Exhibit 4.33


 


EXECUTION VERSION


 


[Published CUSIP Number:
        ]


 


SECOND AMENDED AND RESTATED CREDIT AGREEMENT


 


Dated as of July 31, 2009


 


among


 


Clean Harbors, Inc.,


 


as the Borrower,


 


 


BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and

L/C Issuer,


 


and


 


The Other Lenders Party Hereto


 


 


BANC OF AMERICA SECURITIES LLC,


 


as Sole Lead Arranger and Sole Book Manager


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  I.

  	
  DEFINITIONS AND ACCOUNTING TERMS

  	
  1

  
	
  1.01.

  	
  Defined
  Terms

  	
  1

  
	
  1.02.

  	
  Other
  Interpretive Provisions

  	
  36

  
	
  1.03.

  	
  Accounting
  Terms

  	
  37

  
	
  1.04.

  	
  Rounding

  	
  37

  
	
  1.05.

  	
  Times
  of Day

  	
  37

  
	
  1.06.

  	
  Letter
  of Credit Amounts

  	
  37

  
	
  1.07.

  	
  Currency
  Equivalents Generally

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
  THE COMMITMENTS AND CREDIT EXTENSIONS

  	
  38

  
	
  2.01.

  	
  The
  Loans

  	
  38

  
	
  2.02.

  	
  Borrowings,
  Conversions and Continuations of Loans

  	
  38

  
	
  2.03.

  	
  Letters
  of Credit

  	
  40

  
	
  2.04.

  	
  Swing
  Line Loans

  	
  48

  
	
  2.05.

  	
  Prepayments

  	
  51

  
	
  2.06.

  	
  Termination
  or Reduction of Commitments

  	
  52

  
	
  2.07.

  	
  Repayment
  of Loans

  	
  53

  
	
  2.08.

  	
  Interest

  	
  53

  
	
  2.09.

  	
  Fees

  	
  54

  
	
  2.10.

  	
  Computation
  of Interest and Fees; Retroactive Adjustments of Applicable Rate

  	
  54

  
	
  2.11.

  	
  Evidence
  of Debt

  	
  55

  
	
  2.12.

  	
  Payments
  Generally; Administrative Agent’s Clawback

  	
  55

  
	
  2.13.

  	
  Sharing
  of Payments by Lenders

  	
  57

  
	
  2.14.

  	
  Intentionally
  Omitted

  	
  58

  
	
  2.15.

  	
  Increase
  in Revolving Credit Facility

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
  TAXES, YIELD PROTECTION AND ILLEGALITY

  	
  60

  
	
  3.01.

  	
  Taxes

  	
  60

  
	
  3.02.

  	
  Illegality

  	
  63

  
	
  3.03.

  	
  Inability
  to Determine Rates

  	
  64

  
	
  3.04.

  	
  Increased
  Costs; Reserves on Eurodollar Rate Loans

  	
  64

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  3.05.

  	
  Compensation
  for Losses

  	
  65

  
	
  3.06.

  	
  Mitigation
  Obligations; Replacement of Lenders

  	
  66

  
	
  3.07.

  	
  Survival

  	
  66

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV.

  	
  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  	
  67

  
	
  4.01.

  	
  Conditions
  of Initial Credit Extension

  	
  67

  
	
  4.02.

  	
  Conditions
  to all Credit Extensions

  	
  70

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
  REPRESENTATIONS AND WARRANTIES

  	
  71

  
	
  5.01.

  	
  Existence,
  Qualification and Power

  	
  71

  
	
  5.02.

  	
  Authorization;
  No Contravention

  	
  71

  
	
  5.03.

  	
  Governmental
  Authorization; Other Consents

  	
  71

  
	
  5.04.

  	
  Binding
  Effect

  	
  72

  
	
  5.05.

  	
  Financial
  Statements; No Material Adverse Effect

  	
  72

  
	
  5.06.

  	
  Litigation

  	
  73

  
	
  5.07.

  	
  No
  Default

  	
  73

  
	
  5.08.

  	
  Ownership
  of Property; Liens; Investments

  	
  73

  
	
  5.09.

  	
  Environmental
  Compliance

  	
  74

  
	
  5.10.

  	
  Insurance

  	
  75

  
	
  5.11.

  	
  Taxes

  	
  75

  
	
  5.12.

  	
  ERISA
  Compliance

  	
  75

  
	
  5.13.

  	
  Subsidiaries;
  Equity Interests; Loan Parties

  	
  76

  
	
  5.14.

  	
  Margin
  Regulations; Investment Company Act

  	
  76

  
	
  5.15.

  	
  Disclosure

  	
  77

  
	
  5.16.

  	
  Compliance
  with Laws

  	
  77

  
	
  5.17.

  	
  Intellectual
  Property; Licenses, Etc

  	
  77

  
	
  5.18.

  	
  Solvency

  	
  78

  
	
  5.19.

  	
  Casualty,
  Etc

  	
  78

  
	
  5.20.

  	
  Labor
  Matters

  	
  78

  
	
  5.21.

  	
  Collateral
  Documents

  	
  78

  
	
  5.22.

  	
  Bank
  Accounts

  	
  78

  
	
  5.23.

  	
  Trade
  Relations

  	
  78

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  5.24.

  	
  Restrictions
  on Subsidiaries

  	
  79

  
	
  5.25.

  	
  Material
  Contracts

  	
  79

  
	
  5.26.

  	
  Payable
  Practices

  	
  79

  
	
  5.27.

  	
  Interdependent
  Businesses and Operations

  	
  79

  
	
  5.28.

  	
  Anti-Terrorism
  Law

  	
  79

  
	
  5.29.

  	
  Properties

  	
  80

  
	
  5.30.

  	
  Disclosure

  	
  81

  
	
  5.31.

  	
  Survival
  of Warranties; Cumulative

  	
  81

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
  AFFIRMATIVE COVENANTS

  	
  81

  
	
  6.01.

  	
  Financial
  Statements

  	
  81

  
	
  6.02.

  	
  Certificates;
  Other Information

  	
  83

  
	
  6.03.

  	
  Notices

  	
  86

  
	
  6.04.

  	
  Payment
  of Obligations

  	
  87

  
	
  6.05.

  	
  Preservation
  of Existence, Etc

  	
  87

  
	
  6.06.

  	
  Maintenance
  of Properties

  	
  87

  
	
  6.07.

  	
  Maintenance
  of Insurance

  	
  88

  
	
  6.08.

  	
  Compliance
  with Laws, Immediate Notice in respect of Hazardous Material

  	
  88

  
	
  6.09.

  	
  Books
  and Records

  	
  89

  
	
  6.10.

  	
  Inspection
  Rights

  	
  89

  
	
  6.11.

  	
  Use
  of Proceeds

  	
  89

  
	
  6.12.

  	
  Covenant
  to Guarantee Obligations and Give Security

  	
  89

  
	
  6.13.

  	
  Compliance
  with Environmental Laws

  	
  90

  
	
  6.14.

  	
  Preparation
  of Environmental Reports, Environmental Indemnity

  	
  91

  
	
  6.15.

  	
  Compliance
  with ERISA

  	
  91

  
	
  6.16.

  	
  Further
  Assurances

  	
  92

  
	
  6.17.

  	
  Compliance
  with Terms of Leaseholds

  	
  92

  
	
  6.18.

  	
  License
  Agreements

  	
  92

  
	
  6.19.

  	
  Material
  Contracts

  	
  93

  
	
  6.20.

  	
  Costs
  and Expenses

  	
  93

  



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  6.21.

  	
  Cash
  Collateral Accounts

  	
  94

  
	
  6.22.

  	
  Cash
  Management Arrangements

  	
  94

  
	
  6.23.

  	
  Information
  Regarding Collateral

  	
  94

  
	
  6.24.

  	
  Anti-Terrorism
  Law; Anti-Money Laundering

  	
  95

  
	
  6.25.

  	
  Mortgages

  	
  95

  
	
  6.26.

  	
  Control
  Agreements

  	
  96

  
	
  6.27.

  	
  The
  Acquisition

  	
  96

  
	
  6.28.

  	
  Intellectual
  Property Security Agreements

  	
  97

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
  NEGATIVE COVENANTS

  	
  98

  
	
  7.01.

  	
  Liens

  	
  98

  
	
  7.02.

  	
  Indebtedness

  	
  99

  
	
  7.03.

  	
  Investments

  	
  101

  
	
  7.04.

  	
  Fundamental
  Changes

  	
  103

  
	
  7.05.

  	
  Dispositions

  	
  103

  
	
  7.06.

  	
  Restricted
  Payments

  	
  105

  
	
  7.07.

  	
  Change
  in Nature of Business

  	
  105

  
	
  7.08.

  	
  Transactions
  with Affiliates

  	
  105

  
	
  7.09.

  	
  Burdensome
  Agreements

  	
  105

  
	
  7.10.

  	
  Use
  of Proceeds

  	
  106

  
	
  7.11.

  	
  Financial
  Covenants

  	
  106

  
	
  7.12.

  	
  Amendments
  of Organization Documents

  	
  107

  
	
  7.13.

  	
  Accounting
  Changes

  	
  107

  
	
  7.14.

  	
  Prepayments,
  Etc. of Indebtedness

  	
  107

  
	
  7.15.

  	
  Amendment,
  Etc. of Related Documents

  	
  107

  
	
  7.16.

  	
  Change
  of Name or Chief Executive Office

  	
  107

  
	
  7.17.

  	
  Intentionally
  Omitted

  	
  108

  
	
  7.18.

  	
  Embargoed
  Person

  	
  108

  
	
  7.19.

  	
  Sale
  and Leaseback Transactions

  	
  108

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  	
  EVENTS OF DEFAULT AND REMEDIES

  	
  108

  
	
  8.01.

  	
  Events
  of Default

  	
  108

  



 


iv

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  8.02.

  	
  Remedies
  upon Event of Default

  	
  111

  
	
  8.03.

  	
  Application
  of Funds

  	
  112

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  	
  ADMINISTRATIVE AGENT

  	
  113

  
	
  9.01.

  	
  Appointment
  and Authority

  	
  113

  
	
  9.02.

  	
  Rights
  as a Lender

  	
  113

  
	
  9.03.

  	
  Exculpatory
  Provisions

  	
  113

  
	
  9.04.

  	
  Reliance
  by Administrative Agent

  	
  114

  
	
  9.05.

  	
  Delegation
  of Duties

  	
  115

  
	
  9.06.

  	
  Resignation
  of Administrative Agent

  	
  115

  
	
  9.07.

  	
  Non-Reliance
  on Administrative Agent and Other Lenders

  	
  116

  
	
  9.08.

  	
  No
  Other Duties, Etc

  	
  116

  
	
  9.09.

  	
  Administrative
  Agent May File Proofs of Claim

  	
  116

  
	
  9.10.

  	
  Collateral
  and Guaranty Matters

  	
  117

  
	
  9.11.

  	
  Secured
  Cash Management Agreements and Secured Hedge Agreements

  	
  118

  
	
   

  	
   

  	
   

  
	
  ARTICLE X.

  	
  MISCELLANENOUS

  	
  118

  
	
  10.01.

  	
  Amendments,
  Etc

  	
  118

  
	
  10.02.

  	
  Notices;
  Effectiveness; Electronic Communications

  	
  119

  
	
  10.03.

  	
  No
  Waiver; Cumulative Remedies; Enforcement

  	
  121

  
	
  10.04.

  	
  Expenses;
  Indemnity; Damage Waiver

  	
  122

  
	
  10.05.

  	
  Payments
  Set Aside

  	
  124

  
	
  10.06.

  	
  Successors
  and Assigns

  	
  124

  
	
  10.07.

  	
  Treatment
  of Certain Information; Confidentiality

  	
  128

  
	
  10.08.

  	
  Right
  of Setoff

  	
  129

  
	
  10.09.

  	
  Interest
  Rate Limitation

  	
  129

  
	
  10.10.

  	
  Counterparts;
  Integration; Effectiveness

  	
  130

  
	
  10.11.

  	
  Survival
  of Representations and Warranties

  	
  130

  
	
  10.12.

  	
  Severability

  	
  130

  
	
  10.13.

  	
  Replacement
  of Lenders

  	
  130

  
	
  10.14.

  	
  Governing
  Law; Jurisdiction; Etc

  	
  131

  
	
  10.15.

  	
  Waiver
  of Jury Trial

  	
  132

  



 


v

















 


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(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  10.16.

  	
  No
  Advisory or Fiduciary Responsibility

  	
  132

  
	
  10.17.

  	
  Electronic
  Execution of Assignments and Certain Other Documents

  	
  133

  
	
  10.18.

  	
  USA
  PATRIOT Act

  	
  133

  
	
  10.19.

  	
  Judgment Currency

  	
  133

  



 


vi

















 


SCHEDULES


 


	
  2.01

  	
  Commitments
  and Applicable Percentages

  
	
  2.03

  	
  Existing Letters of Credit

  
	
  5.03

  	
  Certain Authorizations

  
	
  5.08(b)

  	
  Existing
  Liens

  
	
  5.09

  	
  Environmental Matters

  
	
  5.13

  	
  Subsidiaries
  and Other Equity Investments; Loan Parties

  
	
  5.20

  	
  Labor
  Matters

  
	
  5.25

  	
  Material
  Contracts

  
	
  6.12

  	
  Guarantors

  
	
  7.02

  	
  Permitted
  Existing Indebtedness

  
	
  7.03(c)

  	
  Investments
  in Subsidiaries

  
	
  7.09

  	
  Burdensome
  Agreements

  
	
  10.02

  	
  Administrative
  Agent’s Office, Certain Addresses for Notices

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  Form of

  	
   

  
	
  A-1

  	
  Committed
  Loan Notice

  
	
  A-2

  	
  Swing
  Line Notice

  
	
  B

  	
  Revolving
  Credit Note

  
	
  C

  	
  Compliance
  Certificate

  
	
  D

  	
  Assignment
  and Assumption

  
	
  E

  	
  Administrative
  Questionnaire

  
	
  F

  	
  Guaranty

  
	
  G

  	
  Security
  Agreement

  
	
  H-1

  	
  Opinion
  Matters – Counsel to Loan Parties

  
	
  H-2

  	
  Opinion
  Matters – New York Counsel to Loan Parties

  
	
  I

  	
  Borrowing Base Certificate

  



 
















 


SECOND AMENDED AND RESTATED CREDIT AGREEMENT


 


This SECOND AMENDED AND
RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of July 31,
2009, among Clean Harbors, Inc., a
Massachusetts corporation (the “Borrower”), each lender from time
to time party hereto (collectively, the “Lenders” and individually, a “Lender”),
and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer.


 


PRELIMINARY STATEMENTS:


 


WHEREAS, this Agreement was
originally entered into on June 30, 2004 and amended on July 20, 2004
(as so amended, the “Original Credit Agreement”), amended and restated
on December 1, 2005, and further amended and supplemented through the date
hereof (as so amended, restated, and supplemented, the “Existing Credit
Agreement”), among the Administrative Agent, certain other agents, certain
of the Lenders and the Borrower and certain of its Subsidiaries, and the
parties hereto desire to make certain modifications to their credit
arrangements and amend and restate the Existing Credit Agreement as herein set
forth;


 


WHEREAS, pursuant to the
Acquisition Agreement dated as of April 29, 2009 (the “Acquisition
Agreement”) by and among the Borrower, Clean Harbors Canada, Inc., and
Eveready Inc. (the “Target Company”), the Borrower has agreed to acquire
(the “Acquisition”) all of the outstanding capital stock of the Target
Company; and


 


WHEREAS, the Borrower has
requested that the Lenders provide an amended and restated revolving credit and
letter of credit facility, and the Lenders have indicated their willingness to
lend and the L/C Issuer has indicated its willingness to issue letters of
credit, in each case, on the terms and subject to the conditions set forth
herein.


 


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


 


ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS


 


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


 


“Accounts” has the
meaning given such term in the UCC and includes, without limitation, all
present and future rights of the Loan Parties to payment of a monetary
obligation, wither or not earned by performance, which is not evidenced by
Chattel Paper or an Instrument, (a) for Inventory that has been or is to
be sold, leased licensed, assigned, or otherwise disposed of, (b) for
services rendered or to be rendered, or (c) arising out of the use of a
credit or charge card or information contained on or for use with the card.


 


“Accounts Collateral”
has the meaning given such term in the Security Agreement.


 

















 


“Acquired Indebtedness” means Indebtedness of a Person or any of
its Subsidiaries


 


(a)          existing at the time such Person becomes a Subsidiary
of the Borrower or merges or consolidates with the Borrower or any of its
Subsidiaries, or


 


(b)         assumed in connection with the acquisition of assets
from such Person,


 


in each case, not incurred
by such Person in connection with, or in contemplation of, such Person becoming
a Subsidiary of the Borrower or such acquisition, merger or consolidation.


 


“Acquisition” has the
meaning specified in the Preliminary Statements.


 


“Acquisition Agreement”
has the meaning specified in the Preliminary Statements.


 


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


 


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


 


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


 


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


 


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


 


“Aggregate Credit Exposures” means,
at any time, in respect of the Revolving Credit Facility, the sum of (i) the
unused portion of the Revolving Credit Facility at such time and (ii) the
Total Revolving Credit Outstandings at such time.


 


“Agreement” means this Second
Amended and Restated Credit Agreement, as it may hereafter be further amended,
restated and/or supplemented in accordance with its terms.


 


“Applicable Fee Rate”
means, at any time, in respect of the Revolving Credit Facility, (a) from the Closing Date to the date
which is six months after the Closing Date, 0.50% per annum and (b) thereafter,
the applicable percentage per annum set forth below determined by reference to
Facility Usage of the Revolving Credit Facility:


 


Applicable Fee Rate


 




	
  Pricing

  Level

  	
   

  	
  Facility
  Usage

  	
   

  	
  Unused
  Line 

  Fee

  	
   

  
	
  1

  	
   

  	
  Facility Usage < 50%

  	
   

  	
  0.75

  	
  %

  
	
  2

  	
   

  	
  Facility Usage > 50%

  	
   

  	
  0.50

  	
  %

  






 


2

















 


Any
increase or decrease in the Applicable Fee Rate resulting from a change in
Facility Usage shall become effective as of the first Business Day immediately
following such change.


 


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


 


“Applicable Percentage”
means, in respect of the Revolving
Credit Facility, with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Revolving Credit Facility represented
by such Lender’s Revolving Credit Commitment at such time.  If the commitment of each Lender to make Revolving Credit Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section 8.02, or if the Revolving Credit Commitments have expired, then the Applicable
Percentage of each Lender in respect of the Revolving Credit Facility shall be determined based on the
Applicable Percentage of such Lender in respect of the Revolving Credit  Facility
most recently in effect, giving effect to any subsequent assignments.  The initial Applicable Percentage of each
Lender in respect of the Revolving Credit Facility is set forth opposite the
name of such Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.


 


“Applicable Property”
means any Real Property owned or leased by the Borrower or any of its
Subsidiaries which, in the good faith determination of the Borrower’s Board of
Directors, and subject to the prior written consent of the Administrative
Agent, is determined to be (i) not a Real Property on which the
Administrative Agent wishes to acquire or retain a Mortgage, (ii) not
needed for the conduct of the Permitted Business of the Borrower and its
Subsidiaries, and (iii) more beneficially used by the Borrower or any such
Subsidiary if contributed in kind by the Borrower or such Subsidiary to an
Applicable Property Entity.


 


“Applicable Property
Entity” shall mean a Person that is not the Borrower or one of its
Subsidiaries that is established or exists for the purpose of holding and/or
operating one or more of the Applicable Properties.


 


“Applicable Rate” means (a) in
respect of the Revolving Credit Facility, (i) from the Closing Date to the date on which the Administrative
Agent receives a Compliance Certificate pursuant to Section 6.02(a) for
the fiscal quarter ending March 31, 2010, 2.25% per annum for Base Rate
Loans and 3.25% per annum for Eurodollar Rate Loans and Letter of Credit Fees
and (ii) thereafter, the applicable percentage per annum set forth below
determined by reference to the Consolidated Fixed Charge Coverage Ratio as set
forth in the most recent Compliance Certificate received by the Administrative
Agent pursuant to Section 6.02(a):


 


Applicable Rate


 




	
  Pricing

  Level

  	
   

  	
  Consolidated Fixed 

  Charge Coverage 

  Ratio

  	
   

  	
  Eurodollar Rate

  (Letters of

  Credit)

  	
   

  	
  Base Rate

  (Swing

  Line

  Loans)

  	
   

  
	
  1

  	
   

  	
  >1.00:1
  but <1.50:1

  	
   

  	
  3.75

  	
  %

  	
  2.75

  	
  %

  
	
  2

  	
   

  	
  >1.50:1
  but <2.00:1

  	
   

  	
  3.50

  	
  %

  	
  2.50

  	
  %

  
	
  3

  	
   

  	
  >2.00:1

  	
   

  	
  3.25

  	
  %

  	
  2.25

  	
  %

  






 


3

















 


Any increase or decrease in the Applicable Rate
resulting from a change in the Fixed Charge Coverage Ratio shall become
effective as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 6.02(a); provided,
however, that if a Compliance Certificate is not delivered when due in
accordance with such Section, then, upon the request of the Required Lenders,
Pricing Level 1 shall apply in respect of the Revolving Credit Facility as of
the first Business Day after the date on which such Compliance Certificate was
required to have been delivered and in each case shall remain in effect until
the date on which such Compliance Certificate is delivered.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Attributable Indebtedness” means,
on any date, in respect of any Capitalized Lease of any Person, the capitalized
amount thereof that would appear on a balance sheet of such Person prepared as
of such date in accordance with GAAP.


 


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


 


“Availability Period” means, in
respect of the Revolving Credit Facility, the period from and including the
Closing Date to the earliest of (i) the Maturity Date, (ii) the date
of termination 


 


4

















 


of the Revolving Credit Commitments pursuant
to Section 2.06, and (iii) the date of termination of the
commitment of each Revolving Credit Lender to make Revolving Credit Loans and
of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.


 


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


 


“Base Rate” means for any day a
fluctuating rate per annum equal to the highest of (a) the Federal Funds
Rate plus 1/2 of 1%, (b) the rate of interest in effect for such
day as publicly announced from time to time by Bank of America as its “prime
rate”, and (c) the Eurodollar Rate for an Interest Period of 1-month
beginning on such day plus 1.0%. The “prime rate” is a rate set by Bank of
America based upon various factors including Bank of America’s costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate.  Any change in such
rate announced by Bank of America shall take effect at the opening of business
on the day specified in the public announcement of such change.


 


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


 


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


 


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


 


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


 


“Borrowing Base”
means, as to the Loan Parties, the amount equal to (a) eighty-five percent
(85%) of the Net Amount of Eligible Accounts of the Loan Parties (including all
Municipal Government Accounts of Loan Parties that are Eligible Accounts)
subject to a cap of $12,000,000 on unbilled Eligible Accounts, plus (b) the
lesser of eighty-five percent (85%) of the Net Amount of Federal Government
Accounts of the Loan Parties that are Eligible Accounts (which amount may
include Accounts that are not Eligible Accounts solely because such accounts
are not compliant with the Assignment of Claims Act of 1940) or $5,000,000,
plus (c) ninety-seven percent (97%) of Eligible Pledged Cash, minus (d) any
Reserves attributable to the Loan Parties.


 


“Borrowing Base Certificate” means
a certificate substantially in the form of Exhibit I.


 


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


 


“Canadian Assets”
means assets of any Canadian Subsidiary.


 


“Canadian Dollars” or
“CDN” means Dollars in lawful currency of Canada.


 


5

















 


“Canadian Subsidiary”
means any Subsidiary of the Borrower organized under the laws of Canada or any
province thereof.


 


“Canadian Target Debt”
means the Indebtedness existing under the Canadian Target Debt Agreement.


 


“Canadian Target Debt
Agreement” means, collectively, (i) the amended and restated credit
agreement, dated as of December 31, 2008, among Eveready Energy Services
Corp., as borrower, the Target and other Subsidiaries of the Target signatory
thereto, as credit parties, GE Asset Financing Holding Company and Canadian
Imperial Bank of Commerce, as co-agents and lenders, and the other lenders
signatory thereto, as lenders, as such agreement has heretofore been amended
and may hereafter be amended, restated, supplemented or otherwise modified from
time to time, (ii) any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including increasing the amount of
available borrowings or availability of letters of credit thereunder or adding
Subsidiaries of the Target Company or Canadian Subsidiaries of the Borrower as
additional borrowers or guarantors thereunder) all or any portion of the Indebtedness
under such agreement, and (iii) any successor or replacement agreement or
agreements and whether by the same or any other agent, lender or group of
lenders or issuers of letters of credit.


 


“Canadian Target Debt
Documents” means those documents executed in connection with the Canadian
Target Debt Agreement.


 


“Capital Expenditures” means, with
respect to any Person for any period, the sum of (i) the aggregate of all
expenditures by such Person and its Subsidiaries during such period that in
accordance with GAAP are or should be included in “property, plant and
equipment” or in a similar fixed asset account on its balance sheet, whether
such expenditures are paid in cash or financed, and (ii) to the extent not
covered by clause (i) above, the aggregate of all expenditures by such
Person and its Subsidiaries during such period to acquire by purchase or
otherwise the business or fixed assets of, or the Equity Interests of, any
other Person, provided that there shall be excluded from Capital Expenditures
the purchase price paid in any Permitted Acquisition, to the extent such
purchase price would have otherwise constituted Capital Expenditures, provided
further, that any Rolling Stock which is initially accounted for as a Capital
Expenditure at the time of acquisition thereof but which is transferred to a
third party and becomes subject to an operating lease within 60 days after the
date of acquisition thereof which lease would not be required to be treated as
an addition to “property, plant and equipment” or in a similar fixed asset
account on a consolidated balance sheet of the Borrower and its Subsidiaries
prepared in accordance with GAAP, shall be excluded from Capital Expenditures.


 


“Capitalized Leases”
means all leases that have been or should be, in accordance with GAAP, recorded
as capitalized leases.


 


“Cash Collateral”
means cash deposited into a Cash Collateral Account.


 


“Cash Collateral Account” means a
blocked deposit account of one or more of the Loan Parties at Bank of America
(or another commercial bank selected in compliance with Section 6.22)
in the name of the Administrative Agent and under the sole dominion and control
of the 


 


6

















 


Administrative Agent, and otherwise
established in a manner satisfactory to the Administrative Agent.


 


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


 


“Cash Equivalents” means any
of the following types of Investments, to the extent owned by the Borrower or
any of its Subsidiaries free and clear of all Liens (other than Liens created
under the Collateral Documents and
other Liens permitted hereunder):


 


(a)                                  readily
marketable obligations issued or directly and fully guaranteed or insured by
the United States of America or any agency or instrumentality thereof having
maturities of not more than 360 days from the date of acquisition thereof; provided that the full faith and
credit of the United States of America is pledged in support thereof;


 


(b)                                 time deposits
with, or insured certificates of deposit or bankers’ acceptances of, any
commercial bank that (i) (A) is a Lender or (B) is organized
under the laws of the United States of America, any state thereof or the
District of Columbia or is the principal banking subsidiary of a bank holding
company organized under the laws of the United States of America, any state
thereof or the District of Columbia, and is a member of the Federal Reserve
System, (ii) issues (or the parent of which issues) commercial paper rated
as described in clause (c) of this definition and (iii) has combined
capital and surplus of at least $250,000,000, in each case with maturities of
not more than 90 days from the
date of acquisition thereof;


 


(c)                                  commercial
paper issued by any Person organized under the laws of any state of the United
States of America and rated at least “Prime-1” (or the then equivalent
grade) by Moody’s or at least “A-1” (or the then equivalent grade) by
S&P, in each case with maturities of not more than 360 days from the date
of acquisition thereof;


 


(d)                                 marketable
direct obligations issued by any State of the United States of America or any
political subdivision or public instrumentality therof maturing within one year
of the acquisition thereof and having one of the two highest ratings obtainable
from either S&P or Moody’s;


 


(e)                                  debt securities
maturing within one year from the date of acquisition issued by any company
organized under the laws of the United States of America, any State thereof or
the District of Columbia and having a rating of at least A from S&P and A2
from Moody’s;


 


(f)                                    repurchase
agreements and reverse purchase agreements relating to marketable direct
obligations issued by, or unconditionally guaranteed by, the United States or
Canada or issued by any agency of those countries and backed by the full faith
and credit of the respective country, in each case maturing within 90 days from
the date of acquisition, provided that the terms of such agreements comply with
the guidelines set forth in Repurchase Agreements of Depository Institutions
with Securities Dealers and Others, as adopted by the Comptroller of the
Currency on February 11, 1998;


 


(g)                                 Investments,
classified in accordance with GAAP as current assets of the Borrower or any of
its Subsidiaries, in money market and mutual fund investment programs
registered under the Investment Company Act of 1940, which are administered by
financial 


 


7

















 


institutions that have the highest rating obtainable
from either Moody’s or S&P, and the portfolios of which are limited solely
to Investments of the character, quality and maturity described in clauses (a) through
(f) of this definition; and


 


(h)                                 variable rate
bond or short term money market instruments whose rate is reset periodically
through an auction process, in an aggregate amount not to exceed $5,000,000.


