAW: (I) SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON IT
IN ANY SUCH SUIT, ACTION OR PROCEEDING; AND (II) SHALL BE TAKEN AND HELD TO BE VALID PERSONAL
SERVICE UPON AND PERSONAL DELIVERY TO IT. IF ANY AGENT APPOINTED BY ANY PERSON PARTY HERETO
REFUSES TO ACCEPT SERVICE, SUCH PERSON HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL UPON
RECEIPT CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN CONTAINED SHALL AFFECT THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF ANY OTHER PERSON PARTY
HERETO TO BRING PROCEEDINGS AGAINST SUCH PARTY IN THE COURTS OF ANY OTHER JURISDICTION.


 


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10.16 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.



10.17 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby, each Borrower acknowledges and agrees that: (i) the credit
facility provided for hereunder and any related arranging or other services in connection therewith
(including in connection with any amendment, waiver or other modification hereof or of any other
Loan Document) are an arm’s-length commercial transaction between the Borrowers and their
respective Affiliates, on the one hand, and the Administrative Agent and the Arranger, on the other
hand, and such Borrower is capable of evaluating and understanding and understands and accepts the
terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents
(including any amendment, waiver or other modification hereof or thereof); (ii) in connection with
the process leading to such transaction, the Administrative Agent and the Arranger each is and has
been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the
Borrowers or any of their respective Affiliates, stockholders, creditors or employees or any other
Person; (iii) neither the Administrative Agent nor any Arranger has assumed or will assume an
advisory, agency or fiduciary responsibility in favor of the Borrowers with respect to any of the
transactions contemplated hereby or the process leading thereto, including with respect to any
amendment, waiver or other modification hereof or of any other Loan Document (irrespective of
whether the Administrative Agent or any Arranger has advised or is currently advising any Borrower
or any of its Affiliates on other matters) and neither the Administrative Agent nor any Arranger
has any obligation to any Borrower or any of its Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in the other Loan
Documents; (iv) 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 the
Borrowers and their respective Affiliates, and neither the Administrative Agent nor any Arranger
has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Administrative Agent and the Arranger have not provided and will not
provide any legal, accounting, regulatory or tax advice with respect to any of the transactions
contemplated hereby (including any amendment, waiver or other modification hereof or of any other
Loan Document) and the Borrowers have consulted its own legal, accounting, regulatory
and tax advisors to the extent it has deemed appropriate. Each Borrower hereby waives and
releases, to the fullest extent permitted by law, 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.


 


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10.18 USA PATRIOT Act Notice. 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
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 the Borrowers, which information includes the name and address
of each Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify such Borrower in accordance with the Act.



10.19 Judgment Currency. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or any other Loan Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the first currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligation of each Borrower
in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder or
under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment
Currency”) other than that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent
that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so
due in the Judgment Currency, the Administrative Agent may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the
Agreement Currency so purchased is less than the sum originally due to the Administrative Agent
from any Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such
obligation was owing against such loss. If the amount of the Agreement Currency so purchased is
greater than the sum originally due to the Administrative Agent in such currency, the
Administrative Agent agrees to return the amount of any excess to such Borrower (or to any other
Person who may be entitled thereto under applicable law).



10.20 Effect of Amendment and Restatement of the Existing Credit Agreement. Effective as of
the Closing Date, the Existing Credit Agreement shall be amended and restated in its entirety. The
parties hereto acknowledge and agree that (a) this Agreement and the other Loan Documents, whether
executed and delivered in connection herewith or otherwise, do not constitute a novation or
termination of the “Obligations” (as defined in the Existing Credit Agreement) under the Existing
Credit Agreement as in effect immediately prior to the Closing Date and which remain outstanding
and (b) the “Obligations” (as amended and restated hereby and which are hereinafter subject to the
terms herein) are in all respects continuing.


 


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



	 	 	 	 	 
	 	MONSTER WORLDWIDE, INC.

 	 
	 	By:  	/s/ Timothy T. Yates
 	 
	 	 	Name:  	Timothy T. Yates 	 
	 	 	Title:  	Executive Vice President and 
Chief Financial Officer 	 



Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as

Administrative Agent

 	 
	 	By:  	/s/ Anne M. Zeschke
 	 
	 	 	Name:  	Anne M. Zeschke 	 
	 	 	Title:  	Vice President 	 



Amended and Restated Credit Agreement




 


 









 







