Exhibit 10.2





Exhibit 10.2





 








SECOND AMENDED AND RESTATED CREDIT AGREEMENT




among




PIKE ELECTRIC CORPORATION,

and

PIKE ELECTRIC, INC.,

as Borrowers,




The Several Lenders from Time to Time Parties Hereto,




BARCLAYS BANK PLC,

as Administrative Agent,




J.P. MORGAN SECURITIES INC.,

as Syndication Agent,




and




FIRST TENNESSEE BANK, NATIONAL ASSOCIATION,

as Documentation Agent,




Dated as of July 29, 2009




 






 


 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	Section 1. Amount and Terms of Credit
	 	 	1	 
	1.1. Commitment
	 	 	1	 
	1.2. Minimum Borrowing Amounts, etc.
	 	 	3	 
	1.3. Notice of Borrowing
	 	 	3	 
	1.4. Disbursement of Funds
	 	 	4	 
	1.5. Evidence of Indebtedness
	 	 	4	 
	1.6. Conversions
	 	 	5	 
	1.7. Pro Rata Borrowings
	 	 	5	 
	1.8. Interest
	 	 	5	 
	1.9. Interest Periods
	 	 	6	 
	1.10. Increased Costs, Illegality, etc.
	 	 	7	 
	1.11. Compensation
	 	 	9	 
	1.12. Change of Lending Office
	 	 	9	 
	1.13. Replacement of Lenders
	 	 	9	 
	 
	 	 	 	 
	Section 2. Letters of Credit
	 	 	10	 
	2.1. Letters of Credit
	 	 	10	 
	2.2. Letter of Credit Requests; Notices of Issuance
	 	 	10	 
	2.3. Agreement to Repay Letter of Credit Drawings
	 	 	11	 
	2.4. Letter of Credit Participations
	 	 	11	 
	2.5. Increased Costs
	 	 	13	 
	 
	 	 	 	 
	Section 3. Fees; Commitments
	 	 	13	 
	3.1. Fees
	 	 	13	 
	3.2. Voluntary Reduction of Commitments
	 	 	14	 
	3.3. Mandatory Adjustments of Commitments, etc.
	 	 	14	 
	 
	 	 	 	 
	Section 4. Payments
	 	 	15	 
	4.1. Voluntary Prepayments
	 	 	15	 
	4.2. Mandatory Prepayments
	 	 	15	 
	4.3. Method and Place of Payment
	 	 	20	 
	4.4. Net Payments
	 	 	20	 
	 
	 	 	 	 
	Section 5. Conditions Precedent
	 	 	21	 
	5.1. Conditions Precedent to Effectiveness
	 	 	21	 
	5.2. Conditions Precedent to All Credit Events
	 	 	21	 
	5.3. Conditions Precedent to Second Restatement Effective Date
	 	 	21	 
	 
	 	 	 	 
	Section 6. Representations, Warranties and Agreements
	 	 	22	 
	6.1. Corporate Status; Compliance with Law
	 	 	22	 
	6.2. Power and Authority
	 	 	22	 
	6.3. No Violation
	 	 	22	 
	6.4. Litigation
	 	 	23	 
	6.5. Use of Proceeds; Margin Regulations
	 	 	23	 
	6.6. Governmental Approvals
	 	 	23	 
	6.7. Investment Company Act
	 	 	23	 






 


i 









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	6.8. Public Utility Holding Company Act
	 	 	23	 
	6.9. True and Complete Disclosure
	 	 	23	 
	6.10. Financial Condition; Financial Statements
	 	 	24	 
	6.11. Security Interests
	 	 	25	 
	6.12. Tax Returns and Payments
	 	 	25	 
	6.13. Compliance with ERISA
	 	 	25	 
	6.14. Subsidiaries
	 	 	26	 
	6.15. Intellectual Property
	 	 	26	 
	6.16. Pollution and Other Regulations
	 	 	26	 
	6.17. Properties
	 	 	26	 
	6.18. Labor Matters
	 	 	27	 
	6.19. Holding Company Status
	 	 	27	 
	6.20. No Default
	 	 	27	 
	6.21. Regulation H
	 	 	27	 
	 
	 	 	 	 
	Section 7. Affirmative Covenants
	 	 	27	 
	7.1. Information Covenants
	 	 	27	 
	7.2. Books, Records and Inspections
	 	 	29	 
	7.3. Maintenance of Insurance
	 	 	29	 
	7.4. Payment of Taxes
	 	 	29	 
	7.5. Franchises
	 	 	29	 
	7.6. Compliance with Contractual Obligations and Laws, Statutes, etc.
	 	 	29	 
	7.7. ERISA
	 	 	30	 
	7.8. Good Repair
	 	 	30	 
	7.9. Payment of Obligations
	 	 	30	 
	7.10. Environmental Laws
	 	 	31	 
	7.11. Use of Proceeds
	 	 	31	 
	7.12. Additional Collateral
	 	 	31	 
	7.13. Interest Rate Agreements
	 	 	32	 
	 
	 	 	 	 
	Section 8. Negative Covenants
	 	 	32	 
	8.1. Changes in Business
	 	 	32	 
	8.2. Consolidation, Merger, Sale of Assets, etc.
	 	 	33	 
	8.3. Liens
	 	 	34	 
	8.4. Indebtedness
	 	 	36	 
	8.5. Capital Expenditures
	 	 	37	 
	8.6. Advances, Investments and Loans
	 	 	38	 
	8.7. Leases
	 	 	39	 
	8.8. Prepayments of Indebtedness; Amendments to Documents, etc.
	 	 	40	 
	8.9. Dividends, etc.
	 	 	40	 
	8.10. Transactions with Affiliates
	 	 	43	 
	8.11. Sales and Leasebacks
	 	 	43	 
	8.12. Changes in Fiscal Periods
	 	 	44	 
	8.13. Cash Interest Coverage Ratio
	 	 	44	 
	8.14. Leverage Ratio
	 	 	44	 
	8.15. Deferred Compensation Liability
	 	 	45	 






 


ii 









 






	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	Section 9. Events of Default
	 	 	45	 
	9.1. Payments
	 	 	45	 
	9.2. Representations etc.
	 	 	45	 
	9.3. Covenants
	 	 	46	 
	9.4. Default Under Other Agreements
	 	 	46	 
	9.5. Bankruptcy, etc.
	 	 	46	 
	9.6. ERISA
	 	 	46	 
	9.7. Security Documents
	 	 	47	 
	9.8. Guaranty
	 	 	47	 
	9.9. Judgments
	 	 	47	 
	9.10. Change of Control
	 	 	47	 
	 
	 	 	 	 
	Section 10. Definitions
	 	 	48	 
	 
	 	 	 	 
	Section 11. The Administrative Agent
	 	 	72	 
	11.1. Appointment
	 	 	72	 
	11.2. Delegation of Duties
	 	 	72	 
	11.3. Exculpatory Provisions
	 	 	72	 
	11.4. Reliance by Administrative Agent
	 	 	73	 
	11.5. Notice of Default
	 	 	73	 
	11.6. Non-Reliance on Administrative Agent and Other Lenders
	 	 	73	 
	11.7. Indemnification
	 	 	74	 
	11.8. The Administrative Agent in its Individual Capacity
	 	 	74	 
	11.9. Successor Administrative Agent
	 	 	74	 
	 
	 	 	 	 
	Section 12. Miscellaneous
	 	 	75	 
	12.1. Payment of Expenses, etc.
	 	 	75	 
	12.2. Right of Setoff
	 	 	75	 
	12.3. Notices
	 	 	76	 
	12.4. Benefit of Agreement; Assignments
	 	 	76	 
	12.5. No Waiver; Remedies Cumulative
	 	 	79	 
	12.6. Payments Pro Rata
	 	 	79	 
	12.7. Calculations; Computations
	 	 	80	 
	12.8. Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial
	 	 	80	 
	12.9. Counterparts
	 	 	81	 
	12.10. Effectiveness
	 	 	81	 
	12.11. Headings
	 	 	81	 
	12.12. Amendment or Waiver
	 	 	81	 
	12.13. Survival
	 	 	83	 
	12.14. Domicile of Loans
	 	 	83	 
	12.15. Confidentiality
	 	 	83	 
	12.16. Release of Liens and Guarantees
	 	 	83	 
	12.17. Integration
	 	 	83	 
	12.18. Acknowledgments
	 	 	84	 
	12.19. Joint and Several Liability; Postponement of Subrogation
	 	 	84	 
	12.20. PATRIOT Act
	 	 	85	 






 


iii 









 







ANNEXES:



	 	 	 	 	 
	1.1A 
	 	Commitments and Addresses

	1.1B 
	 	Mortgaged Properties

	1.1C 
	 	[Reserved]

	6.4 
	 	Litigation

	6.12 
	 	Taxes

	6.13 
	 	ERISA

	6.14 
	 	Subsidiaries

	6.16 
	 	Environmental Matters

	6.21 
	 	Regulation H

	8.3(d)	 	Existing Liens

	8.4(d)	 	Existing Indebtedness

	8.6(d)	 	Existing Investments

	8.10 
	 	Affiliate Transactions







EXHIBITS:




	 	 	 
	A
	 	Form of Notice of Borrowing

	B-1
	 	Form of [Tranche B] [Tranche C] Note

	B-2
	 	Form of Revolving Note

	C
	 	Form of Letter of Credit Request

	D
	 	Form of Assignment Agreement

	E
	 	Form of Closing Certificate

	F
	 	Form of Exemption Certificate

	G-1
	 	Form of Opinion of Cravath, Swaine & Moore

	G-2
	 	Form of Opinion of Bell Davis & Pitt

	H
	 	Form of Amended and Restated Guarantee and Collateral Agreement

	I
	 	Form of Real Property Mortgage

	J
	 	[Reserved]

	K
	 	Form of Compliance Certificate

	L
	 	Form of Credit Party Assignment Agreement






 


iv









 





SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 29, 2009, among PIKE ELECTRIC
CORPORATION (including its successors and permitted assigns, “Parent”), a Delaware
corporation, PIKE ELECTRIC, INC. (including its successors and permitted assigns, “OpCo”;
Parent and OpCo, each a “Borrower,” and together, the “Borrowers”), a North Carolina corporation,
the lending and other financial institutions listed from time to time in the Register (each a
“Lender” and, collectively, the “Lenders”), FIRST TENNESSEE BANK, NATIONAL
ASSOCIATION, as documentation agent (in such capacity, the “Documentation Agent”), J.P.
MORGAN SECURITIES INC., as syndication agent (the “Syndication Agent”), and BARCLAYS BANK PLC, as
administrative agent (the “Administrative Agent”). Unless otherwise defined herein, all
capitalized terms used herein and defined in Section 10 are used herein as so defined.



W I T N E S S E T H:




WHEREAS, OpCo is a party to the Amended and Restated Credit Agreement, dated as of July 1,
2004 (the “First Restatement” and as amended, supplemented or otherwise modified from time to time
prior to the amendment and restatement provided for herein, the “Existing Credit
Agreement”), among Parent, OpCo, the lending and other financial institutions listed from time
to time on Annex 1.1A thereto, the Arrangers referred to therein, the Syndication Agent referred to
therein and the Administrative Agent;



WHEREAS, Parent and OpCo have requested that the Existing Credit Agreement be amended and
restated as provided herein for the purposes, among others, of (i) reflecting the change of name of
Pike Holdings, Inc., to Pike Electric Corporation, (ii) adding Parent as a joint and several
Borrower under the Credit Agreement, (iii) extending the Revolving Facility Final Maturity Date and
(iv) making other modifications to the Existing Credit Agreement, as more fully set forth herein;
and



WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation
of the obligations and liabilities existing under the Existing Credit Agreement and which remain
outstanding, or evidence repayment of any of such obligations and liabilities, and that this
Agreement amend and restate in its entirety the Existing Credit Agreement and the obligations
outstanding thereunder;



NOW, THEREFORE, in consideration of the premises and the agreements hereinafter set forth, the
parties hereto hereby agree that on the Second Restatement Effective Date the Existing Credit
Agreement shall be, and hereby is, amended and restated to read in its entirety as follows:



SECTION 1. AMOUNT AND TERMS OF CREDIT.



1.1. Commitment. Subject to and upon the terms and conditions herein set forth, each Lender severally agrees
to make a loan or loans (each a “Loan” and, collectively, the “Loans”) to the
Borrowers, on a joint and several basis, which Loans shall be drawn, to the extent such Lender has
a Commitment under such Facility, under the Tranche B Term Facility, the Tranche C Term Facility,
the Revolving Facility and the Swingline Facility, as set forth below:




(a) Loans under the Tranche B Term Facility (each a “Tranche B Term Loan” and,
collectively, the “Tranche B Term Loans”) were made pursuant to a single borrowing on the
First Restatement Effective Date. Once repaid, Tranche B Term Loans may not be reborrowed.


 


 









 






(b) Loans under the Revolving Facility (each a “Revolving Loan” and,
collectively, the “Revolving Loans”) (i) shall be made, subject to the last sentence
of this Section 1.1(b), at any time and from time to time on and after the First Restatement
Effective Date and prior to the Revolving Facility Final Maturity Date, (ii) except as
hereinafter provided, may, at the option of either Borrower, be incurred and maintained as,
and/or converted into, ABR Loans or Eurodollar Loans, provided that all Revolving
Loans made as part of the same Borrowing shall, unless otherwise specifically provided
herein, consist of Revolving Loans of the same Type, (iii) may be repaid and reborrowed in
accordance with the provisions hereof, (iv) shall not exceed for any Lender at any time
outstanding that aggregate principal amount which, when added to the product of (x) such
Lender’s Revolving Percentage and (y) the sum of (I) the aggregate amount of Letter of
Credit Outstandings at such time and (II) the aggregate principal amount of all
Swingline Loans then outstanding, equals the Revolving Commitment of such Lender at such
time and (v) shall not exceed in aggregate principal amount at any time outstanding, when
added to the sum of (x) the aggregate amount of Letters of Credit Outstandings at such time
and (y) the aggregate principal amount of all Swingline Loans then outstanding, the Total
Revolving Commitment.




(c) Subject to and upon the terms and conditions herein set forth, the Swingline
Lender, in its individual capacity, agrees, at any time and from time to time after the
First Restatement Effective Date and prior to the Swingline Expiry Date, to make a loan or
loans (each a “Swingline Loan” and, collectively, the “Swingline Loans”) to
either Borrower, which Swingline Loans (i) shall be made and maintained as ABR Loans, (ii)
shall not exceed at any time outstanding the Swingline Commitment, (iii) shall not exceed in
aggregate principal amount at any time outstanding, when combined with (x) the aggregate
principal amount of all Revolving Loans then outstanding and (y) all Letter of Credit
Outstandings at such time, the Total Revolving Commitment then in effect and (iv) may be
repaid and reborrowed in accordance with the provisions hereof. On the Swingline Expiry
Date, all Swingline Loans shall be repaid in full. The Swingline Lender shall not make any
Swingline Loan after receiving a written notice from either Borrower or any Lender stating
that a Default or an Event of Default exists and is continuing until such time as the
Swingline Lender shall have received written notice of (i) rescission of all such notices
from the party or parties originally delivering such notice (which notice of rescission such
Person or Persons shall give to the Swingline Lender promptly upon the discontinuance of
such Default or Event of Default) or (ii) the waiver of such Default or Event of Default in
accordance with this Agreement. Also, the Swingline Lender shall not have any obligation to
make any Swingline Loan in the event a Lender Default exists unless the Swingline Lender has
entered into arrangements satisfactory to it and the Borrowers to eliminate the Swingline
Lender’s risk with respect to any such Defaulting Lender’s or Lenders’ obligations to fund
Mandatory Borrowings, including by collateralizing such Defaulting Lender’s or Lenders’
Revolving Percentages of the Swingline Loans outstanding from time to time. On any Business
Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders that all
then outstanding Swingline Loans shall be funded with a Borrowing of Revolving Loans
(provided that such notice shall be deemed to have been automatically given upon the
occurrence of an Event of Default under Section 9.5), in which case a Borrowing of Revolving
Loans constituting ABR Loans (each such Borrowing, a “Mandatory Borrowing”) shall be
made on the immediately succeeding Business Day by all Lenders with a Revolving Commitment
pro rata based on each of such Lender’s Revolving Percentages and the
proceeds thereof shall be applied directly to the Swingline Lender to repay such outstanding
Swingline Loans. Each Lender with a Revolving Loan Commitment hereby irrevocably agrees to
make such Revolving Loans upon one Business Day’s notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence and on the
date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount
of the Mandatory Borrowing may not comply with the minimum amount for a Borrowing specified in Section 1.2, (ii) whether any conditions
specified in Section 5 are then satisfied, (iii) the date of such Mandatory Borrowing and
(iv) any reduction in the Total Revolving Commitment after such Swingline Loans were made.
In the event that any Mandatory Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the commencement of
a proceeding under the Bankruptcy Code in respect of either Borrower), each Lender with a
Revolving Commitment hereby agrees that it shall forthwith purchase from the Swingline
Lender (without recourse or warranty), by assignment, such outstanding Swingline Loans as
shall be necessary to cause such Lenders to share in such Swingline Loans ratably based upon
their respective Revolving Percentages, provided that all interest payable on such
Swingline Loans shall be for the account of the Swingline Lender until the date the
respective purchase is made and, to the extent attributable to such purchase, shall be
payable to such Lender purchasing same from and after such date of purchase. Each Lender’s
obligations pursuant to the preceding sentence shall be absolute and unconditional.
Notwithstanding the foregoing provisions of this Section 1.1(c), there shall be no Swingline
Loans outstanding on the last day of any calendar quarter.


 


2









 






(d) Loans under the Tranche C Term Facility (each a “Tranche C Term Loan” and,
collectively, the “Tranche C Term Loans”) shall be made pursuant to a single borrowing on
the First Amendment Effective Date. Once repaid, Tranche C Term Loans may not be reborrowed.



1.2. Minimum Borrowing Amounts, etc. The aggregate principal amount of each Borrowing under a Facility shall not be less than the
Minimum Borrowing Amount for such Facility (except that Mandatory Borrowings shall be made in the
amounts required by Section 1.1(c)). More than one Borrowing may be incurred on any day,
provided that at no time shall there be outstanding more than twelve Borrowings of
Eurodollar Loans.



1.3. Notice of Borrowing. (a) Whenever either Borrower desires to incur Loans under any Facility (other than the
Swingline Facility and any Mandatory Borrowings), it shall give the Administrative Agent at its
Notice Office, prior to 12:00 Noon (New York time), at least three Business Days’ prior written
notice (or telephonic notice promptly confirmed in writing) of each Borrowing of Eurodollar Loans
and at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing of ABR Loans to be made hereunder. Each such notice (each a “Notice
of Borrowing”) shall be in the form of Exhibit A and shall specify (i) the Facility pursuant to
which such Borrowing is being made, (ii) the aggregate principal amount of the Loans to be made
pursuant to such Borrowing, (iii) the date of Borrowing (which shall be a Business Day) and (iv)
whether the respective Borrowing shall consist of ABR Loans or Eurodollar Loans and, if Eurodollar
Loans, the Interest Period to be initially applicable thereto. The Administrative Agent shall
promptly give each applicable Lender written notice (or telephonic notice promptly confirmed in
writing) of each proposed Borrowing, of such Lender’s proportionate share thereof and of the other
matters covered by the Notice of Borrowing.




(b) Whenever either Borrower desires to incur Swingline Loans hereunder, it shall give the
Swingline Lender no later than 12:00 Noon (New York time) on the day such Swingline Loan is to be
made, written notice (or telephonic notice promptly confirmed in writing) of such incurrence.
Each such notice shall specify in each case (i) the date of Borrowing (which shall be a Business
Day) and (ii) the aggregate principal amount of the Swingline Loans to be made pursuant to such
Borrowing.




(c) Mandatory Borrowings shall be made upon the notice specified in Section 1.1(c), with the
applicable Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the making
of Mandatory Borrowings as set forth in such Section.




(d) Without in any way limiting the obligation of the Borrowers to confirm in writing any
telephonic notice permitted to be given hereunder, the Administrative Agent may act prior to
receipt of written confirmation without liability upon the basis of such telephonic notice
believed by the Administrative Agent in good faith to be from an Authorized Officer of the
applicable Borrower as a person entitled to give telephonic notices under this Agreement on behalf
of such Borrower. In each such case, the Administrative Agent’s record of the terms of such
telephonic notice shall be conclusive absent manifest error.


 


3









 





1.4. Disbursement of Funds. (a) No later than 1:00 P.M. (2:00 P.M. in the case of Swingline Loans) (New York time) on
the date specified in each Notice of Borrowing, each Lender with a Commitment under the respective
Facility will make available its pro rata share of each Borrowing requested to be made on such date
in the manner provided below. All amounts shall be made available to the Administrative Agent in
Dollars and immediately available funds at the Payment Office, and the Administrative Agent
promptly will make available to the applicable Borrower by depositing to its account at the Payment
Office the aggregate of the amounts so made available in the type of funds received. Unless the
Administrative Agent shall have been notified by any Lender prior to the date of Borrowing that
such Lender does not intend to make available to the Administrative Agent its portion of the
Borrowing or Borrowings to be made on such date, the Administrative Agent may assume that such
Lender has made such amount available to the Administrative Agent on such date of Borrowing, and
the Administrative Agent, in reliance upon such assumption, may (in its sole discretion and without
any obligation to do so) make available to such Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Agent by such Lender and
the Administrative Agent has made available same to such Borrower, the Administrative Agent shall
be entitled to recover such corresponding amount from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the
Administrative Agent shall promptly notify such Borrower, and such Borrower shall immediately pay
such corresponding amount to the Administrative Agent. The Administrative Agent shall also be
entitled to recover from such Lender or such Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to such Borrower to the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to (x) if paid by such Lender, the
overnight Federal Funds Effective Rate or (y) if paid by such Borrower, the then applicable rate of
interest, calculated in accordance with Section 1.8, for the respective Loans.




(b) Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its
commitments hereunder or to prejudice any rights which the Borrowers may have against any Lender
as a result of any default by such Lender hereunder.



1.5. Evidence of Indebtedness. (a) Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing indebtedness of the Borrowers to such Lender resulting from each Loan of such
Lender from time to time, including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.




(b) The Administrative Agent, on behalf of the Borrowers, shall maintain the Register
pursuant to Section 12.4(c), and a subaccount therein for each Lender, in which shall be recorded
(i) the amount of each Loan made hereunder and any Note evidencing such Loan, the Type thereof and
each Interest Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from each Borrower to each Lender hereunder and (iii) both
the amount of any sum received by the Administrative Agent hereunder from each Borrower and each
Lender’s share thereof.




(c) The accounts of each Lender and the entries made in the Register maintained pursuant to
Sections 1.5(a) and (b), respectively, shall, to the extent permitted by applicable law, be prima
facie evidence of the existence and amounts of the obligations of each Borrower therein recorded;
provided, however, that the failure of any Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in any manner affect
the obligations of the Borrowers, which shall be joint and several, to repay (with applicable
interest) the Loans made to such Borrower by such Lender in accordance with the terms of this
Agreement.


 


4









 






(d) The Borrowers agree that, upon the request to the Administrative Agent by any Lender, the
applicable Borrower will execute and deliver to such Lender a promissory note of such Borrower
evidencing any Term Loans or Revolving Loans, as the case may be, of such Lender, substantially in
the form of Exhibit B-1 or B-2, respectively, with appropriate insertions as to date, principal
amount.



1.6. Conversions. The Borrowers shall have the option to convert on any Business Day all or a portion at
least equal to the applicable Minimum Borrowing Amount of the outstanding principal amount of the
Loans owing pursuant to a single Facility (other than under the Swingline Facility, with all
Swingline Loans to at all times be maintained as ABR Loans) into a Borrowing or Borrowings pursuant
to such Facility of another Type of Loan, provided that (i) except as otherwise provided in
Section 1.10(b), Eurodollar Loans may be converted into ABR Loans only on the last day of an
Interest Period applicable thereto and no partial conversion of a Borrowing of Eurodollar Loans
shall reduce the outstanding principal amount of the Eurodollar Loans made pursuant to such
Borrowing to less than the Minimum Borrowing Amount applicable thereto, (ii) ABR Loans may only be
converted into Eurodollar Loans if no Default or Event of Default is in existence on the date of
the conversion or, if a Default or an Event of Default is in existence on the date of the
conversion, if neither the Administrative Agent nor any Lender objects to such conversion, and
(iii) Borrowings of Eurodollar Loans resulting from this Section 1.6 shall be limited in numbers as
provided in Section 1.2. Each such conversion shall be effected by a Borrower giving the
Administrative Agent at its Notice Office, prior to 12:00 Noon (New York time), at least three
Business Days’ (or one Business Day’s, in the case of a conversion into ABR Loans) prior written
notice (or telephonic notice promptly confirmed in writing) (each a “Notice of Conversion”)
specifying the Loans to be so converted, the Type of Loans to be converted into and, if to be
converted into a Borrowing of Eurodollar Loans, the Interest Period to be initially applicable
thereto. The Administrative Agent shall give each Lender prompt notice of any such proposed
conversion affecting any of its Loans. Notwithstanding the foregoing or the provisions of Section
1.9, if a Default under Section 9.1 or an Event of Default is in existence at the time any Interest
Period in respect of any Borrowing of Eurodollar Loans is to expire and the Administrative Agent or
the Required Lenders have determined that a continuation of Eurodollar Loans as such is not
appropriate, such Loans may not be continued as Eurodollar Loans but instead shall be automatically
converted on the last day of such Interest Period into ABR Loans.



1.7. Pro Rata Borrowings. All Borrowings of Term Loans and Revolving Loans under this Agreement shall be made by the
Lenders pro rata  on the basis of their Term Commitments or Revolving Commitments, respectively. It
is understood that no Lender shall be responsible for any default by any other Lender in its
obligation to make Loans hereunder and that each Lender shall be obligated to make the Loans
provided to be made by it hereunder, regardless of the failure of any other Lender to fulfill its
commitments hereunder.



1.8. Interest. (a) The unpaid principal amount of each ABR Loan shall bear interest from the date of the
Borrowing thereof until maturity (whether by acceleration or otherwise) at a rate per annum which
shall at all times be the Applicable Margin plus the Alternate Base Rate in effect from
time to time.




(b) The unpaid principal amount of each Eurodollar Loan shall bear interest from the date of
the Borrowing thereof until maturity (whether by acceleration or otherwise) at a rate per annum
which shall at all times be the Applicable Margin plus the relevant Eurodollar Rate.


 


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(c) All overdue principal and, to the extent permitted by law, overdue interest in respect of
each Loan and any other overdue amount payable hereunder shall bear interest at a rate per annum
equal to the Alternate Base Rate in effect from time to time plus the sum of (i) 2% and
(ii) the Applicable Margin, provided that each Eurodollar Loan shall bear interest after
maturity (whether by acceleration or otherwise) until the end of the Interest Period then
applicable thereto at a rate per annum equal to 2% in excess of the rate of interest applicable
thereto at maturity.




(d) Interest shall accrue from and including the date of any Borrowing to but excluding the
date of any repayment thereof and shall be payable (i) in respect of each ABR Loan, quarterly in
arrears on the last Business Day of each March, June, September and December, commencing September
2004, (ii) in respect of each Eurodollar Loan, on the last day of each Interest Period applicable
thereto and, in the case of an Interest Period of six, nine or twelve months, on the date
occurring every three months after the first day of such Interest Period during such Interest
Period and (iii) in respect of each Loan (x) other than a Revolving Loan that is an ABR Loan, on
any prepayment or conversion (on the amount prepaid or converted) and (y) at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand.




(e) All computations of interest hereunder shall be made in accordance with Section 12.7(b).




(f) The Administrative Agent, upon determining the interest rate for any Borrowing of
Eurodollar Loans for any Interest Period, shall promptly notify the applicable Borrower and the
Lenders thereof.



1.9. Interest Periods. (a) At the time either Borrower gives a Notice of Borrowing or Notice of Conversion in
respect of the making of, or conversion into, a Borrowing of Eurodollar Loans (in the case of the
initial Interest Period applicable thereto) or prior to 12:00 Noon (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a Borrowing of Eurodollar
Loans, such Borrower shall have the right to elect by giving the Administrative Agent written
notice (or telephonic notice promptly confirmed in writing) of the Interest Period applicable to
such Borrowing, which Interest Period shall, at the option of such Borrower, be a one, two, three
or six month period (or, with the unanimous written consent of the Lenders under the applicable
Facility, a nine or twelve month period). Notwithstanding anything to the contrary contained
above:




(i) the initial Interest Period for any Borrowing of Eurodollar Loans shall commence on
the date of such Borrowing (including the date of any conversion from a Borrowing of ABR
Loans), and each Interest Period occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest Period expires;




(ii) if any Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month;




(iii) if any Interest Period would otherwise expire on a day which is not a Business
Day, such Interest Period shall expire on the next succeeding Business Day, provided
that if any Interest Period would otherwise expire on a day which is not a Business Day but
is a day of the month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;




(iv) no Interest Period shall extend beyond the applicable Final Maturity Date;


 


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(v) no Interest Period with respect to any Borrowing of Term Loans may be elected that
would extend beyond any date upon which a Scheduled Repayment in respect of such Term Loans
is required to be made if, after giving effect to the selection of such Interest Period, the
aggregate principal amount of Term Loans maintained as Eurodollar Loans with Interest
Periods ending after such date would exceed the aggregate principal amount of Term Loans
permitted to be outstanding after such Scheduled Repayment; and




(vi) no Interest Period may be elected at any time when both (x) a Default under
Section 9.1 or an Event of Default is then in existence, and (y) the Administrative Agent or
any Lender objects to such an election.




(b) If upon the expiration of any Interest Period, the applicable Borrower has failed to (or
may not) elect a new Interest Period to be applicable to the respective Borrowing of Eurodollar
Loans as provided above, such Borrower shall be deemed to have elected to convert such Borrowing
into a Borrowing of ABR Loans effective as of the expiration date of such current Interest Period.



1.10. Increased Costs, Illegality, etc. (a) In the event that (x) in the case of clause (i) below, the Administrative Agent or (y) in
the case of clauses (ii) and (iii) below, any Lender shall have determined (which determination
shall, absent manifest error, be final and conclusive and binding upon all parties hereto):




(i) on any date for determining the Eurodollar Rate for any Interest Period that, by
reason of any changes arising after the date of this Agreement affecting the interbank
Eurodollar market, adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of Eurodollar Rate; or




(ii) at any time, that such Lender shall incur increased costs or reductions in the
amounts received or receivable hereunder in an amount which such Lender deems material with
respect to any Eurodollar Loans (other than any increased cost or reduction in the amount
received or receivable resulting from the imposition of or a change in the rate of taxes or
similar charges) because of any change since the First Restatement Effective Date in any
applicable law, governmental rule, regulation, guideline or order (or in the interpretation
or administration thereof and including the introduction of any new law or governmental
rule, regulation, guideline or order) (such as, for example, but not limited to, a change in official reserve
requirements, but, in all events, excluding reserves required under Regulation D to the
extent included in the computation of the Eurodollar Rate); or




(iii) at any time that the making or continuance of any Eurodollar Loan has become
unlawful by compliance by such Lender in good faith with any change since the First
Restatement Effective Date in any law, governmental rule, regulation, guideline or order (or
interpretation or application thereof);



then, and in any such event, such Lender (or the Administrative Agent in the case of clause (i)
above) shall (x) on such date and (y) within ten Business Days of the date on which such event no
longer exists give notice (by telephone confirmed in writing) to the applicable Borrower and to the
Administrative Agent of such determination (which notice the Administrative Agent shall promptly
transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar
Loans shall no longer be available until such time as the Administrative Agent notifies such
Borrower and the Lenders that the circumstances giving rise to such notice by the Administrative
Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given by such Borrower
with respect to Eurodollar Loans which have not yet been incurred shall be deemed rescinded by such
Borrower or, in the case of a Notice of Borrowing, shall, at the option of such Borrower, be deemed
converted into a Notice of Borrowing for ABR Loans to be made on the date of Borrowing contained in
such Notice of Borrowing, (y) in the case of clause (ii) above, such Borrower shall pay to such
Lender, upon written demand therefor, such additional amounts (in the form of an increased rate of,
or a different method of calculating, interest or otherwise as such Lender in its sole discretion
shall determine) as shall be required to compensate such Lender for such increased costs or
reductions in amounts receivable hereunder (a written notice as to the additional amounts owed to
such Lender, showing the basis for the calculation thereof, submitted to such Borrower by such
Lender shall, absent manifest error, be final and conclusive and binding upon all parties hereto)
and (z) in the case of clause (iii) above, such Borrower shall take one of the actions specified
in Section 1.10(b) as promptly as possible and, in any event, within the time period required by
law.


