Exhibit 10.04





Exhibit 10.4




 




AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT




dated as of August 5, 2009




among




THE E.W. SCRIPPS COMPANY




and




ITS SUBSIDIARIES LISTED ON THE

SIGNATURE PAGES HEREOF,

as Borrowers,




THE LENDERS FROM TIME TO TIME PARTY HERETO,




SUNTRUST BANK,

as Administrative Agent




and




U.S. BANK NATIONAL ASSOCIATION,

as Documentation Agent




and




FIFTH THIRD BANK,

as Syndication Agent




SUNTRUST ROBINSON HUMPHREY, INC.,

as Sole Lead Arranger and Sole Book Manager




 





 












 







TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I DEFINITIONS; CONSTRUCTION
	 	 	1	 
	Section 1.1. Definitions
	 	 	1	 
	Section 1.2. Classifications of Loans and Borrowings
	 	 	31	 
	Section 1.3. Accounting Terms and Determination
	 	 	31	 
	Section 1.4. Terms Generally
	 	 	31	 
	 
	 	 	 	 
	ARTICLE II AMOUNT AND TERMS OF THE REVOLVING COMMITMENTS
	 	 	32	 
	Section 2.1. General Description of Facilities
	 	 	32	 
	Section 2.2. Revolving Loans
	 	 	32	 
	Section 2.3. Procedure for Revolving Borrowings
	 	 	35	 
	Section 2.4. Swingline Commitment
	 	 	35	 
	Section 2.5. Funding of Borrowings
	 	 	37	 
	Section 2.6. Interest Elections
	 	 	38	 
	Section 2.7. Optional Reduction and Termination of Revolving Commitments
	 	 	39	 
	Section 2.8. Repayment of Loans
	 	 	39	 
	Section 2.9. Evidence of Indebtedness
	 	 	40	 
	Section 2.10. Optional Prepayments
	 	 	40	 
	Section 2.11. Mandatory Repayments
	 	 	41	 
	Section 2.12. Interest on Loans
	 	 	42	 
	Section 2.13. Fees
	 	 	42	 
	Section 2.14. Computation of Interest and Fees
	 	 	44	 
	Section 2.15. Inability to Determine Interest Rates
	 	 	44	 
	Section 2.16. Illegality
	 	 	44	 
	Section 2.17. Increased Costs
	 	 	45	 
	Section 2.18. Funding Indemnity
	 	 	46	 
	Section 2.19. Taxes
	 	 	46	 
	Section 2.20. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	48	 
	Section 2.21. Letters of Credit
	 	 	49	 
	Section 2.22. Cash Collateralization of Defaulting Lender Commitment
	 	 	54	 
	Section 2.23. Increase of Revolving Commitments; Additional Lenders
	 	 	55	 
	Section 2.24. Mitigation of Obligations
	 	 	56	 
	Section 2.25. Replacement of Lenders
	 	 	56	 
	Section 2.26. Application of Payments
	 	 	57	 
	Section 2.27. Bank Products
	 	 	59	 
	 
	 	 	 	 
	ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
	 	 	59	 
	Section 3.1. Conditions To Effectiveness
	 	 	59	 
	Section 3.2. Each Credit Event
	 	 	62	 
	Section 3.3. Delivery of Documents
	 	 	63	 






 


 









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES
	 	 	63	 
	Section 4.1. Existence; Power
	 	 	63	 
	Section 4.2. Organizational Power; Authorization
	 	 	64	 
	Section 4.3. Capital Stock and Related Matters
	 	 	64	 
	Section 4.4. Governmental Approvals; No Conflicts
	 	 	64	 
	Section 4.5. Financial Statements
	 	 	65	 
	Section 4.6. Liabilities, Litigation and Environmental Matters
	 	 	65	 
	Section 4.7. Compliance with Laws and Agreements
	 	 	66	 
	Section 4.8. Material Contracts
	 	 	66	 
	Section 4.9. Investment Company Act, Etc.
	 	 	66	 
	Section 4.10. Taxes
	 	 	66	 
	Section 4.11. Margin Regulations
	 	 	67	 
	Section 4.12. ERISA
	 	 	67	 
	Section 4.13. Ownership of Property
	 	 	67	 
	Section 4.14. Disclosure
	 	 	67	 
	Section 4.15. Labor Relations
	 	 	68	 
	Section 4.16. Subsidiaries and Joint Ventures
	 	 	68	 
	Section 4.17. Insolvency
	 	 	68	 
	Section 4.18. OFAC
	 	 	68	 
	Section 4.19. Patriot Act
	 	 	68	 
	Section 4.20. Real Property
	 	 	69	 
	Section 4.21. Security Interests
	 	 	69	 
	Section 4.22. Name of Borrowers
	 	 	69	 
	Section 4.23. Representations and Warranties Relating to Eligible Accounts
	 	 	69	 
	Section 4.24. Representations and Warranties Relating to Eligible Inventory
	 	 	70	 
	Section 4.25. No Fraudulent Conveyance
	 	 	70	 
	 
	 	 	 	 
	ARTICLE V AFFIRMATIVE COVENANTS
	 	 	70	 
	Section 5.1. Financial Statements and Other Information
	 	 	70	 
	Section 5.2. Notices of Material Events
	 	 	72	 
	Section 5.3. Existence; Conduct of Business
	 	 	73	 
	Section 5.4. Compliance with Laws, Etc.
	 	 	73	 
	Section 5.5. Payment of Obligations
	 	 	73	 
	Section 5.6. Books and Records
	 	 	73	 
	Section 5.7. Visitation, Inspection, Etc.
	 	 	74	 
	Section 5.8. Maintenance of Properties; Insurance
	 	 	74	 
	Section 5.9. Use of Proceeds and Letters of Credit
	 	 	75	 
	Section 5.10. Further Assurances
	 	 	75	 
	Section 5.11. Lien Perfection
	 	 	75	 
	Section 5.12. Location of Collateral
	 	 	75	 
	Section 5.13. Protection of Collateral
	 	 	76	 
	Section 5.14. Assignments and Records of Accounts
	 	 	76	 
	Section 5.15. Administration of Accounts
	 	 	77	 
	Section 5.16. The Blocked Accounts
	 	 	77	 
	Section 5.17. Formation of Subsidiaries
	 	 	78	 
	Section 5.18. Borrowing Base Certificates
	 	 	78	 
	Section 5.19. Estoppel Certificates
	 	 	79	 






 


ii









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE VI FINANCIAL COVENANTS
	 	 	80	 
	Section 6.1. Fixed Charge Coverage Ratio
	 	 	80	 
	 
	 	 	 	 
	ARTICLE VII NEGATIVE COVENANTS
	 	 	80	 
	Section 7.1. Indebtedness and Preferred Equity
	 	 	80	 
	Section 7.2. Liens
	 	 	81	 
	Section 7.3. Fundamental Changes
	 	 	82	 
	Section 7.4. Investments, Loans, Etc.
	 	 	82	 
	Section 7.5. Restricted Payments
	 	 	83	 
	Section 7.6. Sale of Assets
	 	 	84	 
	Section 7.7. Transactions with Affiliates
	 	 	85	 
	Section 7.8. Restrictive Agreements
	 	 	85	 
	Section 7.9. Sale and Leaseback Transactions
	 	 	85	 
	Section 7.10. Hedging Transactions
	 	 	86	 
	Section 7.11. Guaranties
	 	 	86	 
	Section 7.12. Accounting Changes
	 	 	86	 
	Section 7.13. Government Regulation
	 	 	86	 
	Section 7.14. ERISA Liability
	 	 	86	 
	Section 7.15. Waivers and Amendments
	 	 	87	 
	Section 7.16. Bank Accounts
	 	 	87	 
	 