 


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


 


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


 


“Casualty
Event” means any loss of title or any loss of or damage to or destruction
of, or any condemnation or other taking (including by any Governmental
Authority) of, any property of the Borrower or any of its Subsidiaries.  “Casualty Event” shall include but not be
limited to any taking of all or any part of any Real Property of any person or
any part thereof, in or by condemnation or other eminent domain proceedings
pursuant to any law, or by reason of the temporary requisition or the use or
occupancy of all or any part of any Real Property of any person or any part
thereof by any Governmental Authority, civil or military, or any settlement in
lieu thereof.


 


“CERCLA” means the
Comprehensive Environmental Response, Compensation and Liability Act of 1980.


 


“CERCLIS” means the
Comprehensive Environmental Response, Compensation and Liability Information
System maintained by the U.S. Environmental Protection Agency.


 


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


 


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


 


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


 


(a)                                  except as may
be permitted under Section 7.04 hereof, the transfer (in one
transaction or a series of transactions) of all or substantially all of the
assets of any Loan Party to any “person” or “group” (as such terms are used in
Sections 13(d)(3) and 14(d) of the Securities Exchange Act of 1934);


 


8

















 


(b)                                 except as may
be permitted under Section 7.04 hereof, the liquidation or
dissolution of any Loan Party or the adoption of a plan by the stockholders of
any Loan Party relating to the dissolution or liquidation of any Loan Party;


 


(c)                                  the acquisition
by any Person or group ((as such terms are used in Sections 13(d)(3) and
14(d) of the Securities Exchange Act of 1934), except for one or more
Permitted Holders, of beneficial ownership, directly or indirectly of 50% or
more of the voting power of the total outstanding Voting Stock of the Borrower;


 


(d)                                 during any
period of two (2) consecutive
years, individuals who at the beginning of such period constituted the
board of directors of the Borrower (together with any new directors who have
appointed by any Permitted Holder, or whose nomination for election by the
stockholders of the Borrower, as the case may be, was approved by a vote of at
least sixty-six and two-thirds percent (66 2/3%) of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any reason
(other than death or cessation of legal capacity) to constitute a majority of
the Board of Directors of the Borrower then still in office;


 


(e)                                  in the case of
any Loan Party other than the Borrower, the Borrower or Loan Parties that own
beneficially and of record, Voting Stock of other Loan Parties on the Closing
Date shall cease to own beneficially and of record, one hundred percent (100%)
of the voting power of the total outstanding Voting Stock of such other Loan
Party or shall cease to control the appointment of the board of directors of
each such Loan Party;


 


(f)                                    the occurrence
of a change of control under any Material Indebtedness; or


 


(g)                                 a “change of
control” or any comparable term under, and as defined in, the Canadian Target
Debt Agreement, the Other Permitted Canadian Debt Documents, the Senior High
Yield Indenture or any Other Secured Debt Agreement shall have occurred.


 


“Chattel Paper” has
the meaning given such term in the UCC.


 


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


 


“Code” means the Internal Revenue
Code of 1986.


 


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


 


“Collateral Documents” means,
collectively, the Security Agreement, the Copyright Security Agreement, the
Trademark Security Agreement, the Patent Security Agreement, the Mortgages,
each of the mortgages, collateral assignments, security agreements, supplements
to such agreements or other similar agreements delivered to the Administrative
Agent pursuant to Section 6.12, and each of the other agreements,
instruments or documents that creates or purports to create a Lien in favor of
the Administrative Agent for the benefit of the Secured Parties, 


 


9

















 


including, but not limited to, deposit
account control agreements, lockbox agreements and securities account control
agreements.


 


“Commitment” means a Revolving
Credit Commitment.


 


“Committed Loan Notice” means a
notice of (a) a Revolving Credit Borrowing, (b) a conversion of Loans
from one Type to the other, or (c) a continuation of Eurodollar Rate
Loans, pursuant to Section 2.02(a), which, if in writing, shall be
substantially in the form of Exhibit A-1.


 


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


 


“Consolidated EBITDA” means, at
any date of determination, an amount equal to Consolidated Net Income of the
Borrower and its Subsidiaries on a consolidated basis for the most recently
completed Measurement Period plus (a) the following to the extent
deducted in calculating such Consolidated Net Income:  (i) Consolidated Interest Charges, (ii) the
provision for Federal, state, local and foreign income taxes, (iii) depreciation
and amortization expense, (iv) transaction expenses relating to the
Transactions not to exceed $10,000,000 in the aggregate, and (v) other
non-recurring expenses reducing such Consolidated Net Income which do not
represent a cash item in such period or any future period (in each case of or
by the Borrower and its Subsidiaries for such Measurement Period) and minus
(b) the following to the extent included in calculating such Consolidated
Net Income:  (i) Federal, state,
local and foreign income tax credits and (ii) all non-cash items increasing
Consolidated Net Income.


 


“Consolidated Fixed Charge Coverage Ratio” means, at any date of determination
and for the Measurement Period most recently ended, the ratio of (a) (i) Consolidated
EBITDA, less the sum of (ii) aggregate amount of Federal, state,
local and foreign income taxes paid or payable in cash, (iii) the
aggregate amount of all Capital Expenditures (other than those financed by
Indebtedness permitted under Section 7.02), (iv) the aggregate
amount of all Restricted Payments, and (v) Environmental Expenditures, to (b) the
sum of (i) Consolidated Interest Charges to the extent paid or payable in
cash, and (ii) the aggregate principal amount of all regularly scheduled
principal payments paid or payable with respect to Indebtedness, in each case,
of or by the Borrower and its Subsidiaries for the most recently completed
Measurement Period.


 


“Consolidated Interest Charges”
means, for any Measurement Period, (i) the sum of (a) all interest,
premium payments, debt discount, fees, charges and related expenses in
connection with borrowed money (including capitalized interest) or in
connection with the deferred purchase price of assets, in each case to the
extent treated as interest in accordance with GAAP, (b) all interest paid
or payable with respect to discontinued operations (but, in the case of
clauses (a) and (b), excluding amortization of financing fees and original
issue discount), and (c) the
portion of rent expense under Capitalized Leases that is treated as interest in
accordance with GAAP, in each case, of or by the Borrower and its Subsidiaries
on a consolidated basis for the most recently completed Measurement Period.


 


“Consolidated Net Income” means,
at any date of determination, the net income (or loss) of the Borrower and its
Subsidiaries on a consolidated basis for the most recently completed
Measurement Period; provided that the calculation of Consolidated Net
Income shall exclude (a)


 


10
















 


extraordinary
gains and extraordinary losses for such Measurement Period, (b) the net
income of any Subsidiary during such Measurement Period to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
of such income is not permitted by operation of the terms of its Organization
Documents or any agreement, instrument or Law applicable to such Subsidiary
during such Measurement Period, except that the Borrower’s equity in any net
loss of any such Subsidiary for such Measurement Period shall be included in determining
Consolidated Net Income, (c) any income (or loss) for such Measurement
Period of any Person if such Person is not a Subsidiary, except that the
Borrower’s equity in the net income of any such Person for such Measurement
Period shall be included in Consolidated Net Income up to the aggregate amount
of cash actually distributed by such Person during such Measurement Period to
the Borrower or a Subsidiary as a dividend or other distribution (and in the case
of a dividend or other distribution to a Subsidiary, such Subsidiary is not
precluded from further distributing such amount to the Borrower as described in
clause (b) of this proviso), (d) any accretion expense attributable
to Environmental Liabilities for such Measurement Period, provided that
such (1) such expense is non-cash and (2) determined on a
consolidated basis in accordance with GAAP, and (e) non-recurring employee
severance costs in an amount not to exceed $1,200,000 in any twelve month
period.


 


“Contra Account”
means an account on the balance sheet of a Person that offsets the balance of a
related and corresponding account.


 


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


 


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


 


“Control Agreement”
has the meaning given such term in the Security Agreement.


 


“Copyright Security Agreement”
means that certain Grant of Security Interest in Copyright Rights, to be dated
within thirty (30) days of the Closing Date, by and among the applicable Loan
Parties and the Administrative Agent, as amended, supplemented or otherwise
modified from time to time (together with each other grant of security interest
in copyright rights delivered pursuant to Section 6.12 of this
Agreement and Section 8.13 of the Security Agreement).


 


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


 


“Credit Suisse Term Debt”
means the $30,000,000 term note issued pursuant to the Credit Suisse Term Loan
Supplement.


 


“Credit Suisse Term Loan
Supplement” means that certain Term Loan Supplement, dated as of August 18,
2006, among the Borrower, certain of its U.S. Subsidiaries under the Amended 


 


11

















 


Credit Agreement, the guarantors party to the
Amended Credit Agreement, the term loan lenders party thereto, Credit Suisse
Securities (USA) LLC, and Credit Suisse.


 


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


 


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


 


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


 


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


 


“Dilution Percentage”
means a percentage, calculated at the end of each field examination with
respect to the Collateral by the Administrative Agent, reflecting the amount of
dilution of Eligible Accounts that should (based on the results of such field
examination), in the determination of the Administrative Agent, be taken into
account when calculating such Borrowing Base; provided that each such
percentage shall be represented by a whole number without decimal places.  The Dilution Percentage shall remain in
effect from and after each such field examination until the completion of a new
field examination and the determination by the Administrative Agent of a new
Dilution Percentage, at which time the Dilution Percentage shall reflect such
new field examination and the determination by the Administrative Agent of such
new Dilution Percentage.


 


“Dilution Reserve
Percentage” means, as of any time, the Dilution Percentage as of such time
minus 5%; provided that if the Dilution Percentage as of such time is
below 5%, then the Dilution Reserve Percentage as of such time shall be deemed
to be 0%.


 


“Disclosed Litigation” has the
meaning set forth in Section 5.06.


 


“Disposition” or “Dispose”
means any direct or indirect conveyance, sale, lease, sublease, assignment,
transfer or other disposition (including any sale and leaseback transaction) of
any property excluding sales of inventory and dispositions of Cash Equivalents,
in each case, in the ordinary course of business, by the Borrower or any of its
Subsidiaries.


 


12

















 


“Disqualified Equity
Interests” means any Equity Interests which, by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable),
or upon the happening of any event, (a) matures (excluding any maturity as
the result of an optional redemption by the issuer thereof) or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
redeemable at the option of the holder thereof, in whole or in part, on or
prior to the first anniversary of the Maturity Date, (b) is convertible or
exchangeable (unless at the sole option of the issuer thereof) for (i) debt
securities or (ii) any Equity Interests referred to in (a) above, in
each case at any time on or prior to the first anniversary of the Maturity
Date, or (c) contains any repurchase obligation which may come into effect
prior to payment in full of all Obligations.


 


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


 


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


 


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


 


“Eligible
Accounts”  means Accounts of the Borrower and
its Subsidiaries subject to the Lien of the Collateral Documents, the value of
which shall be determined by taking into consideration, among other factors,
their book value determined in accordance with GAAP; provided, however,
that none of the following classes of Accounts shall be deemed to be Eligible
Accounts:


 


(a)                                  Accounts that
do not arise out of sales of goods or rendering of services in the ordinary
course of the Borrower’s or the relevant Subsidiary’s business;


 


(b)                                 Accounts
payable other than in Dollars or that are otherwise on terms other than those
normal or customary in the Borrower’s or the relevant Subsidiary’s business;


 


(c)                                  Accounts more
than 90 days past original invoice date;


 


(d)                                 Accounts owing
from any Person that is an Affiliate of the Borrower;


 


(e)                                  Accounts
arising out of sales to account debtors outside the United States and Canada;


 


(f)                                    Accounts owing
from any Person from which an aggregate amount of 50% or more of the Accounts
owing therefrom are otherwise ineligible;


 


(g)                                 Accounts in
respect of Contra Accounts;


 


(h)                                 Accounts owing
from an account debtor that is an agency, department or instrumentality of the
United States or any state, agency, instrumentality or municipality thereof 


 


13

















 


unless the Borrower or its relevant
Subsidiary shall have satisfied the requirements of the Assignment of Claims
Act of 1940, and any similar state legislation and the Administrative Agent is
satisfied as to the absence of setoffs, counterclaims and other defenses on the
part of such account debtor; provided  that Accounts that are not
compliant with the Assignment of Claims Act of 1940 may be included in the
Borrowing Base as provided in clause (b) of the definition of Borrowing
Base;


 


(i)                                     Accounts in
excess of 20% of all Eligible Accounts owing to any account debtor or Affiliate
of such account debtor whose total Accounts comprise greater than 20% of all
Eligible Accounts.


 


(j)                                     Accounts owing
from any Person that (i) has disputed liability for any Accounts owing
from such Person or (ii) has otherwise asserted any claim, demand or
liability against the Borrower or any of its Subsidiaries, whether by action,
suit, counterclaim or otherwise; provided that for purposes of subclause
(j)(i), such Accounts shall be excluded only to the extent of the amounts being
disputed by such Person at any date of determination;


 


(k)                                  Accounts owing
from any Person that shall take or be the subject of any action or proceeding
of a type described in Section 8.01(f);


 


(l)                                     Accounts (i) owing
from any Person that is also a supplier to or creditor of the Borrower or any
of its Subsidiaries unless such Person has waived any right of setoff in a
manner acceptable to the Administrative Agent or (ii) representing any
manufacturer’s or supplier’s credits, discounts, incentive plans or similar
arrangements entitling the Borrower or any of its Subsidiaries to discounts on
future purchase therefrom;


 


(m)                               Accounts
arising out of sales on a bill-and-hold, progress billing, guaranteed sale,
sale-or-return, sale on approval or consignment basis or subject to any right
of return, setoff or charge back;


 


(n)                                 Accounts with
respect to which the representations and warranties set forth in Section 3
of the Security Agreement applicable to Accounts are not correct; and


 


(o)                                 Accounts in
respect of which the Security Agreement, after giving effect to the related
filings of financing statements that have then been made, if any, does not or
has ceased to create a valid and perfected first priority lien or security
interest in favor of the Administrative Agent, on behalf of the Secured
Parties, securing the Obligations.


 


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


 


“Eligible Collateral” means Eligible Accounts and
Eligible Pledged Cash.


 


“Eligible
Pledged Cash” means cash or Cash Equivalents subject to a legal, valid
and enforceable first priority Lien in
favor of the Administrative Agent on behalf of the Secured Parties and, if
applicable, held in a deposit account governed by a Control Agreement or a
securities account governed by a Control Agreement.


 


14

















 


“Environmental
Expenditures” means with respect to any Person for any period, the sum of
the aggregate of all expenditures by such Person and its Subsidiaries for
spending incurred with respect to remedial liabilities, including but not
limited to, superfund, remediation, facility closure remediation, and
discontinued operation liabilities.


 


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


 


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


 


“Environmental Permit” means any
permit, approval, identification number, license or other authorization
required under any Environmental Law.


 


“Equipment”  has the meaning given
such term in the UCC.


 


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


 


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


 


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


 


“ERISA Event” means (a) a
Reportable Event with respect to a Pension Plan; (b) a withdrawal by the
Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial employer (as defined
in Section 4001(a)(2) of ERISA) or a cessation of operations that is
treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by the Borrower or any 


 


15

















 


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


 


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


 


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


 


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


 


“Excess Availability”
means the amount, as determined by the Administrative Agent, equal to the (a) lesser
of (i) the Borrowing Base at such time and (ii) $120,000,000, minus (b) the
sum of (i) the Outstanding Amount of the Revolving Credit Loans and (ii) the
Outstanding Amount of L/C Obligations at such time.


 


“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender, the L/C Issuer or
any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) taxes imposed on or measured by
its overall net income (however denominated), and franchise taxes imposed on it
(in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the Laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable Lending Office is located, (b) any branch profits taxes
imposed by the United States or any similar tax imposed by any other
jurisdiction in which the Borrower is located, (c) any backup withholding
tax that is required by the Code to be withheld from amounts payable to a
Lender that has failed to comply with clause (A) of Section 3.01(e)(ii),
and (d) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 10.13), any United
States  withholding tax that (i) is
required to be imposed on amounts payable to such Foreign Lender pursuant to
the Laws in force at the time such Foreign Lender becomes a party hereto (or 


 


16

















 


designates a new Lending Office) or (ii) is
attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment),
to receive additional amounts from the Borrower with respect to such
withholding tax pursuant to Section 3.01(a)(ii) or (iii).


 


“Existing Credit Agreement” has
the meaning specified in the Preliminary Statements.


 


“Existing Letters of Credit” means
those letters of credit now outstanding under the Existing Credit Agreement set
forth on Schedule 2.03.


 


“Extraordinary Receipt” means any
cash received by or paid to or for the account of any Person not in the
ordinary course of business, including tax refunds, pension plan reversions,
proceeds of insurance (other than proceeds of business interruption insurance
to the extent such proceeds constitute compensation for lost earnings),
condemnation awards (and payments in lieu thereof), indemnity payments and any
purchase price adjustments.


 


“Facility” means the Revolving Credit Facility.


 


“Facility
Usage” means the percentage of the Revolving Credit Facility in use as
measured by the (a) the sum of (i) the Outstanding Amount of
Revolving Credit Loans, (ii) the Outstanding Amount of L/C Obligations,
and (iii) the Outstanding Amount of Swing Line Loans, over (b) the
Revolving Credit Facility.


 


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


 


“Federal Government
Account” means an Account in which the account debtor with respect to such
Account is the United States of America or a department, agency or
instrumentality thereof.


 


“Fee Letters” means the letter
agreements, each dated July 31, 2009, among the Borrower, and each of the
Lenders.


 


“Foreign
Government Scheme or Arrangement” has the meaning specified in Section 5.12(d).


 


“Foreign Lender” means any Lender
that is organized under the Laws of a jurisdiction other than that in which the
Borrower is resident for tax purposes (including such a Lender when 


 


17

















 


acting in the capacity of the L/C
Issuer).  For purposes of this
definition, the United States, each State thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.


 


“Foreign Plan” has the meaning
specified in Section 5.12(d).


 


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


 


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


 


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


 


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


 


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


 


18

















 


“Guarantors” means, collectively,
the Domestic Subsidiaries of the
Borrower listed on Schedule 6.12 and each other Domestic
Subsidiary of the Borrower that
shall be required to execute and deliver a guaranty or guaranty supplement
pursuant to Section 6.12.


 


“Guaranty” means, collectively, the
Guaranty made by the Guarantors in favor of the Secured Parties, substantially
in the form of Exhibit F, together with each other guaranty and
guaranty supplement delivered pursuant to Section 6.12.


 


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


 


“Hart-Scott Rodino Act”
means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.


 


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


 


“Impacted Lender”
means a Lender as to which (a) the Administrative Agent, Swing Line Lender
or L/C Issuer reasonably believes, in good faith, that such Lender has
defaulted in fulfilling its obligations under one or more other syndicated
credit facilities, or (b) any Lender or Person that controls such Lender
has been deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding or other similar proceeding.


 


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


 


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


 


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


 


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


 


(d)                                 all obligations
of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business and not
past due for more than 150 days after the date on which such trade account was
created);


 


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


 


19

















 


(f)                                    all
Attributable Indebtedness in respect of Capitalized Leases of such Person;


 


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


 


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


 


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


 


“Indemnified Taxes”  means Taxes other than Excluded Taxes.


 


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


 


“Information” has the
meaning specified in Section 10.07.


 


“Initial Senior High
Yield Debt” means the indebtedness arising under the first issuance of the
Senior High Yield Notes pursuant to the Senior High Yield Indenture, in an
aggregate principal amount not to exceed $250,000,000.


 


“Initial
Senior High Yield Notes” means the notes issued under
incurrence of the Initial Senior High Yield Debt in an aggregate principal
amount not to exceed $250,000,000.


 


“Intercreditor Agreement”
means (a) that intercreditor agreement now or hereafter entered into
between the Administrative Agent and the trustee, collateral agent,
administrative agent or other agent for the benefit of the holders of the
Senior High Yield Notes, (b) that intercreditor agreement now or hereafter
entered into between the Administrative Agent and the trustee, collateral
agent, administrative agent or other agent for the benefit of the noteholders
or lenders under any Other Secured Debt Agreement, or (c) any other
intercreditor agreement, in all cases such agreement to be in form, scope and
substance reasonably satisfactory to the Administrative Agent and the Required
Lenders.


 


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


 


20
















 


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


 


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


 


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


 


(c)                                  no Interest
Period shall extend beyond the Maturity Date of the Facility under which such
Loan was made.


 


“Instrument” has the
meaning given such term in the UCC.


 


“Inventory” has the meaning given such term in the UCC.


 


“Investment” means, as to any
Person, any direct or indirect acquisition or investment by such Person,
whether by means of (a) the purchase or other acquisition of Equity
Interests of another Person, (b) a loan, advance or capital contribution
to, Guarantee or assumption of debt of, or purchase or other acquisition of any
other debt or interest in, another Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit or all or a substantial part of the business of, such Person.  For purposes of covenant compliance, the
amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment.


 


“IP Rights” has the meaning
specified in Section 5.17.


 


“IRS” means the United States
Internal Revenue Service.


 


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


 


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


 


“Laws” means, collectively, all
international, foreign, Federal, state and local statutes, treaties, rules,
guidelines, regulations, ordinances, codes and administrative or judicial
precedents or authorities, including the interpretation or administration
thereof by any 


 


21

















 


Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and permits
of, and agreements with, any Governmental Authority, in each case whether or
not having the force of law.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


22

















 


“Letter of Credit Sublimit” means an
amount equal to $110,000,000.  The Letter of Credit Sublimit is part of, and
not in addition to, the Revolving Credit Facility.


 


“License Agreement”
has the meaning specified in Section 5.17.


 


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


 


“Liquidity” means the
sum of Unpledged Cash and Excess Availability.


 


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


 


“Loan Documents” means,
collectively, (a) this Agreement, (b) the Notes, (c) the
Guaranty, (d) the Collateral Documents, (e) the Fee Letters, (f) each
Issuer Document, (g) the Intercreditor Agreement, (h) the Secured
Cash Management Agreement; (i) the Post-Closing Agreement and (j) any
other agreement entered into now or in the future that is designated as a “Loan
Document” hereunder.


 


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


 


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


 


“Material Contract”
means (a) any contract or other agreement (other than the Loan Documents),
written or oral, of any Loan Party involving monetary liability of or to any
Person in an amount in excess of $5,000,000 in any fiscal year and (b) any
other contract or other agreement (other than the Loan Documents), whether
written or oral, to which any Loan Party is a party as to which the breach,
non-performance, cancellation or failure to renew by any party thereto would
have a Material Adverse Effect on the business, assets, condition (financial or
otherwise) or results of operations or prospects of any Loan Party or the
validity or enforceability of this Agreement, any of the other Loan Documents,
or any of the rights and remedies of the Administrative Agent or Secured
Parties hereunder or thereunder.


 


“Material Indebtedness”
means any Indebtedness of the Borrower or any Subsidiary of the Borrower under (i) any
instrument (other than Indebtedness incurred under this Agreement) or (ii) Swap
Contracts, in each case, in an aggregate outstanding principal amount exceeding
$30,000,000.  For purposes of determining
Material Indebtedness, the principal of any Swap 


 


23

















 


Contracts of any Person at any time shall be
the maximum aggregate amount (giving effect to any netting agreements) that
such Person would be required to pay if the Swap Contract were terminated at
such time.


 


“Maturity Date” means July 31,
2013.


 


“Measurement Period”
means, at any date of determination, the most recently completed four fiscal
quarters of the Borrower.


 


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


 


“Mortgage” has the
meaning specified in Section 6.25(a).


 


“Mortgage Policy” has the
meaning specified in Section 6.25(b).


 


“Mortgage Property”
means (a) any real property owned by a Loan Party which has a value in
excess of $1,000,000 and (b) any other Real Property, whether owned or
leased, for which a Mortgage is granted to secure the Senior High Yield Debt
Documents or Other Secured Debt Documents.


 


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


 


“Municipal Government
Account” means an Account in which the account debtor with respect to such
Account is a state, province or a political subdivision, department, agency or
instrumentality thereof.


 


“Net Amount of Eligible
Accounts” means the gross amount of Eligible Accounts less (a) sales,
excise or similar taxes included in the amount thereof, and (b) returns,
rebates, discounts, claims, credits and allowances of any nature at any time
issued, owing, granted, outstanding, available or claimed with respect thereto.


 


“Net Amount of Federal
Government Accounts” means the gross amount of Federal Government Accounts
less (a) sales, excise or similar taxes included in the amount thereof,
and (b) returns, rebates, discounts (which may, at the Administrative
Agent’s option, be calculated on the shortest term), claims, credits and
allowances of any nature at any time issued, owing, granted, outstanding,
available or claimed with respect thereto.


 


“Net Cash Proceeds” means:


 


(a)                                  with respect to
any Disposition by the Borrower
or any of its Subsidiaries, or any Extraordinary Receipt received or paid to
the account of the Borrower or
any of its Subsidiaries, or any sale or issuance of any Equity Interest by the Borrower or any of its
Subsidiaries, the excess, if any, of (i) the sum of cash and Cash
Equivalents received in connection with such transaction (including any cash or
Cash Equivalents received by way of deferred payment pursuant to, or by
monetization of, a note receivable or otherwise, but only as and when so 


 


24

















 


received) over (ii) the sum of (A) the
principal amount of any Indebtedness that is secured by the applicable asset
and that is required to be repaid in connection with such transaction (other
than Indebtedness under the Loan Documents), (B) the reasonable and
customary out-of-pocket expenses incurred by the Borrower or such Subsidiary in connection with such
transaction, (C) income taxes reasonably estimated to be actually payable
within two years of the date of the relevant transaction as a result of any
gain recognized in connection therewith; provided that, if the amount of
any estimated taxes pursuant to subclause (C) exceeds the amount of taxes
actually required to be paid in cash in respect of such Disposition, the
aggregate amount of such excess shall constitute Net Cash Proceeds, (D) amounts
provided as a reserve, in accordance with GAAP, against (x) liabilities
under any indemnification obligations associated with such Disposition or
issuance or sale of Equity Interests, or (y) any liabilities retained by
the Borrower or its Subsidiaries associated with the properties sold in the
Disposition or sale of Equity Interests, and (E) Borrower’s good faith
estimate of payments required to be made with respect to unassumed liabilities
relating to the properties sold within 180 days of a Disposition (provided
that, to the extent such cash proceeds are not used to make payments in respect
of such unassumed liabilities within 180 days of such Disposition or sale of
Equity Interests, such cash proceeds shall constitute Net Cash Proceeds);


 


(b)                                 with respect to
the issuance and sale of the Senior High Yield Notes, or the incurrence or
issuance of any Indebtedness by the
Borrower or any of its Subsidiaries, the excess of (i) the sum of
the cash and Cash Equivalents received in connection with such transaction over
(ii) the underwriting discounts and commissions, and other reasonable and
customary out-of-pocket expenses, incurred by the Borrower or such Subsidiary in connection therewith; and


 


(c)                                  with respect to
any Casualty Event, the cash insurance proceeds, condemnation awards and other
compensation received in respect thereof, net of all reasonable costs and
expenses incurred in connection with the collection of such proceeds, awards or
other compensation in respect of such Casualty Event.


 


“Non-Accounts Collateral”
means “Collateral” as defined in the Security Agreement and any other property
of any Loan Party which has been pledged to secure the Obligations pursuant to
any Collateral Document, but excluding the Accounts Collateral and Eligible
Pledged Cash.


 


“Note” means a Revolving Credit
Note, as the context may require.


 


“NPL” means the National Priorities List
under CERCLA.


 


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


 


25

















 


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


 


“Other Permitted Canadian
Debt” means Indebtedness of any Canadian Subsidiary; provided, that
no Default or Event of Default shall exist either immediately or after the
incurrence thereof, and the aggregate amount of all Canadian Target Debt and
Other Permitted Canadian Debt then outstanding shall not exceed 30% of the book
value shown on the relevant Canadian Subsidiary’s balance sheet of the total
Canadian Assets at any time.


 


“Other Permitted Canadian
Debt Documents” means the documents executed or to be executed in
connection with any Other Permitted Canadian Debt.


