exv10w20






Exhibit 10.20




Published CUSIP Number:
                                       





CREDIT AGREEMENT




Dated as of September 4, 2009




among




ARTIO GLOBAL HOLDINGS LLC,

as the Borrower,




THE SUBSIDIARIES OF THE BORROWER PARTY HERETO,

as the Guarantors,




BANK OF AMERICA, N.A.,

as Administrative Agent and L/C Issuer,




and




THE OTHER LENDERS PARTY HERETO




Arranged By:




BANC OF AMERICA SECURITIES LLC,

d/b/a Bank of America Merrill Lynch




as Sole Lead Arranger and Book Manager





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	20	 
	1.03 Accounting Terms
	 	 	21	 
	1.04 Rounding
	 	 	21	 
	1.05 Times of Day
	 	 	22	 
	1.06 Letter of Credit Amounts
	 	 	22	 
	 
	 	 	 	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	22	 
	2.01 Revolving Loans and Term Loan
	 	 	22	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	23	 
	2.03 Letters of Credit
	 	 	25	 
	2.04 [Reserved.]
	 	 	32	 
	2.05 Prepayments
	 	 	32	 
	2.06 Termination or Reduction of Commitments
	 	 	33	 
	2.07 Repayment of Loans
	 	 	34	 
	2.08 Interest
	 	 	35	 
	2.09 Fees
	 	 	35	 
	2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
	 	 	36	 
	2.11 Evidence of Debt
	 	 	36	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	37	 
	2.13 Sharing of Payments by Lenders
	 	 	39	 
	 
	 	 	 	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	39	 
	3.01 Taxes
	 	 	39	 
	3.02 Illegality
	 	 	42	 
	3.03 Inability to Determine Rates
	 	 	43	 
	3.04 Increased Costs
	 	 	43	 
	3.05 Compensation for Losses
	 	 	44	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	45	 
	3.07 Survival
	 	 	45	 
	 
	 	 	 	 
	ARTICLE IV GUARANTY
	 	 	45	 
	4.01 The Guaranty
	 	 	46	 
	4.02 Obligations Unconditional
	 	 	46	 
	4.03 Reinstatement
	 	 	47	 
	4.04 Certain Additional Waivers
	 	 	47	 
	4.05 Remedies
	 	 	47	 
	4.06 Rights of Contribution
	 	 	47	 
	4.07 Guarantee of Payment; Continuing Guarantee
	 	 	48	 
	 
	 	 	 	 
	ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	48	 
	5.01 Conditions of Effectiveness
	 	 	48	 
	5.02 Conditions to Initial Credit Extension
	 	 	49	 
	5.03 Conditions to all Credit Extensions
	 	 	49	 
	 
	 	 	 	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	50	 
	6.01 Existence, Qualification and Power
	 	 	50	 
	6.02 Authorization; No Contravention
	 	 	50	 
	6.03 Governmental Authorization; Other Consents
	 	 	50	 






i









 






	 	 	 	 	 
	6.04 Binding Effect
	 	 	51	 
	6.05 Financial Statements; No Material Adverse Effect
	 	 	51	 
	6.06 Litigation
	 	 	51	 
	6.07 No Default
	 	 	52	 
	6.08 Taxes
	 	 	52	 
	6.09 ERISA Compliance
	 	 	52	 
	6.10 Borrower and Subsidiaries
	 	 	53	 
	6.11 Margin Regulations; Investment Company Act; Investment Advisers Act
	 	 	53	 
	6.12 Disclosure
	 	 	53	 
	6.13 Compliance with Laws
	 	 	53	 
	6.14 Solvency
	 	 	53	 
	 
	 	 	 	 
	ARTICLE VII AFFIRMATIVE COVENANTS
	 	 	54	 
	7.01 Financial Statements
	 	 	54	 
	7.02 Certificates; Other Information
	 	 	55	 
	7.03 Notices
	 	 	56	 
	7.04 Payment of Taxes
	 	 	57	 
	7.05 Preservation of Existence, Etc
	 	 	57	 
	7.06 Compliance with Laws
	 	 	57	 
	7.07 Books and Records
	 	 	58	 
	7.08 Inspection Rights
	 	 	58	 
	7.09 Use of Proceeds
	 	 	58	 
	7.10 ERISA Compliance
	 	 	58	 
	7.11 Additional Subsidiaries
	 	 	58	 
	7.12 Maintenance of Properties/Insurance
	 	 	59	 
	 
	 	 	 	 
	ARTICLE VIII NEGATIVE COVENANTS
	 	 	59	 
	8.01 Liens
	 	 	59	 
	8.02 Indebtedness
	 	 	61	 
	8.03 Fundamental Changes
	 	 	62	 
	8.04 Dispositions
	 	 	62	 
	8.05 Restricted Payments
	 	 	62	 
	8.06 Change in Nature of Business
	 	 	63	 
	8.07 Transactions with Affiliates and Insiders
	 	 	63	 
	8.08 Burdensome Agreements
	 	 	64	 
	8.09 Use of Proceeds
	 	 	64	 
	8.10 Financial Covenants
	 	 	64	 
	8.11 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity
	 	 	65	 
	 
	 	 	 	 
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES
	 	 	65	 
	9.01 Events of Default
	 	 	65	 
	9.02 Remedies Upon Event of Default
	 	 	67	 
	9.03 Application of Funds
	 	 	67	 
	 
	 	 	 	 
	ARTICLE X ADMINISTRATIVE AGENT
	 	 	68	 
	10.01 Appointment and Authority
	 	 	68	 
	10.02 Rights as a Lender
	 	 	68	 
	10.03 Exculpatory Provisions
	 	 	69	 
	10.04 Reliance by Administrative Agent
	 	 	69	 
	10.05 Delegation of Duties
	 	 	70	 
	10.06 Resignation of Administrative Agent
	 	 	70	 
	10.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	71	 
	10.08 No Other Duties; Etc
	 	 	71	 






ii









 






	 	 	 	 	 
	10.09 Administrative Agent May File Proofs of Claim
	 	 	71	 
	10.10 Guaranty Matters
	 	 	72	 
	 
	 	 	 	 
	ARTICLE XI MISCELLANEOUS
	 	 	72	 
	11.01 Amendments, Etc
	 	 	72	 
	11.02 Notices; Effectiveness; Electronic Communications
	 	 	74	 
	11.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	76	 
	11.04 Expenses; Indemnity; and Damage Waiver
	 	 	76	 
	11.05 Payments Set Aside
	 	 	78	 
	11.06 Successors and Assigns
	 	 	78	 
	11.07 Treatment of Certain Information; Confidentiality
	 	 	81	 
	11.08 Set-off
	 	 	82	 
	11.09 Interest Rate Limitation
	 	 	83	 
	11.10 Counterparts; Integration; Effectiveness
	 	 	83	 
	11.11 Survival of Representations and Warranties
	 	 	83	 
	11.12 Severability
	 	 	83	 
	11.13 Replacement of Lenders
	 	 	84	 
	11.14 Governing Law; Jurisdiction; Etc
	 	 	85	 
	11.15 Waiver of Right to Trial by Jury
	 	 	85	 
	11.16 No Advisory or Fiduciary Responsibility
	 	 	86	 
	11.17 Electronic Execution of Assignments and Certain Other Documents
	 	 	86	 
	11.18 USA PATRIOT Act Notice
	 	 	86	 







iii









 








SCHEDULES




	 	 	 
	2.01

	 	Commitments and Applicable Percentages
	6.10

	 	Borrower and Subsidiaries Information
	8.01

	 	Liens Existing on the Closing Date
	8.02

	 	Indebtedness Existing on the Closing Date
	8.05

	 	Amended and Restated LLC Agreement
	8.07

	 	Transactions with Affiliates
	8.08

	 	Burdensome Agreements
	11.02

	 	Certain Addresses for Notices






EXHIBITS




	 	 	 
	2.02

	 	Form of Loan Notice
	2.11(a)

	 	Form of Note
	7.02

	 	Form of Compliance Certificate
	7.11

	 	Form of Joinder Agreement
	11.06(b)

	 	Form of Assignment and Assumption
	11.06(b)(iv)

	 	Form of Administrative Questionnaire






iv









 





CREDIT AGREEMENT




     This CREDIT AGREEMENT is entered into as of September 4, 2009 among ARTIO GLOBAL HOLDINGS LLC,
a Delaware limited liability company (the “Borrower”), the Guarantors (defined herein), the
Lenders (defined herein) and BANK OF AMERICA, N.A., as Administrative Agent and L/C Issuer.



     The Borrower has requested that the Lenders provide senior unsecured credit facilities in the
initial aggregate amount of $110,000,000 for the purposes set forth herein, and the Lenders are
willing to do so on the terms and conditions set forth herein.



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



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms.



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



     “Acquisition”, by any Person, means the acquisition by such Person, in a single
transaction or in a series of related transactions, of either (a) all or substantially all of the
property of, or a line of business or division of, another Person (other than the Borrower or any
Subsidiary) or (b) at least a majority of the Voting Stock of another Person (other than the
Borrower or any Subsidiary), in each case whether or not involving a merger or consolidation with
such other Person.



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



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.02 or such other address or account as the
Administrative Agent may from time to time notify to the Borrower and the Lenders.



     “Administrative Questionnaire” means an Administrative Questionnaire in substantially
the form of Exhibit 11.06(b)(iv) or any other form approved by the Administrative Agent.



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



     “Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders.
The initial amount of the Aggregate Revolving Commitments in effect on the Closing Date is
$50,000,000.



     “Aggregate Term Loan Commitments” means the Term Loan Commitments of all the Lenders.
The initial amount of the Aggregate Term Loan Commitments in effect on the Closing Date is
$60,000,000.



 









 





     “Agreement” means this Credit Agreement.



     “Amended and Restated LLC Agreement” means the Amended and Restated Limited Liability
Company Agreement of the Borrower to be entered into in connection with the initial public offering
of the Parent, the form of which is attached hereto as Schedule 8.05.



     “Applicable Percentage” means with respect to any Lender at any time, (a) with respect
to such Lender’s Revolving Commitment at any time, the percentage (carried out to the ninth decimal
place) of the Aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at
such time; provided that if the commitment of each Lender to make Revolving Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 9.02 or if the Aggregate Revolving Commitments have expired, then the Applicable
Percentage of each such Lender shall be determined based on the Applicable Percentage of such
Lender most recently in effect, giving effect to any subsequent assignments, (b) prior to the
Initial Funding Date, with respect to such Lender’s Term Loan Commitment at any time, the
percentage (carried out to the ninth decimal place) of the Aggregate Term Loan Commitments
represented by such Lender’s Term Loan Commitment at such time; provided that if the commitment of
each Lender to make Term Loans have been terminated pursuant to Section 9.02 or if the
Aggregate Term Loan Commitments have expired, then the Applicable Percentage of each such Lender
shall be determined based on the Applicable Percentage of such Lender most recently in effect,
giving effect to any subsequent assignments and (c) on and subsequent to the Initial Funding Date,
with respect to such Lender’s portion of the outstanding Term Loan at any time, the percentage
(carried out to the ninth decimal place) of the outstanding principal amount of the Term Loan held
by such Lender at such time. The initial Applicable Percentage of each Lender is set forth
opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.



     “Applicable Rate” means the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 7.02(b):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Eurodollar Rate	 	 
	Pricing	 	 	 	Commitment	 	Loans and Letter	 	Base Rate
	Tier	 	Consolidated Leverage Ratio	 	Fee	 	of Credit Fees	 	Loans
	1

	 	£ 1.0 to 1.0
	 	 	.50	%	 	 	3.00	%	 	 	2.00	%
	2

	 	£ 1.5 to 1.0 but > 1.0 to 1.0
	 	 	.60	%	 	 	3.50	%	 	 	2.50	%
	3

	 	> 1.5 to 1.0
	 	 	.75	%	 	 	4.00	%	 	 	3.00	%





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 7.02(b); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with such
Section, then, upon the request of the Required Lenders, Pricing Tier 3 shall apply as of the first
Business Day after the date on which such Compliance Certificate was required to have been
delivered and shall remain in effect until the date on which such Compliance Certificate is
delivered in accordance with Section 7.02(b), whereupon the Applicable Rate shall be
adjusted based upon the calculation of the Consolidated Leverage Ratio contained in such Compliance
Certificate. The Applicable Rate in effect from the Closing Date through the first Business Day




2









 







immediately following the date a Compliance Certificate is required to be delivered pursuant to
Section 7.02(b) for the fiscal quarter ending September 30, 2009 shall be determined based
upon Pricing Tier 1.




     “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 d/b/a Bank of America Merrill Lynch,
in its capacity as sole lead arranger and book manager.



     “Assets Under Management” means the market value of all assets managed by the
Borrower or a Subsidiary in the ordinary course of its business pursuant to management contracts.



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



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



     “Attributable Indebtedness” means, with respect to any Person on any date, (a) in
respect of any Capital Lease, the capitalized amount thereof that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic
Lease, 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, (c) in respect of any Securitization Transaction, the
outstanding principal amount of such financing, after taking into account reserve accounts and
making appropriate adjustments, determined by the Administrative Agent in its reasonable judgment
and (d) in respect of any Sale and Leaseback Transaction, the present value (discounted in
accordance with GAAP at the debt rate implied in the applicable lease) of the obligations of the
lessee for rental payments during the term of such lease.



     “Audited Financial Statements” means the audited consolidated statement of financial
position or balance sheet of the Borrower and its Subsidiaries for the fiscal year ended December
31, 2008, and the related consolidated statements of income, members’ equity and cash flows of the
Borrower and its Subsidiaries for such fiscal year, including the notes thereto.



     “Availability Period” means, with respect to the Revolving Commitments, the period
from and including the Initial Funding Date to the earliest of (a) the Maturity Date, (b) the date
of termination of the Aggregate Revolving Commitments pursuant to Section 2.06, and (c) the
date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section 9.02.



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



     “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate plus 0.50%, (b) the Prime Rate and (c) except during a Eurodollar
Unavailability Period, the Eurodollar Rate plus 1.0%.



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



3









 





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



     “Borrower Materials” has the meaning specified in Section 7.02.



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



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate
Loan or any Base Rate Loan bearing interest at a rate based on the Eurodollar Rate, means any such
day on which dealings in Dollar deposits are conducted by and between banks in the London interbank
eurodollar market.



     “Capital Lease” means, as applied to any Person, any lease of any property by that
Person as lessee which, in accordance with GAAP, is required to be accounted for as a capital lease
on the balance sheet of that Person.



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



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



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




     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
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 Julius Baer and its Affiliates
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 Equity Interests 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 35% or more of the Equity Interests of the
Parent entitled to vote for members of the board of directors or equivalent governing body
of the Parent 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); provided that
the percentage in this clause (a) shall be increased from 35% to 49% for any such “person”
or “group” who purchases the Equity Interests of the Parent directly from Julius Baer or its
Affiliates; or




     (b) the Parent fails to be the sole managing member of the Borrower.



     “Closing Date” means the date hereof.



     “Commitment” means, as to each Lender, the Revolving Commitment of such Lender and/or
the Term Loan Commitment of such Lender.



4









 





     “Compliance Certificate” means a certificate substantially in the form of Exhibit
7.02 or such other form reasonably acceptable to the Borrower and the Administrative Agent.



     “Consolidated Assets” means the consolidated assets of the Borrower and its Domestic
Subsidiaries, as of the end of the most recent fiscal quarter period for which financial statements
are required to be delivered pursuant to Section 5.01(f), 7.01(a) or 7.01(b), as determined
in accordance with GAAP.



     “Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a)
the following to the extent deducted in calculating such Consolidated Net Income, without
duplication: (i) Consolidated Interest Charges, (ii) the provision for federal, state, local and
foreign income taxes, (iii) the amount of depreciation and amortization expense, (iv) non-cash
charges (including non-cash charges related to equity compensation expense); provided that if any
such non-cash charge represents an accrual or reserve for potential cash items in any future
period, the cash payment in respect thereof in such future period shall be subtracted from
Consolidated EBITDA in such future period to such extent, (v) transaction costs, fees and expenses
in connection with the Parent’s initial public offering (to the extent incurred on or prior to the
date of such initial public offering) and the entry into this Agreement and the other Loan
Documents, (vi) prior to the Initial Funding Date, any charges representing the allocation of Class
B profits interests to, and changes in the redemption value of the Class B profits interests of,
Richard Pell and Rudolph-Riad Younes, (vii) mark-to-market losses recognized pursuant to Financial
Accounting Standards Board Statement No. 133 or any successor thereof and (viii) unrealized losses
from investments and minus (b) to the extent included in calculating such Consolidated Net
Income, (i) interest and dividend income, (ii) mark-to-market gains recognized pursuant to
Financial Accounting Standards Board Statement No. 133 or any successor thereof, (iii) unrealized
gains from investments and (iv) non-cash income or gains. For purposes of determining the
Consolidated Interest Coverage Ratio and the Consolidated Leverage Ratio as of or for the period
ended on June 30, 2009, Consolidated EBITDA will be deemed to be equal to $39,713,700.