	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT
	 	 	87	 
	Section 8.1. Events of Default
	 	 	87	 
	Section 8.2. Remedies
	 	 	90	 
	 
	 	 	 	 
	ARTICLE IX THE ADMINISTRATIVE AGENT
	 	 	91	 
	Section 9.1. Appointment of Administrative Agent
	 	 	91	 
	Section 9.2. Nature of Duties of Administrative Agent
	 	 	92	 
	Section 9.3. Lack of Reliance on the Administrative Agent
	 	 	92	 
	Section 9.4. Certain Rights of the Administrative Agent
	 	 	93	 
	Section 9.5. Reliance by Administrative Agent
	 	 	93	 
	Section 9.6. The Administrative Agent in its Individual Capacity
	 	 	93	 
	Section 9.7. Successor Administrative Agent
	 	 	93	 
	Section 9.8. Authorization to Execute other Loan Documents
	 	 	94	 
	Section 9.9. Collateral
	 	 	94	 
	Section 9.10. Release of Collateral
	 	 	95	 
	Section 9.11. No Other Duties, etc.
	 	 	95	 
	Section 9.12. Withholding Tax
	 	 	95	 
	Section 9.13. Administrative Agent May File Proofs of Claim
	 	 	96	 






 


iii









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS
	 	 	97	 
	Section 10.1. Notices
	 	 	97	 
	Section 10.2. Waiver; Amendments
	 	 	99	 
	Section 10.3. Expenses; Indemnification
	 	 	100	 
	Section 10.4. Successors and Assigns
	 	 	102	 
	Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	106	 
	Section 10.6. Waiver Of Jury Trial
	 	 	106	 
	Section 10.7. Right of Setoff
	 	 	107	 
	Section 10.8. Counterparts; Integration
	 	 	107	 
	Section 10.9. Survival
	 	 	107	 
	Section 10.10. Severability
	 	 	108	 
	Section 10.11. Confidentiality
	 	 	108	 
	Section 10.12. Interest Rate Limitation
	 	 	108	 
	Section 10.13. Waiver of Effect of Corporate Seal
	 	 	109	 
	Section 10.14. Patriot Act
	 	 	109	 
	Section 10.15. The Administrative Borrower
	 	 	109	 
	Section 10.16. All Obligations to Constitute Joint and Several Obligations
	 	 	109	 
	Section 10.17. Waiver of Existing Defaults
	 	 	111	 
	Section 10.18. Waiver; Delivery of Notice under Existing Credit Agreement
	 	 	111	 
	Section 10.19. Knoxville Lease; Company Consent
	 	 	111	 






 


iv









 





Schedules




	 	 	 	 	 
	Schedule I

	 	—
	 	Applicable Margin
	Schedule II

	 	—
	 	Revolving Commitment Amounts
	Schedule 1.1(a)

	 	—
	 	Certain Restructuring Charges
	Schedule 1.1(b)

	 	—
	 	Denver Charges
	Schedule 3.1

	 	 	 	Real Estate Locations for Mortgage Filings
	Schedule 4.3

	 	—
	 	Equity Interests
	Schedule 4.6(a)

	 	—
	 	Litigation and Liabilities
	Schedule 4.6(b)

	 	—
	 	Environmental Matters
	Schedule 4.8

	 	—
	 	Material Contracts
	Schedule 4.10

	 	—
	 	Taxes
	Schedule 4.12

	 	—
	 	ERISA Matters
	Schedule 4.13(b)

	 	—
	 	Intellectual Property
	Schedule 4.13(c)

	 	—
	 	Insurance
	Schedule 4.16

	 	—
	 	Subsidiaries
	Schedule 4.20

	 	—
	 	Real Property
	Schedule 4.22

	 	—
	 	Prior Names
	Schedule 5.12

	 	—
	 	Locations of Collateral
	Schedule 5.16

	 	—
	 	Deposit Accounts and Securities Accounts
	Schedule 7.1

	 	—
	 	Outstanding Indebtedness
	Schedule 7.2

	 	—
	 	Existing Liens
	Schedule 7.7

	 	—
	 	Affiliate Transactions
	Schedule 7.11

	 	—
	 	Existing Guarantees






Exhibits




	 	 	 	 	 
	Exhibit A

	 	—
	 	Form of Amended and Restated Revolving Credit Note
	Exhibit B

	 	—
	 	Form of Swingline Note
	Exhibit C

	 	—
	 	Form of Assignment and Acceptance
	Exhibit D

	 	—
	 	Form of Borrowing Base Certificate
	Exhibit E

	 	—
	 	Form of Joinder to Credit Agreement
	Exhibit F

	 	—
	 	Form of Perfection Certificate
	Exhibit 2.3

	 	—
	 	Form of Notice of Revolving Borrowing
	Exhibit 2.4

	 	—
	 	Form of Notice of Swingline Borrowing
	Exhibit 2.6

	 	—
	 	Form of Notice of Continuation/Conversion
	Exhibit 3.1(b)(vii)

	 	—
	 	Form of Secretary’s Certificate
	Exhibit 3.1(b)(x)

	 	—
	 	Form of Officer’s Certificate
	Exhibit 5.1(c)

	 	—
	 	Form of Compliance Certificate







 


v









 







AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT




THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this “Agreement”) is made and
entered into as of August 5, 2009, by and among THE E.W. SCRIPPS COMPANY, an Ohio corporation (the
“Company”), those Subsidiaries of the Company identified as “Borrowers” on the signature
pages hereto (together with the Company, each a “Borrower” and collectively, the
“Borrowers”), the several banks and other financial institutions and lenders from time to
time party hereto (the “Lenders”), and SUNTRUST BANK, in its capacity as administrative
agent for the Lenders (the “Administrative Agent”), as issuing bank (the “Issuing
Bank”) and as swingline lender (the “Swingline Lender”).



W I T N E S S E T H:




WHEREAS, the Lenders have made available to the Company a revolving credit facility on the
terms and conditions contained in that certain Revolving Credit Agreement dated as of June 30, 2008
(as amended and in effect immediately prior to the date hereof, the “Existing Credit
Agreement”) by and among the Company, such Lenders and SunTrust Bank, as the Administrative
Agent for the Lenders, Issuing Bank and Swingline Lender thereunder;



WHEREAS, subject to the terms and conditions of this Agreement, the Lenders are willing to
amend and restate the Existing Credit Agreement on the terms and conditions hereof.



NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
the Company, the Lenders, the Administrative Agent, the Issuing Bank and the Swingline Lender agree
that the Existing Credit Agreement is amended and restated in its entirety as follows:



ARTICLE I




DEFINITIONS; CONSTRUCTION




Section 1.1. Definitions. In addition to the other terms defined herein, the
following terms used herein shall have the meanings herein specified (to be equally applicable to
both the singular and plural forms of the terms defined):



“20% Triggering Event” shall mean any time during which Excess Availability is equal
to or less than the greater of: (i) twenty percent (20%) of the Aggregate Revolving Commitments and
(ii) $30,000,000.



“Account Debtor” shall mean any Person who is obligated to make payments in respect of
an Account.


 


 









 





“Accounts” shall mean all “accounts,” as such term is defined in the UCC, of each
Borrower whether now existing or hereafter created or arising, including, without limitation, (a)
all accounts receivable, other receivables, book debts and other forms of obligations (other
than forms of obligations evidenced by chattel paper (as defined in the UCC) or instruments (as
defined in the UCC)) (including any such obligations that may be characterized as an account or
contract right under the UCC), (b) all of each Borrower’s rights in, to and under all purchase
orders or receipts for goods or services, (c) all of each Borrower’s rights to any goods
represented by any of the foregoing (including unpaid sellers’ rights of rescission, replevin,
reclamation and stoppage in transit and rights to returned, reclaimed or repossessed goods), (d)
all rights to payment due to a Borrower for property sold, leased, licensed, assigned or otherwise
disposed of, for a policy of insurance issued or to be issued, for a secondary obligation incurred
or to be incurred, for energy provided or to be provided, for the use or hire of a vessel under a
charter or other contract, arising out of the use of a credit card or charge card, or for services
rendered or to be rendered by such Borrower or in connection with any other transaction (whether or
not yet earned by performance on the part of such Borrower), (e) all health care insurance
receivables and (f) all collateral security of any kind, given by any Account Debtor or any other
Person with respect to any of the foregoing.