 


“Other Secured Debt”
means Indebtedness arising under any Other Secured Debt Agreement; provided
that (i) the final maturity and weighted average life to maturity of any
such Other Secured Debt shall be after the Maturity Date, (ii) the
covenants (including any financial covenants) and events of default applicable
thereto shall be less restrictive to the Borrower and its Subsidiaries in all
material respects as those contained herein; (iii) no such Indebtedness
shall contain a cross default to other Indebtedness on terms less favorable to
the Borrower and its Subsidiaries than under the Senior Secured Notes
Indenture; and (iv) Liens incurred in connection with any Other Secured
Debt shall be subject to an intercreditor agreement in form and substance
satisfactory to the Administrative Agent and the Required Lenders; provided
further that (x) the Initial Senior High Yield Debt shall be deemed
to satisfy the conditions set forth in clauses (i) through (iv) of
this paragraph and (y) the intercreditor agreement referred to in clause (a) of
the definition of Intercreditor Agreement shall be the intercreditor agreement
agreed to by the Administrative Agent and the Required Lenders in connection
with the issuance of the Initial Senior High Yield Notes under the issuance of
the Initial Senior High Yield Debt.


 


“Other Secured Debt
Agreement” means a loan agreement or other document entered into in
connection with the Other Secured Debt, which may include any Senior High Yield
Notes in addition to the Initial Senior High Yield Notes issued under the
Senior High Yield Indenture, between the Borrower and an agent for the benefit
of certain lenders, in form and substance reasonably satisfactory to the
Administrative Agent and Required Lenders prior to the closing of such Other
Secured Debt Agreement (it being understood that if such loan agreement or
other document is the Senior High Yield Indenture in the form approved by the
Administrative Agent and the Required Lenders at the time of the issuance of
the Initial Senior High Yield Debt, such agreement or document shall be
satisfactory to the Administrative Agent and the Required Lenders for the
purposes of this definition).


 


26

















 


“Other Secured Debt
Documents” means the documents executed or to be executed in connection
with any Other Secured Debt.


 


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


 


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


 


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


 


“Patent Security
Agreement” means that certain Grant of Security Interest in Patent Rights,
to be dated within thirty (30) days of the Closing Date, by and among the
applicable Loan Parties and the Administrative Agent, as amended, supplemented
or otherwise modified from time to time (together with each other grant of
security interest in patent rights delivered pursuant to Section 6.12
of this Agreement and Section 8.13 of the Security Agreement).


 


“PBGC” means the Pension Benefit
Guaranty Corporation.


 


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


 


“Perfection Certificate”
means the perfection certificate dated as of the Closing Date and executed by
each of the Loan Parties.


 


“Permitted Acquisition”
means any transaction or series of related transactions for the direct or
indirect (i) acquisition of all or substantially all of the property of
any Person, or of any business or division of any Person; (ii) acquisition
of in excess of 50% of the Equity Interests of any person, and otherwise
causing such Person to become a Subsidiary of such Person; or (iii) merger
or consolidation or any other combination with such any person, if each of the
following conditions is met:


 


(a)                                  no Default then
exists or would result therefrom;


 


(b)                                 such Person
shall be organized or incorporated in the United States, any state thereof, the
District of Columbia, Canada or any province thereof or Puerto Rico;


 


27

















 


(c)                                  none of the
Borrower or any of its Subsidiaries shall, in connection with any such
transaction, assume or remain liable with respect to any Indebtedness or other
liability of the related seller or the business, person or properties acquired,
except to the extent permitted under Section 7.02;


 


(d)                                 the person or
business to be acquired shall be, or shall be engaged in, a business of the
type the Borrower and the Subsidiaries are engaged on the Closing Date and any
business reasonably related, ancillary or complementary to the business in
which the Borrower and its Subsidiaries are engaged on the Closing Date;


 


(e)                                  the board of
directors of the person to be acquired shall not have indicated publicly its
opposition to the consummation of such acquisition (which opposition has not
been publicly withdrawn);


 


(f)                                    all
transactions in connection therewith shall be consummated in accordance with
all applicable laws of all applicable Governmental Authorities;


 


(g)                                 at least 10
Business Days prior to the proposed date of consummation of the transaction,
the Borrower shall have delivered to the Administrative Agent and the Lenders a
certificate signed by a Responsible Officer of the Borrower, certifying that (A) such
transaction complies with this definition (which shall have attached thereto
reasonably detailed backup data and calculations showing such compliance), and (B) such
transaction could not reasonably be expected to result in a Material Adverse
Effect;


 


(h)                                 as of the last
day of the most recent period for which a Compliance Certificate was required
to be delivered pursuant to Section 6.02, after giving pro forma effect to
such Permitted Acquisition and any Indebtedness incurred in connection
therewith (including, without limitation, any Subordinated Indebtedness) as if
such Permitted Acquisition was made and any such Indebtedness was incurred on
the first day of such most recent period, the Borrower and its Subsidiaries
shall be in compliance with Section 7.11 (as the Borrower shall provide to
the Administrative Agent a reasonably detailed certificate to such effect
signed by a Responsible Officer of the Borrower); and


 


(i)                                     after giving
pro forma effect to the consummation of such Permitted Acquisition, minimum
Liquidity shall not be less than $50,000,000.


 


“Permitted Business”
means the business of the Borrower and the Borrower’s Subsidiaries as existing
on the Closing Date and any other businesses that are the same, similar or
reasonably related, ancillary or complementary thereto and reasonable extensions
thereof.


 


“Permitted Encumbrances” has the meaning specified in the
Mortgages.


 


“Permitted
Holders” means (i) any of Alan S. McKim, his spouse, ancestors,
siblings, descendants (including children or grandchildren by adoption) and the
descendants of any of his siblings; (ii) in the event of the incompetence
or death of any of the Persons described in clause (i), such Person’s estate,
executor, administrator, committee or other personal representative, in each
case who at any particular date shall beneficially own or have the right to
acquire, directly or indirectly, Equity Interests of the Borrower; (iii) any
trust created for the benefit of the 


 


28

















 


Persons described in clause (i) or (ii) or
any trust for the benefit of any such trust; or (iv) any Person controlled
by any of the Persons described in clause (i), (ii), or (iii).  For purposes of this definition, “control,”
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through ownership of voting securities or by
contract or otherwise.


 


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


 


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


 


“Platform” has the
meaning specified in Section 6.02.


 


“Pledged Debt” has
the meaning specified in the Security Agreement.


 


“Post-Closing Agreement”
means that certain Post-Closing Agreement, dated as of July 31, 2009,
among the Borrower and the Administrative Agent with respect to certain
documents and actions to be delivered or taken after the Closing Date, as
amended, restated, supplemented or otherwise modified from time to time.


 


“pro forma basis” or “pro
forma effect” means with respect to compliance with any test or covenant
hereunder, (a) that the Acquisition shall be deemed to have occurred and
the Target Company and its Subsidiaries shall be deemed to have become
Subsidiaries of the Borrower as of the first day of the applicable period of
measurement in such test or covenant, or (b) that any Permitted
Acquisition, Indebtedness, Investment, repurchase or redemption, as applicable,
shall be deemed to have occurred as of the first day of the applicable period
of measurement in such test or covenant.


 


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


 


“Real Property” means
all right, title and interest in and to any and all now owned and hereafter
acquired real property of the Loan Parties, including leasehold interests,
together with all buildings, structures and other improvements located thereon
and all licenses, easements and appurtenances relating thereto, wherever
located.


 


“Records” shall mean
all of the Loan Parties’ present and future books of account of every kind or
nature, purchase and sale agreements, invoices, ledger cards, bills of lading
and other shipping evidence, statements, correspondence, memoranda, credit
files and other data relating to the Collateral or any account debtor, together
with the tapes, disks, diskettes and other data and software storage media and
devices, file cabinets or containers in or on which the foregoing are stored
(including any rights of the Loan Parties with respect to the foregoing
maintained with or by any other person).


 


“Reduction Amount” has the meaning
set forth in Section 2.05(b)(ix).


 


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


 


29

















 


“Related Documents”
means the Acquisition Agreement and any related bills of sale, instruments of
transfer and other documents delivered in connection with the Acquisition
Agreement.


 


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


 


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


 


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


 


“Required Lenders” means, as of any
date of determination, (i) if the total number of Lenders is three or
fewer, all the Lenders, and (ii) if the total number of Lenders is greater
than three, Lenders holding at least 66-2/3% of the sum of the (a) Total
Revolving Credit Outstandings (with the aggregate amount of each Revolving
Credit Lender’s risk participation and funded participation in L/C Obligations
and Swing Line Loans being deemed “held” by such Revolving Credit Lender for
purposes of this definition) and (b) aggregate unused Revolving Credit
Commitments; provided that the unused Revolving Credit Commitment of,
and the portion of the Total Outstandings held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.


 


“Reserves” means, as
of the date of determination, such amounts as the Administrative Agent may from
time to time establish and revise in good faith reducing the amount of the
Revolving Credit Loans and L/C Obligations which would otherwise be available
to the Borrowers under the lending formula provided for herein: (a) to
reflect events, conditions, contingencies or risks which, as determined by the
Administrative Agent in good faith, adversely affect, or would have a
reasonable likelihood of adversely affecting, (i) the Collateral; (ii) the
assets, business or prospects of any Loan Party, or (iii) the security
interests and other rights of the Administrative Agent in the Collateral; or (b) to
reflect the Administrative Agent’s good faith belief that any collateral report
or financial information furnished by or on behalf of any Loan Party to the
Administrative Agent is or may have been incomplete, inaccurate or misleading
in any material respect; or (c) to reflect the L/C Obligations as provided
in Section 2.03 hereof; or (d) in respect of any state of
facts which the Administrative Agent determines in good faith constitutes a
Default or Event of Default; or (e) to reflect the Administrative Agent’s
good faith estimate of the amount necessary to reflect changes in applicable
currency exchange rates or currency exchange markets; or (f) to reflect
the Dilution Reserve Percentage.  To the
extent the Administrative Agent may revise the lending formulas used to
determine any Borrowing Base or establish new criteria or revise existing
criteria for Eligible Accounts so as to address any circumstances, condition,
event or contingency in a manner satisfactory to the Administrative Agent, the
Administrative Agent shall not establish a Reserve for the same purpose.  The amount of any Reserve established by the
Administrative Agent shall have a reasonable relationship to


 


30
















 


the
event, condition or other matter which is the basis for such as reserve as
determined by the Administrative Agent in good faith.


 


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


 


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


 


“Revaluation Date”
means, with respect to any Letter of Credit, each of the following:  (i) each date of issuance of a Letter of
Credit denominated in Canadian Dollars, (ii) each date of an amendment of
any such Letter of Credit having the effect of increasing the amount thereof
(solely with respect to the increased amount), (iii) each date of any
payment by the L/C Issuer under any Letter of Credit denominated in Canadian
Dollars, and (iv) such
additional dates as the Administrative Agent or the L/C Issuer shall determine
or the Required Lenders shall require.


 


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


 


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


 


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


 


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


 


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


 


31

















 


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


 


“Rolling Stock” means
all trucks, trailers, tractors, service vehicles, automobiles and other
registered mobile equipment.


 


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


 


“Sale and Leaseback
Transaction” has the meaning specified in Section 7.19.


 


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


 


“Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by
and between any Loan Party and any Cash Management Bank.


 


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


 


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


 


“Security Agreement” means the
security agreement, in substantially the form of Exhibit G
(together with each other security agreement and security agreement supplement
delivered pursuant to Section 6.12.


 


“Senior
High Yield Debt” means the indebtedness arising under the Senior High Yield
Notes.


 


“Senior High Yield Documents” means the documents executed or to
be executed in connection with the Senior High Yield Indenture.


 


“Senior High Yield Notes” means the Initial Senior High Yield
Notes and any additional Senior High Yield Notes now or hereafter issued
pursuant to the Senior High Yield Indenture.


 


“Senior
High Yield Indenture” means the indenture, now or hereafter entered into,
between the Borrower and the trustee or other agent for the benefit of the
holders of the Senior High Yield Notes, such indenture to be in a form
reasonably satisfactory to the Administrative Agent and Required Lenders prior
to the closing of such Senior High Yield Indenture, and to be subject to the
Intercreditor Agreement.


 


32

















 


“Senior
Secured Notes” means the $23,032,000 outstanding aggregate principal amount
of 111/4%
Senior Secured Notes issued on June 30, 2004 and outstanding on the date
of this Agreement pursuant to the Senior Secured Notes Indenture.


 


“Senior
Secured Notes Documents” means those documents executed in connection with
the Senior Secured Notes Indenture.


 


“Senior
Secured Notes Indenture” means the indenture, dated as of June 30, 2004,
among the Borrower, the guarantors party thereto, and U.S. Bank National
Association, as Trustee.


 


“Significant Subsidiary”
with respect to any Person means (1) any Subsidiary of such Person that
satisfies the criteria for a “significant subsidiary” as defined in Regulation
S-X under the Securities Act as such Regulation is in effect on the Closing
Date (assuming such Person is the registrant referred to in the definition of “significant
subsidiary” in such Regulation) and (2) any Subsidiary that, when aggregated
with all other Subsidiaries that are not otherwise Significant Subsidiaries and
as to which any event described in clause (e), (f), (g) or (h) of Section 8.1
has occurred and is continuing, would constitute a Significant Subsidiary under
clause (1) of this definition; provided that each reference to “10 percent”
in the criteria for a “significant subsidiary” as defined in Regulation S-X
under the Securities Act as such Regulation is in effect on the Closing Date
shall be replaced with the words “5 percent”.


 


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


 


“Spot Rate” has the
meaning given such term in Section 1.07.


 


“Subordinated
Indebtedness” means unsecured Indebtedness of the Borrower or its
Subsidiaries that is by its terms expressly subordinated, on terms acceptable
to the Administrative Agent and the Required Lenders, to the Discharge of ABL
Obligations (as defined in the Intercreditor Agreement), provided that (i) the
terms of such Indebtedness may allow for payment of regularly scheduled
payments of interest so long as no Event of Default shall have occurred and be
continuing at the time such payment is made, (ii) the final maturity of
such Indebtedness is at least one year after the Maturity Date, (iii) the
terms of such Indebtedness provide that no payments of principal shall or may
occur prior to the Discharge of ABL Obligations (as defined in the
Intercreditor Agreement), (iv) the covenants and events of default
applicable thereto shall be at least as favorable to the Borrower and its
Subsidiaries in all 


 


33

















 


material respects as those contained herein,
but in any event no financial maintenance covenants shall be applicable thereto
and no such Indebtedness shall contain a cross-default to the Indebtedness
under the Loan Documents for a non-payment default and (v) the remedies
with respect thereto shall be subject to customary standstill provisions
acceptable to the Administrative Agent; provided  further that the
terms of such Indebtedness may provide for payments of principal or require the
issuer thereof to redeem or repurchase such Indebtedness upon the occurrence of
a change in control or asset sale occurring prior to maturity if such terms
provide that the issuer thereof will not make any such payments or redeem or
repurchase any such Indebtedness pursuant to such provisions prior to the
Discharge of ABL Obligations (as defined in the Intercreditor Agreement).


 


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


 


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


 


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


 


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


 


34

















 


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


 


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


 


“Swing Line Loan Notice” means a
notice of a Swing Line Borrowing pursuant to Section 2.04(b),
which, if in writing, shall be substantially in the form of Exhibit A-2.


 


“Swing Line Sublimit” means an
amount equal to the lesser of (a) $12,000,000
and (b) the Revolving Credit Facility. 
The Swing Line Sublimit is part of, and not in addition to, the
Revolving Credit Facility.


 


“Target Company” has
the meaning specified in the Preliminary Statements.


 


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


 


“Threshold Amount” means $5,000,000.


 


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


 


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


 


“Trademark Security
Agreement” means that certain Grant of Security Interest in Trademark
Rights, to be dated within thirty (30) days of the Closing Date, by and among
the applicable Loan Parties and the Administrative Agent, as amended,
supplemented or otherwise modified from time to time (together with each other
grant of security interest in trademark rights delivered pursuant to Section 6.12
of this Agreement and Section 8.13 of the Security Agreement).


 


“Transactions” means,
collectively, (a) the consummation of the Acquisition, (b) the
entering into by the Loan Parties of the Loan Documents and the Related
Documents to which they are or are intended to be a party, and (c) the
payment of the fees and expenses incurred in connection with the consummation
of the foregoing.


 


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


 


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


 


35

















 


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


 


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


 


“Unpledged Cash”
means any cash other than the Eligible Pledged Cash.


 


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


 


“Voting Stock” means
with respect to any Person, (a) one (1) or more classes of Equity
Interests of each Person having general voting powers to elect at least a
majority of the board of directors, managers or trustees of such Person,
irrespective of whether at the time Equity Interests of any other class or
classes have or might have voting power by reason of the happening of any
contingency, and (b) any Equity Interests of such Person convertible or
exchangeable without restriction at the option of the holder thereof into
Equity Interests of such Person described in clause (a) of this
definition.


 


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


 


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


 


36

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


1.07.                     Currency Equivalents Generally. 
Any amount specified in this Agreement (other than in Articles II,
IX and X) or any of the other Loan Documents to be in Dollars
shall 


 


37

















 


also include the equivalent of such amount in
any currency other than Dollars, such equivalent amount thereof in the
applicable currency to be determined by the Administrative Agent at such time
on the basis of the Spot Rate (as defined below) for the purchase of such
currency with Dollars.  For purposes of
this Section 1.07, the “Spot Rate” for a currency means the
rate determined by the Administrative Agent to be the rate quoted by the Person
acting in such capacity as the spot rate for the purchase by such Person of
such currency with another currency through its principal foreign exchange
trading office at approximately 11:00 a.m. on the date two Business Days
prior to the date of such determination; provided that the
Administrative Agent may obtain such spot rate from another financial
institution designated by the Administrative Agent if the Person acting in such
capacity does not have as of the date of determination a spot buying rate for
any such currency.


 


ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS


 


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


 


2.02.                     Borrowings, Conversions and
Continuations of Loans.  (a) Each Revolving Credit Borrowing, each
conversion of Revolving Credit Loans from one Type to the other, and each
continuation of Eurodollar Rate Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by
telephone.  Each such notice must be
received by the Administrative Agent not later than 11:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate
Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing
of Base Rate Loans.  Each telephonic
notice by the Borrower pursuant to this Section 2.02(a) must
be confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower.  Each Borrowing
of, conversion to or continuation of Eurodollar Rate Loans shall be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof.  Except as provided in Sections
2.03(c), each Borrowing of or conversion to Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof.  Each Committed Loan Notice
(whether telephonic or written) shall specify (i) whether the Borrower 


 


38

















 


is requesting a Revolving Credit Borrowing, a
conversion of Revolving Credit Loans from one Type to the other, or a
continuation of Eurodollar Rate Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the principal amount of Loans to be borrowed,
converted or continued, (iv) the Type of Loans to be borrowed or to which
existing Revolving Credit Loans are to be converted, and (v) if
applicable, the duration of the Interest Period with respect thereto.  If the Borrower fails to specify a Type of
Loan in a Committed Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Revolving Credit
Loans shall be made as, or converted to, Base Rate Loans.  Any such automatic conversion to Base Rate
Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans.  If the Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such Committed
Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month. 
Notwithstanding anything to the contrary herein, a Swing Line Loan may
not be advanced or converted to a Eurodollar Rate Loan.


 


(b)                                 Following receipt of a Committed Loan
Notice, the Administrative Agent shall promptly notify each Lender of the
amount of its Applicable Percentage under the Revolving Credit Facility of the
Revolving Credit Loans, and if no timely notice of a conversion or continuation
is provided by the Borrower, the Administrative Agent shall notify each Lender
of the details of any automatic conversion to Base Rate Loans described in Section 2.02(a).  In the case of a Revolving Credit Borrowing,
each Appropriate Lender shall make the amount of its Loan available to the
Administrative Agent in immediately available funds at the Administrative Agent’s
Office not later than 1:00 p.m. on the Business Day specified in the
applicable Committed Loan Notice.  Upon
satisfaction of the applicable conditions set forth in Section 4.02
(and, if such Borrowing is the initial Credit Extension, Section 4.01),
the Administrative Agent shall make all funds so received available to the
Borrower in like funds as received by the Administrative Agent either by (i) crediting
the account of the Borrower on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance
with instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower; provided, however, that if, on the date a
Committed Loan Notice with respect to a Revolving Credit Borrowing is given by
the Borrower, there are L/C Borrowings outstanding, then the proceeds of such
Revolving Credit Borrowing, first, shall be applied to the payment in
full of any such L/C Borrowings, and second, shall be made available to
the Borrower as provided above.


 


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


 


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


 


39

















 


(e)                                  After giving effect to all Revolving
Credit Borrowings, all conversions of Revolving Credit Loans from one Type to
the other, and all continuations of Revolving Credit Loans as the same Type,
there shall not be more than 5 Interest Periods in effect in respect of the
Revolving Credit Facility.


 


2.03.                     Letters of Credit.  (a)The Letter of Credit Commitment.  (i) Subject to the terms and conditions
set forth herein, (A) the L/C Issuer agrees, in reliance upon the
agreements of the Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Closing Date until
the Letter of Credit Expiration Date, to issue Letters of Credit denominated in
Dollars or Canadian Dollars for the account of the Borrower, and to amend or extend Letters of Credit previously
issued by it, in accordance with Section 2.03(b), and (2) to
honor drawings under the Letters of Credit; and (B) the Lenders severally
agree to participate in Letters of Credit issued for the account of the
Borrower and any drawings thereunder; provided that after giving effect
to any L/C Credit Extension with respect to any Letter of Credit, (x) the
Total Revolving Credit Outstandings shall not exceed the Revolving Credit
Facility or the Borrowing Base, (y) the aggregate Outstanding Amount of
the Revolving Credit Loans of any Lender, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all L/C Obligations, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line
Loans shall not exceed such Lender’s Revolving Credit Commitment, and (z) the
Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit
Sublimit.  Each request by the Borrower
for the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding
sentence.  Within the foregoing limits,
and subject to the terms and conditions hereof, the Borrower’s ability to
obtain Letters of Credit shall be fully revolving, and accordingly the Borrower
may, during the foregoing period, obtain Letters of Credit to replace Letters
of Credit that have expired or that have been drawn upon and reimbursed.  All
Existing Letters of Credit, which are set forth on Schedule 2.03, shall
be deemed to have been issued pursuant hereto, and from and after the Closing
Date shall be subject to and governed by the terms and conditions hereof.


 


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


 


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


 


(B)                                the expiry date of such requested Letter
of Credit would occur after the Letter of Credit Expiration Date, unless all
the Lenders have approved such expiry date.


 


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


 


(A)                              any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms purport to enjoin or
restrain the L/C Issuer from issuing such Letter of Credit, or any Law
applicable to the L/C Issuer or any request or directive (whether or not having
the force of law) from any


 


40
















 


Governmental
Authority with jurisdiction over the L/C Issuer shall prohibit, or request that
the L/C Issuer refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the L/C Issuer with
respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose upon the L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on the Closing Date
and which the L/C Issuer in good faith deems material to it;


 


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


 


(C)                                except as otherwise agreed by the
Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial
stated amount less than $100,000, in the case of a commercial Letter of Credit,
or $500,000, in the case of a
standby Letter of Credit;


 


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


 


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


 


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


 


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


 


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


 


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


 


41

















 


(b)                                 Procedures for Issuance and Amendment of
Letters of Credit; Auto-Extension
Letters of Credit.  (i)  Each Letter of
Credit shall be issued or amended, as the case may be, upon the request of the
Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent)
in the form of a Letter of Credit Application, appropriately completed and
signed by a Responsible Officer of the Borrower.  Such Letter of Credit Application must be
received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m.
at least two Business Days (or such later date and time as the Administrative
Agent and the L/C Issuer may agree in a particular instance in their sole
discretion) prior to the proposed issuance date or date of amendment, as the
case may be.  In the case of a request
for an initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C Issuer:  (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount
thereof; (C) the expiry date thereof; (D) the name and address of the
beneficiary thereof; (E) the documents to be presented by such beneficiary
in case of any drawing thereunder; (F) the full text of any certificate to
be presented by such beneficiary in case of any drawing thereunder; (G) the
purpose and nature of the requested Letter of Credit; and (H) such other
matters as the L/C Issuer may require. 
In the case of a request for an amendment of any outstanding Letter of
Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer (1) the Letter of Credit to be amended; (2) the
proposed date of amendment thereof (which shall be a Business Day); (3) the
nature of the proposed amendment; and (4) such other matters as the L/C
Issuer may require.  Additionally, the
Borrower shall furnish to the L/C Issuer and the Administrative Agent such
other documents and information pertaining to such requested Letter of Credit
issuance or amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may require.


 


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


 


(ii)                                  If the Borrower so requests in any
applicable Letter of Credit Application, the L/C Issuer may, in its sole and
absolute discretion, agree to issue a Letter of Credit that has automatic
extension provisions (each, an “Auto-Extension
Letter of Credit”); provided that any such Auto-Extension
Letter of Credit must permit the L/C Issuer to prevent any such extension at
least once in each twelve-month period (commencing with the date of issuance of
such Letter of Credit) by giving prior notice to the beneficiary 


 


42

















 


thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period
to be agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the L/C Issuer,
the Borrower shall not be required to make a specific request to the L/C Issuer
for any such extension.  Once an
Auto-Extension Letter of Credit has been issued, the Revolving Credit Lenders
shall be deemed to have authorized (but may not require) the L/C Issuer to
permit the extension of such Letter of Credit at any time to an expiry date not
later than the Letter of Credit Expiration Date; provided, however,
that the L/C Issuer shall not permit any such extension if (A) the L/C
Issuer has determined that it would not be permitted, or would have no
obligation at such time to issue such Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of clause (ii) or
(iii) of Section 2.03(a) or otherwise), or (B) it
has received notice (which may be by telephone or in writing) on or before the
day that is seven Business Days before the Non-Extension Notice Date (1) from
the Administrative Agent that the Required Lenders have elected not to permit
such extension or (2) from the Administrative Agent, any Revolving Credit
Lender or the Borrower that one or more of the applicable conditions specified
in Section 4.02 is not then satisfied, and in each such case
directing the L/C Issuer not to permit such extension.


 


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


 


(c)                                  Drawings and Reimbursements; Funding of
Participations.  (i) Upon receipt from the beneficiary of
any Letter of Credit of any notice of a drawing under such Letter of Credit,
the L/C Issuer shall notify the Borrower and the Administrative Agent
thereof.  Not later than 11:00 a.m.
on the date of any payment by the L/C Issuer under a Letter of Credit (each
such date, an “Honor Date”), the Borrower shall reimburse the L/C Issuer
through the Administrative Agent in an amount equal to the amount of such
drawing.  If the Borrower fails to so
reimburse the L/C Issuer by such time, the Administrative Agent shall promptly
notify each Revolving Credit Lender of the Honor Date, the amount of the
unreimbursed drawing (the “Unreimbursed Amount”), and the amount of
such Revolving Credit Lender’s Applicable Percentage thereof.  In such event, the Borrower shall be deemed
to have requested a Revolving Credit Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without
regard to the minimum and multiples specified in Section 2.02 for
the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Revolving Credit Commitments and the conditions set
forth in Section 4.02 (other than the delivery of a Committed Loan
Notice).  Any notice given by the L/C
Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may
be given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.


 


(ii)                                  Each Revolving Credit Lender shall upon
any notice pursuant to Section 2.03(c)(i) make funds available
to the Administrative Agent for the account of the L/C Issuer, in Dollars, at
the Administrative Agent’s Office in an amount equal to its Applicable
Percentage of the Dollar Equivalent of the Unreimbursed Amount not later than
1:00 p.m. on the Business Day specified in such notice by the
Administrative Agent, 


 


43

















 


whereupon, subject to the provisions of Section 2.03(c)(iii),
each Revolving Credit Lender that so makes funds available shall be deemed to
have made a Base Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit the
funds so received to the L/C Issuer in Dollars.


 


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


 


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


 


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


 


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


 


44

















 


amount so paid shall constitute such Lender’s Committed Loan included
in the relevant Committed Borrowing or L/C Advance in respect of the relevant
L/C Borrowing, as the case may be.  A
certificate of the L/C Issuer submitted to any Revolving Credit Lender (through
the Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi) shall
be conclusive absent manifest error.


 


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


 


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


 


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


 


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


 


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


 


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


 


45

















 


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


 


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


 


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


 


(f)                                    Role of L/C Issuer. 
Each Lender and the Borrower agree that, in paying any drawing under a
Letter of Credit, the L/C Issuer shall not have any responsibility to obtain
any document (other than any sight draft, certificates and documents expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or
delivering any such document.  None of
the L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the L/C Issuer shall
be liable to any Lender for (i) any action taken or omitted in connection
herewith at the request or with the approval of the Revolving Credit Lenders or
the Required Lenders, as applicable; (ii) any action taken or omitted in
the absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Issuer Document.  The Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect to its use of
any Letter of Credit; provided, however, that this assumption is
not intended to, and shall not, preclude the Borrower’s pursuing such rights
and remedies as it may have against the beneficiary or transferee at law or
under any other agreement.  None of the
L/C Issuer, the Administrative Agent, any of their respective Related Parties
nor any correspondent, participant or assignee of the L/C Issuer shall be
liable or responsible for any of the matters described in clauses (i) through
(v) of Section 2.03(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrower may have
a claim against the L/C Issuer, and the L/C Issuer may be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by the L/C Issuer’s willful misconduct or gross negligence
or the L/C Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the
foregoing, the L/C Issuer may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or 


 


46

















 


purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason.


