exv10w1




Exhibit 10.1

 

 

Published CUSIP Numbers: 34346FAA6

34346FAB4

34346FAC2

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

Dated as of June 10, 2009

among

FLOW INTERNATIONAL CORPORATION,

as the Borrower,

BANK OF AMERICA, N.A.,

as Agent, Swing Line Lender

and

L/C Issuer,

U.S. BANK NATIONAL ASSOCIATION,

as Documentation Agent,

and

The Other Lenders Party Hereto

BANC OF AMERICA SECURITIES LLC,

as
Sole Lead Arranger and Sole Book Manager

 

 









 




TABLE OF CONTENTS



	 	 	 	 	 
	SECTION	 	PAGE	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	 
	 	 	 	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	20	 
	1.03 Accounting Terms
	 	 	21	 
	1.04 Rounding
	 	 	21	 
	1.05 Times of Day
	 	 	21	 
	1.06 Letter of Credit Amounts
	 	 	22	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	22	 
	 
	 	 	 	 
	2.01 Revolving Loans
	 	 	22	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	22	 
	2.03 Letters of Credit
	 	 	23	 
	2.04 Swing Line Loans
	 	 	32	 
	2.05 Prepayments
	 	 	34	 
	2.06 Termination or Reduction of Commitments
	 	 	35	 
	2.07 Repayment of Loans
	 	 	36	 
	2.08 Interest
	 	 	36	 
	2.09 Fees
	 	 	36	 
	2.10 Computation of Interest and Fees; Retroactive Adjustments of
Applicable Rate
	 	 	37	 
	2.11 Evidence of Debt 
	 	 	38	 
	2.12 Payments Generally; Agent’s Clawback
	 	 	38	 
	2.13 Sharing of Payments by Lenders
	 	 	40	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	41	 
	 
	 	 	 	 
	3.01 Taxes
	 	 	41	 
	3.02 Illegality
	 	 	43	 
	3.03 Inability to Determine Rates
	 	 	44	 
	3.04 Increased Costs
	 	 	44	 
	3.05 Compensation for Losses
	 	 	45	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	46	 
	3.07 Survival
	 	 	46	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	46	 
	 
	 	 	 	 
	4.01 Conditions of Initial Credit Extension
	 	 	46	 
	4.02 Conditions to all Credit Extensions
	 	 	48	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	49	 
	 
	 	 	 	 
	5.01 Existence, Qualification and Power 
	 	 	49	 
	5.02 Authorization; No Contravention
	 	 	49	 
	5.03 Governmental Authorization; Other Consents
	 	 	49	 
	5.04 Binding Effect
	 	 	49	 




i







 






	 	 	 	 	 
	SECTION	 	PAGE	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	50	 
	5.06 Litigation
	 	 	50	 
	5.07 No Default
	 	 	50	 
	5.08 Ownership of Property; Liens
	 	 	51	 
	5.09 Environmental Compliance
	 	 	51	 
	5.10 Insurance
	 	 	51	 
	5.11 Taxes
	 	 	51	 
	5.12 ERISA Compliance
	 	 	51	 
	5.13 Subsidiaries; Equity Interests
	 	 	52	 
	5.14 Margin Regulations; Investment Company Act.
	 	 	52	 
	5.15 Disclosure
	 	 	52	 
	5.16 Compliance with Laws
	 	 	53	 
	5.17 Taxpayer Identification Number
	 	 	53	 
	5.18 Intellectual Property; Licenses, Etc.
	 	 	53	 
	5.19 Rights in Collateral; Priority of Liens
	 	 	53	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	53	 
	 
	 	 	 	 
	6.01 Financial Statements
	 	 	53	 
	6.02 Certificates; Other Information
	 	 	54	 
	6.03 Notices
	 	 	56	 
	6.04 Payment of Obligations
	 	 	56	 
	6.05 Preservation of Existence, Etc.
	 	 	57	 
	6.06 Maintenance of Properties
	 	 	57	 
	6.07 Maintenance of Insurance
	 	 	57	 
	6.08 Compliance with Laws 
	 	 	57	 
	6.09 Books and Records
	 	 	57	 
	6.10 Inspection Rights
	 	 	57	 
	6.11 Use of Proceeds
	 	 	58	 
	6.12 Additional Guarantors 
	 	 	58	 
	6.13 Collateral Records
	 	 	58	 
	6.14 Security Interests
	 	 	58	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	59	 
	 
	 	 	 	 
	7.01 Liens
	 	 	59	 
	7.02 Investments
	 	 	60	 
	7.03 Indebtedness
	 	 	60	 
	7.04 Fundamental Changes
	 	 	61	 
	7.05 Dispositions
	 	 	61	 
	7.06 Restricted Payments
	 	 	62	 
	7.07 Change in Nature of Business
	 	 	62	 
	7.08 Transactions With Affiliates
	 	 	62	 
	7.09 Burdensome Agreements
	 	 	62	 
	7.10 Use of Proceeds
	 	 	63	 
	7.11 Financial Covenants
	 	 	63	 






ii









 





	 	 	 	 	 
	SECTION	 	PAGE	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	63	 
	 
	 	 	 	 
	8.01 Events of Default
	 	 	63	 
	8.02 Remedies Upon Event of Default
	 	 	65	 
	8.03 Application of Funds
	 	 	65	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	66	 
	 
	 	 	 	 
	9.01 Appointment and Authorization of Administrative Agent
	 	 	66	 
	9.02 Rights as a Lender
	 	 	67	 
	9.03 Exculpatory Provisions
	 	 	67	 
	9.04 Reliance by Administrative Agent
	 	 	68	 
	9.05 Delegation of Duties
	 	 	68	 
	9.06 Resignation of Agent
	 	 	68	 
	9.07 Non-Reliance on Agent and Other Lenders
	 	 	69	 
	9.08 No Other Duties, Etc.
	 	 	69	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	69	 
	9.10 Collateral and Guaranty Matters
	 	 	70	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	71	 
	 
	 	 	 	 
	10.01 Amendments, Etc.
	 	 	71	 
	10.02 Notices; Effectiveness; Electronic Communication
	 	 	72	 
	10.03 No Waiver; Cumulative Remedies
	 	 	74	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	74	 
	10.05 Payments Set Aside
	 	 	76	 
	10.06 Successors and Assigns
	 	 	76	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	80	 
	10.08 Right of Setoff
	 	 	81	 
	10.09 Interest Rate Limitation
	 	 	81	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	81	 
	10.11 Survival of Representations and Warranties
	 	 	82	 
	10.12 Severability
	 	 	82	 
	10.13 Replacement of Lenders
	 	 	82	 
	10.14 Governing Law; Jurisdiction; Etc.
	 	 	83	 
	10.15 Waiver of Jury Trial
	 	 	84	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	84	 
	10.17 Electronic Execution of Assignments and Certain
Other Documents
	 	 	85	 
	10.18 USA PATRIOT Act Notice
	 	 	85	 
	10.19 Time of the Essence
	 	 	85	 
	10.20 Amendment and Restatement
	 	 	85	 
	10.21 Oral Agreements Not Enforceable
	 	 	85	 





	 
	SCHEDULES

	 

	1.01 Special Adjustments to Consolidated Adjusted EBITDA

	2.01 Commitments and Applicable Percentages

	2.03(a) Existing Letters of Credit





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	5.06
	Litigation
	5.13
	Subsidiaries and Other Equity Investments
	7.01
	Existing Liens
	7.03(b)
	Existing Indebtedness
	7.03(f)
	OMAX Subordinated Debt
	7.11
	Financial Covenants
	10.02
	Agent’s Office, Certain Addresses for Notices
	 
	
	EXHIBITS

	 

	Form of

	A
	Revolving Loan Notice
	B
	Swing Line Loan Notice
	C
	Note
	D
	Compliance Certificate
	E
	Guaranty Agreement
	F-1
	Borrower Pledge Agreement
	F-2
	Guarantor Pledge Agreement
	G-1
	Borrower Security Agreement
	G-2
	Guarantor Security Agreement
	H-1
	Assignment and Assumption
	H-2
	Administrative Questionnaire
	I
	Subordination Agreement




iv







 






SECOND AMENDED AND RESTATED CREDIT AGREEMENT




     This SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) is entered into
as of June 10, 2009, among FLOW INTERNATIONAL CORPORATION, a Washington corporation (the
“Borrower”), each lender from time to time party hereto (collectively, the
“Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer.



Recitals




     WHEREAS, the Borrower, each lender from time to time party thereto and Bank of America, N.A.,
as administrative agent for such lenders, swing line lender and L/C issuer, were parties to that
certain Amended and Restated Credit Agreement dated as of June 9, 2008 (as amended prior to the
date hereof, the “Existing Credit Agreement”).



     WHEREAS, the Borrower has requested that the Lenders enter into this Agreement to amend and
restate the Existing Credit Agreement and continue to provide a revolving credit facility to the
Borrower and to re-finance amounts owing under the Existing Credit Agreement, and the Lenders are
willing to do so on the terms and conditions set forth herein.



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



ARTICLE I.

 DEFINITIONS AND ACCOUNTING TERMS




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



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



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



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



     “Aggregate Commitments” means the Commitments of all Lenders.



     “Agreement” means this Second Amended and Restated Credit Agreement.



     “Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such



1









 




Lender’s Commitment at such time. If the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02 or if the Aggregate Commitments have expired, then the Applicable Percentage
of each Lender shall be determined based on the Applicable Percentage of such Lender most recently
in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each
Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment
and Assumption pursuant to which such Lender becomes a party hereto, as applicable.




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



	 	 	 	 	 	 	 	 	 	 	 
	 	 	Consolidated	 	 	 	 	 	 	 	 
	Pricing	 	Leverage	 	Commitment	 	Eurodollar	 	Base Rate	 	Letters of
	Level	 	Ratio	 	Fee	 	Rate +	 	+	 	Credit
	1
	 	3 3.00
	 	.75%
	 	4.00%
	 	3.00%
	 	4.00%
	2
	 	3 2.50 but <
3.00
	 	.625%
	 	3.75%
	 	2.75%
	 	3.75%
	3
	 	3 1.75 but <
2.50
	 	.50%
	 	3.50%
	 	2.50%
	 	3.50%
	4
	 	3 1.00 but <
1.75
	 	.375%
	 	3.25%
	 	2.25%
	 	3.25%
	5
	 	< 1.00
	 	.25%
	 	3.00%
	 	2.00%
	 	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 required to be delivered pursuant to Section 6.02(a); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with such
Section, then, at the request of Required Lenders, Pricing Level 1 shall apply as of the first
Business Day of the month following the date such Compliance Certificate was required to have been
delivered and shall remain in effect until the date on which such Compliance Certificate is
delivered. The Applicable Rate in effect as of the Closing Date shall be determined based on the
Consolidated Leverage Ratio in the certificate required under Section 4.01(a)(vii) as a
condition precedent to the initial Credit Extension. Such Applicable Rate shall remain in effect
until the first Business Day immediately following the delivery of the first Compliance Certificate
required under Section 6.02(a). Thereafter, the Applicable Rate shall be increased or
decreased as set forth above based on the successive Compliance Certificates or, as applicable, the
Compliance Certificate due dates.