     “Consolidated Funded Indebtedness” means, as of any date of determination with respect
to the Borrower and its Subsidiaries on a consolidated basis, without duplication, the sum of: (a)
the outstanding principal amount of all obligations for borrowed money, whether current or
long-term (including the Obligations under this Agreement) and all obligations evidenced by bonds,
debentures, notes, loan agreements or other similar instruments; (b) all purchase money
Indebtedness; (c) the maximum amount available to be drawn 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) all Attributable
Indebtedness; (f) except for Restricted Payments made in accordance with Sections 8.05(c)
and 8.05(d), all obligations to purchase, redeem, retire, defease or otherwise make any
payment prior to the Maturity Date in respect of any Equity Interests or any warrant, right or
option to acquire such Equity Interest, valued, in the case of a redeemable preferred interest, at
the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends; (g) all Guarantees with respect to Indebtedness of the types specified in clauses (a)
through (f) above of another Person; and (h) all Indebtedness of the types referred to in clauses
(a) through (g) above of any partnership or joint venture (other than a joint venture that is
itself a corporation or limited liability company) in which any Loan Party or any Subsidiary is a
general partner or joint venturer, except to the extent that Indebtedness is expressly made
non-recourse to such Person. Notwithstanding any other provision of this Agreement to the
contrary, the amount of Consolidated Funded Indebtedness for which recourse is limited either to a
specified amount or to an identified asset of such Person shall be deemed to be equal to such
specified amount or the fair market value of such identified asset as determined by such Person in
good faith, as the case may be.



5









 





     “Consolidated Interest Charges” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses in connection with borrowed money
(including capitalized interest) or in connection with the deferred purchase price of assets, in
each case to the extent paid in cash and to the extent treated as interest in accordance with GAAP
but in any event excluding upfront fees and expenses and the amortization of deferred financing
costs, plus (b) the portion of rent expense with respect to such period under Capital
Leases that is paid in cash and treated as interest in accordance with GAAP plus (c) to the
extent paid in cash, the implied interest component of Synthetic Leases with respect to such
period. For purposes of the foregoing, interest expense shall be determined after giving effect to
any net payments made or received by the Borrower or any Subsidiary with respect to interest rate
Swap Contracts.



     “Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the most recently completed two fiscal quarters to (b)
Consolidated Interest Charges for the most recently completed two fiscal quarters.



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
the sum of, without duplication, (i) Consolidated Funded Indebtedness as of such date plus
(ii) the remaining amount of the Deferred Payment as of such date to (b) an amount equal to (i)
Consolidated EBITDA for the most recently completed two fiscal quarters multiplied by (ii) two (2).



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



     “Consolidated Revenues” means the consolidated revenues of the Borrower and its
Domestic Subsidiaries for the most recent two quarter period for which financial statements have
been delivered pursuant to Section 5.01, 7.01(a) or 7.01(b), as determined in accordance
with GAAP.



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



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



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



     “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



6









 




Loans plus (iii) 2% per annum; provided,
however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any Applicable
Rate) otherwise applicable to such Loan plus 2% per annum, in each case to the fullest extent
permitted by applicable Laws 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
Loans or participations in L/C Obligations 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.



     “Deferred Payment” means the dividend or distribution declared on or prior to the
Initial Funding Date and payable to the Parent (and by the Parent to Julius Baer) on or before the
first anniversary of the consummation of the initial public offering of the Parent and in an amount
not to exceed $40,100,000.



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition of any property by any Loan Party or any Subsidiary and any sale, assignment, transfer
or other disposal, with or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith, but excluding any Involuntary Disposition.



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



     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
state of the United States or the District of Columbia.



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Sections 11.06(b)(iii), (v), (vi) and (vii) (subject to such
consents, if any, as may be required under Section 11.06(b)(iii)).



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



     “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any
Loan Party or any Subsidiary 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



7









 




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; provided that “Equity Interests” shall exclude any
Indebtedness convertible into or exchangeable for equity to the extent not yet converted or
exchanged.




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



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



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



     “Eurodollar Base Rate” means:




     (a) For any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum
equal to (i) the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published
by Reuters (or other commercially available source providing quotations of BBA LIBOR as
designated by the Administrative Agent from time to time) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period, for Dollar
deposits (for delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period or (ii) if such published rate is not available at such time for any
reason, the rate determined by the Administrative Agent to be the rate at which deposits in
Dollars for delivery on the first day of such Interest Period in same day funds in the
approximate amount of the Eurodollar Rate Loan being made, continued or converted by the
Administrative Agent and with a term equivalent to such Interest Period would be offered by
the Administrative Agent’s London Branch to major banks in the London interbank eurodollar
market at their request at approximately 11:00 a.m. (London time) two Business Days prior to
the commencement of such Interest Period.




     (b) For any day with respect to an interest rate calculation for a Base Rate Loan, the
rate per annum equal to (i) BBA LIBOR at approximately 11:00 a.m., London time, two Business
Days prior to such date for Dollar deposits (for delivery on such day) with a term
equivalent to one month or (ii) if such rate is not available at such time for any reason,
the rate determined by the Administrative Agent to be the rate at which deposits in Dollars
for delivery on such day in same day funds in the approximate amount of the Base Rate Loan
being made, continued or converted by the Administrative Agent and with a term equivalent to
one month would be offered



8









 






by the Administrative Agent’s London Branch to major banks in the
London interbank eurodollar market at approximately 11:00 a.m. (London time) two Business
Days prior to such day.



     “Eurodollar Rate” means (a) for any Interest Period with respect to any Eurodollar
Rate Loan, a rate per annum determined by the Administrative Agent to be equal to the quotient
obtained by dividing (i) the Eurodollar Base Rate for such Eurodollar Rate Loan for such Interest
Period by (ii) one minus the Eurodollar Reserve Percentage for such Eurodollar Rate Loan for such
Interest Period and (b) for any day with respect to any Base Rate Loan bearing interest at a rate
based on the Eurodollar Rate, a rate per annum determined by the Administrative Agent to be equal
to the quotient obtained by dividing (i) the Eurodollar Base Rate for such Base Rate Loan for such
day by (ii) one minus the Eurodollar Reserve Percentage for such Base Rate Loan for such day.



     “Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the
Eurodollar Rate (other than a Base Rate Loan bearing interest at a rate based on the Eurodollar
Rate).



     “Eurodollar Reserve Percentage” means, for any day, the reserve percentage (expressed
as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable
to any Lender, under regulations issued from time to time by the FRB for determining the maximum
reserve requirement (including any emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The
Eurodollar Rate for each outstanding Eurodollar Rate Loan and for each outstanding Base Rate Loan
bearing interest at a rate based on the Eurodollar Rate shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.



     “Eurodollar Unavailability Period” means any period during which the obligation of the
Lenders to make or maintain Eurodollar Rate Loans has been suspended pursuant to Section
3.02 or Section 3.03.



     “Event of Default” has the meaning specified in Section 9.01.



     “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 the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise (and similar) taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the Laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable Lending Office is located or with which such Lender has a present or former connection
(other than any such connection resulting in whole or in part from its having executed, delivered
or performed its obligations or received a payment under, or enforced, this Agreement or any other
Loan Document), (b) any branch profits taxes imposed by the United States or any similar tax
imposed by any other jurisdiction in which the Borrower is located or in which a recipient is
organized or in which its principal office is located or in the case of any Lender in which its
applicable Lending Office is located, (c) any backup withholding tax that is required by the
Internal Revenue Code to be withheld from amounts payable to a Lender that has failed to comply
with clause (A) of Section 3.01(e)(ii) and (d) in the case of a Foreign Lender (other than
an assignee pursuant to a request by the Borrower under Section 11.13), any United States
withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender
pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates
a new Lending Office), except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to Section
3.01(a)(ii) or (ii) is attributable to such Foreign Lender’s failure or inability (other than
as a result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii).



9









 





     “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 the
Administrative Agent on such day on such transactions as determined by the Administrative Agent.



     “Fee Letter” means the letter agreement, dated August 3, 2009 among the Borrower, the
Administrative Agent and the Arranger.



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



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



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



     “Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its activities.



     “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board, consistently applied and as in effect from time to time.



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



     “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness payable 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, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of such Indebtedness of
the payment or performance of such Indebtedness, (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 (iv) entered into
for the purpose of assuring in any other manner the obligee in respect of such Indebtedness of the
payment 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 of any other Person, whether
or not such Indebtedness is assumed by such Person (or any right, contingent or otherwise, of any
holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed
to be an amount equal to the stated or determinable amount of the related primary



10









 




obligation, or
portion thereof, in respect of which such Guarantee is made (unless such Guarantee is specifically
limited to a lesser amount and then such lesser amount) or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith; provided that, in the case of any Guarantee of the type set forth in
clause (b) above, if recourse to such Person for such Indebtedness is limited to the assets subject
to such Lien, then such Guarantee shall be a Guarantee hereunder solely to the extent of the lesser
of (x) the amount of the Indebtedness secured by such Lien and (y) the value of the assets subject
to such Lien. The term “Guarantee” as a verb has a corresponding meaning.




     “Guarantors” means each Domestic Subsidiary of the Borrower identified as a
“Guarantor” on the signature pages hereto and each other Person that joins as a Guarantor pursuant
to Section 7.11 or otherwise, together with their successors and permitted assigns.



     “Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative
Agent and the Lenders pursuant to Article IV.



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



     “Honor Date” has the meaning set forth in Section 2.03(c).



     “Immaterial Subsidiary” means any Subsidiary other than a Material Subsidiary.



     “Impacted Lender” means any Lender as to which (a) the L/C Issuer has knowledge that
such Lender has failed to fulfill its obligations under one or more other syndicated credit
facilities, unless the subject of a good faith dispute or (b) any Person that Controls such Lender
has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.



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




     (b) the maximum amount available to be drawn under letters of credit (including standby
and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments;




     (c) the Swap Termination Value of any Swap Contract;




     (d) all obligations to pay the deferred purchase price of property or services (other
than trade accounts payable in the ordinary course of business);




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




     (f) all Attributable Indebtedness;



11









 






     (g) except for Restricted Payments made in accordance with Sections 8.05(c) and
8.05(d), all obligations to purchase, redeem, retire, defease or otherwise make any
payment in respect of any Equity Interests or any warrant, right or option to acquire such
Equity Interest, valued, in the case of a redeemable preferred interest, at the greater of
its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends;




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




     (i) all Indebtedness of the types referred to in clauses (a) through (h) above of any
partnership or joint venture (other than a joint venture that is itself a corporation or
limited liability company) in which such Person is a general partner or joint venturer,
unless such Indebtedness is expressly made non-recourse to such Person.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Indemnitees” has the meaning specified in Section 11.04(b).



     “Information” has the meaning specified in Section 11.07.



     “Initial Funding Date” means the date the conditions set forth in Section 5.02
have been satisfied or waived and the Term Loan has been funded but in no event later than November
20, 2009.



     “Initial Period” means the period from and including the Closing Date to the earlier
of (a) the Initial Funding Date and (b) the date the Commitments are terminated hereunder.



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



     “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two, three or six months thereafter, as selected by the Borrower in its
Loan Notice; provided that:




     (i) any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless such
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.



     “Internal Revenue Code” means the Internal Revenue Code of 1986.



12









 





     “Involuntary Disposition” means any loss (due to casualty) of, damage to or
destruction of, or any condemnation or other taking for public use of, any property of any Loan
Party or any Subsidiary.



     “IRS” means the United States Internal Revenue Service.



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



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



     “Joinder Agreement” means a joinder agreement substantially in the form of Exhibit
7.11 executed and delivered by a Domestic Subsidiary in accordance with the provisions of
Section 7.11.



     “Julius Baer” means Julius Baer Holding Ltd. and its successors.



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



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



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



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



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



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



     “Lenders” means each of the Persons identified as a “Lender” on the signature pages
hereto, each other Person that becomes a “Lender” in accordance with this Agreement (including
pursuant to Section 2.01(c)) and their successors and assigns.



13









 





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



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



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



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



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



     “Letter of Credit Sublimit” means an amount equal to the lesser of (a) the Aggregate
Revolving Commitments and (b) $10,000,000. The Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Revolving Commitments.



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



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



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



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



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



     “Margin Stock” means “margin stock” as defined in Regulation U issued by the FRB.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, assets, properties, liabilities (actual or
contingent), or financial condition of the Borrower and its Subsidiaries taken as a whole; (b) a
material impairment of the rights and remedies of the Administrative Agent under any Loan Document
or of the ability of the Loan Parties to perform their material obligations under any Loan
Document; 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 Disposition” means the Disposition of a Subsidiary or a business line that
accounted for 15% or more of the Consolidated EBITDA of the Borrower and its Subsidiaries for the
most recently ended four fiscal quarter period prior to such Disposition.



14









 





     “Material Subsidiary” means any Domestic Subsidiary that either (a) contributed 5% or
more of the Consolidated EBITDA of the Borrower and its Subsidiaries for the most recently ended
two quarter fiscal period, (b) contributed 5% or more of Consolidated Revenues or (c) owns 5% or
more of Consolidated Assets.



     “Maturity Date” means the date that is three (3) years following the Initial Funding
Date; provided, however, that if such date is not a Business Day, the Maturity Date
shall be the next preceding Business Day.



     “Member” shall mean a Person who owns or during the relevant period owned an Equity
Interest in the Borrower.



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



     “Net Cash Proceeds” means the aggregate cash or cash equivalents proceeds received by
any Loan Party or any Subsidiary in respect of any Material Disposition, net of (a) direct costs
incurred in connection therewith (including, without limitation, legal, accounting and investment
banking fees, and sales commissions), (b) taxes paid or payable as a result thereof, (c) the amount
necessary to retire any Indebtedness secured by a Permitted Lien (ranking senior to any Lien, if
any, of the Administrative Agent) on the related property and (d) amounts provided as a reserve
against any liabilities under any indemnification obligations or purchase price adjustment
associated with such Material Disposition (provided that, to the extent and at the time any such
amounts are released from such reserve other than to pay such liability, such amounts shall
constitute Net Cash Proceeds); it being understood that “Net Cash Proceeds” shall include, without
limitation, any cash or cash equivalents received upon the sale or other disposition of any
non-cash consideration received by any Loan Party or any Subsidiary in any Material Disposition.



     “Note” has the meaning specified in Section 2.11(a).



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding. The foregoing
shall also include (a) all obligations of a Loan Party under any Swap Contract between any Loan
Party or any Subsidiary and any Lender or Affiliate of a Lender that is permitted to be incurred
pursuant to Section 8.02(d) and (b) all obligations of a Loan Party under any Treasury
Management Agreement between any Loan Party or any Subsidiary and any Lender or Affiliate of a
Lender.



     “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



15









 




jurisdiction of its formation or organization and, if applicable, any certificate or articles
of formation or organization of such entity.




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



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



     “Parent” means Artio Global Investors, Inc., a Delaware corporation.



     “Participant” has the meaning specified in Section 11.06(d).



     “PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.



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



     “Permitted Liens” means, at any time, Liens in respect of property of any Loan Party
or any Subsidiary permitted to exist at such time pursuant to the terms of Section 8.01.



     “Permitted Transfers” means (a) Dispositions of inventory in the ordinary course of
business; (b) Dispositions of machinery and equipment no longer used or useful in the conduct of
business of the Borrower and its Subsidiaries that are Disposed of in the ordinary course of
business; (c) Dispositions of property to the Borrower or any Subsidiary; provided, that if
the transferor of such property is a Loan Party then the transferee thereof must be a Loan Party;
(d) Dispositions of accounts receivable in connection with the collection or compromise thereof;
(e) licenses, sublicenses, leases or subleases granted to others not interfering in any material
respect with the business of the Borrower and its Subsidiaries; and (f) the sale or disposition of
cash equivalents for fair market value in the ordinary course of business; (g) Dispositions
permitted under Section 8.03; (h) Dispositions in the ordinary course of business
consisting of the abandonment of intellectual property rights which, in the good faith
determination of the Borrower, are not material to the conduct of the business of the Borrower and
its Subsidiaries; and (i) 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.



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



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is subject to Section
412, Section 430 or Section 431 of the Internal Revenue Code or Title IV of ERISA, any ERISA
Affiliate.



16









 





     “Platform” has the meaning specified in Section 7.02.



     “Prime Rate” means the rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set by Bank
of America based upon various factors including Bank of America’s costs and desired return, general
economic conditions and other factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate. Any change in the “prime rate”
announced by Bank of America shall take effect at the opening of business on the day specified in
the public announcement of such change.