 


(g)                                 Cash Collateral.  Upon the request of the Administrative Agent,
(i) if the L/C
Issuer has honored any full or partial drawing request under any Letter of
Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as
of the Letter of Credit Expiration Date, any L/C Obligation for any reason
remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations.  Sections 2.05 and 8.02(c) set
forth certain additional requirements to deliver Cash Collateral
hereunder.  For purposes of this Section 2.03,
Section 2.05 and Section 8.02(c), “Cash Collateralize”
means to pledge and deposit with or deliver to the Administrative Agent, for
the benefit of the L/C Issuer and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation in form
and substance satisfactory to the Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Lenders).  Derivatives of such term have corresponding
meanings.  The Borrower hereby grants to
the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing.  Cash
Collateral shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America.  If at any
time the Administrative Agent determines that any funds held as Cash Collateral
are subject to any right or claim of any Person other than the Administrative
Agent or that the total amount of such funds is less than the aggregate
Outstanding Amount of all L/C Obligations, the Borrower will, forthwith upon
demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited as Cash Collateral, an amount equal to the
excess of (x) such aggregate Outstanding Amount over (y) the total
amount of funds, if any, then held as Cash Collateral that the Administrative
Agent determines to be free and clear of any such right and claim.  Upon the drawing of any Letter of Credit for
which funds are on deposit as Cash Collateral, such funds shall be applied, to
the extent permitted under applicable Laws, to reimburse the L/C Issuer.


 


(h)                                 Applicability of ISP and UCP. 
Unless otherwise expressly agreed by the L/C Issuer and the Borrower
when a Letter of Credit is issued (including
any such agreement applicable to an Existing Letter of Credit), (i) the
rules of the ISP shall apply to each standby Letter of Credit, and (ii) the
rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce at the time of
issuance shall apply to each commercial Letter of Credit.


 


(i)                                     Letter of Credit Fees. 
The Borrower shall pay to the Administrative Agent for the account of
each Revolving Credit Lender in accordance with its Applicable Percentage a
Letter of Credit fee (the “Letter of Credit Fee”) (i) for each commercial Letter of Credit
equal to the Applicable Rate times the daily amount available to be
drawn under such Letter of Credit and (ii) for each standby Letter of Credit equal to the
Applicable Rate times the daily amount available to be drawn under such
Letter of Credit.  For purposes of
computing the daily amount available to be drawn under any Letter of Credit,
the amount of such Letter of Credit shall be determined in accordance with Section 1.06.  Letter of Credit Fees shall be (i) due
and payable on the first Business Day after the end of each month, commencing
with the first such date to occur after the issuance of such Letter of Credit,
on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed
on a monthly basis in arrears.  If there
is any change in the Applicable 


 


47

















 


Rate during any quarter, the daily amount
available to be drawn under each standby
Letter of Credit shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect. Notwithstanding anything to the contrary contained herein, upon the
request of the Required Lenders, while any Event of Default exists, all Letter
of Credit Fees shall accrue at the Default Rate.


 


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


 


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


 


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


 


2.04.                     Swing Line Loans.  (a) The Swing Line. 
Subject to the terms and conditions set forth herein, the Swing Line
Lender may, in its discretion, and in reliance upon the agreements of the other
Lenders set forth in this Section 2.04, make loans (each such loan,
a “Swing
Line Loan”) to the Borrower from time to time on any Business Day
during the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact
that such Swing Line Loans, when aggregated with the Applicable Percentage of
the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the
Lender acting as Swing Line Lender, may exceed the amount of such Lender’s
Revolving Credit Commitment; provided, however, that after giving
effect to any Swing Line Loan, (i) the Total Revolving Credit Outstandings
shall not exceed the Revolving Credit Facility 


 


48

















 


at such time, and (ii) the aggregate
Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender
at such time, plus such Revolving Credit Lender’s Applicable Percentage
of the Outstanding Amount of all L/C Obligations at such time, plus such
Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of
all Swing Line Loans at such time shall not exceed such Lender’s Revolving
Credit Commitment, and provided  further that the Borrower shall
not use the proceeds of any Swing Line Loan to refinance any outstanding Swing
Line Loan.  Within the foregoing limits,
and subject to the other terms and conditions hereof, the Borrower may borrow
under this Section 2.04, prepay under Section 2.05, and
reborrow under this Section 2.04. 
Each Swing Line Loan shall bear interest only at a rate based on the
Base Rate.  Immediately upon the making
of a Swing Line Loan, each Revolving Credit Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Swing Line
Lender a risk participation in such Swing Line Loan in an amount equal to the
product of such Revolving Credit Lender’s Applicable Percentage times
the amount of such Swing Line Loan.


 


(b)                                 Borrowing Procedures. 
Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable
notice to the Swing Line Lender and the Administrative Agent, which may be
given by telephone.  Each such notice
must be received by the Swing Line Lender and the Administrative Agent not
later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the
amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall
be a Business Day.  Each such telephonic
notice must be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower.  Promptly after receipt by the Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will
confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not,
the Swing Line Lender will notify the Administrative Agent (by telephone or in
writing) of the contents thereof.  Unless
the Swing Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Revolving Credit Lender)
prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing
the Swing Line Lender not to make such Swing Line Loan as a result of the
limitations set forth in the first proviso to the first sentence of Section 2.04(a),
or (B) that one or more of the applicable conditions specified in Article IV
is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender may, in its discretion, not later than 3:00 p.m. on the
borrowing date specified in such Swing Line Loan Notice, make the amount of its
Swing Line Loan available to the Borrower at its office by crediting the account of the Borrower on the books of
the Swing Line Lender in immediately available funds.


 


(c)                                  Refinancing of Swing Line Loans.  (i) 
The Swing Line Lender at any time in its sole and absolute discretion may
request, on behalf of the Borrower (which hereby irrevocably authorizes the
Swing Line Lender to so request on its behalf), that each Revolving Credit
Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable
Percentage of the amount of Swing Line Loans then outstanding.  Such request shall be made in writing (which
written request shall be deemed to be a Committed Loan Notice for purposes
hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the
Revolving Credit Facility and the conditions set forth in Section 4.02.  The Swing 


 


49

















 


Line Lender shall furnish the Borrower with a
copy of the applicable Committed Loan Notice promptly after delivering such
notice to the Administrative Agent.  Each
Revolving Credit Lender shall make an amount equal to its Applicable Percentage
of the amount specified in such Committed Loan Notice available to the Administrative
Agent in immediately available funds for the account of the Swing Line Lender
at the Administrative Agent’s Office not later than 1:00 p.m. on the day
specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii),
each Revolving Credit Lender that so makes funds available shall be deemed to
have made a Base Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit the
funds so received to the Swing Line Lender.


 


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


 


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


 


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


 


50
















 


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


 


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


 


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


 


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


 


2.05.                     Prepayments.  (a) Optional.  (i) Subject
to the last sentence of this Section 2.05(a)(i), the Borrower may,
upon notice to the Administrative Agent, at any time or from time to time
voluntarily prepay Revolving Credit Loans in whole or in part without premium
or penalty; provided that (A) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (1) three Business
Days prior to any date of prepayment of Eurodollar Rate Loans and (2) on
the date of prepayment of Base Rate Loans; (B) any prepayment of
Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof; and (C) any prepayment of Base
Rate Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding.  Each such
notice shall specify the date and amount of such prepayment and the Type(s) of
Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the
Interest Period(s) of such Loans. 
The Administrative Agent will promptly notify each Lender of its receipt
of each such notice, and of the amount of such Lender’s ratable portion of such
prepayment (based on such Lender’s Applicable Percentage in respect of the
Revolving Credit Facility).  If such
notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein.  Any prepayment of a
Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount
prepaid, together with any additional amounts required pursuant to Section 3.05.


 


51

















 


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


 


(b)                                 Mandatory.


 


(i)                                     Each prepayment of Loans pursuant to the
following provisions of this Section 2.05(b) shall be applied
to the Revolving Credit Facility in the manner set forth in clause (iii) of
this Section 2.05(b).


 


(ii)                                  If for any reason, including, without
limitation, as a result of exchange rate fluctuations, the Total Revolving
Credit Outstandings at any time exceed the lesser of the Borrowing Base at such time and the Revolving Credit
Facility at such time, the Borrower shall immediately prepay Revolving Credit
Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C
Obligations (other than the L/C Borrowings) in an aggregate amount equal to
such excess.  The Administrative Agent
may, at any time and from time to time after the initial deposit of such Cash
Collateral, request that additional Cash Collateral be provided in order to
protect against the results of further exchange rate fluctuations.


 


(iii)                               Prepayments of the Revolving Credit Facility made
pursuant to this Section 2.05(b), first, shall be applied
ratably to the L/C Borrowings and the Swing Line Loans, second, shall be
applied ratably to the outstanding Revolving Credit Loans, and, third,
shall be used to Cash Collateralize the remaining L/C Obligations.  Upon the drawing of any Letter of Credit that
has been Cash Collateralized, the funds held as Cash Collateral shall be
applied (without any further action by or notice to or from the Borrower or any
other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders,
as applicable.


 


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


 


52

















 


Sublimit if, after giving effect thereto and
to any concurrent prepayments hereunder, the Outstanding Amount of Swing Line
Loans would exceed the Swing Line Sublimit.


 


(b)                                 Mandatory.  If after
giving effect to any reduction or termination of Revolving Credit Commitments
under this Section 2.06, the Letter of Credit Sublimit or the Swing
Line Sublimit exceeds the Revolving Credit Facility at such time, the Letter of
Credit Sublimit or the Swing Line Sublimit shall be automatically reduced by
the amount of such excess.


 


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


 


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


 


(b)                                 Swing Line Loans. 
The Borrower shall repay each Swing Line Loan on the earlier to occur of
(i) the date five Business Days after such Loan is made and (ii) the
Maturity Date, provided that the Swing Line Lender may, in its sole discretion,
require the Borrower to repay such Swing Line Loan more frequently by providing
notice of such repayment date to the Borrower.


 


2.08.                     Interest.  (a) Subject to the provisions of Section 2.08(b),
(i) each Eurodollar Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each
Base Rate Loan shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Rate and, (iii) each Swing Line Loan shall bear interest on
the outstanding principal amount thereof from the applicable borrowing date at
a rate per annum equal to the Base Rate plus the Applicable Rate.


 


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


 


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


 


53

















 


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


 


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


 


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


 


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


 


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


 


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


 


(ii)                                  The Borrower shall pay to the
Administrative Agent for the accounts of the Lenders such fees as are set forth
in the Fee Letters in the amounts and at the times so specified.  Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.


 


2.10.                     Computation of Interest and Fees;
Retroactive Adjustments of Applicable Rate.  (a) All
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year).  Interest shall accrue on each Loan for the
day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject
to Section 2.12(a), bear interest for one day.  Each determination 


 


54

















 


by the Administrative Agent of an interest
rate or fee hereunder shall be conclusive and binding for all purposes, absent
manifest error.


 


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


 


2.11.                     Evidence of Debt.  (a) The Credit Extensions made by each Lender
shall be evidenced by one or more accounts or records maintained by such Lender
and by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Credit Extensions made by the Lenders to the Borrower and
the interest and payments thereon.  Any
failure to so record or any error in doing so shall not, however, limit or otherwise
affect the obligation of the Borrower hereunder to pay any amount owing with
respect to the Obligations.  In the event
of any conflict between the accounts and records maintained by any Lender and
the accounts and records of the Administrative Agent in respect of such
matters, the accounts and records of the Administrative Agent shall control in
the absence of manifest error.  Upon the
request of any Lender made through the Administrative Agent, the Borrower shall
execute and deliver to such Lender (through the Administrative Agent) a Note,
which shall evidence such Lender’s Loans in addition to such accounts or
records.  Each Lender may attach
schedules to its Note and endorse thereon the date, Type (if applicable),
amount and maturity of its Loans and payments with respect thereto.


 


(b)                                 In addition to the accounts and records
referred to in Section 2.11(a), each Lender and the Administrative
Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters
of Credit and Swing Line Loans.  In the
event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error.


 


2.12.                     Payments Generally;
Administrative Agent’s Clawback.  (a) General.  All payments
to be made by the Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. 
Except as otherwise expressly provided herein, all 


 


55

















 


payments by the Borrower hereunder shall be
made to the Administrative Agent, for the account of the respective Lenders to
which such payment is owed, at the Administrative Agent’s Office in Dollars and
in immediately available funds not later than 2:00 p.m. on the date
specified herein.  The Administrative
Agent will promptly distribute to each Lender its Applicable Percentage in
respect of the Revolving Credit Facility (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such
Lender’s Lending Office.  All payments
received by the Administrative Agent after 2:00 p.m. shall be deemed
received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue.  If any payment
to be made by the Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of
time shall be reflected on computing interest or fees, as the case may be.


 


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


 


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


 


56

















 


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


 


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


 


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


 


(d)                                 Obligations of Lenders Several. 
The obligations of the Lenders hereunder to make Revolving Credit Loans,
to fund participations in Letters of Credit and Swing Line Loans and to make
payments pursuant to Section 10.04(c) are several and not
joint.  The failure of any Lender to make
any Loan, to fund any such participation or to make any payment under Section 10.04(c) on
any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan, to
purchase its participation or to make its payment under Section 10.04(c).


 


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


 


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


 


2.13.                     Sharing of Payments by
Lenders.  If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of (a) Obligations
in respect of the Revolving Credit Facility due and payable to such Lender
hereunder and under the other Loan Documents at such time in excess of its ratable
share (according to the proportion of (i) the amount of such Obligations
due and payable to such Lender at such time to (ii) the aggregate amount
of the Obligations in respect of the Revolving Credit Facility due and payable
to all 


 


57

















 


Lenders hereunder and under the other Loan
Documents at such time) of payments on account of the Obligations in respect of
the Revolving Credit Facility due and payable to all Lenders hereunder and
under the other Loan Documents at such time obtained by all the Lenders at such
time or (b) Obligations in respect of the Revolving Credit Facility owing
(but not due and payable) to such Lender hereunder and under the other Loan
Documents at such time in excess of its ratable share (according to the
proportion of (i) the amount of such Obligations owing (but not due and
payable) to such Lender at such time to (ii) the aggregate amount of the
Obligations in respect of the Revolving Credit Facility owing (but not due and
payable) to all Lenders hereunder and under the other Loan Parties at such
time) of payment on account of the Obligations in respect of the Revolving
Credit Facility owing (but not due and payable) to all Lenders hereunder and
under the other Loan Documents at such time obtained by all of the Lenders at
such time then the Lender receiving such greater proportion shall (a) notify
the Administrative Agent of such fact, and (b) purchase (for cash at face
value) participations in the Loans and subparticipations in L/C Obligations and
Swing Line Loans of the other Lenders, or make such other adjustments as shall
be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of Obligations in
respect of the Revolving Credit Facility then due and payable to the Lenders or
owing (but not due and payable) to the Lenders, as the case may be, provided
that:


 


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


 


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


 


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


 


2.14.                     Intentionally Omitted.


 


2.15.                     Increase in Revolving Credit
Facility.  (a) Request for Increase. 
Provided there exists no Default, upon notice to the Administrative
Agent (which shall promptly notify the Lenders), the Borrower may from time to
time, request an increase in the Revolving Credit Facility by an amount (for
all such requests) not exceeding $30,000,000; provided that (i) any
such request for an increase shall be in a minimum amount of $5,000,000, and (ii) the
Borrower may make a maximum of two such requests.  At the time of sending such notice, the
Borrower (in consultation with the Administrative Agent) shall specify the time
period within which each 


 


58

















 


Lender is requested to respond (which shall
in no event be less than ten Business Days from the date of delivery of such
notice to the Lenders).


 


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


 


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


 


(d)                                 Effective Date and Allocations. 
If the Revolving Credit Facility is increased in accordance with this
Section, the Administrative Agent and the Borrower shall determine the
effective date (the “Revolving Credit Increase
Effective Date”) and the final allocation of such increase.  The Administrative Agent shall promptly
notify the Borrower and the Lenders of the final allocation of such increase
and the Revolving Credit Increase Effective Date.


 


(e)                                  Conditions to Effectiveness of Increase. 
As a condition precedent to such increase, the Borrower shall deliver to
the Administrative Agent a certificate of each Loan Party dated as of the
Revolving Credit Increase Effective Date (in sufficient copies for each Lender)
signed by a Responsible Officer of such Loan Party (i) certifying and
attaching the resolutions adopted by such Loan Party approving or consenting to
such increase, and (ii) in the case of the Borrower, certifying that,
before and after giving effect to such increase, (A) the representations
and warranties contained in Article V and the other Loan Documents
are true and correct on and as of the Revolving Credit Increase Effective Date,
except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct as of such
earlier date, and except that for purposes of this Section 2.15,
the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01,
and (B) no Default exists.  The
Borrower shall prepay any Revolving Credit Loans outstanding on the Revolving
Credit Increase Effective Date (and pay any additional amounts required
pursuant to Section 3.05) to the extent necessary to keep the
outstanding Revolving Credit Loans ratable with any revised Applicable
Percentages arising from any nonratable increase in the Revolving Credit
Commitments under this Section.


 


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


 


59

















 


ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY


 


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


 


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


 


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


 


(c)                                  Tax Indemnifications.  (i) Without
limiting the provisions of subsection (a) or (b) above, the Borrower
shall, and does hereby, indemnify the Administrative Agent, each Lender and the
L/C Issuer, and shall make payment in respect thereof within 10 days after
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) withheld or deducted by the
Borrower or the Administrative Agent or paid by the Administrative Agent, such
Lender or the L/C Issuer, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority.  The Borrower shall also, and does hereby,
indemnify the Administrative Agent, and shall make payment in respect thereof
within 10 days after demand therefor, for any amount which a Lender or the L/C
Issuer for any reason fails to pay indefeasibly to the Administrative Agent as
required by clause (ii) of this subsection.  A certificate as to the amount of any such
payment or liability delivered to the Borrower by a Lender or the L/C Issuer
(with a copy to the Administrative Agent), or by the Administrative


 


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Agent
on its own behalf or on behalf of a Lender or the L/C Issuer, shall be
conclusive absent manifest error.


 


(ii)                                  Without limiting the provisions of
subsection (a) or (b) above, each Lender and the L/C Issuer shall,
and does hereby, indemnify the Borrower and the Administrative Agent, and shall
make payment in respect thereof within 10 days after demand therefor, against
any and all Taxes and any and all related losses, claims, liabilities,
penalties, interest and expenses (including the fees, charges and disbursements
of any counsel for the Borrower or  the
Administrative Agent) incurred by or asserted against the Borrower or the
Administrative Agent by any Governmental Authority as a result of the failure
by such Lender or the L/C Issuer, as the case may be, to deliver, or as a
result of the inaccuracy, inadequacy or deficiency of, any documentation
required to be delivered by such Lender or the L/C Issuer, as the case may be,
to the Borrower or the Administrative Agent pursuant to subsection (e).  Each Lender and the L/C Issuer hereby
authorizes the Administrative Agent to set off and apply any and all amounts at
any time owing to such Lender or the L/C Issuer, as the case may be, under this
Agreement or any other Loan Document against any amount due to the
Administrative Agent under this clause (ii). 
The agreements in this clause (ii) shall survive the resignation
and/or replacement of the Administrative Agent, any assignment of rights by, or
the replacement of, a Lender or the L/C Issuer, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all other
Obligations.


 


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


 


(e)                                  Status of Lenders; Tax Documentation.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


3.02.                     Illegality. 
If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or
to determine or charge interest rates based upon the Eurodollar Rate, or any
Governmental Authority has imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any obligation of such Lender to make or
continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate
Loans shall be suspended until such Lender notifies the Administrative Agent
and the Borrower that the circumstances giving rise to such determination no
longer exist.  Upon receipt of such
notice, the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans.  Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or converted.


 


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


 


3.04.                     Increased Costs; Reserves on Eurodollar
Rate Loans.  (a) Increased Costs Generally. 
If any Change in Law shall:


 


(i)                                     impose, modify or deem applicable any
reserve, special deposit, compulsory loan, insurance charge or similar
requirement against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e))
or the L/C Issuer;


 


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


 


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


 


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


 


(b)                                 Capital Requirements. 
If any Lender or the L/C Issuer determines that any Change in Law
affecting such Lender or the L/C Issuer or any Lending Office of such Lender or



 


64

















 


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


 


(c)                                  Certificates for Reimbursement. 
A certificate of a Lender or the L/C Issuer setting forth the amount or
amounts necessary to compensate such Lender or the L/C Issuer or its holding
company, as the case may be, as specified in subsection (a) or (b) of
this Section and delivered to the Borrower shall be conclusive absent
manifest error.  The Borrower shall pay
such Lender or the L/C Issuer, as the case may be, the amount shown as due on
any such certificate within 10 days after receipt thereof.


 


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


 


(e)                                  Reserves on
Eurodollar Rate Loans.  The
Borrower shall pay to each Lender, as long as such Lender shall be required to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each
Eurodollar Rate Loan equal to the actual costs of such reserves allocated to
such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which shall be due and payable on each date
on which interest is payable on such Loan, provided the Borrower shall
have received at least 10 days’ prior notice (with a copy to the Administrative
Agent) of such additional interest from such Lender.  If a Lender fails to give notice 10 days
prior to the relevant Interest Payment Date, such additional interest shall be
due and payable 10 days from receipt of such notice.


 


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


 


65

















 


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


 


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


 


(c)                                  any assignment of a Eurodollar Rate Loan
on a day other than the last day of the Interest Period therefor as a result of
a request by the Borrower pursuant to Section 10.13;


 


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


 


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


 


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


 


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


 


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


 


66

















 


ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


4.01.                     Conditions of Initial Credit
Extension.  The obligation of the L/C Issuer and each
Lender to make its initial Credit Extension hereunder is subject to
satisfaction of the following conditions precedent, except to the extent such
conditions are subject to the Post-Closing Agreement:


 


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


 


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


 


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


 


(iii)                               executed counterparts of each other Loan Document, together
with:


 


(A)                              instruments evidencing the Pledged Debt
accompanied by undated allonges executed in blank,


 


(B)                                proper financing statements in form
appropriate for filing under the Uniform Commercial Code of all jurisdictions
that the Administrative Agent may deem necessary or desirable in order to
perfect the Liens created under the Security Agreement, covering the Collateral
described in the Security Agreement,


 


(C)                                evidence of the completion of all other
actions, recordings and filings of or with respect to the Security Agreement
that the Administrative Agent may deem necessary or desirable in order to
perfect the Liens created thereby,


 


(D)                               evidence that all other action that the
Administrative Agent may deem necessary or desirable in order to perfect the
Liens created under the Security Agreement, the Copyright Security Agreement,
the Trademark Security Agreement and the Patent Security Agreement has been
taken (including receipt of duly executed payoff letters, UCC-3 termination
statements and landlords’ and bailees’ waiver and consent agreements);


 


(iv)                              the Perfection
Certificate, duly executed by each Loan Party;


 


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


 


67

















 


Agreement and the other Loan Documents to which such Loan Party is a
party or is to be a party;


 


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


 


(vii)                           a favorable opinion of Davis, Malm & D’Agostine,
P.C., counsel to the Loan Parties, addressed to the Administrative Agent and
each Lender, as to the matters set forth in Exhibit H-1 and such
other matters concerning the Loan Parties and the Loan Documents as the
Required Lenders may reasonably request;


 


(viii)                        a favorable opinion of Herrick, Feinstein LLP, New
York counsel to the Loan Parties, addressed to the Administrative Agent and
each Lender, as to the matters set forth in Exhibit H-2 and such
other matters concerning the Loan Parties and the Loan Documents as the
Required Lenders may reasonably request;


 


(ix)                                a certificate of a Responsible Officer of
each Loan Party either (A) attaching copies of all consents, licenses and
approvals required in connection with the consummation by such Loan Party of
the Transactions (other than with regard to the Acquisition) (including,
governmental, shareholder and third party consents such as clearance under the
Hart-Scott Rodino Act) and the execution, delivery and performance by such Loan
Party and the validity against such Loan Party of the Loan Documents to which
it is a party, and such consents, licenses and approvals shall be in full force
and effect, or (B) stating that no such consents, licenses or approvals
are so required;


 


(x)                                   a certificate signed by a Responsible
Officer of the Borrower certifying (A) that the conditions specified in Sections
4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since
the date of the Audited Financial Statements that has had or could be
reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect;


 


(xi)                                a certificate signed by a Responsible
Officer of the Borrower certifying that no material change has occurred since March 31,
2009, the date of the pro forma combined balance sheet of the Borrower and its
Subsidiaries after giving effect to the Transactions which the Borrower
previously provided to the Administrative Agent, with respect to either the
Borrower or the Target Company or their respective Subsidiaries which would
have a material adverse effect on the combined financial condition of the Borrower
and the Target Company and their respective Subsidiaries as reflected in such
pro forma combined balance sheet;


 


(xii)                             a business plan and budget of the Borrower and its Subsidiaries on a consolidated basis,
including forecasts prepared by management of the Borrower for a 


 


68

















 


period at least through the Maturity Date, including consolidated
balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries, and
prepared on a quarterly basis for the first year following the Closing Date;


 


(xiii)                          interim financial statements for the Borrower and the
Target Company as of a date no more than 60 days prior to the Closing Date;


 


(xiv)                         a certificate attesting to the Solvency of each Loan
Party before and after giving effect to the Transactions, from its chief
financial officer;


 


(xv)                            evidence that all property and liability
insurance required to be maintained pursuant to the Loan Documents has been
obtained and is in effect, together with the certificates of insurance and
endorsements, naming the Administrative Agent, on behalf of the Lenders, as an
additional insured or loss payee, as the case may be, under all insurance
policies maintained with respect to the assets and properties of the Loan
Parties that constitutes Collateral;


 


(xvi)                         a Borrowing Base Certificate duly certified by the
chief executive officer, chief financial officer, treasurer or controller of
the Borrower relating to the initial Credit Extension;


 


(xvii)                      a duly completed Compliance Certificate as of the last
day of the fiscal quarter of the Borrower ended June 30, 2009, signed by
chief executive officer, chief financial officer, treasurer or controller of
the Borrower;


 


(xviii)                   evidence that loans made pursuant to the Existing Credit Agreement by
any lender other than those party to this Agreement have been paid off and that
letters of credit issued under the Existing Credit Agreement by any letter of
credit issuer other than those party to this Agreement have been replaced; and


 


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


 


(b)                                 (i) All fees required to be paid to
the Administrative Agent and the Arranger on or before the Closing Date shall
have been paid and (ii) all fees required to be paid to the Lenders on or
before the Closing Date shall have been paid.


 


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


 


(d)                                 The
Administrative Agent, Lenders and Arranger shall have completed a due diligence
investigation, including such collateral reviews, field examinations, audits,
assessments or other reviews that the Administrative Agent deems appropriate,
of the Borrower, the Target 


 


69

















 


Company and their respective Subsidiaries in
scope, and with results, satisfactory to the Administrative Agent, Lenders, and
Arranger and shall have been given such access to the management, records,
books of account, contracts and properties of the Borrower, the Target Company
and their respective Subsidiaries and shall have received such financial,
business and other information regarding each of the foregoing Persons and
businesses as they shall have requested;


 


(e)                                  The Administrative Agent shall be
satisfied with the Borrower’s corporate, capital and ownership structure.


 


(f)                                    The Administrative Agent and Arranger
shall be satisfied that there has been no material adverse change in the
business, assets, properties, liabilities, operations, condition or prospects
of the Borrower or the Target Company.


 


(g)                                 No action, suit, investigation,
litigation or proceeding pending or threatened in any court or before any
arbitrator or governmental instrumentality could, in the judgment of the
Administrative Agent or Arranger, reasonably be expected to have a material
adverse effect on the business, assets, properties, liabilities, operations,
condition or prospects of the Borrower or the Target Company, or could impair
the Borrower’s ability to perform any of its obligations under the Loan
Documents, or could reasonably be expected to materially and adversely affect
the Transactions.


 


(h)                                 On the Closing Date, the Borrower shall
discharge all of the $23,032,000 of outstanding Senior Secured Notes in
accordance with the applicable provisions of the Senior Secured Notes
Indenture.


 


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


 


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


 


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


 


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


 


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


 


(d)                                 The Borrowing
Base exceeds the Outstanding Amount of the Revolving Credit Loans, Swing Line
Loans and L/C Obligations at such time, after giving effect to such Credit
Extension.


 


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


 


ARTICLE V.