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

Issuer and Swing Line Lender

 	 
	 	By:  	/s/ Steven J. Melicharek
 	 
	 	 	Name:  	Steven J. Melicharek 	 
	 	 	Title:  	Senior Vice President 	 



Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	Citibank, N.A.,

as a Lender

 	 
	 	By:  	/s/ James M. Walsh
 	 
	 	 	Name:  	James M. Walsh 	 
	 	 	Title:  	Managing Director 	 



Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	Fifth Third Bank,

as a Lender

 	 
	 	By:  	/s/ George B. Davis
 	 
	 	 	Name:  	George B. Davis 	 
	 	 	Title:  	Vice President 	 



Amended and Restated Credit Agreement



 


 









 






	 	 	 	 	 
	 	Keybank National Association,

as a Lender

 	 
	 	By:  	/s/ Jeff Kalinowski
 	 
	 	 	Name:  	Jeff Kalinowski 	 
	 	 	Title:  	Senior Vice President 	 



Amended and Restated Credit Agreement


 


 









 






	 	 	 	 	 
	 	Bank of Tokyo-Mitsubishi, UFJ Trust Company,

as a Lender

 	 
	 	By:  	/s/ Kenneth Egusa
 	 
	 	 	Name:  	Kenneth Egusa 	 
	 	 	Title:  	Vice President 	 



Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	Sumitomo Mitsui Banking Corporation,

as a Lender

 	 
	 	By:  	/s/ Yasuhiko Imai
 	 
	 	 	Name:  	Yasuhiko Imai 	 
	 	 	Title:  	Senior Vice President 	 



Amended and Restated Credit Agreement

 


 









 






	 	 	 	 	 
	 	Svenska Handelsbanken,

as a Lender

 	 
	 	By:  	/s/ Anders Abelson
 	 
	 	 	Name:  	Anders Abelson 	 
	 	 	Title:  	Vice President 	 
	 	 	 
	 	By:  	                /s/ Richard Johnson
 	 
	 	 	Name:  	Richard Johnson 	 
	 	 	Title:  	Senior Vice President 	 



Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	State Bank of India,

as a Lender

 	 
	 	By:  	/s/ Praboda Parikh
 	 
	 	 	Name:  	Praboda Parikh 	 
	 	 	Title:  	Vice President of Head Credit 	 



Amended and Restated Credit Agreement




 


 









 







	 	 	 	 	 
	 	Deutsche Bank AG New York Branch,

as a Lender

 	 
	 	By:  	/s/ Andreas Neumeier
 	 
	 	 	Name:  	Andreas Neumeier 	 
	 	 	Title:  	Managing Director 	 
	 	 	 
	 	By:  	              /s/ Yvonne Pilden
 	 
	 	 	Name:  	Yvonne Pilden 	 
	 	 	Title:  	Director 	 



Amended and Restated Credit Agreement




 


 









 





SCHEDULE 1.01




MANDATORY COST FORMULAE





	1.	 	The Mandatory Cost (to the extent applicable) is an addition to the interest rate to
compensate Lenders for the cost of compliance with:







	 	(a)	 	the requirements of the Bank of England and/or the Financial Services Authority
(or, in either case, any other authority which replaces all or any of its functions);
or

	 
	 	(b)	 	the requirements of the European Central Bank.







	2.	 	On the first day of each Interest Period (or as soon as possible thereafter) the
Administrative Agent shall calculate, as a percentage rate, a rate (the “Additional Cost
Rate”) for each Lender, in accordance with the paragraphs set out below. The Mandatory
Cost will be calculated by the Administrative Agent as a weighted average of the Lenders’
Additional Cost Rates (weighted in proportion to the percentage participation of each Lender
in the relevant Loan) and will be expressed as a percentage rate per annum. The
Administrative Agent will, at the request of the Company or any Lender, deliver to the Company
or such Lender as the case may be, a statement setting forth the calculation of any Mandatory
Cost.







	3.	 	The Additional Cost Rate for any Lender lending from a Lending Office in a Participating
Member State will be the percentage notified by that Lender to the Administrative Agent. This
percentage will be certified by such Lender in its notice to the Administrative Agent to be
its reasonable determination of the cost (expressed as a percentage of such Lender’s
participation in all Loans made from such Lending Office) of complying with the minimum
reserve requirements of the European Central Bank in respect of Loans made from that Lending
Office.







	4.	 	The Additional Cost Rate for any Lender lending from a Lending Office in the United Kingdom
will be calculated by the Administrative Agent as follows:







	 	(a)	 	in relation to any Loan in Sterling:






	 	 	 	 	 
	  

	 	AB+C(B-D)+E x 0.01
 

	 	per cent per annum
	 

	 	100 - (A+C)	 	 







	 	(b)	 	in relation to any Loan in any currency other than Sterling:






 
	 	 	 	 	 	 	 
	 

	 	E x 0.01	 	per cent per annum
	 

	 	 
300	 	






Where:




	 	“A”	 	 is the percentage of Eligible Liabilities (assuming these to be in excess of
any stated minimum) which that Lender is from time to time required to maintain as
an interest free cash ratio deposit with the Bank of England to comply with cash
ratio requirements.