     “Pro Forma Basis” means, with respect to any transaction, that for purposes of
calculating the financial covenants set forth in Section 8.10, such transaction shall be
deemed to have occurred as of the first day of the most recent two fiscal quarter period preceding
the date of such transaction for which financial statements were required to be delivered pursuant
to Section 7.01(a) or (b). In connection with the foregoing, (a) with respect to
any Disposition or Involuntary Disposition, (i) income statement and cash flow statement items
(whether positive or negative) attributable to the property disposed of shall be excluded to the
extent relating to any period occurring prior to the date of such transaction and (ii) Indebtedness
which is retired shall be excluded and deemed to have been retired as of the first day of the
applicable period and (b) with respect to any Acquisition, (i) income statement and cash flow
statement items attributable to the Person or property acquired shall be included to the extent
relating to any period applicable in such calculations to the extent (A) such items are not
otherwise included in such income statement and cash flow statement items for the Borrower and its
Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in
Section 1.01 and (B) such items are supported by financial statements or other information
reasonably satisfactory to the Administrative Agent and (ii) any Indebtedness incurred or assumed
by any Loan Party or any Subsidiary (including the Person or property acquired) in connection with
such transaction and any Indebtedness of the Person or property acquired which is not retired in
connection with such transaction (A) shall be deemed to have been incurred as of the first day of
the applicable period and (B) if such Indebtedness has a floating or formula rate, shall have an
implied rate of interest for the applicable period for purposes of this definition determined by
utilizing the rate which is or would be in effect with respect to such Indebtedness as at the
relevant date of determination.



     “Public Lender” has the meaning specified in Section 7.02.



     “Register” has the meaning specified in Section 11.06(c).



     “Registration Statement” means the registration statement on Form S-1 relating to the
Parent’s initial public offering, and any amendments thereto, filed with the SEC on or prior to the
Initial Funding Date.



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



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



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



     “Required Lenders” means, at any time, Lenders holding in the aggregate more than 50%
of (a) the unfunded Commitments and the outstanding Loans, L/C Obligations and participations
therein or



17









 




(b)
if the Commitments have been terminated, the outstanding Loans, L/C Obligations and
participations therein. The unfunded Commitments of, and the outstanding Loans, L/C Obligations
and participations therein held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.




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



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests of any Person, or any payment
(whether in cash, securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or
termination of any such Equity Interests or on account of any return of capital to such Person’s
stockholders, partners or members (or the equivalent Person thereof), or any option, warrant or
other right to acquire any such dividend or other distribution or payment; provided that
any mandatory or required payment on any Indebtedness convertible into or exchangeable for equity
shall not constitute a Restricted Payment.



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



     “Revolving Lender” means any Lender with a Revolving Commitment greater than zero.



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



     “Sale and Leaseback Transaction” means, with respect to any Loan Party or any
Subsidiary, any arrangement, directly or indirectly, with any Person whereby such Loan Party or
such Subsidiary shall sell or transfer any property used or useful in its business, whether now
owned or hereafter acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property being sold or
transferred.



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



     “Securitization Transaction” means, with respect to any Person, any financing
transaction or series of financing transactions (including factoring arrangements) pursuant to
which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant
a security interest in, accounts, payments, receivables, rights to future lease payments or
residuals or similar rights to payment to a special purpose subsidiary or affiliate of such Person.



     “Solvent” or “Solvency” means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the ordinary course of business, (b) such
Person does not intend to, and does not believe that it



18









 




will, incur debts or liabilities beyond such Person’s ability to pay such debts and
liabilities as they mature in the ordinary course of business, (c) such Person is not engaged in a
business or a transaction, and is not about to engage in a business or a transaction, for which
such Person’s property would constitute unreasonably small capital, (d) the fair value of the
property of such Person is greater than the total amount of liabilities, including contingent
liabilities, of such Person and (e) the present fair salable value of the assets of such Person is
not less than the amount that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured. The amount of contingent liabilities at any time shall
be computed as the amount that, in the light of all the facts and circumstances existing at such
time, represents the amount that can reasonably be expected to become an actual or matured
liability.




     “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 Voting Stock is 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; provided that no
Person which is a mutual fund, investment fund, investment conduit or other similar entity shall be
treated as a Subsidiary for purposes of this Agreement. Unless otherwise specified, all references
herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the
Borrower.



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



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



     “Synthetic Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing arrangement whereby the arrangement
is considered borrowed money indebtedness for tax purposes but is classified as an operating lease
or does not otherwise appear on a balance sheet under GAAP.



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



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



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     “Term Loan Commitment” means, as to each Lender, its obligation to make its portion of
the Term Loan to the Borrower pursuant to Section 2.01(b), in the principal amount set
forth opposite such Lender’s name on Schedule 2.01, as such amount may be adjusted from
time to time in accordance with this Agreement.



     “Threshold Amount” means $20,000,000.



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



     “Treasury Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, overnight draft, credit or debit
cards, funds transfer, automated clearinghouse, zero balance accounts, returned check
concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade
finance services and other cash management services.



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



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



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



     “Voting Stock” means, with respect to any Person, Equity Interests issued by such
Person the holders of which are ordinarily entitled to vote for the election of directors (or
persons performing similar functions) of such Person (other than Equity Interests having such power
only by reason of the happening of a contingency).



1.02 Other Interpretive Provisions.




     With reference to this Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:




     (a) The definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning
and effect as the word “shall.” Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or modifications set forth herein or in any
other Loan Document), (ii) any reference herein to any Person shall be construed to include
such Person’s successors and assigns, (iii) the words “herein,” “hereof” and
“hereunder,” and words of similar import when used in any Loan Document, shall be
construed to refer to such Loan Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any
law shall include all statutory and regulatory provisions consolidating, amending, replacing
or interpreting



20









 






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. Except as otherwise specifically prescribed herein, 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.




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




     (c) Calculations. Notwithstanding the above, the parties hereto acknowledge
and agree that (i) all calculations of the financial covenants in Section 8.10
(including for purposes of determining the Applicable Rate) shall be made on a Pro Forma
Basis with respect to any Disposition (other than Permitted Transfers), Involuntary
Disposition or Acquisition occurring during the applicable period and (ii) all calculations
of Consolidated Assets, Consolidated EBITDA, Consolidated Funded Indebtedness, Consolidated
Interest Charges, Consolidated Net Income and Consolidated Revenues with respect to any
non-wholly owned Subsidiary of the Borrower shall be made based on the percentage of
ownership held, directly or indirectly, by the Borrower.



1.04 Rounding.




     Any financial ratios required to be maintained by the Borrower pursuant to this Agreement
shall be calculated by dividing the appropriate component by the other component, carrying the
result to one place more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if there is no nearest
number).



21









 





1.05 Times of Day.




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



1.06 Letter of Credit Amounts.




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



ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Revolving Loans and Term Loan.



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



     (b) Term Loan. Subject to the terms and conditions set forth herein, each Lender
severally agrees to make its portion of a term loan (the “Term Loan”) to the Borrower in
Dollars on the Initial Funding Date in an amount not to exceed such Lender’s Term Loan Commitment.
Amounts prepaid or repaid on the Term Loan may not be reborrowed. The Term Loan may consist of
Base Rate Loans or Eurodollar Rate Loans, as further provided herein.



     (c) Increases of the Aggregate Revolving Commitments. The Borrower shall have the
right, upon at least five Business Days’ prior written notice to the Administrative Agent, to
increase the Aggregate Revolving Commitments by up to $50,000,000 in the aggregate in one or more
increases, at any time prior to the date that is six months prior to the Maturity Date,
subject, however, in any such case, to satisfaction of the following conditions
precedent:




     (i) the Aggregate Revolving Commitments shall not exceed $100,000,000 without the
consent of the Required Lenders;




     (ii) no Default shall have occurred and be continuing on the date on which such
increase is to become effective;



22









 






     (iii) the representations and warranties set forth in Article VI shall be true
and correct in all material respects on and as of the date on which such increase is to
become effective, except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and correct in all material
respects as of such earlier date;




     (iv) such increase shall be in a minimum amount of $10,000,000 and in integral
multiples of $5,000,000 in excess thereof (provided that such increase may be in any other
amount if such amount represents all remaining availability under the aggregate limit in
respect of increases in the Aggregate Revolving Commitments permitted hereunder);




     (v) such requested increase shall only be effective upon receipt by the Administrative
Agent of (A) additional Revolving Commitments in a corresponding amount of such requested
increase from either existing Lenders and/or one or more other institutions that qualify as
Eligible Assignees (it being understood and agreed that no existing Lender shall be required
to provide an additional Revolving Commitment) and (B) documentation from each institution
providing an additional Revolving Commitment evidencing its additional Revolving Commitment
and its obligations under this Agreement in form and substance reasonably acceptable to the
Administrative Agent, including, without limitation, a joinder agreement for any Eligible
Assignee that is not a current Lender;




     (vi) the Administrative Agent shall have received all documents (including resolutions
of the board of directors (or equivalent body) of the Borrower and the Guarantors) it may
reasonably request relating to the corporate or other necessary authority for such increase
and the validity of such increase in the Aggregate Revolving Commitments, and any other
matters relevant thereto, all in form and substance reasonably satisfactory to the
Administrative Agent; and




     (vii) if any Revolving Loans are outstanding at the time of the increase in the
Aggregate Revolving Commitments, the Borrower shall, if applicable, prepay one or more
existing Revolving Loans (such prepayment to be subject to Section 3.05) in an
amount necessary such that after giving effect to the increase in the Aggregate Revolving
Commitments, each Lender will hold its pro rata share (based on its Applicable Percentage of
the increased Aggregate Revolving Commitments) of outstanding Revolving Loans.


This Section 2.01(c) shall supersede any provisions in Section 11.01 to the
contrary. Notwithstanding any other provision of this Agreement or any other Loan Document, the
Loan Documents may be amended by the Administrative Agent and the Borrower to the extent necessary
or appropriate to give effect to any increase in the Aggregate Revolving Commitments contemplated
hereby.




     2.02 Borrowings, Conversions and Continuations of Loans.



     (a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation
of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of, Eurodollar Rate Loans or of any conversion of
Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base
Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must
be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of,
conversion to or continuation of Eurodollar



23









 




Rate Loans shall be in a principal amount of $2,000,000 or a whole multiple of $500,000 in
excess thereof. Except as provided in Section 2.03(c), each Borrowing of or conversion to
Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $250,000 in
excess thereof. Each Loan Notice (whether telephonic or written) shall specify (i) whether the
Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a
continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of
Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which
existing Loans are to be converted, and (v) if applicable, the duration of the Interest Period with
respect thereto. If the Borrower fails to specify a Type of a Loan in a Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable
Loans shall be made as, converted to or continued as Eurodollar Rate Loans with an Interest Period
on one month. Any such automatic conversion or continuation shall be effective as of the last day
of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If the
Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month.




     (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Applicable Percentage of the applicable Loans, and if no timely notice
of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to or continuation of Eurodollar Rate Loans
as described in the preceding subsection. In the case of a Borrowing, each Lender shall make the
amount of its Loan available to the Administrative Agent in immediately available funds at the
Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the
applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section
5.03 (and, if such Borrowing is the initial Credit Extension, Section 5.02), the
Administrative Agent shall make all funds so received available to the Borrower in like funds as
received by the Administrative Agent either by (i) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each
case in accordance with instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower; provided, however, that if, on the date of a Borrowing of
Revolving Loans, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first,
shall be applied to the payment in full of any such L/C Borrowings and second, shall be
made available to the Borrower as provided above.



     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of the Interest Period for such Eurodollar Rate Loan. During the existence of
a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without
the consent of the Required Lenders, and the Required Lenders may demand that any or all of the
then outstanding Eurodollar Rate Loans be converted immediately to Base Rate Loans.



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



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



24









 





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 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 in Dollars for the
account of the Borrower or any of its Subsidiaries, and to amend or extend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings
under the Letters of Credit; and (B) the Revolving Lenders severally agree to participate in
Letters of Credit issued for the account of the Borrower or its Subsidiaries and any
drawings thereunder; provided that after giving effect to any L/C Credit Extension
with respect to any Letter of Credit, (x) the Total Revolving Outstandings shall not exceed
the Aggregate Revolving Commitments, (y) the aggregate Outstanding Amount of the Revolving
Loans of any Revolving Lender, plus such Revolving Lender’s Applicable Percentage of
the Outstanding Amount of all L/C Obligations shall not exceed such Revolving Lender’s
Revolving Commitment and (z) the Outstanding Amount of the L/C Obligations shall not exceed
the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment
of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C
Credit Extension so requested complies with the conditions set forth in the proviso to the
preceding sentence. Within the foregoing limits, and subject to the terms and conditions
hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn upon and reimbursed.




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




     (A) subject to Section 2.03(b)(iii), the expiry date of such requested
Letter of Credit would occur more than twelve months after the date of issuance or
last extension, unless the Lenders (other than Defaulting Lenders) holding a
majority of the Revolving Commitments 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 Lenders have approved
such expiry date.




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




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



25









 






     (B) the issuance of such Letter of Credit would violate one or more policies of
the L/C Issuer applicable to borrowers 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) such Letter of Credit is to be denominated in a currency other than
Dollars; or




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




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




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




     (vi) The L/C Issuer shall act on behalf of the Revolving 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 X 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 X included the L/C Issuer with respect to such acts or
omissions, and (B) as additionally provided herein with respect to the L/C Issuer.



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




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Responsible Officer of the Borrower. Such Letter of Credit Application must be received
by the L/C Issuer and the Administrative Agent not later than 12:00 noon at least two
Business Days (or such later date and time as the Administrative Agent and the L/C Issuer
may agree in a particular instance in their sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and
detail reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents
to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of
any certificate to be presented by such beneficiary in case of any drawing thereunder; (G)
the purpose and nature of the requested Letter of Credit; and (H) such other matters as the
L/C Issuer may reasonably require. In the case of a request for an amendment of any
outstanding



26









 






Letter of Credit, such Letter of Credit Application shall specify in form and detail
reasonably satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the L/C Issuer may reasonably require.
Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative Agent such
other documents and information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may
reasonably require.




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the
L/C Issuer has received written notice from any Revolving 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 (which notice has not been revoked), that one
or more applicable conditions contained in Article V shall not be satisfied, then,
subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date,
issue a Letter of Credit for the account of the Borrower or the applicable Subsidiary or
enter into the applicable amendment, as the case may be, in each case in accordance with the
L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each
Letter of Credit, each Revolving 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 Lender’s Applicable Percentage
times the amount of such Letter of Credit.




     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a day (the “Non-Extension Notice Date”) in each such twelve-month
period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise
directed by the L/C Issuer, the Borrower shall not be required to make a specific request to
the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been
issued, the Revolving Lenders shall be deemed to have authorized (but may not require) the
L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date
not later than the Letter of Credit Expiration Date; provided, however, that
the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that
it would not be permitted, or would have no obligation, at such time to issue such Letter of
Credit in its revised form (as extended) under the terms hereof (by reason of the provisions
of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that is seven Business
Days before the Non-Extension Notice Date (1) from the Administrative Agent that the
Required Lenders have elected not to permit such extension or (2) from the Administrative
Agent, any Revolving Lender or the Borrower that one or more of the applicable conditions
specified in Section 5.03 is not then satisfied, and in each case directing the L/C
Issuer not to permit such extension.




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




27











 





     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. Not later than 12:00 noon on the later of (i) the date of any
payment by the L/C Issuer under a Letter of Credit and (ii)(A) the date upon which the
Borrower receives notice from the L/C Issuer of such payment by the L/C Issuer, if such
notice is received by the Borrower prior to 10:00 a.m. on a Business Day or (B) the Business
Day immediately following the date upon which the Borrower received such notice, if such
notice is received on a day that is not a Business Day or after 10:00 a.m. on a Business Day
(each such date, an “Honor Date”), the Borrower shall reimburse the L/C Issuer
through the Administrative Agent in an amount equal to the amount of such drawing. If the
Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall
promptly notify each Revolving Lender of the Honor Date, the amount of the unreimbursed
drawing (the “Unreimbursed Amount”), and the amount of such Revolving Lender’s
Applicable Percentage thereof. In such event, the Borrower shall be deemed to have
requested a 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
conditions set forth in Section 5.03 (other than the delivery of a Request for
Credit Extension) and provided that, after giving effect to such Borrowing, the Total
Revolving Outstandings shall not exceed the Aggregate Revolving Commitments. Any notice
given by the L/C Issuer or the Administrative Agent pursuant to this Section
2.03(c)(i) may be given by telephone if immediately confirmed in writing;
provided that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.




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




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing of Base Rate Loans because the conditions set forth in Section 5.03 cannot
be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the
L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate. In such event, each Revolving 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 Revolving Lender in satisfaction of
its participation obligation under this Section 2.03.