     Notwithstanding anything to the contrary contained in this definition, the determination of
the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).



2









 





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



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



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



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



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



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended April 30, 2008, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Borrower and its Subsidiaries, including the notes thereto.



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



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



     “Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of
(a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day
as publicly announced from time to time by Bank of America as its “prime rate” and (c) the sum of
1.00% plus the one-month Eurodollar Rate as of 11:00 a.m. London time on such day. The
“prime rate” is a rate set by Bank of America based upon various factors including Bank of
America’s costs and desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.



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



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



3









 





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



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



     “Borrower Pledge Agreement” means the Second Amended and Restated Pledge Agreement in
favor of Agent dated as of June 10, 2009 made by the Borrower in substantially the form of Exhibit F-1.



     “Borrower Security Agreement” means the Second Amended and Restated Security
Agreement in favor of Agent dated as of June 10, 2009 made by the Borrower in substantially the
form of Exhibit G-1.



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



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



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



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



     “Change of Control” means,




(a) with respect to Borrower, an event or series of events by which:




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




     (ii) during any period of 12 consecutive months, a majority of the members of
the board of directors or other equivalent governing body of



4









 







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




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




     (b) with respect to each Guarantor, an event or series of events by which Borrower
ceases to directly or indirectly own and control all of the Equity Interests of such
Guarantor.



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



     “Code” means the Internal Revenue Code of 1986.



     “Collateral” shall mean any and all assets and rights and interests in or to property
of Borrower and each of the other Loan Parties, whether real or personal, tangible or intangible,
in which a Lien is granted or purported to be granted pursuant to the Collateral Documents.



     “Collateral Documents” means, collectively, the Borrower Security Agreement, the
Guarantor Security Agreement, the Borrower Pledge Agreement, the Guarantor Pledge Agreement and
all agreements, instruments and documents now or hereafter executed and delivered in connection
with this Agreement, including without limitation the Indiana Mortgage, pursuant to which Liens
are granted or purported to be granted to Agent in Collateral securing all or part of the
Obligations each in form and substance satisfactory to Agent.




5











 





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



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



     “Consolidated Adjusted 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 the following to the extent deducted in calculating such Consolidated Net Income: (i)
Consolidated Interest Charges for such period, (ii) the provision for Federal, state, local and
foreign income taxes payable by the Borrower and its Subsidiaries for such period, (iii)
depreciation and amortization expense of the Borrower and its Subsidiaries, (iv) other non-cash
expenses of the Borrower and its Subsidiaries reducing such Consolidated Net Income which do not
represent a cash item in such period or any future period, and (v) in the case of any calculation
of “Consolidated Adjusted EBITDA” made as of any Flow Adjustment Calculation Date, the Flow
Adjustment Amount corresponding to such date.



     “Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination,
the ratio of (a) the sum of Consolidated Adjusted EBITDA minus the sum of cash payments for taxes
to (b) the sum of Consolidated Interest Charges (except payment-in-kind interest pursuant to OMAX
Subordinated Debt and financing costs deferred prior to the Closing Date) and the current portion
of long term debt (other than long term debt under this Agreement, under the credit facility for
working capital purposes between Flow Asia Corporation and First Commerce Bank and under the
credit facility for working capital purposes between Flow Asia Corporation and Mega International
Commercial Bank).



     “Consolidated Funded Indebtedness” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under
letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments, (d) all obligations in respect of the deferred purchase
price of property or services (other than trade accounts payable in the ordinary course of
business), (e) Attributable Indebtedness in respect of capital leases and Synthetic Lease
Obligations, (f) without duplication, all Guarantees with respect to outstanding Indebtedness of
the types specified in clauses (a) through (e) above of Persons other than the Borrower or any
Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a) through (f) above of
any partnership or joint venture (other than a joint venture that is itself a corporation or
limited liability company) in which the Borrower or a Subsidiary is a general partner or joint
venturer, unless such Indebtedness is expressly made non-recourse to the Borrower or such
Subsidiary.



6









 





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



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



     “Consolidated Senior Leverage Ratio” means, as of any date of determination, the
ratio of (a) an amount equal to the Consolidated Funded Indebtedness as of such date less the
amount of the OMAX Subordinated Debt as of such date to (b) an amount equal to Consolidated
Adjusted EBITDA for the period of the four fiscal quarters most recently ended.



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



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



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



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



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



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



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



7









 





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



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



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



     “Domestic Material Subsidiary” means any Domestic Subsidiary that is not an
Immaterial Subsidiary.



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



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



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



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



     “Equity Interests” means, with respect to any Person, all of the shares of capital stock of
(or other ownership or profit interests in) such Person, all of the warrants, options or other
rights for the purchase or acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such
Person or warrants, rights or options for the purchase or acquisition from such Person of such
shares (or such other interests), and all of the other ownership or profit interests in such
Person (including partnership, member




8









 







or trust interests therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are outstanding on any date of determination.




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



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



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by
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 Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent
to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer
Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer
Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon Borrower or any ERISA Affiliate.



     “Eurodollar Base Rate” has the meaning specified in the definition of Eurodollar
Rate.



     “Eurodollar Rate” means for any Interest Period with respect to a Eurodollar Rate Loan, a
rate per annum determined by the Agent pursuant to the following formula:



	 	 	 	 	 
	Eurodollar Rate = 
	 	Eurodollar Base Rate

 

1.00 – Eurodollar Reserve Percentage
	 	  






     Where,




     “Eurodollar Base Rate” means, for such Interest Period, the rate per annum
equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters
(or other commercially available source providing quotations of BBA LIBOR as designated by
the Agent from time to time) at approximately 2:00 p.m., London time, two Business Days
prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest Period. If such
rate is not available at such time for any reason, then the “Eurodollar Base Rate” for such
Interest Period shall be the rate per annum determined by the Agent to be the rate at which
deposits in Dollars for delivery on the first day of such Interest Period in same day funds
in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by
Bank of America and with a term equivalent to such Interest Period would be offered by Bank
of America’s London Branch to major banks in the London interbank eurodollar market at
their request at approximately 2:00 p.m. (London time) two Business Days prior to the
commencement of such Interest Period.



9









 






     “Eurodollar Reserve Percentage” means, for any day during any Interest Period,
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 eurodollar
funding (currently referred to as “eurodollar liabilities”). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the effective date
of any change in the Eurodollar Reserve Percentage.



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



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



     “Excluded Taxes” means, with respect to Agent, any Lender, the L/C Issuer or any other
recipient of any payment to be made by or on account of any obligation of the Borrower hereunder,
(a) taxes imposed on or measured by its overall net income (however denominated), and franchise
taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the Laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable Lending Office is
located, (b) any branch profits taxes imposed by the United States or any similar tax imposed by
any other jurisdiction in which the Borrower is located, and (c) any backup withholding tax that
is required by the Code to be withheld from amounts payable to a Lender that has failed to comply
with clause (A) of Section 3.01(e)(ii).



     “Existing Credit Agreement” has the meaning specified in the Recitals.



     “Existing Letters of Credit” means the letters of credit issued by Bank of America
under the Existing Credit Agreement, as specifically described in Schedule 2.03(a)
attached hereto.



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



     “Fee Letter” means the letter agreement, dated June 10, 2009, among the Borrower, Agent and
the Arranger.



     “Flow Adjustment Amount” has the meaning specified in Schedule 1.01.



     “Flow Adjustment Calculation Date” has the meaning specified in Schedule
1.01.



10









 





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



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



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



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



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



     “Guarantor Pledge Agreement” means the Pledge Agreement in favor of Agent to be made
by the Guarantors in substantially the form of Exhibit F-2, and to be entered into by
additional Domestic Material Subsidiaries from time to time thereafter in accordance with this
Agreement.



11









 





     “Guarantor Security Agreement” means the Security Agreement in favor of Agent to be
made by the Guarantors in substantially the form of Exhibit G-2, and to be entered into by
additional Domestic Material Subsidiaries from time to time thereafter in accordance with this
Agreement.



     “Guarantors” means each Domestic Material Subsidiary from time to time a party to the
Guaranty.



     “Guaranty” means the Guaranty Agreement in favor of Lenders, L/C Issuer and Agent to be made
by Guarantors in substantially the form of Exhibit E, and to be entered into by additional
Domestic Material Subsidiaries from time to time thereafter in accordance with this Agreement.



     “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.



     “Immaterial Subsidiary” means a Subsidiary that has assets or operations that are not
material to the assets or operations of the Borrower, taken as a whole, except that a Subsidiary
that had assets or operations that were not material to the assets or operations of the Borrower,
taken as a whole, as of the date of this Agreement but has assets or operations that are material
to the assets or operations of the Borrower, taken as a whole, at any time thereafter shall not be
deemed an Immaterial Subsidiary from and after the date it has assets or operations that are
material to the assets or operations of the Borrower, taken as a whole.



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




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




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




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




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




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



12









 






     (f) capital leases and Synthetic Lease Obligations;




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




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


For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under
any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such
date. The amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed
to be the amount of Attributable Indebtedness in respect thereof as of such date.




     “Indemnified Taxes” means Taxes other than Excluded Taxes.



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



     “Indiana Mortgage” means that certain Second Amended and Restated Mortgage, Security
Agreement, Assignment of Leases and Rents and Fixture Filing made by Borrower in favor of Agent
dated of even date herewith securing certain real property of Borrower located in Clark County,
Indiana.



     “Information” has the meaning specified in Section 10.07.



     “Intangible Assets” means assets that are considered to be intangible assets under
GAAP, including customer lists, goodwill, computer software, copyrights, trade names, trademarks,
patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and
capitalized research and development costs.



     “Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date; provided, however,
that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates
that fall every three months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business
Day of each January, April, July and October 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
Revolving Loan Notice; provided that:




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



13









 




     (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.


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


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


     “IRS” means the United States Internal Revenue Service.


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


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


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


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


     “L/C 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.


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


14







 




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


     “L/C Expiration Date” means the day that is thirty days prior to the Maturity Date
then in effect (or, if such day is not a Business Day, the next preceding Business Day).


     “L/C Fee” has the meaning specified in Section 2.03(i).


     “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.


     “L/C Sublimit” means an amount equal to $20,000,000. The L/C Sublimit is part of, and not in
addition to, the Aggregate Commitments.


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


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


     “Letter of Credit” means any standby letter of credit issued hereunder and shall include the
Existing Letters of Credit.


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


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


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


     “Loan Parties” means, collectively, Borrower and each Person (other than Agent, the L/C
Issuer, any Swing Line Lender or any Lender) executing a Loan Document including, without
limitation, each Guarantor and each Person executing a Collateral Document.


15







 




     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual or contingent),
condition (financial or otherwise) or prospects of the Borrower or the Borrower and its
Subsidiaries taken as a whole; (b) an impairment of the ability of any Loan Party to perform its
obligations under any Loan Document to which it is a party if such impairment materially affects
the ability of the Loan Parties, taken as a whole, fully and timely to perform their obligations
under the Loan Documents; 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.


     “Maturity Date” means June 10, 2011; provided, however, that if such date is not a
Business Day, the Maturity Date shall be the next preceding Business Day.