“ACH Transactions” shall mean any cash management or related services including the
automated clearinghouse transfer of funds by the Administrative Agent or any Lender (or any
Affiliate of the Administrative Agent or any Lender) for the account of the Borrowers pursuant to
agreement or overdrafts.



“Additional Lender” shall have the meaning given to such term in Section
2.23(b).



“Adjusted LIBO Rate” shall mean, with respect to each Interest Period for a Eurodollar
Borrowing, the rate per annum obtained by dividing (i) LIBOR for such Interest Period by (ii) a
percentage equal to 1.00 minus the Eurodollar Reserve Percentage.



“Administrative Agent” shall have the meaning assigned to such term in the
introductory paragraph hereof.




“Administrative Borrower” shall have the meaning specified in Section 10.15.



“Administrative Questionnaire” shall mean, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent and submitted to the
Administrative Agent duly completed by such Lender.



“Affiliate” shall mean, when used with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is
under common Control with the Person specified.



“Agent Advance Exposure” shall mean, with respect to each Lender, the principal amount
of the Agent Advances in which such Lender is legally obligated to either make a Revolving Loan or
to purchase a participation interest in accordance with Section 2.2(c), which shall equal
such Lender’s Pro Rata Share of all outstanding Agent Advances.



“Agent Advances” shall have the meaning specified in Section 2.2(c).


 


2









 





“Aggregate Revolving Commitment Amount” shall mean the aggregate principal amount of
the Aggregate Revolving Commitments from time to time. On the Restatement Date, the Aggregate
Revolving Commitment Amount equals $150,000,000.



“Aggregate Revolving Commitments” shall mean, collectively, all Revolving Commitments
of all Lenders at any time outstanding.



“Aggregate Revolving Credit Exposure” shall mean, collectively, the Revolving Credit
Exposure of all Lenders at any time of determination.



“Applicable Lending Office” shall mean, for each Lender and for each Type of Loan, the
“Lending Office” of such Lender (or an Affiliate of such Lender) designated for such Type of Loan
in the Administrative Questionnaire submitted by such Lender or such other office of such Lender
(or an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Borrowers as the office by which its Loans of such Type are to be made and
maintained.



“Applicable Margin” shall mean, as of any date, with respect to interest on all
Revolving Loans outstanding on any date or the letter of credit fee, as the case may be, a
percentage per annum determined by reference to Average Excess Availability for the month most
recently ended, from time to time in effect as set forth on Schedule I; provided,
that a change in the Applicable Margin resulting from a change in Average Excess Availability shall
be effective on the second Business Day after which the Administrative Agent receives the
Borrowers’ applicable Borrowing Base Certificate as required by Section 5.18;
provided, further, that if at any time the Borrowers shall have failed to deliver
such Borrowing Base Certificate when so required, the Applicable Margin shall be at Level I as set
forth on Schedule I until such time as such Borrowing Base Certificate is delivered, at
which time the Applicable Margin shall be determined as provided above. Notwithstanding the
foregoing, the Applicable Margin from the Restatement Date until the Borrowing Base Certificate for
the month ending September 30, 2009 is required to be delivered shall be at Level II as set forth
on Schedule I.



“Applicable Percentage” shall mean, as of any date of determination, with respect to
the commitment fee: (a) if Average Utilization for any fiscal month is greater than 50% of the
Aggregate Revolving Commitments, 0.50% or (b) if Average Utilization for any fiscal month is less
than or equal to 50% of the Aggregate Revolving Commitments, 0.75%; provided, that a change
in the Applicable Percentage resulting from a change in the Average Utilization shall be effective
on the second Business Day after which the Administrative Agent receives the Borrowing Base
Certificate required by Section 5.18. Notwithstanding the foregoing, the Applicable
Percentage for the commitment fee from the Restatement Date until delivery of the Borrowing Base
Certificate for the month ending September 30, 2009 shall be 0.75%.



“Appraisal” means, with respect to any Real Estate, an M.A.I. appraisal commissioned
by and addressed to the Administrative Agent (acceptable to the Administrative Agent as to form,
substance and appraisal date), prepared by a professional appraiser acceptable to the
Administrative Agent, having at least the minimum qualifications required under applicable law
governing the Administrative Agent and the Lenders, including without
limitation, FIRREA, and determining the “as is” market value of such Real Estate as between a
willing buyer and a willing seller.


 


3









 





“Approved Fund” shall mean any Person (other than a natural Person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business and that is administered or managed by
(i) a Lender, (ii) a Lender Affiliate of a Lender or (iii) an entity or a Lender Affiliate of an
entity that administers or manages a Lender.



“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section
10.4(b)) and accepted by the Administrative Agent, in the form of Exhibit C attached
hereto or any other form approved by the Administrative Agent.



“Availability Period” shall mean the period from the Restatement Date to but excluding
the Revolving Commitment Termination Date.



“Average Excess Availability” shall mean, as of the end of each month, an amount equal
to the sum of the actual amount of Excess Availability on each day during such period, as
determined by the Administrative Agent, divided by the number of days in such period.



“Average Utilization” shall mean, for any fiscal month of the Borrowers, the sum of
the Aggregate Revolving Credit Exposure (other than with respect to any Swingline Loans) for each
day during such fiscal month, divided by the number of days in such month.



“Bank Product Documents” shall mean all agreements entered into from time to time by
the Borrowers (or any of them) evidencing Bank Products.



“Bank Product Reserves” means all reserves which the Administrative Agent from time to
time establishes in its Permitted Discretion for the Bank Products then provided or outstanding;
provided, that, if the Administrative Borrower and a Lender (or Affiliate of a
Lender) mutually agree to establish a reserve with respect to a Bank Product, the Administrative
Agent shall establish such reserve in an amount equal to the Bank Product Amount (as defined in the
definition of “Bank Products”) or such other amount as may be agreed to by the Administrative
Borrower and such Lender or Affiliate.



“Bank Products” shall mean each and any of the following types of services or
facilities extended to the Borrowers by any Lender or any Affiliate of any Lender: (a) commercial
credit cards; (b) cash management services (including controlled disbursement services, ACH
Transactions, and interstate depository network services), (c) return items; (d) Hedging
Transactions; (e) pension related products and (f) foreign exchange; provided,
however, that for any of the foregoing to be included as an “Obligation” for purposes of a
distribution under Section 2.26, the applicable Lender or Affiliate of any Lender providing
such Bank Product must have previously provided written notice to the Administrative Agent (with a
copy to the Administrative Borrower) of (i) the existence of such Bank Product, (ii) the maximum
dollar amount of net obligations arising thereunder against which a reserve is required (“Bank
Product Amount”), and (iii) the methodology to be used by such party in determining the
Indebtedness owing from time to time in respect thereof, which written notice may be updated
from time to time as determined by the applicable Lender or Affiliate of any Lender as to the
then-current Bank Product Amount. No Bank Product Amount may be established or increased at any
time that an Event of Default of which such Lender or Affiliate of any Lender has knowledge exists,
or if a reserve in such amount would cause the Aggregate Revolving Credit Exposure to exceed the
Borrowing Base.