 


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(b) At any time that any Eurodollar Loan is affected by the circumstances described in
Section 1.10(a)(ii) or (iii), the applicable Borrower may (and in the case of a Eurodollar Loan
affected pursuant to Section 1.10(a)(iii) the applicable Borrower shall) either (i) if the
affected Eurodollar Loan is then being made pursuant to a Borrowing, by giving the Administrative
Agent telephonic notice (confirmed promptly in writing) thereof on the same date that such
Borrower was notified by a Lender pursuant to Section 1.10(a)(ii) or (iii), cancel said Borrowing
or convert the related Notice of Borrowing into one requesting a Borrowing of ABR Loans, or (ii)
if the affected Eurodollar Loan is then outstanding, upon at least one Business Day’s notice to
the Administrative Agent, require the affected Lender to convert each such Eurodollar Loan into a
ABR Loan, provided that if more than one Lender is affected at any time, then all affected
Lenders must be treated the same pursuant to this Section 1.10(b).




(c) If any Lender shall have determined that after the First Restatement Effective Date, the
adoption or effectiveness of any applicable law, rule or regulation regarding capital adequacy, or
any change therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Lender or its holding company with any request or
directive regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, in each case made subsequent to the First
Restatement Effective Date, has or would have the effect of reducing by an amount deemed by such
Lender to be material the rate of return on such Lender’s or holding company’s capital or assets
as a consequence of its commitments or obligations hereunder to a level below that which such
Lender or holding company could have achieved but for such adoption, effectiveness, change or compliance (taking into
consideration such Lender’s policies with respect to capital adequacy), then from time to time,
within 15 days after demand by such Lender (with a copy to the Administrative Agent), the
applicable Borrower shall pay to such Lender such additional amount or amounts as will compensate
such Lender or holding company for such reduction. Each Lender, upon determining in good faith
that any additional amounts will be payable pursuant to this Section 1.10(c), will give prompt
written notice thereof to such Borrower, which notice shall set forth the basis of the calculation
of such additional amounts, although the failure to give any such notice shall not release or
diminish any of such Borrower’s obligations to pay additional amounts pursuant to this Section
1.10(c) upon the subsequent receipt of such notice.




(d) Notwithstanding any other provision of Section 1.10 or 2.5, no Lender shall demand
compensation for any increased cost or reduction or other amount referred to above or in Section
2.5 if it shall not at the time be the general policy or practice of such Lender to demand such
compensation in similar circumstances under comparable provisions of other credit agreements.


 


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1.11. Compensation. (a) The applicable Borrower shall compensate each Lender, upon its written request (which
request shall set forth the basis for requesting and the method of calculating such compensation),
for all reasonable losses, expenses and liabilities (including, without limitation, any loss,
expense or liability incurred by reason of the liquidation or reemployment of deposits or other
funds required by such Lender to fund its Eurodollar Loans) which such Lender may sustain: (i) if
for any reason (other than a default by such Lender or the Administrative Agent) a Borrowing of
Eurodollar Loans does not occur on a date specified therefor in a Notice of Borrowing or Notice of
Conversion (whether or not withdrawn by such Borrower or deemed withdrawn pursuant to Section
1.10(a)); (ii) if any repayment or conversion of any of its Eurodollar Loans occurs on a date which
is not the last day of an Interest Period applicable thereto; (iii) if any prepayment of any of its
Eurodollar Loans is not made on any date specified in a notice of prepayment given by such
Borrower; or (iv) as a consequence of (x) any other default by such Borrower to repay its
Eurodollar Loans when required by the terms of this Agreement or (y) an election made pursuant to
Section 1.10(b).




(b) Notwithstanding anything in this Agreement to the contrary, to the extent any notice
required by Section 1.10, 2.5 or 4.4 is given by any Lender more than 60 days after such Lender
obtained, or reasonably should have obtained, knowledge of the occurrence of the event giving rise
to the additional costs of the type described in such Section, such Lender shall not be entitled
to compensation under Section 1.10, 2.5 or 4.4 for any amounts incurred or accruing prior to the
giving of such notice to the applicable Borrower.



1.12. Change of Lending Office. Each Lender agrees that, upon the occurrence of any event giving rise to the operation of
Section 1.10(a)(ii) or (iii), 2.5 or 4.4 with respect to such Lender, it will, if requested by
either Borrower, use reasonable efforts (subject to overall policy considerations of such Lender)
to designate another lending office for any Loans affected by such event, provided that
such designation is made on such terms that such Lender and its lending office suffer no economic,
legal or regulatory disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of any such Section. Nothing in this Section 1.12 shall affect or postpone
any of the obligations of the Borrowers or the right of any Lender provided in Section 1.10 or 4.4.



1.13. Replacement of Lenders. In the event that: (i) any Lender is owed increased costs or additional amounts, (ii)
either Borrower receives notice from any Lender or the Administrative Agent under Section 1.10, 2.5
or 4.4, (iii) any Lender becomes a Defaulting Lender or (iv) in connection with any proposed
amendment, modification, termination, waiver or consent with respect to any of the provisions
hereof as contemplated by subsections (i) through (vii) of Section 12.12, the consent of Required
Lenders shall have been obtained but the consent of one or more of such other Lenders whose consent
is required shall not have been obtained; then, with respect to each such Lender, the Borrowers
shall have the right, unless such Lender has theretofore removed or cured the conditions which
resulted in the obligation to pay such increased costs or additional amounts or which caused it to
be a Defaulting Lender or failure to provide such consent, to replace in its entirety such Lender
(the “Replaced Lender”), on ten Business Days’ prior written notice to the Administrative
Agent and such Replaced Lender, with one or more other Persons (collectively, the “Replacement
Lender”) reasonably acceptable to the Administrative Agent and, to the extent required by
Section 12.4(b), reasonably acceptable to the Borrowers (which acceptance in either case shall not
be unreasonably withheld); provided, that: (i) at the time of any replacement pursuant to
this Section 1.13, the Replaced Lender and the Replacement Lender shall enter into one or more
Assignment Agreements, substantially in the form of Exhibit D (appropriately completed), pursuant
to which the Replacement Lender shall acquire all of the Commitment and outstanding Loans of the
Replaced Lender and, in connection therewith, shall pay to the Replaced Lender in respect thereof
an amount equal to the sum of (a) an amount equal to the principal of, and all accrued but unpaid
interest on, all outstanding Loans of the Replaced Lender and (b) an amount equal to all accrued,
but theretofore unpaid, Fees owing to the Replaced Lender pursuant to Section 3.1 and (c) any other
amounts payable to the Replaced Lender under this Agreement (including, without limitation, amounts
payable under Section 1.11) and (ii) a Defaulting Lender shall be a Replaced Lender only to the
extent permitted by law. Upon the execution of the respective assignment documentation, the
payment of amounts referred to in the preceding sentence and, if so requested by the Replacement
Lender, delivery to the Replacement Lender of appropriate Notes executed by the applicable
Borrower, the Replacement Lender shall become a Lender hereunder, and the Replaced Lender shall
cease to constitute a Lender hereunder, except with respect to indemnification provisions under
this Agreement, which shall survive as to such Replaced Lender.


 


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SECTION 2. LETTERS OF CREDIT.



2.1. Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, either Borrower may request
the Letter of Credit Issuer at any time and from time to time on any Business Day on or after the
First Restatement Effective Date and prior to the Revolving Facility Final Maturity Date to issue,
for the account of such Borrower and in support of (i) obligations of the Borrowers and/or their
respective Subsidiaries, contingent or otherwise, incurred in the ordinary course of their
respective businesses, (ii) obligations of the Borrowers and their respective Subsidiaries under
insurance policies or related to self-insurance obligations, (iii) obligations of the Borrowers and
their respective Subsidiaries related to surety bonds and (iv) such other obligations of the
Borrowers and their respective Subsidiaries to any other Person that are reasonably acceptable to
the Administrative Agent, and subject to and upon the terms and conditions herein set forth the
Letter of Credit Issuer agrees to issue from time to time, irrevocable letters of credit in such
form as may be approved by the Letter of Credit Issuer and the Administrative Agent (each such
letter of credit, a “Letter of Credit” and collectively, the “Letters of Credit”).
Letters of Credit issued under the Existing Credit Agreement shall continue to constitute Letters
of Credit hereunder.




(b) Notwithstanding the foregoing, (i) each Letter of Credit shall be denominated in Dollars,
(ii) no Letter of Credit shall be issued the Stated Amount of which, when added to the Letter
of Credit Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to or at the time of, the issuance of the relevant Letter of Credit) at such time, would
exceed either (x) $90,000,000 or (y) when added to the aggregate principal amount of all Revolving
Loans and Swingline Loans then outstanding, an amount equal to the Total Revolving Commitment at
such time (after giving effect to any reductions to the Total Revolving Commitment on such date)
and (iii) each Letter of Credit shall have an expiry date occurring not later than the earlier of
(x) one year after such Letter of Credit’s date of issuance although any Letter of Credit may be
automatically renewable for successive periods, which shall in no event extend beyond the date
referred to in clause (y) below, of up to 12 months (unless notice of non-renewal is given to the
applicable Borrower by the Letter of Credit Issuer, or such Letter of Credit does not include an
automatic renewal provision) and (y) five Business Days prior to the Revolving Facility Final
Maturity Date on terms acceptable to the Administrative Agent and the Letter of Credit Issuer.



2.2. Letter of Credit Requests; Notices of Issuance. (a) Whenever it desires that a Letter of Credit be issued, the requesting Borrower shall
give the Administrative Agent and the Letter of Credit Issuer written notice (including by way of
telecopier) in the form of Exhibit C prior to 1:00 P.M. (New York time) at least five Business Days
(or such shorter period as may be acceptable to the Letter of Credit Issuer) prior to the proposed
date of issuance (which shall be a Business Day) (each a “Letter of Credit Request”), which
Letter of Credit Request shall include an application for such Letter of Credit and any other
documents that the Letter of Credit Issuer customarily requires in connection therewith. The
Administrative Agent shall promptly notify each Revolving Lender of each Letter of Credit Request.




(b) The Letter of Credit Issuer shall, on the date of each issuance of a Letter of Credit by
it, give the Administrative Agent, each Revolving Lender and the requesting Borrower written notice
of the issuance of such Letter of Credit, accompanied by a copy to the Administrative Agent of the
Letter of Credit or Letters of Credit issued by it.


 


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2.3. Agreement to Repay Letter of Credit Drawings. (a) The Borrowers hereby agree to reimburse the Letter of Credit Issuer, by making payment
to the Administrative Agent in immediately available funds at the Payment Office, for any payment
or disbursement made by the Letter of Credit Issuer under any Letter of Credit (each such amount so
paid or disbursed until reimbursed, an “Unpaid Drawing”), not later than 1:00 P.M. (New
York time), on the Business Day immediately following the day that either Borrower receives notice
from the Letter of Credit Issuer of such Unpaid Drawing, with interest on the amount so paid or
disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to 1:00 P.M. (New
York time) on the date of such payment or disbursement, from and including the date paid or
disbursed to but not including the date the Letter of Credit Issuer is reimbursed therefor at a
rate per annum which shall be the rate then applicable to Revolving Loans that are ABR Loans
pursuant to Section 1.8(a) (plus an additional 2% per annum if not reimbursed by the third
Business Day after the date of such payment or disbursement), such interest also to be payable on
demand.




(b) The Borrowers’ obligation under this Section 2.3 to reimburse the Letter of Credit Issuer
with respect to Unpaid Drawings (including, in each case, interest thereon) shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which either Borrower may have or have had against the Letter of Credit Issuer,
the Administrative Agent or any Lender, including, without limitation, any defense based upon the
failure of any drawing under a Letter of Credit to conform to the terms of the Letter of Credit or
any non-application or misapplication by the beneficiary of the proceeds of such drawing;
provided that, to the extent such Borrower has derived no benefit therefrom, such Borrower shall not be
obligated to reimburse the Letter of Credit Issuer for any wrongful payment made by such Letter of
Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of such Letter of Credit Issuer, and provided,
further, that the foregoing shall not impair such Borrower’s right to claim damages
suffered as a result of such wrongful payment made.



2.4. Letter of Credit Participations. (a) Immediately upon the issuance by the Letter of Credit Issuer of any Letter of Credit,
the Letter of Credit Issuer shall be deemed to have sold and transferred to each Revolving Lender,
and each such Revolving Lender (each a “Participant”) shall be deemed irrevocably and
unconditionally to have purchased and received from such Letter of Credit Issuer, without recourse
or warranty, an undivided interest and participation, to the extent of such Participant’s Revolving
Percentage in such Letter of Credit, each substitute letter of credit, each drawing made thereunder
and the obligations of the Borrowers under this Agreement with respect thereto (although Letter of
Credit Fees shall be payable directly to the Administrative Agent for the account of the Revolving
Lenders as provided in Section 3.1(b) and the Participants shall have no right to receive any
portion of any Fronting Fees) and any security therefor or guaranty pertaining thereto. Upon any
change in the Revolving Commitment of any Revolving Lender pursuant to Section 12.4(b), it is
hereby agreed that, with respect to all then outstanding Letters of Credit and Unpaid Drawings,
there shall be an automatic adjustment to the participations pursuant to this Section 2.4 to
reflect the new Revolving Percentages of the assigning and assignee Revolving Lender.




(b) In determining whether to pay under any Letter of Credit, the Letter of Credit Issuer
shall not have any obligation relative to the Participants other than to determine that any
documents required to be delivered under such Letter of Credit have been delivered and that they
appear to comply on their face with the requirements of such Letter of Credit. Any action taken
or omitted to be taken by the Letter of Credit Issuer under or in connection with any Letter of
Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not
create for the Letter of Credit Issuer any resulting liability.


 


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(c) In the event that the Letter of Credit Issuer makes any payment under any Letter of
Credit and the Borrowers shall not have reimbursed such amount in full to the Letter of Credit
Issuer pursuant to Section 2.3(a), the Letter of Credit Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each Participant of such
failure, and each Participant shall promptly and unconditionally pay to the Administrative Agent
for the account of the Letter of Credit Issuer the amount of such Participant’s Revolving
Percentage of such payment in Dollars and in same day funds. If the Administrative Agent so
notifies any Participant required to fund a payment under a Letter of Credit prior to 11:00 A.M.
(New York time) on any Business Day, such Participant shall make available to the Administrative
Agent for the account of the Letter of Credit Issuer such Participant’s Revolving Percentage of
the amount of such payment on such Business Day in same day funds. If and to the extent such
Participant shall not have so made its Revolving Percentage of the amount of such payment
available to the Administrative Agent for the account of the Letter of Credit Issuer, such
Participant agrees to pay to the Administrative Agent for the account of the Letter of Credit
Issuer forthwith on demand such amount, together with interest thereon, for each day from such
date until the date such amount is paid to the Administrative Agent for the account of the Letter
of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Participant to
make available to the Administrative Agent for the account of the Letter of Credit Issuer its
Revolving Percentage of any payment under any Letter of Credit shall not relieve any other
Participant of its obligation hereunder to make available to the Administrative Agent for the
account of the Letter of Credit Issuer its Revolving Percentage of any payment under any Letter of
Credit on the date required, as specified above, but no Participant shall be responsible for the
failure of any other Participant to make available to the Administrative Agent for the account of the Letter of Credit Issuer
such other Participant’s Revolving Percentage of any such payment.




(d) Whenever the Letter of Credit Issuer receives a payment of a reimbursement obligation as
to which the Administrative Agent has received for the account of the Letter of Credit Issuer any
payments from the Participants pursuant to Section 2.4(c), the Letter of Credit Issuer shall pay
to the Administrative Agent and the Administrative Agent shall promptly pay to each Participant
which has paid its Revolving Percentage thereof, in Dollars and in same day funds, an amount equal
to such Participant’s Revolving Percentage of the principal amount thereof and interest thereon
accruing after the purchase of the respective participations.




(e) The obligations of the Participants to make payments to the Administrative Agent for the
account of the Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and
not subject to counterclaim, set-off or other defense or any other qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this Agreement under
all circumstances, including, without limitation, any of the following circumstances:




(i) any lack of validity or enforceability of this Agreement or any of the other Credit
Documents;




(ii) the existence of any claim, set-off, defense or other right which either Borrower
may have at any time against a beneficiary named in a Letter of Credit, any transferee of
any Letter of Credit (or any Person for whom any such transferee may be acting), the
Administrative Agent, the Letter of Credit Issuer, any Lender, or other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying transaction between either Borrower
and the beneficiary named in any such Letter of Credit);


 


12









 






(iii) any draft, certificate or other document presented under the 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;




(iv) the surrender or impairment of any security for the performance or observance of
any of the terms of any of the Credit Documents; or




(v) the occurrence of any Default or Event of Default.



2.5. Increased Costs. If after the First Restatement Effective Date, the adoption or effectiveness of any
applicable law, rule or regulation, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by the Letter of Credit Issuer or
any Lender with any request or directive (whether or not having the force of law) by any such
authority, central bank or comparable agency (in each case made subsequent to the First Restatement
Effective Date) shall either (i) impose, modify or make applicable any reserve, deposit, capital
adequacy or similar requirement against Letters of Credit issued by the Letter of Credit Issuer or
such Lender’s participation therein, or (ii) shall impose on the Letter of Credit Issuer or any
Lender any other conditions affecting this Agreement, any Letter of Credit or such Lender’s
participation therein; and the result of any of the foregoing is to increase the cost to the Letter
of Credit Issuer or such Lender of issuing, maintaining or participating in any Letter of Credit,
or to reduce the amount of any sum received or receivable by the Letter of Credit Issuer or such
Lender hereunder (other than any increased cost or reduction in the amount received or
receivable resulting from the imposition of or a change in the rate of taxes or similar charges),
then, upon demand to the applicable Borrower by the Letter of Credit Issuer or such Lender (a copy
of which notice shall be sent by the Letter of Credit Issuer or such Lender to the Administrative
Agent), such Borrower, subject to Section 1.11(b), shall pay to the Letter of Credit Issuer or such
Lender such additional amount or amounts as will compensate the Letter of Credit Issuer or such
Lender for such increased cost or reduction. A certificate submitted to such Borrower by the
Letter of Credit Issuer or any Lender, as the case may be (a copy of which certificate shall be
sent by the Letter of Credit Issuer or such Lender to the Administrative Agent), setting forth the
basis for the determination of such additional amount or amounts necessary to compensate the Letter
of Credit Issuer or any such Lender as aforesaid shall be conclusive and binding on such Borrower
absent manifest error, although the failure to deliver any such certificate shall not release or
diminish any of such Borrower’s obligations to pay additional amounts pursuant to this Section 2.5.



SECTION 3. FEES; COMMITMENTS.



3.1. Fees. (a) The Borrowers agree to pay to the Administrative Agent a commitment fee (the
“Commitment Fee”) for the account of each Lender (i) for the period from and including the
First Restatement Date to but not including the Second Restatement Date computed at a rate equal to
1/2 of 1% per annum on the average daily Lender’s Unutilized Commitment for such period and (ii) for
the period from and including the Second Restatement Effective Date to but not including the date
the Total Commitment has been terminated, computed at a rate for each day equal to 3/4 of 1% per
annum on the average daily Lender’s Unutilized Commitment for such period. Such Commitment Fee
shall be due and payable in arrears on the last Business Day of each March, June, September and
December and on the first date upon which all Commitments shall have been terminated, commencing in
September 2004.




(b) The Borrowers agree to pay to the Administrative Agent for the account of each Lender
pro rata on the basis of its Revolving Percentage a fee in respect of each outstanding Letter of
Credit (the “Letter of Credit Fee”) for each day computed at the rate equal to the
Applicable Margin for Revolving Loans that are Eurodollar Loans for such day on the Stated Amount
of such Letter of Credit on such day. Accrued Letter of Credit Fees shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and December of each
year and on the date upon which the Total Revolving Commitment is terminated, commencing in
September 2004.


 


13









 






(c) The Borrowers agree to pay to the Administrative Agent for the account of the Letter of
Credit Issuer a fee in respect of each Letter of Credit (the “Fronting Fee”) computed at
the rate of 1/4 of 1% per annum on the average daily Stated Amount of such Letter of Credit.
Accrued Fronting Fees shall be due and payable quarterly in arrears on the last Business Day of
each March, June, September and December of each year and on the date upon which the Total
Revolving Commitment is terminated, commencing in September 2004.




(d) The Borrowers agree to pay directly to the Letter of Credit Issuer upon each issuance of,
drawing under, and/or amendment or transfer by a beneficiary of, a Letter of Credit such amount as
shall at the time of such issuance, drawing, transfer or amendment be the administrative charge
which the Letter of Credit Issuer is customarily charging for issuances of, drawings under or
amendments or transfers of, letters of credit issued by it.




(e) The Borrowers shall pay to the Administrative Agent (x) on the Second Restatement
Effective Date for its own account and/or for distribution to the Lenders such fees as have
heretofore been agreed to by the Borrowers and the Administrative Agent and (y) for its own
account such other fees as may be agreed to from time to time between the Borrowers and the
Administrative Agent, when and as due.




(f) All computations of Fees shall be made in accordance with Section 12.7(b).



3.2. Voluntary Reduction of Commitments. Upon at least three Business Days’ prior written notice (or telephonic notice confirmed in
writing) to the Administrative Agent at its Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the Lenders), either Borrower shall have the right, without
premium or penalty, to terminate or partially reduce the Total Unutilized Revolving Commitment,
provided that (x) any such termination shall apply to proportionately and permanently
reduce the Revolving Commitment of each of the Lenders with such a Commitment and (y) any partial
reduction pursuant to this Section 3.2 shall be in the amount of at least $1,000,000 or a whole
multiple thereof.



3.3. Mandatory Adjustments of Commitments, etc.




(a) [Intentionally Omitted.]




(b) The Tranche C Term Commitment shall terminate in its entirety on the First Amendment
Effective Date (after giving effect to the making of the Tranche C Term Loans on such date).




(c) The Total Revolving Commitment (and the Revolving Commitment of each Lender) shall
terminate on the Revolving Facility Final Maturity Date.




(d) The Swingline Commitment shall terminate on the Swingline Expiry Date.




(e) The Total Revolving Commitment shall be permanently reduced at the times and in the
amounts required under Section 4.2(b)(iii).


 


14









 





SECTION 4. PAYMENTS.



4.1. Voluntary Prepayments. Either Borrower shall have the right to prepay Term Loans and/or Revolving Loans and/or
Swingline Loans, in whole or in part, without premium or penalty, from time to time on the
following terms and conditions: (i) such Borrower shall give the Administrative Agent at the
Payment Office written notice (or telephonic notice promptly confirmed in writing) of its intent to
prepay the Loans, whether such Loans are Term Loans, Revolving Loans or Swingline Loans, the amount
of such prepayment and (in the case of Eurodollar Loans) the specific Borrowing(s) pursuant to
which made, which notice shall be received by the Administrative Agent by 11:00 A.M. (New York
time) one Business Day prior to the date of such prepayment (or 11:00 A.M. on the date of
prepayment, in the case of Swingline Loans), which notice shall promptly be transmitted by the
Administrative Agent to each of the Lenders; (ii) each partial prepayment of any Borrowing shall be
in an aggregate principal amount of at least $1,000,000 in the case of Eurodollar Loans, $500,000
in the case of ABR Loans or $100,000 in the case of Swingline Loans, provided that no
partial prepayment of Eurodollar Loans made pursuant to a Borrowing shall reduce the aggregate
principal amount of the Loans outstanding pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount applicable thereto; (iii) each
prepayment in respect of any Loans made pursuant to a Borrowing shall
be applied pro rata
among such Loans; and (iv) each prepayment of Term Loans pursuant to this Section 4.1 shall be
applied to the Tranche B Term Facility and the Tranche C Term Facility ratably and to the then
remaining Scheduled Repayments thereof as directed by such Borrower.



4.2. Mandatory Prepayments.




(a) Requirements:




(i) If on any date (after giving effect to any other repayments or prepayments on such
date) the sum of (i) the aggregate outstanding principal amount of Revolving Loans and
Swingline Loans plus (ii) the aggregate amount of Letter of Credit Outstandings
exceeds the Total Revolving Commitment as then in effect, the Borrowers shall repay on such
date that principal amount of Swingline Loans and, after Swingline Loans have been paid in
full, Unpaid Drawings and, after Unpaid Drawings have been paid in full, Revolving Loans, in
an aggregate amount equal to such excess. If, after giving effect to the prepayment of all
outstanding Swingline Loans, Unpaid Drawings and Revolving Loans, the aggregate amount of
Letter of Credit Outstandings exceeds the Total Revolving Commitment as then in effect (any
such excess, a “Total Revolving Commitment Excess Amount”), the Borrowers shall pay
to the Administrative Agent an amount in cash and/or Cash Equivalents equal to such Total
Revolving Commitment Excess Amount, and the Administrative Agent shall hold such payment as
security for the obligations of the Borrowers hereunder pursuant to a cash collateral
agreement to be entered into in form and substance reasonably satisfactory to the
Administrative Agent and the Borrowers which shall permit certain investments in Cash
Equivalents satisfactory to the Administrative Agent and the Borrowers, until the proceeds
are applied to the Obligations, and which shall provide that a portion of the balance, if
any, held in a cash collateral account established under such cash collateral agreement
equal to the amount by which such balance exceeds the Total Revolving Commitment Excess
Amount from time to time, shall be released to the Borrowers, provided that (x) as a
result of such release, a mandatory prepayment shall not be required under the first
sentence of this paragraph (a)(i) unless such prepayment is made concurrently with such
release and (y) immediately after giving effect thereto, no Default or Event of Default
shall have occurred or be continuing or would result from such release.


 


15









 






(ii) (A) The Borrowers shall be required to repay the principal amount of the Tranche
B Term Loans on the last day of March, June, September and December of each year and on the
Tranche B Term Facility Final Maturity Date, commencing September 30, 2004 (each such
repayment, as the same may be reduced as provided in Sections 4.1 and 4.2(b), a “Tranche
B Term Loan Scheduled Repayment”), each such installment on any such date to be in the
amount set forth below opposite such date:



	 	 	 	 	 
	Date	 	Installment Amount	 
	 
	 	 	 	 
	September 30, 2004
	 	$	750,000	 
	December 31, 2004
	 	$	750,000	 
	March 31, 2005
	 	$	750,000	 
	June 30, 2005
	 	$	750,000	 
	September 30, 2005
	 	$	750,000	 
	December 31, 2005
	 	$	750,000	 
	March 31, 2006
	 	$	750,000	 
	June 30, 2006
	 	$	750,000	 
	September 30, 2006
	 	$	750,000	 
	December 31, 2006
	 	$	750,000	 
	March 31, 2007
	 	$	750,000	 
	June 30, 2007
	 	$	750,000	 
	September 30, 2007
	 	$	750,000	 
	December 31, 2007
	 	$	750,000	 
	March 31, 2008
	 	$	750,000	 
	June 30, 2008
	 	$	750,000	 
	September 30, 2008
	 	$	750,000	 
	December 31, 2008
	 	$	750,000	 
	March 31, 2009
	 	$	750,000	 
	June 30, 2009
	 	$	750,000	 
	September 30, 2009
	 	$	750,000	 
	December 31, 2009
	 	$	750,000	 
	March 31, 2010
	 	$	750,000	 
	June 30, 2010
	 	$	750,000	 
	September 30, 2010
	 	$	750,000	 
	December 31, 2010
	 	$	750,000	 
	March 31, 2011
	 	$	750,000	 
	June 30, 2011
	 	$	750,000	 
	September 30, 2011
	 	$	750,000	 
	December 31, 2011
	 	$	750,000	 
	March 31, 2012
	 	$	750,000	 
	Tranche
B Term Facility
 Final Maturity Date
	 	All amounts outstanding in respect
of the Tranche B Term Loans





 


16









 






(B) The Borrowers shall be required to repay the principal amount of the Tranche C Term
Loans on the last day of March, June, September and December of each year and on the Tranche
C Term Facility Final Maturity Date, commencing March 31, 2005 (each such repayment, as the
same may be reduced as provided in Sections 4.1 and 4.2(b), a “Tranche C Term Loan
Scheduled Repayment”), each such installment on any such date to be in the amount set
forth below opposite such date:




	 	 	 	 	 
	Date	 	Installment Amount	 
	 
	 	 	 	 
	March 31, 2005
	 	$	375,000	 
	June 30, 2005
	 	$	375,000	 
	September 30, 2005
	 	$	375,000	 
	December 31, 2005
	 	$	375,000	 
	March 31, 2006
	 	$	375,000	 
	June 30, 2006
	 	$	375,000	 
	September 30, 2006
	 	$	375,000	 
	December 31, 2006
	 	$	375,000	 
	March 31, 2007
	 	$	375,000	 
	June 30, 2007
	 	$	375,000	 
	September 30, 2007
	 	$	375,000	 
	December 31, 2007
	 	$	375,000	 
	March 31, 2008
	 	$	375,000	 
	June 30, 2008
	 	$	375,000	 
	September 30, 2008
	 	$	375,000	 
	December 31, 2008
	 	$	375,000	 
	March 31, 2009
	 	$	375,000	 
	June 30, 2009
	 	$	375,000	 
	September 30, 2009
	 	$	375,000	 
	December 31, 2009
	 	$	375,000	 
	March 31, 2010
	 	$	375,000	 
	June 30, 2010
	 	$	375,000	 
	September 30, 2010
	 	$	375,000	 
	December 31, 2010
	 	$	375,000	 
	March 31, 2011
	 	$	375,000	 
	June 30, 2011
	 	$	375,000	 
	September 30, 2011
	 	$	375,000	 
	December 31, 2011
	 	$	375,000	 
	March 31, 2012
	 	$	375,000	 
	June 30, 2012
	 	$	375,000	 
	September 30, 2012
	 	$	375,000	 
	Tranche C
Term Facility
Final Maturity Date
	 	All amounts outstanding in respect
 of the Tranche C Term Loans







(iii) On or before the third Business Day following the date of receipt thereof by
Parent and/or any of its Subsidiaries of the Cash Proceeds from any Asset Sale, Qualified
Sale/Leaseback Transaction or Recovery Event occurring after the Original Borrowing Date, an
amount equal to 100% of the Net Cash Proceeds then received from such Asset Sale, Recovery
Event or Qualified Sale/Leaseback Transaction shall be applied as a mandatory repayment of
principal of the then outstanding Term Loans and then in accordance with Section
4.2(b)(iii), provided that Net Cash Proceeds from Asset Sales or Recovery Events
from and after the Original Borrowing Date shall not be required to be used to so repay Term
Loans or applied in accordance with Section 4.2(b)(iii) to the extent either Borrower
elects, as hereinafter provided, to cause such Net Cash Proceeds to be reinvested in
Reinvestment Assets (a “Reinvestment Election”) on or prior to the Reinvestment
Prepayment Date; provided, further, that if any such Net Cash Proceeds are
not so reinvested on or prior to the Reinvestment Prepayment Date, such Net Cash Proceeds
shall promptly thereafter be applied toward prepayments of the Term Loans in accordance with
this paragraph and then in accordance with Section 4.2(b)(iii); provided
further



 


17









 






that no such repayment pursuant to this Section 4.2(a)(iii) will be required
to be made until the aggregate Net Cash Proceeds required to be applied pursuant to this
Section 4.2(a)(iii) and not yet so applied equals $1,000,000, at which time all such Net
Cash Proceeds in excess of such $1,000,000 shall be so applied. Either Borrower may
exercise its Reinvestment Election (within the parameters specified in the preceding
sentence) with respect to an Asset Sale or Recovery Event if (x) the Reinvestment Test is
satisfied on the date of delivering the Reinvestment Notice referred to below and (y) such
Borrower delivers a Reinvestment Notice to the Administrative Agent by the third Business
Day following the date of the consummation of the respective Asset Sale or the date of such
Recovery Event, with such Reinvestment Election being effective with respect to the Net Cash
Proceeds of such Asset Sale or Recovery Event equal to the Anticipated Reinvestment Amount
specified in such Reinvestment Notice, provided that the Borrowers shall not be
required to deliver a Reinvestment Notice to the Administrative Agent with respect to
reinvestments in Reinvestment Assets unless and until the aggregate Net Cash Proceeds
required to be applied pursuant to this Section 4.2(a)(iii) equals at least $750,000.




(iv) On or before the third Business Day following the date of the receipt thereof by
Parent and/or any of its Subsidiaries, an amount equal to 100% of the cash proceeds (net of
reasonable and documented underwriting discounts and commissions, other banking and
investment banking fees, attorneys’, advisors’, consultants’ and accountants’ fees and other
customary fees and other costs associated therewith) of the incurrence of Indebtedness by
Parent and/or any of its Subsidiaries (other than Indebtedness permitted by Section 8.4),
shall be applied as a mandatory repayment of principal of the then outstanding Term Loans
and then in accordance with Section 4.2(b)(iii).