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


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


     “Obligations” means (a) 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 (b) all debts,
liabilities, obligations, covenants and duties of the Borrower owing to any Lender or any
Affiliate of any Lender and arising under any Swap Contract permitted by Section 7.03(d),
whether absolute or contingent, due or to become due, now existing or hereafter arising, and,
in each case, 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.


     “OMAX” means OMAX Corporation, a Washington corporation.


     “OMAX Subordinated Debt” means Indebtedness of the Borrower pursuant to that certain
Unsecured Promissory Note in favor of OMAX dated August 16, 2009 in the principal amount of
$4,000,000 and that certain Unsecured Promissory Note in favor of OMAX dated August 16, 2009 in
the principal amount of $6,000,000, copies of which are attached hereto as Schedule
7.03(f).


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



16








 




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


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


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


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


     “PBGC” means the Pension Benefit Guaranty
Corporation.


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


     “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 Borrower or, with respect to any such plan that is subject to Section 412 of the
Code or Title IV of ERISA, any ERISA Affiliate.


     “Platform” has the meaning specified in Section 6.02.


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


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


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


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


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


17







 




Extension, an L/C Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.


     “Required Lenders” means, as of any date of determination, Lenders having more than
66 2/3% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02, Lenders holding in the aggregate more than 66 2/3% of the Total Outstandings
(with the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the Total Outstandings
held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.


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


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


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


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


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


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


     “Subordination Agreement” means a subordination agreement in favor of Administrative
Agent and the Lenders in substantially the form attached hereto as Exhibit I and otherwise
in form and substance satisfactory to Administrative Agent.


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


18







 







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




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



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



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



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



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



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



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $5,000,000 and (b)
the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or




19









 




possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).


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


     “Threshold Amount” means $1,000,000.


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


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


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


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


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


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


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


20







 




to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.


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


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


     1.03 Accounting Terms.


     (a) Generally. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including financial ratios and
other
financial calculations) required to be submitted pursuant to this Agreement shall be prepared
in
conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied
in a
manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.


     (b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan Document, and either
Borrower or the Required Lenders shall so request, Agent, Lenders and 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) Borrower shall provide to Agent and Lenders financial
statements and other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or requirement
made
before and after giving effect to such change in GAAP.


     (c) Consolidation of Variable Interest Entities. All references herein to consolidated
financial statements of Borrower and its Subsidiaries or to the determination of any amount
for
Borrower and its Subsidiaries on a consolidated basis or any similar reference shall, in each
case,
be deemed to include each variable interest entity that Borrower is required to consolidate
pursuant to FASB Interpretation No. 46 — Consolidation of Variable Interest Entities: an
interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a
Subsidiary
as defined herein.


     1.04 Rounding. Any financial ratios required to be maintained by 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).


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



21










 





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



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




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



     2.02 Borrowings, Conversions and Continuations of Loans.



     (a) Each Revolving Borrowing, each conversion of Revolving Loans from one Type to the other,
and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice
to Agent, which may be given by telephone. Each such notice must be received by Agent not later
than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion
to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base
Rate Revolving Loans, and (ii) on the requested date of any Borrowing of Base Rate Revolving Loans.
Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to Agent of a written Revolving Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation
of Eurodollar Rate Loans shall be in a principal amount of $1,500,000 or a whole multiple of
$500,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c),
each Borrowing of or conversion to Base Rate Revolving Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each Revolving Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a Revolving Borrowing,
a conversion of Revolving Loans from one Type to the other, or a continuation of Eurodollar Rate
Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the principal amount of Revolving Loans to be borrowed,
converted or continued, (iv) the Type of Revolving Loans to be borrowed or to which existing 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 Revolving Loan in a Revolving Loan Notice or if
the Borrower fails to give a




22









 







timely notice requesting a conversion or continuation, then the applicable Revolving Loans shall be
made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall
be effective as of the last day of the Interest Period then in effect with respect to the
applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or
continuation of Eurodollar Rate Loans in any such Revolving Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest Period of one month.




     (b) Following receipt of a Revolving Loan Notice, Agent shall promptly notify each Lender of
the amount of its Applicable Percentage of the applicable Revolving Loans, and if no timely notice
of a conversion or continuation is provided by Borrower, Agent shall notify each Lender of the
details of any automatic conversion to Base Rate Loans described in the preceding subsection. In
the case of a Revolving Borrowing, each Lender shall make the amount of its Revolving Loan
available to Agent in immediately available funds at Agent’s Office not later than 1:00 p.m. on
the Business Day specified in the applicable Revolving Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial
Credit Extension, Section 4.01), Agent shall make all funds so received available to
Borrower in like funds as received by Agent either by (i) crediting the account of 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) Agent by
Borrower; provided, however, that if, on the date the Revolving Loan Notice with
respect to such Revolving Borrowing is given by Borrower, there are L/C Borrowings outstanding,
then the proceeds of such Borrowing first, shall be applied, to the payment in full of any such
L/C Borrowings, and second, shall be made available to Borrower as provided above.



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



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



     (e) After giving effect to all Revolving Borrowings, all conversions of Revolving Loans from
one Type to the other, and all continuations of Revolving Loans as the same Type, there shall not
be more than six (6) Interest Periods in effect with respect to Revolving Loans.



     2.03 Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees,
in reliance upon the agreements of the other 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 L/C Expiration Date, to issue Letters of Credit for the account of Borrower or
its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in




23









 









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




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




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




     (B) the expiry date of such requested Letter of Credit would occur more than one year
after the L/C Expiration Date, unless all the Lenders have approved such expiry date.




     (iii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:




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




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



24









 






     (C) except as otherwise agreed by Agent and the L/C Issuer, such Letter of
Credit is in an initial stated amount less than $25,000;




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




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




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




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




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



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




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of Borrower delivered to the L/C Issuer (with a copy to Agent) in the form of an
L/C Application, appropriately completed and signed by a Responsible Officer of Borrower.
Such L/C Application must be received by the L/C Issuer and Agent not later than 2:00 p.m.
at least two Business Days (or such later date and time as 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 L/C Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date
thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the
purpose and nature of the requested Letter of Credit; and (H) such other matters as the L/C
Issuer may require. In the case of a request for an amendment of any outstanding Letter of
Credit, such L/C Application shall specify in form and detail



25









 







satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of
amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and
(D) such other matters as the L/C Issuer may require. Additionally, Borrower shall furnish to the
L/C Issuer and 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 Agent may
require.




     (ii) Promptly after receipt of any L/C Application at the address set forth in Section
10.02 for receiving L/C Applications and related correspondence, the L/C Issuer will confirm
with Agent (by telephone or in writing) that Agent has received a copy of such L/C Application from
Borrower and, if not, the L/C Issuer will provide Agent with a copy thereof. Unless the L/C Issuer
has received written notice from any Lender, Agent or any Loan Party, at least one Business Day
prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one
or more applicable conditions contained in Article IV shall not then be satisfied, then,
subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a
Letter of Credit for the account of Borrower (or the applicable Subsidiary) or enter into the
applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual
and customary business practices. Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the
L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such
Lender’s Applicable Percentage times the amount of such Letter of Credit.




     (iii) If Borrower so requests in any applicable L/C 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, Borrower shall
not be required to make a specific request to the L/C Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized
(but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time
to an expiry date not later than one year after the L/C 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 Agent that the Required Lenders have
elected not to permit such extension or (2) from Agent, any Lender or Borrower that one or more of
the applicable conditions specified in Section 4.02 is not then satisfied, and in each
such case directing the L/C Issuer not to permit such extension.



26









 






     (iv) If the Borrower so requests in any applicable L/C Application, the L/C Issuer may, in
its sole and absolute discretion, agree to issue a Letter of Credit that permits the automatic
reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each,
an “Auto-Reinstatement Letter of Credit”). Unless otherwise directed by the L/C Issuer,
the Borrower shall not be required to make a specific request to the L/C Issuer to permit such
reinstatement. Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in
the following sentence, the Lenders shall be deemed to have authorized (but may not require) the
L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the
provisions of such Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement
Letter of Credit permits the L/C Issuer to decline to reinstate all or any portion of the stated
amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a
specified number of days after such drawing (the “Non-Reinstatement Deadline”), the L/C
Issuer shall not permit such reinstatement if it has received a notice (which may be by telephone
or in writing) on or before the day that is seven Business Days before the Non-Reinstatement
Deadline (A) from Agent that the Required Lenders have elected not to permit such reinstatement or
(B) from Agent, any Lender or the Borrower that one or more of the applicable conditions specified
in Section 4.02 is not then satisfied (treating such reinstatement as an L/C Credit
Extension for purposes of this clause) and, in each case, directing the L/C Issuer not to permit
such reinstatement.




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



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under
such Letter of Credit, the L/C Issuer shall notify Borrower and Agent thereof. Not later than 2:00
p.m. on the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an
“Honor Date”), Borrower shall reimburse the L/C Issuer through Agent in an amount equal to
the amount of such drawing. If Borrower fails to so reimburse the L/C Issuer by such time, Agent
shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the
“Unreimbursed Amount”), and the amount of such Lender’s Applicable Percentage thereof. In
such event, Borrower shall be deemed to have requested a Revolving Borrowing of Base Rate Loans to
be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the
minimum and multiples specified in Section 2.02 for the principal amount of Base Rate
Loans, but subject to the amount of the unutilized portion of the Aggregate Commitments and the
conditions set forth in Section 4.02 (other than the delivery of a Revolving Loan Notice).
Any notice given by the L/C Issuer or 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.



27









 






     (ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds
available to Agent for the account of the L/C Issuer at 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 Agent, whereupon, subject to the provisions of Section
2.03(c)(iii), each Lender that so makes funds available shall be deemed to have made a Base
Rate Revolving Loan to Borrower in such amount. Agent shall remit the funds so received to the L/C
Issuer.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving
Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be
satisfied or for any other reason, Borrower shall be deemed to have incurred from the L/C Issuer
an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C
Borrowing shall be due and payable on demand (together with interest) and shall bear interest at
the Default Rate. In such event, each Lender’s payment to Agent for the account of the L/C Issuer
pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in
such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.




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




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




     (vi) If any Lender fails to make available to Agent for the account of the L/C Issuer any
amount required to be paid by such Lender pursuant to the foregoing provisions of this Section
2.03(c) by the time specified in Section 2.03(c)(ii), the L/C Issuer shall be entitled
to recover from such Lender (acting through Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal
Funds Rate and a rate determined by the L/C Issuer in accordance with banking industry rules on
interbank compensation, plus any administrative, processing or similar fees customarily
charged by the L/C Issuer in connection with the foregoing. If such Lender pays such amount (with
interest and fees



28









 







as aforesaid), the amount so paid shall constitute such Lender’s Revolving Loan included in
the relevant Revolving Borrowing or L/C Advance in respect of the relevant L/C Borrowing,
as the case may be. A certificate of the L/C Issuer submitted to any Lender (through Agent)
with respect to any amounts owing under this clause (vi) shall be conclusive absent
manifest error.



     (d) Repayment of Participations.




     (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if 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 Borrower or otherwise, including proceeds of Cash Collateral applied thereto
by Agent), Agent will distribute to such Lender its Applicable Percentage thereof in the
same funds as those received by Agent.