 


4









 





“Base Rate” shall mean the highest of (i) the per annum rate which the Administrative
Agent announces from time to time as its prime lending rate, as in effect from time to time, (ii)
the Federal Funds Rate, as in effect from time to time, plus one-half of one percent (0.50%) per
annum and (iii) LIBOR determined on a daily basis for a period of one (1) month, plus one percent
(1.00%) per annum. The Administrative Agent’s prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any customer. The Administrative
Agent may make commercial loans or other loans at rates of interest at, above or below the
Administrative Agent’s prime lending rate. Each change in any of the rates described above in this
definition shall be effective from and including the date such change is announced as being
effective.



“Blocked Account” shall have the meaning specified in Section 5.16.



“Blocked Account Agreement” shall mean any agreement executed by a depository bank and
the Administrative Agent, for the benefit of the Lenders, and acknowledged and agreed to by the
applicable Borrower, in form acceptable to the Administrative Agent in its sole discretion.



“Blocked Person” shall have the meaning specified in Section 4.19.



“Borrower” and “Borrowers” shall have the meanings specified in the
introductory paragraph hereof.



“Borrowing Base” shall mean, at any particular time, the sum of:




	 	(a)	 	the lesser of: (i) $20,000,000 and (ii) 100% of the amount of
cash of the Borrowers, or any of them, held in a Blocked Account maintained
with the Administrative Agent; plus







	 	(b)	 	(i) from the Restatement Date to October 15, 2009, the lesser
of: (x) $65,000,000 and (y) 60% of the net book value of all Accounts and (ii)
after October 15, 2009, 85% of Eligible Accounts; plus







	 	(c)	 	40% of the cost of Eligible Inventory; plus







	 	(d)	 	(i) from the Restatement Date to October 15, 2009, $25,000,000
and (ii) after October 15, 2009, the lesser of: (x) $60,000,000 and (y) 50% of
the Fair Market Value of Eligible Real Property; plus







	 	(e)	 	the lesser of: (i) $30,000,000 and (ii) the Eligible Tax
Refund; provided, that any amount under this clause (e) shall be
reduced (x) to zero on
October 20, 2009 (regardless of the amounts, if any, paid in respect of the
Eligible Tax Refund) and (y) on a dollar-for-dollar basis in an amount equal
to any and all amounts paid in respect of the Eligible Tax Refund (with each
such reduction to occur on the date any such payment is received by the
Company; minus







	 	(f)	 	any Reserves.





 


5









 










“Borrowing Base Certificate” shall mean a certificate of a Responsible Officer of the
Administrative Borrower substantially in the form of Exhibit D.



“Borrowing” shall mean a borrowing consisting of (i) Revolving Loans of the same Type,
made, converted or continued on the same date and in the case of Eurodollar Loans, as to which a
single Interest Period is in effect, or (ii) a Swingline Loan.



“Business Day” shall mean (i) any day other than a Saturday, Sunday or other day on
which commercial banks in Atlanta, Georgia and New York, New York are authorized or required by law
to close and (ii) if such day relates to a Borrowing of, a payment or prepayment of principal or
interest on, a conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice with
respect to any of the foregoing, any day on which banks are open for dealings in dollar deposits
are carried on in the London interbank market.



“Capital Expenditures” shall mean, for any period, on a consolidated basis for the
Borrowers, the aggregate of all expenditures made by the Borrowers during such period that, in
conformity with GAAP, are required to be included in or reflected on the consolidated balance sheet
as a capital asset of the Borrowers, including, without limitation, Capitalized Lease Obligations
of the Borrowers.



“Capital Lease Obligations” of any Person shall mean all obligations of such Person to
pay rent or other amounts under any lease (or other arrangement conveying the right to use) of real
or personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.



“Cash Collateralize” shall mean, in respect of any obligations, to provide and pledge
(as a first priority perfected security interest) cash collateral for such obligations in Dollars,
in an account maintained with the Administrative Agent, and pursuant to documentation in form and
substance, reasonably satisfactory to the Administrative Agent (and “Cash
Collateralization” has a corresponding meaning).



“Change in Control” shall be deemed to have occurred upon the occurrence of one or
more of the following events: (a) the Trust or the beneficiaries thereof shall not be the direct or
indirect owner, beneficially and of record, of at least 51% of the issued and outstanding Common
Voting Shares, $.01 par value per share, of the Company and any other common stock at any time
issued by the Company, other than the Company’s Class A Common Shares, $.01 par value per share, or
(b) the Company ceases to directly or indirectly own and control one hundred
percent (100%) of the outstanding Equity Interests of its wholly-owned Subsidiaries except as
otherwise permitted pursuant to Section 7.3(a) and except for Non-Borrower Subsidiaries.


 


6









 





“Change in Law” shall mean (i) the adoption of any applicable law, rule or regulation
after the date of this Agreement, (ii) any change in any applicable law, rule or regulation, or any
change in the interpretation or application thereof, by any Governmental Authority after the date
of this Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office) or the
Issuing Bank (or for purposes of Section 2.17(b), by the parent corporation of such Lender
or the Issuing Bank, if applicable) with any request, guideline or directive (whether or not having
the force of law) of any Governmental Authority made or issued after the date of this Agreement.



“Class,” when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.



“Code” shall mean the Internal Revenue Code of 1986, as amended and in effect from
time to time.



“Collateral” shall mean all Property pledged as collateral security for the
Obligations pursuant to the Security Documents or otherwise, and all other Property of any Borrower
that is now or hereafter in the possession or control of any Lender, or on which any Lender has
been granted a Lien.



“Collateral Access Agreement” shall mean any agreement of any lessor, warehouseman,
processor, consignee or other Person in possession of, having a Lien upon or having rights or
interests in, any of the Collateral in favor of the Administrative Agent, for the benefit of the
Lenders, in form and substance satisfactory to the Administrative Agent, waiving or subordinating
Liens or certain other rights or interests such Person may hold in regard to the Property of any
Borrower and providing the Administrative Agent access to its Collateral.



“Collateral Related Account” shall mean all deposit, investment, collection, clearing
and concentration accounts (other than petty cash accounts, trust accounts, payroll accounts and
employee benefit accounts which at no time shall contain or relate to Collateral) into which any
proceeds of Collateral are deposited, collected or invested (including all cash and other funds on
deposit therein).



“Compliance Certificate” shall mean a certificate from the chief executive officer or
the chief financial officer or treasurer of the Administrative Borrower in the form of, and
containing the certifications set forth in, the certificate attached hereto as Exhibit
5.1(c).


 


7









 





“Consolidated EBITDA” shall mean, for the Company and its Subsidiaries on a
consolidated basis for any period, an amount equal to the sum of (i) Consolidated Net Income for
such period plus (ii) to the extent deducted in determining Consolidated Net Income for such period
and without duplication, (A) Consolidated Interest Expense, (B) income tax expense determined on a
consolidated basis in accordance with GAAP, (C) depreciation and amortization determined on a
consolidated basis in accordance with GAAP, (D) unusual and non-recurring non-cash charges recorded
during such period, (E) restructuring charges and related expenses incurred during such period;
provided, that the amount of such restructuring charges and related
expenses permitted pursuant to this clause (E) shall not: (1) for the Fiscal Quarters ending
on December 31, 2008, March 31, 2009 and June 30, 2009, exceed the amounts set forth on Schedule
1.1(a) for each such Fiscal Quarter as specified therein, (2) for the period beginning on the
Restatement Date and ending on December 31, 2009, exceed $11,500,000 in the aggregate and (3) for
the Fiscal Year ending on December 31, 2010, exceed $22,000,000 in the aggregate, (F) those certain
cash charges for the Fiscal Quarters ended March 31, 2009 and June 30, 2009 as set forth on
Schedule 1.1(b) for each such Fiscal Quarter as specified therein relating to the Company’s exit
from the Denver, Colorado market and (G) non-cash compensation expenses arising from the issuance
of stock, options to purchase stock and stock appreciation rights to the officers, directors and
employees of the Company and its Subsidiaries, determined on a consolidated basis in accordance
with GAAP, in each case for such period; provided, further, in no event shall (x)
the add-backs provided for in clause (E)(2) or (E)(3) exceed $10,000,000 during any Fiscal Quarter
for the periods described therein or (y) the add-backs provided for in clause (E)(1), (E)(2) or
(E)(3) exceed $30,000,000 during any period of twelve consecutive fiscal months for any of the
periods described therein.