REPRESENTATIONS AND WARRANTIES


 


The  Borrower represents and
warrants to the Administrative Agent and the Lenders that:


 


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


 


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


 


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


 


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other Loan Document or Related Document, or
for the consummation of the Transactions, (b) the grant by any Loan Party
of the Liens granted by it pursuant to the Collateral Documents, (c) the
perfection or maintenance of the Liens created under the Collateral Documents
(including, subject to Liens permitted by Section 7.01 and the
provisions of the Intercreditor Agreement, the first priority nature thereof)
or (d) the exercise by the Administrative Agent or any Lender of its
rights under the Loan Documents or the remedies in respect of the Collateral
pursuant to the Collateral Documents,
except for the authorizations, approvals, actions, notices and filings listed
on Schedule 5.03, all of which have been duly obtained, taken, given or
made and are in full force and effect.


 


5.04.                     Binding Effect. 
This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that
is party thereto.  This Agreement
constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against
each Loan Party that is party thereto in accordance with its terms.


 


5.05.                     Financial Statements; No Material
Adverse Effect.  (a) The Audited Financial Statements (i) were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein; (ii) fairly
present the financial condition of the Borrower and its Subsidiaries as of the
date thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; and (iii) show all
material indebtedness and other liabilities, direct or contingent, of the
Borrower and its Subsidiaries as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness.


 


(b)                                 The unaudited consolidated balance sheet
of the Borrower and its
Subsidiaries dated March 31, 2009, and the related consolidated statements
of income or operations, shareholders’ equity and cash flows for the fiscal
quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, and (ii) fairly present the financial condition
of the Borrower and its
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby, subject, in the case of clauses (i) and (ii), to
the absence of footnotes and to normal year-end audit adjustments.  Such unaudited consolidated balance sheet
(including the notes thereto) sets forth all material indebtedness and other
liabilities, direct or contingent, of the
Borrower and its consolidated Subsidiaries as of the date of such
financial statements, including liabilities for taxes, material commitments and
Indebtedness.


 


(c)                                  Since the date of the Audited Financial
Statements, there has been no event or circumstance, either individually or in
the aggregate, that has had or could reasonably be expected to have a Material
Adverse Effect.


 


(d)                                 The consolidated pro forma balance sheet
of the Borrower and its
Subsidiaries (including, for this purpose, the Target Company and its
Subsidiaries) as at March 31, 2009, and the related consolidated
pro forma statements of income of the Borrower and its Subsidiaries
(including, for this purpose, the Target Company and its Subsidiaries) for the
12 months ended December 31,
2008 and the three months ended March 31, 2009, certified by the chief financial



 


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officer or treasurer of the Borrower, copies
of which have been furnished to each Lender, fairly present the consolidated
pro forma financial condition of the
Borrower and its Subsidiaries as at such date and the consolidated pro
forma results of operations of the
Borrower and its Subsidiaries for such periods, in each case giving
effect to the Transactions, all in accordance with GAAP.


 


(e)                                  The consolidated forecasted balance
sheet, statements of income and cash flows of the Borrower and its Subsidiaries (including, for this purpose,
the Target Company and its Subsidiaries) delivered pursuant to Section 4.01
or Section 6.01(d) were prepared in good faith on the basis of
the assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such forecasts, and represented,
at the time of delivery, the Borrower’s best estimate of its future financial
condition and performance.


 


5.06.                     Litigation.  There
are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the Borrower after due and diligent investigation, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, by or against the Borrower or any of its Subsidiaries or against any
of their properties or revenues that (a) purport to affect or pertain to
this Agreement, any other Loan Document, any Related Document or the
consummation of the Transactions, or (b) except as specifically disclosed in footnote (10), “Commitments and
Contingencies” to the unaudited consolidated financial statements of the
Borrower and its Subsidiaries dated March 31, 2009 described in Section 5.05(a) (the
“Disclosed Litigation”),
either individually or in the aggregate, if determined adversely, could
reasonably be expected to have a Material Adverse Effect.


 


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


 


5.08.                     Ownership of Property; Liens;
Investments.  (a) Each Loan Party has good record and
marketable title in fee simple to, or valid leasehold interests in, all Real
Property necessary or used in the ordinary conduct of its business, except for
such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


(b)                                 Other than Liens (i) to be
discharged pursuant to Section 4.01(a)(iii)(D) or (ii) permitted
by Section 7.01, Schedule 5.08(b) sets forth a complete
and accurate list of all Liens on the property or assets of each Loan Party,
showing as of the date hereof the lienholder thereof, the principal amount of
the obligations secured thereby and the property or assets of such Loan Party
subject thereto.  The property of each
Loan Party is subject to no Liens, other than Liens set forth on Schedule
5.08(b), and as otherwise permitted by Section 7.01.


 


(c)                                  Schedules 8(a) and 8(b) of the
Perfection Certificate set forth a complete and accurate list of all Real
Property owned by each Loan Party, showing as of the date hereof the street
address, county or other relevant jurisdiction, state and record owner
thereof.  Each Loan Party has good, marketable
and insurable fee simple title to the Real Property owned by such 


 


73

















 


Loan Party, free and clear of all Liens,
other than Liens (i) to be discharged pursuant to Section 4.01(a)(iii)(D) or
(ii) permitted by Section 7.01.


 


(d)                                 (i)                                     Schedule 8(b) of the
Perfection Certificate sets forth a complete and accurate list of all leases of Real Property under which any Loan
Party is the lessee, showing as of the date hereof the street address, county
or other relevant jurisdiction, state, lessor and lessee thereof.  Each such lease is the legal, valid and
binding obligation of the lessor thereof, enforceable in accordance with its
terms.


 


(ii)                                  Schedule 8(c) of the Perfection Certificate sets
forth a complete and accurate list of all leases of Real Property under which
any Loan Party is the lessor, showing as of the date hereof the street address,
county or other relevant jurisdiction, state, lessor, lessee, expiration date
and annual rental cost thereof.  Each such
lease is the legal, valid and binding obligation of the lessee thereof,
enforceable in accordance with its terms.


 


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


 


(b)                                 Except as otherwise set forth in Schedule
5.09, none of the properties currently or formerly owned or operated by any
Loan Party or any of its Subsidiaries is listed or proposed for listing on the
NPL or on the CERCLIS or any analogous foreign, state or local list or is
adjacent to any such property; there are no and never have been any underground
or above-ground storage tanks or any surface impoundments, septic tanks, pits,
sumps or lagoons in which Hazardous Materials are being or have been treated,
stored or disposed on any property currently owned or operated by any Loan
Party or any of its Subsidiaries or, to the best of the knowledge of the Loan
Parties, on any property formerly owned or operated by any Loan Party or any of
its Subsidiaries; there is no asbestos or asbestos-containing material on any
property currently owned or operated by any Loan Party or any of its
Subsidiaries; and Hazardous Materials have not been released, discharged or
disposed of on any property currently or formerly owned or operated by any Loan
Party or any of its Subsidiaries.


 


(c)                                  Except as otherwise set forth on Schedule
5.09, neither any Loan Party nor any of its Subsidiaries is undertaking,
and has not completed, either individually or together with other potentially
responsible parties, any investigation or assessment or remedial or response
action relating to any actual or threatened release, discharge or disposal of
Hazardous Materials at any site, location or operation, either voluntarily or
pursuant to the order of any Governmental Authority or the requirements of any
Environmental Law; and all Hazardous Materials generated, used, treated,
handled or stored at, or transported to or from, any property currently or
formerly owned or operated by any Loan Party or any of its Subsidiaries have
been disposed of in a manner not reasonably expected to result in material
liability to any Loan Party or any of its Subsidiaries.


 


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(d)                                 The Loan Parties and their Subsidiaries
have all licenses, permits, certificates, approvals or similar authorizations
required to be obtained or filed in connection with the operations of the Loan
Parties and their Subsidiaries under any Environmental Law and all such
licenses, permits, certificates, approvals or similar authorizations are valid
and in full force and effect.  No Liens
have been recorded with respect to any Collateral under any Environmental
Law.  There are no past or present
occurrences, conditions, activities or events that could reasonably be expected
to prevent the Borrower or any Subsidiary from compliance with, or result in
liability under, any applicable Environmental Law.


 


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


 


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


 


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


 


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


 


(c)                                  (i)                                     No ERISA Event has occurred or is reasonably expected
to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects 


 


75

















 


to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA,
would result in such liability) under Section 4201 or 4243 of ERISA with
respect to a Multiemployer Plan; and (v) neither the Borrower nor any
ERISA Affiliate has engaged in a transaction that could be subject to Section 4069
or 4212(c) of ERISA.


 


(d)                                 With respect to
each scheme or arrangement mandated by a government other than the United
States (a “Foreign Government
Scheme or Arrangement”)
and with respect to each employee benefit plan maintained or contributed to by
any Loan Party or any Subsidiary of any Loan Party that is not subject to
United States law (a “Foreign Plan”):


 


(i)                                     any employer and employee contributions
required by law or by the terms of any Foreign Government Scheme or Arrangement
or any Foreign Plan have been made, or, if applicable, accrued, in accordance
with normal accounting practices;


 


(ii)                                  the fair market value of the assets of
each funded Foreign Plan, the liability of each insurer for any Foreign Plan
funded through insurance or the book reserve established for any Foreign Plan,
together with any accrued contributions, is sufficient to procure or provide
for the accrued benefit obligations, as of the date hereof, with respect to all
current and former participants in such Foreign Plan according to the actuarial
assumptions and valuations most recently used to account for such obligations
in accordance with applicable generally accepted accounting principles; and


 


(iii)                               each Foreign Plan required to be registered has been
registered and has been maintained in good standing with applicable regulatory
authorities.


 


5.13.                     Subsidiaries; Equity Interests;
Loan Parties.  As of
the Closing Date (and after giving effect to the consummation of the
Acquisition), no Loan Party has any Subsidiaries other than those
specifically disclosed in Part (a) of Schedule 5.13, and all
of the outstanding Equity Interests in such Subsidiaries have been validly
issued, are fully paid and non-assessable and are owned by a Loan Party (or a
Subsidiary of a Loan Party) free and clear of all Liens except those permitted
by Section 7.01.  No Loan Party has any equity
investments in any other corporation or entity other than those specifically
disclosed in Part (b) of Schedule 5.13.  All of the outstanding Equity Interests in
the Borrower have been validly issued, are fully paid and non-assessable.  Set forth on Schedule 1(a) to the
Perfection Certificate is a complete and accurate list of all Loan Parties,
showing as of the Closing Date (as to each Loan Party) the jurisdiction of its
incorporation, the address of its principal place of business and its U.S.
taxpayer identification number.  The copy
of the charter of each Loan Party and each amendment thereto provided pursuant
to Section 4.01(a)(vi) is a true and correct copy of
each such document, each of which is valid and in full force and effect.  No Equity Interests of any of the
Subsidiaries of the Loan Parties are or may become required to be issued by
reason of any options, warrants, rights to subscribe to, calls or commitments
of any kind or nature and there are no contracts, commitments, understandings
or arrangements by which any Subsidiary is or may become bound to issue
additional shares of its Equity Interests or securities convertible or
exchangeable for such shares.


 


5.14.                     Margin Regulations; Investment
Company Act.  (a) The Borrower is not engaged and will not
engage, principally or as one of its important activities, in the business of 


 


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purchasing or carrying margin stock (within
the meaning of Regulation U issued by the FRB), or extending credit for the
purpose of purchasing or carrying margin stock.


 


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


 


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


 


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


 


5.17.                     Intellectual Property; Licenses,
Etc.  Each Loan Party and each of its Subsidiaries
own, or possess the right to use, all of the trademarks, service marks, trade
names, copyrights, patents, patent rights, franchises, licenses and other
intellectual property rights (collectively, “IP Rights”) that are
reasonably necessary for the operation of their respective businesses, without
conflict with the rights of any other Person, and Schedules 14(a) and
14(b) to the Perfection Certificate set forth a complete and
accurate list of all such IP Rights owned or used by each Loan Party.  To the best knowledge of the Borrower, no
slogan or other advertising device, product, process, method, substance, part
or other material now employed, or now contemplated to be employed, by any Loan
Party or any of its Subsidiaries infringes upon any rights held by any other
Person.  No claim or litigation regarding
any of the foregoing is pending or, to the best knowledge of the Borrower,
threatened, which, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. 
Schedules 14(a) and 14(b) to the Perfection
Certificate set forth all of the agreements or other arrangements of the Loan
Parties pursuant to which any Loan Party has a license or other right to use
any trademarks, logos, designs, representations or other IP Rights owned by
another Person as in effect on the Closing Date and the dates of the expiration
of such agreements or other arrangements of any Loan Party as in effect on the
Closing Date (collectively, together with such agreements or other arrangements
as may be entered into by any Loan Party after the Closing Date, collectively,
the 


 


77

















 


“License Agreements” and individually,
a “License Agreement”).  No
trademark, servicemark, or other IP Right at any time used by any Loan Party
which is owned by another Person, or owned by any Loan Party subject to any
security interest, Lien, collateral assignment, pledge or other encumbrance in
favor of any Person other than a Secured Party, is fixed to any Inventory,
except to the extent permitted under the term of the License Agreements listed
on Schedule 14(a) and 14(b) to the Perfection
Certificate.


 


5.18.                     Solvency. 
The Borrower and each of its Significant Subsidiaries is, individually
and together with its Subsidiaries on a consolidated basis, Solvent.


 


5.19.                     Casualty, Etc. 
Neither the businesses nor the properties of any Loan Party or any of
its Subsidiaries are affected by any fire, explosion, accident, strike, lockout
or other labor dispute, drought, storm, hail, earthquake, embargo, act of God
or of the public enemy or other casualty (whether or not covered by insurance)
that, either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.


 


5.20.                     Labor Matters. 
Set forth on Schedule 5.20 is a list (including dates of termination)
of all collective bargaining agreements or Multiemployer Plans covering the
employees of the Loan Parties as of the Closing Date. There is (i) no
significant unfair labor practice complaint pending against any Loan Party or,
to the best of Loan Parties’ knowledge, threatened against any Loan Party,
before the National Labor Relations Board, (ii) no significant grievance
or significant arbitration proceeding arising out of or under any collective
bargaining agreement is pending on the Closing Date against any Loan Party or,
to best of Loan Parties’ knowledge, threatened against any Loan Party, and (iii) no
significant strike, labor dispute, slowdown or stoppage is pending against
any Loan Party or, to the best of Loan Parties’ knowledge, threatened against
any Loan Party, and (iv) no Loan Party has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last five
years.


 


5.21.                     Collateral Documents. 
The provisions of the Collateral Documents are effective to create in
favor of the Administrative Agent for the benefit of the Secured Parties a
legal, valid and enforceable first priority Lien (subject to Liens permitted by
Section 7.01 and the provisions of the Intercreditor Agreement) on
all right, title and interest of the respective Loan Parties in the Collateral
described therein.  Except for filings
completed prior to the Closing Date and as contemplated hereby and by the
Collateral Documents, no filing or other action will be necessary to perfect or
protect such Liens.


 


5.22.                     Bank Accounts. 
All of the deposit accounts, investment accounts or other accounts in
the name of or used by the Loan Parties maintained at any bank or other
financial institution as of the Closing Date are set forth in the Perfection
Certificate.


 


5.23.                     Trade Relations. 
There exists no actual or threatened termination, cancellation or
limitation of, or any modification or change in, the business relationship
between any Loan Party or any of its Subsidiaries and any customer or any group
of customers whose purchases individually or in the aggregate are material to
the business of any Loan Party or any of its Subsidiaries, or with any material
supplier, and there exists no present condition or state of facts or
circumstances which would materially affect adversely any Loan Party or any of
its Subsidiaries or prevent any Loan Party or any of its Subsidiaries from
conducting such business 


 


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after the consummation of the transaction
contemplated by this Agreement in substantially the same manner in which it has
heretofore been conducted.


 


5.24.                     Restrictions on Subsidiaries. 
Except for restrictions contained in this Agreement or any other
agreement with respect to Indebtedness of Loan Parties permitted hereunder,
there are no contractual or consensual restrictions on any Loan Party or any of
their Subsidiaries which prohibit or otherwise restrict (a) the transfer
of cash or other assets (i) between any Loan Party and any of its
Subsidiaries or (ii) between any Subsidiaries of Loan Parties or (b) the
ability of any Loan Party or any of their Subsidiaries to incur Indebtedness or
grant security interests to the Secured Parties in the Collateral.


 


5.25.                     Material Contracts.  Schedule
5.25 sets forth all Material Contracts to which any Loan Party is a party
or is bound as of the Closing Date.  To
the extent requested by the Administrative Agent, the Borrower has delivered
true, correct and complete copies of such Material Contracts to the
Administrative Agent on or before the Closing Date. Except as would not have a
Material Adverse Effect, the Loan Parties are not in breach of or in default
under any Material Contract and have not received any notice of the intention
of any other party thereto to terminate any Material Contract.


 


5.26.                     Payable Practices. 
The Loan Parties have not made any material change in the historical
accounts payable practices from those in effect immediately prior to the
Closing Date.


 


5.27.                     Interdependent Businesses and
Operations.  Each of the operations and businesses of each
Loan Party is interdependent with the other Loan Parties and each Loan Party
substantially relies on the other Loan Parties in its operations and business.
Each Loan Party will derive substantial direct and indirect benefits from the
Loans and Letters of Credit made and to be made by the Administrative Agent and
Lenders hereunder. Each Loan Party’s access to the financing provided hereunder
significantly enhances its own financial condition and business prospects and
the Loan Parties acknowledge that the financing provided hereunder would only
be available on a joint and several basis among all the Loan Parties.


 


5.28.                     Anti-Terrorism Law.


 


(a)                                  No Loan Party and, to the knowledge of
the Loan Parties, none of their Affiliates is in violation of any laws relating
to terrorism or money laundering (“Anti-Terrorism Laws”), including
Executive Order No. 13224 on Terrorist Financing, effective September 24,
2001 (the “Order”), and the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Public Law 107-56.


 


(b)                                 No Loan Party and to the knowledge of the
Loan Parties, no Affiliate or broker or other agent of any Loan Party acting or
benefiting in any capacity in connection with the Loans, the or the Letters of
Credit is any of the following:


 


(i)                                     a person that is listed in the annex to,
or is otherwise subject to the provisions of, the Order;


 


(ii)                                  a person owned or controlled by, or
acting for or on behalf of, any person that is listed in the annex to, or is
otherwise subject to the provisions of, the Order;


 


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(iii)                               a person with which any Secured Party is prohibited
from dealing or otherwise engaging in any transaction by any Anti-Terrorism
Law;


 


(iv)                              a person that commits, threatens or
conspires to commit or supports “terrorism” as defined in the Order; or


 


(v)                                 a person that is named as a “specially
designated national and blocked person” on the most current list published by
the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”)
at its official website or any replacement website or other replacement
official publication of such list.


 


(c)                                  No Loan Party and, to the knowledge of
the Loan Parties, no broker or other agent of any Loan Party acting in any
capacity in connection with the Loans or the Letters of Credit (i) conducts
any business or engages in making or receiving any contribution of funds, goods
or services to or for the benefit of any person described in paragraph (b) above,
(ii) deals in, or otherwise engages in any transaction relating to, any
property or interests in property blocked pursuant to the Order, or (iii) engages
in or conspires to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions
set forth in any Anti-Terrorism Law.


 


5.29.                     Properties.


 


(a)                                  Each Loan Party has good title to, or
valid leasehold interests in, all its property material to its business, free
and clear of all Liens except for Liens permitted by Section 7.01
and minor irregularities or deficiencies in title that, individually or in the
aggregate, do not interfere with its ability to conduct its business as
currently conducted or to utilize such property for its intended purpose. The
property of the Loan Parties, taken as a whole, (i) is in good operating
order, condition and repair (ordinary wear and tear excepted), except to the
extent that the failure to be in such condition could not reasonably be
expected to result in a Material Adverse Effect, and (ii) constitutes all
the property which is required for the business and operations of the Loan
Parties as presently conducted.


 


(b)                                 No Loan Party has received any notice of,
nor has any knowledge of, the occurrence or pendency or contemplation of any
Casualty Event affecting all or any portion of its property. 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 within the meaning of the National Flood Insurance Act of
1968 unless flood insurance available under such Act has been obtained in
accordance with Section 6.07.


 


(c)                                  Each Loan Party owns or has rights to use
all of the Collateral, other property and all rights with respect to any of the
foregoing used in, necessary for or material to such Loan Party’s business as
currently conducted. The use by each Loan Party of such Collateral, other property
and all such rights with respect to the foregoing do not infringe on the rights
of any person other than such infringement which could not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect.
No claim has been made and remains outstanding that any Loan Party’s use of any
Collateral or other property does or may


 


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violate
the rights of any third party that could, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.


 


5.30.                     Disclosure. 
Neither this Agreement nor any other document, certificate or statement
furnished to any Secured Party by or on behalf of any Loan Party in connection
herewith contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements contained herein and
therein not misleading, in light of the circumstances under which they were
made; provided that to the extent this or any
such document, certificate or statement was based upon or constitutes a
forecast or projection, the Loan Parties represent only that they acted in good
faith and utilized reasonable assumptions and due care in the preparation of
such document, certificate or statement.


 


5.31.                     Survival of Warranties;
Cumulative.  All representations and warranties contained
in this Agreement or any of the other Loan Documents shall survive the
execution and delivery of this Agreement and shall be deemed to have been made
again to the Administrative Agent and the Lenders on the date of each
additional borrowing or other credit accommodation hereunder and shall be
conclusively presumed to have been relied on by the Administrative Agent and
Lenders regardless of any investigation made or information possessed by the
Administrative Agent or Lenders. The representations and warranties set forth
herein shall be cumulative and in addition to any other representations or
warranties which the Loan Parties shall now or hereafter give, or cause to be
given, to the Administrative Agent.


 


ARTICLE VI.

AFFIRMATIVE COVENANTS


 


So long as any Lender shall
have any Commitment hereunder, any Loan or other Obligation hereunder shall
remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
the Borrower shall, and shall (except in the case of the covenants set forth in
Sections 6.01, 6.02, 6.03 and 6.11) cause each
Subsidiary to:


 


6.01.                     Financial Statements. 
Deliver to the Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:


 


(a)                                  as soon as available, but in any event
within 90 days after the end of each fiscal year of the Borrower, audited
consolidated financial statements of the Borrower and its Subsidiaries
(including in each case balance sheets, statements of income and loss,
statements of cash flow and statements of shareholders’ equity), and the
accompanying notes thereto, all in reasonable detail, fairly presenting the
financial position and the results of the operations of the Borrower and its
Subsidiaries as of the end of and for such fiscal year, together with the
unqualified opinion of independent certified public accountants (and shall not
be subject to any going concern or like qualification, exception or explanatory
paragraph), which accountants shall be an independent accounting firm selected
by the Borrower and reasonably acceptable to the Administrative Agent, that
such financial statements have been prepared in accordance with GAAP, and
present fairly the results of operations and financial condition of the
Borrower and its Subsidiaries as of the end of and for the fiscal year then
ended, together with a Compliance Certificate together with a schedule in form
reasonably satisfactory to the Administrative Agent 


 


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of the calculations used in determining
whether the Borrower was in compliance with the covenants set forth in Section 7.11
of this Agreement as of the end of such fiscal year;


 


(b)                                 as soon as available, but in any event
within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower (commencing
with the fiscal quarter ended June 30, 2009), quarterly unaudited
consolidated financial statements (including in each case balance sheets,
statements of income and loss, and statements of cash flow), all in reasonable
detail, fairly presenting the financial position and the results of operations
of the Borrower and its Subsidiaries as of the end of and through such fiscal
quarter, certified to be correct by the chief financial officer of the
Borrower, subject to normal year-end adjustments and accompanied by a Compliance
Certificate together with a schedule in form reasonably satisfactory to the
Administrative Agent of the calculations used in determining whether the
Borrower was in compliance with the covenants set forth in Section 7.11
of this Agreement as of the end of such fiscal quarter;


 


(c)                                  as soon as available, but in any event
within 30 days after the end of each fiscal month of the first two months of
each fiscal quarter, monthly unaudited consolidated financial statements
(including in each case balance sheets, statements of income and loss and
statements of cash flow), all in reasonable detail, fairly presenting the
financial position and the results of the operations of the Borrower and its
Subsidiaries as of the end of and through such fiscal month, certified to be
correct by the chief financial officer of the Borrower, subject to normal
year-end adjustments; and


 


(d)                                 as soon as available, but in any event
prior to January 31 of each fiscal year of the Borrower, a budget of the
Borrower and its Subsidiaries in form reasonably satisfactory to the
Administrative Agent (including a projected consolidated balance sheet, income
statement and statement of cash flows) for such fiscal year, prepared in
summary form and on a monthly basis, in each case with appropriate presentation
and discussion of the principal assumptions upon which such budgets are based,
accompanied by the statement of a financial officer of the Borrower to the
effect that the budget is a reasonable estimate for the period covered thereby
and such other budgets, forecasts, projections and other information respecting
the Collateral and the business of the Loan Parties, as the Administrative
Agent may, from time to time, reasonably request. The Administrative Agent and
each Lender is hereby authorized to deliver a copy of any financial statement
or any other information relating to the business of the Loan Parties to any
court or other Governmental Authority or to any participant or assignee or
prospective participant or assignee of any Lender. At any time that the
Administrative Agent reasonably requests the Loan Parties shall deliver, at
their expense, copies of the financial statements of the Loan Parties and any
reports or management letters prepared by the accountants or auditors to the
Loan Parties and to deliver to the Administrative Agent and to each Lender such
information as may reasonably be requested. 
The Loan Parties shall permit the Lenders, through the Administrative
Agent or any of the Lenders’ other designated representatives, to visit and
inspect any of the properties of the Loan Parties or any of their Subsidiaries,
to examine the books of account of the Loan Parties and their Subsidiaries (and
to make copies thereof and extracts therefrom), and to discuss the affairs,
finances and accounts of the Loan Parties and their Subsidiaries with, and to
be advised as to the same by, its and their officers, and to conduct
examinations and verifications (whether by commercial finance examiners or
independent 


 


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auditors) of all components included in the
Borrowing Base, all at such reasonable times and intervals as the
Administrative Agent or any Lender may reasonably request.


 


As
to any information contained in materials furnished pursuant to Section 6.02(c),
the Borrower shall not be separately required to furnish such information under
Section 6.01(a) or (b) above, but the foregoing
shall not be in derogation of the obligation of the Borrower to furnish the
information and materials described in Sections 6.01(a) and (b) above
at the times specified therein.