(v) [Intentionally Omitted.]




(vi) On or before each date which is three Business Days after the earlier of (i) the
date on which the financial statements of Parent referred to in Section 7.1(a), for the
fiscal year of Parent and its Subsidiaries with respect to such prepayment is made, are
required to be delivered to the Lenders and (ii) the date such financial statements are
actually delivered (commencing with the fiscal year ending on June 30, 2005), an amount
equal to the excess, if any, of (x) Excess Cash Flow for such fiscal year,
multiplied by the Applicable Prepayment Percentage for such fiscal year of Parent
and its Subsidiaries over (y) the aggregate principal amount of Term Loans prepaid
during such fiscal year pursuant to Section 4.1, shall be applied as a mandatory repayment
of principal of the then outstanding Term Loans and then in accordance with Section
4.2(b)(iii).




(vii) On the Reinvestment Prepayment Date with respect to a Reinvestment Election, an
amount equal to the Reinvestment Prepayment Amount, if any, for such Reinvestment Election
shall be applied as a repayment of the principal amount of the then outstanding Term Loans
and then in accordance with Section 4.2(b)(iii).




(viii) Two Business Days after the Borrowers receive a cash refund of the Adjusted
Purchase Price pursuant to Section 1.06 of the Acquisition Agreement in connection with an
increase in the amount of the Deferred Compensation Liability, an amount equal to 100% of
such cash refund shall be applied as a mandatory prepayment of the principal of the then
outstanding Term Loans.


 


18









 






(b) Application:




(i) Each mandatory repayment of Term Loans required to be made pursuant to Sections
4.2(a)(iii), (iv), (vii) or (viii) shall be applied to the Tranche B Term Facility and the
Tranche C Term Facility ratably and to the repayment of the then remaining applicable
Scheduled Repayments on a pro rata basis (based upon the then remaining
principal amount of each such Scheduled Repayment). Each mandatory prepayment of Term Loans
required to be made pursuant to Section 4.2(a)(vi) shall be applied to the Tranche B Term
Facility and the Tranche C Term Facility ratably and shall be applied to the repayment of
the then remaining applicable Scheduled Repayments of each such Facility in the direct order
of maturity.




(ii) With respect to each prepayment of Loans required by Section 4.2, either Borrower
may designate the Types of Loans which are to be prepaid and the specific Borrowing(s) under
the affected Facility pursuant to which made, provided that (i) either Borrower
shall first so designate all ABR Loans and Eurodollar Loans under an affected Facility
with Interest Periods ending on the date of repayment prior to designating any other
Eurodollar Loans and (ii) each prepayment of any Loans made pursuant to a Borrowing shall be
applied pro rata among such Loans. If either Borrower is required by this
Section 4.2 (other than pursuant to Section 4.2(a)(ii)) to repay any Eurodollar Loans and
such prepayment will result in the applicable Borrower being required to pay breakage costs
under Section 1.11 (any such Eurodollar Loans, “Affected Loans”), such Borrower may
elect, by notice to the Administrative Agent, to have the provisions of the following
sentence be applicable. At the time any Affected Loans are otherwise required to be
prepaid, such Borrower may elect to deposit 100% (or such lesser percentage elected by the
Borrower) of the principal amounts that otherwise would have been paid in respect of the
Affected Loans with the Administrative Agent to be held as security for the obligations of
such Borrower hereunder pursuant to a cash collateral agreement to be entered into in form
and substance reasonably satisfactory to the Administrative Agent, with such cash collateral
to be released from such cash collateral account (and applied to repay the principal amount
of such Loans) upon each occurrence thereafter of the last day of an Interest Period
applicable to the relevant Loans (or such earlier date or dates as shall be requested by
such Borrower), with the amount to be so released and applied on the last day of each
Interest Period to be the amount of the relevant Loans to which such Interest Period applies
(or, if less, the amount remaining in such cash collateral account). In the absence of a
designation and/or election by such Borrower as described in the preceding sentences, the
Administrative Agent shall, subject to the first sentence of this paragraph, make such
designation in its sole discretion with a view, but no obligation, to minimize breakage
costs owing under Section 1.11.




(iii) If the Term Loans shall have been prepaid in full, then, on each occasion that a
mandatory prepayment under Sections 4.2(a)(iii), (v), (vi) or (vii) would have been required
if Term Loans were outstanding, the Revolving Commitments shall be reduced by the amount of
the prepayment that would have been so required. Any such reduction shall be accompanied by
a prepayment of the Revolving Loans and/or Swingline Loans and/or a cash collateralization
of Letter of Credit Outstandings to the extent required by Section 4.2(a)(i).


 


19









 





4.3. Method and Place of Payment. Except as otherwise specifically provided herein, all payments under this Agreement shall
be made to the Administrative Agent for the ratable (based on its pro rata share)
account of the Lenders entitled thereto, not later than 1:00 P.M. (New York time) on the date when
due and shall be made in immediately available funds and in lawful money of the United States of
America at the Payment Office, it being understood that written notice by either Borrower to the
Administrative Agent to make a payment from the funds in such Borrower’s account at the Payment
Office shall constitute the making of such payment to the extent of such funds held in such
account. Any payments made by either Borrower under this Agreement which are made later than 1:00
P.M. (New York time) shall be deemed to have been made by such Borrower on the next succeeding
Business Day. Whenever any payment to be made hereunder shall be stated to be due on a day which
is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day,
and, with respect to payments of principal, interest shall be payable during such extension at the
applicable rate in effect immediately prior to such extension.



4.4. Net Payments. (a) All payments made by the Borrowers hereunder, under any Note or any other Credit
Document, will be made without setoff, counterclaim or other defense. Unless required by law, all
such payments will be made free and clear of, and without deduction or withholding for, any present
or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now
or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority
thereof or therein. If any taxes are so levied or imposed (but excluding, with respect to the Administrative Agent, the
Arrangers, the Syndication Agent, any Lender or any other recipient of any such payment, (i) any
tax imposed on or measured by the net income (or any franchise tax based on net or gross income) of
such recipient pursuant to the laws of the United States or of the jurisdiction (or any political
subdivision or taxing authority thereof or therein) under which such recipient is organized or in
which the principal office or applicable lending office of such recipient is located or (ii) any
branch profits taxes imposed by the United States or any similar tax imposed under the laws of any
political subdivision or taxing authority of any such jurisdiction in which the Borrower is
located) and all interest, penalties or similar liabilities with respect thereto (collectively,
“Taxes”), the Borrowers agree to pay or cause to be paid the full amount of such Taxes and
such additional amounts (after payment of all Taxes) as may be necessary so that every payment of
all amounts due hereunder, under any Note or under any other Credit Document, after withholding or
deduction for or on account of any Taxes, will not be less than the amount provided for herein or
in such Note or in such other Credit Document, provided, however, that the
Borrowers shall not be required to increase any such amounts payable to any Lender with respect to
any Taxes (i) that are attributable to such Lender’s failure to comply with the requirements of
Section 4.4(b) or (ii) that are United States withholding taxes imposed on amounts payable to such
Lender at the time the Lender becomes a party to this Agreement (or designates a new lending
office), except to the extent that such Lender (or its assignor, if any) was entitled, at the time
of assignment (or designation of a new lending office), to receive additional amounts from the
Borrowers with respect to such Taxes pursuant to this Section 4.4(a). The Borrowers will furnish
to the Administrative Agent within 45 days after the date the payment of any Taxes, or any
withholding or deduction on account thereof, is due pursuant to applicable law certified copies of
tax receipts evidencing such payment by the Borrowers. The Borrowers will indemnify and hold
harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent or such
Lender upon its written request, for the amount of any Taxes levied or imposed and paid or withheld
by the Administrative Agent or such Lender, provided however, that the Borrowers
shall not be obligated to reimburse the Administrative Agent or such Lender in respect of
penalties, interest or similar liabilities attributable to any such Taxes if (i) such penalties,
interest or similar liabilities are attributable to a failure or delay by the Administrative Agent
or such Lender to make a written request therefor or (ii) such penalties, interest or similar
liabilities have accrued after the Borrowers had indemnified the Administrative Agent or such
Lender for the Taxes to which such penalties, interest or similar liabilities are attributable.


 


20









 






(b) Each Lender that is not a United States person as such term is defined in Section
7701(a)(30) of the Code (a “Non-U.S. Lender”) agrees to deliver to the Borrowers and the
Administrative Agent (i) on or prior to the date the Lender becomes a Lender two accurate and
complete original signed copies of Internal Revenue Service Form W-8BEN or W-8ECI (or successor
forms) certifying to such Lender’s entitlement to a reduced rate or complete exemption from United
States withholding tax with respect to payments to be made under this Agreement and under any Note
and under any other Credit Document, or (ii) if the Non-U.S. Lender is not a “bank” within the
meaning of Section 881(c)(3)(A) of the Code and is claiming an exemption from U.S. withholding tax
under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest,” (x) a
duly executed certificate substantially in the form of Exhibit F (any such certificate, an
“Exemption Certificate”) and (y) two accurate and complete original signed copies of
Internal Revenue Service Form W-8BEN (or successor form). In addition, each Non-U.S. Lender
agrees that from time to time upon the reasonable request by either Borrower or the Administrative
Agent when a lapse in time or change in circumstances renders the previous certification obsolete
or inaccurate in any material respect, it will deliver to such Borrower and the Administrative
Agent two new accurate and complete original signed copies of the relevant form or Exemption
Certificate, as the case may be, and such other forms as may be required in order to conform or
establish the entitlement of such Non-U.S. Lender to a continued complete exemption from United
States withholding tax with respect to payments under this Agreement and any Note, or it shall
immediately notify such Borrower and the Administrative Agent of
its inability to deliver any such form or Exemption Certificate. Notwithstanding any other
provision of this Section 4.4, a Non-U.S. Lender shall not be required to deliver any form
pursuant to this Section 4.4(b) that such Non-U.S. Lender is not legally able to deliver.




(c) If the Administrative Agent, any Arranger, the Syndication Agent or any Lender receives a
refund in respect of any Taxes to which it has been indemnified by the Borrowers or with respect
to which either Borrower has paid additional amounts pursuant to this Section 4.4, it shall within
30 days from the date of such receipt pay over such refund to such Borrower (but only to the
extent of indemnity payments made, or additional amounts paid by the Borrower under this Section
4.4 with respect to the Taxes or other taxes giving rise to such refund), net of all out-of-pocket
expenses with respect to such refund and without interest (other than interest paid by the
relevant Governmental Authority with respect to such refund); provided, however,
that such Borrower, upon the reasonable request of such Lender, the Administrative Agent, any
Arranger or the Syndication Agent, agrees to repay the amount paid over to such Borrower
(plus penalties, interest or other charges imposed by the relevant taxing authority) to
such person in the event such person is required to repay such refund to such Governmental
Authority.



SECTION 5. CONDITIONS PRECEDENT.



5.1. Conditions Precedent to Effectiveness. [Intentionally Omitted]



5.2. Conditions Precedent to All Credit Events. The obligation of the Lenders to make each Loan hereunder, and the obligation of the Letter
of Credit Issuer to issue Letters of Credit hereunder, is subject, at the time of each such Credit
Event, to the satisfaction of the conditions that at the time of each Credit Event and also after
giving effect thereto, (i) there shall exist no Default or Event of Default and (ii) all
representations and warranties contained herein or in the other Credit Documents in effect at such
time shall be true and correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such Credit Event, except to
the extent that such representations and warranties expressly relate to an earlier date.



The acceptance of the benefits of each Credit Event shall constitute a representation and
warranty by Parent and OpCo to each of the Lenders that all of the applicable conditions specified
in Section 5.1 and/or 5.2, as the case may be (other than the required satisfaction of the
Administrative Agent or any Lender as specified therein), exist as of that time. All of the
certificates, legal opinions and other documents and papers referred to in this Section 5, unless
otherwise specified, shall be delivered to the Administrative Agent at its Notice Office for the
account of each of the Lenders.



5.3. Conditions Precedent to Second Restatement Effective Date. This Agreement shall become effective automatically upon the satisfaction of the conditions
precedent set forth in the Sixth Amendment without the necessity of further action on the part of
any Person, whereupon this Agreement will replace the Existing Credit Agreement as amended through
the Sixth Amendment.


 


21









 





SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.



To induce the Lenders to enter into this Agreement and to make the Loans and issue and/or
participate in Letters of Credit provided for herein, each of Parent and OpCo makes the following
representations and warranties to, and agreements with, the Lenders as of the Second Restatement
Effective Date (or as of any earlier date to which such representation and warranty specifically
relates), all of which shall survive the execution and delivery of this Agreement and the making of
the Loans (with the making of each Credit Event thereafter being deemed to constitute a
representation and warranty that the matters specified in this Section 6 are true and correct in
all material respects on and as of the date of each such Credit Event unless such representation
and warranty expressly indicates that it is being made as of any specific date):



6.1. Corporate Status; Compliance with Law. Each of Parent and its Subsidiaries (i) is a duly organized and validly existing
corporation or limited liability company in good standing under the laws of the jurisdiction of its
organization and has the corporate or limited liability company power and authority to own its
property and assets and to transact the business in which it is engaged and presently proposes to
engage on the date hereof, (ii) has duly qualified and is authorized to do business and is in good
standing in all jurisdictions where it is required to be so qualified and where the failure to be
so qualified would have a Material Adverse Effect and (iii) is in compliance with all Requirements
of Law, except to the extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.



6.2. Power and Authority. Each Credit Party has the corporate or limited liability company power and authority to
execute, deliver and carry out the terms and provisions of the Documents to which it is a party and
has taken all necessary corporate or limited liability company action to authorize the execution,
delivery and performance of the Documents to which it is a party. Each Credit Party has duly
executed and delivered each Document to which it is a party, and each such Document constitutes the
legal, valid and binding obligation of such Person enforceable in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors’ rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law).



6.3. No Violation. Neither the execution, delivery and performance by any Credit Party of the Documents to
which it is a party nor compliance with the terms and provisions thereof, nor the consummation of
the transactions contemplated therein (i) will contravene any applicable provision of any law,
statute, rule, regulation, order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict or be inconsistent with or result in any breach of, any of the
terms, covenants, conditions or provisions of, or constitute a default under, or (other than
pursuant to the Security Documents) result in the creation or imposition of (or the obligation to
create or impose) any Lien upon any of the property or assets of Parent, OpCo or any of their
respective Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, agreement
or other instrument to which Parent, OpCo or any of their respective Subsidiaries is a party or by
which it or any of its property or assets are bound or to which it may be subject or (iii) will
violate any provision of the charter or by-laws or limited liability company agreement of Parent,
OpCo or any of their respective Subsidiaries, other than, in the case of clauses (i) and (ii), any
contravention, conflict, inconsistency, breach, default or Lien which could not reasonably be
expected to have a Material Adverse Effect.


 


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6.4. Litigation. Except as set forth on Annex 6.4, there are no actions, suits or proceedings pending or
threatened in writing with respect to Parent, OpCo or any of their respective Subsidiaries (i) that
are likely to have a material adverse effect on the business, property, operations or financial
condition of Parent and its Subsidiaries taken as a whole or (ii) that could reasonably be expected
to have a material adverse effect on the validity or enforceability of this Agreement or any of the
other Credit Documents or the rights or remedies of the Administrative Agent or the Lenders
hereunder or thereunder.



6.5. Use of Proceeds; Margin Regulations. (a) [Intentionally Omitted]




(b) The proceeds of all Revolving Loans shall be utilized for working capital and other
general corporate purposes of the Borrowers and their respective Subsidiaries; provided
that no portion of the proceeds of any Revolving Loan may be used to make payments in respect of,
or provide collateral securing obligations under, any Permitted Letter of Credit Facility.




(c) No part of the proceeds of any Loans will be used for any purpose which violates the
provisions of the Regulations of the Board of Governors of the Federal Reserve System and any
successor thereto.



6.6. Governmental Approvals. Except for any filings required under the Security Documents, no order, consent, approval,
license, authorization, or validation of, or filing, recording or registration with, or exemption
by, any foreign or domestic governmental or public body or authority, or any subdivision thereof,
is required to authorize or is required in connection with (i) the execution, delivery and
performance of any Credit Document or (ii) the legality, validity, binding effect or enforceability
of any Credit Document.



6.7. Investment Company Act. None of Parent, OpCo or any of their respective Subsidiaries is an “investment company”
within the meaning of the Investment Company Act of 1940, as amended (the “ICA”) or a
company “controlled” by an “investment company” within the meaning of the ICA (other than any
investment company which has been exempted from all provisions of the ICA pursuant to an order of
the SEC under Section 6(c) of the ICA).



6.8. Public Utility Holding Company Act. [Intentionally Omitted].



6.9. True and Complete Disclosure. (a) All information and data (excluding projections) concerning each of Parent, OpCo and
their respective Subsidiaries and the transactions contemplated herein which have been prepared by
Parent and OpCo and that have been made available to the Administrative Agent or any Lender by or
on behalf of Parent and OpCo prior to the Second Restatement Effective Date in connection with the
transactions contemplated herein, when taken as a whole, do not and will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements contained therein not materially misleading, provided that as to any such
information that is specified as having been supplied by third parties other than third parties that are Affiliates of the Borrowers at the
time such information is supplied, Parent and OpCo represent only that they are not aware of any
material misstatement therein or omission therefrom. All financial projections that have been
prepared by Parent and OpCo and that have been made available prior to the Second Restatement
Effective Date to the Administrative Agent and/or any Lender by Parent and OpCo have been prepared
in good faith based upon assumptions believed by Parent and OpCo at the time to be reasonable.


 


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(b) All other factual information (taken as a whole) furnished on or after the Second
Restatement Effective Date by or on behalf of Parent, OpCo or any of their respective Subsidiaries
in writing to the Administrative Agent or any Lender (including, without limitation, all
information contained in the Documents) for purposes of or in connection with this Agreement or
any transaction contemplated herein is, and will be, true and accurate in all material respects on
the date as of which such information is dated or certified and not incomplete by omitting to
state any material fact necessary to make such information (taken as a whole) not misleading at
such time in light of the circumstances under which such information was provided. The
projections and pro forma financial information contained in such materials are based on good
faith estimates and assumptions believed by such Persons to be reasonable at the time made, it
being recognized by the Lenders that such projections as to future events are not to be viewed as
facts and that actual results during the period or periods covered by any such projections may
differ from the projected results. There is no fact known to any Credit Party which materially
and adversely affects the business, operations, property, assets or condition (financial or
otherwise) of any such Credit Party and its respective Subsidiaries, taken as a whole, which has
not been disclosed herein or in such other documents, certificates and statements furnished to the
Lenders for use in connection with the transactions contemplated hereby.



6.10. Financial Condition; Financial Statements. (a) On and as of the Second Restatement Effective Date, (x) the sum of the assets, at a
fair market valuation, of each Credit Party and its respective Subsidiaries taken as a whole will
exceed its debts, (y) no such Credit Party and its Subsidiaries taken as a whole will have incurred
or intended to, or believes that it will, incur debts beyond its ability to pay such debts as such
debts mature and (z) each such Credit Party and its Subsidiaries taken as a whole will have
sufficient capital with which to conduct its business. For purposes of this Section 6.10, “debt”
means any liability on a claim, and “claim” means (i) right to payment whether or not such a right
is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured; or (ii) right to an equitable remedy for breach
of performance if such breach gives rise to a payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.




(b) (i) The audited consolidated balance sheet of Parent and its Subsidiaries dated as of
June 30, 2008, and the unaudited consolidated balance sheet of Parent and its Subsidiaries dated
March 31, 2009, copies of which have been heretofore furnished to the Administrative Agent, were
prepared in accordance with GAAP applied on a consistent basis in accordance with the past
practice of Parent and its Subsidiaries except for any changes required by GAAP (except for the
absence of footnotes and subject to normal year-end adjustments in the unaudited balance sheet) or
as noted in the notes to the financial statements and fairly present (in respect of such audited
balance sheet only) in all material respects the consolidated financial position of Parent and its
Subsidiaries as of their respective dates.



(ii) The audited consolidated statement of income, statement of retained earnings and
statement of cash flows of Parent and its Subsidiaries for the 12-month period ended June 30, 2008,
and the unaudited consolidated statement of income of Parent and its Subsidiaries for the
nine-month period ended March 31, 2009, copies of which have been heretofore furnished to the Administrative
Agent, were prepared in accordance with GAAP applied on a consistent basis in accordance with the
past practice of Parent and its Subsidiaries except for any changes required by GAAP (except for
the absence of footnotes and subject to normal year-end adjustments in the unaudited statements)
and fairly present in all material respects the consolidated results of income, cash flows (in
respect of such audited financial statements only) and retained earnings (in respect of such
audited financial statements only) of Parent and its Subsidiaries for such periods.



(iii) Except for the incurrence of Indebtedness under this Agreement, nothing has occurred
since June 30, 2008 that has had or could reasonably be expected to have a Material Adverse Effect.


 


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(c) Except as fully reflected in the financial statements and the notes thereto described in
Section 6.10(b), there was as of the Second Restatement Effective Date no material Contingent
Obligation, contingent liability or liability for taxes, or any long-term lease or unusual forward
or long-term commitment, including, without limitation, any interest rate or foreign currency swap
or exchange transaction with respect to Parent or any of its Subsidiaries which, either
individually or in aggregate, would be material to Parent, OpCo and their respective Subsidiaries
taken as a whole, except as incurred in the ordinary course of business consistent with past
practices subsequent to June 30, 2008.



6.11. Security Interests. On and after the First Restatement Effective Date, each of the Security Documents creates,
as security for the Obligations purported to be secured thereby, a valid and enforceable (and, to
the extent perfection thereof can be accomplished pursuant to the filings or other actions required
by the Security Documents, perfected) security interest in and Lien on all of the Collateral
subject thereto, superior to and prior to the rights of all third Persons and subject to no other
Liens (except that the Collateral may be subject to Permitted Liens relating thereto), in favor of
the Administrative Agent for the benefit of the Lenders. No filings or recordings are required in
order to perfect the security interests created under any Security Document that are required by
the Security Documents to be perfected except for filings or recordings which shall have been made,
or for which satisfactory arrangements have been made, upon or prior to the execution and delivery
thereof.



6.12. Tax Returns and Payments. Except as set forth on Annex 6.12, each of Parent and its Subsidiaries has filed all
federal income tax returns and all other material tax returns, domestic and foreign, required to be
filed by it and has paid all material taxes and assessments payable by it which have become due,
other than those not yet delinquent and except for those contested in good faith. Parent and each
of its Subsidiaries have paid, or have provided adequate reserves in accordance with GAAP (in the
good faith judgment of the management of Parent) for the payment of, all federal, state and foreign
income taxes applicable for all prior fiscal years and for the current fiscal year to the date
hereof.



6.13. Compliance with ERISA. Except as set forth on Annex 6.13, each Plan is in substantial compliance with ERISA and
the Code; no Reportable Event has occurred with respect to a Plan; no Plan is insolvent or in
reorganization; no Plan has an Unfunded Current Liability; no Plan has an accumulated or waived
funding deficiency or has applied for an extension of any amortization period within the meaning of
Section 412 of the Code; all contributions required to be made with respect to a Plan have been
timely made; neither a Credit Party, nor any Subsidiary of a Credit Party, nor any ERISA Affiliate has incurred any material
liability to or on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063,
4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code or expects to incur any
liability (including any indirect, contingent or secondary liability) under any of the foregoing
Sections with respect to any Plan; no proceedings have been instituted to terminate or appoint a
trustee to administer any Plan; no condition exists which presents a material risk to a Credit
Party or any Subsidiary of a Credit Party or any ERISA Affiliate of incurring a liability to or on
account of a Plan pursuant to the foregoing provisions of ERISA and the Code; no lien imposed under
the Code or ERISA on the assets of a Credit Party, or any Subsidiary of a Credit Party or any ERISA
Affiliate exists or is reasonably likely to arise on account of any Plan; and the Credit Parties
and their Subsidiaries do not maintain or contribute to any employee welfare benefit plan (as
defined in Section 3(1) of ERISA) which provides benefits to retired employees (other than as
required by Section 601 of ERISA) or any employee pension benefit plan (as defined in Section 3(2)
of ERISA) the obligations with respect to which could reasonably be expected to have a Material
Adverse Effect on the ability of Parent, OpCo or any other Credit Party to perform its obligations
under this Agreement and the other Documents to which it is a party, except to the extent that all
events described in the preceding clauses of this Section 6.13 and then in existence would not, in
the aggregate, be likely to have a Material Adverse Effect. With respect to Plans that are
multiemployer plans (within the meaning of Section 4001(a)(3) of ERISA) the representations and
warranties in this Section 6.13 are made to the best knowledge of Parent and OpCo.


 


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6.14. Subsidiaries. (a) Annex 6.14 hereto lists each Subsidiary of Parent and of OpCo (and the direct and
indirect ownership interest of Parent therein), in each case existing on the Second Restatement
Effective Date. Parent or OpCo (as indicated on Annex 6.14) will at all times own directly or
indirectly 100% of the outstanding capital stock of all of said entities except to the extent
otherwise permitted pursuant to Section 8.1, 8.2 or 8.6.




(b) There are no restrictions on Parent or any of its Subsidiaries which prohibit or
otherwise restrict the transfer of cash or other assets from any Subsidiary of Parent to Parent,
other than prohibitions or restrictions permitted by Section 8.9(b).



6.15. Intellectual Property. The Parent and each of its Subsidiaries owns, or is licensed to use, all material
trademarks, trade names, copyrights, technology, know-how, patents, servicemarks, licenses and
processes and other rights (“Intellectual Property”) free from burdensome restrictions that
are necessary for the conduct of their business taken as a whole as currently conducted and as
proposed to be conducted except for those the failure to own or license which could not reasonably
be expected to have a Material Adverse Effect.



6.16. Pollution and Other Regulations. Except as set forth on Annex 6.16, (a) each of Parent and its Subsidiaries is, and, since
January 1, 2004, has been, in compliance with all Environmental Laws governing or relating to its
business, and to the knowledge of Parent and its Subsidiaries, there is no condition or
circumstance that would be likely to prevent or interfere with such compliance in the future,
except in each case, individually or in the aggregate, as could not reasonably be expected to have
a Material Adverse Effect, (b) all licenses, permits, registrations or approvals required for the
business of Parent and each of its Subsidiaries, as conducted as of the Second Restatement
Effective Date, under any Environmental Law have been secured, and Parent and each of its
Subsidiaries is, and has been, in substantial compliance therewith, except for such failure to
secure or to comply therewith that individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, (c) since January 1, 2004, neither
Parent nor any of its Subsidiaries has received any written communication from any Person alleging
that it is in noncompliance with, breach of or default under, any applicable writ, order, judgment,
injunction, or decree to which Parent or such Subsidiary is a party or which would affect the
ability of Parent or such Subsidiary to operate its business or any Real Property, except in each
such case, such noncompliance, breaches or defaults that individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect, (d) there are no facts,
circumstances, conditions or occurrences relating to the business of Parent or any of its
Subsidiaries or on or relating to any Real Property that could reasonably be expected (i) to form
the basis of an Environmental Claim against Parent, any of its Subsidiaries or any Real Property of
Parent or any of its Subsidiaries, or (ii) to cause Real Property of Parent or any of its
Subsidiaries to be subject to any restrictions on the ownership, occupancy, use or transferability
of Real Property of Parent or any of its Subsidiaries under any Environmental Law, except in each
such case, such Environmental Claims or restrictions that individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.



6.17. Properties. Parent, OpCo and each of their respective Subsidiaries have good and marketable title to
all material properties owned by them, including all property reflected in the most recent
consolidated balance sheet of Parent and its Subsidiaries as referred to in Section 6.10(b), free
and clear of all Liens, other than (i) as referred to in such consolidated balance sheet or in the
notes thereto or (ii) otherwise permitted by Section 8.2 or 8.3. Annex 1.1B contains a true and
complete list of each Real Property owned or leased by Parent or any of its Subsidiaries on the
Second Restatement Effective Date, that has, in the reasonable judgment of the Borrowers on such
date, a fair market value in excess of $750,000 and the type of interest therein held by Parent or
the respective Subsidiary.


 


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6.18. Labor Matters. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse
Effect: (a) there are no strikes or other labor disputes against any Credit Party pending or, to
the knowledge of Parent or OpCo, threatened; (b) hours worked by and payments made to employees of
the Credit Parties have not been in violation of the Fair Labor Standards Act or any other
applicable Requirement of Law dealing with such matters; and (c) all payments due from the Credit
Parties on account of employee health and welfare insurance have been paid or accrued as a
liability on the books of the Credit Parties.



6.19. Holding Company Status. Parent will not engage in any business or operations other than those expressly permitted
herein, complying with its obligations under the Credit Documents, owning capital stock of its
Subsidiaries formed in accordance with Section 8.1 and activities incidental thereto including
providing ancillary support and management services to Subsidiaries of Parent.



6.20. No Default. None of Parent, OpCo or any of their respective Subsidiaries is in default under or with
respect to any of its Contractual Obligations in any respect that could reasonably be expected to
have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing.



6.21. Regulation H. Except as set forth on Annex 6.21, no Mortgage encumbers improved real property that is
located in an area that has been identified by the Secretary of Housing and Urban Development as an
area having special flood hazards and in which flood insurance has been made available under the
National Flood Insurance Act of 1968.



SECTION 7. AFFIRMATIVE COVENANTS. Each of Parent and OpCo covenants and agrees that on the First Restatement Effective Date
and thereafter and until the Commitments have terminated, no Letters of Credit or Notes are
outstanding and the Loans and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder, are paid in full:



7.1. Information Covenants. Parent will furnish to each Lender:




(a) Annual Financial Statements. Within 90 days after the close of each fiscal year of Parent, the consolidated
balance sheet of Parent and its Subsidiaries as at the end of such fiscal year and the
related consolidated statements of operations and of changes in shareholder’s deficit and of
cash flows for such fiscal year, in each case setting forth comparative consolidated figures
for the preceding fiscal year, and examined by independent certified public accountants of
recognized national standing whose opinion shall not be qualified as to the scope of audit
and as to the status of Parent or any of its Subsidiaries as a going concern, together with
a certificate of such accounting firm stating that in the course of its regular audit of the
business of Parent, which audit was conducted in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge of any Default or Event of Default
which has occurred and is continuing or, if in the opinion of such accounting firm such a
Default or Event of Default has occurred and is continuing, a statement as to the nature
thereof (which certificate may be limited to the extent required by accounting rules or
guidelines).




(b) Quarterly Financial Statements. As soon as available and in any event (i) within 60 days after the close of the
quarterly accounting period ending on September 30, 2009 and (ii) within 45 days after the
close of each of the first three quarterly accounting periods in each fiscal year
thereafter, the consolidated balance sheet of Parent and its Subsidiaries as at the end of
such quarterly period and the related consolidated statements of operations and of changes
in shareholder’s equity (deficit) and of cash flows for such quarterly period, and for the
elapsed portion of the fiscal year ended with the last day of such quarterly period, and in
each case setting forth comparative consolidated figures for the related periods in the
prior fiscal year, all of which shall be certified by the chief financial officer,
controller, chief accounting officer or other Authorized Officer of Parent, except for the
absence of footnotes and subject to changes resulting from audit and normal year-end audit
adjustments.


 


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All such financial statements delivered pursuant to paragraphs (a) and (b) above shall
present fairly in all material respects the consolidated financial condition of Parent and
its consolidated Subsidiaries as at the applicable dates, and the consolidated results of
their operations, their changes in equity (deficit) and their consolidated cash flows for
the periods reflected therein, and shall be prepared in accordance with GAAP applied
consistently throughout the periods reflected therein (except as approved by such accountants or officers, as
the case may be, and disclosed therein). Notwithstanding anything to the contrary contained
in this Section 7.1, Parent and its Subsidiaries shall be deemed to have delivered financial
statements pursuant to paragraph (a) above and this paragraph (b) with respect to any period
for which it has timely filed its Form 10-K or Form 10-Q, as the case may be, with the SEC;
provided that such Form 10-K or Form 10-Q, as the case may be, is publicly available
on the SEC’s website (or a similar website) within the time periods required by paragraph
(a) above and this paragraph (b).




(c) Budgets; etc. Not more than 75 days after the commencement of each fiscal year of Parent, annual
budgets of Parent and its Subsidiaries for such fiscal year in reasonable detail, as
customarily prepared by management for its internal use, setting forth, in reasonable
detail, the principal assumptions upon which such budgets are based.