“Consolidated Interest Expense” shall mean, for the Company and its Subsidiaries for
any period determined on a consolidated basis in accordance with GAAP, total interest expense,
including without limitation the interest component of any payments in respect of Capital Lease
Obligations capitalized or expensed during such period (whether or not actually paid during such
period).



“Consolidated Net Income” shall mean, for the Company and its Subsidiaries for any
period, the net income (or loss) of the Company and its Subsidiaries for such period determined on
a consolidated basis in accordance with GAAP, but excluding therefrom (to the extent otherwise
included therein) (i) any extraordinary gains or losses (other than losses arising out of
discontinued operations), (ii) any gains attributable to write-ups of assets, (iii) any income (or
loss) of any Person accrued prior to the date it becomes a Subsidiary of the Company or is merged
into or consolidated with the Company or any Subsidiary of the Company on the date that such
Person’s assets are acquired by the Company or any Subsidiary of the Company and (iv) any Equity
Interest of the Company and its Subsidiaries in the unremitted earnings of any Person that is not a
Subsidiary.



“Consolidated Total Debt” shall mean, as of any date, all Indebtedness of the Company
and its Subsidiaries measured on a consolidated basis as of such date, but excluding Indebtedness
of the type described in subsection (xi) of the definition thereto.



“Contractual Obligation” of any Person shall mean any provision of any security issued
by such Person or of any agreement, instrument or undertaking under which such Person is obligated
or by which it or any of the property in which it has an interest is bound.



“Control” shall mean 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 ownership of
voting securities, by contract or otherwise, and “Controlling” and “Controlled” shall have meanings
correlative thereto.


 


8









 





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




“Default Interest” shall have the meaning set forth in Section 2.12(c).



“Defaulting Lender” shall mean, at any time, a Lender as to which the Administrative
Agent has notified the Administrative Borrower that (i) such Lender has failed for three or more
Business Days to comply with its obligations under this Agreement to make a Loan, make a payment to
the Issuing Bank in respect of a Letter of Credit and/or make a payment to the Swingline Lender in
respect of a Swingline Loan (each a “funding obligation”), (ii) such Lender has notified
the Administrative Agent, or has stated publicly, that it will not comply with any such funding
obligation hereunder, (iii) such Lender has, for three or more Business Days, failed to confirm in
writing to the Administrative Agent, in response to a written request of the Administrative Agent,
that it will comply with its funding obligations hereunder, (iv) a Lender Insolvency Event has
occurred and is continuing with respect to such Lender or (v) such Lender or its Parent Company has
received a non-investment grade rating from Moody’s or S&P or another nationally recognized rating
agency. Any determination that a Lender is a Defaulting Lender under clauses (i) through (v) above
will be made by the Administrative Agent in its sole discretion acting in good faith. The
Administrative Agent will promptly send to all parties hereto a copy of any notice to the
Administrative Borrower provided for in this definition. To the extent that any Lender is a
Defaulting Lender, such Defaulting Lender and all of its Revolving Commitments and Revolving Credit
Exposure shall be excluded for purposes of determining Required Lenders.




“Dollar(s)” and the sign “$” shall mean lawful money of the United States of America.



“Eligible Accounts” shall mean, at any particular date, all Accounts of the Borrowers
that the Administrative Agent, in the exercise of its Permitted Discretion, determines to be
Eligible Accounts; provided, however, that, without limiting the right of the
Administrative Agent to establish other criteria of ineligibility, Eligible Accounts shall not
include any of the following Accounts:



(a) Accounts not arising from the bona fide sale and delivery of goods by a Borrower or
rendition of services by such Borrower, in each case, relating to the business of advertising,
marketing and related services, syndication or licensing of rights by such Borrower in the ordinary
course of its business which transactions are completed in accordance with the terms and provisions
contained in any documents related thereto;



(b) Accounts with respect to which more than ninety (90) days have elapsed since the original
invoice or sixty (60) days since the due date of the original invoice; provided, Accounts
consisting of national broadcast accounts which are unpaid more than ninety (90) days after the
original due date thereof in an amount not to exceed $2,000,000 in the aggregate shall not be
deemed ineligible under this clause (b);


 


9









 





(c) Accounts with respect to which any of the representations, warranties, covenants and
agreements contained herein or in the Security Agreement, as it relates to such Account, are not or
have ceased to be correct or have been breached;



(d) Accounts with respect to which, in whole or in part, a check, promissory note, draft,
trade acceptance or other instrument for the payment of money has been received, presented for
payment and returned uncollected for any reason, unless the Account Debtor subsequently honors such
check, note, draft, acceptance or instrument or pays such Account or part thereof paid therewith;



(e) Accounts as to which the applicable Borrower has not performed, as of the applicable date
of calculation, all of its obligations then required to have been performed, including, without
limitation, the delivery of merchandise or rendition of services applicable to such Accounts;



(f) Accounts as to which any one or more of the following events has occurred with respect to
the Account Debtor on such Accounts: death or judicial declaration of incompetency of such Account
Debtor who is an individual; the filing by or against such Account Debtor of a request or petition
for liquidation, reorganization, arrangement, adjustment of debts, adjudication as a bankrupt,
winding-up, or other relief under the bankruptcy, insolvency, or similar laws of the US, any state
or territory thereof, or any foreign jurisdiction, now or hereafter in effect; the making of any
general assignment by such Account Debtor for the benefit of creditors; the appointment of a
receiver or trustee for such Account Debtor or for any of the assets of such Account Debtor,
including, without limitation, the appointment of or taking possession by a “custodian,” as defined
in Bankruptcy Code; the institution by or against such Account Debtor of any other type of
insolvency proceeding (under the bankruptcy laws of the US or otherwise) or of any formal or
informal proceeding for the dissolution or liquidation of, settlement of claims against, or winding
up of affairs of, such Account Debtor; the sale, assignment, or transfer of all or substantially
all of the assets of such Account Debtor unless the obligations of such Account Debtor in respect
of the Accounts are assumed by and assigned to such purchaser or transferee; the nonpayment
generally by such Account Debtor of its debts as they become due; or the cessation of the business
of such Account Debtor as a going concern; provided, however, that the foregoing
shall not include post-petition Accounts of an Account Debtor to the extent that (i) such Accounts
constitute Accounts of such Account Debtor as a “debtor-in-possession” and (ii) such Accounts have
been approved by the Administrative Agent in its Permitted Discretion;



(g) Accounts of an Account Debtor for whom fifty percent (50%) or more of the aggregate Dollar
amount of such Account Debtor’s outstanding Accounts are classified as ineligible under the
criteria set forth in clause (b) hereof;




(h) Accounts which represent the remaining obligations for partially paid invoices;



(i) Accounts owed by an Account Debtor which: (i)(A) does not maintain its chief executive
office or have a material presence in the United States of America or in Canada and (B) is not
organized under the laws of the United States of America or any state or territory
thereof or of Canada or any province thereof; or (ii) is the government of any foreign country
or sovereign state, or of any state, municipality, or other political subdivision thereof, or of
any department, agency, public corporation, or other instrumentality thereof; except to the extent
that such Accounts are secured or payable by a letter of credit or acceptance, or insured under
foreign credit insurance in each case, on terms and conditions satisfactory to the Administrative
Agent in its Permitted Discretion;