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



     (e) Obligations Absolute. The obligation of 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
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee
of such Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the L/C Issuer or any other Person, whether in connection with
this Agreement, the transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;




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




     (iv) any payment by the L/C Issuer under such Letter of Credit against presentation of
a draft or certificate that does not strictly comply with the terms of such



29









 







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, Borrower or any Subsidiary.


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 Borrower’s instructions or
other irregularity, Borrower will immediately notify the L/C Issuer. Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents
unless such notice is given as aforesaid.




     (f) Role of L/C Issuer. Each Lender and Borrower agree that, in paying any drawing
under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by the Letter of Credit)
or to ascertain or inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer, Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall
be liable to any Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of 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. 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 Borrower’s
pursuing such rights and remedies as it may have against the beneficiary or transferee at law or
under any other agreement. None of the L/C Issuer, 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, Borrower
may have a claim against the L/C Issuer, and the L/C Issuer may be liable to Borrower, to the
extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages
suffered by Borrower which Borrower proves were caused by the L/C Issuer’s willful misconduct or
gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the
foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or information to the contrary,
and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.



     (g) Cash Collateral. Upon the request of 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



30









 







Borrowing, or (ii) if, as of the L/C Expiration Date, any L/C Obligation for any reason remains
outstanding, Borrower shall, in each case, immediately Cash Collateralize the then Outstanding
Amount of all L/C Obligations. Sections 2.05 and 8.02(c) set forth certain
additional requirements to deliver Cash Collateral hereunder. For purposes of this Section
2.03, Section 2.05 and Section 8.02, “Cash Collateralize” means to
pledge and deposit with or deliver to Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in
form and substance satisfactory to Agent and the L/C Issuer (which documents are hereby consented
to by Lenders). Derivatives of such term have corresponding meanings. Borrower hereby grants to
Agent, for the benefit of the L/C Issuer and Lenders, a security interest in all such cash, deposit
accounts and all balances therein and all proceeds of the foregoing. Cash collateral shall be
maintained in blocked, non-interest bearing deposit accounts at Bank of America.



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



     (i) L/C Fees. Borrower shall pay to Agent for the account of each Lender in
accordance with its Applicable Percentage an L/C fee (the “L/C Fee”) 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. L/C
Fees shall be (i) due and payable on the first Business Day after the end of each January, April,
July and October, commencing with the first such date to occur after the issuance of such Letter
of Credit, on the L/C Expiration Date and thereafter on demand and (ii) computed on a quarterly
basis in arrears. If there is any change in the Applicable Rate during any quarter, the daily
amount available to be drawn under each Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such Applicable Rate was in
effect. Notwithstanding anything to the contrary contained herein, upon the request of the
Required Lenders, while any Event of Default exists, all L/C Fees shall accrue at the Default
Rate.



     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee equal to twelve
and one-half basis points (0.125%), computed on the daily amount available to be drawn under such
Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on
the tenth Business Day after the end of each January, April, July and October, 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
L/C 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, 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.



31









 





     (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, Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all
drawings under such Letter of Credit. Borrower hereby acknowledges that the issuance of Letters of
Credit for the account of Subsidiaries inures to the benefit of Borrower, and that Borrower’s
business derives substantial benefits from the businesses of such Subsidiaries.



     2.04 Swing Line Loans.



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



     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon Borrower’s
irrevocable notice to Swing Line Lender and the Agent, which may be given by telephone. Each such
notice must be received by Swing Line Lender and the Agent not later than 1:00 p.m. on the
requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a
minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Each
such telephonic notice must be confirmed promptly by delivery to Swing Line Lender and the Agent
of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer
of Borrower. Promptly after receipt by Swing Line Lender of any telephonic Swing Line Loan Notice,
Swing Line Lender will confirm with the Agent (by telephone or in writing) that the Agent has also
received such Swing Line Loan Notice and, if not, Swing Line Lender will notify the Agent (by
telephone or in writing) of the contents thereof. Unless Swing Line Lender has received notice (by
telephone or in writing) from the Agent (including at the request of any Lender) prior to 1:00
p.m. on the date of the proposed Swing Line Borrowing (A) directing Swing Line Lender not to make
such Swing Line Loan as a result of the limitations set forth in the first proviso to the first
sentence of Section 2.04(a), or (B) that one or more of the applicable conditions
specified in Article IV is not then satisfied, then, subject



32









 







to the terms and conditions hereof, Swing Line Lender will, not later than 3:00 p.m. on the
borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan
available to Borrower at its office by crediting the account of Borrower on the books of Swing Line
Lender in immediately available funds.



     (c) Refinancing of Swing Line Loans.




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




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




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



33









 







submitted to any Lender (through the Agent) with respect to any amounts owing under this
clause (iii) shall be conclusive absent manifest error.




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



     (d) Repayment of Participations.




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




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



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



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



     2.05 Prepayments.



     (a) The Borrower may, upon notice to the Agent, at any time or from time to time voluntarily
prepay Revolving Loans in whole or in part without premium or penalty; provided that (i)
such notice must be received by the Agent not later than 11:00 a.m. (A) three Business Days prior
to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate
Revolving Loans; (ii) any prepayment of Eurodollar Rate Loans shall be in a principal amount of
$1,500,000 or a whole multiple of $500,000 in excess thereof; and



34









 







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



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



     (c) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments
then in effect, 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 Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this
Section 2.05 unless after the prepayment in full of the Revolving Loans the Total
Outstandings exceed the Aggregate Commitments then in effect.



     2.06 Termination or Reduction of Commitments. Borrower may, upon notice to Agent, terminate the
Aggregate Commitments, or from time to time permanently reduce the Aggregate Commitments;
provided that (i) any such notice shall be received by the Agent not later than 11:00 a.m.
five Business Days prior to the date of termination or reduction, (ii) any such partial reduction
shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess
thereof, (iii) the Borrower shall not terminate or reduce the Aggregate Commitments if, after
giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would
exceed the Aggregate Commitments, and (iv) if, after giving effect to any reduction of the
Aggregate Commitments, the L/C Sublimit or the Swing Line Sublimit exceeds the amount of the
Aggregate Commitments, such Sublimit shall be automatically reduced by the amount of such excess.
The Agent will promptly notify the Lenders of any such notice of termination or reduction of the
Aggregate Commitments. Any reduction of the Aggregate Commitments shall be applied to the
Commitment of each Lender according to its Applicable Percentage. All fees accrued until the
effective date of any termination of the Aggregate Commitments shall be paid on the effective date
of such termination.



35









 





     2.07 Repayment of Loans.



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



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



     2.08 Interest.



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



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




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




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




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



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



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



     (a) Commitment Fee. Borrower shall pay to Agent for the account of each Lender in
accordance with its Applicable Percentage of the Aggregate Commitments, a commitment fee equal to
the Applicable Rate times the actual daily amount by which the Aggregate



36









 







Commitments exceed the sum of (i) the Outstanding Amount of Revolving Loans and (ii) the
Outstanding Amount of L/C Obligations. The commitment fee shall accrue at all times during the
Availability Period, including at any time during which one or more of the conditions in
Article IV is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each January, April, July and October, commencing with the first such date to occur
after the Closing Date, and on the last day of the Availability Period. The commitment fee shall be
calculated quarterly in arrears, and if there is any change in the Applicable Rate during any
quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately
for each period during such quarter that such Applicable Rate was in effect. For purposes of
computing the commitment fee, Swing Line Loans shall not be counted towards or considered usage of
the Aggregate Commitments.



     (b) Other Fees.



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



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



     2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.



     (a) All computations of interest for Base Rate Loans when the Base Rate is determined by Bank
of America’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall be made on the
basis of a 360-day year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on
each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid, provided that any Loan
that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear
interest for one day. Each determination by 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
Agent for the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on
demand by 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 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 Agent, any
Lender or the L/C Issuer, as the case may be, under Section 2.03(c)(iii),



37









 







2.03(i) or 2.08(b) or under Article VIII. The Borrower’s obligations under
this paragraph shall survive the termination of the Aggregate Commitments and the repayment of all
other Obligations hereunder.



     2.11 Evidence of Debt.



     (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by Agent in the ordinary course of business. The accounts or
records maintained by Agent and each Lender shall be conclusive absent manifest error of the
amount of the Credit Extensions made by Lenders to 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 Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any Lender and the
accounts and records of Agent in respect of such matters, the accounts and records of Agent shall
control in the absence of manifest error. Upon the request of any Lender made through Agent,
Borrower shall execute and deliver to such Lender (through Agent) a Note, with appropriate
insertions, payable to the order of such Lender, and in the face amount of such Lender’s
Commitment, which shall evidence such Lender’s Revolving Loans in addition to such accounts or
records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect thereto.



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



     2.12 Payments Generally; Agent’s Clawback.



     (a) (i) General. All payments to be made by Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by Borrower hereunder shall be made to Agent, for the account of the
respective Lenders to which such payment is owed, at the Agent’s Office in Dollars and in
immediately available funds not later than 2:00 p.m. on the date specified herein. 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 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 Borrower shall come due on a day other than a Business Day, payment shall be
made on the next following Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.




     (ii) On each date when the payment of any principal, interest or fees are due
hereunder or under any Note, Borrower agrees to maintain on deposit in an ordinary checking
account maintained by Borrower with Agent (as such account shall be designated by Borrower
in a written notice to Agent from time to time, the “Borrower



38









 







Account”) an amount sufficient to pay such principal, interest or fees in full on
such date. Borrower hereby authorizes Agent (A) to deduct automatically all principal,
interest or fees when due hereunder or under any Note from the Borrower Account, and (B) if
and to the extent any payment of principal, interest or fees under this Agreement or any
Note is not made when due to deduct any such amount from any or all of the accounts of
Borrower maintained at Agent. Agent agrees to provide written notice to Borrower of any
automatic deduction made pursuant to this Section 2.12(a)(ii) showing in reasonable
detail the amounts of such deduction. Lenders agree to reimburse Borrower based on their
Applicable Percentage for any amounts deducted from such accounts in excess of amount due
hereunder and under any other Loan Documents.



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




     (ii) Payments by Borrower; Presumptions by Agent. Unless Agent shall have
received notice from Borrower prior to the date on which any payment is due to Agent for
the account of the Lenders or the L/C Issuer hereunder that Borrower will not make such
payment, Agent may assume that Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to Lenders or the L/C
Issuer, as the case may be, the amount due. In such event, if Borrower has not in fact made
such payment, then each of Lenders or the L/C Issuer, as the case may be, severally agrees
to repay to 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
Agent, at the greater of the Federal Funds Rate and a rate determined by



39









 







Agent in accordance with banking industry rules on interbank compensation. A notice of Agent
to any Lender or Borrower with respect to any amount owing under this subsection (b) shall
be conclusive, absent manifest error.



     (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to 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 Borrower by Agent because the
conditions to the applicable Credit Extension set forth in Article IV are not satisfied or
waived in accordance with the terms hereof, 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 Lenders hereunder to make
Revolving Loans, to fund participations in Letters of Credit and Swing Line Loans and to make
payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender
to make any Revolving Loan, to fund any such participation or to make any payment under
Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be responsible for the failure
of any other Lender to so make its Revolving Loan, to purchase its participation or to make its
payment under Section 10.04(c).