 


6.02.                     Certificates; Other Information. 
Deliver to the Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:


 


(a)                                  concurrently with the delivery of the
financial statements referred to in Sections 6.01(a) and (b) (commencing with the delivery of the
financial statements for the fiscal quarter ended June 30, 2009), (i) a duly completed Compliance
Certificate signed by the chief executive officer, chief financial officer,
treasurer or controller of the Borrower;


 


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


 


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


 


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


 


(e)                                  upon request of the Administrative Agent,
within fifteen (15) days of such request, a report summarizing the insurance
coverage (specifying type, amount and carrier) in effect for each Loan Party
and its Subsidiaries and containing such additional information as the
Administrative Agent, or any Lender through the Administrative Agent, may
reasonably specify;


 


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


 


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(g)                                 not later than five Business Days after
receipt thereof by any Loan Party or any Subsidiary thereof, copies of all
notices, requests and other documents (including amendments, waivers and other
modifications) so received under or pursuant to any Related Document or
instrument, indenture, loan or credit or similar agreement regarding or related to any breach or default
by any party thereto or any other event that could materially impair the value
of the interests or the rights of any Loan Party or otherwise have a Material
Adverse Effect and, from time to time upon request by the Administrative
Agent, such information and reports regarding the Related Documents and such
instruments, indentures and loan and credit and similar agreements as the Administrative
Agent may reasonably request;


 


(h)                                 promptly after the assertion or
occurrence thereof, notice of any action or proceeding against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could (i) reasonably be
expected to have a Material Adverse Effect or (ii) cause any property
described in the Mortgages to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law;


 


(i)                                     upon request of the Administrative Agent,
within fifteen (15) days of such request, (i) a report supplementing Schedules 8(a), 8(b) and
8(c) to the Perfection Certificate, including an identification of
all owned and leased Real Property disposed of by any Loan Party or any Subsidiary thereof during such fiscal year,
a list and description (including the street address, county or other relevant
jurisdiction, state, record owner, book value thereof and, in the case of
leases of property, lessor, lessee, expiration date and annual rental cost
thereof) of all Real Property acquired or leased during such fiscal year and a
description of such other changes in the information included in such Schedules
as may be necessary for such Schedules to be accurate and complete; and (ii) a report supplementing Schedules
14(a), 14(b), 14(c) and 14(d) to the Perfection Certificate
setting forth (A) a list of registration numbers for all patents,
trademarks, service marks, trade names and copyrights awarded to any Loan Party
thereof during such fiscal year and (B) a list of all patent applications,
trademark applications, service mark applications, trade name applications and
copyright applications submitted by any Loan Party or any Subsidiary thereof
during such fiscal year and the status of each such application;


 


(j)                                     as soon as available, but in any event
within 30 days after the end of each fiscal year of the Borrower, a report supplementing Schedules 5.08(e) and 5.13
containing a description of all changes in the information included in such
Schedules as may be necessary for such Schedules to be accurate and complete, each such report to be signed by a
Responsible Officer of the Borrower and to be in a form reasonably satisfactory
to the Administrative Agent;


 


(k)                                  (i) so long as minimum Liquidity is
at least $50,000,000, as soon as available, but in any event within 20 days
after the end of each month, or (ii) if minimum Liquidity is less than
$50,000,000, weekly or daily, in the sole discretion of the Administrative
Agent, a Borrowing Base Certificate, duly certified by the chief executive
officer, chief financial officer, treasurer or controller of the Borrower,
together with such supporting detail and documentation as shall be requested by
the Administrative Agent in its reasonable credit judgment;


 


(l)                                     on a regular basis as required the
Administrative Agent, a schedule of sales made, credits issued and cash
received;


 


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(m)                               upon request of the Administrative Agent,
within fifteen (15) days of such request, agings of accounts payable (and
including information indicating the status of payments to owners and lessors
of the leased premises of such Loan Parties);


 


(n)                                 as soon as possible after the end of each
month (but in any event within fifteen (15) days after the end thereof), on a
monthly basis or more frequently as the Administrative Agent may request,
agings of Accounts (together with a reconciliation to the previous month’s
aging and general ledger);


 


(o)                                 upon the Administrative Agent’s request, (A) copies
of customer statements and credit memos, remittance advices and reports, and
copies of deposit slips and bank statements, (B) copies of shipping and
delivery documents, (C) copies of purchase orders, invoices and delivery
documents for Inventory and Equipment acquired by the Loan Parties, and (D) copies
of Material Contracts entered into after the Closing Date; and


 


(p)                                 such other reports as to the Collateral
as the Administrative Agent or Required Lenders shall request from time to
time; and


 


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


 


Documents required to be
delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c) (to
the extent any such documents are included in materials otherwise filed with
the SEC) may be delivered electronically and if so delivered, shall be deemed
to have been delivered on the date (i) on which the Borrower posts such
documents, or provides a link thereto on the Borrower’s website on the Internet
at the website address listed on Schedule 10.02; or (ii) on which
such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: 
(i) the Borrower shall deliver paper copies of such documents to
the Administrative Agent or any Lender that requests the Borrower to deliver
such paper copies until a written request to cease delivering paper copies is
given by the Administrative Agent or such Lender and (ii) the Borrower
shall notify the Administrative Agent and each Lender (by telecopier or
electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft
copies) of such documents. 
Notwithstanding anything contained herein, in every instance the
Borrower shall be required to provide paper copies of the Compliance
Certificates required by Section 6.02(a) to the Administrative
Agent.  Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.


 


The Borrower hereby
acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuer materials and/or information 


 


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provided by or on behalf of the Borrower
hereunder (collectively, “Borrower Materials”) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”)
and (b) certain of the Lenders (each, a “Public Lender”) may have
personnel who do not wish to receive material non-public information with
respect to the Borrower or its Affiliates, or the respective securities of any
of the foregoing, and who may be engaged in investment and other market-related
activities with respect to such Persons’ securities.  The Borrower hereby agrees that it will use
commercially reasonable efforts to identify that portion of the Borrower Materials
that may be distributed to the Public Lenders and that (w) all such
Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at
a minimum, shall mean that the word “PUBLIC” shall appear prominently on the
first page thereof; (x) by marking Borrower Materials “PUBLIC,” the
Borrower shall be deemed to have authorized the Administrative Agent, the
Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as
not containing any material non-public information (although it may be
sensitive and proprietary) with respect to the Borrower or its securities for
purposes of United States Federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall
be treated as set forth in Section 10.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Side Information;” and (z) the
Administrative Agent and the Arranger shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” as being suitable only for posting on a
portion of the Platform not designated “Public Side Information.”


 


6.03.                     Notices. 
Promptly notify the Administrative Agent and each Lender:


 


(a)                                  of the occurrence of any Default or Event
of Default;


 


(b)                                 of any matter that has resulted or could
reasonably be expected to result in a Material Adverse Effect, including (i) breach
or non-performance of, or any default under, a Contractual Obligation of the
Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Borrower or any Subsidiary and any
Governmental Authority; (iii) the commencement of, or any material
development in, any litigation or proceeding affecting the Borrower or any
Subsidiary, including pursuant to any applicable Environmental Laws; (iv) any
loss, damage, investigation, action, suit, proceeding or claim relating to the
Collateral or any other property which is security for the Obligations or which
would result in any material adverse change in any Loan Party’s business,
properties, assets, goodwill or condition, financial or otherwise, (v) any
Material Contract of any Loan Party being terminated or amended or any new
Material Contract entered into (in which event the Loan Parties shall provide
the Administrative Agent with a copy of such Material Contract), (vi) any
order, judgment or decree in excess of $1,000,000 in any one case or in the
aggregate shall have been entered against any Loan Party or any of its
properties or assets, and (vii) any notification of violation of laws or
regulations received by any Loan Party;


 


(c)                                  of the occurrence of any ERISA Event;


 


(d)                                 of any material change in accounting
policies or financial reporting practices by any Loan Party or any Subsidiary
thereof, including any determination by
the Borrower referred to in Section 2.10(b); and


 


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(e)                                  of the (i) occurrence of any
Disposition of property or assets for which the Borrower is required to make a
mandatory prepayment pursuant to Section 2.05(b)(ii), (ii) occurrence
of any sale of capital stock or other Equity Interests for which the Borrower
is required to make a mandatory prepayment pursuant to Section 2.05(b)(iii),
(iii) incurrence or issuance of any Indebtedness for which the Borrower is
required to make a mandatory prepayment pursuant to Section 2.05(b)(iv),
and (iv) receipt of any Extraordinary Receipt for which the Borrower is
required to make a mandatory prepayment pursuant to Section 2.05(b)(v).


 


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


 


6.04.                     Payment of Obligations. 
Pay and discharge as the same shall become due and payable, all its
obligations and liabilities, including (a) all tax liabilities,
assessments and governmental charges or levies upon it or its properties or
assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the Borrower or such Subsidiary; (b) all lawful
claims which, if unpaid, would by law become a Lien upon its property; and (c) all
Indebtedness, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing such
Indebtedness.  The Loan Parties shall be
liable for any tax or penalties withheld from or imposed on any Secured Party
as a result of the financing arrangements provided for herein and the Loan
Parties agree to indemnify and hold each Secured Party harmless with respect to
the foregoing, and to repay to each Secured Party on demand the amount thereof,
and until paid by the Loan Parties such amount shall be added and deemed part
of the Obligations. The foregoing indemnity shall survive the payment of the
Obligations and the termination or non-renewal of this Agreement.


 


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


 


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


 


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6.07.                     Maintenance of Insurance. 
Maintain with financially sound and reputable insurers insurance with
respect to the Collateral against loss or damage and all other insurance of the
kinds and in the amounts customarily insured against or carried by corporations
of established reputation engaged in the same or similar businesses and
similarly situated. Said policies of insurance shall be satisfactory to the
Administrative Agent as to form, amount and insurer. The Loan Parties shall
furnish certificates, policies or endorsements to the Administrative Agent as
such Administrative Agent shall require as proof of such insurance, and, if the
Loan Parties fail to do so, the Administrative Agent is authorized, but not required,
to obtain such insurance at the expense of the Loan Parties. All policies shall
provide for at least thirty (30) days prior written notice to the
Administrative Agent of any cancellation or reduction of coverage and that the
Administrative Agent may act as attorney for the Loan Parties in obtaining, and
at any time a Default or an Event of Default exists or has occurred and is
continuing, adjusting, settling, amending and canceling such insurance.  The Loan Parties shall cause the
Administrative Agent to be named as a loss payee and an additional insured with
respect to the Collateral (without any liability for any premiums) under such
insurance policies and the Loan Parties shall obtain non-contributory lender’s
loss payable endorsements to all insurance policies in form and substance
satisfactory to the Administrative Agent. Such lender’s loss payable
endorsements shall specify that the proceeds of such insurance shall be payable
to the Administrative Agent as its interests may appear and further specify
that the Administrative Agent shall be paid regardless of any act or omission
by a Loan Party or any of its Affiliates. At its option, the Administrative
Agent may apply any insurance proceeds received by the Administrative Agent at
any time to the cost of repairs or replacement of Collateral and/or to payment
of the Obligations, whether or not then due, in any order and in such manner as
such the Administrative Agent may determine or hold such proceeds as cash
collateral for the Obligations.


 


6.08.                     Compliance with Laws, Immediate Notice in
respect of Hazardous Material. 
(a) Comply in all material respects with all laws, rules,
regulations, licenses, permits, approvals and orders applicable to it and duly
observe all requirements of any foreign, Federal, State, or local Governmental
Authority, including ERISA, the Code, the Fair Labor Standards Act of 1938, as
amended, and all Environmental Laws if the failure to so comply could result in
the imposition of material fines or penalties or result in the revocation or
termination of any material license, permit, order or approval of any
Governmental Authority or could otherwise materially and adversely affect the
business, assets or prospects of the Loan Parties on a consolidated basis; and


 


(b)                                 Give written notice to each
Administrative Agent immediately upon any Loan Party’s receipt of any notice
of, or any Loan Party’s otherwise obtaining knowledge of, any of the following
which could result in the imposition of material fines or penalties or the
revocation or termination of any material license, permit, order or approval of
any Governmental Authority or could otherwise materially and adversely affect
the business, assets or prospects of Credit Parties on a consolidated basis, (i) the
occurrence of any event involving the release, spill or discharge, threatened
or actual, of any Hazardous Material or (ii) any investigation,
proceeding, complaint, order, directive, claims, citation or notice with
respect to: (A) any non-compliance with, violation of or liability under
any applicable Environmental Law by any Loan Party or (B) the release,
spill or discharge, threatened or actual, of any Hazardous Material. The Loan
Parties shall take prompt and appropriate action to respond to any such
noncompliance or potential 


 


88

















 


liability with any Environmental Laws and
shall regularly report to the Administrative Agent on such response. Copies of
all environmental surveys, audits, assessments, feasibility studies, results of
remedial investigations and other related information reasonably requested by
the Administrative Agent shall be promptly furnished, or caused to be
furnished, by the Loan Parties to the Administrative Agent.


 


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


 


6.10.                     Inspection Rights. 
Permit representatives and independent contractors of the Administrative
Agent and each Lender to visit and inspect any of its properties, to examine
its corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss its affairs, finances and accounts with its
directors, officers, and independent public accountants, all at the expense of the Borrower and at
such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrower; provided,
however, that when an Event of Default exists the Administrative Agent
or any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the Borrower at any
time during normal business hours and without advance notice.


 


6.11.                     Use of Proceeds. 
Use the proceeds of the Credit Extensions for general corporate purposes
and to finance ongoing working capital needs not in contravention of any Law or
of any Loan Document.


 


6.12.                     Covenant to Guarantee Obligations
and Give Security.  (a) Upon the formation or acquisition of
any new direct or indirect Subsidiary (other
than any CFC or a Subsidiary that is held directly or indirectly by a CFC)
by any Loan Party, then the Borrower shall, at the Borrower’s expense (and
subject to the terms of the Intercreditor Agreement):


 


(i)                                     within three (3) Business Days after
such formation or acquisition, cause such Subsidiary, and cause each direct and
indirect parent of such Subsidiary (if it has not already done so), to duly
execute and deliver to the Administrative Agent a guaranty or guaranty
supplement, in form and substance satisfactory to the Administrative Agent,
guaranteeing the other Loan Parties’ obligations under the Loan Documents,


 


(ii)                                  within three (3) Business Days after
such formation or acquisition, furnish to the Administrative Agent a
description of the real and personal properties of such Subsidiary, in detail
satisfactory to the Administrative Agent,


 


(iii)                               within three (3) Business Days after such
formation or acquisition, cause such Subsidiary and each direct and indirect
parent of such Subsidiary (if it has not already done so) to duly execute and
deliver to the Administrative Agent a security agreement, copyright security
agreement, patent security agreement and trademark 


 


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security agreement, as applicable, in form and substance satisfactory
to the Administrative Agent, securing the Loan Parties’ obligations under the
Loan Documents,


 


(iv)                              within three (3) Business Days after
such formation or acquisition, cause such Subsidiary and each direct and
indirect parent of such Subsidiary (if it has not already done so) to take
whatever action (including the filing of Uniform Commercial Code financing
statements) may be necessary or advisable in the opinion of the Administrative
Agent to vest in the Administrative Agent (or in any representative of the
Administrative Agent designated by it) valid and subsisting Liens on the
personal property subject to the Collateral Documents delivered pursuant to
this Section 6.12, enforceable against all third parties in
accordance with their terms, and


 


(v)                                 within three (3) Business Days after
such formation or acquisition, deliver to the Administrative Agent, upon the
request of the Administrative Agent in its sole discretion, a signed copy of a
favorable opinion, addressed to the Administrative Agent and the other Secured
Parties, of counsel for the Loan Parties acceptable to the Administrative Agent
as to the matters contained in clauses (i), (iii) and (iv) above,
and as to such other matters as the Administrative Agent may reasonably
request.


 


(b)                                 If the Loan Parties are required by Section 6.25
to provide to the Administrative Agent, on behalf of the Secured Parties,
Mortgages on their respective Mortgage Properties and any Loan Party shall
thereafter acquire any additional Mortgage Property, then the Borrower shall,
at the Borrower’s expense (and subject to the terms of the Intercreditor
Agreement), within three Business Days after the acquisition of such Mortgage
Property, deliver to the Administrative Agent with respect to such Mortgage
Property, a Mortgage, a Mortgage Policy and the other documents described in Section 6.25
with respect to the Mortgage Properties for which such documents are required
to be delivered under such Section.


 


(c)                                  At any time upon request of the
Administrative Agent, promptly execute and deliver any and all further
instruments and documents and take all such other action as the Administrative
Agent may deem necessary or desirable in obtaining the full benefits of, or (as
applicable) in perfecting and preserving the Liens of, such guaranties, deeds
of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages,
leasehold deeds of trust, supplements to Collateral Documents and other
security agreements.  All such actions in
this Section 6.12 shall be taken subject to the Intercreditor
Agreement.


 


6.13.                     Compliance with Environmental Laws. 
Comply, and cause all lessees and other Persons operating or occupying
its properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew all Environmental
Permits necessary for its operations and properties; and conduct any
investigation, study, sampling and testing, and undertake any cleanup, removal,
remedial or other action necessary to remove and clean up all Hazardous
Materials from any of its properties, in accordance with the requirements of
all Environmental Laws; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to undertake any such
cleanup, removal, remedial or other action to the extent that its obligation to
do so is being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such circumstances in
accordance with GAAP.


 


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6.14.                     Preparation of Environmental
Reports, Environmental Indemnity.  Whenever the
Administrative Agent reasonably determines that there is non-compliance, or any
condition which requires any action by or on behalf of the Loan Parties in
order to avoid any non-compliance with or liability under any Environmental Law
which, in either case, could reasonably be expected to result in aggregate
Environmental Liabilities of $30,000,000 in excess of reserves for such
liabilities then maintained by the Borrower and its Subsidiaries, within 60
days after the Administrative Agent’s request and at the Loan Parties’ expense:
(i) cause an independent environmental consultant acceptable to the
Administrative Agent to conduct such assessments and tests of the property and/or
facility where the Loan Parties’ non-compliance or alleged non-compliance has
occurred or conditions exist as deemed necessary to evaluate the nature, extent
and costs to address the matter and prepare and deliver to such Administrative
Agent a report setting forth the results and a proposed plan for response or
corrective action, and an estimate of the costs thereof; (ii) provide to
such Administrative Agent a supplemental report whenever the scope of the
matter, or the Loan Parties’ response thereto or the estimated costs thereof,
shall change in any material respect; and (iii) cause any Subsidiary that
owns any property described in such request to grant at the time of such
request to the Administrative Agent, the Lenders, such firm and any agents or representatives
thereof an irrevocable non-exclusive license, subject to the rights of tenants,
to enter onto their respective properties to undertake such an assessment; provided
that without limiting the generality of the foregoing, if the Administrative
Agent determines at any time that a material risk exists that any such report
will not be provided within the time referred to above, the Administrative
Agent may retain an environmental consulting firm to prepare such report at the
expense of the Borrower.


 


(b)                                 Indemnify and hold harmless each Secured
Party, and each of their respective directors, officers, employees, agents,
invitees, representatives, successors and assigns, from and against any and all
losses, claims, damages, liabilities, costs, and expenses (including reasonable
attorneys’ fees and legal expenses) arising out of or attributable to the use,
generation, manufacture, handling, recycling, storage, treatment, release,
threatened release, spill, discharge, disposal or presence of a Hazardous
Material, including the costs of any required or necessary repair, cleanup or
other remedial work, on, at, under or from current or former facility or
property owned or operated by the Loan Parties and the preparation and
implementation of any closure, remedial or other required plans unless and only
if the result of the gross negligence or willful misconduct of the indemnified
party. This indemnification shall survive the payment of the Obligations and
the termination or non-renewal of this Agreement.


 


6.15.                     Compliance with ERISA. 
Shall and shall cause each of their ERISA Affiliates to: (i) maintain
each Plan in compliance in all material respects with the applicable provisions
of ERISA, the Code and other Federal and State law; (ii) cause each Plan
which is qualified under Section 401(a) of the Code to maintain such
qualification; (iii) not terminate any of such Plans so as to incur any
liability to the Pension Benefit Guaranty Corporation; (iv) not allow or
suffer to exist any prohibited transaction involving any of such Plans or any
trust created thereunder which would subject Credit Party or such ERISA
Affiliate to a tax or penalty or other liability on prohibited transactions
imposed under Section 4975 of the Code or ERISA; (v) make all
required contributions to any Plan or Multiemployer Plan which it is obligated
to pay under Section 302 of ERISA, Section 412 of the Code or the
terms of such Plan or an applicable collective bargaining agreement; (vi) not
allow or suffer to exist any accumulated funding deficiency, whether or not
waived, with respect to any such Plan; and (vii) not allow or suffer to
exist any 


 


91

















 


occurrence of a reportable event or any other
event or condition which presents a material risk of termination by the Pension
Benefit Guaranty Corporation of any such Plan, which termination could result
in any liability to the Pension Benefit Guaranty Corporation.


 


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


 


6.17.                     Compliance with Terms of
Leaseholds.  Make all payments and otherwise perform all
obligations in respect of all leases of Real Property to which the Borrower or
any of its Subsidiaries is a party, keep such leases in full force and effect
and not allow such leases to lapse or be terminated or any rights to renew such
leases to be forfeited or cancelled, notify the Administrative Agent of any
default by any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default, and cause each
of its Subsidiaries to do so, except, in any case, where the failure to do so,
either individually or in the aggregate, could not be reasonably likely to have
a Material Adverse Effect.


 


6.18.                     License Agreements.  (a) (i) Promptly
and faithfully observe and perform all of the material terms, covenants,
conditions and provisions of the material License Agreements to be observed and
performed by it, at the times set forth therein, if any, (ii) not do,
permit, suffer or refrain from doing anything that could reasonably be expected
to result in a default under or breach of any of the terms of any material
License Agreement, (iii) not cancel, surrender, modify, amend, waive or
release any material License Agreement in any material respect or any term,
provision or right of the licensee thereunder in any material respect, or
consent to or permit to occur any of the foregoing; except that, subject to Section 6.19(b),
the Loan Parties and any of their Subsidiaries may cancel, surrender or release
any material License Agreement in the ordinary course of the business of such
Loan Party or Subsidiary; provided that
the Loan Parties shall give the Administrative Agent not less than thirty (30)
days prior written notice of their intention to so cancel, surrender and
release any such material License Agreement, (iv) give the Administrative
Agent prompt written notice of any material License Agreement entered into by
any Loan Party after the Closing Date, together with a true, correct and
complete copy thereof and such other information with respect thereto as the
Administrative Agent may request, (v) give the Administrative Agent prompt
written notice of any material breach of any obligation, or any default, by any
party under any material License Agreement, and deliver to the 


 


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Administrative Agent (promptly upon the
receipt thereof by Loan Party in the case of a notice to any Loan Party, and
concurrently with the sending thereof in the case of a notice from any Loan
Party) a copy of each notice of default and every other notice and other
communication received or delivered by any Loan Party in connection with any
material License Agreement which relates to the right of a Loan Party to
continue to use the property subject to such License Agreement, and (vi) furnish
to the Administrative Agent, promptly upon the request of the Administrative
Agent, such information and evidence as the Administrative Agent may require
from time to time concerning the observance, performance and compliance by any
Credit Party or the other party or parties thereto with the terms, covenants or
provisions of any material License Agreement.


 


(b)                                 Either exercise any option to renew or
extend the term of each material License Agreement in such manner as will cause
the term of such material License Agreement to be effectively renewed or extended
for the period provided by such option and give prompt written notice thereof
to the Administrative Agent or give the Administrative Agent prior written
notice that Loan Parties do not intend to renew or extend the term of any such
material License Agreement or that the term thereof shall otherwise be
expiring, not less than sixty (60) days prior to the date of any such
non-renewal or expiration. In the event of the failure of the Loan Parties to
extend or renew any material License Agreement, the Administrative Agent shall
have, and is hereby granted, the irrevocable right and authority, at its
option, to renew or extend the term of such material License Agreement, whether
in its own name and behalf, or in the name and behalf of a designee or nominee
of the Administrative Agent or in the name and behalf of the Loan Party, as the
Administrative Agent shall determine at any time that an Event of Default shall
exist or have occurred and be continuing. The Administrative Agent may, but
shall not be required to, perform any or all of such obligations of any Loan
Party under any of the License Agreements, including, but not limited to, the
payment of any or all sums due from Loan Party thereunder. Any sums so paid by
the Administrative Agent shall constitute part of the Obligations.


 


6.19.                     Material Contracts. 
Perform and observe all the terms and provisions of each Material
Contract to be performed or observed by it, maintain each such Material
Contract in full force and effect, enforce each such Material Contract in
accordance with its terms, take all such action to such end as may be from time
to time requested by the Administrative Agent and, upon request of the
Administrative Agent, make to each other party to each such Material Contract
such demands and requests for information and reports or for action as any Loan
Party or any of its Subsidiaries is entitled to make under such Material
Contract, and cause each of its Subsidiaries to do so.


 


6.20.                     Costs and Expenses. 
Pay to the Administrative Agent on demand all costs, expenses, filing
fees and taxes paid or payable in connection with the preparation, negotiation,
execution, delivery, recording, administration, collection, liquidation,
enforcement and defense of the applicable Obligations, Secured Parties’ rights
in the Collateral, this Agreement, the other Loan Documents and all other
documents related hereto or thereto, including any amendments, supplements or
consents which may hereafter be contemplated (whether or not executed) or
entered into in respect hereof and thereof, including: (a) all costs and
expenses of filing or recording (including Uniform Commercial Code financing
statement filing taxes and fees, documentary taxes, intangibles taxes and
mortgage recording taxes and fees, if applicable); (b)


 


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costs and expenses and fees for due
diligence, insurance premiums, environmental audits, surveys, assessments,
engineering reports and inspections, appraisal fees and search fees, costs and
expenses of remitting loan proceeds, collecting checks and other items of
payment, and establishing and maintaining blocked accounts, together with the
Administrative Agent’s customary charges and fees with respect thereto; (c) charges,
fees or expenses charged by any bank or issuer in connection with the L/C
Obligations; (d) costs and expenses of preserving and protecting the
Collateral; (e) costs and expenses paid or incurred by Secured Parties in
connection with obtaining payment of the Obligations, enforcing the security
interests and Liens of the Administrative Agent, selling or otherwise realizing
upon the Collateral, and otherwise enforcing the provisions of this Agreement
and the other Loan Documents or defending any claims made or threatened against
the Administrative Agent or any Lender arising out of the transactions
contemplated hereby and thereby (including preparations for and consultations
concerning any such matters); (f) all out-of-pocket expenses and costs
heretofore and from time to time hereafter incurred by the Administrative Agent
during the course of periodic field examinations of the Collateral and the Loan
Parties’ operations, plus a per diem charge at the rate of $750 per person per
day for the Administrative Agent’s examiners in the field and office; and (g) the
fees and disbursements of counsel (including legal assistants) to the
Administrative Agent and, if an Event of Default under Section 8.01
of this Agreement has occurred and is continuing, Lenders, in connection with
any of the foregoing.


 


6.21.                     Cash Collateral Accounts. 
Maintain, and cause each of the other Loan Parties to maintain, all Cash
Collateral Accounts with Bank of America or another commercial bank approved by
the Administrative Agent, which has accepted the assignment of such accounts to
the Administrative Agent for the benefit of the Secured Parties pursuant to the
terms of the Security Agreement.


 


6.22.                     Cash Management Arrangements. 
For the purposes of assuring the Administrative Agent’s and Secured
Parties’ first priority, subject to Liens permitted by Section 7.01
and the provisions of the Intercreditor Agreement, secured position in proceeds
of the Collateral, maintain, and cause each of the other Loan Parties to
maintain the Administrative Agent as the Loan Parties’ principal depository
bank for the maintenance of operating and deposit accounts, lockbox
administration, funds transfer, information reporting services and other
treasury management services, and further, to cause all proceeds of Accounts
Collateral to be deposited in deposit accounts subject to springing Control
Agreements, provided that the Administrative Agent would not exercise its
rights of dominion over such deposits accounts unless excess cash on hand falls
below $50,000,000 or upon any Event of Default under this Agreement; provided,
that deposit accounts exclusively used for funding zero
balance disbursement deposit accounts in respect of payroll, payroll taxes and
other employee wage and benefit payments and other deposit accounts the average daily balance of which do not contain
more than $1,000,000 in the aggregate at any time, need not be subject to such
a Control Agreement.


 


6.23.                     Information Regarding Collateral.


 


(a)                                  Concurrently with the delivery of
financial statements pursuant to Section 6.01 hereof, deliver to
the Administrative Agent a Perfection Certificate supplement, and a certificate
of a financial officer and the chief legal officer of the Borrower certifying
that all UCC 


 


94

















 


financing statements (including fixture
filings, as applicable) or other appropriate filings, recordings or
registrations, including all refilings, rerecordings and reregistrations,
containing a description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction
necessary to protect and perfect the security interests and Liens under the
Collateral Documents for a period of not less than 18 months after the date of
such certificate (except as noted therein with respect to any continuation
statements to be filed within such period).


 


6.24.                     Anti-Terrorism Law; Anti-Money
Laundering.


 


(a)                                  Not, directly or indirectly, (i) knowingly
conduct any business or engage in making or receiving any contribution of funds,
goods or services to or for the benefit of any person described in Section 5.28,
(ii) knowingly deal in, or otherwise engage in any transaction relating
to, any property or interests in property blocked pursuant to the Order or any
other Anti-Terrorism Law or (iii) knowingly engage in or conspire to
engage in any transaction that evades or avoids, or has the purpose of evading
or avoiding, or attempts to violate, any of the prohibitions set forth in any
Anti-Terrorism Law (and the Loan Parties shall deliver to the Lenders any
certification or other evidence requested from time to time by any Lender in
its reasonable discretion, confirming the Loan Parties’ compliance with this Section 6.24);
and


 


(b)                                 Not cause or permit any of the funds of
such Loan Party that are used to repay Obligations to be derived from any
unlawful activity with the result that the making of the Loans would be in
violation of law.


 


6.25.                     Mortgages.


 


(a)                                  Enter into any mortgage, deeds of trust,
trust deeds, deeds to secure debt, mortgages, leasehold mortgages and leasehold
deeds of trust or any other document (each such document, a “Mortgage”)
to secure a Lien with respect to any Mortgage Property in favor of the
Administrative Agent on behalf of the Secured Parties and for which a Mortgage
is provided as part of the Senior High Yield Debt Documents or the Other
Secured Debt Documents in connection with the incurrence of the Senior High
Yield Debt or Other Secured Debt.  In the
event the Borrower or any of the other Loan Parties do not enter into or incur
the Senior High Yield Debt or Other Secured Debt, the Borrower shall not, and
shall not permit any of the other Loan Parties to, enter into any mortgage,
deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold
mortgages and leasehold deeds of trust or any other document to secure a Lien
with respect to real property in favor of any other party without the prior
written consent of the Administrative Agent.