 


10









 





(j) Accounts owed by an Account Debtor which is an Affiliate or employee of any Borrower;



(k) Accounts which are owed by an Account Debtor to which any Borrower is indebted in any way,
or which are subject to any right of setoff by the Account Debtor, including, without limitation,
for co-op advertising, rebates, incentives and promotions, to the extent of such indebtedness or
right of setoff and without duplication of any such indebtedness or right of setoff accounted for
in any calculation of dilution made by the Administrative Agent;



(l) Accounts which are subject to any customer dispute, but only to the extent of the amount
in dispute;



(m) Accounts which are owed by the federal government of the United States of America, or any
department, agency, public corporation, or other instrumentality thereof and as to which the
Administrative Agent determines in its Permitted Discretion that the Administrative Agent’s
security interest therein is not or cannot be perfected or cannot be enforced against the
applicable Account Debtor;



(n) Accounts which are owed by any state, municipality, territory or other non-federal
governmental political entity to the extent such Accounts, in the aggregate, exceed $2,000,000 (and
only the amount of such excess shall be ineligible);



(o) Accounts which represent third-party leasing transactions;



(p) Accounts which represent sales on a bill-and-hold, guaranteed sale, sale and return, sale
on approval, consignment or other repurchase or return basis;



(q) Accounts which represent any contractual obligation, based on a percentage of sales or
otherwise, that must be collected from the Account Debtor and paid by a Borrower to a third party
as a “pass-through” item, but only to the extent of the amount of such pass-through;




(r) Accounts which are evidenced by a promissory note or other instrument or by chattel paper;



(s) Accounts as to which the applicable Account Debtor has not been sent an invoice or for
which are partially billed;



(t) Accounts with respect to which the Account Debtor is located in a state or jurisdiction
that requires, as a condition to access to the courts of such jurisdiction, that a creditor qualify
to transact business, file a business activities report or other report or form, or take one or
more other actions, unless the applicable Borrower has so qualified, filed such reports or
forms, or taken such actions (and, in each case, paid any required fees or other charges), except
to the extent that such Borrower may qualify subsequently as a foreign entity authorized to
transact business in such state or jurisdiction and gain access to such courts, without incurring
any cost or penalty viewed by the Administrative Agent to be significant in amount, and such later
qualification cures any bar to access to such courts to enforce payment of such Account;


 


11









 





(u) Accounts which are not a bona fide, valid and, to the best of the Borrowers’ knowledge,
enforceable obligation of the Account Debtor thereunder;



(v) Accounts which are owed by an Account Debtor with whom any Borrower has any agreement or
understanding for deductions from the Accounts, except for discounts or allowances which are made
in the ordinary course of business for prompt payment or volume purchases and which discounts or
allowances are reflected in the calculation of the face value of each invoice related to such
Accounts, or Accounts with respect to which a debit or chargeback has been issued or generated, in
each case to the extent of such deduction and without duplication of any such deduction accounted
for in any calculation of dilution by the Administrative Agent;



(w) Accounts which are not subject to a valid and continuing first priority Lien in favor of
the Administrative Agent, for the benefit of the Lenders, pursuant to the Security Documents as to
which all action necessary or desirable to perfect such security interest shall have been taken,
and to which the Borrowers have good and marketable title, free and clear of any Liens (other than
Permitted Liens);



(x) Accounts which are owed by an Account Debtor to the extent that such Account, together
with all other Accounts owing by the same Account Debtor and its Affiliates, exceed fifteen percent
(15%) of all Eligible Accounts;



(y) Accounts which represent rebates, refunds or other similar transactions, but only to the
extent of the amount of such rebate, refund or similar transaction;



(z) Accounts as to which a security agreement, financing statement, equivalent security or
Lien instrument or continuation statement is on file or of record in any public office, except
pursuant to the Security Documents and except related to a Permitted Lien, and any such with
respect to a Lien granted by an Account Debtor in favor of a Borrower;



(aa) Accounts as to which there are facts, events or occurrences which in the Administrative
Agent’s Permitted Discretion would impair the validity, enforceability or collectability of such
Accounts or reduce the amount payable or delay payment thereunder;



(bb) Accounts owed by Account Debtors whose total indebtedness to such Borrower exceeds the
credit limit with respect to such Account Debtors as determined by such Borrower from time to time,
to the extent such credit limit as to any Account Debtor is established consistent with the current
practices of such Borrower as of the Restatement Date and such credit limit is acceptable to the
Administrative Agent (but the portion of the Accounts not in excess of such credit limit may be
deemed Eligible Accounts if such Accounts are otherwise Eligible Accounts); and


 


12









 





(cc) Accounts owed by Account Debtors not deemed creditworthy at any time by the
Administrative Agent in its Permitted Discretion.



“Eligible Inventory” shall mean, as of any particular date, the portion of the
Inventory of the Borrowers that the Administrative Agent, in the exercise of its Permitted
Discretion, determines to be Eligible Inventory; provided, however, that without
limiting the right of the Administrative Agent to establish other criteria of ineligibility,
Eligible Inventory shall not include any of the following Inventory:




(a) Inventory that is not owned solely by a Borrower;



(b) Inventory that does not conform to all of the warranties and representations regarding the
same which are set forth in this Agreement or any of the other Loan Documents;



(c) Inventory that is not located in the continental US either (i) on Real Estate or (ii) on
leased premises; provided, that if the landlord with respect to any leased premises thereof
has a priming Lien (statutory or otherwise) with respect to the Inventory at such location then the
Inventory at such location shall not be deemed “Eligible Inventory” unless such Person, and any
bailee, warehouseman or similar party that will be in possession of such Inventory, shall have
executed and delivered to the Administrative Agent a Collateral Access Agreement or with respect to
which the Administrative Agent has established a Rent Reserve, in each case at the option of the
Administrative Borrower;



(d) Inventory at any location where the fair market value of the Inventory stored or located
at such location is $100,000 or less;



(e) Inventory in the possession of any bailee, warehouseman or similar party unless such
Person shall have executed and delivered to the Administrative Agent a Collateral Access Agreement;



(f) Inventory that is subject to any claim of reclamation, Lien (other than the Liens in favor
of the Administrative Agent), adverse claim, interest or right of any other Person;




(g) Inventory that has been consigned to or by any Person;



(h) Inventory that is not in good condition or does not meet all standards imposed by any
Person having regulatory authority over such goods or their use and/or sale, or Inventory that is
not currently saleable or useable in the normal course of a Borrower’s business;




(i) Inventory that consists of work-in-process, supplies or finished goods;



(j) Inventory scheduled for return to vendors, Inventory which is obsolete or slow-moving (for
purposes of this subsection, what constitutes “obsolete or slow-moving” Inventory shall be
determined by the Administrative Agent in its Permitted Discretion), display items, packaging
materials, labels or name plates or similar supplies;


 


13









 





(k) Inventory that is not personal property in which a Borrower has granted a valid and
continuing first priority Lien in favor of the Administrative Agent, for the benefit of the
Lenders, pursuant to the Security Documents, or as to which all action necessary to perfect such
security interest has not been taken;



(l) Inventory that is covered, in whole or in part, by any security agreement, financing
statement, equivalent security or Lien instrument or continuation statement which is on file or of
record in any public office, except such as may have been filed in favor of the Administrative
Agent, for the benefit of the Lenders, pursuant to the Security Documents;



(m) Inventory that is subject to any licensing, patent, royalty, trademark, trade name or
copyright agreement with any third party requiring the payment of royalties or fees or requiring
the consent of the licensor for a sale thereof by the Administrative Agent and is not subject to a
Licensor Consent Agreement that has been requested by the Administrative Agent in its Permitted
Discretion; or




(n) Inventory that constitutes In-Transit Inventory.