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



     2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of
the Revolving Loans made by it, or the participations in L/C Obligations or in Swing Line Loans
held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of
such Revolving Loans or participations and accrued interest thereon greater than its pro rata
share thereof as provided herein, then the Lender receiving such greater proportion shall (a)
notify Agent of such fact, and (b) purchase (for cash at face value) participations in the
Revolving Loans and subparticipations in L/C Obligations and Swing Line Loans of the other
Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving Loans and other amounts owing
them, provided that:




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




     (ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by Borrower pursuant to and in accordance with the express terms of this Agreement or
(y) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Revolving Loans or subparticipations in L/C




40












 






Obligations or Swing Line Loans to any assignee or participant, other than to Borrower or
any Subsidiary thereof (as to which the provisions of this Section shall apply).


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




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 Borrower hereunder or
under any other Loan Document shall to the extent permitted by applicable Laws be made free
and clear of and without reduction or withholding for any Taxes. If, however, applicable
Laws require Borrower or Agent to withhold or deduct any Tax, such Tax shall be withheld or
deducted in accordance with such Laws as determined by Borrower or Agent, as the case may
be, upon the basis of the information and documentation to be delivered pursuant to
subsection (e) below.




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



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



     (c) Tax Indemnifications.




     (i) Without limiting the provisions of subsection (a) or (b) above, Borrower shall,
and does hereby, indemnify Agent, each Lender and the L/C Issuer, and shall make payment in
respect thereof within 10 days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) withheld or deducted by
Borrower or Agent or paid by Agent, such Lender or the L/C Issuer, as the



41









 






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. Borrower shall also, and
does hereby, indemnify Agent, and shall make payment in respect thereof within 10 days after
demand therefor, for any amount which a Lender or the L/C Issuer for any reason fails to pay
indefeasibly to Agent as required by clause (ii) of this subsection. A certificate as to the
amount of any such payment or liability delivered to Borrower by a Lender or the L/C Issuer
(with a copy to Agent), or by 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 Borrower and Agent, and shall make payment
in respect thereof within 10 days after demand therefor, against any and all Taxes and any
and all related losses, claims, liabilities, penalties, interest and expenses (including
the fees, charges and disbursements of any counsel for Borrower or Agent) incurred by or
asserted against Borrower or 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 Borrower or Agent pursuant to subsection
(e). Each Lender and the L/C Issuer hereby authorizes 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 Agent under this clause
(ii). The agreements in this clause (ii) shall survive the resignation and/or replacement
of Agent, any assignment of rights by, or the replacement of, a Lender or the L/C Issuer,
the termination of the Aggregate Commitments and the repayment, satisfaction or discharge
of all other Obligations.



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



     (e) Status of Lenders; Tax Documentation.




     (i) Each Lender shall deliver to Borrower and to Agent, at the time or times
prescribed by applicable Laws or when reasonably requested by Borrower or 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 Borrower or 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 Borrower pursuant to this Agreement or



42









 






otherwise to establish such Lender’s status for withholding tax purposes in the applicable
jurisdiction.




     (ii) Without limiting the generality of the foregoing, if Borrower is resident for tax
purposes in the United States, any Lender shall deliver to Borrower and Agent executed
originals of Internal Revenue Service Form W-9 or such other documentation or information
prescribed by applicable Laws or reasonably requested by Borrower or Agent as will enable
Borrower or Agent, as the case may be, to determine whether or not such Lender is subject to
backup withholding or information reporting requirements; and




     (iii) Each Lender shall promptly (A) notify Borrower and 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
Borrower or Agent make any withholding or deduction for taxes from amounts payable to such
Lender.



     (f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall 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 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 Borrower or
with respect to which Borrower has paid additional amounts pursuant to this Section, it shall pay
to Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or
additional amounts paid, by Borrower under this Section with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses incurred by 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 Borrower, upon
the request of Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to
Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to Agent, such Lender or the L/C Issuer in the event 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 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 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 Borrower through Agent, any obligation
of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Revolving Loans
to Eurodollar Rate Loans shall be suspended until such Lender notifies Agent and Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of such notice,
Borrower shall, upon demand from such Lender (with




43









 







a copy to Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to
Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such prepayment
or conversion, Borrower shall also pay accrued interest on the amount so prepaid or converted and
all amounts due under Section 3.05 in accordance with the terms thereof due to such
prepayment or conversion.




     3.03 Inability to Determine Rates. If Agent determines 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 does not adequately
and fairly reflect the cost to such Lenders of funding such Loan, Agent will promptly so
notify
Borrower and each Lender. Thereafter, the obligation of Lenders to make or maintain Eurodollar
Rate Loans shall be suspended until Agent (upon the instruction of the Required Lenders)
revokes such notice. Upon receipt of such notice, Borrower may revoke any pending request for
a Revolving Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing
that, will be deemed to have converted such request into a request for a Revolving Borrowing
of Base Rate Loans in the amount specified therein.



     3.04 Increased Costs.



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




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




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




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


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or
to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C




44









 




Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such
Lender or the L/C Issuer, 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 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 Borrower shall be conclusive absent manifest error. Borrower shall pay such
Lender
or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within
10
days after receipt thereof.



     (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer to
demand compensation pursuant to the foregoing provisions of this Section shall not constitute
a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation,
provided that
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
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 Agent) from time to
time, Borrower shall promptly compensate such Lender for and hold such Lender harmless from any
loss, cost or expense incurred by it as a result of:



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



45









 





     (b) any failure by Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on
the date or in the amount notified by 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
10.13;


including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. Borrower shall also pay any customary administrative
fees charged by such Lender in connection with the foregoing. For purposes of calculating amounts
payable by Borrower to 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) If any Lender requests compensation under Section 3.04, or 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. Borrower hereby agrees to pay all reasonable costs and
expenses
incurred by any Lender or the L/C Issuer in connection with any such designation or
assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the
Borrower may replace such Lender in accordance with Section 10.13.



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



ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




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



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




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




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




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




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




     (v) a favorable opinion of K + L Gates LLP, counsel to the Loan Parties, acceptable to
Agent, addressed to Agent and each Lender, as to the matters set forth concerning the Loan
Parties and the Loan Documents in form and substance satisfactory to Agent;




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




     (vii) a certificate signed by a Responsible Officer of Borrower certifying
(A) that the conditions specified in Sections 4.02(a) and (b) have been
satisfied, and
(B) that there has been no event or circumstance since January 31, 2009 that has had or
could be reasonably expected to have, either individually or in the aggregate, a Material
Adverse Effect; and (C) that the calculation of the Consolidated Leverage Ratio based on
the unaudited consolidated and consolidating financial statements of the Borrower and its
Subsidiaries for its fiscal quarter ended January 31, 2009 previously provided to
Administrative Agent pursuant to the Existing Credit Agreement is true and correct;




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



47









 






     (ix) a modification endorsement dated on or after the date hereof to an ALTA extended
coverage lender’s title insurance policy issued by a title insurance company acceptable to
the Agent, for the real property covered by the Indiana Mortgage in an amount equal to
$1,750,000, insuring that fee simple title to such real property is vested in Borrower, and
assuring the Agent that the Indiana Mortgage creates a valid and enforceable lien on the
real property covered thereby as security for the obligations secured by the Indiana
Mortgage prior and superior in right to any other person, subject only to exceptions
approved by Agent in writing; and




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



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



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



     (d) A favorable standard flood hazard determination for the real property covered by the Indiana Mortgage issued by LSI Flood Services.


Without limiting the generality of the provisions of the last paragraph of Section 9.03,
for purposes of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented to, approved or
accepted or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless Agent shall have
received notice from such Lender prior to the proposed Closing Date specifying its objection
thereto.




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



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



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



48









 





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



     (d) Agent shall have received, in form and substance satisfactory to it, such other
assurances, certificates, documents or consents related to the foregoing as Agent or the
Required
Lenders reasonably may require.


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




ARTICLE V.

REPRESENTATIONS AND WARRANTIES




     Borrower represents and warrants to Agent and the Lenders that:



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



     5.02 Authorization; No Contravention. The execution, delivery and performance by
each Loan Party of each Loan Document to which such Person is party, have been duly
authorized by all necessary corporate or other organizational action, and do not and will not
(a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or
result in any breach or contravention of, or the creation of any Lien under, or require any
payment to be made under (i) any 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.



     5.03 Governmental Authorization; Other Consents. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any Governmental
Authority or any other Person is necessary or required in connection with the execution,
delivery
or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan
Document.



     5.04 Binding Effect. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by each Loan Party that is
party thereto. This Agreement constitutes, and each other Loan Document when so delivered



49









 




will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against
each Loan Party that is party thereto in accordance with its terms.




     5.05 Financial Statements; No Material Adverse Effect.



     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly
noted
therein; (ii) fairly present the financial condition of the Borrower and its Subsidiaries as
of the
date thereof and their results of operations for the period covered thereby in accordance with
GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities, direct or
contingent,
of the Borrower and its Subsidiaries as of the date thereof, including liabilities for taxes,
material
commitments and Indebtedness.



     (b) The unaudited consolidated and consolidating balance sheets of the Borrower and
its Subsidiaries dated January 31, 2009, and the related consolidated and consolidating
statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter
ended on that date (i) were prepared in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly
present the
financial condition of the Borrower and its Subsidiaries as of the date thereof and their
results of
operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to
the
absence of footnotes and to normal year-end audit adjustments.



     (c) Since the date of Borrower’s most recent financial statements filed with the SEC
prior to the Closing Date, there has been no event or circumstance, either individually or in
the
aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.



     (d) The consolidated and consolidating forecasted balance sheet and statements of
income and cash flows of the Borrower and its Subsidiaries delivered pursuant to Section 6.01(c)
were prepared in good faith on the basis of the assumptions stated therein, which assumptions
were fair in light of the conditions existing at the time of delivery of such forecasts, and
represented, at the time of delivery, the Borrower’s best estimate of its future financial
condition
and performance.



     5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of Borrower after due and diligent investigation, threatened
or
contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or
against Borrower or any of its Subsidiaries or against any of their properties or revenues
that
(a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby, or (b) except as specifically disclosed in Schedule 5.06, either
individually or in the aggregate, if determined adversely, could reasonably be expected to
have a
Material Adverse Effect, and there has been no adverse change in the status, or financial
effect
on any Loan Party or any Subsidiary thereof, of the matters described on Schedule 5.06.



     5.07 No Default. Neither any Loan Party nor any Subsidiary thereof is in default
under or with respect to any Contractual Obligation that could, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred



50









 




and is continuing or would result from the consummation of the transactions contemplated by this
Agreement or any other Loan Document.




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



     5.09 Environmental Compliance. Borrower and its Subsidiaries conduct in the
ordinary course of business a review of the effect of existing Environmental Laws and claims
alleging potential liability or responsibility for violation of any Environmental Law on their
respective businesses, operations and properties, and as a result thereof Borrower has
reasonably
concluded that such Environmental Laws and claims could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.



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



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



     5.12 ERISA Compliance.



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



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



51









 




transaction or violation of the fiduciary responsibility rules with respect to any Plan that has
resulted or could reasonably be expected to result in a Material Adverse Effect.