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



28









 






     (v) Each Revolving Lender’s obligation to make Revolving Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this
Section 2.03(c), shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Revolving Lender may have against the L/C Issuer, the Borrower or any other
Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Revolving Lender’s obligation to make Revolving
Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in
Section 5.03 (other than delivery by the Borrower of a Request for Credit
Extension). No such making of an L/C Advance shall relieve or otherwise impair the
obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made by
the L/C Issuer under any Letter of Credit, together with interest as provided herein.




     (vi) If any Revolving 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 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 Lender (acting through the Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the date on which
such payment is immediately available to the L/C Issuer at a rate per annum equal to the
greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with
banking industry rules on interbank compensation, plus any administrative, processing or
similar fees customarily charged by the L/C Issuer in connection with the foregoing. If
such Revolving Lender pays such amount (with interest and fees as aforesaid), the amount so
paid shall constitute such Revolving Lender’s Revolving 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 Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent
manifest error.



     (d) Repayment of Participations.




     (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Revolving Lender such Revolving Lender’s L/C Advance in respect of
such payment in accordance with Section 2.03(c), if the Administrative Agent
receives for the account of the L/C Issuer any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise,
including proceeds of cash collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Revolving Lender its Applicable Percentage
thereof in the same funds as those received by the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 11.05 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Revolving 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 Revolving Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Revolving Lenders
under this clause shall survive the payment in full of the Obligations and the termination
of this Agreement.



29









 





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




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




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




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




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




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


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




     (f) Role of L/C Issuer. Each Revolving Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain
any document (other than any sight draft, certificates and documents expressly required by such
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 Lender for (i) any action taken or
omitted in connection herewith at the request or with the approval of the Revolving Lenders or the
Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or Issuer Document.
The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and
remedies as it may have



30









 




against the beneficiary or transferee at law or under any other agreement. None of the L/C
Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters
described in clauses (i) through (v) of Section 2.03(e); provided, however,
that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim
against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only
to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the
Borrower which the Borrower proves were caused by the L/C Issuer’s bad faith, willful misconduct or
gross negligence or the L/C Issuer’s willful or grossly negligent failure to pay under any Letter
of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any notice or information to
the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.




     (g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations. Sections 2.05 and
9.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder.
For purposes of this Section 2.03, Section 2.05 and Section 9.02(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 Revolving Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in form and substance
satisfactory to the Administrative Agent and the L/C Issuer (which documents are hereby consented
to by the Revolving Lenders). Derivatives of such term have corresponding meanings. The Borrower
hereby grants to the Administrative Agent, for the benefit of the L/C Issuer and the Revolving
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 the Administrative Agent.



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



     (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Lender in accordance with its Applicable Percentage a Letter of Credit
fee (the “Letter of Credit Fee”) for each Letter of Credit at a rate per annum equal to the
Applicable Rate times the daily amount available to be drawn under such Letter of Credit.
For purposes of computing the daily amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section 1.06.
Letter of Credit Fees shall be (i) due and payable on the first Business Day after the end of each
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; provided that (1) no Letter of Credit
Fees shall accrue in favor of a Defaulting Lender so long as such Revolving Lender shall be a
Defaulting Lender and (2) any Letter of Credit Fees accrued in favor of a Defaulting Lender during
the period prior to the time such Revolving Lender became a Defaulting Lender and unpaid at such
time shall not be payable by the Borrower so long as such Revolving Lender shall be a Defaulting
Lender. 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



31









 




contained herein, upon the request of the Required Lenders, while any Event of Default exists,
all Letter of Credit Fees shall accrue at the Default Rate.




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



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



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



2.04 [Reserved.]




2.05 Prepayments.




     (a) Voluntary Prepayments of Loans. The Borrower may, upon notice from the Borrower
to the Administrative Agent, at any time or from time to time voluntarily prepay Revolving Loans or
the Term Loan or a combination thereof in whole or in part without premium or penalty;
provided that (A) such notice must be received by the Administrative Agent not later than
11:00 a.m. (1) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2)
on the date of prepayment of Base Rate Loans; (B) any such prepayment of Eurodollar Rate Loans
shall be in a principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof (or,
if less, the entire principal amount thereof then outstanding); (C) any prepayment of Base Rate
Loans shall be in a principal amount of $500,000 or a whole multiple of $250,000 in excess thereof
(or, if less, the entire principal amount thereof then outstanding) and (D) any prepayment of the
Term Loan shall be applied ratably to the remaining principal amortization payments. Each such
notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid
and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The
Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of
the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by
the Borrower, the Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein; provided that any such
notice delivered by the Borrower may state that such notice is conditioned upon the effectiveness
of other financing arrangements, in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified effective date) if such condition
is not satisfied with



32









 




such revocation subject to Section 3.05. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together with any additional
amounts required pursuant to Section 3.05. Each such prepayment shall be applied to the
Loans of the applicable Lenders in accordance with their respective Applicable Percentages.




     (b) Mandatory Prepayments of Loans.




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




     (ii) Material Dispositions. The Borrower shall prepay the Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount equal to 100% of the Net Cash
Proceeds received by any Loan Party or any Subsidiary from all Material Dispositions, to be
applied as set forth in clause (iii) below.




     (iii) Application of Mandatory Prepayments. All amounts required to be paid
pursuant to this Section 2.05(b) shall be applied as follows:




     (A) with respect to all amounts prepaid pursuant to Section 2.05(b)(i),
first, to the L/C Borrowings, second, to the outstanding Revolving
Loans, and, third, to Cash Collateralize the remaining L/C Obligations
(without a corresponding reduction in the Aggregate Revolving Commitments); and




     (B) with respect to all amounts prepaid pursuant to Sections
2.05(b)(ii), first to the Term Loan (ratably to the remaining principal
amortization payments), second, to the L/C Borrowings, third, to the
outstanding Revolving Loans, and, fourth, to Cash Collateralize the
remaining L/C Obligations (without a corresponding reduction in the Aggregate
Revolving Commitments).




     Within the parameters of the applications set forth above, prepayments shall be
applied first to Base Rate Loans and then to Eurodollar Rate Loans in direct order of
Interest Period maturities. All prepayments under this Section 2.05(b) shall be
subject to Section 3.05, but otherwise without premium or penalty, and shall be
accompanied by interest on the principal amount prepaid through the date of prepayment.



2.06 Termination or Reduction of Commitments.




     (a) The Borrower may, upon notice to the Administrative Agent, (x) terminate the Aggregate
Revolving Commitments, or from time to time permanently reduce the Aggregate Revolving Commitments
to an amount not less than the Outstanding Amount of Revolving Loans and L/C Obligations or (y)
prior to the Initial Funding Date, terminate or permanently reduce the Aggregate Term Loan
Commitments; provided that (i) any such notice shall be received by the Administrative
Agent not later than 12:00 noon three Business Days prior to the date of termination or reduction,
(ii) any such partial reduction shall be in an aggregate amount of $2,000,000 or any whole multiple
of $1,000,000 in excess thereof, (iii) if, after giving effect to any reduction of the Aggregate
Revolving Commitments or the Letter of Credit Sublimit exceeds the amount of the Aggregate
Revolving Commitments, such



33









 




sublimit shall be automatically reduced by the amount of such excess and (iv) any such notice
may state that such notice is conditioned upon the effectiveness of other financing arrangements,
in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on
or prior to the specified effective date) if such condition is not satisfied with such revocation
subject to Section 3.05. The Administrative Agent will promptly notify the Lenders of any such
notice of termination or reduction of the Aggregate Revolving Commitments or the Aggregate Term
Loan Commitments. Any reduction of the Aggregate Revolving Commitments shall be applied to the
Revolving Commitment of each Lender according to its Applicable Percentage. Any reduction of the
Aggregate Term Loan Commitments shall be applied to the Term Loan Commitment of each Lender
according to its Applicable Percentage. All fees accrued with respect thereto until the effective
date of any termination or reduction of the Aggregate Revolving Commitments or the Aggregate Term
Loan Commitments shall be paid on the effective date of such termination or reduction.




     (b) The Commitments shall automatically terminate if the Initial Funding Date has not occurred
on or prior to November 20, 2009.



2.07 Repayment of Loans.




     (a) Revolving Loans. The Borrower shall repay to the Administrative Agent, for the
ratable account of the applicable Lenders, on the Maturity Date the aggregate principal amount of
all Revolving Loans outstanding on such date, unless accelerated sooner pursuant to Section
9.02.



     (b) Term Loan. The Borrower shall repay to the Administrative Agent, for the ratable
account of the applicable Lenders, the outstanding principal amount of the Term Loan in
installments on the dates and in the amounts set forth in the table below (as such installments may
hereafter be adjusted as a result of prepayments made pursuant to Section 2.05), unless accelerated
sooner pursuant to Section 9.02:



	 	 	 
	Payment Dates	 	Principal Amortization Payment
	December 31, 2010
	 	$4,500,000
	March 31, 2011
	 	$4,500,000
	June 30, 2011
	 	$4,500,000
	September 30, 2011
	 	$4,500,000
	December 31, 2011
	 	$4,500,000
	March 31, 2012
	 	$4,500,000
	June 30, 2012
	 	$4,500,000
	September 30, 2012 (if the
	 	$4,500,000
	Maturity Date is subsequent	 	 
	to this date)	 	 
	Maturity Date
	 	All principal outstanding under the

Term Loan






     (c) Other Obligations. The Borrower shall repay to the Administrative Agent, for the
account of the applicable Lenders, on the Maturity Date all other Obligations outstanding on such
date, unless accelerated sooner pursuant to Section 9.02.



34









 





2.08 Interest.




     (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate and
(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.



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




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




     (iii) Upon the request of the Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding Loans hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.




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



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



2.09 Fees.




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



     (a) Ticking Fee. The Borrower shall pay to the Administrative Agent, for the account
of each Lender pro rata based on its percentage of the aggregate Commitments, a ticking fee equal
to the product of (i) .50% per annum times (ii) the aggregate amount of Commitments. The
ticking fee shall accrue at all times during the Initial Period and shall be due and payable in
arrears on September 30, 2009 and on the last day of the Initial Period.



     (b) Commitment Fee. The Borrower shall pay to the Administrative Agent, for the
account of each Lender with a Revolving Commitment in accordance with its Applicable Percentage, a
commitment fee equal to the product of (i) the Applicable Rate for Commitment Fees times
(ii) the actual daily amount by which the Aggregate Revolving Commitments exceed the sum of (y) the
Outstanding Amount of Revolving Loans and (z) 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 V is not met, and shall be due and
payable quarterly in arrears on the last



35









 




Business Day of each March, June, September and December, commencing with the first such date
to occur after the Initial Funding Date, and on the last day of the Availability Period;
provided that (1) no commitment fee shall accrue on any of the Revolving Commitment of a
Defaulting Lender so long as such Lender shall be a Defaulting Lender and (2) any commitment fee
accrued with respect to the Revolving Commitment of a Defaulting Lender during the period prior to
the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the
Borrower so long as such Lender shall be a Defaulting Lender. 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.




     (c) Fee Letter. The Borrower shall pay to the Arranger and the Administrative Agent
for their own respective accounts fees in the amounts and at the times specified in the 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; Retroactive Adjustments of Applicable Rate.




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



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



2.11 Evidence of Debt.




     (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the
Borrower and the interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and



36









 




the accounts and records of the Administrative Agent in respect of such matters, the accounts
and records of the Administrative Agent shall control in the absence of manifest error. Upon the
request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver
to such Lender (through the Administrative Agent) a promissory note, which shall evidence such
Lender’s Loans in addition to such accounts or records. Each such promissory note shall be in the
form of Exhibit 2.11(a) (a “Note”). Each Lender may attach schedules to its Note
and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments
with respect thereto.




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



2.12 Payments Generally; Administrative Agent’s Clawback.




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




(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of
any Borrowing of Eurodollar 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 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 Borrower severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in immediately available funds with interest thereon, for each day from
and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (A) in the case of a payment to be made by
such Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation,
plus any administrative, processing or similar fees customarily charged by the
Administrative Agent in connection with the foregoing, and (B) in the case of a payment to
be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower
and such Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount
of such interest paid



37









 






by the 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 the Borrower shall be without prejudice to any
claim the Borrower may have against a Lender that shall have failed to make such payment to
the Administrative Agent.




     (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the time at which
any payment is due to the Administrative Agent for the account of the Lenders or the L/C
Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case
may be, the amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such Lender or the
L/C Issuer, in immediately available funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of payment to
the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on interbank
compensation.




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



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



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Loans, to fund participations in Letters of Credit and to make payments pursuant to Section
11.04(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 11.04(c) on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to
purchase its participation or to make its payment under Section 11.04(c).



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



     (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.



38









 





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 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 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 (A) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or (B) any payment obtained by the L/C Issuer to secure the obligations of Defaulting
Lenders or Impacted Lenders to fund such risk participations or (C) 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 to any assignee or participant.



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



ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY




3.01 Taxes.




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




     (ii) If the Loan Parties or the Administrative Agent shall be required by the Internal
Revenue Code to withhold or deduct any Taxes, including both United States Federal backup
withholding and withholding taxes, from any payment, then (A) the Administrative Agent shall
withhold or make such deductions as are determined by the Administrative Agent to be
required based upon the information and documentation it has received pursuant to subsection
(e) below,



39









 






     (B) the Administrative Agent shall timely pay the full amount withheld or deducted to
the relevant Governmental Authority in accordance with the Internal Revenue Code, and (C) to
the extent that the withholding or deduction is made on account of Indemnified Taxes or
Other Taxes, the sum payable by the Loan Parties shall be increased as necessary so that
after any required withholding or the making of all required deductions (including
deductions applicable to additional sums payable under this Section) the Administrative
Agent, 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 withholding or deduction been made.



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



     (c) Tax Indemnification. (i) Without limiting the provisions of subsection (a) or (b)
above, the Loan Parties shall, and do hereby, indemnify the Administrative Agent, each Lender and
the L/C Issuer, and shall make payment in respect thereof within ten days after demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this Section) withheld or
deducted by the Loan Parties or the Administrative Agent (to the extent that additional amounts
with respect to such Taxes were not paid pursuant to Section 3.01(a)) or paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority (other than penalties and interest attributable to the gross negligence or willful
misconduct of such Lender or L/C Issuer). The Loan Parties shall also, and do hereby, indemnify
the Administrative Agent, and shall make payment in respect thereof within ten days after demand
therefor, for any amount which a Lender or the L/C Issuer for any reason fails to pay indefeasibly
to the Administrative Agent as required by clause (ii) of this subsection. A certificate as to the
amount of any such payment or liability delivered to the Borrower by a Lender or the L/C Issuer
(with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on
behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest error.




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



40









 





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



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




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




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




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




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




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




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




     (IV) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Internal
Revenue Code, (x) a certificate to the effect that such Foreign Lender is
not (A) a “bank”



41









 






within the meaning of section 881(c)(3)(A) of the Internal Revenue
Code, (B) a “10 percent shareholder” of the Borrower within the meaning of
section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled
foreign corporation” described in section 881(c)(3)(C) of the Internal
Revenue Code and (y) executed originals of Internal Revenue Service Form
W-8BEN, or




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




     (iii) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent
of any change in circumstances which would modify or render invalid any claimed exemption or
reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable Laws of any
jurisdiction that the Borrower or the Administrative Agent make any withholding or deduction
for taxes from amounts payable to such Lender; provided that the mere existence of
fees, charges, costs or expenses that the Borrower has offered and agreed to pay on behalf
of a Lender shall not be deemed to be materially disadvantageous to the Lender..



     (f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund
of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as
the case may be. If the Administrative Agent, any Lender or the L/C Issuer determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts
pursuant to this Section, it shall pay to such Loan Party an amount equal to such refund (but only
to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this
Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses incurred by the Administrative Agent, such Lender or the L/C Issuer, as the
case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that each Loan Party, upon the request of
the Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to
such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Borrower or any other Person.



3.02 Illegality.




     If any Lender determines that any Law has made it unlawful, or that any Governmental Authority
has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain
or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar
Rate, or any Governmental Authority has imposed material restrictions on the authority of such
Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then,
on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation
of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to
Eurodollar Rate Loans shall be suspended until



42









 




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




3.03 Inability to Determine Rates.




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



3.04 Increased Costs.




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




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




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




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




and the result of any of the foregoing shall be to increase the cost to such Lender
of making or maintaining any Eurodollar Rate Loan (or of maintaining its obligation
to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of



43









 







participating in, issuing or maintaining any Letter of Credit (or of maintaining its
obligation to participate in or to issue any Letter of Credit), or to reduce the
amount of any sum received or receivable by such Lender or the L/C Issuer hereunder
(whether of principal, interest or any other amount) then, upon request of such
Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as
the case may be, such additional amount or amounts as will compensate such Lender or
the L/C Issuer, as the case may be, for such additional costs incurred or reduction
suffered.