(d) Officer’s Certificates. At the time of the delivery of the financial statements provided for in Section
7.1(a) and (b), a certificate of the chief financial officer, controller, chief accounting
officer or other Authorized Officer of Parent, substantially in the form of Exhibit K, to
the effect that no Default or Event of Default exists or, if any Default or Event of Default
does exist, specifying the nature and extent thereof, which certificate shall set forth (A)
the calculations required to establish (I) the Leverage Ratio then in effect for the Test
Period ending on the last day of such fiscal period or year, (II) whether Parent and its
Subsidiaries were in compliance with the provisions of Sections 8.5, 8.7, 8.9(a) (but only
to the extent Parent has made redemptions or repurchases of the type described in clause
(ii) thereof in such period or year), 8.13 and 8.14 as at the end of such fiscal period or
year, as the case may be and (III) in the case of any certificate delivered with the
financial statements referred to in Section 7.1(a), the amount of Excess Cash Flow for the
Test Period and (B) the book value of the Vehicles owned by the Credit Parties as of the
first and last day of such fiscal period and the aggregate number of Vehicles owned by the
Credit Parties on such dates, the aggregate number of Vehicles acquired by the Credit
Parties during such fiscal period and the aggregate number of Vehicles disposed of during
such fiscal period.




(e) Notice of Default or Litigation. Promptly, and in any event within three Business Days after Parent or any of its
Subsidiaries obtains knowledge thereof, notice of (x) the occurrence of any event which
constitutes a Default or Event of Default, which notice shall specify the nature thereof,
the period of existence thereof and what action Parent or such Subsidiary proposes to take
with respect thereto and (y) the commencement of or any material development in any
litigation or governmental proceeding pending against Parent or any of its Subsidiaries in
which the amount of Parent’s or any of its Subsidiaries’ uninsured exposure is $3,000,000 or
more or is reasonably likely to have a material adverse effect on the ability of Parent or
any Credit Party to perform its obligations hereunder or under any other Credit Document.


 


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(f) Other Information. Promptly upon transmission thereof, notice of any filings and registrations with,
and reports to, the Securities and Exchange Commission or any successor thereto (the
“SEC”) by Parent or any of its Subsidiaries that are publicly available and, with
reasonable promptness, such other information or documents (financial or otherwise) as the Administrative Agent on
its own behalf or on behalf of the Required Lenders may reasonably request from time to
time.



7.2. Books, Records and Inspections. Parent will, and will cause its Subsidiaries to, permit, upon notice to the chief financial
officer, controller or any other Authorized Officer of Parent, officers and designated
representatives of the Administrative Agent or the Syndication Agent (and, during the continuance
of an Event of Default, designated representatives of the Required Lenders) to visit and inspect
any of the properties or assets of Parent and any of its Subsidiaries in whomsoever’s possession,
and to examine the books of account of Parent and any of its Subsidiaries and discuss the affairs,
finances and accounts of Parent and of any of its Subsidiaries with, and be advised as to the same
by, its and their officers and (if either Borrower so requests, with an officer of such Borrower
present) independent accountants, all at such reasonable times and intervals and to such reasonable
extent as the Administrative Agent or the Syndication Agent or, if applicable, the Required Lenders
may desire, including, without limitation, at such time as either Borrower notifies the
Administrative Agent or the Syndication Agent that it expects to request a Borrowing to fund a
Permitted Business Acquisition.



7.3. Maintenance of Insurance. Parent will, and will cause each of its Subsidiaries to, at all times maintain in full
force and effect insurance in such amounts, covering such risks and liabilities and with such
deductibles or self-insured retentions as are in accordance with normal industry practice or
otherwise as are acceptable to the Administrative Agent in its reasonable discretion. Parent will,
and will cause each of its Subsidiaries to, furnish on the Second Restatement Effective Date and
annually thereafter to the Administrative Agent certificates of insurance carried and other
evidence of such insurance, if any, naming the Administrative Agent as an additional insured and/or
loss payee to the extent appropriate.



7.4. Payment of Taxes. Parent will pay and discharge, and will cause each of its Subsidiaries to pay and
discharge, all taxes, assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on which penalties
attach thereto, and all lawful claims which, if unpaid, might become a Lien or charge upon any
properties of Parent or any of its Subsidiaries, provided that neither Parent nor any
Subsidiary shall be required to pay any such tax, assessment, charge, levy or claim which is being
contested in good faith and by proper proceedings if it has maintained adequate reserves (in the
good faith judgment of the management of Parent) with respect thereto in accordance with GAAP.



7.5. Franchises. Parent will do, and will cause each Subsidiary to do, or cause to be done, all things
necessary to preserve and keep in full force and effect its existence, material rights and material
authority, provided that any transaction permitted by Section 8.2 will not constitute a
breach of this Section 7.5.



7.6. Compliance with Contractual Obligations and Laws, Statutes, etc. Parent will, and will cause each Subsidiary to, comply with all Contractual Obligations,
applicable laws, statutes, regulations and orders of, and all applicable restrictions imposed by,
all governmental bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property, other than those the non-compliance with which could not reasonably be expected
to have a Material Adverse Effect.


 


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7.7. ERISA. As soon as possible and, in any event, within 15 days after a Credit Party or any of its
Subsidiaries or any ERISA Affiliate knows or has reason to know of the occurrence of any of the
following, Parent will deliver to each of the Lenders a certificate of the chief financial officer
of Parent setting forth details as to such occurrence and such action, if any, which the Credit
Party, such Subsidiary or such ERISA Affiliate is required or proposes to take, together with any
notices required or proposed to be given to or filed with or by the Credit Party, the Subsidiary,
the ERISA Affiliate, the PBGC, a Plan participant (other than notices relating to an individual
participant’s benefits) or the Plan administrator with respect thereto: that a Reportable Event has
occurred; that an accumulated funding deficiency has been incurred or an application is reasonably
likely to be or has been made to the Secretary of the Treasury for a waiver or modification of the
minimum funding standard (including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a Plan; that a contribution
required to be made to a Plan has not been timely made; that a Plan which has an Unfunded Current
Liability has been or is likely to be terminated, reorganized, partitioned or declared insolvent
under Title IV of ERISA; that a Plan has an Unfunded Current Liability and there is a failure to
make a required contribution, which gives rise to a lien under ERISA or the Code; that proceedings
are reasonably likely to be or have been instituted to terminate a Plan which has an Unfunded
Current Liability or to appoint a trustee to administer a Plan; that a proceeding has been
instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan; that a
Credit Party, any Subsidiary of a Credit Party or any ERISA Affiliate will or is reasonably likely
to incur any material liability (including any indirect, contingent or secondary liability) to or
on account of the termination of or withdrawal from a Plan under Section 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or with respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980
of the Code or Section 409, 502(1) or 502(i) of ERISA, or that, other than as set forth on Annex
6.13, a Credit Party or any Subsidiary of a Credit Party is reasonably likely to incur any material
liability pursuant to any employee welfare benefit plan (as defined in Section 3(1) of ERISA) that
provides benefits to retired employees (other than as required by Section 601 of ERISA) or any
employee pension benefit plan (as defined in Section 3(2) of ERISA). Notwithstanding the
foregoing, Parent will not be required to deliver any notice otherwise required by this Section 7.7
if it relates to an ERISA Affiliate (other than Parent and it Subsidiaries), unless the event or
other subject of such notice could reasonably be expected to result in a liability material to
Parent and its Subsidiaries, taken as a whole. Upon request of a Lender, Parent will deliver to
such Lender a complete copy of the annual report (Form 5500) of each Plan required to be filed with
the Internal Revenue Service. In addition to any certificates or notices delivered to the Lenders
pursuant to the previous sentences hereof, copies of any material notices received by a Credit
Party or any Subsidiary of a Credit Party or any ERISA Affiliate, with respect to a Plan shall be
delivered to the Lenders no later than 15 days after such are received by Parent, the Subsidiary or
the ERISA Affiliate, as applicable.



7.8. Good Repair. Parent will, and will cause each of its Subsidiaries to, ensure that its properties and
equipment used or useful in its business in whomsoever’s possession they may be, are kept in good
repair, working order and condition, normal wear and tear excepted, and, subject to Section 8.5,
that from time to time there are made in such properties and equipment all needful and proper
repairs, renewals, replacements, extensions, additions, betterments and improvements thereto, to
the extent and in the manner useful or customary for companies in similar businesses.



7.9. Payment of Obligations. Parent will, and will cause each of its Subsidiaries to, pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may be, all its
material obligations (other than Indebtedness) of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of the relevant Credit
Party.


 


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7.10. Environmental Laws. Parent will, and will cause each of its Subsidiaries to, (a) comply in all material
respects with, and ensure compliance in all material respects by all tenants and subtenants, if
any, with, all applicable Environmental Laws, and obtain and comply in all material respects with
and maintain, and ensure that all tenants and subtenants obtain and comply in all material respects
with and maintain, any and all licenses, approvals, notifications, registrations or permits
required by applicable Environmental Laws and (b) conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required under Environmental Laws
and comply in all material respects with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws.



7.11. Use of Proceeds. All proceeds of the Loans shall be used as provided in Section 6.5.



7.12. Additional Collateral. (a) With respect to any property acquired after the Second Restatement Effective Date by
any Credit Party (other than (x) any property described in paragraph (b), (c) or (d) below and (y)
any property subject to a Lien expressly permitted by Section 8.3(k)) as to which the
Administrative Agent, for the benefit of the Lenders, does not have a perfected Lien, each of
Parent and its Domestic Subsidiaries agrees to promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement or such other
Security Documents as the Administrative Agent reasonably requests in order to grant to the
Administrative Agent, for the benefit of the Lenders, a security interest in such property and (ii)
take all actions reasonably requested by the Administrative Agent to grant to the Administrative
Agent, for the benefit of the Lenders, a perfected security interest in such property having the
priority required by the Guarantee and Collateral Agreement, including the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required by the Guarantee and
Collateral Agreement or by law or as may be reasonably requested by the Administrative Agent.




(b) With respect to any fee interest in any real property having a value (together with
improvements thereof) of at least $750,000 acquired after the Second Restatement Effective Date by
any Credit Party (other than any such real property subject to a Lien expressly permitted by
Section 8.3(k)), each of Parent and its Domestic Subsidiaries agrees to promptly (i) cause each
Credit Party which is the fee owner of such real property to execute and deliver a deed of trust,
mortgage or similar document, in each case, substantially in the form of Exhibit I or otherwise in
form and substance reasonably satisfactory to the Administrative Agent (each a
“Mortgage”), in favor of the Administrative Agent, for the benefit of the Lenders,
covering such real property, (ii) if reasonably requested by the Administrative Agent, provide the
Lenders with (x) title and extended coverage insurance covering such real property in an amount at
least equal to the purchase price of such real property (or such other amount as shall be
reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof,
together with a surveyor’s certificate and (y) any consents or estoppels reasonably deemed
necessary or advisable by the Administrative Agent in connection with such Mortgage, each of the
foregoing in form and substance reasonably satisfactory to the Administrative Agent, and (iii) if
reasonably requested by the Administrative Agent, deliver to the Administrative Agent legal
opinions relating to the matters described above, which opinions shall be in form and substance,
and from counsel, reasonably satisfactory to the Administrative Agent.




(c) With respect to any new Domestic Subsidiary created or acquired after the Second
Restatement Effective Date by any Credit Party, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement as the
Administrative Agent reasonably deems necessary or advisable to grant to the Administrative Agent,
for the benefit of the Lenders, a perfected first priority security interest in 100% of the
capital stock of such new



 


31









 






Domestic Subsidiary that is owned by any Credit Party, (ii) deliver to
the Administrative Agent the certificates representing such capital stock, together with undated
stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Credit
Party, (iii) cause such new Domestic Subsidiary (A) to become a party to the Guarantee and
Collateral Agreement, (B) to take such actions reasonably deemed necessary or advisable by the
Administrative Agent to grant to the Administrative Agent for the benefit of the Lenders a
perfected security interest in the Collateral described in the Guarantee and Collateral Agreement
with respect to such new Subsidiary having the priority required by the Guarantee and Collateral
Agreement, including the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be
reasonably requested by the Administrative Agent and (C) to deliver to the Administrative Agent a
certificate of such Subsidiary, substantially in the form of Exhibit E, with appropriate
insertions and attachments, and (iv) if reasonably requested by the Administrative Agent, deliver
to the Administrative Agent legal opinions relating to the matters described above, which opinions
shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative
Agent.




(d) With respect to any new Foreign Subsidiary created or acquired after the Second
Restatement Effective Date by any Credit Party, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement as the
Administrative Agent reasonably deems necessary or advisable to grant to the Administrative Agent,
for the benefit of the Lenders, a perfected first priority security interest in the capital stock
of such new Foreign Subsidiary that is owned by any such Credit Party (provided that in no
event shall more than 66% of the total outstanding voting capital stock of any such new Foreign
Subsidiary be required to be so pledged), (ii) deliver to the Administrative Agent the
certificates representing such capital stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the relevant Credit Party, and take such
other action as may be necessary or, in the reasonable opinion of the Administrative Agent,
desirable to perfect the Administrative Agent’s security interest therein, and (iii) if reasonably
requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating
to the matters described above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.



7.13. Interest Rate Agreements. OpCo shall no later than 180 days following the First Restatement Effective Date enter into
Interest Rate Agreements, reasonably acceptable to the Administrative Agent, establishing a fixed
or maximum interest rate in respect of at least 35% of the aggregate principal amount of Tranche B
Term Loans for a period of at least two years or any shorter period which shall be satisfactory to
the Administrative Agent. OpCo shall no later than 180 days following the First Amendment
Effective Date enter into Interest Rate Agreements, reasonably acceptable to the Administrative
Agent, establishing a fixed or maximum interest rate in respect of at least 35% of the aggregate
principal amount of Tranche C Term Loans for a period of at least two years or any shorter period
which shall be satisfactory to the Administrative Agent.



SECTION 8. NEGATIVE COVENANTS. Each of Parent and OpCo hereby covenants and agrees that as of the First Restatement
Effective Date and thereafter until the Commitments have terminated, no Letters of Credit or Notes
are outstanding and the Loans and Unpaid Drawings, together with interest, Fees and all other
Obligations incurred hereunder are paid in full:



8.1. Changes in Business. Except as otherwise permitted by Section 8.2, Parent will not, and will not permit any of
its Subsidiaries to, engage in any business or operations, or expand its business or operations,
other than specialty contracting services business or operations for the electric, gas and power
industries and any ancillary services or any investments related thereto (including as set forth in
Section 6.19). Parent will: (a) except as set forth in Section 6.19, engage in no business or
activity other than complying with its obligations under the Credit Documents, the ownership of all
of the capital stock of Subsidiaries of the Parent and other Subsidiaries formed in accordance with
this Agreement; (b) own no capital stock other than capital stock of Subsidiaries of the Parent;
(c) not contract, create, incur, assume or suffer to exist any Indebtedness except pursuant to the
Credit Documents and as permitted by Section 8.4 and (d) not own any assets other than capital
stock of OpCo, the other Credit Parties, and de minimis amounts of other assets incidental to the
conduct of its business; provided, that Parent or any other Credit Party may form one or
more additional Domestic or Foreign Subsidiaries if (y) each such Domestic or Foreign Subsidiary
conducts business of substantially the same character as the business described in this Section
8.1, and (z) Parent or such Credit Party complies with Sections 7.12 and 8.6 with respect to each
such Domestic or Foreign Subsidiary.


 


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8.2. Consolidation, Merger, Sale of Assets, etc. Parent will not, and will not permit any Subsidiary to, wind up, liquidate or dissolve its
affairs, or enter into any transaction of merger or consolidation, sell or otherwise dispose of all
or any part of its property or assets (other than inventory, equipment or Cash Equivalents sold in
the ordinary course of business) or agree to do any of the foregoing at any future time, except
that the following shall be permitted:




(a) except as otherwise provided in the Security Documents, any Subsidiary of either
Borrower may be merged or consolidated with or into, or be wound up, liquidated into or
dissolved into, either Borrower or a Wholly-Owned Subsidiary of either Borrower (so long as
(i) such Borrower or such Wholly-Owned Subsidiary is the surviving entity and (ii) if any
such merger or consolidation involves a Domestic Subsidiary, a Domestic Subsidiary is the
surviving entity), or all or any part of its business, properties and assets may be
conveyed, leased, sold or transferred to either Borrower or a Wholly-Owned Subsidiary of
either Borrower (which must be a Domestic Subsidiary if the transaction involves the
conveyance, lease, sale or transfer of all or substantially all the properties and assets of
a Domestic Subsidiary), provided that such Borrower may not be a party to any
merger, consolidation or liquidation otherwise permitted by this clause (a) involving a
Subsidiary that is not a Wholly-Owned Subsidiary, and provided further that
in each case all Liens created pursuant to a Security Document on any assets of a Subsidiary
affected by any of the foregoing events (other than (i) Liens on the capital stock issued by
a Subsidiary that does not survive such event if, in connection therewith, such capital
stock is cancelled and (ii) Liens on assets sold to a Foreign Subsidiary) shall remain in
full force and effect after giving effect thereto;




(b) the investments, acquisitions and transfers or dispositions of properties permitted
pursuant to Sections 8.6 and 8.9;




(c) sales of assets pursuant to any sale and leaseback transaction permitted by Section
8.11;




(d) other sales or dispositions of assets by the Borrowers and their respective
Subsidiaries, provided that (i) the aggregate fair market value of the assets so
sold or disposed shall not exceed $7,500,000 in any fiscal year (such fair market value as
determined by the Board of Directors of Parent), (ii) each such transaction results in
consideration at least 80% of which shall be in the form of cash and the remainder, if any,
of which shall consist of promissory notes issued by the relevant purchaser and pledged to
the Administrative Agent for the benefit of the Lenders pursuant to the relevant Security
Document, and (iii) the Net Cash Proceeds of any such sale are applied to repay the Loans as
and to the extent provided in Section 4.2(a)(iii), and, provided further,
that the sale or disposition of the capital stock of (i) OpCo shall be prohibited; and (ii)
any Subsidiary of the Borrowers shall be prohibited unless it is for all of the outstanding
capital stock of such Subsidiary owned (directly or indirectly) by the Borrowers;




(e) the license of intellectual property in the ordinary course of business of either
Borrower or any of their respective Subsidiaries;


 


33









 






(f) leases or subleases granted to others not interfering in any material respect with
the business of Parent or any of its Subsidiaries;




(g) sales of investment assets acquired in connection with the Deferred Compensation
Plan or any Deferred Compensation Agreement, the proceeds of which are used to acquire other
investment assets or to make deferred compensation payments to current and former officers
and employees of OpCo and its Subsidiaries pursuant to such Plan; and




(h) sales of obsolete, worn-out or surplus assets no longer used or usable in the
business of Parent or any of its Subsidiaries.



8.3. Liens. Parent will not, and will not permit any of its Subsidiaries to, create, incur, assume or
suffer to exist any Lien upon or with respect to any property or assets of any kind (real or
personal, tangible or intangible) of Parent or any such Subsidiary, whether now owned or hereafter
acquired, or sell any such property or assets subject to an understanding or agreement, contingent
or otherwise, to repurchase such property or assets (including sales of accounts receivable or
notes with recourse to Parent or any of its Subsidiaries) or assign any right to receive income, or
file or authorize the filing of any financing statement under the UCC or any other similar notice
of Lien under any similar recording or notice statute, except:




(a) Liens for taxes and assessments not yet due and payable or Liens for taxes being
contested in good faith and by appropriate proceedings for which adequate reserves (in the
good faith judgment of the management of Parent) have been established;




(b) Liens in respect of property or assets of Parent or any of its Subsidiaries imposed
by law which were incurred in the ordinary course of business, such as carriers’,
warehousemen’s and mechanics’ Liens, statutory landlord’s Liens, and other similar Liens
arising in the ordinary course of business, and (x) which do not in the aggregate materially
detract from the value of such property or assets or materially impair the use thereof in the operation of the
business of Parent or any Subsidiary or (y) which are being contested in good faith by
appropriate proceedings, which proceedings have the effect of preventing the forfeiture or
sale of the property or asset subject to such Lien;




(c) Liens created by or pursuant to this Agreement or the other Credit Documents
securing the Obligations; provided that (i) the maximum aggregate amount of
Obligations secured in connection with all Specified Fuel Hedge Agreements shall not exceed
$7,500,000 minus all amounts paid to the Fuel Hedge Providers as of such date
pursuant to Section 6.5 of the Guarantee and Collateral Agreement, (ii) all Obligations in
connection with all Specified Fuel Hedge Agreements shall be secured on a pro rata basis
(based as of any time on the Credit Parties’ respective exposure thereunder calculated on a
mark-to-market basis at such time or, if a Specified Fuel Hedge Agreement shall have been
terminated, based on the Credit Parties’ termination payment thereunder as of such time),
and (iii) the maximum aggregate amount of Obligations secured in connection with all
Specified Cash Management Agreements shall not exceed $7,000,000;




(d) Liens on assets of the Parent and its Subsidiaries existing on the Second
Restatement Effective Date and listed on Annex 8.3(d) hereto and extensions, renewals and
replacements thereof; provided that no such Lien is spread to cover any additional
property after the Second Restatement Effective Date and that the principal amount of
Indebtedness secured thereby shall not exceed the principal amount of Indebtedness so
secured at the time of such extension, renewal or replacement;


 


34









 






(e) Liens arising from judgments, decrees or attachments in circumstances not
constituting an Event of Default under Section 9.9;




(f) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the
ordinary course of business in connection with workers’ compensation, unemployment insurance
and other types of social security, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, trade contracts (which, for the avoidance of
doubt, shall not include any Hedge Agreements, Fuel Hedge Agreements, Cash Management
Agreements or similar arrangements), leases, government contracts, performance and
return-of-money bonds and other similar obligations incurred in the ordinary course of
business (exclusive of obligations in respect of the payment for borrowed money);




(g) leases or subleases granted to others not interfering in any material respect with
the business of any Parent or its Subsidiaries;




(h) easements, encroachments, covenants, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not interfering in any
material respect with the ordinary conduct of the business of Parent or any of its
Subsidiaries and municipal and zoning ordinances;




(i) Liens arising from UCC financing statements regarding leases permitted by this
Agreement;



(j) any interest or title of a lessor under any lease permitted by this Agreement;




(k) Liens on assets of either Borrower or any of their respective Subsidiaries thereof,
each of which Liens (i) existed on such assets before the time of their acquisition by such
Borrower or such Subsidiary, were not created in contemplation thereof and secure
Indebtedness permitted by Section 8.4(c)(i), or (ii) existed on such assets of any
Subsidiary before the time it became a Subsidiary, were not created in contemplation of the
owner thereof becoming a Subsidiary and secure Indebtedness permitted by Section 8.4(c)(i),
or (iii) was created solely for the purpose of securing Indebtedness representing, or
incurred to finance, the cost of such assets and secure Indebtedness permitted by Section
8.4(c)(ii) (including Capital Lease Obligations permitted by Section 8.4(c)(ii)) ;
provided that, with respect to Liens referred to in this clause (iii), (A) such
Liens and the Indebtedness secured thereby are incurred within 90 days of the acquisition of
such asset, (B) such Liens shall at all times be confined to the assets (or, with respect to
any such asset, the group of assets together with which it is acquired) so acquired and
improvements, alterations, replacements and modifications thereto and (C) the principal
amount of the Indebtedness secured by such Liens shall in no case exceed 100% of the cost of
the assets (or group of assets) subject thereto at the time of acquisition thereof, and
provided, further that with respect to each Lien referred to in this
paragraph (k), any extension, renewal or replacement thereof shall be permitted only to the
extent that the principal amount of Indebtedness secured thereby shall not exceed the
principal amount of Indebtedness so secured at the time of such extension, renewal or
replacement;




(l) Liens on cash reserves securing Indebtedness in respect of letters of credit or
bonds permitted by Section 8.4(g);




(m) Liens on assets sold pursuant to a Qualified Sale/Leaseback Transaction securing
Capital Lease Obligations arising therefrom permitted by Section 8.4(l);


 


35









 






(n) Liens not otherwise permitted by this Section so long as neither (i) the aggregate
outstanding principal amount of the obligations secured thereby nor (ii) the aggregate fair
market value (determined as of the date such Lien is incurred) of the assets subject thereto
exceeds (as to the Borrowers and all their respective Subsidiaries) $4,000,000 at any one
time;




(o) Liens on the Escrow Amount (as defined in the Acquisition Agreement) pursuant to
Section 1.03(d) of the Acquisition Agreement; and




(p) Liens on cash and Cash Equivalents securing Indebtedness incurred in respect of
Permitted Letter of Credit Facilities permitted pursuant to Section 8.4(p), provided
that the aggregate value of such cash and Cash Equivalents shall not exceed 110% of the
principal amount of such Indebtedness.



8.4. Indebtedness. Parent will not, and will not permit any of its Subsidiaries to, contract, create, incur,
assume or suffer to exist any Indebtedness, except:




(a) Indebtedness incurred pursuant to this Agreement and the other Credit Documents,
including Letters of Credit;




(b) Indebtedness of either Borrower to any Subsidiary of either Borrower and of any
Wholly-Owned Subsidiary Guarantor to the Borrower or any other Subsidiary;




(c) Indebtedness (including, without limitation, in the case of clause (y) below,
Capital Lease Obligations) secured by Liens permitted by (x) Section 8.3(k)(i) or (ii) in an
aggregate principal amount not to exceed $10,000,000 at any one time outstanding or (y) Section 8.3(k)(iii) in an aggregate principal amount not to exceed $40,000,000 at
any one time outstanding;




(d) existing Indebtedness listed on Annex 8.4(d) hereto (“Existing
Indebtedness”) and any renewals, extensions, refundings or refinancings of such
Indebtedness, provided the amount thereof is not increased and the maturity of
principal thereof is not shortened (unless to a maturity occurring after the Tranche C Term
Facility Final Maturity Date);




(e) Indebtedness under (i) Interest Rate Agreements and (ii) Fuel Hedge Agreements, in
each case, entered into after the Original Borrowing Date (provided that such
Agreements are entered into to hedge actual amounts and not for speculative purposes);




(f) Indebtedness of Parent represented by the obligations of Parent to make payments
with respect to the cancellation or repurchase of certain stock or stock options or warrants
in respect of Parent Common Stock granted to management investors pursuant to the
Shareholders’ Agreements;




(g) Indebtedness in respect of letters of credit (other than Permitted Letter of Credit
Facilities permitted pursuant to Section 8.4(p) and Letters of Credit) or bonds backing
obligations under insurance policies or related to self-insurance obligations or related to
surety bonds in an aggregate amount not to exceed $15,000,000;




(h) guarantees by either Borrower or any of their respective Subsidiaries of the
obligations of Joint Ventures in which such Borrower or such Subsidiary is a party, not
exceeding $25,000,000 in aggregate amount at any time outstanding;


 


36









 






(i) guarantees by any Credit Party of any Indebtedness of any other Credit Party
permitted pursuant to the other provisions of this Section 8.4;





(j) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, bankers
acceptances, letters of credit, surety bonds or other similar obligations arising in the
ordinary course of business, and any refinancings thereof to the extent not provided to
secure the repayment of other Indebtedness;




(k) Indebtedness arising from the honoring by a bank or other financial institution of
a check, draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of business,
provided that such Indebtedness is extinguished within two Business Days of its
incurrence;



(l) Capital Lease Obligations arising out of Qualified Sale/Leaseback Transactions;




(m) additional unsecured Indebtedness of either Borrower or any of their respective
Subsidiaries in an aggregate principal amount (for the Borrowers and all their respective
Subsidiaries) not to exceed $50,000,000 at any one time outstanding;




(n) Indebtedness arising from post-closing obligations related to the Acquisition
permitted by Section 8.6(i);




(o) Indebtedness incurred pursuant to Cash Management Agreements entered into in the
ordinary course of business; and




(p) Indebtedness in an aggregate principal amount not to exceed $25,000,000 under any
Permitted Letter of Credit Facility; provided that (i) such Permitted Letter of
Credit Facility shall be unsecured other than by Liens permitted pursuant to Section 8.3(p)
and (ii) Indebtedness shall only be permitted to be incurred pursuant to this Section 8.4(p)
if at the date of any issuance of a letter of credit under a Permitted Letter of Credit
Facility (y) the aggregate amount of the Letter of Credit Outstandings shall equal an amount
such that the issuance of such letter of credit as a Letter of Credit hereunder would result
in the Letter of Credit Outstandings exceeding the amount permitted pursuant to Section
2.1(b) and (z) Parent would be able to make a Dividend pursuant to Section 8.9(a)(ix) in at
least an amount equal to the Liens arising from such Permitted Letter of Credit Facility
permitted pursuant to Section 8.3(p), provided that if such date of issuance is
after July 1, 2011 and the expiry date of such Permitted Letter of Credit is at least 12
months after such date of issuance, then clause (y) shall not apply.



8.5. Capital Expenditures. (a) Except for expenditures permitted pursuant to Section 8.6, Parent will not, and will
not permit any of its Subsidiaries to, make Consolidated Capital Expenditures, provided
that the Borrowers and their respective Subsidiaries may make Consolidated Capital Expenditures
during each fiscal year of Parent set forth below in an aggregate amount not in excess of the
amount set forth opposite such fiscal year below (the amount so set forth for any such fiscal year,
the “Yearly Amount” for such fiscal year).



	 	 	 	 	 
	 	 	Capital Expenditure	 
	Fiscal Year	 	Amount	 
	2005	 	$	60,000,000	 
	2006	 	$	60,000,000	 
	2007	 	$	60,000,000	 
	2008 and thereafter
	 	$	70,000,000	 





 


37









 






(b) Notwithstanding anything to the contrary contained in Section 8.5(a), to the extent the
Yearly Amount is not expended in any fiscal year pursuant to Section 8.5(a) above, 50% of such
unused amount may be carried forward to the succeeding fiscal year (it being understood and agreed
that amounts expended in any fiscal year pursuant to Section 8.5(a) shall be applied against the
Yearly Amount for such fiscal year before being applied against amounts carried forward from the
prior fiscal year).



8.6. Advances, Investments and Loans. Parent will not, and will not permit any of its Subsidiaries to, lend money or credit or
make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any
other interest in, or make any capital contribution to, any Person, except:




(a) Parent or any of its Subsidiaries may invest in cash and Cash Equivalents;




(b) Either Borrower and any of their respective Subsidiaries may acquire and hold
receivables owing to it, if created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms;




(c) the intercompany Indebtedness described in Section 8.4(b) shall be permitted to the
extent pledged pursuant to the Guarantee and Collateral Agreement;




(d) the investments owned by either Borrower and each of their respective Subsidiaries
on the Second Restatement Effective Date and set forth in Annex 8.6(d) may continue to be
owned by such Borrower and such Subsidiary;




(e) loans and advances to officers and employees in the ordinary course of business in
an aggregate principal amount not to exceed $250,000 at any time outstanding;




(f) either Borrower and any of their respective Subsidiaries may acquire and own
investments (including debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent obligations of,
and other disputes with, customers and suppliers arising in the ordinary course of business;




(g) Interest Rate Agreements and Fuel Hedge Agreements, in each case permitted by
Section 8.4(e);




(h) Parent may make capital contributions to any Credit Party, and any Credit Party may
make capital contributions to, or purchase additional shares of capital stock of, any
Wholly-Owned Subsidiary Guarantor;




(i) the Acquisition and the transactions contemplated by the Acquisition Documents,
including the Escrow Amount (as defined in the Acquisition Agreement), the Adjusted AEP
Amount, the Federal Project Cash Flow Amount and any post-closing adjustments to the extent
that the Adjusted Purchase Price (as defined in the Acquisition Agreement) exceeds the
Estimated Purchase Price (as defined in the Acquisition Agreement);


 


38









 






(j) Permitted Business Acquisitions; provided that neither Borrower nor any of
their respective Subsidiaries shall be permitted to make any Permitted Business Acquisition
if, after giving effect thereto, the sum of (A) the aggregate amount of consideration
(whether cash or property, as valued in good faith by the Board of Directors of the Parent
but excluding Earnout Payments) given by the Borrowers and all their respective Subsidiaries
for all Permitted Business Acquisitions made after the First Restatement Effective Date (net
of any return representing return of capital of (but not return on) any such investment)
plus (B) the sum of (i) the aggregate amount of Earnout Payments theretofore made
subsequent to the First Restatement Effective Date and (ii) the aggregate then maximum
amount of the Earnout Payments that the Borrowers and all their respective Subsidiaries
could be required to pay in the future under agreements with respect thereto then in effect
would exceed the sum of (x) $30,000,000 plus (y) the Available Amount at the time of
such Permitted Business Acquisition, provided that, Earnout Payments may not exceed
$40,000,000;




(k) the redemption or repurchase by Parent of Parent Common Stock, Series A Preferred
or Additional Permitted Preferred (and any options or warrants relating thereto) in
accordance with clauses (ii), (iv), (v), (vi), (vii) and (viii) of Section 8.9(a);




(l) promissory notes issued to either Borrower or any of their respective Subsidiaries
by the purchasers of assets sold in accordance with Section 8.2(d);




(m) guarantees expressly permitted by Sections 8.4(h) and (i);




(n) investments made by OpCo in investment assets in amounts equal to the amounts of
compensation payable to current and former officers and employees of OpCo and its
Subsidiaries that are deferred pursuant to the Deferred Compensation Plan and any Deferred
Compensation Agreements (plus amounts equal to the earnings or gains on such
investment assets);




(o) in addition to investments otherwise expressly permitted by this Section,
investments by either Borrower or any of their respective Subsidiaries in an aggregate
amount (valued at cost and net of any return representing return of (but not return on) any
such investment) not to exceed $7,500,000 (less the aggregate amount of all payments
made pursuant to clause (x)(B) of the proviso to Section 8.9(a)(iv)) outstanding at any
time;




(p) investments made by any Credit Party in Term Loans made pursuant to any Credit
Party Loan Purchases effected in accordance with Section 12.4(e), provided that the
cumulative aggregate cash consideration paid to all assigning or selling Lenders by any
Credit Party in respect of all any Credit Party Loan Purchases shall not exceed $40,000,000;
and




(q) investments by any Credit Party in a Joint Venture or Foreign Subsidiary, provided
that (A) the sum of (i) the aggregate value of such investments (measured as of the
respective dates of such investments) and (ii) the aggregate value of all property
transferred by all Credit Parties to all Joint Ventures and all Foreign Subsidiaries
(measured as of the respective dates of such transfers), minus (B) the principal amount of
all Indebtedness guaranteed pursuant to Section 8.4(h) shall not exceed $25,000,000.