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



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



     5.14 Margin Regulations; Investment Company Act.



     (a) Borrower is not engaged and will not engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock (within the
meaning
of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or
carrying margin stock. Following the application of the proceeds of each Borrowing or drawing
under each Letter of Credit, not more than 25% of the value of the assets (either of the
Borrower
only or of the Borrower and its Subsidiaries on a consolidated basis) subject to the
provisions of
Section 7.01 or Section 7.05 or subject to any restriction contained in any
agreement or
instrument between the Borrower and any Lender or any Affiliate of any Lender relating to
Indebtedness and within the scope of Section 8.01(e) will be margin stock.



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



     5.15 Disclosure. Borrower has disclosed to Agent and Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its Subsidiaries is
subject,
and all other matters known to it, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. No report, financial statement, certificate
or
other information furnished (whether in writing or orally) by or on behalf of any Loan Party
to
Agent or any Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder or under any other Loan Document (in
each case, as modified or supplemented by other information so furnished) contains any
material
misstatement of fact or omits to state any material fact necessary to make the statements
therein,
in the light of the circumstances under which they were made, not misleading; provided
that,




52









 







with respect to projected financial information, Borrower represents only that such information
was prepared in good faith based upon assumptions believed to be reasonable at the time.




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



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



     5.18 Intellectual Property; Licenses, Etc. The Borrower and its Subsidiaries own,
or possess the right to use, all of the trademarks, service marks, trade names, copyrights,
patents,
patent rights, franchises, licenses and other intellectual property rights (collectively, “IP Rights”)
that are reasonably necessary for the operation of their respective businesses, without
conflict
with the rights of any other Person. To the best knowledge of the Borrower, no slogan or other
advertising device, product, process, method, substance, part or other material now employed,
or
now contemplated to be employed, by the Borrower or any Subsidiary infringes upon any rights
held by any other Person. No claim or litigation regarding any of the foregoing is pending or,
to
the best knowledge of the Borrower, threatened, which, either individually or in the
aggregate,
could reasonably be expected to have a Material Adverse Effect.



     5.19 Rights in Collateral; Priority of Liens. Borrower and each other Loan Party
own the property granted by it as Collateral under the Collateral Documents, free and clear of
any and all Liens in favor of third parties. Except as otherwise provided in Schedule 5.19, upon
the proper filing of UCC financing statements, and the taking of the other actions required by
the
Required Lenders, the Liens granted pursuant to the Collateral Documents will constitute valid
and enforceable first, prior and perfected Liens on the Collateral in favor of Agent, for the
ratable
benefit of Agent and Lenders.



ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02, and 6.03) cause each Domestic Material Subsidiary to:



     6.01 Financial Statements. Deliver to Agent a sufficient number of copies for delivery by
Agent to each Lender, in form and detail satisfactory to Agent and the Required Lenders:



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



53









 




fiscal year, setting forth in each case in comparative form the figures for the previous fiscal
year, all in reasonable detail and prepared in accordance with GAAP, such consolidated statements
to be audited and accompanied by a report and opinion of an independent certified public accountant
of nationally recognized standing reasonably acceptable to the Required Lenders, which report and
opinion shall be prepared in accordance with generally accepted auditing standards and shall not be
subject to any “going concern” or like qualification or exception or any qualification or exception
as to the scope of such audit, and such consolidating statements to be certified by the chief
executive officer, chief financial officer, treasurer or controller of the Borrower to the effect
that such statements are fairly stated in all material respects when considered in relation to the
consolidated financial statements of the Borrower and its Subsidiaries; and




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



     (c) as soon as available, but in any event no later than 60 days after the end of each
fiscal year of the Borrower, forecasts prepared by management of Borrower, in form
satisfactory
to Agent and the Required Lenders, of consolidated balance sheets and statements of income or
operations and cash flows of the Borrower and its Subsidiaries on a quarterly basis for the
immediately following fiscal year (including the fiscal year in which the Maturity Date
occurs).



     6.02 Certificates; Other Information. Deliver to Agent a sufficient number of copies for
delivery by Agent to each Lender, in form and detail satisfactory to Agent and the Required
Lenders:



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



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



54









 





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



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



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



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



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on
the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or
any Lender that has not received an electronic copy from the Administrative Agent and requests the
Borrower to deliver such paper copies until a written request to cease delivering paper copies is
given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the
Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such
documents and provide to the Administrative Agent by electronic mail electronic versions (i.e.,
soft copies) of such documents. Notwithstanding anything contained herein, in every instance the
Borrower shall be required to provide paper copies of the Compliance Certificates required by
Section 6.02(b) to the Administrative Agent. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility to monitor compliance by
the Borrower with any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.


The Borrower hereby acknowledges that (a) Agent and/or 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




55









 







(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 10.07); (y) all Borrower Materials marked “PUBLIC”
are permitted to be made available through a portion of the Platform designated “Public Side
Information;” and (z) the Administrative Agent and the 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 designated “Public Side Information.”




     6.03 Notices. Promptly notify Agent and each Lender:



     (a) of the occurrence of any Default;



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



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



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


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




     6.04 Payment of Obligations. Pay and discharge as the same shall become due and
payable, all its obligations and liabilities, including (a) all tax liabilities, assessments
and
governmental charges or levies upon it or its properties or assets, 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 Borrower or such Subsidiary; (b) all lawful
claims which, if unpaid, would by law become a Lien upon its property; and (c) all
Indebtedness,



56









 




as and when due and payable, but subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness.




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



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



     6.07 Maintenance of Insurance. Maintain with financially sound and reputable
insurance companies not Affiliates of Borrower, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by Persons engaged in
the same or similar business, of such types and in such amounts (after giving effect to any
self-insurance compatible with the following standards) as are customarily carried under similar
circumstances by such other Persons and providing for not less than 30 days’ prior notice to
Agent of termination, lapse or cancellation of such insurance.



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



     6.09 Books and Records. (a) Maintain proper books of record and account, in which
full, true and correct entries in conformity with GAAP consistently applied shall be made of
all
financial transactions and matters involving the assets and business of Borrower or such
Subsidiary, as the case may be; and (b) maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority having regulatory
jurisdiction over Borrower or such Subsidiary, as the case may be. Borrower shall maintain at
all
times books and records pertaining to the Collateral in such detail, form and scope as Agent
or
any Lender shall reasonably require.



     6.10 Inspection Rights. Permit representatives and independent contractors of Agent
and each Lender to visit and inspect any of its properties, to examine its corporate,
financial and
operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public accountants, all at
the
reasonable expense of Borrower and at such reasonable times during normal business hours and



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as often as may be reasonably desired, upon reasonable advance notice to Borrower; provided,
however, that when an Event of Default exists Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at the reasonable expense
of Borrower at any time during normal business hours and without advance notice.




     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions to refinance
Indebtedness arising under the Existing Credit Agreement, and for working capital, capital
expenditures and other general corporate purposes, in each case not in contravention of any
Law
or of any Loan Document.



     6.12 Additional Guarantors. Notify Agent at the time that any Person becomes a
Domestic Material Subsidiary, and promptly thereafter (and in any event within 30 days), cause
such Person to (a) become a Guarantor by executing and delivering to Agent (i) the Guaranty or
a supplement to the Guaranty in the form attached thereto, as applicable, or such other
document
as Agent shall deem appropriate for such purpose, (ii) the Guarantor Security Agreement or a
supplement to the Guarantor Security Agreement in the form attached thereto, as applicable, or
such other document as Agent shall deem appropriate for such purpose, and (iii) the Guarantor
Pledge Agreement or a supplement to the Guarantor Pledge Agreement in the form attached
thereto, as applicable, or such other document as Agent shall deem appropriate for such
purpose,
and (b) deliver to Agent documents of the types referred to in clauses (iii) and (iv) of
Section 4.01(a) and favorable opinions of counsel to such Person (which shall cover,
among
other things, the legality, validity, binding effect and enforceability of the documentation
referred to in clause (a)), all in form, content and scope reasonably satisfactory to Agent.



     6.13 Collateral Records. To execute and deliver promptly, and to cause each other
Loan Party to execute and deliver promptly, to Agent, from time to time, solely for Agent’s
convenience in maintaining a record of the Collateral, such written statements and schedules
as
Agent may reasonably require designating, identifying or describing the Collateral. The
failure
by Borrower or any other Loan Party, however, to promptly give Agent such statements or
schedules shall not affect, diminish, modify or otherwise limit the Liens on the Collateral
granted
pursuant to the Collateral Documents.



     6.14 Security Interests. To, and to cause each other Loan Party to, (a) defend the
Collateral against all claims and demands of all Persons at any time claiming the same or any
interest therein, (b) comply with the requirements of all state and federal laws in order to
grant to
Agent and Lenders valid and perfected first priority security interests in the Collateral,
with
perfection, in the case of any investment property, deposit account or letter of credit, being
effected by giving Agent control of such investment property or deposit account or letter of
credit, rather than by the filing of a Uniform Commercial Code (“UCC”) financing statement
with respect to such investment property, and (c) do whatever Agent may reasonably request,
from time to time, to effect the purposes of this Agreement and the other Loan Documents,
including filing notices of liens, UCC financing statements, fixture filings and amendments,
renewals and continuations thereof; cooperating with Agent’s representatives; keeping stock
records; if expressly requested by Agent, making commercially reasonable efforts to obtain
waivers from landlords and mortgagees and from warehousemen and their landlords and
mortgages; and, paying claims which might, if unpaid, become a Lien on the Collateral. Agent
is
hereby authorized by Borrower to file any UCC financing statements covering the Collateral
whether or not Borrower’s signatures appear thereon.




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ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
Borrower shall not, nor shall it permit any Domestic Material Subsidiary to, directly or
indirectly:



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



     (a) Liens pursuant to any Loan Document;



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



     (c) Liens for taxes 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) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 30 days
or which are being contested in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the applicable Person;



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



     (g) 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 not constituting an Event of Default
under Section 8.01(h); and



     (i) Liens securing Indebtedness permitted under Section 7.03(e); provided that (i)
such Liens do not at any time encumber any property other than the property financed by such
Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market
value, whichever is lower, of the property being acquired on the date of acquisition.



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     7.02 Investments. Make any Investments, except:



     (a) Investments held by Borrower or such Subsidiary in the form of cash equivalents or
short-term marketable debt securities;



     (b) advances to officers, directors and employees of Borrower and Subsidiaries in an aggregate
amount not to exceed $250,000 at any time outstanding, for travel, entertainment, relocation and
analogous ordinary business purposes;



     (c) Investments of Borrower in any wholly-owned Subsidiary and Investments of any wholly-owned
Subsidiary in Borrower or in another wholly-owned Subsidiary;



     (d) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or limit loss;



     (e) Guarantees to the extent permitted by Section 7.03;



     (f) Between the Closing Date and the Maturity Date, acquisitions by Borrower of another Person
(including by way of merger with such Person where Borrower is the surviving entity), business or
property if Borrower’s expenditures in respect of such acquisitions during such period do not
exceed $3,000,000 in the aggregate; provided, that Borrower may not enter into any such
acquisition (i) if a Default or Event of Default shall then exist or would exist after giving
effect to such acquisition, or (ii) the Consolidated Senior Leverage Ratio would be greater than
2.5:1 after giving effect to such acquisition.