     (b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change
in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such
Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on
the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below
that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C
Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with
respect to capital adequacy), then from time to time the Borrower will pay to such Lender or the
L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or
the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction
suffered.



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



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



3.05 Compensation for Losses.




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




     (a) any continuation, conversion, payment or prepayment of any Eurodollar 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);



44









 






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




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



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



     For purposes of calculating amounts payable by the Borrower to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by
it at the Eurodollar Base Rate used in determining the Eurodollar Rate for such Loan by a matching
deposit or other borrowing in the London interbank eurodollar market for a comparable amount and
for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.



3.06 Mitigation Obligations; Replacement of Lenders.




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



     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04 or delivers a notice described in Section 3.02, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 3.01, the Borrower may replace such Lender in accordance with
Section 11.13.



3.07 Survival.




     All of the Loan Parties’ obligations under this Article III shall survive termination
of the Aggregate Revolving Commitments, repayment of all other Obligations hereunder, and
resignation of the Administrative Agent.



ARTICLE IV




GUARANTY




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4.01 The Guaranty.




     Each of the Guarantors hereby jointly and severally guarantees to each Lender, each Affiliate
of a Lender that enters into a Swap Contract or a Treasury Management Agreement with any Loan Party
or any Subsidiary, and the Administrative Agent as hereinafter provided, as primary obligor and not
as surety, the prompt payment of the Obligations in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or otherwise) strictly
in accordance with the terms thereof. The Guarantors hereby further agree that if any of the
Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment,
by acceleration, as a mandatory cash collateralization or otherwise), the Guarantors will, jointly
and severally, promptly pay the same, upon demand or notice, and that in the case of any extension
of time of payment or renewal of any of the Obligations, the same will be promptly paid in full
when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) in accordance with the terms of such extension or renewal.



     Notwithstanding any provision to the contrary contained herein or in any other of the Loan
Documents, Swap Contracts or Treasury Management Agreements, the obligations of each Guarantor
under this Agreement and the other Loan Documents shall not exceed an aggregate amount equal to the
largest amount that would not render such obligations subject to avoidance under applicable Debtor
Relief Laws.



     4.02 Obligations Unconditional.



     The obligations of the Guarantors under Section 4.01 are joint and several, absolute
and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Loan Documents or other documents relating to the Obligations, or any substitution,
release, impairment or exchange of any other guarantee of or security for any of the Obligations,
and, to the fullest extent permitted by applicable law, irrespective of any other circumstance
whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety
or guarantor, it being the intent of this Section 4.02 that the obligations of the
Guarantors hereunder shall be absolute and unconditional under any and all circumstances. Each
Guarantor agrees that such Guarantor shall have no right of subrogation, indemnity, reimbursement
or contribution against the Borrower or any other Guarantor for amounts paid under this
Article IV until such time as the Obligations (other than contingent indemnification or
similar obligations not then due) have been paid in full and the Commitments have expired or
terminated. Without limiting the generality of the foregoing, it is agreed that, to the fullest
extent permitted by Law, the occurrence of any one or more of the following shall not alter or
impair the liability of any Guarantor hereunder, which shall remain absolute and unconditional as
described above:




     (a) at any time or from time to time, without notice to any Guarantor, the time for any
performance of or compliance with any of the Obligations shall be extended, or such
performance or compliance shall be waived;




     (b) any of the acts mentioned in any of the provisions of any of the Loan Documents or
other documents relating to the Obligations shall be done or omitted;




     (c) the maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any right under
any of the Loan Documents or other documents relating to the Obligations shall be waived or
any other guarantee of any of the Obligations or any security therefor shall be released,
impaired or exchanged in whole or in part or otherwise dealt with;



46









 






     (d) any Lien granted to, or in favor of, the Administrative Agent or any other holder
of the Obligations as security for any of the Obligations shall fail to attach or be
perfected; or




     (e) any of the Obligations shall be determined to be void or voidable (including,
without limitation, for the benefit of any creditor of any Guarantor) or shall be
subordinated to the claims of any Person (including, without limitation, any creditor of any
Guarantor).



     With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence,
presentment, demand of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any other holder of the Obligations exhaust any right, power or remedy or
proceed against any Person under any of the Loan Documents or any other document relating to the
Obligations, or against any other Person under any other guarantee of, or security for, any of the
Obligations.



4.03 Reinstatement.




     The obligations of the Guarantors under this Article IV shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf of any Person in
respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the
Obligations, whether as a result of any Debtor Relief Law or otherwise, and each Guarantor agrees
that it will indemnify the Administrative Agent and each other holder of the Obligations on demand
for all reasonable costs and expenses (including, without limitation, the fees, charges and
disbursements of counsel) incurred by the Administrative Agent or such holder of the Obligations in
connection with such rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any Debtor Relief Law.



4.04 Certain Additional Waivers.




     Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the
Obligations, if any, except through the exercise of rights of subrogation pursuant to
Section 4.02 and through the exercise of rights of contribution pursuant to
Section 4.06.



4.05 Remedies.




     The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors,
on the one hand, and the Administrative Agent and the other holders of the Obligations, on the
other hand, the Obligations may be declared to be forthwith due and payable as specified in
Section 9.02 (and shall be deemed to have become automatically due and payable in the
circumstances specified in said Section 9.02) for purposes of Section 4.01
notwithstanding any stay, injunction or other prohibition preventing such declaration (or
preventing the Obligations from becoming automatically due and payable) as against any other Person
and that, in the event of such declaration (or the Obligations being deemed to have become
automatically due and payable), the Obligations (whether or not due and payable by any other
Person) shall forthwith become due and payable by the Guarantors for purposes of
Section 4.01.



4.06 Rights of Contribution.




     The Guarantors agree among themselves that, in connection with payments made hereunder, each
Guarantor shall have contribution rights against the other Guarantors as permitted under applicable
law. Such contribution rights shall be subordinate and subject in right of payment to the
obligations of such Guarantors under the Loan Documents and no Guarantor shall exercise such rights
of contribution until all Obligations have been paid in full (other than contingent obligations or
similar obligations not then due) and the Commitments have terminated.



47









 





4.07 Guarantee of Payment; Continuing Guarantee.




     The guarantee in this Article IV is a guaranty of payment and not of collection, is a
continuing guarantee, and shall apply to all Obligations whenever arising.



ARTICLE V




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




5.01 Conditions of Effectiveness.




     This Agreement shall be effective upon satisfaction of the following conditions precedent:



     (a) Loan Documents. Receipt by the Administrative Agent of executed counterparts of
(i) this Agreement and (ii) a Note for each Lender that has requested one, each properly executed
by a Responsible Officer of the signing Loan Party and, in the case of this Agreement, by each
Lender.



     (b) Opinions of Counsel. Receipt by the Administrative Agent of favorable opinions of
legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, dated as
of the Closing Date, and in form and substance reasonably satisfactory to the Administrative Agent.



     (c) No Material Adverse Change. There shall not have occurred since December 31, 2008
any event or condition that has had or could be reasonably expected, either individually or in the
aggregate, to have a Material Adverse Effect.



     (d) Organization Documents, Resolutions, Etc. Receipt by the Administrative Agent of
the following, in form and substance reasonably satisfactory to the Administrative Agent:




     (i) copies of the Organization Documents of each Loan Party certified to be true and
complete as of a recent date by the appropriate Governmental Authority of the state or other
jurisdiction of its incorporation or organization, where applicable, and certified by a
secretary or assistant secretary of such Loan Party, or the Borrower on behalf of such Loan
Party, to be true and correct as of the Closing Date;




     (ii) 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; and




     (iii) such documents and certifications as the Administrative Agent may reasonably
require to evidence that each Loan Party is duly organized or formed, and is validly
existing, in good standing and qualified to engage in business in its state of organization
or formation.



     (e) Deferred Payment. Receipt by the Administrative Agent of all documentation, if
any, evidencing the Deferred Payment.



48









 





     (f) Financial Information. Receipt by the Administrative Agent of (i) the Audited
Financial Statements and (ii) the unaudited consolidated financial statements of the Borrower and
its Subsidiaries for the quarter ended June 30, 2009, in each case reasonably acceptable to it.



     (g) Closing Certificate. Receipt by the Administrative Agent of a certificate signed
by a Responsible Officer of the Borrower certifying that the conditions specified in
Sections 5.01(c), 5.03(a) and 5.03(b) have been satisfied.



     (h) Fees. Receipt by the Administrative Agent, the Arranger and the Lenders of any
fees required to be paid on or before the Closing Date.



     (i) Attorney Costs. The Borrower shall have paid all reasonable fees, charges and
disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the
Administrative Agent) to the extent invoiced at least one day prior to the Closing Date, plus such
additional amounts of such fees, charges and disbursements as shall constitute its reasonable
estimate of such fees, charges and disbursements incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter preclude a final settling of
accounts between the Borrower and the Administrative Agent).



     Without limiting the generality of the provisions of the last paragraph of
Section 10.03 or of Section 10.04, for purposes of determining compliance with the
conditions specified in this Section 5.01, 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.



5.02 Conditions to Initial Credit Extension.




     The obligation of each Lender to fund the Term Loan (or, if earlier, for the initial funding
of any other Credit Extension) is subject to satisfaction (or waiver) of the following conditions
precedent on or before November 20, 2009:



     (a) The initial public offering of the Parent shall have occurred or will occur substantially
simultaneously with, but not later than, the funding of the Term Loan and any other initial Credit
Extension.



     (b) The Administrative Agent shall have received evidence, in form and substance reasonably
satisfactory to it, that the Assets Under Management of the Borrower and its Subsidiaries are
greater than or equal to $35,000,000,000 as of the most recently ended calendar month.



     (c) Fees. Receipt by the Administrative Agent, the Arranger and the Lenders of any
fees required to be paid on or before the Initial Funding Date.



5.03 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 Eurodollar
Rate Loans) is subject to the satisfaction (or waiver) of the following conditions precedent:



     (a) The representations and warranties of each Loan Party contained in Article VI
(other than Section 6.05(d) and Section 6.06) or any other Loan Document, or which
are contained in any document



49









 




furnished at any time under or in connection herewith or therewith, shall be true and correct
in all material respects on and as of the date of such Credit Extension, except to the extent that
such representations and warranties specifically refer to an earlier date, in which case they shall
be true and correct in all material respects as of such earlier date.




     (b) No Default shall exist, or would result from such proposed Credit Extension or from the
application of the proceeds thereof.



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



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



ARTICLE VI




REPRESENTATIONS AND WARRANTIES




     The Loan Parties represent and warrant to the Administrative Agent and the Lenders that:



6.01 Existence, Qualification and Power.




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



6.02 Authorization; No Contravention.




     The execution, delivery and performance by each Loan Party of each Loan Document to which such
Person is party have been duly authorized by all necessary corporate or other organizational
action, and do not (a) contravene the terms of any of such Person’s Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of any Lien under, or
require any payment to be made under (i) any 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) or (c) above to the extent it could not be reasonably expected to have a Material
Adverse Effect.



6.03 Governmental Authorization; Other Consents.




     No approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in connection with
the



50









 




execution, delivery or performance by, or enforcement against, any Loan Party of this
Agreement or any other Loan Document other than those that have already been obtained and are in
full force and effect.




6.04 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 such Loan Party that is party
thereto in accordance with its terms, except as enforceability may be limited by applicable Debtor
Relief Laws or similar laws affecting creditors’ rights generally or by general principles of
equity.



6.05 Financial Statements; No Material Adverse Effect.




     (a) The financial statements delivered pursuant to Sections 7.01(a) and
7.01(b) (i) were prepared in accordance with GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein; (ii) fairly present, in all
material respects, the financial condition of the Borrower and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein (subject, in the case of unaudited financial statements, to the absence of footnotes and to
normal year-end audit adjustments); and (iii) to the extent required by GAAP, show all material
indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as
of the date thereof, including liabilities for taxes, material commitments and Indebtedness.



     (b) The Audited Financial Statements and the unaudited consolidated financial statements of
the Borrower and its Subsidiaries for the fiscal quarter ending June 30, 2009 (i) were prepared in
accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present, in all material respects, the financial
condition of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby (subject, in the case of unaudited financial statements,
to the absence of footnotes and to normal year-end audit adjustments); and (iii) to the extent
required by GAAP, show all material indebtedness and other liabilities, direct or contingent, of
the Borrower and its Subsidiaries as of the date thereof, including liabilities for taxes, material
commitments and Indebtedness.



     (c) From the date of the Audited Financial Statements to and including the Closing Date, there
has been no Disposition or any Involuntary Disposition of any material part of the business or
property of the Loan Parties and their Subsidiaries, taken as a whole, and no purchase or other
acquisition by any of them of any business or property (including any Equity Interests of any other
Person) material in relation to the consolidated financial condition of the Loan Parties and their
Subsidiaries, taken as a whole, in each case, which is not reflected in the foregoing financial
statements or in the notes thereto and has not otherwise been disclosed in writing to the Lenders
on or prior to the Closing Date.



     (d) 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.



6.06 Litigation.




     There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of
the Loan Parties after due and diligent investigation, threatened, at law, in equity, in
arbitration or before any Governmental Authority, by or against any Loan Party or any Subsidiary or
against any of their properties



51









 




or revenues that (a) purport to restrain or contest entry into or performance under this
Agreement or any other Loan Document, or the consummation of any of the transactions contemplated
hereby or (b) could reasonably be expected to have a Material Adverse Effect.




6.07 No Default.




     (a) No Loan Party nor any Subsidiary is in default under or with respect to any Contractual
Obligation that individually or in the aggregate could reasonably be expected to have a Material
Adverse Effect.



     (b) No Default has occurred and is continuing.



6.08 Taxes.




     Each Loan Party and its Subsidiaries have filed, or caused to be filed, all federal and state
income tax returns and all other material tax returns and reports required to be filed, and have
paid all federal 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 any Loan Party or any Subsidiary that would, if made, have a Material Adverse
Effect.



6.09 ERISA Compliance.




     (a) Except with respect to any matter that would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect, (i) each Plan is in compliance in
all material respects with the applicable provisions of ERISA, the Internal Revenue Code and other
federal or state Laws, (ii) each Plan that is intended to qualify under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the IRS or an application
for such a letter is currently being processed by the IRS with respect thereto and, to the best
knowledge of the Loan Parties, nothing has occurred which would prevent, or cause the loss of, such
qualification and (iii) each Loan Party and, to the knowledge of the Borrower, each ERISA Affiliate
have made all required contributions to each Plan subject to Section 412, Section 430 or Section
431 of the Internal Revenue Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412, Section 430 or Section 431 of the Internal Revenue
Code has been made with respect to any Plan.



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



     (c) Except as would not reasonably be expected to have a Material Adverse Effect: (i) no
ERISA Event has occurred or is reasonably expected to occur; (ii) the minimum required contribution
(as defined in Section 430(a) of the Internal Revenue Code) has been made for each Pension Plan;
(iii) no Loan Party or, to the knowledge of the Borrower, 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) no Loan Party or, to
the knowledge of the Borrower, 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) no Loan



52









 




Party or, to the knowledge of the Borrower, any ERISA Affiliate has engaged in a transaction
that could reasonably be expected to result in a liability to a Loan Party by reason of Section
4069 or 4212(c) of ERISA.




6.10 Borrower and Subsidiaries.




     Set forth on Schedule 6.10 is a list of the exact legal name of the Borrower and its
Subsidiaries, together with (a) jurisdiction of organization, (b) U.S. taxpayer identification
number and organizational number, (c) a notation of which Subsidiaries constitute Material
Subsidiaries and (d) if all of the Domestic Subsidiaries are not Loan Parties, the amount of
Consolidated EBITDA of the Borrower and its Domestic Subsidiaries, the amount of Consolidated
Revenue and the amount of Consolidated Assets contained in the Loan Parties, as such Schedule
6.10 may be updated from time to time pursuant to Section 7.02(b).



6.11 Margin Regulations; Investment Company Act; Investment Advisers Act.




     (a) No Credit Extension will be used for the purpose of purchasing or carrying Margin Stock in
violation of Regulation U. The Borrower is not engaged and will not engage, principally or as one
of its important activities, in the business of purchasing or carrying Margin Stock, or extending
credit for the purpose of purchasing or carrying Margin Stock in violation of Regulation U.



     (b) No Loan Party is or is required to be registered as an “investment company” under the
Investment Company Act of 1940.



     (c) Each Loan Party and each Subsidiary that is required to be registered as an investment
adviser under the Investment Advisers Act of 1940 is so registered in compliance with the terms of
such Act.