8.7. Leases. Parent will not permit the aggregate payments (including, without limitation, any property
taxes paid by Parent and its Subsidiaries as additional rent or lease payments) by Parent and its
Subsidiaries on a consolidated basis under agreements in effect as of the First Restatement
Effective Date and/or entered into after the First Restatement Effective Date (including any such
agreement that is an extension, replacement, substitution, or renewal of any agreement entered into
prior to such date) to rent or lease any real or personal property (exclusive of Capitalized Lease
Obligations and leases arising out of any Qualified Sale/Leaseback Transaction) to exceed
$50,000,000 in any fiscal year of Parent.


 


39









 





8.8. Prepayments of Indebtedness; Amendments to Documents, etc. Parent will not, and will not permit any of its Subsidiaries to:




(a) make (or give any notice in respect thereof) any voluntary or optional payment or
prepayment or redemption or defeasance or acquisition for value of (including, without
limitation, by way of depositing with the agent or lenders with respect thereto money or
securities before due for the purpose of paying when due) or exchange of any material
Indebtedness (other than Indebtedness under this Agreement) other than refinancings of
Indebtedness in accordance with Section 8.4;




(b) after the First Restatement Effective Date, amend or modify, or permit the
amendment or modification of, any provisions of any Acquisition Documents in any manner
materially adverse to the interests of the Lenders; or




(c) amend, modify or change in any manner adverse to the interests of the Lenders the
Certificate of Incorporation (including, without limitation, by the filing or amendment of
any certificate of designation or, with respect to the Series A Preferred), By-Laws or
limited liability company agreement of Parent or any of its Subsidiaries, or any agreement
entered into by Parent or any of its Subsidiaries with respect to its capital stock, or
enter into any new agreement in any manner adverse to the interests of the Lenders with respect to the capital stock of
Parent or any of its Subsidiaries. For the avoidance of doubt (a) mergers or consolidations
of Credit Parties permitted under this Agreement shall not be deemed adverse to the interest
of the Lenders and (b) Credit Parties may change their legal names upon prior written notice
of such name change to the Administrative Agent in accordance with the Guarantee and
Collateral Agreement.



8.9. Dividends, etc. (a) Parent will not, and will not permit any of its Subsidiaries to, declare or pay any
dividends (other than dividends payable solely in capital stock of such Person) or return any
capital to, its stockholders or authorize or make any other distribution, payment or delivery of
property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire,
directly or indirectly, for consideration, any shares of any class of its capital stock now or
hereafter outstanding (or any warrants for or options or stock appreciation rights in respect of
any of such shares), or set aside any funds for any of the foregoing purposes, or permit any of its
Subsidiaries to purchase or otherwise acquire for consideration any shares of any class of the
capital stock of either Borrower or any other Subsidiary of Parent (excluding any purchase by any
Subsidiary of capital stock of any of its Subsidiaries), as the case may be, now or hereafter
outstanding (or any options or warrants or stock appreciation rights issued by such Person with
respect to its capital stock) (all of the foregoing “Dividends”), except that:




(i) any Subsidiary of either Borrower may pay Dividends to its equityholders and the
applicable Borrower or any Subsidiary of Parent may pay Dividends to Parent;


 


40









 






(ii) Parent may redeem or repurchase Parent Common Stock and Series A Preferred (and
any options or warrants relating thereto) from any present or former member of management or
other key employee upon the death, permanent disability, retirement or termination of
employment of any such Person (any such event in respect of a present or former member of
management or a key employee, a “Repurchase Triggering Event”), provided
that (x) no Default under Section 9.1 or Event of Default is then in existence or would
arise therefrom, (y) the aggregate amount of all cash paid in respect of such shares so
redeemed or repurchased from all such Persons (other than pursuant to the Pike Holdings 2005
Employee Stock Purchase Plan) shall not exceed $2,000,000 in any fiscal year of Parent or
$6,000,000 in the aggregate after the Original Borrowing Date and (z) the aggregate amount
of all cash paid in respect of such shares so redeemed or repurchased in accordance with the
Pike Holdings 2005 Employee Stock Purchase Plan shall not exceed $1,500,000 in the aggregate
after the First Restatement Effective Date and; provided further that in the
event that Parent subsequently resells to any member of its, OpCo’s or any of their
respective Subsidiaries’ management, to any key employee or to a party acceptable to the
Administrative Agent (provided that any such party shall simultaneously transfer all
such shares purchased by it to a member of management of Parent, the Borrowers or such
Subsidiary or a key employee, or for the benefit of one or more members of management or key
employees (to the extent that such shares are, simultaneously with such transfer, reserved
for issuance to such members of management or such key employees pursuant to an employee
incentive plan)) any shares redeemed or repurchased pursuant to this clause (ii), the amount
of repurchases Parent may make pursuant to this clause (ii) shall be increased by an amount
equal to any cash received by Parent upon the resale of such shares or upon the issuance of
 shares to members of management, key employees or other party;




(iii) [Intentionally Omitted];




(iv) Parent may, in accordance with the terms of the Series A Preferred and if no Event
of Default shall have occurred and then be continuing, repurchase shares of the Series A
Preferred transferred in violation of the transfer restrictions applicable to such
 shares set forth in Section 10(c) of the Certificate of Designations for the Series A
Preferred, provided that (x) no such repurchase shall be for an amount in excess of
the sum of (A) the Available Amount plus (B) the unused amount permitted by Section
8.6(o), in each case, at the time of such repurchase and (y) the aggregate amount expended
subsequent to the Original Borrowing Date in connection with all such repurchases shall not
exceed $5,000,000;




(v) Parent may effect adjustments to the adjusted base value of (a) the Series A
Preferred in accordance with the terms of the Series A Preferred and (b) the Additional
Permitted Preferred in accordance with the terms of the Additional Permitted Preferred;




(vi) Parent may (A) so long as the Leverage Ratio is then less than or equal to 2.75 to
1.00, redeem or repurchase Parent Common Stock held by LGB and its Affiliates in exchange
for the issuance by Parent of preferred stock of Parent having terms not less favorable to
the Lenders than the terms of the Series A Preferred, provided that the inclusion in
such preferred stock of (x) a higher dividend rate than that included in the Series A
Preferred or (y) voting rights different from those granted to the Series A Preferred shall
be deemed not to be less favorable to the Lenders, and (B) redeem or repurchase Series A
Preferred pursuant to the conversion of Series A Preferred into Parent Common Stock in
accordance with the terms of the Series A Preferred;




(vii) in addition to the Series A Preferred repurchased pursuant to Sections 8.9(a)(ii)
and (iv), Parent may at any time, in accordance with the terms of the Series A Preferred and
if no Event of Default shall have occurred and then be continuing, repurchase shares of the
Series A Preferred in an aggregate amount expended subsequent to the First Restatement
Effective Date not exceeding the sum of (x) $5,000,000 and (y) the aggregate amount of
Equity Contributions not previously utilized pursuant to clauses (y)(1), (y)(2) and (y)(3)
of the definition of “Available Amount” prior to the date of such repurchase;


 


41









 






(viii) on or before April 10, 2005, OpCo may pay a dividend in one or more installments
to Parent in an amount not in excess of the Tranche C Term Loans to permit Parent to, and
Parent may (A) in addition to the Series A Preferred purchased pursuant to Sections
8.9(a)(ii), (iv) and (vii), at any time in accordance with the terms of the Series A
Preferred, redeem or repurchase shares of the Series A Preferred in an aggregate amount
expended subsequent to the First Amendment Effective Date not exceeding $20,000,000 and (B)
redeem or repurchase Parent Common Stock and options for Parent Common Stock and make
payments for partial cancellation of options for Parent Common Stock in an aggregate amount
expended subsequent to the First Amendment Effective Date, under this clause (B), not
exceeding $127,500,000;




(ix) Parent may (A) pay, redeem or repurchase Dividends on any date on which no Default
or Event of Default is in existence or would be in existence on a pro forma basis after
giving effect to the payment, redemption or repurchase of such Dividend and (B) pay, redeem
or repurchase any Dividend within 60 days after the date of declaration of the Dividend if
at the date of declaration the Dividend would have complied with subclause (A) of this
clause (ix); provided that (x) the aggregate cumulative amount of Dividends payable
under this clause (ix) shall not exceed (1) the sum of $30,000,000 and 50% of the cumulative
Excess Cash Flow (commencing with Excess Cash Flow in respect of Parent’s fiscal year ending
June 30, 2010) minus (2) the sum of the value of all cash collateral securing obligations
under all Permitted Letter of Credit Facilities and the aggregate cumulative amount of cash
expended by the Credit Parties in connection with all Credit Parties Loan Purchases; (y) the
Leverage Ratio for the most recent Test Period last ended on or before the date of payment
of such Dividend is less than 2.00 to 1.00 on a pro forma basis after giving effect to the payment of such Dividend; and (z) there are
no Revolving Loans outstanding as of the date of declaration of such Dividend (it being
understood that outstanding Letters of Credit shall not be considered to be Revolving Loans
for purposes of this clause (z));




(x) Parent may issue any class or series of capital stock so long as such class or
series of capital stock (i) is not convertible into Indebtedness, (ii) is not due or
redeemable (whether by voluntary or mandatory redemption and whether by means of a change of
control provision, put right, event of default or any other similar provision) prior to the
Tranche C Term Facility Final Maturity Date and (iii) does not contain terms that, directly
or indirectly, establish financial covenants or establish approval right over mergers,
acquisitions, dispositions or other similar matters, and must otherwise have terms
reasonably satisfactory to the Administrative Agent.




(b) Parent will not, and will not permit any of its Subsidiaries to, create or otherwise
cause or suffer to exist any encumbrance or restriction which prohibits or otherwise restricts (A)
the ability of any Subsidiary to (a) pay Dividends or make other distributions or pay any
Indebtedness owed to either Borrower or any other Subsidiary of Parent, (b) make loans or advances
to OpCo or any other Subsidiary of Parent or (c) transfer any of its properties or assets to
either Borrower or any Subsidiary of Parent or (B) the ability of either Borrower or any other
Subsidiary of Parent to create, incur, assume or suffer to exist any Lien upon its property or
assets to secure the Obligations, other than prohibitions or restrictions existing under or by
reason of:




(i) this Agreement and the other Credit Documents;




(ii) applicable law;


 


42









 






(iii) customary non-assignment provisions entered into in the ordinary course of
business and consistent with past practices;




(iv) any restriction or encumbrance with respect to a Subsidiary of either Borrower
imposed pursuant to an agreement which has been entered into for the sale or disposition of
all or substantially all of the capital stock or assets of such Subsidiary, so long as such
sale or disposition is permitted under this Agreement;




(v) any restriction or encumbrance with respect to any assets of either Borrower or any
of their respective Subsidiaries imposed pursuant to an agreement which has been entered
into for the sale or disposition of such assets, provided that such sale or
disposition is permitted under this Agreement and such restriction or encumbrance shall only
be effective against the assets to be sold or disposed of;




(vi) Liens permitted under Section 8.3 and any documents or instruments governing the
terms of any Indebtedness or other obligations secured by any such Liens, provided
that such prohibitions or restrictions apply only to the assets subject to such Liens; and




(vii) restrictions on the ability of either Borrower to create Liens on investment
assets acquired by either Borrower with amounts constituting deferred compensation owing to
current and former employees pursuant to the Deferred Compensation Plan or any Deferred
Compensation Agreement (or amounts equal to the earnings or gains on such investment
assets).



8.10. Transactions with Affiliates. Parent will not, and will not permit any Subsidiary of Parent to, enter into any
transaction or series of transactions, whether or not in the ordinary course of business, with any
Affiliate of Parent or such Subsidiary other than on terms and conditions substantially as
favorable to Parent or such Subsidiary as would be obtainable by Parent or such Subsidiary at the
time in a comparable arm’s length transaction with a Person other than an Affiliate of Parent or
such Subsidiary, provided that the foregoing restrictions shall not apply to (i)
transactions set forth in Annex 8.10 hereto, provided that no amount shall be paid by
Parent or any Subsidiary of Parent in connection with such transactions with LGB and its Affiliates
during the continuation of an Event of Default, (ii) payments pursuant to the Management Advisory
Agreement, without giving effect to any amendments, supplements or other modifications thereto
after the First Restatement Effective Date (other than those that reduce the amounts of such
payments) and the payment of the Termination Fee on or before the date immediately after the
receipt by Parent of the proceeds of the IPO so long as no Event of Default exists at the time of
such payment, (iii) employment arrangements entered into in the ordinary course of business with
employees and officers of Parent and its Subsidiaries, (iv) customary fees paid or other
compensation arrangements provided to members of the Board of Directors of Parent and of its
Subsidiaries, (v) transactions between or among either Borrower and their respective Wholly-Owned
Subsidiaries, (vi) transactions between or among either Borrower and their respective Subsidiaries
in the ordinary course of business, (vii) transactions contemplated by the Acquisition Documents
(including payment of the Adjusted AEP Amount and the Federal Project Cash Flow Amount) and
payments pursuant to the Deferred Compensation Agreements and (viii) transactions permitted by
Section 8.6(k).



8.11. Sales and Leasebacks. Parent will not, and will not permit any Subsidiary of Parent to, enter into any
arrangement with any Person providing for the leasing by any Credit Party of real or personal
property that has been or is to be sold or transferred by such Credit Party to such Person or to
any other Person to whom funds have been or are to be advanced by such Person on the security of
such property or rental obligations of such Credit Party, other than (a) any such arrangement
entered into in connection with (x) the financing of the acquisition of such property with the
proceeds of purchase money Indebtedness incurred as permitted by Section 8.4(c)(y) or (y) the sale
and leaseback of such property pursuant to an operating lease permitted by Section 8.7 within 90
days of the acquisition of such property by OpCo and its Subsidiaries, and (b) a Qualified
Sale/Leaseback Transaction, provided that, the aggregate Net Cash Proceeds received from
all Qualified Sale/Leaseback Transactions entered into subsequent to the Original Borrowing Date
shall not exceed $30,000,000.


 


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8.12. Changes in Fiscal Periods. Neither Borrower shall change its fiscal year to end on a day other than June 30 or change
its method of determining fiscal quarters, except that either Borrower may change its fiscal year
to end on or about December 31 and make corresponding changes to its method of determining fiscal
quarters.



8.13. Cash Interest Coverage Ratio. Parent will not permit the Cash Interest Coverage Ratio for any Test Period to be less than
3.50 to 1.00.



8.14. Leverage Ratio. Parent will not permit the Leverage Ratio at the end of any Test Period ending on or about
any date set forth below to be more than the ratio set forth opposite such date:



	 	 	 	 	 
	Fiscal Quarter End Date	 	Leverage Ratio	 
	December 31, 2004
	 	 	4.75 to 1.00	 
	March 31, 2005
	 	 	4.75 to 1.00	 
	June 30, 2005
	 	 	4.75 to 1.00	 
	September 30, 2005
	 	 	4.75 to 1.00	 
	December 31, 2005
	 	 	4.75 to 1.00	 
	March 31, 2006
	 	 	4.75 to 1.00	 
	June 30, 2006
	 	 	4.50 to 1.00	 
	September 30, 2006
	 	 	4.50 to 1.00	 
	December 31, 2006
	 	 	4.50 to 1.00	 
	March 31, 2007
	 	 	4.50 to 1.00	 
	June 30, 2007
	 	 	4.25 to 1.00	 
	September 30, 2007
	 	 	4.25 to 1.00	 
	December 31, 2007
	 	 	4.25 to 1.00	 
	March 31, 2008
	 	 	4.25 to 1.00	 
	June 30, 2008
	 	 	3.75 to 1.00	 
	September 30, 2008
	 	 	3.75 to 1.00	 
	December 31, 2008
	 	 	3.75 to 1.00	 
	March 31, 2009
	 	 	3.75 to 1.00	 
	June 30, 2009
	 	 	3.25 to 1.00	 
	September 30, 2009
	 	 	3.25 to 1.00	 
	December 31, 2009
	 	 	3.25 to 1.00	 
	March 31, 2010
	 	 	3.25 to 1.00	 
	June 30, 2010
	 	 	3.00 to 1.00	 
	September 30, 2010
	 	 	3.00 to 1.00	 
	December 31, 2010
	 	 	3.00 to 1.00	 
	March 31, 2011
	 	 	3.00 to 1.00	 
	June 30, 2011
	 	 	2.50 to 1.00	 
	September 30, 2011
	 	 	2.50 to 1.00	 
	December 31, 2011
	 	 	2.50 to 1.00	 
	March 31, 2012
	 	 	2.50 to 1.00	 
	June 30, 2012 and thereafter
	 	 	2.25 to 1.00	 





 


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8.15. Deferred Compensation Liability. (a) Parent will not, and will not permit any of its Subsidiaries to, make any payments on
account of the Deferred Compensation Liability during any fiscal year of OpCo in an aggregate
amount exceeding the amount set forth opposite such fiscal year below (the amount so set forth for
any such fiscal year, the “Deferred Compensation Liability Annual Amount” for such fiscal year):



	 	 	 	 	 
	 	 	Deferred Compensation	 
	Fiscal Year	 	Liability Annual Amount	 
	2005	 	$	23,500,000	 
	2006	 	$	12,500,000	 
	2007	 	$	7,500,000	 
	2008	 	$	6,500,000	 
	2009 and thereafter
	 	$	6,000,000	 






; provided that, the Deferred Compensation Liability Annual Amount for any fiscal year may
be increased upon the delivery of a certificate of an Authorized Officer of OpCo certifying that
the Deferred Compensation Liability has been finally determined pursuant to Section 1.06 of the Acquisition
Agreement and specifying the increased amount of the Deferred Compensation Liability Annual Amount
for each fiscal year, together with supporting calculations thereto, in an aggregate amount equal
to the tax adjusted amount of any cash refund of the Adjusted Purchase Price applied to prepay the
Term Loans pursuant to Section 4.2(a)(viii).




(b) Notwithstanding anything to contrary contained in Section 8.15(a), to the extent the
Deferred Compensation Liability Annual Amount is not expended in any fiscal year pursuant to
Section 8.15(a) above, 100% of such unused amount may be carried forward to the succeeding fiscal
year (it being understood and agreed that amounts expended in any fiscal year pursuant to Section
8.15(a) shall be applied against the Deferred Compensation Liability Annual Amount for such fiscal
year before being applied against amounts carried forward from the prior fiscal year).




(c) Notwithstanding anything to the contrary contained in Section 8.15(a), if, pursuant to
any Pike Employment Agreement, OpCo shall be required to make any payment on account of the
Deferred Compensation Liability during any fiscal year (the “Payment Year”) of any amount
otherwise scheduled to be paid subsequent to such fiscal year pursuant to such Pike Employment
Agreement, the Deferred Compensation Liability Annual Amount for the Payment Year shall be
increased by the amount of such payment and the Deferred Compensation Liability Annual Amount for
subsequent fiscal years shall be reduced by the amounts scheduled to be paid in such years which
were paid during the Payment Year.



SECTION 9. EVENTS OF DEFAULT.



Upon the occurrence of any of the following specified events (each an “Event of
Default”):



9.1. Payments. Either Borrower shall (i) default in the payment when due of any principal of the Loans or
(ii) default, and such default shall continue for five or more days, in the payment when due of any
Unpaid Drawing, any interest on the Loans or any Fees or any other amounts owing hereunder or under
any other Credit Document; or



9.2. Representations etc. Any representation, warranty or statement made by any Credit Party herein or in any other
Credit Document or in any statement or certificate delivered or required to be delivered pursuant
hereto or thereto shall prove to be untrue in any material respect on the date as of which made or
deemed made; or


 


45









 





9.3. Covenants. Any Credit Party shall (a) default in the due performance or observance by it of any term,
covenant or agreement contained in Sections 7.1(e), 7.11 or Section 8, or (b) default in the due
performance or observance by it of any term, covenant or agreement (other than those referred to in
Section 9.1, 9.2 or clause (a) of this Section 9.3) contained in this Agreement and such default
shall continue unremedied for a period of at least 30 days after notice to the defaulting party by
the Administrative Agent or the Required Lenders; or



9.4. Default Under Other Agreements. Any Credit Party or any of their Subsidiaries shall (i) default in any payment with respect
to any Indebtedness (other than payment defaults described in Section 9.1 above) or (ii) default in
the observance or performance of any agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of
such holder or holders) to cause, any such Indebtedness to become due prior to its stated maturity;
provided that it shall not constitute an Event of Default pursuant to this Section 9.4
unless at the time of such default, defaults, events or conditions of the type described in clauses
(i) and (ii) of this Section 9.4 shall have occurred and be continuing with respect to Indebtedness
the outstanding principal amount of which exceeds in the aggregate $10,000,000; or



9.5. Bankruptcy, etc. Any Credit Party or any of its Material Subsidiaries shall commence a voluntary case
concerning itself under Title 11 of the United States Code entitled “Bankruptcy”, as now or
hereafter in effect, or any successor thereto (the “Bankruptcy Code”); or an involuntary
case is commenced against any Credit Party or any of its Material Subsidiaries and the petition is
not controverted within ten days, or is not dismissed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all
or substantially all of the property of any Credit Party or any of its Material Subsidiaries; or
any Credit Party or any of its Material Subsidiaries commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to any
Credit Party or any of its Material Subsidiaries; or there is commenced against any Credit Party or
any of its Material Subsidiaries any such proceeding which remains undismissed for a period of at
least 60 days; or any Credit Party or any of its Material Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or proceeding is entered;
or any Credit Party or any of its Material Subsidiaries suffers any appointment of any custodian or
the like for it or any substantial part of its property to continue undischarged or unstayed for a
period of at least 60 days; or any Credit Party or any of its Material Subsidiaries makes a general
assignment for the benefit of creditors; or any corporate action is taken by any Credit Party or
any of its Material Subsidiaries for the purpose of effecting any of the foregoing; or



9.6. ERISA. (a) A Plan which is a single-employer plan (as defined in Section 4001(a)(15) of ERISA)
shall fail to satisfy the minimum funding standard required by Section 412 of the Code for any plan
year or a waiver of such standard or extension of any amortization period is sought or granted
under Section 412 of the Code or shall provide security to induce the issuance of such waiver or
extension, (b) any Plan is or shall have been or is likely to be terminated or the subject of
termination proceedings under ERISA or an event has occurred entitling the PBGC to terminate a Plan
under Section 4042(a) of ERISA, (c) any Plan shall have had or is likely to have a trustee
appointed to administer such Plan, (d) a contribution required to be made to a Plan has not been
timely made, (e) any Plan shall have an Unfunded Current Liability or (f) a Credit Party or a
Subsidiary of a Credit Party or any ERISA Affiliate has incurred or is likely to incur a material
liability to or on account of a termination of or a withdrawal from a Plan under Section 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29) of the Code; and there shall
result from any such event or events described in the preceding clauses of this Section 9.6 the
imposition of a lien upon the assets of Parent or any Subsidiary of a Credit Party, the granting of
a security interest, or a liability or a material risk of incurring a liability to the PBGC or a
Plan or a trustee appointed under ERISA or a penalty under Section 4971 of the Code, which lien,
security interest, liability or penalty would have a Material Adverse Effect; or


 


46









 





9.7. Security Documents. Any Security Document shall cease to be in full force and effect, or shall cease to give
the Administrative Agent the Liens purported to be created thereby with respect to assets that are
material, individually or in the aggregate, to Parent and its Subsidiaries, taken as a whole
(except to the extent resulting from the failure of the Administrative Agent to maintain possession
of Collateral as to which the Liens thereon are perfected solely by possession or from a sale or
other disposition of such Collateral permitted hereby); or any Credit Party shall default in any
material respect in the due performance or observance of any term, covenant or agreement on its
part to be performed or observed pursuant to any such Security Document and such default shall
continue for a period of at least 30 days after notice to the defaulting party by the
Administrative Agent or the Required Lenders (or such shorter period as may be specified in such
Security Document); or



9.8. Guaranty. Any Guaranty or any provision thereof shall cease to be in full force or effect, except in
each case to the extent resulting from a sale or liquidation of the applicable Guarantor permitted
hereby, or any Guarantor or any Person acting by or on behalf of such Guarantor shall deny or
disaffirm such guarantor’s obligations under such Guaranty; or any Guarantor shall default in the
due performance or observance of any material term, covenant or agreement on its part to be
performed or observed pursuant to the relevant Guaranty and if such default is a default in any
obligation under such Guaranty other than to make payments in respect of the Obligations such
default shall continue for a period of at least 30 days after notice to the defaulting party by the
Administrative Agent or the Required Lenders (or such shorter period as may be specified in such
Guaranty); or



9.9. Judgments. One or more judgments or decrees shall be entered against any Credit Party or any of their
respective Subsidiaries involving in the aggregate a liability (not paid or fully covered by
insurance as to which the relevant insurance company has not disputed coverage) of $10,000,000 or
more and (i) such judgments or decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 30 days from the entry thereof or (ii) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order; or



9.10. Change of Control. A Change of Control shall have occurred.



then, and in any such event, and at any time thereafter, if any Event of Default shall then be
continuing, the Administrative Agent shall, upon the written request of the Required Lenders, by
written notice to the Borrowers, take any or all of the following actions, without prejudice to the
rights of the Administrative Agent or any Lender to enforce its claims against either Borrower,
except as otherwise specifically provided for in this Agreement (provided that, if an Event
of Default specified in Section 9.5 shall occur with respect to either Borrower, the result which
would occur upon the giving of written notice by the Administrative Agent as specified in clauses
(i) and (ii) below shall occur automatically without the giving of any such notice): (i) declare
the Total Commitment terminated, whereupon the Commitment of each Lender shall forthwith terminate
immediately and any Commitment Fee shall forthwith become due and payable without any other notice
of any kind; (ii) declare the principal of and any accrued interest in respect of all Loans and all
obligations owing hereunder (including Unpaid Drawings) and thereunder to be, whereupon the same
shall become, forthwith due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by Parent and the Borrowers; (iii) enforce, as
Administrative Agent (or direct the Administrative Agent to enforce), any or all of the Liens and
security interests created pursuant to the Security Documents; (iv) terminate any Letter of Credit
which may be terminated in accordance with its terms; and (v) direct the Borrowers to pay (and the
Borrowers hereby agree that upon receipt of such notice, or upon the occurrence of any Event of
Default specified in Section 9.5 in respect of either Borrower, it will pay) to the Administrative
Agent at the Payment Office such additional amounts of cash, to be held as security for the
Borrowers’ reimbursement obligations in respect of Letters of Credit then outstanding equal to the
aggregate Stated Amount of all Letters of Credit then outstanding.


 


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Except as expressly provided in this Section and in the Security Documents, presentment,
demand, protest and all other notices of any kind are hereby expressly waived with respect to the
exercise of remedies upon an Event of Default.



SECTION 10. DEFINITIONS



As used herein, the following terms shall have the meanings herein specified unless the
context otherwise requires. Defined terms in this Agreement shall include in the singular number
the plural and in the plural the singular:



“ABR Loans” shall mean Loans the rate of interest applicable to which is based upon
the Alternate Base Rate.



“Acquisition” shall mean the purchase of all of the outstanding shares of common
stock, no par value, of Red Simpson (constituting all the issued and outstanding capital stock of
Red Simpson) by OpCo pursuant to the Acquisition Agreement.



“Acquisition Agreement” shall mean that certain Stock Purchase Agreement, dated as of
May 4, 2004, by and among Sellers, Red Simpson and OpCo.



“Acquisition Documents” shall mean the Acquisition Agreement and all other documents
entered into or delivered by OpCo or any of its Subsidiaries with or to Red Simpson or any of the
Sellers in connection with the Acquisition Agreement.



“Additional Permitted Preferred” shall mean any preferred stock of Parent issued
pursuant to clause (A) of Section 8.9(a)(vi).



“Adjusted AEP Amount” shall have the meaning provided in the Acquisition Agreement.



“Adjusted Purchase Price” shall have the meaning provided in the Acquisition
Agreement.



“Adjustment Date” shall be as defined in the definition of Applicable Margin.



“Administrative Agent” shall have the meaning provided in the first paragraph of this
Agreement and shall include any successor to the Administrative Agent appointed pursuant to Section
11.9.



“Affected Loan” shall have the meaning provided in Section 4.2(b)(i).


 


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“Affiliate” shall mean, as to any Person, (a) any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with, such Person or (b)
any Person who is a director, officer, shareholder, member or partner (i) of such Person, (ii) of
any Subsidiary of such Person or (iii) of any Person described in the preceding clause (a). For
purposes of this definition, “control” of a Person means the power, directly or indirectly, either
to (i) vote 10% or more of the securities having ordinary voting power for the election of
directors of such Person or (ii) direct or cause the direction of the management and policies of
such Person whether by contract or otherwise; provided, however, that members and
Affiliates of the Parent that would not be Affiliates of Parent other than by reason of being a
member or Affiliate of the Parent and that neither in fact participate in the management of any of
the Parent or Parent, nor control or are controlled by the Parent or any of their Affiliates or are
controlled by Parent or any of its Affiliates, who in fact participate in the management of any of
the Parent or Parent, shall be deemed not to be Affiliates of Parent or any of its Subsidiaries.



“Agreement” shall mean this Second Amended and Restated Credit Agreement, as the same
may be from time to time further modified, amended and/or supplemented.



“Alternate Base Rate” shall mean, for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on such day
and (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes
hereof: “Prime Rate” shall mean the rate of interest per annum publicly announced from
time to time by the Administrative Agent as its prime rate in effect at its principal office in New
York City, and “Federal Funds Effective Rate” shall mean, for any day, the weighted average
of the rates on overnight Federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate, for any reason, including
the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance
with the terms hereof, the Alternate Base Rate shall be determined without regard to clause (b) of
the first sentence of this definition, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change in the Prime Rate
or the Federal Funds Effective Rate shall be effective on the effective day of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.



“Anticipated Reinvestment Amount” shall mean, with respect to any Reinvestment
Election, the amount specified in the Reinvestment Notice delivered by either Borrower in
connection therewith as the amount of the Net Cash Proceeds from the related Asset Sale or Recovery
Event that such Borrower intends to use to purchase, construct or otherwise acquire Reinvestment
Assets.