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



     (a) Indebtedness under the Loan Documents;



     (b) Indebtedness outstanding on the date hereof and listed on Schedule 7.03(b) and any
refinancings, refundings, renewals or extensions thereof; provided that (i) the amount of
such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder and (ii) the terms relating to principal amount,
amortization, maturity, collateral (if any) and subordination (if any), and other material terms
taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of
any agreement entered into and of any instrument issued in connection therewith, are no less
favorable in any material respect to the Loan Parties or Lenders than the terms of any agreement or
instrument governing the Indebtedness being refinanced, refunded, 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) Guarantees of Borrower or any Subsidiary in respect of Indebtedness otherwise permitted
hereunder of Borrower or any wholly-owned Subsidiary;



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



     (e) Indebtedness in respect of purchase money obligations for fixed or capital assets
(including those in the form of capital leases and Synthetic Lease Obligations) within the
limitations set forth in Section 7.01(i); provided, however, that the aggregate amount of
all such Indebtedness at any one time outstanding shall not exceed $10,000,000; and



     (f) OMAX Subordinated Debt.



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



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



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



     (c) Borrower may merge with another Person if (i) such merger is a permitted Investment under
Section 7.02(f) above and (ii) Borrower is the surviving entity in such merger.



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



     (a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in
the ordinary course of business;



     (b) Dispositions of inventory in the ordinary course of business;



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



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     (d) Dispositions of property by any Subsidiary to Borrower or to a wholly-owned Subsidiary;
provided that if the transferor of such property is a Guarantor, the transferee thereof
must either be Borrower or a Guarantor;



     (e) Dispositions permitted by Section 7.04;



     (f) non-exclusive licenses of IP Rights in the ordinary course of business and substantially
consistent with past practice for terms not exceeding five years;



     (g) Dispositions of the shares or assets of Immaterial Subsidiaries; and



     (h) Dispositions of the shares or assets of Subsidiaries listed on Schedule
7.05,



provided, however, that any Disposition pursuant to clauses (a) through (f) shall be for
fair market value.



     7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment,
or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests
(other than sales of common stock of the Borrower), except that, so long as no Default shall have
occurred and be continuing at the time of any action described below or would result therefrom:



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



     (b) Borrower and each Subsidiary may declare and make dividend payments or other distributions
payable solely in the common stock or other common Equity Interests of such Person; and



     (c) Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests
issued by it with the proceeds received from the substantially concurrent issue of new shares of
its common stock or other common Equity Interests.



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



     7.08 Transactions With Affiliates. Enter into any transaction of any kind with any Affiliate
of Borrower, whether or not in the ordinary course of business, other than on fair and reasonable
terms substantially as favorable to Borrower or such Subsidiary as would be obtainable by Borrower
or such Subsidiary at the time in a comparable arm’s length transaction with a Person other than an
Affiliate, provided that the foregoing restriction shall not apply to transactions between
or among Borrower and any Guarantor or between and among Guarantors.



     7.09 Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement or
any other Loan Document) that (a) limits the ability (i) of any Subsidiary to make Restricted
Payments to Borrower or any Guarantor or to otherwise transfer property to Borrower or any
Guarantor, (ii) of any Subsidiary to Guarantee the Indebtedness of Borrower or (iii) of



62









 




Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such
Person; provided, however, that this clause (iii) shall not prohibit any negative pledge
incurred or provided in favor of any holder of Indebtedness permitted under Section 7.03(e)
solely to the extent any such negative pledge relates to the property financed by or the subject of
such Indebtedness; or (b) requires the grant of a Lien to secure an obligation of such Person if a
Lien is granted to secure another obligation of such Person.




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



     7.11 Financial Covenants. Fail to comply with any of the financial covenants set forth on
Schedule 7.11.



ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




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



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



     (b) Specific Covenants. Borrower fails to perform or observe any term, covenant or
agreement contained in any of Sections 6.01, 6.02, 6.03, 6.05, 6.10, 6.11, 6.12, 6.13, 6.14, 7.01 (other than with respect to involuntary liens), 7.02, 7.03, 7.04, 7.05, 7.06, 7.07, 7.10 or 7.11, or any Guarantor fails to perform or observe any term, covenant or
agreement contained in Section 2 of the Guaranty; or



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



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



     (e) Cross-Default. (i) The Borrower or any Domestic Material 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



63









 




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 become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or
an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded;
or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap
Contract) resulting from (A) any event of default under such Swap Contract as to which Borrower or
any Domestic Material Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B)
any Termination Event (as so defined) under such Swap Contract as to which the Borrower or any
Domestic Material Subsidiary is an Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by the Borrower or such Domestic Material Subsidiary as a result thereof is
greater than the Threshold Amount; or




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



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



     (h) Judgments. There is entered against the Borrower or any Domestic Material
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 does not dispute coverage),
or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect and, in either case,
(A) enforcement proceedings are commenced by any creditor upon such judgment or order, or
(B) there is a period of 10 consecutive days during which a stay of enforcement of such judgment,
by reason of a pending appeal or otherwise, is not in effect; or



     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of Borrower under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of the Threshold Amount, or (ii) Borrower or any ERISA Affiliate




64









 







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 or any provision thereof, 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 any manner the validity or
enforceability of any Loan Document or any provision thereof; or any Loan Party denies that it has
any or further liability or obligation under any Loan Document, or purports to revoke, terminate
or rescind any Loan Document or any provision thereof; or



     (k) Change of Control. There occurs any Change of Control with respect to the
Borrower or any Guarantor; or



     (l) Material Adverse Effect. There occurs any event or circumstance that has a
Material Adverse Effect and such Material Adverse Effect is not removed or corrected within 30
days after the Borrower has written notice thereof from Agent.



     8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing,
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 Borrower;



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



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



provided, however, that upon the occurrence of an actual or deemed entry of an order for
relief with respect to 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
Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of Agent or any Lender.



     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the




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proviso to Section 8.02), any amounts received on account of the Obligations shall be
applied by Agent in the following order:




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



     Third, to payment of that portion of the Obligations constituting (i) accrued and
unpaid L/C Fees and interest on the Loans, L/C Borrowings and other Obligations and (ii) fees,
premiums and scheduled periodic payments due under any Swap Contract between the Borrower and any
Lender or any Affiliate of any Lender permitted by Section 7.03(d) and any interest
accrued thereon, ratably among the Lenders and the L/C Issuer in proportion to the respective
amounts described in this clause Third payable to them;



     Fourth, to payment of that portion of the Obligations constituting (i) unpaid
principal of the Loans and L/C Borrowings and (ii) breakage, termination or other payments due
under any Swap Contract between the Borrower and any Lender or any Affiliate of any Lender
permitted by Section 7.03(d) and any interest accrued thereon, ratably among the Lenders
and the L/C Issuer in proportion to the respective amounts described in this clause Fourth
held by them;



     Fifth, to Agent for the account of the L/C Issuer, to Cash Collateralize that portion
of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit; and



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



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



ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01 Appointment and Authorization of Administrative Agent.



     (a) Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act
on its behalf as Administrative Agent hereunder and under the other Loan Documents and authorizes
Agent to take such actions on its behalf and to exercise such powers as are delegated to Agent by
the terms hereof or thereof, together with such actions and powers




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as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of
Agent, the Lenders and the L/C Issuer, and neither Borrower nor any other Loan Party shall have
rights as a third party beneficiary of any of such provisions.




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



     9.02 Rights as a Lender. The Person serving as 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 Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless
the context otherwise requires, include the Person serving as 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 Borrower or any Subsidiary or other Affiliate thereof as if such Person were not
Agent hereunder and without any duty to account therefor to Lenders.



     9.03 Exculpatory Provisions. 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, 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 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 Agent shall not be required to take any action that,
in its opinion or the opinion of its counsel, may expose 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
Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as
Agent or any of its Affiliates in any capacity.



     (d) 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



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Lenders as shall be necessary, or as Agent shall believe in good faith shall be necessary, under
the circumstances as provided in Sections 8.02 and 10.01) or (ii) in the absence of its
own gross negligence or willful misconduct. Agent shall be deemed not to have knowledge of any
Default unless and until written notice describing such Default is given to Agent by Borrower, a
Lender or the L/C Issuer. Agent shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in Article IV or
elsewhere herein, other than to confirm receipt of items expressly required to be delivered to
Agent.




     9.04 Reliance by Administrative Agent. Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message, Internet or intranet
website posting or other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person. 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, Agent may presume that such condition is
satisfactory to such Lender or the L/C Issuer unless 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. Agent may consult with legal counsel (who may be counsel for Borrower),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.



     9.05 Delegation of Duties. 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 Agent. 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 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 Agent.



     9.06 Resignation of Agent. Agent may at any time give notice of its resignation to Lenders,
the L/C Issuer and Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with Borrower, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice of its resignation,
then the retiring Agent may on behalf of Lenders and the L/C Issuer, appoint a successor Agent
meeting the qualifications set forth above; provided that if Agent shall notify Borrower
and the Lenders that no qualifying Person has accepted such appointment, then



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such resignation shall nonetheless become effective in accordance with such notice and (1) the
retiring Agent shall be discharged from its duties and obligations hereunder and under the other
Loan Documents (except that in the case of any collateral security held by Agent on behalf of the
Lenders or the L/C Issuer under any of the Loan Documents, the retiring Agent shall continue to
hold such collateral security until such time as a successor Agent is appointed) and (2) all
payments, communications and determinations provided to be made by, to or through 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 Agent as provided for above in this Section. Upon the acceptance of a
successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring (or retired) Agent, and the
retiring 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 Borrower to a successor Agent shall be the same as those payable to its predecessor
unless otherwise agreed between Borrower and such successor. After the retiring Agent’s resignation
hereunder and under the other Loan Documents, the provisions of this Article and Section
10.04 shall continue in effect for the benefit of such retiring Agent, its sub agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.




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



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



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



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any





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Loan Party, 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
Agent shall have made any demand on Borrower) shall be entitled and empowered, by intervention in
such proceeding or otherwise.




     (a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the claims of
Lenders, the L/C Issuer and Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of Lenders, the L/C Issuer and Agent and their respective agents and
counsel and all other amounts due Lenders, the L/C Issuer and Agent under Sections 2.03(i)
and (j), 2.09 and 10.04) allowed in such judicial proceeding; and



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



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make
such payments to Agent and, in the event that Agent shall consent to the making of such payments
directly to Lenders and the L/C Issuer, to pay to Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of Agent and its agents and counsel, and any
other amounts due Agent under Sections 2.09 and 10.04. Nothing contained herein
shall be deemed to authorize 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 or to authorize Agent to
vote in respect of the claim of any Lender or the L/C Issuer in any such proceeding.



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



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



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



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



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




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ARTICLE X.