6.12 Disclosure.




     No report, financial statement, certificate or other information furnished in writing by or on
behalf of any Loan Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or
under any other Loan Document (in each case, as modified or supplemented by other information so
furnished and by the Registration Statement) contains, when furnished, taken as a whole, any
material misstatement of fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not materially misleading;
provided that, with respect to projected financial information, the Loan Parties represent
only that such information was prepared in good faith based upon assumptions believed to be
reasonable at the time.



6.13 Compliance with Laws.




     Each Loan Party and Subsidiary is in compliance 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 could not reasonably be expected to have a Material Adverse Effect.



6.14 Solvency.




     The Loan Parties are Solvent on a consolidated basis.



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ARTICLE VII




AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
each Loan Party shall and shall cause each Subsidiary to:



7.01 Financial Statements.




     Deliver to the Administrative Agent (which shall deliver to each Lender):



     (a) as soon as available, but in any event within ninety (90) days after the end of each
fiscal year of the Borrower, a consolidated statement of financial position or balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated
statements of income or operations, changes in members’ equity and cash flows for such fiscal year
and management discussion and analysis (which may be set forth in the 10-K of the Parent to the
extent the 10-K is delivered within ninety (90) days after the end of each fiscal year of the
Borrower), 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, audited and accompanied by a report
and opinion of KPMG or another independent certified public accountant of nationally recognized
standing, which report and opinion shall be prepared in accordance with generally accepted auditing
standards and shall not be subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit; and



     (b) as soon as available, but in any event within forty-five (45) days after the end of each
of the first three fiscal quarters of each fiscal year of the Borrower, a consolidated statement of
financial position or balance sheet of the Borrower and its Subsidiaries as at the end of such
fiscal quarter, the related consolidated statements of income or operations for such fiscal quarter
and the management discussion and analysis (which may be set forth in the 10-Q of the Parent to the
extent the 10-Q is delivered within forty-five (45) days after the end of each of the first three
fiscal quarters of the Borrower) and for the portion of the Borrower’s fiscal year then ended, and
the related consolidated statements of changes in members’ equity, and cash flows for such fiscal
quarter and the portion of the Borrower’s fiscal year then ended, in each case setting forth in
comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous
fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and
certified by the chief executive officer, chief financial officer, treasurer or controller of the
Borrower as fairly presenting in all material respects the financial condition, results of
operations, members’ equity and cash flows of the Borrower and its Subsidiaries in accordance with
GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.



     (c) promptly after filing with the SEC, all financial statements prepared on behalf of the
Parent.



     As to any information contained in materials furnished pursuant to Section 7.02(c), the
Borrower shall not be separately required to furnish such information under Section
7.01(a), (b) or (c) above, but the foregoing shall not be in derogation of the
obligation of the Borrower to furnish the information and materials described in Section
7.01(a), (b) or (c) above at the times specified therein.



54









 





7.02 Certificates; Other Information.




     Deliver to the Administrative Agent (which shall deliver to each Lender), in form and detail
satisfactory to the Administrative Agent and the Required Lenders:



     (a) concurrently with the delivery of the financial statements referred to in Section
7.01(a), a certificate of its independent certified public accountants certifying such
financial statements and stating that in making the examination necessary therefor no knowledge was
obtained of any Default under the financial covenants set forth herein or, if any such Default
shall exist, stating the nature and status of such event.



     (b) concurrently with the delivery of the financial statements referred to in
Sections 7.01(a) and (b), a duly completed Compliance Certificate signed by the
chief executive officer, chief financial officer, treasurer or controller of the Borrower (such
Compliance Certificate shall include (i) reports regarding Assets Under Management, in form and
substance acceptable to the Administrative Agent and (ii) such supplements to
Schedule 6.10, as are necessary such that, as supplemented, such Schedule would be
accurate and complete as of the date of such Compliance Certificate).



     (c) promptly after the same are available, copies of each annual report, proxy or financial
statement or other material report or communication sent to the equityholders of the Parent, and
copies of all material annual, regular, periodic and special reports and registration statements
which the Parent may file or be required to file with the SEC under Section 13 or 15(d) of the
Securities Exchange Act of 1934 (other than registration statements on Form S-8 or exhibits to any
of the foregoing), and not otherwise required to be delivered to the Administrative Agent pursuant
hereto.



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



     (e) promptly after the furnishing thereof, copies of any material statement or report
furnished to any holder of debt securities of any Loan Party or any Subsidiary pursuant to the
terms of any indenture, loan or credit or similar agreement involving Indebtedness then outstanding
in an aggregate principal amount in excess of the Threshold Amount and not otherwise required to be
furnished to the Lenders pursuant to Section 7.01 or any other clause of this Section
7.02.



     (f) promptly, and in any event within five Business Days after receipt thereof by any Loan
Party or any Subsidiary thereof, copies of each notice or other correspondence received from the
SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or
possible investigation or other inquiry by such agency regarding financial or other operational
results of any Loan Party or any Subsidiary thereof; provided that neither any Loan Party
nor any Subsidiary shall be required to provide a copy of any such communication if such Person is
prohibited or restricted by any applicable Law or by the terms of such communication from providing
such copy.



     (g) promptly, such additional information regarding the business, financial or corporate
affairs of any Loan Party or any Subsidiary, including Assets Under Management of the Borrower and
its Subsidiaries and additional financial information for non-wholly owned Subsidiaries to
determine compliance with Section 1.03(c)(ii), or compliance with the terms of the Loan
Documents, as the



55









 




Administrative Agent or any Lender may from time to time reasonably request unless prohibited
or restricted by applicable Law.




     Documents required to be delivered pursuant to Section 7.01(a), (b) or
(c) or Section 7.02(c) may be delivered electronically and if so delivered, shall
be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or
provides a link thereto on the Borrower’s website on the Internet at the website address listed on
Schedule 11.02; or (ii) on which such documents are posted on the Borrower’s behalf on an
Internet or intranet website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the Administrative Agent);
provided that: (i) the Borrower shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a
written request to cease delivering paper copies is given by the Administrative Agent or such
Lender and (ii) the Borrower shall notify the Administrative Agent (by telecopier or electronic
mail) of the posting of any such documents and provide to the Administrative Agent by electronic
mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything
contained herein, in every instance the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 7.02(b) to the Administrative Agent. Except
for such Compliance Certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such
documents.



     The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders (each a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to the Borrower or its Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Persons’ securities. The Borrower hereby agrees
that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly
and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the
Borrower 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 Borrower or its securities for purposes of United States federal
and state securities laws (provided, however, that to the extent such Borrower
Materials constitute Information, they shall be treated as set forth in Section 11.07); (y)
all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated as “Public Side Information;” 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 that is not marked as “Public Side Information.”
Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower
Materials “PUBLIC.”



7.03 Notices.




     (a) Promptly notify the Administrative Agent (which shall notify each Lender) of the
occurrence of any Default.



     (b) Promptly notify the Administrative Agent (which shall notify each Lender) of any matter
that has resulted or could reasonably be expected to result in a Material Adverse Effect.



56









 





     (c) Promptly notify the Administrative Agent (which shall notify each Lender) of the
occurrence of any ERISA Event.



     (d) Promptly notify the Administrative Agent (which shall notify each Lender) of any material
change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary
or any change in auditors.



     (e) Promptly notify the Administrative Agent (which shall notify each Lender) of the
occurrence of any Material Disposition.



     (f) Promptly notify the Administrative Agent (which shall notify each Lender) of any
suspension or termination of registration as an investment adviser under the Investment Advisers
Act of 1940.



     Each notice pursuant to this Section 7.03 shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and
stating what action the Borrower has taken and proposes to take with respect thereto. Each notice
pursuant to Section 7.03(a) shall describe with particularity any and all provisions of
this Agreement and any other Loan Document that have been breached.



7.04 Payment of Taxes and Other Obligations.




     (a) Pay and discharge, as the same shall become due and payable, all its material 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 such Loan Party or such
Subsidiary.



     (b) Pay and discharge, as the same shall become due and payable, all other obligations of the
Loan Parties and their Subsidiaries, except to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect.



7.05 Preservation of Existence, Etc.




     (a) With respect to any Loan Party, 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 8.03 or 8.04.



     (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
the failure to do so could not reasonably be expected to have a Material Adverse Effect.



7.06 Compliance with Laws.




     Comply 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. Maintain all registrations required
under the Investment Advisers Act of 1940.



57









 





7.07 Books and Records.




     (a) Maintain proper books of record and account, in which full, true and correct, in all
material respects, entries shall be made of all material financial transactions and matters
involving the assets and business of such Loan Party or such Subsidiary, as the case may be, in a
manner that permits the preparation of financial statements in accordance with GAAP.



     (b) Maintain such books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over such Loan Party or
such Subsidiary, as the case may be.



7.08 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 its independent public accountants (at which authorized representatives of
the Borrower shall be entitled to be present), all at the expense of the Borrower and at such
reasonable times during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Borrower; provided, however, that absent an Event
of Default the Borrower shall only be required to pay for one inspection per year.



7.09 Use of Proceeds.




     Use the proceeds of (a) the Term Loan (i) to finance one or more dividends or distributions to
the Parent, (ii) for working capital and (iii) for future investment products of Subsidiaries and
(b) all other Credit Extensions (i) for working capital, (ii) for future investment products of
Subsidiaries and (iii) for lawful corporate purposes; provided that in no event shall the
proceeds of the Credit Extensions be used in contravention of any Law or of any Loan Document.



7.10 ERISA Compliance.




     Except to the extent the failure to do any of the following would not reasonably be expected
to have a Material Adverse Effect, do, and use commercially reasonable efforts to cause each of its
ERISA Affiliates to do, each of the following: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Internal Revenue Code and other federal or
state law; (b) cause each Plan that is qualified under Section 401(a) of the Internal Revenue Code
to maintain such qualification; and (c) make all required contributions to any Plan subject to
Section 412, Section 430 or Section 431 of the Internal Revenue Code.



7.11 Additional Subsidiaries.





     (a) Within thirty (30) days after the acquisition or formation of any Subsidiary (or
such longer period as the Administrative Agent may agree in its sole discretion):




     (i) notify the Administrative Agent thereof in writing, together with the
(A) jurisdiction of formation of such Subsidiary and (B) the U.S. taxpayer
identification number and organizational number of such Subsidiary; and




     (ii) if such Subsidiary is a Material Subsidiary, cause such Person to (A)
become a Guarantor by executing and delivering to the Administrative Agent a Joinder



58









 






Agreement or such other documents as the Administrative Agent shall deem
appropriate for such purpose, and (B) deliver to the Administrative Agent such
Organization Documents, resolutions and favorable opinions of counsel, all in form,
content and scope reasonably satisfactory to the Administrative Agent and consistent
with the documentation required for Guarantors on the Closing Date.




     (b) If, as of the last day of any fiscal quarter, less than (i) 90% of the Consolidated
EBITDA, for the Borrower and its Domestic Subsidiaries, as of the most recently ended two
quarter period, (ii) 90% of the Consolidated Revenue or (iii) 90% of the Consolidated
Assets, is contained in the Loan Parties, then the Borrower shall, within thirty (30) days
(or such longer period as the Administrative Agent may agree in its sole discretion), cause
a Domestic Subsidiary (or Domestic Subsidiaries) to become a Guarantor in accordance with
clause (a) above such that the terms of this clause (b) are satisfied.



7.12 Maintenance of Properties/Insurance.




     (a) (i) 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, (ii)  make all necessary repairs thereto and renewals and replacements thereof and
(iii) use the standard of care typical in the industry in the operation and maintenance of its
facilities, except, in each case referred to in clause (i), (ii) and (iii), where the failure to do
so could not reasonably be expected to have a Material Adverse Effect.



     (b) Maintain in full force and effect insurance (including worker’s compensation insurance,
liability insurance, casualty insurance and business interruption insurance) with financially sound
and reputable insurance companies not Affiliates of the Borrower, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where such Loan Party or such Subsidiary
operates.



ARTICLE VIII




NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other
than contingent indemnification or similar obligations not then due) under this Agreement shall
remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding (unless cash
collateralized in a manner reasonably satisfactory to the L/C Issuer), no Loan Party shall, nor
shall it permit any Subsidiary to, directly or indirectly:



8.01 Liens.




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



     (a) Liens pursuant to any Loan Document;



     (b) Liens existing on the date hereof and listed on Schedule 8.01 and any renewals or
extensions thereof, provided that the property covered thereby is not changed;



59









 





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



     (d) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen
and suppliers and other Liens imposed by law or pursuant to customary reservations or retentions of
title arising in the ordinary course of business, provided that such Liens secure only
amounts not yet due and payable or, if due and payable, are unfiled and no other action has been
taken to enforce the same or are being contested in good faith by appropriate proceedings for which
adequate reserves determined in accordance with GAAP have been established;



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



     (f) deposits to secure the performance of tenders, bids, trade contracts and leases (other
than Indebtedness), statutory obligations, surety and appeal bonds, insurance obligations,
performance bonds and other obligations of a like nature incurred in the ordinary course of
business;



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



     (h) Liens securing judgments for the payment of money (or appeal or other surety bonds
relating to such judgments) not constituting an Event of Default under Section 9.01(h);



     (i) Liens securing Indebtedness permitted under Section 8.02(e); provided that
(i) such Liens do not at any time encumber any property other than the property financed by such
Indebtedness or any renewal, refinancing or extension thereof and (ii) such Liens attach to such
property concurrently with or within ninety days after the acquisition thereof;



     (j) leases, subleases, licenses or sublicenses granted to others not interfering in any
material respect with the business of the Loan Parties;



     (k) (i) any interest or title of a lessor or sublessor under, and Liens arising from Uniform
Commercial Code financing statements (or equivalent filings, registrations or agreements in foreign
jurisdictions) relating to, leases or subleases not prohibited by this Agreement and (ii) any
interest or title of a licensor or sublicensor under any license or sublicense entered into in the
ordinary course of business;



     (l) customary banker’s liens, rights of setoff and other similar liens upon deposits of cash
in favor of banks or other depository institutions;



     (m) Liens of a collecting bank arising under Section 4-208 or 4-210 of the Uniform Commercial
Code (or its equivalent) on items in the course of collection;



     (n) Liens in favor of the L/C Issuer on cash collateral securing the obligations of, or
designed to eliminate the risk of, a Defaulting Lender or an Impacted Lender to fund risk
participations hereunder;



     (o) any Lien on any Margin Stock;



60









 





     (p) Liens in the nature of trustee’s Liens granted pursuant to any indenture governing any
Indebtedness for borrowed money permitted by Section 8.02, in each case in favor of the
trustee under such indenture and securing only obligations to pay compensation to such trustee, to
reimburse its expenses and to indemnify it under the terms thereof;



     (q) Liens on cash earnest money deposits made in connection with any letter of intent or
purchase agreement not prohibited hereunder;



     (r) Liens on cash deposits securing obligations permitted under Section 8.02(d); and



     (s) Liens incurred in connection with Indebtedness incurred pursuant to Section
8.02(j) up to an aggregate amount not to exceed, at any one time outstanding, $10,000,000.



8.02 Indebtedness.




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



     (a) Indebtedness under the Loan Documents;



     (b) Indebtedness set forth in Schedule 8.02 (and renewals, refinancings and extensions
thereof); provided that (i) the amount of such Indebtedness is not increased at the time of
such refinancing, 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 and (ii) the
terms relating to principal amount, amortization, maturity, collateral (if any) and subordination
(if any), and other material terms taken as a whole, of any such refinancing, renewal or extension
are no less favorable in any material respect to the Loan Parties and their Subsidiaries or the
Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced,
renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing
or extending Indebtedness does not exceed the then applicable market interest rate;



     (c) intercompany Indebtedness between Loan Parties;



     (d) obligations (contingent or otherwise) 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 other than ordinary netting or setoff rights;



     (e) purchase money Indebtedness (including obligations in respect of Capital Leases or
Synthetic Leases) hereafter incurred to finance the purchase of fixed assets, and renewals,
refinancings and extensions thereof, provided that (i) the aggregate outstanding principal
amount of all such Indebtedness shall not exceed $10,000,000 at any one time outstanding; and (ii)
such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed;



     (f) Indebtedness representing deferred compensation to officers or employees of the Borrower
or any of its Subsidiaries incurred in the ordinary course of business;



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     (g) Indebtedness in respect of (i) performance bonds, bid bonds, surety bonds, workers’
compensation claims, performance and completion guarantees and similar obligations, in each case
provided in the ordinary course of business and (ii) appeal bonds;



     (h) Indebtedness consisting of netting arrangements and overdraft protections incurred in the
ordinary course of business;



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



     (j) other Indebtedness in an aggregate principal amount not to exceed $50,000,000 at any one
time outstanding; and



     (k) Guarantees with respect to Indebtedness permitted under this Section 8.02.