“Applicable Margin” shall mean, for each Type and category of Loan, the rate per
annum, based upon the Leverage Ratio, as set forth under the relevant column heading and opposite
the relevant category below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	ABR Loans	 
	 	 	Eurodollar Loans	 	 	Revolving	 	 	 	 	 	 	 
	 	 	 	 	 	 	Tranche B	 	 	Tranche C	 	 	Loans and	 	 	Tranche B	 	 	 	 
	 	 	Revolving	 	 	Term	 	 	Term	 	 	Swingline	 	 	Term	 	 	Tranche C	 
	Leverage Ratio	 	Loans	 	 	Loans	 	 	Loans	 	 	Loans	 	 	Loans	 	 	Term Loans	 
	Greater than 2.75x
	 	 	4.00	%	 	 	1.75	%	 	 	1.75	%	 	 	3.00	%	 	 	0.75	%	 	 	0.75	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Less than or equal
to 2.75x but
greater than or
equal to 2.50x
	 	 	3.75	%	 	 	1.50	%	 	 	1.50	%	 	 	2.75	%	 	 	0.50	%	 	 	0.50	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Less than 2.50x
	 	 	3.50	%	 	 	1.50	%	 	 	1.50	%	 	 	2.50	%	 	 	0.50	%	 	 	0.50	%





 


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For the purposes of this definition, changes in the Applicable Margin resulting from changes
in the Leverage Ratio shall become effective on the date (the “Adjustment Date”) that is
three Business Days after the date on which financial statements are delivered or deemed delivered
to the Lenders pursuant to Section 7.1 and shall remain in effect until the next change to be
effected pursuant to this paragraph. If any financial statements referred to above are not
delivered or deemed delivered within the time periods specified in Section 7.1, then, until the
date that is three Business Days after the date on which such financial statements are delivered or
deemed delivered, the highest rate set forth in each column of the above Applicable Margin grid
shall apply. In addition, at all times while an Event of Default shall have occurred and be
continuing, the highest rate set forth in each column of the above Applicable Margin grid shall
apply. Each determination of the Leverage Ratio pursuant to the above Applicable Margin grid shall
be made in a manner consistent with the determination thereof pursuant to Section 8.14.



“Applicable Prepayment Percentage” shall mean (i) for any fiscal year ending prior to
June 30, 2009, 75%, provided that, if the Leverage Ratio as of the last day of such fiscal
year is not greater than 2.5 to 1.0, the Applicable Prepayment Percentage shall mean 50%; and (ii)
for any fiscal year ending on or after June 30, 2009, 50%, provided that (y) if the
Leverage Ratio as of the last day of such fiscal year is less than or equal to 2.50 to 1.00 and
greater than 2.00 to 1.00, the Applicable Prepayment Percentage shall mean 25% and (z) if the
Leverage Ratio as of the last day of such fiscal year is less or equal to than 2.00 to 1.00, the
Applicable Prepayment Percentage shall mean 0%.



“Approved Fund” shall mean (a) a CLO and (b) with respect to any Lender that is a fund
which invests in bank loans and similar extensions of credit, any other fund that invests in bank
loans and similar extensions of credit and is managed by the same investment advisor as such Lender
or by an Affiliate of such investment advisor.



“Arrangers” shall have the meaning set forth in the First Restatement.



“Asset Sale” shall mean the sale, transfer or other disposition by Parent or any
Subsidiary of Parent of any asset or property to any Person other than Parent or any Subsidiary of
Parent (other than sales, transfers or other dispositions in the ordinary course of business and
sales of assets pursuant to Sections 8.2(g) and 8.11) (including any sale and leaseback of assets
and any sale of a mortgage of real property held by Parent or any of its Subsidiaries as mortgagee)
if the assets subject thereto have an aggregate book value or sales price in excess of $100,000 (it
being understood that if said aggregate book value or sales price exceeds $100,000, the entire Net
Cash Proceeds of such Asset Sale or disposition shall be deemed Net Cash Proceeds of such Asset
Sale).



“Authorized Officer” shall mean any senior officer of Parent or OpCo, as the case may
be, designated as such in writing to the Administrative Agent by Parent or OpCo, as the case may
be, in each case to the extent reasonably acceptable to the Administrative Agent.



“Available Amount” shall mean, on any date of determination, an amount equal to the
positive difference, if any, of:




(x) the sum of (i) the sum of the Borrowers’ Share of Excess Cash Flow for each full
fiscal year of Parent commencing with the fiscal year ending June 30, 2005 and completed at
or prior to such time for which financial statements are available plus (ii)
aggregate amount of Equity Contributions at such time minus


 


50









 






(y) the sum of (1) the greater of:




(A) the excess, if any, of (i) the aggregate amount of consideration given by
the Borrowers and their respective Subsidiaries at or prior to such time (whether
cash or property, as valued in good faith by the Board of Directors of each
Borrower, but excluding Earnout Payments), net of any return representing return of
capital of (but not return on) any such investment, in connection with Permitted
Business Acquisitions (excluding the Acquisition) made pursuant to Section 8.6(j)
(all such consideration referred to in this clause (i), “Non-Earnout
Consideration”) over (ii) $25,000,000, and




(B) the excess, if any, of (i) the sum of (I) the aggregate amount of
Non-Earnout Consideration given by the Borrowers and their respective Subsidiaries
at or prior to such time plus (II) the aggregate amount of Earnout Payments
made subsequent to the First Restatement Effective Date and obligations in respect
to future Earnout Payments to the extent of the then maximum amount that the
Borrowers and their respective Subsidiaries could be required to pay in the future
under agreements with respect thereto then in effect over (ii) $30,000,000;




(2) the aggregate amount of payments made at or prior to such time to repurchase
 shares of Series A Preferred pursuant to clause (x)(A) of Section 8.9(a)(iv),




(3) the aggregate amount of Equity Contributions used at or prior to such time to
repurchase shares of Series A Preferred pursuant to clause (y) of Section
8.9(a)(vii),




(4) the cumulative aggregate amount of Dividends made by Parent from and after the
Second Restatement Date pursuant to Section 8.9, and




(5) the cumulative aggregate cash consideration paid to all assigning Lenders by the
Credit Parties in respect of all Credit Party Loan Purchases made at or prior to
such time.




For the purpose of determining pursuant to Section 8.9(a)(vii), at any time, the
aggregate amount of Equity Contributions that have been utilized for permitted uses of the
Available Amount, such amount of Equity Contributions shall be the excess, if any, of the
sum of clauses (y)(1), (y)(2) and (y)(3) above at such time over clause (x)(i) above at such
time.



“Bankruptcy Code” shall have the meaning provided in Section 9.5.



“Barclays” shall mean Barclays Bank PLC.



“Borrowers” shall mean Parent and OpCo, jointly, severally and collectively.



“Borrower Assignment Agreement” shall mean a borrower assignment agreement
substantially in the form of Exhibit L.



“Borrower’s Share of Excess Cash Flow” shall mean, for any fiscal year of Parent, the
product of (A) Excess Cash Flow for such fiscal year multiplied by (B) a percentage equal
to 100% minus the Applicable Prepayment Percentage for such fiscal year.


 


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“Borrowing” shall mean the incurrence of one Type of Loan pursuant to a single
Facility by either Borrower from all of the Lenders having Commitments with respect to such
Facility on a pro rata  basis on a given date (or resulting from conversions on a given date),
having in the case of Eurodollar Loans the same Interest Period; provided that ABR Loans
incurred pursuant to Section 1.10(b) shall be considered part of any related Borrowing of
Eurodollar Loans.



“Business Day” shall mean (i) for all purposes other than as covered by clause (ii)
below, any day excluding Saturday, Sunday and any day which shall be in the City of New York a
legal holiday or a day on which banking institutions are authorized by law or other governmental
actions to close and (ii) with respect to all notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, any day which is a Business Day described
in clause (i) and which is also a day for trading by and between banks in Dollar deposits in the
interbank Eurodollar market.



“capital stock” of any Person shall mean any and all shares, interests, rights to
purchase, warrants, options, participation or other equivalents of or interests in (however
designated) equity of such Person, including any preferred stock, any limited or general
partnership interest and any limited liability company membership interest.



“Cancellation” shall mean any cancellation of Term Loans pursuant to Section 12.4(e).



“Capital Lease” as applied to any Person shall mean any lease of (or arrangement
conveying the right to use) any property (whether real, personal or mixed) by that Person as lessee
which, in conformity with GAAP, is classified and accounted for as a capital lease on the balance
sheet of that Person.



“Capitalized Lease Obligations” shall mean all obligations under Capital Leases of
Parent or any of its Subsidiaries in each case taken at the amount thereof accounted for as
liabilities in accordance with GAAP.



“Cash Equivalents” shall mean (i) securities issued or directly and fully guaranteed
or insured by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is pledged in
support thereof) having maturities of not more than six months from the date of acquisition, (ii)
Dollar denominated demand or time deposits, certificates of deposit and bankers’ acceptances of (x)
any domestic commercial bank of recognized standing having capital and surplus in excess of
$500,000,000 or (y) any bank whose short-term commercial paper rating from Standard & Poor’s
Ratings Service or its successor or assign which remains in the business of rating creditworthiness
of commercial paper (“S&P”) is at least A-1 or the equivalent thereof or from Moody’s
Investors Service or its successor or assign which remains in the business of rating
creditworthiness of commercial paper (“Moody’s”) is at least P-1 or the equivalent thereof
(any such bank, an “Approved Lender”), in each case with maturities of not more than six
months from the date of acquisition, (iii) commercial paper issued by any Lender or Approved Lender
or by the parent company of any Lender or Approved Lender and commercial paper issued by, or
guaranteed by, any industrial or financial company with a short-term commercial paper rating of at
least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s, or
guaranteed by any industrial company with a long term unsecured debt rating of at least A or A2, or
the equivalent of each thereof, from S&P or Moody’s, as the case may be, and in each case maturing
within six months after the date of acquisition and (iv) money market funds that (x) comply with
the criteria set forth in SEC Rule 2a-7 under the ICA, (y) are rated at least AA+ by S&P and at
least, Aa1 by Moody’s and (z) have portfolio assets of at least $5,000,000,000.


 


52









 





“Cash Interest Coverage Ratio” shall mean for any period the ratio of Consolidated
EBITDA for such period to Consolidated Cash Interest Expense for such period.



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



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



“Cash Proceeds” shall mean, with respect to any Asset Sale or any Recovery Event, the
aggregate cash payments (including any cash received by way of deferred payment pursuant to a note
or installment receivable or purchase price adjustment receivable or otherwise issued in connection
with such Asset Sale or Recovery Event, other than the portion of such deferred payment
constituting interest, but only as and when so received) received by Parent and/or any Subsidiary
from such Asset Sale or Recovery Event.



“CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq.



“Change of Control” shall mean and include (i) any “person” or “group” (as such terms
are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)), excluding members of the LGB Group, shall become, or obtain rights
(whether by means or warrants, options or otherwise) to become, the “beneficial owner” (as defined
in Rule 13(d)(3) and 13(d)(5) of the Exchange Act), directly or indirectly, of more than 35% of the
outstanding common stock of Parent; or (ii) Parent shall cease to own and control, of record and
beneficially, directly, 100% of each class of outstanding capital stock of OpCo; or (iii) OpCo
shall issue any capital stock (or any security convertible into any of its capital stock) which is
not pledged to the Administrative Agent for the benefit of the Lenders; or (iv) a “Change of
Control” under the Series A Preferred.



“CLO” shall mean any entity (whether a corporation, partnership, trust or otherwise)
that is engaged in making, purchasing, holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course of its business and is administered or managed by a
Lender or an Affiliate of such Lender.



“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and
the regulations promulgated and the rulings issued thereunder. Section references to the Code are
to the Code, as in effect at the Second Restatement Effective Date and any subsequent provisions of
the Code, amendatory thereof, supplemental thereto or substituted therefor.



“Collateral” shall mean all of the Collateral as defined in each of the Security
Documents.



“Commitment” shall mean, with respect to each Lender, such Lender’s Term Commitment
and Revolving Commitment and, in the case of Barclays, the Swingline Commitment.



“Commitment Fee” shall have the meaning provided in Section 3.1(a).


 


53









 





“Consolidated Capital Expenditures” shall mean, for any period and with respect to
Parent, the aggregate of all expenditures by Parent and its Subsidiaries for the acquisition or
leasing (pursuant to a Capital Lease) of fixed or capital assets or additions to equipment (including
replacements, capitalized repairs and improvements during such period) which should be capitalized
under GAAP on a consolidated balance sheet of Parent and its Subsidiaries plus consulting
fees and related expenses, excluding (a) any such expenditure to the extent made with the proceeds
of any sale of fixed or capital assets, so long as such proceeds are so applied within twelve
months of such sale, (b) any such expenditure made to restore, replace or rebuild property to the
condition of such property immediately prior to any damage, loss, destruction or condemnation of
such property, to the extent such expenditure is made with insurance proceeds or condemnation
awards relating to any such damage, loss, destruction or condemnation, (c) all such expenditures in
connection with Permitted Business Acquisitions and (d) any such expenditures made in connection
with any Qualified Sale/Leaseback Transaction. For the purpose of this definition, the purchase
price of equipment which is purchased simultaneously with the trade-in of existing equipment owned
by Parent or any of its Subsidiaries shall be included in Consolidated Capital Expenditures only to
the extent of the gross amount of such purchase price less the credit granted by the seller
of such equipment for such equipment being traded in at such time.



“Consolidated Cash Interest Expense” shall mean, for any period, Consolidated Interest
Expense, but excluding, however, interest expense not payable in cash.



“Consolidated Current Assets” shall mean, at a particular date, with respect to any
Person, all amounts (other than cash and Cash Equivalents) which would, in conformity with GAAP, be
set forth opposite the caption “total current assets” (or any like caption) on a consolidated
balance sheet of such Person and its Subsidiaries at such date.



“Consolidated Current Liabilities” shall mean, at a particular date, with respect to
any Person, all amounts which would, in conformity with GAAP, be set forth opposite the caption
“total current liabilities” (or any like caption) on a consolidated balance sheet of such Person
and its Subsidiaries at such date, but excluding (a) the current portion of any Consolidated Total
Funded Debt (including Term Loans) of such Person and its Subsidiaries, (b) without duplication of
clause (a) above, all Indebtedness consisting of Revolving Loans or Swing Line Loans to the extent
otherwise included therein and (c) any current portion of deferred taxes.



“Consolidated EBITDA” shall mean, for any period, (a) Consolidated Net Income of such
Person for such period, plus, without duplication and to the extent reflected as a charge
in the statement of such Consolidated Net Income for such period, the sum of (i) total income tax
expense, (ii) interest expense, amortization or writeoff of debt discount and debt issuance costs
and commissions, discounts and other fees and charges associated with Indebtedness (including the
Loans), (iii) depreciation and amortization expense, (iv) amortization of intangibles (including,
but not limited to, goodwill), capitalized consulting fees and organization costs, (v) any
extraordinary expenses or losses (including, whether or not otherwise includable as a separate item
in the statement of such Consolidated Net Income for such period, losses on sales of assets outside
of the ordinary course of business), (vi) any non-cash compensation and related expenses, (vii)
other non-cash charges reducing Consolidated Net Income (excluding any such non-cash charge to the
extent that it represents an accrual or reserve for potential cash charge in any future period or
amortization of a prepaid cash charge that was paid in a prior period), (viii) expenses
attributable to any step-up in the value of inventory as a result of the application of purchase
accounting in connection with any acquisition or recapitalization (including the Recapitalization)
or as a result of any LIFO adjustment, (ix) any contingent or deferred payments (including Earnout
Payments, noncompete payments and consulting payments) made to sellers in Permitted Business
Acquisitions, (x) any payment of fees owing to LGB and/or its Affiliates permitted pursuant to
Section 8.10, (xi) non-cash write-offs (including write-offs of goodwill, but excluding provisions
for restructuring charges), (xii) any nonrecurring charge or expense arising in connection with the
Tranche C Term Loans and any of the transactions contemplated by Section 8.9


 


54









 






(a)(viii),
the Recapitalization or the Acquisition and the transactions contemplated thereby, including the
incurrence of the Loans hereunder (including, without limitation, fees and expenses in connection
with the financing of the Recapitalization or the Acquisition (including consulting fees)), (xiii)
reasonable fees and expenses incurred in connection with the Sixth Amendment and the transactions
contemplated thereby and (xiv) reasonable fees and expenses incurred in connection with a Permitted
Business Acquisition, and minus any extraordinary income or gains (including, whether or
not otherwise includable as a separate item in the statement of such Consolidated Net Income for
such period, gains on the sales of assets outside of the ordinary course of business), (xv) any
expense due to any Deferred Compensation Liability during such period to the extent that such
expense is included in the income statement of Parent and its Subsidiaries for such period, (xvi)
non-cash charges related to or caused by the Pike Holdings 2005 Employee Stock Purchase Plan and
(xvii) any nonrecurring charge or expense incurred in connection with the IPO and the
Reincorporation Merger (including, without limitation, the expenses identified in the registration
statement filed with the SEC in connection with the IPO) whether or not consummated, minus
(b) other non-cash gains increasing Consolidated Net Income for such period (excluding any such
non-cash gain to the extent it represents the reversal of an accrual or reserve for potential cash
gain in any prior period).



Notwithstanding the foregoing, (1) for purposes of calculating the Cash Interest Coverage
Ratio and the Leverage Ratio as of the last day of any fiscal quarter in any Test Period occurring
during the twelve consecutive months following the Acquisition or a Permitted Business Acquisition,
Consolidated EBITDA shall be calculated for the relevant Test Period as if (i) the Acquisition or
such Permitted Business Acquisition, as the case may be, had been consummated and (ii) the cost
savings expected, in the good faith judgment of the management of Parent at such time, had been
achieved, in each case, on the first day of such Test Period; and (2) any gain in connection with a
Credit Party Loan Purchase permitted pursuant to Section 12.4(e) shall be considered a non-cash
gain and will not increase the amount of Consolidated EBITDA.



“Consolidated Interest Expense” shall mean, for any period, total interest expense
determined in accordance with GAAP net of interest income and, without duplication, receipts under
Interest Rate Agreements (including that attributable to Capital Leases in accordance with GAAP) of
Parent and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness of
Parent and its Subsidiaries, including, without limitation, all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers’ acceptance financing, but
excluding, however, any amortization of deferred financing costs and any costs paid in connection
with the establishment of Interest Rate Agreements (whether paid at inception or on a delayed
basis).



“Consolidated Net Income” shall mean for any period, the net income (or loss) of
Parent and its Subsidiaries on a consolidated basis for such period taken as a single accounting
period determined in conformity with GAAP, provided that there shall be excluded (i) the
income (or loss) of any Person (other than Parent or Subsidiaries of Parent) in which any other
Person (other than either Borrower or any of their respective Subsidiaries) has a joint interest,
except to the extent of the amount of dividends or other distributions actually received by Parent
or any of its Subsidiaries by such Person during such period and (ii) the income of any Subsidiary
of either Borrower to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary.



“Consolidated Total Funded Debt” shall mean, as at any date of determination, the
aggregate stated balance sheet amount of all Indebtedness (other than Indebtedness described in
clauses (f) (other than in respect of (i) drawings under any letter of credit to the extent not
reimbursed within two Business Days after the date thereof and (ii) acceptance facilities) and (g)
of the definition of Indebtedness), of Parent and its Subsidiaries determined on a consolidated basis in accordance
with GAAP and, in the case of the Borrowers, Indebtedness in respect of the Loans.


 


55









 





“Consolidated Working Capital” shall mean the excess of Consolidated Current Assets
over Consolidated Current Liabilities.



“Contingent Obligations” shall mean as to any Person (the “guaranteeing person”), any
obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any
bank under any letter of credit) to induce the creation of which the guaranteeing person has issued
a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”)
of any other third Person (the “primary obligor”) in any manner, whether directly or
indirectly, including, without limitation, any obligation of the guaranteeing person, whether or
not contingent, (i) to purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any
such primary obligation or (2) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of such primary obligation
or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss
in respect thereof; provided, however, that the term Contingent Obligation shall
not include endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation of any guaranteeing person shall be deemed to be
the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument embodying such Contingent
Obligation, unless such primary obligation and the maximum amount for which such guaranteeing
person may be liable are not stated or determinable, in which case the amount of such Contingent
Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect
thereof as determined by the Borrowers in good faith.



“Credit Documents” shall mean this Agreement, the Notes and the Security Documents.



“Credit Event” shall mean and include the making of a Loan or the issuance of a Letter
of Credit.



“Credit Party” shall mean Parent, OpCo and each Subsidiary Guarantor.



“Credit Party Loan Purchase” shall mean any purchase of Term Loans by any Credit Party
in accordance with Section 12.4(e).



“Default” shall mean any event, act or condition which with notice or lapse of time,
or both, would constitute an Event of Default.



“Defaulting Lender” shall mean any Lender with respect to which a Lender Default is in
effect.



“Deferred Compensation Agreement” shall mean any agreement providing for the payment
of Profit Sharing Interest or Minority Interest to the related holder thereof, including any
Employment Agreement Amendment and any Pike Employment Agreement.


 


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“Deferred Compensation Liability” shall mean OpCo’s obligation to pay Profit Sharing
Interest or Minority Interest to the related holder thereof pursuant to a Deferred Compensation
Agreement.



“Deferred Compensation Plan” shall mean the Amended and Restated Pike Electric, Inc.
Officers’ Deferred Compensation Plan, effective January 1, 2000, for officers and employees of OpCo
and its Subsidiaries, as such plan is in effect on the Original Borrowing Date without giving
effect to any amendments, supplements or other modifications thereto that are materially adverse to
the interests of the Lenders (it being understood that any amendment thereto that permits the early
termination of such Plan shall not be deemed to be materially adverse to the interests of the
Lenders).



“Dividends” shall have the meaning provided in Section 8.9.



“Documents” shall mean, collectively, (a) the Credit Documents and (b) the Acquisition
Documents.



“Dollars” and “$” shall mean dollars in lawful currency of the United States.



“Domestic Subsidiary” shall mean each Subsidiary of Parent other than the Foreign
Subsidiaries.



“Earnout Payments” shall mean payments made by a Credit Party under a contractual
arrangement entered into with a seller in connection with a Permitted Business Acquisition as part
of the consideration given to such seller for such Permitted Business Acquisition where the amounts
of such payments are based upon, and are dependent upon, the business acquired pursuant to such
Permitted Business Acquisition achieving meaningful revenue, earnings or other performance target
levels agreed upon in good faith by such Credit Party and such seller.



“Employment Agreement Amendments” shall be the Employment Agreement Amendments as
defined in, and entered into in connection with, the Acquisition Agreement.



“Environmental Claims” means any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental Law or any permit issued, or
any written approval given, under any such Environmental Law (hereafter, “Claims”),
including, without limitation, (a) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any
Environmental Law, and (b) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous
Materials arising from alleged injury or threat of injury to health, safety or the environment.



“Environmental Law” means any applicable Federal, state, foreign or local statute,
law, rule, regulation, ordinance, code and rule of common law now or hereafter in effect and in
each case as amended, including any judicial or administrative order, consent decree or judgment,
relating to the environment, health, safety or Hazardous Materials, including, without limitation,
CERCLA; RCRA; the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq.; the
Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et
seq.; the Safe Drinking Water Act, 42 U.S.C. § 300f et seq.; the Oil Pollution Act of 1990, 33
U.S.C. § 2701 et seq. and any applicable state and local or foreign counterparts or equivalents.


 


57









 





“Equity Contributions” shall mean, at any time, all equity contributions to Parent and
by Parent to OpCo made at any time after the Original Borrowing Date through such time (other than
equity contributions made pursuant to Section 5.1(g)(iii) and equity contributions consisting of
the purchase of shares by management as described in Section 8.9(a)(ii)).



“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations promulgated and rulings issued thereunder. Section
references to ERISA are to ERISA, as in effect at the Second Restatement Effective Date and any
subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.



“ERISA Affiliate” shall mean each person (as defined in Section 3(9) of ERISA) which
together with a Credit Party or a Subsidiary of a Credit Party would be deemed to be a “single
employer” within the meaning of Section 414 of the Code.



“Eurocurrency Reserve Requirements” shall mean, for any day as applied to a Eurodollar
Loan, the aggregate (without duplication) of the rates (expressed as a decimal) of the maximum
reserve requirements in effect on such day (including, without limitation, basic, supplemental,
marginal and emergency reserves under any regulations of the Board or other Governmental Authority
having jurisdiction with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of such
Board) maintained by a member bank of such System.



“Eurodollar Base Rate” shall mean, with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum equal to the rate at which Barclays is
offered Dollar deposits at or about 10:00 A.M., New York City time, two Business Days prior to the
beginning of such Interest Period in the interbank eurodollar market where the eurodollar and
foreign currency and exchange operations in respect of its Eurodollar Loans are then being
conducted for delivery on the first day of such Interest Period for the number of days comprised
therein and in an amount comparable to the amount of its Eurodollar Loan to be outstanding during
such Interest Period.



“Eurodollar Loans” shall mean Loans the rate of interest applicable to which is based
upon the Eurodollar Rate.



“Eurodollar Rate” shall mean, with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day in accordance with the
following formula (rounded upward to the nearest 1/16th of 1%):



Eurodollar Base Rate



 





1.00 — Eurocurrency Reserve Requirements




“Eurodollar Tranche” shall mean the collective reference to Eurodollar Loans the
Interest Periods with respect to all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the same day).



“Event of Default” shall have the meaning provided in Section 9.


 


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“Excess Cash Flow” shall mean, for any fiscal year, the excess of (a) the sum, without
duplication, of (i) Consolidated Net Income for such period, (ii) an amount equal to the amount of
all non-cash charges deducted in arriving at such Consolidated Net Income, (iii) the amount of
returned surplus assets of any Plan during such period to the extent not included in arriving at
such Consolidated Net Income, (iv) decreases in Consolidated Working Capital of Parent and its
Subsidiaries for such period, and (v) any net amounts received by Parent and its Subsidiaries in settlement of, or in
payment of any judgments resulting from, legal proceedings with respect to Parent or any such
Subsidiary during such fiscal year over (b) the sum, without duplication, of (i) an amount
equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income,
(ii) the aggregate amount actually paid by Parent and its Subsidiaries in cash during such period
on account of Consolidated Capital Expenditures (determined without regard to clauses (a), (b), (c)
and (d) of the definition of “Consolidated Capital Expenditures”), Permitted Business Acquisitions
and the Acquisition (reduced by the principal amount of Indebtedness incurred in connection with
such expenditures and, reduced, in the case of Consolidated Capital Expenditures, by the amount of
such expenditures constituting application of insurance proceeds or proceeds of sales of assets in
connection with the replacement of such assets, except to the extent that clause (a) of this
definition includes a corresponding amount directly attributable to such insurance proceeds or such
sales) and Deferred Compensation Liabilities, (iii) the aggregate amount of all prepayments of
Revolving Loans to the extent of accompanying permanent reductions of the Total Revolving
Commitments and all payments or prepayments of the Term Loans during such period pursuant to
Sections 4.2(a)(ii) or (iii) (to the extent that clause (a) of this definition includes a
corresponding amount directly attributable to the event giving rise to such mandatory prepayment,
in the case of Section 4.2(a)(iii)), (iv) the aggregate amount of all repayments during such period
of Capitalized Lease Obligations of Parent and its Subsidiaries (other than any portion thereof
allocable to Consolidated Cash Interest Expense) and all repayments during such period of the
principal of Indebtedness of Parent and its Subsidiaries (other than (x) under this Agreement and
(y) in respect of any revolving credit facility to the extent there is not an equivalent reduction
in commitments thereunder), (v) increases in Consolidated Working Capital of Parent and its
Subsidiaries for such period, (vi) an amount equal to the aggregate net non-cash gain on the sale,
lease, transfer or other disposition of assets by Parent and its Subsidiaries during such period
(other than sales of inventory in the ordinary course of business), to the extent included in
arriving at such Consolidated Net Income, (vii) costs paid in cash during such period in connection
with the establishment of Interest Rate Agreements but not deducted in determining Consolidated Net
Income in such period, and (viii) cash expenditures of Parent during such period pursuant to
Section 8.9(a)(ii) (less the amount of cash received by Parent during such period from the
sale of shares of Parent Common Stock to or for the benefit of management investors) and Section
8.10(i) hereof and (ix) the aggregate amount of cash reserves securing letters of credit or bonds
pursuant to Section 8.3(l) on the last day of such fiscal year. For the avoidance of doubt, in no
case will any amounts expended in connection with any Credit Party Loan Purchase be deducted in
calculating Excess Cash Flow.



“Existing Credit Agreement” shall have the meaning provided in the recitals to this
Agreement.



“Existing Indebtedness” shall have the meaning provided in Section 8.4(d).



“Existing Term Loans” shall mean the “Term Loans” as defined in the Existing Credit
Agreement.



“Expiration Date” shall mean the earlier to occur of (i) July 1, 2004 and (ii) the
date of termination (taking into account any extensions thereof) of the Acquisition Agreement.



“Facility” shall mean any of the credit facilities established under this Agreement,
i.e., the Tranche B Term Facility, the Tranche C Term Facility, the Revolving Facility or the
Swingline Facility.



“Federal Project Cash Flow Amount” shall have the meaning provided in the Acquisition
Agreement.


 


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“Fees” shall mean all amounts payable pursuant to, or referred to in, Section 3.1.



“Final Maturity Date” shall mean the collective reference to the Tranche B Term
Facility Final Maturity Date, the Tranche C Term Facility Final Maturity Date and the Revolving
Facility Final Maturity Date.



“First Amendment” shall mean the First Amendment, dated as of December 10, 2004, to
the Credit Agreement.



“First Amendment Effective Date” shall mean the date upon which all conditions
precedent specified in Section 4 of the First Amendment shall have been satisfied, which date is
December 10, 2004.



“First Restatement” shall have the meaning provided in the Recitals to this Agreement.



“First Restatement Effective Date” shall mean the date on which the First Restatement
became effective in accordance with its terms.



“Foreign Subsidiary” shall mean each Subsidiary of Parent incorporated or organized,
and doing business, in a jurisdiction other than the United States or any state or territory
thereof.



“Fronting Fee” shall have the meaning provided in Section 3.1(c).



“Fuel Hedge Agreements” shall mean all swap, cap, collar, floor, future or option
agreements or other similar arrangements or agreements, each of which is for the purpose of hedging
the price of diesel fuel related to the operations of the Borrowers and their respective
Subsidiaries and not for speculative purposes.



“Fuel Hedge Provider” shall mean any Person that, at the time it enters into a Fuel
Hedge Agreement with a Borrower, was a Lender or a Lender Affiliate, in its capacity as a party to
such Fuel Hedge Agreement.



“GAAP” shall mean generally accepted accounting principles 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 agencies with similar functions of comparable stature and authority within the accounting
profession), or in such other statements by such other entity as may be in general use by
significant segments of the accounting profession, as in effect from time to time; it being
understood and agreed that determinations in accordance with GAAP for purposes of Section 8,
including defined terms as used therein, are subject (to the extent provided therein) to Section
12.7(a).



“Governmental Authority” shall mean any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining government.



“Guarantee and Collateral Agreement” shall mean the Second Amended and Restated
Guarantee and Collateral Agreement substantially in the form of Exhibit H, as modified, amended or
supplemented from time to time in accordance with the terms thereof and hereof.



“Guaranties” shall mean the guaranties provided by Parent and the Subsidiary
Guarantors pursuant to the Guarantee and Collateral Agreement.


 


60









 





“Guarantor” shall mean each of Parent and the Subsidiary Guarantors.



“Hazardous Materials” means (a) any petroleum or petroleum products, radioactive
materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation,
transformers or other equipment that contains polychlorinated biphenyls, and radon gas and (b) any
chemicals, materials or substances defined as or included in the definition of “hazardous
substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous waste,” “restricted
hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,” or “pollutants,” or words
of similar import, under any Environmental Law.



“Hedge Agreements” shall mean all interest rate swaps, caps or collar agreements or
similar arrangements dealing with interest rates or currency exchange rates or the exchange of
nominal interest obligations, either generally or under specific contingencies.



“ICA” shall have the meaning provided in Section 6.7.



“Indebtedness” of any Person shall mean without duplication (a) all indebtedness of
such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price
of property or services (other than trade payables not overdue by more than 60 days incurred in the
ordinary course of such Person’s business and other than obligations under deferred compensation
plans, including the Deferred Compensation Liability), excluding any obligations in respect of
Earnout Payments and any other contingent obligations with respect to any deferred payments in
connection with the Recapitalization, the Acquisition or any Permitted Business Acquisitions, (c)
all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments,
(d) all indebtedness created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are limited to repossession or
sale of such property), (e) all Capitalized Lease Obligations of such Person, (f) all obligations,
contingent or otherwise, of such Person as an account party to reimburse any bank or other Person
under acceptance, letter of credit or similar facilities, (g) all obligations of such Person to
purchase, redeem, retire or otherwise acquire for value any capital stock of such Person or any
warrants, rights or options to acquire such capital stock other than such repurchases from former
directors, officers or employees made pursuant to the Shareholders’ Agreement, the Pike Holdings
2005 Employee Stock Purchase Plan or stock option agreements, (h) all Contingent Obligations of
such Person in respect of Indebtedness of a primary obligor, (i) all Indebtedness referred to in
clauses (a) through (h) above secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness and (j) for the purposes of Section
8.4 and Section 9.4 only, all obligations of such Person in respect of Hedge Agreements, Cash
Management Agreements and Fuel Hedge Agreements. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such Person’s ownership
interest in or other relationship with such entity, except to the extent the terms of such
Indebtedness expressly provide that such Person is not liable therefore.