MISCELLANEOUS




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



     (a) waive any condition set forth in Section 4.01(a) without the written consent of
each Lender; provided, however, in the sole discretion of Agent, only a waiver by Agent
shall be required with respect to immaterial matters or items specified in Section
4.01(a)(iii) or (iv) with respect to which Borrower has given assurances satisfactory to
Agent that such items shall be delivered promptly following the Closing Date;



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



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



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01) any fees
or other amounts payable hereunder or under any other Loan Document, without the written consent of
each Lender directly affected thereby; provided, however, that only the consent of the
Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive any
obligation of Borrower to pay interest or L/C Fees at the Default Rate or (ii) to amend any
financial covenant hereunder (or any defined term used therein) even if the effect of such
amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee
payable hereunder;



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



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



     (g) release any Guarantor from the Guaranty or release the Liens on all or substantially all
of the Collateral in any transaction or series of related transactions except in accordance with
the terms of any Loan Document, without the written consent of each Lender;



and, provided further, that (i) no amendment, waiver or consent shall, unless in writing
and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or
duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit




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issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and
signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by Agent in addition to the Lenders required above, affect the rights
or duties of Agent under this Agreement or any other Loan Document; and (iii) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only by the parties
thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right
to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender.




     10.02 Notices; Effectiveness; Electronic Communication.



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




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




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


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




     (b) Electronic Communications. Notices and other communications to 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 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 Agent that it is incapable of
receiving notices under such Article by electronic communication. Agent or 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 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




72









 







normal business hours of the recipient, such notice or communication shall be deemed to have been
sent at the opening of business on the next business day for the recipient, and (ii) notices or
communications posted to an Internet or intranet website shall be deemed received upon the deemed
receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying the website address
therefor.




     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN
OR OMISSIONS FROM 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 BORROWER MATERIALS OR THE PLATFORM. In no event
shall Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to
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 Borrower’s or
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 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 Borrower, Agent the L/C Issuer and the Swing Line
Lender may change its address, telecopier or telephone number for notices and other communications
hereunder by notice to the other parties hereto. Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder by notice to
Borrower, Agent, the L/C Issuer and the Swing Line Lender. In addition, each Lender agrees to
notify Agent from time to time to ensure that 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 Agent, L/C Issuer and Lenders. Agent, the L/C Issuer and Lenders
shall be entitled to rely and act upon any notices (including telephonic Revolving Loan Notices and
Swing Line Loan Notices) purportedly given by or on behalf of Borrower even if (i) such



73









 




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. Borrower shall indemnify 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 Borrower. All telephonic notices to and other telephonic communications with Agent may
be recorded by Agent, and each of the parties hereto hereby consents to such recording.




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



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



     10.04 Expenses; Indemnity; Damage Waiver.



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




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Issuer), and shall pay all fees and time charges for attorneys who may be employees of Agent, any
Lender or the L/C Issuer, in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including
all such out of pocket expenses incurred during any workout, restructuring or negotiations in
respect of such Loans or Letters of Credit.




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



     (c) Reimbursement by Lenders. To the extent that Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to 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 Agent (or any such sub-agent), the L/C Issuer or such
Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against Agent (or any such sub-



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agent) or the L/C Issuer in its capacity as such, or against any Related Party of any of the
foregoing acting for Agent (or any such sub-agent) or L/C Issuer in connection with such capacity.
The obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.12(d).




     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No
Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use
by unintended recipients of any information or other materials distributed to such unintended
recipients by such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual damages resulting from
the gross negligence or willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.



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



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



     10.05 Payments Set Aside. To the extent that any payment by or on behalf of Borrower is made
to Agent, the L/C Issuer or any Lender, or 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 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 Agent upon demand its applicable share
(without duplication) of any amount so recovered from or repaid by Agent, plus interest
thereon from the date of such demand to the date such payment is made at a rate per annum equal to
the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the L/C
Issuer under clause (b) of the preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.



     10.06 Successors and Assigns.



     (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of




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its rights or obligations hereunder without the prior written consent of Agent, the L/C Issuer 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 Agent, the L/C Issuer and the
Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.




     (b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitments and the Loans at the time owing to it or in the case
of an assignment to a Lender or 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 Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than Five Million
Dollars ($5,000,000) unless, in each case, each of Agent and, so long as no Event of
Default has occurred and is continuing, Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent assignments
from members of an Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group) will be treated as a single assignment
for purposes of determining whether such minimum amount has been met;




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not apply to the Swing Line Lender’s rights and obligations in respect of
Swing Line Loans;




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     (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 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 or
an Affiliate of a Lender or an Approved Fund;




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




     (C) the consent of the L/C Issuer (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit (whether
or not then outstanding); and




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




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to Agent an Assignment and Assumption, together with a processing and
recordation fee in the amount of $3,500; provided, however, that the Agent may, in
its sole discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to Agent an Administrative
Questionnaire.




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




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


Subject to acceptance and recording thereof by Agent pursuant to subsection (c) of this Section,
from and after the effective date specified in each Assignment and Assumption, the assignee
thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and
the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the
benefits of Sections 3.01, 3.04, 3.05, and 10.04 with respect to facts and
circumstances occurring prior to the effective date of such assignment. Upon request, 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.




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     (c) Register. Agent, acting solely for this purpose as an agent of Borrower, shall
maintain at 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
Borrower, 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
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,
Borrower or Agent, sell participations to any Person (other than a natural person or Borrower or
any of Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such
Lender’s rights and/or obligations under this Agreement (including all or a portion of its
Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing
Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) Borrower, Agent, the L/C Issuer and the
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any amendment, waiver or
other modification described in the first proviso to Section 10.01 that affects such
Participant. Subject to subsection (e) of this Section, Borrower agrees that each Participant shall
be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same
extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection
(b) of this Section. To the extent permitted by law, each Participant also shall be entitled to
the benefits of Section 10.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.13 as though it were a Lender.



     (e) Limitations Upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with Borrower’s prior written
consent.



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



     (g) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any time Bank of America
assigns all of its Commitment and Revolving Loans pursuant to subsection (b) above, Bank of



79









 







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



     10.07 Treatment of Certain Information; Confidentiality. Each of Agent, Lenders and the L/C
Issuer agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective
partners, directors, officers, employees, agents, trustees, advisors and representatives (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, purporting to have jurisdiction over it (including
any self-regulatory authority, such as the National Association of Insurance Commissioners), (c)
to the extent required by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party hereto, (e) in connection with the exercise of any remedies
hereunder or under any other Loan Document or any action or proceeding relating to this Agreement
or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights
or obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to
Section 2.15(c) or (ii) any actual or prospective counterparty (or its advisors) to any
swap or derivative transaction relating to Borrower and its obligations, (g) with the consent of
Borrower or (h) to the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to Agent, any Lender, the L/C Issuer
or any of their respective Affiliates on a nonconfidential basis from a source other than
Borrower.



     For purposes of this Section, “Information” means all information received from Borrower or
any Subsidiary relating to Borrower or any Subsidiary or any of their respective businesses, other
than any such information that is available to Agent, any Lender or the L/C



80









 







Issuer on a nonconfidential basis prior to disclosure by Borrower or any Subsidiary, provided
that, in the case of information received from Borrower or any Subsidiary after the date
hereof, such information is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.



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



     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final, in whatever currency) at
any time held and other obligations (in whatever currency) at any time owing by such Lender, the
L/C Issuer or any such Affiliate to or for the credit or the account of Borrower or any other Loan
Party against any and all of the obligations of Borrower or such Loan Party now or hereafter
existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer or any
such Affiliate, irrespective of whether or not such Lender or the L/C Issuer shall have made any
demand under this Agreement or any other Loan Document and although such obligations of Borrower or
such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or
the L/C Issuer different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, the L/C Issuer and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of setoff) that such
Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer
agrees to notify Borrower and Agent promptly after any such setoff and application,
provided that the failure to give such notice shall not affect the validity of such setoff
and application.



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



     10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts
(and by different parties hereto in different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single contract.



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



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



     10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.



     10.13 Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any
Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice
to such Lender and Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents required by, Section
10.06), all of its interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment), provided that:



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



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



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



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



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



     10.14 Governing Law; Jurisdiction; Etc.



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



     (b) SUBMISSION TO JURISDICTION. BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF WASHINGTON SITTING IN KING COUNTY AND OF THE UNITED STATES DISTRICT COURT OF
THE DISTRICT OF WASHINGTON, 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 WASHINGTON 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 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 BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.



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



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     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



     10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.



     10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), Borrower and each other Loan Party acknowledges
and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other
services regarding this Agreement provided by Agent and Arranger are arm’s-length commercial
transactions between Borrower, each other Loan Party and their respective Affiliates, on the one
hand, and Agent and Arranger, on the other hand, (B) each of Borrower and the other Loan Parties
has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate, and (C) Borrower and each other Loan Party is capable of evaluating, and understands
and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the
other Loan Documents; (ii) (A) Agent and Arranger each is and has been acting solely as a principal
and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will
not be acting as an advisor, agent or fiduciary for the Borrower, any other Loan Party or any of
their respective Affiliates, or any other Person and (B) neither Agent nor Arranger has any
obligation to the Borrower, any other Loan Party or any of their respective Affiliates with respect
to the transactions contemplated hereby except those obligations expressly set forth herein and in
the other Loan Documents; and (iii) Agent and Arranger and their respective Affiliates may be
engaged in a broad range of transactions that involve interests that differ from those of the
Borrower, the other Loan Parties and their respective Affiliates, and neither Agent nor Arranger
has any obligation to disclose any of such interests to the Borrower, any other Loan Party or any
of their respective Affiliates. To the fullest extent permitted by law, each of Borrower and the
other Loan Parties hereby waives and releases any claims that it may have against Agent and
Arranger with respect to any breach or alleged breach of agency or fiduciary duty in connection
with any aspect of any transaction contemplated hereby.



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



     10.18 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter
defined) and Agent (for itself and not on behalf of any Lender) hereby notifies 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 Borrower, which information includes the name and address of Borrower and other
information that will allow such Lender or Agent, as applicable, to identify Borrower in accordance
with the Act. Borrower shall, promptly following a request by Agent or any Lender, provide all
documentation and other information that Agent or such Lender requests in order to comply with its
ongoing obligations under applicable “know your customer” and anti-money laundering rules and
regulations, including the Act.



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



     10.20 Amendment and Restatement. To the extent this Agreement contains
provisions that are the same as in the Existing Credit Agreement, those provisions shall be deemed
restated in this Agreement. To the extent this Agreement contains provisions different than those
is the Existing Credit Agreement, the Existing Credit Agreement shall be deemed amended by this
Agreement.



     10.21 Oral Agreements Not Enforceable. ORAL AGREEMENTS AND ORAL COMMITMENTS TO LOAN
MONEY, EXTEND CREDIT OR FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT
ENFORCEABLE UNDER WASHINGTON LAW.



[Signature Page Follows]




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



	 	 	 	 	 	 	 
	 	 	FLOW INTERNATIONAL CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Allen Hsieh
 

Allen Hsieh
	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Ken Puro
 

Ken Puro
	 	 
	 

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

	 	By:

Name:
	 	/s/ Gordon H. Gray
 

Gordon H. Gray
	 	 
	 

	 	Title:
	 	Sr. VP	 	 
	 
	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION, as a
Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Kathleen J. Johanson
 

Kathleen J. Johanson
	 	 
	 

	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	WELLS FARGO BANK N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Sarah Eddy
 

Sarah Eddy
	 	 
	 

	 	Title:
	 	Relationship Manager	 	 






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