 


(b)                                 If any Loan Party shall become required
to deliver to the Administrative Agent, for the benefit of the Secured Parties,
any Mortgage on a Mortgage Property in accordance with Section 6.25(a),
then the Borrower shall, at the Borrower’s expense (and subject to the terms of
the Intercreditor Agreement), concurrently with the delivery of such Mortgage:


 


(i)                                     Furnish to the Administrative Agent a
description of such Mortgage Property in detail satisfactory to the
Administrative Agent,


 


95

















 


(ii)                                  Cause the applicable Loan Party to duly
execute and deliver to the Administrative Agent, in addition to the Mortgage,
supplements to the Collateral Documents and security agreements, as specified
by and in form and substance satisfactory to the Administrative Agent, securing
payment of all the Obligations under the Loan Documents and constituting Liens
on such Mortgage Property,


 


(iii)                               Cause the applicable Loan Party to take, whatever
action (including the recording of mortgages, the filing of Uniform Commercial
Code financing statements, the giving of notices and the endorsement of notices
on title documents) may be necessary or advisable in the opinion of the
Administrative Agent to vest in the Administrative Agent (or in any
representative of the Administrative Agent designated by it) valid and
subsisting Liens on such Mortgage Property enforceable against all third
parties in accordance with their terms,


 


(iv)                              Deliver to the Administrative Agent (or
any representative of the Administrative Agent designated by it) a mortgage
title insurance policy (the “Mortgage Policy”) relating to the Mortgage
encumbering such Mortgage Property assuring the Administrative Agent that the
Mortgage is a valid and enforceable first priority (subject to Liens permitted
by Section 7.01 and the provisions of the Intercreditor Agreement)
on all right, title and interest of the respective Loan Party in the Mortgage
Property described therein;


 


(v)                                 Deliver to the Administrative Agent, upon
the request of the Administrative Agent in its sole discretion, a signed copy
of a favorable opinion, addressed to the Administrative Agent and the other
Secured Parties, of counsel for the Loan Parties acceptable to the
Administrative Agent as to the matters contained in clauses (ii) and (iii) above,
and as to such other matters as the Administrative Agent may reasonably
request, and


 


(vi)                              Deliver, upon the request of the
Administrative Agent in its sole discretion, to the Administrative Agent with
respect to such Mortgage Property, title reports, surveys and engineering,
soils and other reports, and environmental assessment reports from an
environmental consulting firm acceptable to the Administrative Agent, which
report shall identify existing and potential environmental concerns and shall
quantify related costs and liabilities, associated with such Mortgage Property,
each in scope, form and substance satisfactory to the Administrative Agent, provided,
however, that to the
extent that any Loan Party or any of its Subsidiaries shall have otherwise
received any of the foregoing items with respect to such Mortgage Property,
such items shall, promptly after the receipt thereof, be delivered to the
Administrative Agent.


 


6.26.                     Control Agreements. 
Enter into, at the request of the Administrative Agent, a Control
Agreement with respect to any deposit account or securities account, such
agreement to be in form and substance satisfactory to the Administrative Agent.


 


6.27.                     The Acquisition. 
Enter into and complete the Acquisition, within five (5) Business
Days of the Closing Date, subject to the following conditions:


 


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(a)                                  The Acquisition
will be consummated in accordance with the Acquisition Agreement and applicable
Law.


 


(b)                                 The Acquisition
Agreement shall be in full force and effect.


 


(c)                                  The Acquisition
shall be consummated in accordance with the terms of the Acquisition Agreement,
without any waiver or amendment not consented to by the Lenders of any material
term, provision or condition set forth therein, and in compliance with all applicable
requirements of Law, and the Borrower shall provide to the Administrative Agent
before the close of business on the closing date of the Acquisition: (1) 
a signed and dated, filed copy of the Articles of Arrangement duly filed with
the Registrar of Corporations of the Province of Alberta together with Proof of
Filing from the Registrar of Corporations of the Province of Alberta of the
Arrangement pursuant to which all of the outstanding capital stock of the
Target Company shall have been acquired by Clean Harbors Industrial Services
Canada, Inc. (“Acquireco”), which is a wholly owned indirect
Subsidiary of the Borrower organized under the laws of Alberta for purposes of
the Acquisition; and (2) a certified copy of the Certificate and Articles
of Amalgamation from the Registrar of Corporations of the Province of Alberta
of the amalgamation of the Target Company and Acquireco, with the name of the
amalgamated company to be the same as that of Acquireco.


 


(d)                                 The Administrative Agent shall be
satisfied with the Borrower’s corporate, capital and ownership structure after
giving effect to the Acquisition.


 


(e)                                  All applicable waiting periods in
connection with the Acquisition have expired without any action having been
taken by any Governmental Authority restraining, preventing or imposing
materially adverse conditions upon the Transactions or the rights of the Loan
Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to
create any Lien on, any properties now owned or hereafter acquired by any of
them.


 


(f)                                    The Administrative Agent’s receipt of a
certificate of a Responsible Officer of each Loan Party either (A) attaching
copies of all consents, licenses and approvals required in connection with the
consummation of the Acquisition (including, governmental, shareholder and third
party consents such as clearance under the Hart-Scott Rodino Act) and the
execution, delivery and performance by such Loan Party and the validity against
such Loan Party of the Acquisition Agreement to which it is a party, and such
consents, licenses and approvals shall be in full force and effect, or (B) stating
that no such consents, licenses or approvals are so required.


 


(g)                                 The Administrative Agent’s receipt of
certified copies of each of the Related Documents, such Related Documents to be
in form and substance satisfactory to the Administrative Agent, duly executed
by the parties thereto, together with all agreements, instruments and other
documents delivered in connection therewith as the Administrative Agent shall
request.


 


6.28.                     Intellectual Property
Security Agreements.  Deliver the Copyright Security
Agreement, Trademark Security Agreement and Patent Security Agreement pursuant
to the requirements set forth in the Security Agreement, including, without limitation,
Section 4.4 therein.


 


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ARTICLE VII.

NEGATIVE COVENANTS


 


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


 


7.01.                     Liens. 
Create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, or sign
or file or suffer to exist under the Uniform Commercial Code of any
jurisdiction a financing statement that names the Borrower or any of its
Subsidiaries as debtor, or assign any accounts or other right to receive income,
other than the following:


 


(a)                                  Liens pursuant to any Loan Document;


 


(b)                                 Liens existing on the date hereof and
listed on Schedule 5.08(b) and any renewals or extensions thereof, provided
that (i) the property covered thereby is not changed, (ii) the amount
secured or benefited thereby is not increased except as contemplated by Section 7.02(d),
(iii) the direct or any contingent obligor with respect thereto is not
changed, and (iv) any renewal or extension of the obligations secured or
benefited thereby is permitted by Section 7.02(d);


 


(c)                                  Liens for taxes not yet due or which are
being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP and in each case prior
to the commencement of a foreclosure or other similar proceeding;


 


(d)                                 carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary
course of business to the extent: (i) such Liens secure Indebtedness which
is not overdue or (ii) such Liens secure Indebtedness relating to claims
or liabilities which are fully insured and being defended at the sole cost and
expense and at the sole risk of the insurer or being contested in good faith by
appropriate proceedings diligently pursued and available to the Borrower or any
Subsidiary, in each case prior to the commencement of foreclosure or other
similar proceedings and with respect to which adequate reserves have been set aside
on the books of the applicable Person;


 


(e)                                  pledges or deposits in the ordinary
course of business in connection with workers’ compensation, unemployment
insurance and other social security legislation (other than any Lien imposed by
ERISA) including any Lien securing letters of credit issued in the ordinary
course of business consistent with past practice in connection therewith;


 


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


 


(g)                                 easements, rights-of-way, restrictions
and other similar encumbrances affecting real property which, in the aggregate,
are not substantial in amount, and which do not in any case 


 


98

















 


materially detract from the value of the
property subject thereto or materially interfere with the ordinary conduct of
the business of the applicable Person;


 


(h)                                 Liens securing judgments for the payment
of money not constituting an Event of Default under Section 8.01(h);


 


(i)                                     Liens securing Indebtedness permitted
under Section 7.02(f); provided that (i) such Liens do
not at any time encumber any property other than the property financed by such
Indebtedness and (ii) the Indebtedness secured thereby does not exceed the
cost or fair market value, whichever is lower, of the property being acquired
on the date of acquisition;


 


(j)                                     Liens shown on the title commitments for
title insurance policies delivered under the Existing Credit Agreement;


 


(k)                                  Liens securing the Canadian Target Debt;


 


(l)                                     Liens securing the Initial Senior High
Yield Debt and Other Secured Debt (in each case, subject to the terms of the
applicable Intercreditor Agreement);


 


(m)                               other Liens securing Indebtedness
outstanding in an aggregate principal amount not to exceed $50,000,000, provided
that no such Lien shall extend to or cover any Collateral;


 


(n)                                 Liens securing Other Permitted Canadian
Debt; and


 


(o)                                 Liens on acquired assets which secured
Acquired Indebtedness which existed prior to the related acquisition, merger or
consolidation.


 


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


 


(a)                                  obligations (contingent or otherwise)
existing or arising under any Swap Contract, provided that (i) such
obligations are (or were) entered into by such Person in the ordinary course of
business and (ii) such Swap Contract does not contain any provision
exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party;


 


(b)                                 Indebtedness owed by a Loan Party to any
other Loan Party which Indebtedness (x) is hereby subordinated to the
prior indefeasible payment in full in cash of the Obligations, (y) is
represented by an Instrument in form satisfactory to the Administrative Agent
and delivered to the Administrative Agent pursuant to the Security Agreement;
and (z) is otherwise permitted under the provisions of Section 7.03;


 


(c)                                  Indebtedness under the Loan Documents;


 


(d)                                 Indebtedness outstanding on the date
hereof and listed on Schedule 7.02; provided that (i) the
Loan Parties may only make regularly scheduled payments of principal and
interest in respect of such Indebtedness in accordance with the terms of the
agreement or instrument evidencing or giving rise to such Indebtedness as in
effect on the Closing Date, (ii) the Loan Parties shall not, directly or
indirectly, (A) amend, modify, alter or change the terms of such 


 


99

















 


Indebtedness or any agreement, document or
instrument related thereto as in effect on the Closing Date except that the
Loan Parties may, after prior written notice to the Administrative Agent on
behalf of the Secured Parties, amend, modify, alter or change the terms thereof
so as to extend the maturity thereof, or defer the timing of any payments in
respect thereof, or to forgive or cancel any portion of such Indebtedness
(other than pursuant to payments thereof), or to reduce the interest rate or
any fees in connection therewith, or (B) redeem, retire, defease, purchase
or otherwise acquire such Indebtedness, or set aside or otherwise deposit or
invest any sums for such purpose, and (iii) the Loan Parties shall furnish
to the Administrative Agent all notices or demands in connection with such
Indebtedness either received by the any Loan Party or on its behalf, promptly
after the receipt thereof, or sent by any Loan Party or on its behalf,
concurrently with the sending thereof, as the case may be;


 


(e)                                  Guarantees of any Guarantor in respect of Indebtedness otherwise permitted hereunder
of the Borrower;


 


(f)                                    purchase money Indebtedness (including
Capitalized Leases) arising after the Closing Date to the extent secured by
purchase money security interests in Equipment (including Capitalized Leases)
and purchase money mortgages on Real Property not to exceed $25,000,000 in the
aggregate at any time outstanding (excluding such Indebtedness outstanding on
the Closing Date) so long as such security interests and mortgages do not apply
to any property of the Borrower or its Subsidiaries other than the Equipment or
Real Property so acquired, and the Indebtedness secured thereby does not exceed
the cost of the Equipment or Real Property so acquired, as the case may be;


 


(g)                                 Indebtedness of the Loan Parties in
respect of performance bonds, bankers’ acceptances, workers’ compensation
claims, surety or appeal bonds, payment obligations in connection with
self-insurance or similar obligations, and in the ordinary course of business;


 


(h)                                 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,
however, that such Indebtedness is
extinguished within five Business Days of incurrence;


 


(i)                                     other unsecured Indebtedness of the Loan
Parties in an aggregate principal amount not to exceed $20,000,000 at any time
outstanding;


 


(j)                                     so long as no Default exists immediately
prior to or after giving effect to the incurrence thereof, Subordinated
Indebtedness, to the extent that the Net Cash Proceeds of such Subordinated
Indebtedness are used to pay, substantially contemporaneously with the
incurrence thereof, consideration for one or more Permitted Acquisitions,
Indebtedness of any Person(s) acquired in such Permitted Acquisition or
Permitted Acquisitions or any fees or expenses incurred in connection therewith
and any such Permitted Acquisition is made in compliance with the requirements
set forth in the definition thereof;


 


(k)                                  as to the Target Company and its Subsidiaries,
and any other Canadian Subsidiaries of the Borrower to the extent they may
become parties to the Canadian Target Debt


 


100
















 


Agreement,
Canadian Target Debt in an aggregate principal amount at any time outstanding
of not more than Cdn $245 million;


 


(l)                                     so long as no Default or Event of Default
exists immediately prior to or after giving effect to the incurrence thereof,
the Senior High Yield Debt, provided  that prior to or upon the
incurrence of the Initial Senior High Yield Debt, the Borrower pays off in full
the then outstanding Canadian Target Debt with the proceeds of the Initial
Senior High Yield Debt;


 


(m)                               so long as (i) no Default or Event
of Default exists immediately prior to or after giving effect to the incurrence
thereof, and (ii) after giving effect to the incurrence thereof on a pro
forma basis, the Borrower’s Consolidated Fixed Charge Coverage Ratio is greater
than 3.00:1.00, the Borrower and Guarantors may incur Other Secured Debt;


 


(n)                                 so long as (i) no Default or Event
of Default exists immediately prior to or after giving effect to the incurrence
thereof, and (ii) after giving effect to the incurrence thereof on a pro
forma basis, the Borrower’s Consolidated Fixed Charge Coverage Ratio is greater
than 2.00:1.00, the Borrower and Guarantors may incur other unsecured
Indebtedness, and the Borrower and its Subsidiaries may incur Acquired
Indebtedness; and


 


(o)                                 so long as no Default or Event of Default
exists immediately prior to or after giving effect to the incurrence thereof,
the Canadian Subsidiaries may incur Other Permitted Canadian Debt.


 


7.03.                     Investments. 
Make or hold any Investments, except:


 


(a)                                  the endorsement of instruments for
collection or deposit in the ordinary course of business


 


(b)                                 Investments in cash or Cash Equivalents, provided that (i) not more than $5.0 million aggregate
principal amount of Revolving Loans are then outstanding and (ii) the terms
and conditions of Section 6.22, if applicable, hereof shall have
been satisfied with respect to the deposit account or investment account in
which such cash or Cash Equivalents are held;


 


(c)                                  (1) the existing Investments of the
Loan Parties in other Loan Parties, (2) the existing Investments of Loan
Parties in any Person which is not a Loan Party as of the Closing Date set
forth on Schedule 7.03(c), (3) additional Investments made by the
Borrower or any other Loan Party after the Closing Date in or to another Loan
Party in the ordinary course of business, (4) the Investments in the
Target Company and its Subsidiaries made as part of the Acquisition; (5) any
Investments made by Canadian Subsidiaries provided such Investments are not in
violation of the Canadian Target Debt Agreement or any Other Permitted Canadian
Debt Documents, and (6) additional Investments in the ordinary course of
business by the Borrower or any other Loan Party in or to its respective
wholly-owned Subsidiaries organized outside of the United States; provided
that, no Default or Event of Default shall exist immediately prior to or
after giving effect to such Investments; provided  further that
the aggregate amount of all such additional Investments by any Loan Party in
any such Subsidiaries organized outside of the United States (exclusive of
Investments incurred in connection with arranging financial assurances required
under applicable Environmental Laws) shall not exceed:


 


101

















 


(i)                                     in the case of Canadian Subsidiaries, (a) if
Liquidity is less than $100,000,000 but greater than $50,000,000, $25,000,000
at any time outstanding, or (b) if Liquidity is less than $50,000,000,
such amount that the Administrative Agent and Required Lenders consent to in
their discretion; or


 


(ii)                                  in the case of any other Subsidiary
organized outside of the United States, $10,000,000 at any time outstanding;


 


provided further that, after giving effect to any Investment made
pursuant to this Section 7.03(c)(6)(i) in Canadian
Subsidiaries, (y) the Borrower shall be in compliance with the financial
covenants set forth in Section 7.11 after giving effect to such
Investment on a pro forma basis, and (z) the difference between Liquidity
less such Investment in any Canadian Subsidiaries shall not be less than
$50,000,000;


 


(d)                                 Permitted Acquisitions;


 


(e)                                  stock or obligations issued to the Loan
Parties by any Person (or the representative of such Person) in respect of
Indebtedness of such Person owing to the Loan Parties in connection with the
insolvency, bankruptcy, receivership or reorganization of such Person or a
composition or readjustment of the debts of such Person; provided
that the original of any such stock or instrument evidencing such obligations
shall be promptly delivered to the Administrative Agent, upon the
Administrative Agent’s request, together with such stock power, assignment or
endorsement by the Loan Parties as the Administrative Agent may request;


 


(f)                                    obligations of account debtors to Loan
Parties arising from Accounts which are past due evidenced by a promissory note
made by such account debtor payable to the Loan Parties; provided
that promptly upon the receipt of the original of any such promissory note by
the Loan Parties, such promissory note shall be endorsed to the order of the
Administrative Agent by the Loan Parties and promptly delivered to the
Administrative Agent as so endorsed;


 


(g)                                 Guarantees permitted by Section 7.02;


 


(h)                                 Investments existing on the date hereof
(other than those referred to in Section 7.03(c)(1)) and set forth
on Schedule 5.08(e); provided that as to such loans and advances, (i) the
Loan Parties shall not, directly or indirectly, amend, modify, alter or change
the terms of such loans and advances or any agreement, document or instrument
related thereto, and (ii) the Loan Parties shall furnish to the
Administrative Agent all notices or demands in connection with such loans and
advances either received by any Loan Party or on its behalf, promptly after the
receipt thereof, or sent by any Loan Party or on its behalf, concurrently with
the sending thereof, as the case may be; and


 


(i)                                     Investments comprising solely of the
Applicable Properties in the Applicable Property Entities; and


 


(j)                                     other Investments that do not exceed
$25,000,000 in the aggregate at any one time outstanding.


 


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


 


(a)                                  (i) any Loan Party (other than the
Borrower) may be merged into, consolidated with, or amalgamated with any other
Loan Party, and (ii) any wholly-owned
Subsidiary of any Loan Party may be merged into such Loan Party;


 


(b)                                 any Subsidiary
may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to
the Borrower or to another Loan Party;


 


(c)                                  any Subsidiary that is not a Loan Party
may be merged into, consolidated with, or amalgamated with, or may dispose of
all or substantially all its assets (including any Disposition that is in the
nature of a liquidation) with or to (i) another Subsidiary that is not a
Loan Party or (ii) to a Loan Party;
and


 


(d)                                 in connection with any acquisition
permitted under Section 7.03, any Subsidiary of the Borrower may
merge into or consolidate with any other Person or permit any other Person to
merge into or consolidate with it; provided that (i) the Person
surviving such merger shall be a wholly-owned Subsidiary of the Borrower and (ii) in
the case of any such merger to which any Loan Party (other than the Borrower)
is a party, such Loan Party is the surviving Person.


 


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


 


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


 


(b)                                 the issuance and sale by the Borrower of
Equity Interests (other than Disqualified Equity Interests) of the Borrower on
and after the Closing Date;


 


(c)                                  leases of real or personal property in
the ordinary course of business in accordance with past practice and in
accordance with the Loan Documents;


 


(d)                                 provided that no Default or Event of
Default exists immediately prior to or after such Disposition, other
Dispositions not to exceed $20,000,000 in any twelve-month period; provided
that at least 80% of the consideration received in any such Disposition is in
the form of cash and Cash Equivalents;


 


(e)                                  Dispositions permitted by Section 7.04;


 


(f)                                    Dispositions involving property or assets
acquired in any acquisition by the Borrower or any of its Subsidiaries if such
disposition is required by any Governmental Authority having jurisdiction over
antitrust, competition or similar matters in connection with such acquisition;


 


103

















 


(g)                                 provided that no Default or Event of
Default exists immediately prior to or after such Disposition, Dispositions of
any Non-Accounts Collateral or assets not constituting Collateral by the
Borrower or any of its Subsidiaries so long as:


 


(i)                                     the Borrower or the applicable Subsidiary,
as the case may be, receives consideration at the time of such Disposition at
least equal to the fair market value of the assets sold or otherwise disposed
of (as determined in good faith by the Borrower’s senior management or, in the
case of a Disposition in excess of $25,000,000, the Borrower’s board of directors);


 


(ii)                                  at least 75% of the consideration
received by the Borrower or the Subsidiary, as the case may be, from such
Disposition shall be in the form of:


 


(A)                              cash or Cash Equivalents,


 


(B)                                properties and assets to be owned by the
Borrower or any of its Subsidiaries and used in a Permitted Business; or


 


(C)                                Equity Interests in one or more Persons
engaged in a Permitted Business that are or thereby become Subsidiaries of the
Borrower;


 


(iii)                               upon the consummation of such Disposition, the
Borrower will apply, or cause such Subsidiary to apply, the Net Cash Proceeds
relating to such Disposition within 365 days of receipt thereof to make an
Investment (i) in properties and assets that replace the properties and
assets that were the subject of such Disposition or (ii) in properties and
assets that will be used by the Borrower or a Subsidiary in a Permitted
Business (clauses (i) and (ii) collectively referred to as “Replacement
Assets”); and


 


(iv)                              the Net Cash Proceeds from any such
Disposition of Non-Accounts Collateral is paid as provided for in accordance
with the Senior High Yield Documents and the Intercreditor Agreement, to the
extent applicable;


 


(h)                                 Dispositions of equipment in connection
with the reinvestment in or the replacement thereof and disposals of worn-out
or obsolete equipment;


 


(i)                                     the grant in the ordinary course of
business of non-exclusive licenses to use any patents, trademarks and similar
intellectual property;


 


(j)                                     provided that no Default or Event of
Default exists immediately prior to or after such Disposition, the release,
surrender or waiver of contract, tort or other claims of any kind in the
ordinary course of business as a result of settlement of any litigation or
threatened litigation;


 


(k)                                  the granting or existence of Liens
permitted under Section 7.01; and


 


(l)                                     the making of any Investment permitted
under Section 7.05 or any Restricted Payment permitted under Section 7.06;


 


104

















 


provided, however,
that any Disposition pursuant to Section 7.05(a) through Section 7.05(l) shall
be for fair market value.


 


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


 


(a)                                  each Loan Party may make Restricted
Payments to the Borrower;


 


(b)                                 any Subsidiary of any Loan Party may make
Restricted Payments to such Loan Party or to any other Loan Party which is a
wholly-owned Subsidiary of the Borrower; provided that, if such Restricted Payment
is then subject to the provision of the Canadian Target Debt Agreement and/or
such Other Permitted Canadian Debt Document, such Restricted Payment is
permitted under the terms of the Canadian Target Debt Agreement and/or any
Other Permitted Canadian Debt Document;


 


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


 


(d)                                 the Borrower and each Subsidiary may
purchase, redeem or otherwise acquire its common Equity Interests with the
proceeds received from the substantially concurrent issue of new common Equity
Interests.


 


7.07.                     Change in Nature of Business. 
Engage in any business other than the business of the Loan Parties on
the Closing Date and any business reasonably related, ancillary or
complementary to the business in which the Loan Parties are engaged on the
Closing Date.


 


7.08.                     Transactions with Affiliates.  (a) Purchase,
acquire or lease any property from, or sell, transfer or lease any property to,
or enter into any other transaction with or for the benefit of any Affiliate of
any Loan Party or any officer, director, agent or any Loan Party, except in the
ordinary course of and pursuant to the reasonable requirements of any Loan
Party’s business and upon fair and reasonable terms no less favorable to such
Loan Party than such Loan Party would obtain in a comparable arm’s length
transaction with an unaffiliated Person, or (b) make any payments of
management, consulting or other fees for management or similar services, or of
any Indebtedness owing to any officer, employee, shareholder, director or other
Affiliate of any Loan Party except reasonable compensation to officers,
employees and directors for services rendered to Loan Parties in the ordinary
course of business.


 


7.09.                     Burdensome Agreements. 
Enter into or permit to exist any Contractual Obligation (other than
this Agreement, any other Loan Document, the Senior High Yield Documents, the
Other Secured Debt Documents, and, solely as to the Canadian Subsidiaries, the
Canadian Target Debt Documents and the Other Permitted Canadian Debt Documents)
that (a) limits the ability (i) of any Subsidiary to make Restricted
Payments to the Borrower or any Guarantor or to otherwise transfer property to
or invest in the Borrower or any Guarantor, except for any agreement in effect (A) on
the date hereof and set forth on Schedule 7.09 or (B) at the time
any Subsidiary becomes a Subsidiary of the Borrower, so long as such agreement
was not 


 


105

















 


entered into solely in contemplation of such
Person becoming a Subsidiary of the Borrower, (ii) of any Subsidiary to
Guarantee the Indebtedness of the Borrower or (iii) of the Borrower or any
Subsidiary to create, incur, assume or suffer to exist Liens on property of
such Person; provided, however, that this clause (iii) shall
not prohibit any negative pledge incurred or provided in favor of any holder of
Indebtedness permitted under Section 7.02(i) solely to the
extent any such negative pledge relates to the property financed by or the
subject of such Indebtedness; or (b) requires the grant of a Lien to
secure an obligation of such Person if a Lien is granted to secure another
obligation of such Person.


 


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


 


7.11.                     Financial Covenants.


 


(a)                                  Liquidity.


 


(i)                                     Permit Liquidity at any time to be less
than $25,000,000;


 


(ii)                                  To the extent Liquidity falls below
$50,000,000, the following covenants shall apply:


 


(A)                              The Borrower shall not permit the
Consolidated Fixed Charge Coverage Ratio as of the end of any fiscal quarter
calculated for the period consisting of the one fiscal quarter then ended of
the Borrower to be less than 1.00:1;


 


(B)                                If Excess Availability is less than 15%
of the sum of (i) the Outstanding Amount of Revolving Credit Loans and (ii) the
Outstanding Amount of L/C Obligations, the Borrower shall and shall cause its
Subsidiaries to deposit additional cash or Cash Equivalents into the
appropriate account to be included as Eligible Pledged Cash in an amount
sufficient to provide Excess Availability in an amount greater than 15% of the
sum of (i) the Outstanding Amount of Revolving Credit Loans and (ii) the
Outstanding Amount of L/C Obligations; and


 


(C)                                The Borrower shall not make any
Restricted Payments, prepay any Indebtedness (including optionally redeeming,
repurchasing or repaying any Senior High Yield Notes or Other Secured Debt), or
make any Permitted Acquisitions unless and until Liquidity is above
$50,000,0000 both before and after giving effect to such Restricted Payments,
prepayments of Indebtedness or Permitted Acquisition.


 


(iii)                               At all times, from and after the incurrence the Senior
High Yield Debt, permit Liquidity at any time to be less than $50,000,000.


 


106

















 


(b)                                 Consolidated Fixed Charge Coverage Ratio. 
Permit the Consolidated Fixed Charge Coverage Ratio as of the end of any
Measurement Period of the Borrower to be less than 1.00:1.


 


7.12.                     Amendments of Organization
Documents.  Terminate, amend, modify or change any of
its Organization Documents (including by the filing or modification of any
certificate of designation) or any agreement to which it is a party with
respect to its Equity Interests (including any stockholders’ agreement), or
enter into any new agreement with respect to its Equity Interests, other than
any such amendments, modifications or changes or such new agreements which are
not adverse in any material respect to the interests of the Lenders; provided
that the Borrower may issue such Equity Interests, so long as such issuance is
permitted or not prohibited by Section 7.06 or any other provision
of the Loan Documents, and may amend its Organization Documents to authorize
any such Equity Interests.


 


7.13.                     Accounting Changes. 
Make any change in (a) accounting policies or reporting practices,
except as required by GAAP, or (b) fiscal year.


 


7.14.                     Prepayments, Etc. of Indebtedness. 
Prepay, redeem, purchase, defease or otherwise satisfy prior to the
scheduled maturity thereof in any manner, or make any payment in violation of
any subordination terms of, any Indebtedness, except (a) the prepayment of
the Credit Extensions in accordance with the terms of this Agreement; (b) regularly
scheduled or required repayments or redemptions of Indebtedness set forth in Schedule
7.02 and refinancings and refundings of such Indebtedness in compliance
with Section 7.02(d); and (c) prepayments, redemptions or
repurchases of notes under the Senior High Yield Indenture, provided  that
such prepayments, redemptions or repurchases may be made only if minimum
Liquidity both before and after giving effect to each such prepayment,
redemption or repurchase shall be no less than $100,000,000.