“Interest Period” with respect to any Loan shall mean the interest period applicable
thereto, as determined pursuant to Section 1.9.



“Interest Rate Agreement” shall mean any interest rate swap agreement, any interest
rate cap agreement, any interest rate collar agreement or other similar agreement or arrangement
designed to protect against fluctuations in interest rates.


 


61









 





“IPO” shall be as defined in the recitals to the Second Amendment.



“Joint Venture” means a joint venture, partnership or other similar arrangement,
whether in corporate, partnership or other legal form; provided, that in no event shall any
corporate Subsidiary of any Credit Party be considered to be a Joint Venture.



“Leasehold” of any Person means all of the right, title and interest of such Person as
lessee or licensee in, to and under leases or licenses of land, improvements and/or fixtures.



“Lender” shall have the meaning provided in the first paragraph of this Agreement.



“Lender Affiliate” shall mean (a) any Affiliate of any Lender, (b) any Person that is
administered or managed by any Lender or any Affiliate of any Lender and that is engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in
the ordinary course of its business and (c) with respect to any Lender which is a fund that invests
in commercial loans and similar extensions of credit, any other fund that invests in commercial
loans and similar extensions of credit and is managed or advised by the same investment advisor as
such Lender or by an Affiliate of such Lender or investment advisor.



“Lender Default” shall mean (i) the refusal (which has not been retracted) of a Lender
to make available its portion of any incurrence of Revolving Loans or to fund its portion of any
unreimbursed payment under Section 2.4(c) or (ii) a Lender having notified the Administrative Agent
and/or the applicable Borrower that it does not intend to comply with its obligations under Section
1.1 or under Section 2.4(c), in the case of either (i) or (ii) as a result of the appointment of a
receiver or conservator with respect to such Lender at the direction or request of any regulatory
agency or authority.



“Letter of Credit” shall have the meaning provided in Section 2.1(a)



“Letter of Credit Fee” shall have the meaning provided in Section 3.1(b).



“Letter of Credit Issuer” shall mean and include Barclays or, at the option of
Barclays, any affiliate of Barclays.



“Letter of Credit Outstandings” shall mean, at any time, the sum of, without
duplication, (i) the aggregate Stated Amount of all outstanding Letters of Credit and (ii) the
aggregate amount of all Unpaid Drawings in respect of all Letters of Credit.



“Letter of Credit Request” shall have the meaning provided in Section 2.2(a).



“Leverage Ratio” shall mean at any date the ratio of Consolidated Total Funded Debt at
such date to Consolidated EBITDA for the four consecutive fiscal quarters ending on or immediately
preceding such date.



“LGB” shall mean Lindsay Goldberg & Bessemer L.P., a Delaware limited partnership.



“LGB Group” shall mean LGB Pike LLC, LGB Pike II LLC and (a) any Affiliate of LGB Pike
LLC or LGB Pike II LLC (collectively, the “LGB Pike LLC Affiliates”), (b) any officer or
employee of LGB Pike LLC, LGB Pike II LLC or any LGB Pike LLC Affiliate (collectively, the “LGB
Pike LLC Associates”), (c) the heirs, executors, administrators, testamentary trustees,
legatees or beneficiaries of any LGB Pike LLC Associate and (d) a trust, the beneficiaries of
which, or a corporation or partnership, the stockholders or general or limited partners of which,
include only LGB Pike LLC, LGP Pike II LLC, LGB Pike LLC Affiliates, LGB Pike LLC Associates, their spouses, their lineal descendants and
any other members of their families.


 


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“Lien” shall mean any mortgage, pledge, security interest, encumbrance, lien or charge
of any kind (including any agreement to give any of the foregoing, any conditional sale or other
title retention agreement or any lease in the nature thereof).



“Loan” shall have the meaning provided in Section 1.1.



“Management Advisory Agreement” shall mean the Management Advisory Services Agreement,
dated as of April 18, 2002, as amended as of July 1, 2004, between Goldberg Lindsay & Co. LLC and
OpCo.



“Mandatory Borrowing” shall have the meaning provided in Section 1.1(c).



“Margin Stock” shall have the meaning provided in Regulation U.



“Material Adverse Effect” shall mean a material adverse effect on (a) the business,
property, operations or financial condition of Parent and its Subsidiaries taken as a whole, after
giving effect to the Acquisition, (b) the Acquisition and the financing contemplated hereby or (c)
the validity or enforceability of this Agreement or any of the other Credit Documents or the rights
or remedies of the Administrative Agent or the Lenders hereunder or thereunder.



“Material Subsidiary” shall mean and include, at any time, any Subsidiary of Parent
that (x) has assets at such time comprising 5% or more of the consolidated assets of Parent or (y)
had net income in the then most recently ended fiscal year of Parent comprising 5% or more of the
consolidated net income of the Borrowers for such fiscal year and shall in any event include (x)
the Borrowers and (y) any other Subsidiary of Parent that at such time would constitute a
“Significant Subsidiary” as defined in SEC Rule 1-02 promulgated under SEC Regulation S-X, as
amended or any replacement rule.



“Merger Sub” shall be as defined in the recitals to the Second Amendment.



“Minimum Borrowing Amount” shall mean (i) for ABR Loans, $500,000 or a whole multiple
in excess thereof (ii) for Eurodollar Loans, $1,000,000 or a whole multiple in excess thereof and
(iii) for Swingline Loans, $100,000 or a whole multiple of $25,000 in excess thereof.



“Minority Interest” shall have the meaning provided in the Acquisition Agreement.



“Mortgage” shall have the meaning provided in Section 7.12(b).



“Mortgaged Properties” shall mean the Real Properties listed on Annex 1.1B, as to
which the Administrative Agent for the benefit of the Lenders shall be granted a Lien pursuant to
the Mortgages.



“Net Cash Proceeds” shall mean, with respect to any Asset Sale, Recovery Event or
Qualified Sale/Leaseback Transaction, the Cash Proceeds resulting therefrom net of expenses of sale
or recovery (including, without limitation, reasonable and documented attorneys’, accountants’,
other advisors’ and banking and investment banking fees, environmental and solvency related fees,
all legal, title and recording tax expenses, commissions and other fees and expenses incurred, and
all Federal, state, provincial, foreign and local taxes paid or reasonably estimated to be payable,
as a consequence of such Asset Sale, Recovery Event or Qualified Sale/Leaseback Transaction and the
payment of principal, premium and interest of Indebtedness secured by the asset which is the
subject of the Asset Sale, Recovery Event or Qualified Sale/Leaseback Transaction and required to be, and which is,
repaid under the terms thereof as a result of such Asset Sale, Recovery Event or Qualified
Sale/Leaseback Transaction (other than any Lien in favor of the Administrative Agent for the
benefit of the Lenders), and incremental income taxes paid or payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing arrangements).


 


63









 





“Non-Defaulting Lender” shall mean each Lender other than a Defaulting Lender.



“Notes” shall be a collective reference to any promissory notes evidencing the Loans.



“Notice of Borrowing” shall have the meaning provided in Section 1.3.



“Notice of Conversion” shall have the meaning provided in Section 1.6.



“Notice Office” shall mean the office of the Administrative Agent at 200 Park Avenue,
New York, New York or such other office as the Administrative Agent may designate to the Borrowers
from time to time.



“Obligations” shall mean the unpaid principal of and interest on (including interest
accruing after the maturity of the Loans and Reimbursement Obligations and interest accruing after
the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to either Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans and all other obligations and
liabilities of the Borrowers to the Administrative Agent or to any Lender (or, in the case of
Specified Hedge Agreements, Specified Fuel Hedge Agreements or Specified Cash Management
Agreements, any Lender Affiliate) whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any other Credit Document, the Letters of Credit, any Specified Hedge
Agreement, Specified Fuel Hedge Agreement or any Specified Cash Management Agreement whether on
account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses
(including all fees, charges and disbursements of counsel to the Administrative Agent or to any
Lender that are required to be paid by the Borrowers pursuant hereto) or otherwise.



“Original Borrowing Date” shall mean April 18, 2002.



“Original Credit Agreement” shall mean that certain Credit Agreement, dated as of
April 18, 2002, among Parent, OpCo, the Lenders party thereto and the Administrative Agent.



“Parent” shall have the meaning set forth in the first paragraph of this Agreement and
shall include the successor to Parent pursuant to the Reincorporation Merger.



“Parent Common Stock” shall mean the common stock of Parent.



“Participant” shall have the meaning provided in Section 2.4(a).



“Payment Office” shall mean the office of the Administrative Agent at 200 Park Avenue,
New York, New York or such other office as the Administrative Agent may designate to the Borrowers
from time to time.



“PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to
Section 4002 of ERISA, or any successor thereto.


 


64









 





“Permitted Business Acquisition” shall mean any acquisition by either Borrower or any
of their respective Subsidiaries of all or substantially all the assets of, or shares or other
equity interests in, a Person or division or line of business of a Person or other significant
assets of a Person (other than inventory, leases, materials and equipment in the ordinary course of
business) if immediately after giving effect thereto: (a) no Default or Event of Default shall
have occurred and be continuing or would result therefrom, (b) all transactions related thereto
shall be consummated in all material respects in accordance with applicable laws, (c) at least 90%
of the capital stock of any acquired or newly formed corporation, partnership, association or other
business entity are owned directly by either Borrower or a Domestic Subsidiary and all actions
required to be taken, if any, with respect to such acquired or newly formed subsidiary under
Section 7.12 shall have been taken, (d) no Material Adverse Effect would be likely to result
therefrom and (e)(i) Parent shall be in compliance, on a pro forma basis after giving effect to (A)
such acquisition or formation and (B) the cost savings expected, in the good faith judgment of the
management of Parent at such time, to be achieved during the relevant period for testing such
compliance, with the covenants contained in Sections 8.13 and 8.14 recomputed as at the last day of
the most recently ended fiscal quarter of Parent as if such acquisition had occurred on the first
day of each relevant period for testing such compliance and the savings had been achieved on the
first day of such relevant period, and Parent shall have delivered to the Administrative Agent an
officers’ certificate to such effect, together with all relevant financial information for such
subsidiary or assets (to the extent reasonably available), and (ii) after giving effect to such
transaction, any acquired or newly formed subsidiary shall not be liable for any Indebtedness
(except for Indebtedness permitted by Section 8.4).



“Permitted Letter of Credit Facility” shall mean a letter of credit facility providing
for the issuance of cash collateralized letters of credit to Parent or OpCo which letter of credit
facility may be secured as permitted pursuant to Section 8.3(p).



“Permitted Liens” shall mean all Liens permitted pursuant to Section 8.3.



“Person” shall mean any individual, partnership, joint venture, firm, corporation,
association, trust or other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.



“Pike Employment Agreements” shall be the Pike Employment Agreements as defined in,
and entered into in connection with, the Acquisition Agreement.



“Plan” shall mean any multiemployer or single-employer plan as defined in Section 4001
of ERISA, which is maintained or contributed to by (or to which there is an obligation to
contribute of) a Credit Party, a Subsidiary of a Credit Party or an ERISA Affiliate, and each such
plan for the five year period immediately following the latest date on which a Credit Party, a
Subsidiary of a Credit Party or an ERISA Affiliate maintained, contributed to or had an obligation
to contribute to such plan. For the avoidance of doubt, the Deferred Compensation Agreements,
individually and in the aggregate, and the Deferred Compensation Liability shall not constitute a
Plan or Plans.



“Pledged Securities” shall mean all the Pledged Securities as defined in the Guarantee
and Collateral Agreement.



“Profit Sharing Interest” shall have the meaning provided in the Acquisition
Agreement.



“Qualified Sale/Leaseback Transactions” shall mean sale-leaseback transactions
involving the fleet of commercial vehicles, any Real Property owned by either Borrower or any
Subsidiary (other than any such transaction entered into to acquire any such assets of a type
described in Section 8.11(a)), provided that (i) the consideration received by either
Borrower or any Subsidiary in connection therewith shall consist solely of cash in an amount not less than the fair market
value of the assets sold, (ii) the Net Cash Proceeds of any such sale shall be applied as and to
the extent required by Section 4.2(a)(iii) (provided that the Borrowers shall have no right
to make a Reinvestment Election with respect thereto) and (iii) the resulting lease shall be
permitted by Section 8.4(l) or 8.7, as the case may be.


 


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“RCRA” shall mean the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §
6901 et seq.



“Real Property” of any Person shall mean all of the right, title and interest of such
Person in and to land, improvements and fixtures, including Leaseholds.



“Recapitalization” shall mean the recapitalization of Parent and OpCo pursuant to the
terms of the Recapitalization Agreement.



“Recapitalization Agreement” shall mean the Recapitalization and Investment Agreement
dated March 15, 2002 (as amended by the Amendment Agreement and Consent, dated as of April 11,
2002), among LGB Pike LLC, LGB Acquisition Corp., OpCo, Parent, Pike Merger Sub, Inc., Joe B. Pike,
as Shareholder Representative, and the stockholders of OpCo named therein.



“Recapitalization Documents” shall mean the Recapitalization Agreement and all other
documents entered into or delivered by Parent or any of its Subsidiaries in connection with the
Recapitalization Agreement.



“Recovery Event” shall mean any settlement of or payment in respect of any property or
casualty insurance claim or any condemnation proceeding relating to any asset of Parent and/or any
of its Subsidiaries.



“Red Simpson” shall mean Red Simpson, Inc., a Louisiana corporation.



“Register” shall have the meaning set forth in Section 12.4(d).



“Regulation D” shall mean Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a portion thereof
establishing reserve requirements.



“Regulation U” shall mean Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a portion thereof
establishing margin requirements.



“Reimbursement Obligation” shall mean the obligation of the Borrowers to reimburse the
Issuing Lender pursuant to Section 2.3 for amounts drawn under Letters of Credit.



“Reincorporation” shall be as defined in the recitals to the Second Amendment.



“Reincorporation Merger” shall be defined in the recitals to the Second Amendment.



“Reinvestment Assets” shall mean any assets to be employed in the business of the
Borrowers and their respective Subsidiaries.



“Reinvestment Election” shall have the meaning provided in Section 4.2(a)(iii).


 


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“Reinvestment Notice” shall mean a written notice signed by an Authorized Officer of
either Borrower stating that such Borrower, in good faith, intends and expects to use all or a
specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to purchase,
construct or otherwise acquire Reinvestment Assets as provided in Section 4.2(a)(iii).



“Reinvestment Prepayment Amount” shall mean, with respect to any Reinvestment
Election, the amount, if any, on the Reinvestment Prepayment Date relating thereto by which (a) the
Anticipated Reinvestment Amount in respect of such Reinvestment Election exceeds (b) the aggregate
amount thereof expended by either Borrower and its Subsidiaries to acquire Reinvestment Assets as
provided in Section 4.2(a)(iii).



“Reinvestment Prepayment Date” shall mean, with respect to any Reinvestment Election,
the earliest of (i) the date, if any, upon which the Administrative Agent, on behalf of the
Required Lenders, shall have delivered a written termination notice with respect to such
Reinvestment Election to the Borrowers, provided that such notice may only be given while
an Event of Default exists, (ii) the date occurring one year after such Reinvestment Election if
the related reinvestment in Reinvestment Assets has not been completed by such date and (iii) the
date on which the Borrowers shall have determined not to, or shall have otherwise ceased to,
proceed with the purchase, construction or other acquisition of Reinvestment Assets with the
related Anticipated Reinvestment Amount.



“Reinvestment Test” shall be satisfied if no Default or Event of Default then exists.



“Replaced Lender” shall have the meaning provided in Section 1.13.



“Replacement Lender” shall have the meaning provided in Section 1.13.



“Reportable Event” shall mean an event described in Section 4043(c) of ERISA with
respect to a Plan as to which the 30-day notice requirement has not been waived by the PBGC.



“Repurchase Triggering Event” shall have the meaning provided in Section 8.9(a)(ii).



“Required Lenders” shall mean Non-Defaulting Lenders whose outstanding Term Loans (or,
if prior to the First Restatement Effective Date, Term Commitments), and Revolving Commitments (or,
if after the Total Revolving Commitment has been terminated, Total Revolving Extensions of Credit)
constitute at least a majority of the sum of (i) the total outstanding Term Loans of Non-Defaulting
Lenders (or, if prior to the First Restatement Effective Date, the Total Term Commitment) and (ii)
the Total Revolving Commitment less the aggregate Revolving Commitments of Defaulting
Lenders (or, if after the Total Revolving Commitment has been terminated, the Total Revolving
Extensions of Credit of Non-Defaulting Lenders)



“Requirement of Law” shall mean, as to any Person, the Certificate of Incorporation
and By-Laws or other organizational or governing documents of such Person, and any law, treaty,
rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to which such Person
or any of its property is subject.



“Revolving Commitment” shall mean, with respect to each Lender, (x) the amount set
forth opposite such Lender’s name in Annex 1.1A hereto directly below the column entitled
“Revolving Commitment”, as the same may be reduced from time to time pursuant to Section 3.2, 3.3
and/or Section 9 or (y) adjusted from time to time as a result of assignments to or from such
Lender pursuant to Section 12.4.


 


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“Revolving Extensions of Credit” shall mean as to any Revolving Lender at any time, an
amount equal to the sum of (a) the aggregate principal amount of all Revolving Loans held by such
Lender then outstanding, (b) such Lender’s Revolving Percentage of the Letter of Credit
Outstandings then outstanding and (c) such Lender’s Revolving Percentage of the aggregate principal
amount of Swingline Loans then outstanding.



“Revolving Facility” shall mean the Facility evidenced by the Total Revolving
Commitment.



“Revolving Facility Final Maturity Date” shall mean July 1, 2012 or, if earlier, the
date on which the Revolving Commitments are terminated pursuant to Section 9 hereof.



“Revolving Lender” shall mean each Lender that has a Revolving Commitment or that
holds Revolving Loans. For the avoidance of doubt, as of the Second Restatement Effective Date the
Revolving Lenders shall include pre-existing Revolving Lenders as well as certain Persons who shall
become Revolving Lenders as of the Second Restatement Effective Date pursuant to an assignment and
joinder agreement that was effective as of the Second Restatement Effective Date.



“Revolving Loan” shall have the meaning provided in Section 1.1(b).



“Revolving Percentage” shall mean at any time for each Lender with a Revolving
Commitment, the percentage obtained by dividing such Lender’s Revolving Commitment by the Total
Revolving Commitment or, at any time after the Revolving Commitments shall have expired or
terminated, the percentage which the aggregate amount of such Lender’s Revolving Extensions of
Credit then outstanding constitutes of the aggregate amount of the Total Revolving Extensions of
Credit then outstanding.



“Scheduled Repayment” shall mean the Tranche B Term Loan Scheduled Repayment or the
Tranche C Term Loan Scheduled Repayment, as applicable.



“SEC” shall have the meaning provided in Section 7.1(f).



“SEC Regulation D” shall mean Regulation D as promulgated under the Securities Act of
1933, as amended, as the same may be in effect from time to time.



“Second Amendment” shall mean the Second Amendment, dated as of June 29, 2005, to the
Credit Agreement.



“Second Amendment Effective Date” shall mean the date upon which all conditions
precedent specified in Section 2 of the Second Amendment shall have been satisfied, which date is
June 29, 2005.



“Second Restatement Effective Date” shall have the meaning provided in Section 12.10.



“Security Documents” shall mean the Guarantee and Collateral Agreement, each Mortgage,
and all other security documents hereafter delivered to the Administrative Agent granting a Lien on
any property of any Person to secure the obligations and liabilities of any Credit Party under any
Credit Document.


 


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“Sellers” shall mean Mick Dubea 2003 Grantor Retained Annuity Trust, John Charles
Simpson 2003 Grantor Retained Annuity Trust for John, Jr., John Charles Simpson 2003 Grantor
Retained Annuity Trust for Angela, Simeon A. Thibeaux, Jr., Mick J. Dubea and John C. Simpson.



“Series A Preferred” shall mean the Series A Preferred Stock of Parent, par value $.01
per share, issued in connection with the Recapitalization.



“Sixth Amendment” shall mean that certain Sixth Amendment and Restatement Agreement,
dated as of July 29, 2009 among Parent, OpCo, the Guarantors, the Lenders party thereto and the
Administrative Agent.



“Specified Cash Management Agreement” means any Cash Management Agreement that is
entered into by and between any Credit Party and any Cash Management Bank, in each case solely to
the extent that the obligations in respect of such Cash Management Agreement are not cash
collateralized or otherwise secured (other than pursuant to the Credit Documents); provided
that the aggregate principal or notional amount of Obligations under all Specified Cash Management
Agreements shall not exceed $7,000,000 at any time outstanding.



“Specified Fuel Hedge Agreement” shall mean any Fuel Hedge Agreement entered into by
and between either Borrower and any Fuel Hedge Provider.



“Specified Hedge Agreement” shall mean any Hedge Agreement entered into by either
Borrower and any Lender or Lender Affiliate (or any Person that was a Lender or Lender Affiliate at
the time such Hedge Agreement was entered into by the parties).



“Stated Amount” of each Letter of Credit shall mean the maximum available to be drawn
thereunder (regardless of whether any conditions for drawing could then be met).



“Subsidiary” of any Person shall mean and include (i) any corporation more than 50% of
whose stock of any class or classes having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of whether or not at the time stock of
any class or classes of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or indirectly through
Subsidiaries and (ii) any partnership, association, joint venture or other entity in which such
Person directly or indirectly through Subsidiaries, has more than a 50% equity interest at the
time. Unless otherwise expressly provided, all references herein to “Subsidiary” shall mean a
Subsidiary of Parent, including OpCo.



“Subsidiary Guarantor” shall mean any Subsidiary of Parent or OpCo which is a party to
the Guarantee and Collateral Agreement.



“Swingline Commitment” shall mean $10,000,000.



“Swingline Expiry Date” shall mean the date which is one Business Day prior to the
Revolving Facility Final Maturity Date.



“Swingline Facility” shall mean the Facility evidenced by the Swingline Commitment.



“Swingline Lender” shall mean Barclays.



“Swingline Loan” shall have the meaning provided in Section 1.1(c).


 


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“Taxes” shall have the meaning provided in Section 4.4.



“Term Commitment” shall mean, with respect to each Lender, the sum of such Lender’s
Tranche B Term Commitment and Tranche C Term Commitment.



“Term Facilities” shall be a collective reference to the Tranche B Term Facility and
the Tranche C Term Facility.



“Term Loans” shall be a collective reference to Tranche B Term Loans and Tranche C
Term Loans.



“Termination Fee” shall mean the fee in the aggregate amount of $4,000,000 which OpCo
intends to pay to LGB to terminate the Management Advisory Services Agreement.



“Test Period” shall mean for any determination the four consecutive fiscal quarters of
Parent (taken as one accounting period) then last ended.



“Total Commitment” shall mean the sum of the Total Term Commitment and the Total
Revolving Commitment.



“Total Revolving Commitment” shall mean the sum of the Revolving Commitments of each
of the Lenders. On the Second Restatement Effective Date, the Total Revolving Commitment equals
$115,000,000.



“Total Revolving Commitment Excess Amount” shall have the meaning provided in Section
4.2(a)(i).



“Total Revolving Extensions of Credit” shall mean at any time, the aggregate amount of
the Revolving Extensions of Credit of the Revolving Lenders outstanding at such time.



“Total Term Commitment” shall mean the sum of the Term Commitments of each of the
Lenders.



“Total Unutilized Revolving Commitment” shall mean, at any time, (i) the Total
Revolving Commitment at such time less (ii) the sum of the aggregate principal amount of
all Revolving Loans at such time plus the Letter of Credit Outstandings at such time.



“Tranche B Term Commitment” shall mean, with respect to each Lender, the amount set
forth opposite such Lender’s name in Annex 1.1A to the First Restatement directly below the column
entitled “Tranche B Term Loan Commitment” therein, pursuant to which such Lenders made Tranche B
Term Loans on the First Restatement Effective Date.



“Tranche B Term Facility” shall mean the Facility evidenced by the Tranche B Term
Commitments.



“Tranche B Term Facility Final Maturity Date” shall mean the date which is the eighth
anniversary of the First Restatement Effective Date.



“Tranche B Term Loan” shall have the meaning provided in Section 1.1(a).



“Tranche B Term Loan Scheduled Repayment” shall have the meaning provided in Section
4.2(a)(ii)


 


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“Tranche C Term Commitment” shall mean, with respect to each Lender, the amount set
forth opposite such Lender’s name in Annex 1.1A to the First Restatement (as amended by the First
Amendment) directly below the column entitled “Tranche C Term Commitment” therein, as the same may
be reduced or terminated pursuant to Section 3.3.



“Tranche C Term Facility” shall mean the Facility evidenced by the Tranche C Term
Commitments.



“Tranche C Term Facility Final Maturity Date” shall mean the date which is the eighth
anniversary of the First Amendment Effective Date.



“Tranche C Term Loan” shall have the meaning provided in Section 1.1(d).



“Tranche C Term Loan Scheduled Repayment” shall have the meaning provided in Section
4.2(a)(ii)(B)



“Type” shall mean any type of Loan determined with respect to the interest option
applicable thereto, i.e., a ABR Loan or Eurodollar Loan.



“UCC” shall mean the Uniform Commercial Code.



“Unfunded Current Liability” of any Plan shall mean the amount, if any, by which the
projected benefit obligation under the Plan as of the close of its most recent plan year exceeds
the fair market value of the assets allocable thereto, each determined in accordance with Statement
of Financial Accounting Standards No. 87, based upon the actuarial assumptions used by the Plan’s
actuary in the most recent annual valuation of the Plan.



“Unpaid Drawing” shall have the meaning provided in Section 2.3(a)



“Unutilized Commitment” for any Lender at any time shall mean the excess of (i) the
Commitment of such Lender over (ii) the sum of (x) the aggregate outstanding principal amount of
Loans made by such Lender plus (y) an amount equal to such Lender’s Revolving Percentage,
if any, of the Letter of Credit Outstandings at such time, provided that solely for
purposes of calculating the Commitment Fee pursuant to Section 3.1(a) Swingline Loans shall be
deemed not to be outstanding and the Swingline Commitment shall not constitute a “Commitment”.



“Vehicles” shall have the meaning assigned to such term in the Guarantee and
Collateral Agreement.



“Wholly-Owned Subsidiary” of any Person shall mean any Subsidiary of such Person to
the extent all of the capital stock or other ownership interests in such Subsidiary, other than
directors’ qualifying shares, is owned directly or indirectly by such Person.



“Wholly-Owned Subsidiary Guarantor”: any Subsidiary Guarantor that is a Wholly Owned
Subsidiary of either Borrower.



“Written” or “in writing” shall mean any form of written communication or a
communication by means of telex, facsimile transmission, telegraph or cable.


 


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Any of the terms defined herein may, unless the context otherwise requires, be used in the
singular or the plural, depending on the reference. References herein to any Article, Section,
Schedule or Exhibit shall be to an Article, a Section, a Schedule or an Exhibit, as the case may be,
hereof unless otherwise specifically provided. The use herein of the word “include” or “including”
when following any general statement, term or matter, shall not be construed to limit such
statement, term or matter to the specific items or matters set forth immediately following such
word or to similar items or matters, whether or not non-limiting language (such as “without
limitation” or “but not limited to” or words of similar import) is used with reference thereto, but
rather shall be deemed to refer to all other items or matters that fall within the broadest
possible scope of such general statement, term or matter. Except as otherwise expressly provided
herein or therein, any reference in this Agreement or any other Credit Document to any agreement,
document or instrument shall mean such agreement, document or instrument as amended, restated,
supplemented or otherwise modified from time to time, in each case, in accordance with the express
terms of this Agreement or such Credit Document.



SECTION 11. THE ADMINISTRATIVE AGENT.



11.1. Appointment. Each Lender hereby irrevocably designates and appoints Barclays as Administrative Agent of
such Lender (such term to include for purposes of this Section 11, Barclays acting as
Administrative Agent) to act as specified herein and in the other Credit Documents, and each such
Lender hereby irrevocably authorizes Barclays as the Administrative Agent for such Lender, to take
such action on its behalf under the provisions of this Agreement and the other Credit Documents and
to exercise such powers and perform such duties as are expressly delegated to the Administrative
Agent by the terms of this Agreement and the other Credit Documents, together with such other
powers as are reasonably incidental thereto. The Administrative Agent agrees to act as such upon
the express conditions contained in this Section 11. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein or in the other Credit Documents, or any
fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or otherwise exist against the
Administrative Agent. The provisions of this Section 11 are solely for the benefit of the
Administrative Agent and the Lenders, and, except as provided in Section 11.9, no Credit Party
shall have any rights as a third party beneficiary of any of the provisions hereof. In performing
its functions and duties under this Agreement, the Administrative Agent shall act solely as agent
of the Lenders and does not assume and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for any Credit Party.



11.2. Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement or any other
Credit Document by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care except to the extent otherwise required by Section 11.3.



11.3. Exculpatory Provisions. Neither the Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement (except for its or such
Person’s own gross negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by Parent or any
Subsidiary or any of their respective officers contained in this Agreement, any other Document or
in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Document or for any failure of Parent or any
Subsidiary or any of their respective officers to perform its obligations hereunder or thereunder.
The Administrative Agent shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or conditions of, this
Agreement, or to inspect the properties, books or records of Parent, OpCo any Subsidiary. The
Administrative Agent shall not be responsible to any Lender for the effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any other Credit
Document or for any representations, warranties, recitals or statements made herein or therein or
made in any written or oral statement or in any financial or other statements, instruments,
reports, certificates or any other documents in connection herewith or therewith furnished or made
by the Administrative Agent to the Lenders or by or on behalf of either Borrower to the
Administrative Agent or any Lender or be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements contained herein or
therein or as to the use of the proceeds of the Loans or of the existence or possible existence of
any Default or Event of Default.


 


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11.4. Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, facsimile transmission, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Credit Parties), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent shall be fully justified in failing
or refusing to take any action under this Agreement or any other Credit Document unless it shall
first receive such advice or concurrence of the Required Lenders as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the other Credit Documents in accordance with a request of the Required
Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.



11.5. Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default hereunder unless the Administrative Agent has received notice
from a Lender or either Borrower or any other Credit Party referring to this Agreement, describing
such Default or Event of Default and stating that such notice is a “notice of default”. In the
event that the Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Lenders. The Administrative Agent shall take such action with respect
to such Default or Event of Default as shall be reasonably directed by the Required Lenders,
provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.



11.6. Non-Reliance on Administrative Agent and Other Lenders. Each Lender expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by the Administrative Agent hereinafter taken,
including any review of the affairs of Parent or any Subsidiary, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of Parent and its Subsidiaries and made its own decision
to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the time, continue to make
its own credit analysis, appraisals and decisions in taking or not taking action under this
Agreement, and to make such investigation as it deems necessary to inform itself as to the
business, assets, operations, property, financial and other conditions, prospects and
creditworthiness of Parent and its Subsidiaries. The Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information concerning the
business, operations, assets, property, financial and other conditions, prospects or
creditworthiness of Parent or any Subsidiary which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.


 


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11.7. Indemnification. The Lenders agree to indemnify the Administrative Agent in its capacity as such ratably
according to their respective percentages of Loans and Commitments used in determining Required
Lenders at such time (with such percentages to be determined as if there are no Defaulting
Lenders), from and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, reasonable expenses or disbursements of any kind whatsoever which
may at any time (including without limitation at any time following the payment of the Obligations)
be imposed on, incurred by or asserted against the Administrative Agent in its capacity as such in
any way relating to or arising out of this Agreement or any other Credit Document, or any documents
contemplated by or referred to herein or the transactions contemplated hereby or any action taken
or omitted to be taken by the Administrative Agent under or in connection with any of the
foregoing, but only to the extent that any of the foregoing is not paid by Parent or any of its
Subsidiaries; provided that no Lender shall be liable to the Administrative Agent for the
payment of any portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from the Administrative Agent’s
gross negligence or willful misconduct. The agreements in this Section 11.7 shall survive the
payment of all Obligations.



11.8. The Administrative Agent in its Individual Capacity. The Administrative Agent, its Affiliates and each may make loans to, accept deposits from
and generally engage in any kind of business with Parent and its Subsidiaries as though the
Administrative Agent were not the Administrative Agent hereunder. With respect to the Loans made
by it and all Obligations owing to it, the Administrative Agent shall have the same rights and
powers under this Agreement as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms “Lender” and “Lenders” shall include the Administrative Agent
in their individual capacity.