8.03 Fundamental Changes.




     Merge, dissolve, liquidate or consolidate with or into another Person, except that so long as
no Event of Default exists or would result therefrom, (a) the Borrower may merge or consolidate
with any of its Subsidiaries or any other Person provided that the Borrower is the continuing or
surviving Person, (b) any Subsidiary may merge or consolidate with any other Subsidiary provided
that if a Loan Party is a party to such transaction, the continuing or surviving Person is a Loan
Party, (c) any Subsidiary may merge into or with or consolidate with any other Person if the
surviving Person is or becomes by virtue of such transaction a Subsidiary and the Borrower
determines in good faith that such transaction is in the best interests of the Borrower and would
not reasonably be expected to result in a Material Adverse Effect, (d) a Subsidiary may engage in a
transaction otherwise permitted under Section 8.04 and (e) any Immaterial Subsidiary may
dissolve, liquidate or wind up its affairs at any time provided that such dissolution, liquidation
or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect.



8.04 Dispositions.




     Make any Disposition except:



     (a) Permitted Transfers;



     (b) Dispositions of Margin Stock; and



     (c) other Dispositions; provided that any Material Disposition must comply with the terms of
Section 2.05.



8.05 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 declare and make Restricted Payments to Persons that own Equity
Interests 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;




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     (b) each Loan Party and each Subsidiary may declare and make dividend payments or other
distributions payable solely in Equity Interests of such Person;



     (c) the Borrower may declare and make dividend payments or other distributions to each Member
in respect of its income tax liability as set forth in Section 5.02 of the Amended and Restated LLC
Agreement;



     (d) the Borrower may declare and make dividend payments or other distributions in accordance
with Section 5.03 of the Amended and Restated LLC Agreement, including, without limitation, the
Deferred Payment;



     (e) each Loan Party and each Subsidiary may purchase, redeem or otherwise acquire its Equity
Interests with the proceeds received from the substantially concurrent issue of new Equity
Interests;



     (f) the Borrower may make distributions to the Parent so that the Parent may, repurchase its
Equity Interests from current or former directors, officers or employees of the Parent, the
Borrower or any of its Subsidiaries, their estates, spouses or former spouses or make payments to
such persons upon termination of employment or directorship, in connection with the exercise of
stock options, stock appreciation rights or similar equity incentives or equity based incentives
pursuant to incentive plans or in connection with the death or disability of such persons in an
aggregate amount not to exceed $3,500,000 in any fiscal year; and



     (g) the Borrower may declare and make other Restricted Payments as long as after giving effect
to such Restricted Payment on a Pro Forma Basis (i) no Default exists and (ii) the Consolidated
Leverage Ratio is less than or equal to 1.50 to 1.0.



8.06 Change in Nature of Business.




     Engage in any material line of business substantially different from those lines of business
conducted by the Loan Parties and their Subsidiaries on the Closing Date or any business reasonably
related or incidental thereto.



8.07 Transactions with Affiliates and Insiders.




     Enter into or permit to exist any transaction or series of transactions with any officer,
director or Affiliate of such Person other than (a) transactions between or among Loan Parties or
transactions between or among Subsidiaries of the Borrower that are not Loan Parties, (b) transfers
of cash and assets to any Loan Party, (c) intercompany transactions expressly permitted by
Section 8.02, Section 8.03, Section 8.04 or Section 8.05, (d)
payment of customary fees and reasonable out of pocket costs to, and provision of and payments
pursuant to indemnities for the benefit of, consultants, directors, officers, and employees of the
Borrower or any Subsidiary, (e) reasonable employment and severance arrangements (including health
plans, stock option plans and employee benefit plans and other similar plans and arrangements) with
officers and employees of the Borrower and its Subsidiaries in the ordinary course of business, (f)
transactions pursuant to any agreements or arrangements listed in Schedule 8.07 (or any
amendment thereto or extension thereof to the extent such amendment or extension, taken as a whole,
is not adverse to the Lenders in any material respect), (g) loans and advances to officers,
directors and employees in the ordinary course of business in an aggregate principal amount at any
time outstanding not to exceed $2,500,000, (h) investments by any officer, director, employee, or
Affiliate of the Parent, Borrower or any Subsidiary in any investment funds managed by the Borrower
or such Subsidiary without the payment of normal fees or charges related thereto, (i) transactions,
in the ordinary course of business, with any investment fund managed by the Borrower or any



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Subsidiary and (j) except as otherwise specifically limited in this Agreement, other
transactions which are entered into on terms and conditions substantially as favorable to such
Person as would be obtainable by it at the time in a comparable arms-length transaction with a
Person other than an officer, director or Affiliate.



8.08 Burdensome Agreements.




     Enter into, or permit to exist, any Contractual Obligation that (a) encumbers or restricts the
ability of any Loan Party or any Subsidiary to (i) make Restricted Payments to any Loan Party, (ii)
pay any Indebtedness or other obligation owed to any Loan Party, (iii) make loans or advances to
any Loan Party, (iv) transfer any of its property to any Loan Party, (v) in the case of a Material
Subsidiary, pledge its property pursuant to the Loan Documents or any renewals, refinancings,
exchanges, refundings or extension thereof or (vi) in the case of a Material Subsidiary, act as a
Loan Party pursuant to the Loan Documents or any renewals, refinancings, exchanges, refundings or
extension thereof, except (in respect of any of the matters referred to in clauses (i)-(v) above)
for (1) this Agreement and the other Loan Documents, (2) any document or instrument governing
Indebtedness incurred pursuant to Section 8.02(e), provided that any such
restriction contained therein relates only to the asset or assets constructed or acquired in
connection therewith, (3) any Permitted Lien or any document or instrument governing any Permitted
Lien, provided that any such restriction contained therein relates only to the asset or
assets subject to such Permitted Lien, (4) customary restrictions and conditions contained in any
agreement relating to the sale of any Subsidiary or any property pending the consummation of such
sale, (5) customary provisions in joint venture agreements and other similar agreements applicable
to joint ventures and applicable solely to such joint venture, (6) customary restrictions on
leases, subleases, licenses or sublicenses so long as such restrictions relate solely to the assets
subject thereto, (7) customary anti-assignment provisions in contracts restricting the assignment
of any agreement entered into in the ordinary course of business, (8) customary provisions in
leases of real property that prohibit mortgages or pledges of the lessee’s interest under such
lease, (9) limitations imposed on any Subsidiary that is not a Loan Party by the terms of any
Indebtedness permitted hereunder if such limitation applies only to the assets or property of such
Subsidiary securing such Indebtedness and (10) restrictions pursuant to any agreement or
arrangement identified on Schedule 8.08 (or any amendment thereto or extension thereof to
the extent such amendment or extension, taken as a whole, is not adverse to the Lenders in any
material respect) or (b) requires the grant of any security for any obligation if such property is
given as security for the Obligations.



8.09 Use of Proceeds.




     Use the proceeds of any Credit Extension, whether directly or indirectly, and whether
immediately, incidentally or ultimately, to purchase or carry Margin Stock or to extend credit to
others for the purpose of purchasing or carrying Margin Stock or to refund indebtedness originally
incurred for such purpose, in each case in violation of Regulation U.



8.10 Financial Covenants.




     (a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio, as of the
end of any fiscal quarter of the Borrower, commencing with the fiscal quarter ending September 30,
2009, to be greater than 2.0 to 1.0.



     (b) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio, as of the end of any fiscal quarter of the Borrower, commencing with the fiscal quarter
ending September 30, 2009, to be less than 4.0 to 1.0.



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8.11 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of
Entity.




     (a) In the case of any Loan Party, amend, modify or change its Organization Documents in a
manner adverse to the Lenders; it being understood that the Amended and Restated LLC Agreement will
become effective after the Closing Date.



     (b) Change its fiscal year.



     (c) In the case of any Loan Party, except in connection with a transaction permitted by
Section 8.03 or 8.04, without providing ten days prior written notice to the
Administrative Agent (or such shorter notice as the Administrative Agent may agree in its sole
discretion), change its name, state of formation or form of organization.



ARTICLE IX




EVENTS OF DEFAULT AND REMEDIES




9.01 Events of Default.




     Any of the following shall constitute an Event of Default:



     (a) Non-Payment. Any Loan Party fails to pay (i) when and as required to be paid
herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within 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. Any Loan Party fails to perform or observe any term, covenant
or agreement contained in any of Section 7.01, 7.02, 7.03, 7.05(a),
7.08, 7.09, or 7.11 or Article VIII; or



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



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



     (e) Cross-Default. (i) Any Loan Party or any Subsidiary (A) fails to make any payment
when due (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 Threshold Amount, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or Guarantee or contained in any
instrument or agreement evidencing, securing or relating thereto, 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 be demanded or to



65









 







become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise),
or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its
stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be
demanded; provided, that any default resulting from limitations on Margin Stock shall not
constitute an Event of Default under this Section 9.01(e), 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 any Loan Party 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 any Loan Party or any Subsidiary is an Affected Party (as so
defined) and, in either event, the Swap Termination Value owed by such Loan Party or such
Subsidiary as a result thereof is greater than the Threshold Amount; or



     (f) Insolvency Proceedings, Etc. Any Loan Party or any Subsidiary institutes or
consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment
for the benefit of creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its 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 sixty 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 sixty
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 Subsidiary becomes
unable or admits in writing its inability or fails generally to pay its debts as they become due,
or (ii) any writ or warrant of attachment or execution or similar process is issued or levied
against all or any material part of the property of any such Person and is not released, vacated or
fully bonded within thirty days after its issue or levy; or



     (h) Judgments. There is entered against any Loan Party 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 the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer has been notified of the claim and 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 ten 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 any Loan Party
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
which is then due and payable in excess of the Threshold Amount, or (ii) the Borrower or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or



     (j) Invalidity of Loan Documents. Any Loan Document, at any time after its execution
and delivery and for any reason other than as expressly permitted hereunder or thereunder or
satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan
Party or any other Person contests in writing the validity or enforceability of any Loan Document;
or any Loan Party denies in



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writing that it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or



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



9.02 Remedies Upon Event of Default.




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



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



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



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



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


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




9.03 Application of Funds.




     After the exercise of remedies provided for in Section 9.02 (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 9.02), 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 (other than principal, interest and Letter of Credit
Fees, but 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 fees, charges and disbursements of
counsel to the respective Lenders and the L/C Issuer and amounts payable under Article
III), ratably among them in proportion to the respective amounts described in this
clause Second payable to them;



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     Third, to payment of that portion of the Obligations constituting accrued and
unpaid Letter of Credit Fees and interest on the Loans and L/C Borrowings and fees, premiums
and scheduled periodic payments, and any interest accrued thereon, due under any Swap
Contract between any Loan Party or any Subsidiary and any Lender, or any Affiliate of a
Lender, to the extent such Swap Contract is permitted by Section 8.02(d), ratably
among the Lenders (and, in the case of such Swap Contracts, Affiliates of Lenders) and the
L/C Issuer in proportion to the respective amounts described in this clause Third
held by them;




     Fourth, to (a) payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, (b) payment of breakage, termination or other
payments, and any interest accrued thereon, due under any Swap Contract between any Loan
Party or any Subsidiary and any Lender, or any Affiliate of a Lender, to the extent such
Swap Contract is permitted by Section 8.02(d) (net of any cash collateral that may
secure such Swap Contract in accordance with Section 8.01(r)), (c) payments of
amounts due under any Treasury Management Agreement between any Loan Party or any Subsidiary
and any Lender, or any Affiliate of a Lender and (d) Cash Collateralize that portion of L/C
Obligations comprised of the aggregate undrawn amount of Letters of Credit, ratably among
the Lenders (and, in the case of such Swap Contracts and Treasury Management Agreements,
Affiliates of Lenders) and the L/C Issuer in proportion to the respective amounts described
in this clause Fourth held by them; and



     Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full (other than contingent indemnification or similar obligations not then due), to the Borrower
or as otherwise required by Law and thereafter applied as provided in clause “Last” above.



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



ARTICLE X




ADMINISTRATIVE AGENT




10.01 Appointment and Authority.




     Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on
its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes
the Administrative Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article are solely for the
benefit of the Administrative Agent, the Lenders and the L/C Issuer, and solely in the case of
Sections 10.06 and 10.10, the Borrower and the other Loan Parties, and no Loan
Party shall have rights as a third party beneficiary of any of such provisions other than
Sections 10.06 and 10.10.



10.02 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



68









 







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 any Loan Party 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.



10.03 Exculpatory Provisions.




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




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




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




     (c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any Loan Party or any of its Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent or any of its Affiliates in any
capacity.



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.01 and 9.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.



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



10.04 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



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(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 Loan Parties), 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.




10.05 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.



10.06 Resignation of Administrative Agent.




     The Administrative Agent may at any time give notice of its resignation to the Lenders, the
L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, with the consent of the Borrower (not to be unreasonably withheld), 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 (with the consent of the Borrower) 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 (including consent of the Borrower) set
forth above; provided that if the Administrative Agent shall notify the Borrower and the
Lenders that no qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (a) the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder and under the other Loan
Documents and (b) all payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and the L/C Issuer
directly, until such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the retiring Administrative Agent’s resignation hereunder and under the other
Loan Documents, the provisions of this Article and Section 11.04 shall continue in effect
for the benefit of such retiring Administrative Agent, its sub-agents and their respective



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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.



     Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, (i) such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring L/C Issuer, (ii) the retiring L/C Issuer
shall be discharged from all of its duties and obligations hereunder or under the other Loan
Documents, and (iii) 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.



10.07 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.



10.08 No Other Duties; Etc.




     Anything herein to the contrary notwithstanding, none of the bookrunners, arrangers,
syndication agents, documentation agents or co-agents shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except in its capacity,
as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.



10.09 Administrative Agent May File Proofs of Claim.




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




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations arising under
the Loan Documents 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 11.04) allowed in such judicial proceeding; and




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



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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, if 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 11.04.




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



10.10 Guaranty Matters.




     The Lenders and the L/C Issuer irrevocably authorize the Administrative Agent to release any
Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary or all
the assets of such Person are sold to a Person other than the Borrower or one of its Subsidiaries
as a result of a transaction permitted hereunder. Upon request by the Administrative Agent at any
time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release
any Guarantor from its obligations under the Guaranty, pursuant to this Section 10.10. The
Administrative Agent will, at the Borrower’s expense, execute and deliver to the applicable
Guarantor such documents as such Guarantor may reasonably request to evidence the release of such
Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the
Loan Documents and this Section 10.10.



ARTICLE XI




MISCELLANEOUS




11.01 Amendments, Etc.




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



     (a) no such amendment, waiver or consent shall:




     (i) extend or increase the Commitment of a Lender (or reinstate any Commitment
terminated pursuant to Section 9.02) without the written consent of such Lender
whose Commitment is being extended or increased (it being understood and agreed that a
waiver of any condition precedent set forth in Section 5.03 or of any Default or a
mandatory reduction in Commitments is not considered an extension or increase in Commitments
of any Lender), but any waiver of any condition precedent in Section 5.02 shall
require the consent of each Lender;




     (ii) postpone any date fixed by this Agreement or any other Loan Document for any
payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due
to the Lenders (or any of them) or any scheduled reduction of the Commitments hereunder or
under any other Loan Document without the written consent of each Lender entitled to receive
such payment or whose Commitments are to be reduced;



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     (iii) reduce the principal of, or the rate of interest specified herein on, any Loan or
L/C Borrowing, or (subject to clause (i) of the final proviso to this Section 11.01)
any fees or other amounts payable hereunder or under any other Loan Document without the
written consent of each Lender entitled to receive such amount; provided,
however, that only the consent of the Required Lenders shall be necessary to (A)
amend the definition of “Default Rate” or waive any obligation of the Borrower to pay
interest or Letter of Credit Fees at the Default Rate or (B) 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;




     (iv) change Section 2.12(a), Section 2.12(f), Section 2.13,
Section 9.03 or the definition of “Applicable Percentage” in a manner that would
alter the pro rata sharing of payments required thereby without the written consent of each
Lender directly affected thereby;




     (v) change any provision of this Section 11.01(a) or the definition of
“Required Lenders” without the written consent of each Lender directly affected thereby;




     (vi) release the Borrower without the consent of each Lender, or, except in connection
with a transaction permitted under Section 8.03 or Section 8.04, all or
substantially all of the Guarantors without the written consent of each Lender whose
Obligations are guarantied thereby, except to the extent such release is permitted pursuant
to Section 10.10 (in which case such release may be made by the Administrative Agent
acting alone); or



     (b) prior to the termination of the Revolving Commitments, unless also signed by Lenders
(other than Defaulting Lenders) holding in the aggregate at least a majority of the Revolving
Commitments, no such amendment, waiver or consent shall, (i) waive any Default for purposes of
Section 5.03(b), (ii) amend, change, waive, discharge or terminate Sections 5.03 or
9.01 in a manner adverse to such Lenders or (iii) amend, change, waive, discharge or
terminate Section 8.10 (or any defined term used therein) or this Section 11.01(b);
or



     (c) unless also signed by Lenders (other than Defaulting Lenders) holding in the aggregate at
least a majority of the Outstanding Amount of the Term Loan, no such amendment, waiver or consent
shall (i) amend, change, waive, discharge or terminate Section 2.05(b)(iii) so as to alter
the manner of application of proceeds of any mandatory prepayment required by Section
2.05(b)(ii) or (ii) amend, change, waive, discharge or terminate this Section 11.01(c)
(other than to provide other term loan Lenders with proportional rights under this Section
11.01(c));



     (d) unless also signed by the L/C Issuer, no amendment, waiver or consent shall 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; and



     (e) unless also signed by the Administrative Agent, no amendment, waiver or consent shall
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document;


provided, however, that notwithstanding anything to the contrary herein, (i) the
Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by
the parties thereto, (ii) 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, (iii) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender
acknowledges that the provisions of




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Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set
forth herein, (iv) the Required Lenders shall determine whether or not to allow a Loan Party to use
cash collateral in the context of a bankruptcy or insolvency proceeding and such determination
shall be binding on all of the Lenders and (v) the Borrower and the Administrative Agent may,
without the input or consent of any other Lender, effect such amendments to this Agreement and the
other Loan Documents as may be necessary or appropriate in the opinion of the Administrative Agent
to effect the provisions of Sections 2.01(c).