 


7.15.                     Amendment, Etc. of Related
Documents.  (a)  Cancel or terminate any Related
Document or consent to or accept any cancellation or termination thereof, (b) amend,
modify or change in any manner any term or condition of any Related Document or
give any consent, waiver or approval thereunder, (c) waive any default
under or any breach of any term or condition of any Related Document, or (d) take
any other action in connection with any Related Document that would impair the
value of the interest or rights of any Loan Party thereunder or that would
impair the rights or interests of the Administrative Agent or any Lender.


 


7.16.                     Change of Name or Chief Executive
Office.


 


(a)                                  In the case of each Loan Party, change
its name unless each of the following conditions is satisfied: (i) the
Administrative Agent and the Lenders shall have received not less than thirty
(30) days’ prior written notice from a Loan Party of such proposed change in
its name, which notice shall accurately set forth the new name; and (ii) prior
to the filing thereof, the Administrative Agent and the Lenders shall have
received a copy of the proposed amendment to the certificate of incorporation,
certificate of formation or certificate of limited partnership or equivalent
document, as the case may be, of such Loan Party providing for the name change
and once the filing has been made, the Administrative Agent and the Lenders
shall receive a copy of such amendment to the certificate of incorporation,
certificate of formation or certificate of 


 


107

















 


limited partnership or equivalent document,
as the case may be, of such Loan Party certified by the Secretary of State of
the jurisdiction of incorporation or organization of such Loan Party as soon as
it is available.


 


(b)                                 In the case of each Loan Party, change
its chief executive office, its mailing address, organizational identification
number (or if it does not have one, shall not acquire one), identity or
corporate structure, or jurisdiction of organization unless the Administrative
Agent and the Lenders shall have received not less than thirty (30) days’ prior
written notice (or such shorter period as the Administrative Agent may consent
to) from the Loan Parties of such proposed change, which notice shall set forth
such information with respect thereto as the Administrative Agent may require
and the Administrative Agent shall have received such agreements as it may
reasonably require in connection therewith in order to preserve and protect its
respective Liens on the Collateral.


 


7.17.                     Intentionally Omitted.


 


7.18.                     Embargoed Person. 
Cause or permit (a) any of the funds or properties of the Loan
Parties that are used to repay the Loans or any reimbursement hereunder to
constitute property of, or be beneficially owned directly or indirectly by, any
person subject to sanctions or trade restrictions under United States law (“Embargoed
Person” or “Embargoed Persons”) that is identified on (1) the
“List of Specially Designated Nationals and Blocked Persons” (the “SDN List”)
maintained by OFAC and/or on any other similar list (“Other List”)
maintained by OFAC pursuant to any authorizing statute including, but not
limited to, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Order (defined below) or
regulation promulgated thereunder, with the result that the investment in the
Loan Parties (whether directly or indirectly) is prohibited by law, or the
Loans made by the Lenders would be in violation of law, or (2) the Order,
any related enabling legislation or any other similar orders (collectively, “Executive
Orders”), or (b) any Embargoed Person to have any direct or indirect
interest, of any nature whatsoever in the Loan Parties, with the result that
the investment in the Loan Parties (whether directly or indirectly) is
prohibited by law or the Loans are in violation of law.


 


7.19.                     Sale and Leaseback Transactions. 
Enter into any arrangement, directly or indirectly, with any Person
whereby any Loan Party shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which it intends to
use for substantially the same purpose or purposes as the property being sold
or transferred (a “Sale and Leaseback Transaction”) unless (i) the
sale of such property is permitted by Section 7.05 and (ii) any
Liens arising in connection with its use of such property are permitted by Section 7.01.


 


ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES


 


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


 


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


 


(b)                                 Specific Covenants.  (i) The Borrower fails to perform
or observe any term, covenant or agreement contained in any of Section 6.03,
6.05, 6.10, 6.11, 6.12, 6.14, 6.21 or
Article VII, (ii) any
of the Guarantors fails to perform or observe any term, covenant or agreement
contained in the Guaranty or (iii) any of the Loan Parties fails to
perform or observe any term, covenant or agreement contained in any Collateral
Document to which it is a party, in each case, to the extent any applicable
cure or grace period therefor has expired; or


 


(c)                                  Other Defaults. 
Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in Section 8.01(a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days (in the case of failure to perform or observe the
covenants in Sections 6.01, 6.02  and  7.11(a)(ii),
30 days after the Loan Party receives notice by the Administrative Agent or
Required Lenders that such failure will constitute an Event of Default); or


 


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


 


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


 


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either event, the Swap Termination Value owed
by such Loan Party or such Subsidiary as a result thereof is greater than the
Threshold Amount; or


 


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


 


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


 


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


 


(i)                                     ERISA.  (i) An
ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which
has resulted or could reasonably be expected to result in liability of the
Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan
or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the
Borrower or any ERISA Affiliate fails to pay when due, after the expiration of
any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer
Plan in an aggregate amount in excess of the Threshold Amount; or


 


(j)                                     Invalidity of Loan Documents. 
Any provision of any Loan Document, at any time after its execution and
delivery and for any reason other than as expressly permitted hereunder or
thereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any Loan Party or any other Person contests in any manner
the validity or enforceability of any provision of any Loan Document; or any
Loan Party denies that it has any or further liability or obligation under any
provision of any Loan Document, or purports to revoke, terminate or rescind any
provision of any Loan Document; or


 


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


 


(l)                                     Collateral Documents. 
Any Collateral Document after delivery thereof pursuant to Section 4.01
or 6.12 shall for any reason (other than pursuant to the terms thereof)
cease to create a valid and perfected first priority Lien (and subject to
rights of other secured parties under the Intercreditor Agreement and subject
to Liens permitted by Section 7.01) on the Collateral purported to
be covered thereby; or


 


(m)                               Subordination.  (i) 
The subordination provisions of the documents evidencing or governing any
subordinated Indebtedness (the “Subordinated Provisions”) shall, in
whole or in part, terminate, cease to be effective or cease to be legally
valid, binding and enforceable against any holder of the applicable
subordinated Indebtedness, or in the case of the Intercreditor Agreement, the
parties thereto; or (ii) the Borrower or any other Loan Party shall,
directly or indirectly, disavow or contest in any manner (A) the
effectiveness, validity or enforceability of any of the Subordinated
Provisions, (B) that the Subordinated Provisions exist for the benefit of
the Administrative Agent, the Lenders and the L/C Issuer or (C) that all
payments of principal of or premium and interest on the applicable subordinated
Indebtedness, or realized from the liquidation of any property of any Loan
Party, shall be subject to any of the Subordination Provisions.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Fourth,
to payment of that portion of the Obligations constituting unpaid principal of
the Loans, L/C Borrowings and Obligations then owing under Secured Hedge
Agreements and Secured Cash Management Agreements, ratably among the Lenders,
Affiliates of Lenders, the L/C Issuer, the Hedge Banks and the Cash Management
Banks in proportion to the respective amounts described in this clause Fourth
held by them;


 


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


 


Last,
the balance, if any, after all of the Obligations have been indefeasibly paid
in full, first, to other creditors entitled thereto, and second, to the
Borrower or as otherwise required by Law.


 


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


 


Notwithstanding
the foregoing, Obligations arising under Secured Cash Management Agreements and
Secured Hedge Agreements shall be excluded from the application described above
if the Administrative Agent has not received written notice thereof, together
with such supporting documentation as the Administrative Agent may request,
from the applicable Cash 


 


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Management Bank or Hedge Bank, as the case
may be.  Each Cash Management Bank or
Hedge Bank not at such time a party to the Credit Agreement that has given the
notice contemplated by the preceding sentence shall, by such notice, be deemed
to have acknowledged and accepted the appointment of the Administrative Agent
pursuant to the terms of Article IX hereof for itself and its
Affiliates as if a “Lender” party hereto.


 


ARTICLE IX.

ADMINISTRATIVE AGENT


 


9.01.                     Appointment and Authority.  (a) 
Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of
America to act on its behalf as the Administrative Agent hereunder and under
the other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto.  The provisions of this Article are
solely for the benefit of the Administrative Agent, the Lenders and the L/C
Issuer, and the Borrower shall not have
rights as a third party beneficiary of any of such provisions.


 


(a)                                  The Administrative Agent shall also act
as the “collateral agent”
under the Loan Documents, and each of the Lenders (including in its capacities
as a potential Hedge Bank and a potential Cash Management Bank) and the L/C
Issuer hereby irrevocably appoints and authorizes the Administrative Agent to
act as the agent of such Lender and the L/C Issuer for purposes of acquiring,
holding and enforcing any and all Liens on Collateral granted by any of the
Loan Parties to secure any of the Obligations, together with such powers and
discretion as are reasonably incidental thereto.  In this connection, the Administrative Agent,
as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact
appointed by the Administrative Agent pursuant to Section 9.05 for
purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents, or for exercising any rights
and remedies thereunder at the direction of the Administrative Agent), shall be
entitled to the benefits of all provisions of this Article IX and Article X
(including Section 10.04(c), as though such co-agents, sub-agents
and attorneys-in-fact were the “collateral agent” under the Loan Documents) as
if set forth in full herein with respect thereto.


 


9.02.                     Rights as a Lender. 
The Person serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term “Lender”
or “Lenders” shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity. 
Such Person and its Affiliates may accept deposits from, lend money to,
act as the financial advisor or in any other advisory capacity for and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.


 


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


 


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


 


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


 


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


 


(d)                                 The Administrative Agent shall not be
liable for any action taken or not taken by it (i) with the consent or at
the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in
good faith shall be necessary, under the circumstances as provided in Sections
10.01 and 8.02) or (ii) in the absence of its own gross
negligence or willful misconduct.  The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until notice describing such Default is given to the Administrative Agent
by the Borrower, a Lender or the L/C Issuer.


 


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


 


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


 


114

















 


Issuer, the Administrative Agent may presume
that such condition is satisfactory to such Lender or the L/C Issuer unless the
Administrative Agent shall have received notice to the contrary from such
Lender or the L/C Issuer prior to the making of such Loan or the issuance of
such Letter of Credit.  The
Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.


 


9.05.                     Delegation of Duties. 
The Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.


 


9.06.                     Resignation of Administrative
Agent.  The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Borrower.  Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with
the Borrower, to appoint a successor, which shall be a bank with an office in
the United States, or an Affiliate of any such bank with an office in the United
States.  If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may on behalf
of the Lenders and the L/C Issuer, appoint a successor Administrative Agent
meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (a) the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the L/C
Issuer under any of the Loan Documents, the retiring Administrative Agent shall
continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (b) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents (if not already discharged therefrom as provided
above in this Section).  The fees payable
by the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and
such successor.  After the retiring
Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties 


 


115

















 


in respect of any actions taken or omitted to
be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.


 


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


 


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


 


9.08.                     No Other Duties, Etc. 
Anything herein to the contrary notwithstanding, the Sole Lead Arranger
and the Sole Book Manager listed on the cover page hereof shall not have
any powers, duties or responsibilities under this Agreement or any of the other
Loan Documents.


 


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


 


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


 


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


 


116

















 


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


 


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


 


9.10.                     Collateral and Guaranty
Matters.  Each of the Lenders (including in its capacities as a
potential Cash Management Bank and a potential Hedge Bank) and the L/C Issuer
irrevocably authorize the Administrative Agent, at its option and in its
discretion,


 


(a)                                  to release any Lien on any property
granted to or held by the Administrative Agent under any Loan Document (i) upon
termination of the Aggregate Commitments and payment in full of all Obligations
(other than (A) contingent indemnification obligations and (B) obligations
and liabilities under Secured Cash Management Agreements and Secured Hedge
Agreements as to which arrangements satisfactory to the applicable Cash
Management Bank or Hedge Bank (to the extent required under Section 9.11)
shall have been made) and the expiration or termination of all Letters of
Credit, (ii) that is sold or to be sold as part of or in connection with
any sale permitted hereunder or under any other Loan Document, or (iii) 
if approved, authorized or ratified in writing in accordance with Section 10.01;


 


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


 


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


 


Upon
request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent’s authority to release or
subordinate its interest in particular types or items of property, or to
release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10.  In each case as specified in this Section 9.10,
the Administrative Agent will, at the Borrower’s expense, execute and deliver
to the applicable Loan Party such documents as such Loan Party may reasonably
request to evidence the release of such item of Collateral from the assignment
and security interest granted under the Collateral Documents or to subordinate
its interest in such item, or to release such Guarantor from its obligations
under the Guaranty, in each case in accordance with the terms of the Loan
Documents and this Section 9.10.


 


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9.11.                     Secured Cash Management
Agreements and Secured Hedge Agreements.  Except as
otherwise expressly set forth herein or in any Guaranty or any Collateral
Document, no Cash Management Bank or Hedge Bank that obtains the benefits of Section 8.03,
any Guaranty or any Collateral by virtue of the provisions hereof or of any
Guaranty or any Collateral Document shall have any right to notice of any
action or to consent to, direct or object to any action hereunder or under any
other Loan Document or otherwise in respect of the Collateral (including the
release or impairment of any Collateral) other than in its capacity as a Lender
and, in such case, only to the extent expressly provided in the Loan
Documents.  Notwithstanding any other
provision of this Article IX to the contrary, the Administrative
Agent shall not be required to verify the payment of, or that other
satisfactory arrangements have been made with respect to, Obligations arising
under Secured Cash Management Agreements and Secured Hedge Agreements unless
the Administrative Agent has received written notice of such Obligations,
together with such supporting documentation as the Administrative Agent may
request, from the applicable Cash Management Bank or Hedge Bank, as the case
may be.


 


ARTICLE X.

MISCELLANENOUS


 


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


 


(a)                                  waive any condition set forth in Section 4.01
(other than Section 4.01(b)(i) or (c)), or, in the case
of the initial Credit Extension, Section 4.02, without the written
consent of each Lender;


 


(b)                                 without limiting the generality of clause
(a) above, waive any condition set forth in Section 4.02 as to
any Credit Extension under the Revolving Credit Facility without the written
consent of the Required Lenders;


 


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


 


(d)                                 postpone any date fixed by this Agreement
or any other Loan Document for any payment of principal, interest, fees or
other amounts due to the Lenders (or any of them) hereunder or under such other
Loan Document without the written consent of each Lender entitled to such
payment;


 


(e)                                  reduce the principal of, or the rate of
interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to
this Section 10.01) any fees or other amounts payable hereunder or
under any other Loan Document without the written consent of each Lender
entitled to such fees or amounts; provided, however, that only
the consent of the 


 


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Required Lenders shall be necessary (i) to amend the definition of “Default
Rate” or to waive any obligation of the Borrower to pay interest or Letter of
Credit Fees at the Default Rate or (ii) to
amend any financial covenant hereunder (or any defined term used therein) even
if the effect of such amendment would be to reduce the rate of interest on any
Loan or L/C Borrowing or to reduce any fee payable hereunder;


 


(f)                                    change Section 8.03 in a
manner that would alter the pro rata sharing of payments required thereby
without the written consent of each Lender in any manner that materially and
adversely affects the Lenders without the written consent of the Required
Lenders;


 


(g)                                 change (i) any provision of this Section 10.01
or the definition of “Required Lenders” or any other provision hereof specifying
the number or percentage of Lenders required to amend, waive or otherwise
modify any rights hereunder or make any determination or grant any consent
hereunder (other than the definitions specified in clause (ii) of this Section 10.01(g)),
without the written consent of each Lender;


 


(h)                                 release all or substantially all of the
Collateral in any transaction or series of related transactions, without the
written consent of each Lender;


 


(i)                                     release all or substantially all of the
value of the Guaranty, without the written consent of each Lender, except to
the extent the release of any Subsidiary from the Guaranty is permitted
pursuant to Section 9.10 (in which case such release may be made by
the Administrative Agent acting alone); or


 


(j)                                     impose any greater restriction on the
ability of any Lender to assign any of its rights or obligations hereunder
without the written consent of the Required Lenders;


 


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


 


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


 


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and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:


 


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


 


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


 


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


 


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


 


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


 


(c)                                  The Platform. 
THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY
OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS
FROM THE BORROWER MATERIALS.  NO WARRANTY
OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-


 


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INFRINGEMENT
OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent or
any of its Related Parties (collectively, the “Agent Parties”) have any
liability to the Borrower, any Lender, the L/C Issuer or any other Person for
losses, claims, damages, liabilities or expenses of any kind (whether in tort,
contract or otherwise) arising out of the Borrower’s or the Administrative
Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are
determined by a court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Agent Party; provided, however, that in no event shall any
Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or
any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).


 


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


 


(e)                                  Reliance by Administrative Agent, L/C
Issuer and Lenders.  The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Committed Loan Notices and Swing Line Loan
Notices) purportedly given by or on behalf of the Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof.  The Borrower shall indemnify
the Administrative Agent, the L/C Issuer, each Lender and the Related Parties
of each of them from all losses, costs, expenses and liabilities resulting from
the reliance by such Person on each notice purportedly given by or on behalf of
the Borrower.  All telephonic notices to
and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.


 


10.03.              No Waiver; Cumulative Remedies;
Enforcement.  No failure by any Lender, the L/C Issuer or
the Administrative Agent to exercise, and no delay by any such Person in 


 


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exercising, any right, remedy, power or
privilege hereunder or under any other Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges
herein provided, and provided under each other Loan Document, are cumulative
and not exclusive of any rights, remedies, powers and privileges provided by
law.


 


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


 


10.04.              Expenses; Indemnity; Damage
Waiver.  (a) Costs and Expenses. 
The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent), in connection with the syndication of the credit facilities provided
for herein, the preparation, negotiation, execution, delivery and
administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the
L/C Issuer in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the fees, charges and disbursements of any counsel for
the Administrative Agent, any Lender or the L/C Issuer), and shall pay all fees
and time charges for attorneys who may be employees of the Administrative
Agent, any Lender or the L/C Issuer, in connection with the enforcement or
protection of its rights (A) in connection with this Agreement and the
other Loan Documents, including its rights under this Section, or (B) in
connection with Loans made or Letters of Credit issued hereunder, including all
such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.


 


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


 


(c)                                  Reimbursement by Lenders. 
To the extent that the Borrower for any reason fails to indefeasibly pay
any amount required under subsection (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C
Issuer or any Related Party of any of the foregoing, each Lender severally
agrees to pay to the Administrative Agent (or any such sub-agent), the L/C
Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity
as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with
such capacity.  The obligations of the
Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).


 


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


 


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


 


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


 


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


 


10.06.              Successors and Assigns.  (a) Successors and Assigns Generally. 
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Administrative
Agent and each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an assignee in accordance
with the provisions of Section 10.06(b), (ii) by way of
participation in accordance with the provisions of Section 10.06(d),
or (iii) by way of pledge
or assignment of a security interest subject to the restrictions 


 


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of Section 10.06(f) (and any
other attempted assignment or transfer by any party hereto shall be null and
void).  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and,
to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.


 


(b)                                 Assignments by Lenders. 
Any Lender may at any time assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment(s) and the Loans (including for purposes of this
Section 10.06(b), participations in L/C Obligations and in Swing
Line Loans) at the time owing to it); provided that any such assignment
shall be subject to the following conditions:


 


(i)                                     Minimum Amounts.


 


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


 


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


 


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


 


(iii)                               Required Consents.  No consent
shall be required for any assignment except to the extent required by
subsection (b)(i)(B) of this Section and, in addition:


 


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(A)                              the consent of the Borrower (such consent
not to be unreasonably withheld or delayed) shall be required unless (1) an
Event of Default has occurred and is continuing at the time of such assignment
or (2) such assignment is to a Lender, an Affiliate of a Lender or an
Approved Fund;


 


(B)                                the consent of the Administrative Agent
(such consent not to be unreasonably withheld or delayed) shall be required for
assignments in respect of any Revolving Credit Commitment if such assignment is
to a Person that is not a Lender, an Affiliate of such Lender or an Approved
Fund with respect to such Lender;


 


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


 


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


 


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


 


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


 


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


 


Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05
and 10.04 with respect to facts and circumstances occurring prior to the
effective date of such assignment.  Upon
request, the Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender.  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this subsection shall be treated for purposes of this Agreement
as a 


 


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sale by such Lender of a participation in
such rights and obligations in accordance with Section 10.06(d).


 


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


 


(d)                                 Participations. 
Any Lender may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to any Person (other
than a natural person or the Borrower or any of the Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights
and/or obligations under this Agreement (including all or a portion of its
Commitment and/or the Loans (including such Lender’s participations in L/C
Obligations and/or Swing Line Loans) owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Lenders and the L/C Issuer shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement.  Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, waiver or other modification described in the first
proviso to Section 10.01 that affects such Participant.  Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05  to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to Section 10.06(b).  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.08  as though it were a Lender, provided such
Participant agrees to be subject to Section 2.13 as though it were
a Lender.


 


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


 


(f)                                    Certain Pledges. 
Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement (including under its Note, if
any) to secure 


 


127

















 


obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.


 


(g)                                 Resignation as L/C Issuer or Swing Line
Lender after Assignment.  Notwithstanding anything to
the contrary contained herein, if at any time Bank of America assigns all of
its Revolving Credit Commitment and Revolving Credit Loans pursuant to Section 10.06(b),
Bank of America may, (i) upon 30
days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon
30 days’ notice to the Borrower,
resign as Swing Line Lender.  In the
event of any such resignation as L/C Issuer or Swing Line Lender, the Borrower
shall be entitled to appoint from among the Lenders a successor L/C Issuer or
Swing Line Lender hereunder; provided, however, that no failure
by the Borrower to appoint any such successor shall affect the resignation of
Bank of America as L/C Issuer or Swing Line Lender, as the case may be.  If Bank of America resigns as L/C Issuer, it
shall retain all the rights, powers, privileges and duties of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Loans or
fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).  If Bank of America resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders
to make Base Rate Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.04(c). 
Upon the appointment of a successor L/C Issuer and/or Swing Line Lender,
(a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line
Lender, s the case may be, and (b) the successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements
satisfactory to Bank of America to effectively assume the obligations of Bank
of America with respect to such Letters of Credit.


 


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


 


128

















 


Borrower and its obligations, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, any Lender, the L/C Issuer or any of
their respective Affiliates on a nonconfidential basis from a source other than
the Borrower.


 


For
purposes of this Section, “Information” means all information received
from any Loan Party or any Subsidiary thereof relating to any Loan Party or any
Subsidiary thereof or their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the
L/C Issuer on a nonconfidential basis prior to disclosure by any Loan Party or
any Subsidiary thereof, provided that, in the case of information
received from a Loan Party or any such Subsidiary after the date hereof, such
information is clearly identified at the time of delivery as confidential.  Any Person required to maintain the
confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


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


 


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


 


10.09.              Interest Rate Limitation. 
Notwithstanding anything to the contrary contained in any Loan Document,
the interest paid or agreed to be paid under the Loan Documents shall not
exceed the maximum rate of non-usurious interest permitted by applicable Law
(the “Maximum
Rate”).  If the Administrative
Agent or any Lender shall receive interest in an amount that exceeds the
Maximum Rate, the excess interest shall be applied to the principal of the
Loans or, 


 


129

















 


if it exceeds such unpaid principal, refunded
to the Borrower.  In determining whether
the interest contracted for, charged, or received by the Administrative Agent
or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted
by applicable Law, (a) characterize any payment that is not principal as
an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate,
and spread in equal or unequal parts the total amount of interest throughout
the contemplated term of the Obligations hereunder.


 


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


 


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


 


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


 


10.13.              Replacement of Lenders.  If any Lender requests compensation under Section 3.04,
or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender is a Defaulting Lender, then the Borrower may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in, and consents required


 


130
















 


by,
Section 10.06), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts
such assignment), provided that:


 


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


 


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


 


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


 


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


 


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


 


10.14.              Governing Law; Jurisdiction; Etc.   
(a)  GOVERNING LAW. 
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS OTHER THAN SECTION 5-1401
AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAWS OF THE STATE OF NEW
YORK).


 


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


 


131

















 


OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY GUARANTOR OR ITS PROPERTIES
IN THE COURTS OF ANY JURISDICTION.


 


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


 


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


 


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


 


10.16.              No Advisory or Fiduciary
Responsibility.  In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment,
waiver or other modification hereof or of any other Loan Document), the
Borrower acknowledges and agrees, and acknowledges its Affiliates’
understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent and the Arranger,
are arm’s-length commercial transactions between the Borrower and its
Affiliates, on the one hand, and the Administrative Agent and the Arranger, on the
other hand, (B) the Borrower has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C) the
Borrower is capable of evaluating, and understands and accepts, the terms,
risks and conditions of the transactions contemplated hereby and by the other
Loan Documents; (ii) (A) the Administrative Agent and the Arranger
each is and has been acting 


 


132

















 


solely as a principal and, except as
expressly agreed in writing by the relevant parties, has not been, is not, and
will not be acting as an advisor, agent or fiduciary for the Borrower or any of
its Affiliates, or any other Person and (B) neither the Administrative
Agent nor the Arranger has any obligation to the Borrower or any of its
Affiliates with respect to the transactions contemplated hereby except those
obligations expressly set forth herein and in the other Loan Documents; and (iii) the
Administrative Agent and the Arranger and their respective Affiliates may be
engaged in a broad range of transactions that involve interests that differ
from those of the Borrower and its Affiliates, and neither the Administrative
Agent nor the Arranger has any obligation to disclose any of such interests to
the Borrower or its Affiliates.  To the
fullest extent permitted by law, the
Borrower hereby waives and releases any claims that it may have against the
Administrative Agent and the
Arranger with respect to any breach or alleged breach of agency or fiduciary
duty in connection with any aspect of any transaction contemplated hereby.


 


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


 


10.18.              USA PATRIOT Act.  Each Lender that is subject to the Act (as hereinafter
defined) and the Administrative Agent (for itself and not on behalf of any
Lender) hereby notifies the Borrower that pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information
that identifies each Loan Party, which information includes the name and
address of each Loan Party and other information that will allow such Lender or
the Administrative Agent, as applicable, to identify each Loan Party in
accordance with the Act.  The Borrower
shall, promptly following a request by the Administrative Agent or any Lender,
provide all documentation and other information that the Administrative Agent
or such Lender requests in order to comply with its ongoing obligations under
applicable “know your customer” an anti-money laundering rules and
regulations, including the Act.


 


10.19.              Judgment Currency. 
If, for the purposes of obtaining judgment in any court, it is necessary
to convert a sum due hereunder or any other Loan Document in one currency into
another currency, the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given.  The obligation of each Borrower in respect of
any such sum due from it to the Administrative Agent, the L/C Issuer or any
Lender hereunder or under the other Loan Documents shall, notwithstanding any
judgment in a currency (the “Judgment Currency”) other than that in
which such sum is denominated in accordance with the applicable provisions of
this Agreement (the “Agreement Currency”), be discharged only to the
extent that on the Business Day following receipt by the Administrative Agent,
the L/C Issuer or such Lender, as the case may be, of any sum adjudged to be so
due in the Judgment Currency, the Administrative Agent, the L/C Issuer or such
Lender, as 


 


133

















 


the case may be, may in accordance with normal
banking procedures purchase the Agreement Currency with the Judgment
Currency.  If the amount of the Agreement
Currency so purchased is less than the sum originally due to the Administrative
Agent, the L/C Issuer or any Lender from any Borrower in the Agreement
Currency, such Borrower agrees, as a separate obligation and notwithstanding
any such judgment, to indemnify the Administrative Agent, the L/C Issuer or
such Lender, as the case may be, against such loss.  If the amount of the Agreement Currency so
purchased is greater than the sum originally due to the Administrative Agent,
the L/C Issuer or any Lender in such currency, the Administrative Agent, the
L/C Issuer or such Lender, as the case may be, agrees to return the amount of
any excess to such Borrower (or to any other Person who may be entitled thereto
under applicable law).


 


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134

















 


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


 


	
   

  	
  CLEAN
  HARBORS, INC., as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James M. Rutledge

  
	
   

  	
  Name:
  James M. Rutledge

  
	
   

  	
  Title:
  Executive Vice President and

  
	
   

  	
  Chief Financial Officer

  



 

















 


	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Christopher O’Halloran

  
	
   

  	
  Name:
  Christopher O’Halloran

  
	
   

  	
  Title:
  Vice President

  



 

















 


	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Christopher O’Halloran

  
	
   

  	
  Name:
  Christopher O’Halloran

  
	
   

  	
  Title:
  Vice President

  



 

















 


	
   

  	
  SIEMENS
  FINANCIAL SERVICES, INC., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jennifer Humphrey

  
	
   

  	
  Name:
  Jennifer Humphrey

  
	
   

  	
  Title:
  VP Operations

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Uri Sky

  
	
   

  	
  Name:
  Uri Sky

  
	
   

  	
  Title:
  VP Credit

  



 

















 


	
   

  	
  TD
  BANK, N.A., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  C. Lee Willingham

  
	
   

  	
  Name:
  C. Lee Willingham

  
	
   

  	
  Title: Senior Vice
  President