11.9. Successor Administrative Agent. The Administrative Agent may resign as the Administrative Agent upon 20 days’ notice to
Parent and the Lenders. The Required Lenders shall appoint from among the Lenders a successor
Administrative Agent for the Lenders subject to prior approval by Parent (such approval not to be
unreasonably withheld), whereupon such successor agent shall succeed to the rights, powers and
duties of the Administrative Agent, and the term “Administrative Agent” shall include such
successor agent effective upon its appointment, and the resigning Administrative Agent’s rights, powers and
duties as the Administrative Agent shall be terminated, without any other or further act or deed on
the part of such former Administrative Agent or any of the parties to this Agreement. After the
retiring Administrative Agent’s resignation hereunder as the Administrative Agent, the provisions
of this Section 11 shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement.



11.10. Withholding Tax. To the extent required by any applicable law, the
Administrative Agent may withhold from any payment to any Lender an amount equivalent to any
withholding tax applicable to such payment. If any payment has been made to any Lender by the
Administrative Agent without the applicable withholding tax being withheld from such payment and
the Administrative Agent has paid over the applicable withholding tax to the Internal Revenue
Service, or the Internal Revenue Service or any other Governmental Authority asserts a claim that
the Administrative Agent did not properly withhold tax from amounts paid to or for the account of
any Lender for any other reason, such Lender shall indemnify the Administrative Agent fully for all
amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including
any penalties or interest and together with any all expenses incurred.


 


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SECTION 12. MISCELLANEOUS.



12.1. Payment of Expenses, etc. The Borrowers agree to: (i) whether or not the transactions herein contemplated are
consummated, pay all reasonable out-of-pocket costs and expenses of the Administrative Agent in
connection with the syndication of the Facilities, the negotiation, preparation, execution and
delivery of the Credit Documents and the documents and instruments referred to therein and any
amendment, waiver or consent relating thereto (including, without limitation, the reasonable fees
and disbursements of Latham & Watkins LLP, counsel to the Administrative Agent) and the creation
and perfection of the Liens created under the Security Documents; (ii) pay all out-of-pocket costs
and expenses of the Administrative Agent, the Arrangers and each of the Lenders in connection with
the enforcement (including pursuant to the administration of any bankruptcy proceeding relating to
Parent or OpCo) or preservation of any rights under the Credit Documents and the documents and
instruments referred to therein (including, without limitation, the reasonable fees and
disbursements of counsel for the Administrative Agent, the Letter of Credit Issuer and for each of
the Lenders); (iii) pay and hold each of the Lenders harmless from and against any and all present
and future stamp, court or documentary taxes or any other excise or property taxes or charges and
other similar taxes with respect to the foregoing matters and save each of the Lenders and the
Letter of Credit Issuer harmless from and against any and all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable to such Lender or such
Letter of Credit Issuer) to pay such taxes; and (iv) indemnify each Lender and the Letter of Credit
Issuer, its officers, directors, employees, advisors, trustees, representatives and agents
(collectively, the “Indemnities”) from and hold each of them harmless against any and all
losses, costs, liabilities, claims, damages or expenses, including without limitation, those
incurred under Environmental Law, incurred by any of them as a result of, or arising out of, or in
any way related to, or by reason of, any investigation, litigation or other proceeding (whether or
not any Lender or the Letter of Credit Issuer is a party thereto) related to the entering into
and/or performance of any Document or the use of the proceeds of any Loans or Letters of Credit
hereunder or the Recapitalization, the Acquisition or the consummation of any transactions
contemplated in any Credit Document, including, without limitation, the reasonable fees, charges
and disbursements of counsel incurred in connection with any such investigation, litigation or
other proceeding (but excluding any such losses, costs, liabilities, claims, damages or expenses to
the extent incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified or of any other Indemnitee who is such Person or an affiliate, agent
or representative of such Person).



12.2. Right of Setoff. In addition to any rights now or hereafter granted under applicable law or otherwise, and
not by way of limitation of any such rights, during the continuance of an Event of Default, the
Administrative Agent and each Lender is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to any Credit Party or to any other
Person, any such notice being hereby expressly waived, to set off and to appropriate and apply any
and all deposits (general or special) and any other Indebtedness at any time held or owing by the
Administrative Agent or such Lender (including, without limitation, by branches and agencies of the
Administrative Agent or such Lender wherever located) to or for the credit or the account of any
Credit Party against and on account of the Obligations and liabilities of such Credit Party then
due and payable to the Administrative Agent or such Lender under this Agreement or under any of the
other Credit Documents, including, without limitation, all interests in Obligations of such Credit
Party purchased by such Lender pursuant to Section 12.6(b), and all other claims of any nature or
description then due and payable arising out of or connected with this Agreement or any other
Credit Document, irrespective of whether or not the Administrative Agent or such Lender shall have
made any demand hereunder and although said deposits or Indebtedness owing by the Administrative
Agent or such Lender, or any of them, shall be contingent or unmatured.


 


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12.3. Notices. (a) Except as otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including telecopier communication) and mailed,
telecopied or delivered, if to a Credit Party, at the address specified opposite its signature
below or in the other relevant Credit Documents, as the case may be; if to any Lender, at the
address specified for such Lender to the Administrative Agent and recorded in the Register; or, at
such other address as shall be designated by any party in a written notice to the other parties
hereto. All such notices and communications shall be mailed, telecopied or (subject to Section
12.3(b)) electronically communicated or sent by overnight courier, and shall be effective when
received.




(b) Notices and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Section 1 unless
otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent
or either 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.



12.4. Benefit of Agreement; Assignments. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by
the respective successors and assigns of the parties hereto, provided that the Borrowers
may not assign or transfer any of their rights or obligations hereunder without the prior written
consent of all the Lenders. Each Lender may, in accordance with applicable law, at any time grant
participations in any of its rights hereunder or under any of the Notes to another financial
institution or any fund that regularly invests in bank loans, provided that in the case of
any such participation, the participant shall not have any rights under this Agreement or any of
the other Credit Documents (the participant’s rights against such Lender in respect of such
participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the
Borrowers hereunder shall be determined as if such Lender had not sold such participation, except
that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.5 and 4.4 of this
Agreement to the extent that such Lender would be entitled to such benefits if the participation
had not been entered into or sold and the participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its participation in amounts
owing under this Agreement to the same extent as if the amount of its participation were owing
directly to it as a Lender under this Agreement provided that, in purchasing such
participation, such participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in Section 12.6(b) as fully as if it were a Lender hereunder, and,
provided, further, that no Lender shall transfer, grant or assign any participation
under which the participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or waiver would (i)
waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which
such participant is participating (it being understood that any waiver of the application of any
prepayment or the method of any application of any prepayment to, the amortization of the Term
Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final
maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon
(except in connection with a waiver of the applicability of any post-default increase in interest
rates), or reduce the principal amount thereof, or increase such participant’s participating
interest in any Commitment over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a
mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release
all or substantially all of the Subsidiary Guarantors from their obligations under their respective
Guaranties except in accordance with the terms thereof, (iii) release all or substantially all of
the Collateral except in accordance with the Credit Documents or (iv) consent to the assignment or
transfer by either Borrower of any of its rights and obligations under this Agreement or any other
Credit Document.


 


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(b) Notwithstanding the foregoing, in accordance with applicable law at any time and from
time to time, any Lender may assign all or a portion of its Loans and/or Commitments and its
rights and obligations under this Agreement to one or more other Persons (other than to any Credit
Party or any Affiliate of a Credit Party, provided that Term Loans may be assigned to either
Borrower solely in connection with a Credit Party Loan Purchase) with the prior written consent
(such consent not to be unreasonably withheld or delayed) of:




(i) the Borrowers, provided that, other than in the case of an assignment of
any Revolving Commitment to an assignee that is not a Lender with a Revolving Commitment
immediately prior to giving effect to such assignment, no consent of the Borrowers shall be
required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an
Event of Default under Section 9.1 or 9.5 has occurred and is continuing, any other
assignee;




(ii) the Administrative Agent, provided that no consent of the Administrative
Agent shall be required for an assignment (x) of any Revolving Commitment to an assignee
that is a Lender with a Revolving Commitment immediately prior to giving effect to such
assignment and (y) of any Term Loan to a Lender, an affiliate of a Lender or an Approved
Fund; and




(iii) in the case of any assignment of any Revolving Commitment, the Letter of Credit
Issuer.



Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Term Loans
and the Revolving Commitments of the assigning Lender except as provided in the next sentence.
Unless the Borrowers and the Administrative Agent otherwise agree, no assignment pursuant to the
immediately preceding sentence shall to the extent such assignment represents an assignment to
an institution other than one or more Lenders hereunder, be in an aggregate amount (treating
multiple, simultaneous assignments to two or more Approved Funds managed by the same investment
advisor or affiliates of the assigning Lender as a single assignment) less than $5,000,000 (in the
case of the Revolving Commitments) or $1,000,000 (in the case of the Term Loans) unless the entire
Commitment and Loans and other interests of the assigning Lender (and of all Lenders which are
Approved Funds managed by the same investment advisor as the assigning Lender) are so assigned. In
the case of an assignment by a Lender to its CLO, the assigning Lender shall retain the sole right
to approve any amendment, modification or waiver of any provision of this Agreement,
provided that the Assignment Agreement between such Lender and such CLO may provide that
such Lender will not, without the consent of such CLO, agree to any amendment, modification or
waiver described in the second proviso to the second sentence of Section 12.4(a) that affects such
CLO. If any Lender so sells or assigns all or a part of its interests hereunder or under the
Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer
to such Lender and to the respective assignee to the extent of their respective interests, and the
respective assignee shall have, to the extent of such assignment (unless otherwise provided
therein), the same rights and benefits as it would if it were such assigning Lender. Each
assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the
assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D
(appropriately completed). In the event of any such assignment to a Person not previously a Lender
hereunder (other than an assignment by a Lender to its CLO or by a CLO to an affiliate CLO), either
the assigning or the assignee Lender shall pay to the Administrative Agent a nonrefundable
assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i)
Annex 1.1A shall be deemed to be amended to reflect the Commitment of the respective assignee
(which shall result in a direct reduction to the Commitment of the assigning Lender) and of the
other Lenders, and (ii) if any such assignment occurs after the First Restatement Effective Date,
the Borrowers will, if requested by the assignee or assignor, issue new Notes to the respective
assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each
Lender and the Borrowers agree to execute such documents (including, without limitation, amendments
to this Agreement) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall
prevent or prohibit any Lender from pledging its Notes or Loans, including, without limitation, to
a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank.


 


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(c) The Administrative Agent acting on behalf of the Borrowers shall maintain at its Payment
Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register
(the “Register”) for the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each Lender from time to time (whether
or not evidenced by a Note). The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrowers, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register as the owner of the Loan or Note evidencing a Loan recorded
therein for all purposes of this Agreement, notwithstanding any notice to the contrary. Any
assignment of any Loan whether or not evidenced by a Note shall be effective only upon appropriate
entries with respect thereto being made in the Register (and each Note shall expressly so
provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be
registered on the Register only upon surrender for registration of assignment or transfer of the
Note evidencing such Loan, accompanied by a duly executed Assignment Agreement, and thereupon one
or more new Notes in the same aggregate principal amount shall be issued to the designated
assignee and the old Notes shall be returned by the Administrative Agent to the applicable
Borrower marked “cancelled”. The Register shall be available for inspection by either Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior notice.




(d) In the event any Revolving Lender’s long-term credit rating is downgraded to BBB+ or
lower by S&P or Baa1 or lower by Moody’s, the Letter of Credit Issuer may replace such Revolving
Lender with another Person. Such assignment shall be effected in accordance with the terms of
Section 12.4(b).




(e) any Credit Party may purchase outstanding Term Loans on the following basis:




(i) at the time of consummating any Credit Party Loan Purchase, no Default or Event of
Default shall have occurred or be continuing or would result from such Credit Party Loan
Purchase;




(ii) any such purchase of Term Loans shall be effected by means of an assignment made
in accordance with the provisions of this Section 12.4 pursuant to a Credit Party Assignment
Agreement substantially in the form of Exhibit L (appropriately completed);




(iii) any such purchase of Term Loans may be made by any Credit Party from time to time
from one or more Lenders of any Credit Party’s choosing and need not be made from all
Lenders;


 


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(iv) following any such purchase of Term Loans by any Credit Party, (A) no interest
shall accrue from and after the effective date of the related Borrower Assignment Agreement
on any such Term Loans purchased by such Credit Party, (B) at no time will such Credit Party
be deemed to be a Lender hereunder and (C) such purchased Term Loans shall be deemed
immediately, permanently cancelled for all purposes and no longer outstanding (and may not
be transferred or resold by such Credit Party), for all purposes of this Agreement and all
of the other Credit Documents (notwithstanding any provisions herein or therein to the
contrary), including for purposes of (i) the making of, or the application of, any payments
to the Lenders under this Agreement or any other Credit Document, (ii) the making of any
request, demand, authorization, direction, notice, consent or waiver under this Agreement or
any other Credit Document, (iii) the providing of any rights to such Credit Party as a
Lender under this Agreement or any other Credit Document or (iv) the determination of
Required Lenders, or for any similar or related purpose, under this Agreement or any other
Credit Document; provided further that, concurrently with such Cancellation
described in subsection (C) above, such Credit Party shall provide written notice to the
Administrative Agent of the aggregate principal face amount of Term Loans cancelled and a
copy of any documentation relating to the Cancellation of such Term Loan; and




(v) the cumulative aggregate cash consideration paid to all assigning Lenders by any
Credit Party in respect of all Credit Party Loan Purchases shall not exceed $40,000,000.



12.5. No Waiver; Remedies Cumulative. No failure or delay on the part of the Administrative Agent or any Lender in exercising any
right, power or privilege hereunder or under any other Credit Document and no course of dealing
between any Credit Party and the Administrative Agent or any Lender shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or
under any other Credit Document preclude any other or further exercise thereof or the exercise of
any other right, power or privilege hereunder or thereunder. The rights and remedies herein
expressly provided are cumulative and not exclusive of any rights or remedies which the
Administrative Agent or any Lender would otherwise have. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights
of the Administrative Agent or the Lenders to any other or further action in any circumstances
without notice or demand.



12.6. Payments Pro Rata. (a) The Administrative Agent agrees that promptly after its receipt of each payment from
or on behalf of any Credit Party in respect of any Obligations of such Credit Party hereunder, it
shall distribute such payment to the Lenders (other than any Lender that has expressly waived its
right to receive its pro   rata  share
thereof) pro rata based upon their respective shares, if any,
of the Obligations with respect to which such payment was received.




(b) Each of the Lenders agrees that, if it should receive any amount hereunder
(whether by voluntary payment, by realization upon security, by the exercise of the right
of setoff or banker’s lien, by counterclaim or cross action, by the enforcement of any right under
the Credit Documents, or otherwise) which is applicable to the payment of the principal of, or
interest on, the Loans, Fees or reimbursement obligations in respect of the Letters of Credit, of
a sum which with respect to the related sum or sums received by other Lenders is in a greater
proportion than the total of such Obligation then owed and due to such Lender bears to the total
of such Obligation then owed and due to all of the Lenders immediately prior to such receipt, then
such Lender receiving such excess payment shall purchase for cash without recourse or warranty
from the other Lenders an interest in the Obligations of the respective Credit Party to such
Lenders in such amount as shall result in a proportional participation by all of the Lenders in
such amount, provided that if all or any portion of such excess amount is thereafter
recovered from such Lender, such purchase shall be rescinded and the purchase price restored to
the extent of such recovery, but without interest.




(c) The provisions of this Section 12.6 shall not apply to any payments received by any
Lender in respect of any assignment of its Loans pursuant to Section 12.4, including any Credit
Party Loan Purchase which results in a Cancellation made in accordance with Section 12.4(e).


 


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12.7. Calculations; Computations. (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made
and prepared in accordance with GAAP consistently applied throughout the periods involved (except
as set forth in the notes thereto or as otherwise disclosed in writing by Parent to the Lenders),
provided that, except as otherwise specifically provided herein, all computations
determining compliance with Section 8, including definitions used therein, shall utilize accounting
principles and policies in effect at the time of the preparation of, and in conformity with those
used to prepare, the June 30, 2003 historical financial statements of Parent delivered to the
Lenders pursuant to Section 6.10, but shall not give effect to (i) adjustments in component amounts
required or permitted by APB 16 or 17 as a result of the Recapitalization, provided that in
determining gains and losses from the sale or disposition of assets such adjustment shall be given
effect, (ii) amortization of intangible assets resulting from the Recapitalization, and (iii) the
amortization or write-off of any expenses incurred in connection with the Recapitalization or the
financing thereof, provided that the computations under Section 8 may utilize FAS 96, but
shall not give effect to any cumulative effect adjustment relating to the adoption thereof, and,
provided, further, that if at any time the computations determining compliance with
Section 8 utilize accounting principles different from those utilized in the financial statements
furnished to the Lenders, such financial statements shall be accompanied by reconciliation
work-sheets.




(b) Whenever calculated on the basis of the Prime Rate component of the ABR, interest and
fees shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the
actual days elapsed; otherwise, interest and fees shall be calculated on the basis of a 360-day
year for the actual days elapsed. Any change in the interest rate on a Loan resulting from a change
in the Alternate Base Rate or the Eurocurrency Reserve Requirements shall become effective as of
the opening of business on the day on which such change in the Alternate Base Rate is announced or
such change in the Eurocurrency Reserve Requirements becomes effective, as the case may be.



12.8. Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial.
(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
OF THE STATE OF NEW YORK. Any legal action or proceeding with respect to this Agreement or any
other Credit Documents may be brought in the courts of the State of New York or of the United
States for the Southern District of New York, and, by execution and delivery of this Agreement,
each Credit Party hereby irrevocably accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts. Each Credit Party further
irrevocably consents to the service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or certified mail, postage
prepaid, to each Credit Party located outside New York City and by hand delivery to each Credit
Party located within New York City, at its address for notices pursuant to Section 12.3, such
service to become effective 30 days after such mailing. Each Credit Party hereby irrevocably
appoints Parent as its agent for service of process in respect of any such action or proceeding.
Nothing herein shall affect the right of the Administrative Agent or any Lender to serve process in
any other manner permitted by law or to commence legal proceedings or otherwise proceed against any
Credit Party in any other jurisdiction.




(b) Each Credit Party hereby irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in
connection with this Agreement or any other Credit Document brought in the courts referred to in
clause (a) above and hereby further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has been brought in an
inconvenient forum.


 


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(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.



12.9. Counterparts. This Agreement may be executed in any number of counterparts and by the different parties
hereto on separate counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with Parent and the Administrative Agent.



12.10. Effectiveness. This Agreement shall become effective on the date (the “Second Restatement Effective
Date”) on which (a) each of Parent and OpCo and each of the Lenders shall have signed a copy
hereof (whether the same or different copies) and shall have delivered the same to the
Administrative Agent at the Payment Office of the Administrative Agent or, in the case of the
Lenders, shall have given to the Administrative Agent telephonic (confirmed in writing), written or
facsimile transmission notice (actually received) at such office that the same has been signed and mailed to it and (b) each of the
conditions precedent set forth in Section 5.1 shall have been satisfied.



12.11. Headings. The headings of the several sections and subsections of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or construction of any provision of
this Agreement.



12.12. Amendment or Waiver. Neither this Agreement nor any other Credit Document nor any terms hereof or thereof may be
changed, waived, discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by each applicable Credit Party and the Required Lenders, provided that
no such change, waiver, discharge or termination shall:




(i) waive any Scheduled Repayment, defer any Scheduled Repayment or extend the Final
Maturity Date (it being understood that any waiver of the application of any prepayment of,
or the method of application of any prepayment to the amortization of, the Loans shall not
constitute a waiver of any such Scheduled Repayment or any such extension), or reduce the
rate or extend the time of payment of interest (other than as a result of waiving the
applicability of any post-default increase in interest rates) or Fees payable hereunder, or
forgive or reduce the principal amount thereof, or increase the Commitment of any Lender
over the amount thereof then in effect (it being understood that a waiver of any Default or
Event of Default or of a mandatory reduction in the Total Commitment shall not constitute a
change in the terms of any Commitment of any Lender), without the consent of each Lender
(other than a Defaulting Lender) directly affected thereby;




(ii) release all or substantially all of the Collateral or release all or substantially
all of the Subsidiary Guarantors from their respective Guaranties (in each case except as
expressly provided in the Credit Documents) without the consent of each Lender (other than a
Defaulting Lender) directly affected thereby;




(iii) amend, modify or waive any provision of this Section 12.12 without the consent of
each Lender (other than a Defaulting Lender) directly affected thereby;




(iv) reduce the percentage specified in, or otherwise modify, the definition of
Required Lenders without the consent of each Lender (other than a Defaulting Lender)
directly affected thereby;


 


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(v) consent to the assignment or transfer by any Credit Party of any of its rights and
obligations under this Agreement without the consent of each Lender (other than a Defaulting
Lender) directly affected thereby;




(vi) alter any allocation of mandatory prepayments under Section 4.2 among the Term
Loans or the Revolving Facility without the consent of a majority in interest of the Lenders
of the Term Loans or the Revolving Facility, as the case may be, adversely affected thereby
(provided that, with the written consent of the Required Lenders, mandatory
prepayments under Section 4.2 may be reduced or eliminated); or




(vii) amend, modify or waive any provision of Section 2 or Section 11 without the
consent of the Letter of Credit Issuer or the Administrative Agent, respectively.



Any such waiver and any such amendment, supplement or modification shall apply equally to each of
the Lenders and shall be binding upon the Credit Parties, the Lenders, the Administrative Agent and
all future holders of the Loans. In the case of any waiver, the Credit Parties, the Lenders and
the Administrative Agent shall be restored to their former position and rights hereunder and under
the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured
and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.



Notwithstanding the foregoing, this Agreement, including this Section 12.12, may be amended
(or amended and restated) with the written consent of the Required Lenders, the Administrative
Agent and the Borrowers (a) to add one or more additional credit facilities to this Agreement and
to permit the extensions of credit from time to time outstanding thereunder and the accrued
interest and fees in respect thereof to share ratably in the benefits of this Agreement (including
the rights of the lenders under additional term facilities to share ratably with the Term
Facilities in prepayments pursuant to Sections 4.1 and 4.2) and the other Credit Documents with the
Term Loans and Total Revolving Extensions of Credit and the accrued interest and fees in respect
thereof and (b) to include appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders.



In addition, notwithstanding the foregoing, this Agreement may be amended with the written
consent of the Arrangers, the Administrative Agent, the Borrowers and the Lenders providing the
relevant Replacement Term Loans (as defined below) to permit the refinancing or modification of all
outstanding Term Loans or of all Tranche B Term Loans or of all Tranche C Term Loans
(“Refinanced Term Loans”) with a replacement term loan tranche hereunder (“Replacement
Term Loans”), provided that (a) the aggregate principal amount of such Replacement Term
Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the
Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin
for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term
Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans
at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans
shall be substantially identical to, or less favorable to the Lenders providing such Replacement
Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to
provide for covenants and other terms applicable to any period after the latest final maturity of
the Term Loans in effect immediately prior to such refinancing.



Except as otherwise set forth in this Agreement, no Fuel Hedge Provider, Cash Management Bank
or counterparty to a Specified Hedge Agreement shall, in such capacity, have any of the rights of a
Lender under this Agreement or under any other Credit Document.


 


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12.13. Survival. All indemnities set forth herein including, without limitation, in Section 1.10, 1.11, 2.5,
4.4, 11.7 or 12.1 shall survive the execution and delivery of this Agreement and the making and
repayment or assignment of the Loans.



12.14. Domicile of Loans. Each Lender may transfer and carry its Loans at, to or for the account of any branch
office, subsidiary or affiliate of such Lender, provided that the Borrowers shall not be
responsible for costs arising under Section 1.10, 2.5 or 4.4 resulting from any such transfer (other than a
transfer pursuant to Section 1.12) to the extent not otherwise applicable to such Lender prior to
such transfer.



12.15. Confidentiality. Each of the Administrative Agent and each Lender agrees to keep confidential all non-public
information provided to it by any Credit Party pursuant to this Agreement that is designated by
such Credit Party as confidential; provided that nothing herein shall prevent the
Administrative Agent or any Lender from disclosing any such information (a) to the Administrative
Agent, any other Lender or, subject to an agreement to comply with the provisions of this Section,
any Lender Affiliate, (b) subject to an agreement to comply with the provisions of this Section, to
any assignee or participant or prospective assignee or participant or any actual or prospective
direct or indirect counterparty to any Hedge Agreement (or any professional advisor to such
counterparty), (c) on a need-to-know basis, to its employees involved in the administration of this
Agreement or any other Credit Document, directors, agents, attorneys, accountants, consultants and
other professional advisors or those of any of its Affiliates (each of whom shall be instructed to
hold the same in confidence), (d) upon the request or demand of any Governmental Authority having
jurisdiction over such Lender, (e) in response to any order of any court or other Governmental
Authority or as may otherwise be required pursuant to any Requirement of Law, (f) that has been
publicly disclosed other than in breach of this Agreement, (g) to the National Association of
Insurance Commissioners or any similar organization or any nationally recognized rating agency that
requires access to information about a Lender’s investment portfolio in connection with ratings
issued with respect to such Lender, or (h) in connection with the exercise of any remedy hereunder
or under any other Credit Document.



12.16. Release of Liens and Guarantees. In the event that Parent, OpCo or any of their respective Subsidiaries conveys, sells,
leases, assigns, transfers or otherwise disposes of all or any portion of any of the capital stock,
assets or property of Parent, OpCo or any of their respective Subsidiaries in a transaction not
prohibited by this Agreement or any other Credit Document, the Administrative Agent shall promptly
(and the Lenders hereby authorize the Administrative Agent to) take such action and execute any
such documents as may be reasonably requested by either Borrower and at the Borrowers’ expense to
release any Liens created by any Credit Document in respect of such capital stock, assets,
property, including the release and satisfaction of record of any mortgage or deed or trust granted
in connection herewith, and, in the case of a disposition of all or substantially all the capital
stock or assets of any Subsidiary Guarantor, terminate such Subsidiary Guarantor’s obligations
under the Guarantee and Collateral Agreement and release all Liens on the assets of such Subsidiary
Guarantor. In addition, the Administrative Agent agrees to take such actions as are reasonably
requested by either Borrower and at the Borrowers’ expense to terminate the Liens and security
interests created by the Credit Documents when all the Obligations are paid in full (other than
obligations under or in respect of Hedge Agreements) and all Letters of Credit and Commitments are
terminated. Any representation, warranty or covenant contained in any Credit Document relating to
any such capital stock, assets, property or Subsidiary shall no longer be deemed to be made once
such Capital Stock, assets or property is conveyed, sold, leased, assigned, transferred or disposed
of.



12.17. Integration. This Agreement and the other Credit Documents represent the agreement of Parent, OpCo, the
other Credit Parties, the Administrative Agent and the Lenders with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Credit Documents.


 


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12.18. Acknowledgments. Each of Parent and OpCo hereby acknowledges that:




(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Credit Documents;




(b) neither the Administrative Agent nor any Lender has any fiduciary relationship with
or duty to Parent or OpCo arising out of or in connection with this Agreement or any of the
other Credit Documents, and the relationship between Administrative Agent and Lenders, on
one hand, and Parent and OpCo, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and




(c) no joint venture is created hereby or by the other Credit Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Lenders or among Parent,
OpCo and the Lenders.



12.19. Joint and Several Liability; Postponement of Subrogation. (a) Each Borrower hereby agrees that it is jointly and severally liable under this Agreement
for all Obligations (including any such Obligations arising under Specified Hedge Agreements,
Specified Fuel Hedge Agreements and Specified Cash Management Agreements), regardless of the
manner or amount in which proceeds of any Loans are used, allocated, shared or disbursed by or
among the Borrowers themselves, or the manner in which the Administrative Agent and/or any Lender
accounts for such Loans or other extensions of credit on its books and records. All Loans, upon
funding, shall be deemed to be jointly funded to and received by the Borrowers. Each Borrower
shall be fully liable hereunder regardless of which Borrower actually receives Loans or other
extensions of credit hereunder or the amount of such Loans and extensions of credit received or
the manner in which the Administrative Agent and/or such Lender accounts for such Loans or other
extensions of credit on its books and records. The Borrowers acknowledge and expressly agree with
the Administrative Agent and each Lender that the joint and several liability of each Borrower is
required solely as a condition to, and is given solely as inducement for and in consideration of,
credit or accommodations extended or to be extended under the Credit Documents to the other
Borrowers and is not required or given as a condition of extensions of credit to such Borrower.
Each Borrower’s Obligations under this Agreement shall, to the fullest extent permitted by law, be
unconditional irrespective of (i) the validity or enforceability, avoidance, or subordination of
the Obligations of the other Borrowers or of any promissory note or other document evidencing all
or any part of the Obligations of the other Borrowers, (ii) the absence of any attempt to collect
the Obligations from the other Borrowers, or any other security therefor, or the absence of any
other action to enforce the same, (iii) the waiver, consent, extension, forbearance or granting of
any indulgence by the Administrative Agent and/or any Lender with respect to any provision of any
instrument evidencing the Obligations of the other Borrowers, or any part thereof, or any other
agreement now or hereafter executed by the other Borrowers and delivered to the Administrative
Agent and/or any Lender, (iv) the failure by the Administrative Agent and/or any Lender to take
any steps to perfect and maintain its security interest in, or to preserve its rights to, any
security or collateral for the Obligations of the other Borrowers, (v) the Administrative Agent’s
and/or any Lender’s election, in any proceeding instituted under the Bankruptcy Code, of the
application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a
security interest by the other Borrowers, as debtor-in-possession under Section 364 of the
Bankruptcy Code, (vii) the disallowance of all or any portion of the Administrative Agent’s
and/or any Lender’s claim(s) for the repayment of the Obligations of the other Borrowers under
Section 502 of the Bankruptcy Code, or (viii) any other circumstances which might constitute a
legal or equitable discharge or defense of a Guarantor or of the other Borrowers.


 


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(b) Each Borrower waives, until the Obligations shall have been paid in full and this
Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy
which the Administrative Agent and/or any Lender now has or may hereafter have against the other
Borrowers, any endorser or any Guarantor of all or any part of the Obligations, and any benefit
of, and any right to participate in any security or collateral given to the Administrative Agent
and/or any Lender to secure payment of the Obligations or any other liability of the Borrowers to
the Administrative Agent and/or any Lender. Upon any Event of Default, the Administrative Agent
may proceed directly and at once, without notice, against either Borrower to collect and recover
the full amount, or any portion of the Obligations, without first proceeding against any other
Borrower or any other Person, or against any security or Collateral for the Obligations. Each
Borrower consents and agrees that the Administrative Agent shall be under no obligation to marshal
any assets in favor of either Borrower or against or in payment of any or all of the Obligations.



12.20. PATRIOT Act. Each Lender and Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies each Credit Party that pursuant to the requirements of the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001) the “PATRIOT Act”), it is required to
obtain, verify and record information that identifies each Credit Party, which information includes
the name and address of each Credit Party and other information that will allow such Lender or
Administrative Agent, as applicable, to identify such Credit Party in accordance with the PATRIOT
Act.


 


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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to
be duly executed and delivered as of the date first above written.



	 	 	 	 	 	 	 
	Address:
	 	 	 	 	 	 
	100 Pike Way, PO Box 868	 	PIKE ELECTRIC CORPORATION
	Mount Airy, NC 27030
	 	 	 	 	 	 
	Attn: Chief Financial Officer
	 	By:
	 	/s/ Anthony K. Slater
 


	 	 
	Phone: (336) 719-4237
	 	 	 	
 

Name: Anthony K. Slater
	 	 
	Fax: (336) 719-4640

	 	 	 	Title:  Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	PIKE ELECTRIC, INC.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Anthony K. Slater
 

Name: Anthony K. Slater
	 	 
	 

	 	 	 	Title:  Chief Financial Officer	 	 






[Signature Page to Credit Agreement]



 


 









 





	 	 	 	 	 	 	 
	745 7th Avenue	 	BARCLAYS BANK PLC, as Administrative
	New York, NY 10019	 	Agent
	Attn: David Barton
	 	 	 	 	 	 
	Phone: (212) 526-9870
	 	By:
	 	/s/ David Barton
 


	 	 
	Fax: (212) 526-5115
	 	 	 	
 

Name: David Barton
	 	 
	 

	 	 	 	Title:    Director	 	 






[Signature Page to Credit Agreement]





 


 











 





[ANNEXES AND EXHIBITS]




The Annexes and Exhibits to the Second Amended and Restated Credit Agreement have been
intentionally omitted. A copy of any omitted Annex or Exhibit will be furnished to the Securities
and Exchange Commission upon request.