11.02 Notices; Effectiveness; Electronic Communications.




     (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 any Loan Party, the Administrative Agent or the L/C Issuer to the address,
telecopier number, electronic mail address or telephone number specified for such Person on
Schedule 11.02; and




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



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



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



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



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intended recipient at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying the website address
therefor.



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



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



     (e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Loan Notices) purportedly given by or on behalf of any Loan Party 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 Loan Parties 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 a Loan Party. 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.



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11.03 No Waiver; Cumulative Remedies; Enforcement.




     No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay
by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder or under any other Loan Document 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 9.02 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 from exercising the rights and remedies that inure to its benefit
(solely in its capacity as L/C Issuer) hereunder and under the other Loan Documents, (c) any Lender
from exercising setoff rights in accordance with Section 11.08(subject to the terms of
Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing
pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under
any Debtor Relief Law; and provided, further, that if at any time there is no
Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the
Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to
Section 9.02 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.



11.04 Expenses; Indemnity; and Damage Waiver.




     (a) Costs and Expenses. The Borrower shall pay (i) all reasonable and documented
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the Administrative Agent) in connection
with the syndication of the credit facilities provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and
documented out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent,
any Lender or the L/C Issuer (including the reasonable fees, charges and disbursements of any
counsel for the Administrative Agent, any Lender or the L/C Issuer), and shall pay all reasonable
and documented fees and time charges for attorneys (who may be employees) of the Administrative
Agent, any Lender or the L/C Issuer, in connection with the enforcement or protection of its
rights, including any and all enforcement costs following any Default or Event of Default, (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.



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     (b) Indemnification by the Loan Parties. The Loan Parties shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses (including the reasonable and documented fees, charges and disbursements of
any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all
reasonable fees and time charges and disbursements for attorneys (who may be employees) of any
Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by
any 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 or the consummation of the transactions contemplated hereby or thereby, or, in the case
of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the
administration of this Agreement and the other Loan Documents (including in respect of any matters
addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of
the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under
a Letter of Credit if the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any Environmental Liability related in any way to a
Loan Party or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory, whether brought by a third party or by any Loan Party, and regardless of whether
any Indemnitee is a party thereto, in all cases, whether or not caused by or arising, in whole or
in part, out of the comparative, contributory or sole negligence of the indemnitee;
provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the bad faith,
gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by any
Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder
or under any other Loan Document, if such Loan Party has obtained a final and nonappealable
judgment in its favor on such claim as determined by a court of competent jurisdiction.



     (c) Reimbursement by Lenders. To the extent that the Loan Parties for any reason fail
to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by
them to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of
any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided that (i) 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, (ii) the obligation to reimburse
the L/C Issuer is limited to Revolving Lenders and (iii) payment by a Lender hereunder does not
limit or reduce the Obligations of the Loan Parties that are unpaid. 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 Loan Party shall assert, and each Loan Party 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



77









 







subsection (b) above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed to such unintended recipients by such
Indemnitee through telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the transactions contemplated hereby
or thereby other than for direct or actual damages resulting from the gross negligence or willful
misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of
competent jurisdiction.



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



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



11.05 Payments Set Aside.




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



11.06 Successors and Assigns.




     (a) Successors and Assigns Generally. The provisions of this Agreement and the other
Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and
their respective successors and assigns permitted hereby, except that the Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder or thereunder 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 and the other Loan
Documents (including all or a portion of its Commitment and the Loans (including for purposes of
this subsection (b),



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participations in L/C Obligations) at the time owing to it); provided that any such
assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




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




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




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s Loans and Commitments, and
rights and obligations with respect thereto, assigned, except that this clause (ii) shall
not prohibit any Lender from assigning all or a portion of its rights and obligations in
respect of its Revolving Commitment (and the related Revolving Loans thereunder) and its
outstanding Term Loans 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 Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
(1) any Term Loan Commitment or Revolving Commitment if such assignment is to a
Person that is not a Lender with a Commitment in respect of the Commitment subject
to such assignment, 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; and



79









 






     (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).




     (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, however,
that the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.




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




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




     (vii) No Assignment to Defaulting Lenders or Impacted Lenders. No such
assignment shall be made to a Defaulting Lender or an Impacted Lender.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04
with respect to facts and circumstances occurring prior to the effective date of such assignment).
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with subsection (d) of
this Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower and any Lender at any reasonable time and from
time to time upon reasonable prior notice.



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations) owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender



80









 







shall remain solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Administrative Agent, the other 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
clauses (i) through (vi) of Section 11.01(a) that affects such Participant. Subject to
subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To
the extent permitted by Law, each Participant also shall be entitled to the benefits of Section
11.08 as though it were a Lender, provided such Participant agrees to be subject to
Section 2.13 as though it were a Lender.



     (e) Limitation on Participant Rights. A Participant shall not be entitled to receive
any greater payment under Section 3.01, 3.04 or 3.05 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.01 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, in writing, for the benefit of the Borrower, to
comply with Section 3.01(e) as though it were a Lender.



     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its Note, if any) to
secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as
a party hereto.



     (g) Resignation as L/C Issuer after Assignment. Notwithstanding anything to the
contrary contained herein, if at any time Bank of America assigns all of its Revolving Commitment
and Revolving Loans pursuant to subsection (b) above, Bank of America may, upon thirty days’ notice
to the Borrower and the Lenders, resign as L/C Issuer. In the event of any such resignation as L/C
Issuer, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer
hereunder; provided, however, that no failure by the Borrower to appoint any such
successor shall affect the resignation of Bank of America as L/C Issuer. 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)). Upon the appointment of a successor L/C Issuer, (1) such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring L/C Issuer and (2) 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.



11.07 Treatment of Certain Information; Confidentiality.




     Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below) in accordance with its customary procedures
and to not use the Information for any purpose except in connection with the Loan Documents, except
that



81









 







Information may be disclosed (a) on a confidential and need-to-know basis to its Affiliates
and to its and its Affiliates’ respective partners, directors, officers, employees, agents,
trustees, advisors and representatives who need to know such information in connection with the
transactions contemplated hereby (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 and will be subject to customary confidentiality obligations of
professional practice or will agree (which agreement may be oral or pursuant to company policy) to
be bound by the terms of this Section (or language substantially similar to this Section)), (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, to the extent permitted by Law, shall inform the Borrower), (c) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process (in
which case such Person, to the extent permitted by Law, shall inform the Borrower), (d) to any
other party hereto, (e) in connection with the administration of the facilities or 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 permitted assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement or any Eligible Assignee invited to become a
Lender pursuant to Section 2.01(c) or (ii) any direct or indirect, actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to a Loan Party and
its obligations, (g) to ratings agencies, (h) with the prior consent of the Borrower or (i) to the
extent such Information (x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of
their respective Affiliates on a nonconfidential basis from a source other than the Borrower.



     For purposes of this Section, “Information” means all information received from a Loan
Party or any Subsidiary relating to the Parent, the Loan Parties 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 such Loan
Party or any Subsidiary. 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 Parent, a Loan Party or a
Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of
material non-public information and (c) it will handle such material non-public information in
accordance with applicable Law, including United States Federal and state securities Laws.



11.08 Set-off.




     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, after
obtaining the prior written consent of the Administrative Agent 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 Loan Party against any and all of the obligations of such Loan Party
now or hereafter existing under this Agreement or any other Loan Document to such Lender or the L/C
Issuer, irrespective of whether or not such Lender or the L/C Issuer shall have made any demand
under this Agreement or any other Loan Document and



82









 







although such obligations of such Loan Party may be contingent or unmatured or are owed to a
branch or office of such Lender or the L/C Issuer different from the branch or office holding such
deposit or obligated on such indebtedness. The rights of each Lender, the L/C Issuer and their
respective Affiliates under this Section are in addition to other rights and remedies (including
other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have.
Each Lender and the L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly
after any such setoff and application, provided that the failure to give such notice shall
not affect the validity of such setoff and application.



11.09 Interest Rate Limitation.




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



11.10 Counterparts; Integration; Effectiveness.




     This Agreement and the other Loan Documents may be executed in counterparts (and by different
parties hereto and thereto in different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. This Agreement and the
other Loan Documents constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Section 5.01, 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 or any other Loan Document by telecopy or other electronic imaging means
shall be effective as delivery of a manually executed counterpart of this Agreement or such other
Loan Document.



11.11 Survival of Representations and Warranties.




     All representations and warranties made hereunder and in any other Loan Document or other
document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive
the execution and delivery hereof and thereof. Such representations and warranties have been or
will be relied upon by the Administrative Agent and each Lender, regardless of any investigation
made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of
any Credit Extension, and shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain
outstanding.



11.12 Severability.




     If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid
or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor



83









 







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.



11.13 Replacement of Lenders.




     If (i) any Lender requests compensation under Section 3.04 or delivers a notice
described in Section 3.02, (ii) the Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant to Section
3.01, (iii) a Lender (a “Non-Consenting Lender”) does not consent to a proposed change,
waiver, discharge or termination with respect to any Loan Document that has been approved by the
Required Lenders as provided in Section 11.01 but requires unanimous consent of all Lenders
or all Lenders directly affected thereby (as applicable) or (iv) any Lender is a Defaulting Lender,
then the Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in, and consents required by, Section
11.06), all of its interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment), provided that:




     (a) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 11.06(b);




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




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




     (d) such assignment does not conflict with applicable Laws; and




     (e) in the case of any such assignment resulting from a Non-Consenting Lender’s failure
to consent to a proposed change, waiver, discharge or termination with respect to any Loan
Document, the applicable replacement bank, financial institution or Fund consents to the
proposed change, waiver, discharge or termination;


Any Lender being replaced pursuant to this Section 11.13 shall, upon the Borrower’s request, (i)
execute and deliver an Assignment and Assumption with respect to such Lender’s Commitment and
outstanding Loans and participations in L/C Obligations and (ii) hereby covenants to deliver any
Notes evidencing such Loans to the Borrower or the Administrative Agent; provided that the
failure by such Lender being replaced to execute and deliver an Assignment and Assumption or to
deliver any Notes shall not impair the validity of the removal of such Lender and the mandatory
assignment of such Lender’s Commitments and outstanding Loans and participations in L/C Obligations
pursuant to this Section 11.13 shall nevertheless be effective without the execution by
such Lender of an Assignment and Assumption.




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



11.14 Governing Law; Jurisdiction; Etc.




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



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



     (c) WAIVER OF VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN 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 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



11.15 Waiver of Right to Trial by Jury.




     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



85









 







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.



11.16 No Advisory or Fiduciary Responsibility.




     In connection with all aspects of each transaction contemplated hereby (including in
connection with any amendment, waiver or other modification hereof or of any other Loan Document),
each of the Loan Parties acknowledges and agrees, and acknowledges its Affiliates’ understanding,
that: (i) (A) the arranging and other services regarding this Agreement provided by the
Administrative Agent, each Lender and the Arranger are arm’s-length commercial transactions between
the Loan Parties and their respective Affiliates, on the one hand, and the Administrative Agent,
each Lender and the Arranger, on the other hand, (B) each of the Loan Parties has consulted its own
legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C)
each of the Loan Parties is capable of evaluating, and understands and accepts, the terms, risks
and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A)
the Administrative Agent, each Lender and the Arranger each is and has been acting solely as a
principal and, except as expressly agreed in writing by the relevant parties, has not been, is not,
and will not be acting as an advisor, agent or fiduciary for the Loan Parties or any of their
respective Affiliates, or any other Person and (B) neither the Administrative Agent, nor any
Lender, nor the Arranger has any obligation to the Loan Parties or any of their respective
Affiliates with respect to the transactions contemplated hereby except those obligations expressly
set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, each Lender
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 Loan Parties and their respective Affiliates,
and neither the Administrative Agent, nor any Lender, nor the Arranger has any obligation to
disclose any of such interests to the Loan Parties and their respective Affiliates. To the fullest
extent permitted by Law, each of the Loan Parties hereby waives and releases any claims that it may
have against the Administrative Agent, each Lender and the Arranger with respect to any breach or
alleged breach of advisory, agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby (or the exercise of rights or remedies with respect thereto).



11.17 Electronic Execution of Assignments and Certain Other Documents.




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



11.18 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 Borrower that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies the
Borrower, which information includes



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



[SIGNATURE PAGES FOLLOW]





87











 





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



	 	 	 	 	 
	BORROWER:	ARTIO GLOBAL HOLDINGS LLC,

a Delaware limited liability company

 	 
	 	By:  	/s/ Anthony Williams
 	 
	 	Name: 	Anthony Williams
	 	Title: 	Authorized Signatory
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Glen Wisher
 	 
	 	Name: 	Glen Wisher 	 
	 	Title: 	Authorized Signatory 	 
	 



	 	 	 	 	 
	GUARANTORS:	ARTIO GLOBAL MANAGEMENT LLC,

a Delaware limited liability company

 	 
	 	By:  	/s/ Anthony Williams
 	 
	 	Name: 	Anthony Williams 
	 	Title: 	Authorized Signatory 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Glen Wisher
 	 
	 	Name: 	Glen Wisher 	 
	 	Title: 	Authorized Signatory 	 
	 



	 	 	 	 	 
	 	ARTIO CAPITAL MANAGEMENT LLC,

a Delaware limited liability company

 	 
	 	By:  	/s/ Anthony Williams
 	 
	 	Name: 	Anthony Williams 	 
	 	Title: 	Authorized Signatory 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Glen Wisher
 	 
	 	Name: 	Glen Wisher 	 
	 	Title: 	Authorized Signatory 	 
	 




 









 








	 	 	 	 	 
	ADMINISTRATIVE

AGENT:	BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	/s/ William A. Cessna
 	 
	 	Name: 	William A. Cessna 	 
	 	Title: 	Vice President 	 
	 




 









 





	 	 	 	 	 
	LENDERS:	BANK OF AMERICA, N.A.,

as a Lender and L/C Issuer

 	 
	 	By:  	/s/ Hichem Kerma
 	 
	 	Name: 	Hichem Kerma 	 
	 	Title: 	Vice President 	 
	 



	 	 	 	 	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH,

as a Lender

 	 
	 	By:  	/s/ John McGill
 	 
	 	Name: 	John McGill 	 
	 	Title: 	Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Michael Campites
 	 
	 	Name: 	Michael Campites 	 
	 	Title: 	Vice President 	 
	 



	 	 	 	 	 
	 	GOLDMAN SACHS BANK USA,

as a Lender

 	 
	 	By:  	/s/ Thomas Halverson
 	 
	 	Name: 	Thomas Halverson 	 
	 	Title: 	Authorized Signatory 	 
	 



	 	 	 	 	 
	 	UBS LOAN FINANCE LLC,

as a Lender

 	 
	 	By:  	/s/ Mary E. Evans
 	 
	 	Name: 	Mary E. Evans 	 
	 	Title: 	Associate Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Irja R. Otsa
 	 
	 	Name: 	Irja R. Otsa 	 
	 	Title: 	Associate Director 	 





	 	 	 	 	 



	 	 	 	 	 
	 	THE NORTHERN TRUST COMPANY,

as a Lender

 	 
	 	By:  	/s/ Peter J. Hallan
 	 
	 	Name: 	Peter J. Hallan 	 
	 	Title: 	Vice President