“Eligible Real Property” shall mean, at all times, Real Estate which satisfies all of
the following requirements as confirmed by the Administrative Agent: (a) such Real Estate is owned
in fee simple by a Borrower; (b) such Real Estate is located in a state of the United States of
America or in the District of Columbia; (c) a Borrower has the right to take the following actions
without the need to obtain the consent of any Person: (i) to create Liens on such Real Estate as
security for Indebtedness of such Borrower, and (ii) to sell, transfer or otherwise dispose of such
Real Estate; (d) such Real Estate is subject to neither (i) any Lien other than Permitted
Encumbrances (as defined in the Mortgage relating to such Real Estate) or (ii) any negative pledge;
(e) such Real Estate is free of all structural defects, title defects, environmental conditions or
other adverse matters except for defects, conditions or matters which are not individually or
collectively material to the profitable operation of such Real Estate and (f) such Real Estate is
subject to a Mortgage creating a perfected first-priority Lien in favor of the Administrative Agent
in all of such Borrower’s right title and interest in such Real Estate.



“Eligible Tax Refund” shall mean the tax refund receivable by the Company for the 2008
tax year.



“Environmental Laws” shall have the meaning assigned to the term “Environmental Law”
in the Environmental Indemnity Agreement dated as of the Restatement Date among the Borrowers and
the Administrative Agent.



“Environmental Liability” shall have the meaning assigned to the term “Losses” in the
Environmental Indemnity Agreement dated as of the Restatement Date among the Borrowers and the
Administrative Agent.



“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time, and any successor statute.



“ERISA Affiliate” shall mean any trade or business (whether or not incorporated),
which, together with any Borrower, is treated as a single employer under Section 414(b) or (c) of
the Code or, solely for the purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.


 


14









 





“ERISA Event” shall mean (i) any “reportable event,” as defined in Section 4043 of
ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which
the 30-day notice period is waived); (ii) the failure of any Plan to meet the minimum funding
standard applicable to the Plan for a plan year under Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (iii) the filing pursuant to Section 412(c) of the Code or Section
302(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any
Plan; (iv) the incurrence by any Borrower or any of its ERISA Affiliates of any liability under
Title IV of ERISA with respect to the termination of any Plan; (v) the receipt by any Borrower or
any ERISA Affiliate from the PBGC or a plan administrator appointed by the PBGC of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any
Plan; (vi) the incurrence by any Borrower or any of its ERISA Affiliates of any liability with
respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (vii) the
receipt by any Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer
Plan from any Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of ERISA.



“Equity Interests” shall mean, as applied to any Person, any capital stock, membership
interests, partnership interests or other equity interests of such Person, regardless of class or
designation, and all warrants, options, purchase rights, conversion or exchange rights, voting
rights, calls or claims of any character with respect thereto.



“Eurodollar” when used in reference to any Revolving Loan or Borrowing of a Revolving
Loan, refers to whether such Loan, or the Loans comprising such Borrowing, bears interest at a rate
determined by reference to the Adjusted LIBO Rate.



“Eurodollar Reserve Percentage” shall mean the aggregate of the maximum reserve
percentages (including, without limitation, any emergency, supplemental, special or other marginal
reserves) expressed as a decimal (rounded upwards to the next 1/100th of 1%) in effect
on any day to which the Administrative Agent is subject with respect to the Adjusted LIBO Rate
pursuant to regulations issued by the Board of Governors of the Federal Reserve System (or any
Governmental Authority succeeding to any of its principal functions) with respect to eurocurrency
funding (currently referred to as “eurocurrency liabilities” under Regulation D, T, U and X).
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such
reserve requirements without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under Regulation D, T, U and X. The Eurodollar Reserve
Percentage shall be adjusted automatically on and as of the effective date of any change in any
reserve percentage.




“Event of Default” shall have the meaning provided in Article VIII.



“Excess Availability” shall mean, as of any date of determination, the amount (if any)
by which (a) the lesser of (i) the Aggregate Revolving Commitment Amount on such date of
determination and (ii) the Borrowing Base as most recently reported by the Borrowers on or
prior to such date of determination, exceeds (b) the Aggregate Revolving Credit Exposures for
all Lenders on such date of determination.


 


15









 





“Excluded Accounts” shall mean account number 2000017533432 maintained at Wachovia
Bank, N.A. and account number 6007631 maintained at Bank of America, N.A., each in the name of
D.I.Y. Insurance Company.



“Excluded Taxes” shall mean with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
any Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by
the United States of America, or by the jurisdiction 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 of
America or any similar tax imposed by any other jurisdiction in which any Lender is located and (c)
in the case of a Foreign Lender, any withholding tax that (i) is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement, (ii) is imposed
on amounts payable to such Foreign Lender at any time that such Foreign Lender designates a new
lending office, other than taxes that have accrued prior to the designation of such lending office
that are otherwise not Excluded Taxes, and (iii) is attributable to such Foreign Lender’s failure
to comply with Section 2.19(e).



“Fair Market Value” shall mean with respect to any Real Estate, the price which could
be negotiated in an arm’s-length free market transaction, for cash, between a willing seller and a
willing buyer, neither of which is under pressure or compulsion to complete the transaction, within
a commercially reasonable period of time, each having reasonable knowledge of the relevant facts,
as may be determined by the Administrative Agent from time to time in its Permitted Discretion
based upon Appraisals and such other assessments or factors as may be employed from time to time by
the Administrative Agent.



“Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if
necessary, to the next 1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with member banks of the Federal Reserve System arranged by
Federal funds brokers, as published by the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the
quotations for such day on such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by the Administrative Agent.



“Fee Letter” shall mean that certain fee letter, dated as of July 8, 2009, executed by
SunTrust Robinson Humphrey, Inc. and accepted by the Company related to the Administrative Agent’s
fees.



“Financial Covenant” shall mean the financial covenant applicable to the Borrowers
from time to time pursuant to Section 6.1.


 


16









 





“Financial Covenant Threshold Amount” shall mean an amount equal to fifteen percent
(15%) of the Aggregate Revolving Commitment Amount.



“Fixed Charge Coverage Ratio” shall mean, as of the last day of the most recently
ended fiscal month of the Borrowers on any date of determination, for the twelve-month period then
ended, the ratio of (a) (x) Consolidated EBITDA for such period minus (y) the sum of (A) Capital
Expenditures made during such period which were funded in cash and (B) cash tax payments made
during such period (which shall not be less than zero) to (b) the sum of (i) scheduled
payments of principal made with respect to Indebtedness during such period, (ii) Interest Expense
during such period and (iii) Restricted Payments made during such period.




“Fiscal Quarter” shall mean any fiscal quarter of the Company.




“Fiscal Year” shall mean any fiscal year of the Company.



“Foreign Lender” shall mean any Lender that is not a United States person under
Section 7701(a)(3) of the Code.



“GAAP” shall mean generally accepted accounting principles in the United States
applied on a consistent basis and subject to the terms of Section 1.3.



“Governmental Authority” shall mean the government of the United States of America,
any other nation or 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.



“Guarantee” of or by any Person (the “guarantor”) shall mean any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly and including any obligation, direct or
indirect, of the guarantor (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for
the purchase of) any security for the payment thereof, (ii) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (iv) as an account party in respect of any
letter of credit or letter of guaranty issued in support of such Indebtedness or obligation;
provided, that the term “Guarantee” shall not include endorsements for collection or
deposit in the ordinary course of business. The amount of any Guarantee shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith. The term “Guarantee” used as a verb has a corresponding meaning.