 


 









 






	 	“B”	 	 is the percentage rate of interest (excluding the Applicable Rate, the
Mandatory Cost and any interest charged on overdue amounts pursuant to the first
sentence of Section 2.08(b) and, in the case of interest (other than on overdue
amounts) charged at the Default Rate, without counting any increase in interest rate
effected by the charging of the Default Rate) payable for the relevant Interest Period
of such Loan.







	 	“C”	 	 is the percentage (if any) of Eligible Liabilities which that Lender is
required from time to time to maintain as interest bearing Special Deposits with the
Bank of England.







	 	“D”	 	 is the percentage rate per annum payable by the Bank of England to the
Administrative Agent on interest bearing Special Deposits.







	 	“E”	 	is designed to compensate Lenders for amounts payable under the Fees Rules and
is calculated by the Administrative Agent as being the average of the most recent rates
of charge supplied by the Lenders to the Administrative Agent pursuant to paragraph
7 below and expressed in pounds per £1,000,000.







	5.	 	For the purposes of this Schedule:







	 	(a)	 	“Eligible Liabilities” and “Special Deposits” have the meanings
given to them from time to time under or pursuant to the Bank of England Act 1998 or
(as may be appropriate) by the Bank of England;







	 	(b)	 	“Fees Rules” means the rules on periodic fees contain in the Financial
Services Authority Fees or such other law or regulation as may be in force from time to
time in respect of the payment of fees for the acceptance of deposits;







	 	(c)	 	“Fee Tariffs” means the fee tariffs specified in the Fees Rules under
the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee
required pursuant to the Fees Rules but taking into account any applicable discount
rate); and







	 	(d)	 	“Tariff Base” has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules.







	6.	 	In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5% will be included in the formula as 5 and not as 0.05). A negative result
obtained by subtracting D from B shall be taken as zero. The resulting figures shall be
rounded to four decimal places.







	7.	 	If requested by the Administrative Agent or the Company, each Lender with a Lending Office in
the United Kingdom or a Participating Member State shall, as soon as practicable after
publication by the Financial Services Authority, supply to the
Administrative Agent and the Company, the rate of charge payable by such Lender to the
Financial Services Authority pursuant to the Fees Rules in respect of the relevant financial
year of the Financial Services Authority (calculated for this purpose by such Lender as
being the average of the Fee Tariffs applicable to such Lender for that financial year) and
expressed in pounds per £1,000,000 of the Tariff Base of such Lender.





 


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	8.	 	Each Lender shall supply any information required by the Administrative Agent for the purpose
of calculating its Additional Cost Rate. In particular, but without limitation, each Lender
shall supply the following information in writing on or prior to the date on which it becomes
a Lender:







	 	(a)	 	the jurisdiction of the Lending Office out of which it is making available its
participation in the relevant Loan; and







	 	(b)	 	any other information that the Administrative Agent may reasonably require for
such purpose.






Each Lender shall promptly notify the Administrative Agent in writing of any change to the
information provided by it pursuant to this paragraph.




	9.	 	The percentages of each Lender for the purpose of A and C above and the rates of charge of
each Lender for the purpose of E above shall be determined by the Administrative Agent based
upon the information supplied to it pursuant to paragraphs 7 and 8 above and
on the assumption that, unless a Lender notifies the Administrative Agent to the contrary,
each Lender’s obligations in relation to cash ratio deposits and Special Deposits are the same
as those of a typical bank from its jurisdiction of incorporation with a Lending Office in the
same jurisdiction as its Lending Office.







	10.	 	The Administrative Agent shall have no liability to any Person if such determination results
in an Additional Cost Rate which over- or under-compensates any Lender and shall be entitled
to assume that the information provided by any Lender pursuant to paragraphs 3,
7 and 8 above is true and correct in all respects.





 


3









 






	11.	 	The Administrative Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based
on the information provided by each Lender pursuant to paragraphs 3, 7 and
8 above.







	12.	 	Any determination by the Administrative Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender shall,
in the absence of manifest error, be conclusive and binding on all parties hereto.







	13.	 	The Administrative Agent may from time to time, after consultation with the Company and the
Lenders, determine and notify to all parties any amendments which are required to be made to
this Schedule in order to comply with any change in law, regulation or any requirements from
time to time imposed by the Bank of England, the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces all or any of its functions) and any such determination shall, in the absence of
manifest error, be conclusive and binding on all parties hereto.







 


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