 


17









 





“Hazardous Substances” shall have the meaning assigned to such term in the
Environmental Indemnity Agreement dated as of the Restatement Date among the Borrowers and the
Administrative Agent.



“Hedging Obligations” of any Person shall mean any and all obligations of such Person,
whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
under (i) any and all Hedging Transactions, (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Hedging Transactions and (iii) any and all renewals, extensions
and modifications of any Hedging Transactions and any and all substitutions for any Hedging
Transactions.



“Hedging Transaction” of any Person shall mean (a) any transaction (including an
agreement with respect to any such transaction) now existing or hereafter entered into by such
Person that is a rate swap transaction, swap option, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option, spot transaction,
credit protection transaction, credit swap, credit default swap, credit default option, total
return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction,
buy/sell-back transaction, securities lending transaction, or any other similar transaction
(including any option with respect to any of these transactions) or any combination thereof,
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.



“Indebtedness” of any Person shall mean, without duplication (i) all obligations of
such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all obligations of such Person in respect of the deferred
purchase price of property or services (other than trade payables and obligations regarding
programming rights incurred in the ordinary course of business; provided, that for purposes
of Section 8.1(g), trade payables and obligations regarding programming rights overdue by
more than 120 days shall be included in this definition except to the extent that any of such trade
payables and obligations regarding programming rights are being disputed in good faith and by
appropriate measures), (iv) all obligations of such Person under any conditional sale or other
title retention agreement(s) relating to property acquired by such Person, (v) all Capital Lease
Obligations of such Person, (vi) all obligations, contingent or otherwise, of such Person in
respect of letters of credit, acceptances or similar extensions of credit, (vii) all Guarantees of
such Person of the type of Indebtedness described in clauses (i) through (vi) above, (viii) all
Indebtedness of a third party secured by any Lien on property owned by such Person, whether or not
such Indebtedness has been assumed by such Person, (ix) all obligations of such Person, contingent
or otherwise, to purchase, redeem, retire or otherwise acquire for value any Equity Interests of
such Person, (x) Off-Balance Sheet Liabilities, (xi) all Hedging Obligations of such Person in an
amount which exceeds $15,000,000 and (xii) any debt, liability or obligation arising from or in
connection with any Bank Products. The Indebtedness of any Person shall include the Indebtedness
of any partnership in which such Person is a general partner, except to the extent that the terms
of such Indebtedness provide that such Person is not liable therefor. For purposes of this
Agreement, the amount of any Indebtedness referred to in clause (xi) of the preceding
sentence shall be amounts, including any termination payments, required to be paid to a
counterparty after giving effect to any contractual netting arrangements, and not any notional
amount with regard to which payments may be calculated.


 


18









 






“Indemnified Taxes” shall mean Taxes other than Excluded Taxes.



“Interest Expense” shall mean, for the Borrowers and their Subsidiaries, for any
period determined on a consolidated basis in accordance with GAAP, the sum of (i) interest expense
and loan fees, including capitalized and non-capitalized interest and the interest component of
Capitalized Lease Obligations (whether or not actually paid during such period) and (ii) the net
amount payable (or minus the net amount receivable) under any Hedging Transaction during such
period (whether or not actually paid or received during such period).



“Interest Period” shall mean with respect to (i) any Swingline Borrowing, such period
as the Swingline Lender and the Administrative Borrower shall mutually agree and (ii) any
Eurodollar Borrowing, a period of one, two, three or six months; provided, that:




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




(ii) if any Interest Period would otherwise end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day, unless such
Business Day falls in another calendar month, in which case such Interest Period would end
on the next preceding Business Day;




(iii) any Interest Period which 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 such calendar month; and




(iv) no Interest Period may extend beyond the Revolving Commitment Termination Date.




“Investments” shall have the meaning as set forth in Section 7.4.



“In-Transit Inventory” shall mean Inventory of a Borrower that is currently in transit
(whether by vessel, air or land) from (i) a location outside the United States to a location in the
United States or (ii) a location in the United States to another location in the United States.



“Inventory” shall mean all new and unused paper owned by any Borrower, aged less than
one year from date of receipt from the manufacturer and utilized in the publication of various
newsprint media as well as advertisements within such publications, and wherever located.


 


19









 





“Issuing Bank” shall mean SunTrust Bank or any other Lender, each in its capacity as
an issuer of Letters of Credit pursuant to Section 2.21.



“LC Commitment” shall mean that portion of the Aggregate Revolving Commitment Amount
that may be used by the Company for the issuance of Letters of Credit in an aggregate face amount
not to exceed $50,000,000.



“LC Disbursement” shall mean a payment made by the Issuing Bank pursuant to a Letter
of Credit.



“LC Documents” shall mean all applications, agreements and instruments relating to the
Letters of Credit (but excluding the Letters of Credit).



“LC Exposure” shall mean, at any time, the sum of (i) the aggregate undrawn amount of
all outstanding Letters of Credit at such time, plus (ii) the aggregate amount of all LC
Disbursements that have not been reimbursed by or on behalf of any Borrower at such time. The LC
Exposure of any Lender shall be its Pro Rata Share of the total LC Exposure at such time.



“Lender Affiliate” shall mean, as 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 such Person. For the purposes of this definition, “Control” shall mean the power,
directly or indirectly, either to (i) vote 10% or more of the securities having ordinary voting
power for the election of directors (or persons performing similar functions) of a Person or (ii)
direct or cause the direction of the management and policies of a Person, whether through the
ability to exercise voting power, by control, by contract or otherwise. The terms “Controlling”,
“Controlled by”, and “under common Control with” shall have the meanings correlative thereto.



“Lender Insolvency Event” shall mean that (i) a Lender or its Parent Company is
insolvent, or is generally unable to pay its debts as they become due, or admits in writing its
inability to pay its debts as they become due, or makes a general assignment for the benefit of its
creditors, (ii) such Lender consummates or enters into a commitment to consummate a forced (in the
good faith judgment of the Administrative Agent) liquidation, merger, sale of assets or other
transaction resulting, in the good faith judgment of the Administrative Agent, in a change of
ownership or operating control of such Lender supported in whole or in part by guaranties,
assumption of liabilities or other comparable credit support of (including without limitation the
nationalization or assumption of ownership or operating control by) any Governmental Authority or
(iii) such Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization,
liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator
or the like has been appointed for such Lender or its Parent Company, or such Lender or its Parent
Company has taken any action in furtherance of or indicating its consent to or acquiescence in any
such proceeding or appointment.



“Lenders” shall have the meaning assigned to such term in the opening paragraph of
this Agreement and shall include, where appropriate, the Swingline Lender and each Additional
Lender that joins this Agreement pursuant to Section 2.23.


 


20









 





“Letter of Credit” shall mean any stand-by letter of credit issued pursuant to
Section 2.21 by the Issuing Bank for the account of any Borrower pursuant to the LC
Commitment.



“Letter of Credit Reserve Account” shall mean any account maintained by the
Administrative Agent the proceeds of which shall be applied as provided in Section 8.2(d).



“LIBOR” shall mean, for any Interest Period with respect to a Eurodollar Loan, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBOR01 Page (or any successor page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London, England time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for any reason such rate
is not available, LIBOR shall be, for any Interest Period, the rate per annum reasonably determined
by the Administrative Agent as the rate of interest at which Dollar deposits in the approximate
amount of the Eurodollar Loan comprising part of such borrowing would be offered by the
Administrative Agent to major banks in the London interbank Eurodollar market at their request at
or about 10:00 a.m. two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period.



“Lien” shall mean any mortgage, pledge, security interest, lien (statutory or
otherwise), charge, encumbrance, hypothecation, assignment, deposit arrangement, or other
arrangement having the practical effect of any of the foregoing or any preference, priority or
other security agreement or preferential arrangement of any kind or nature whatsoever (including
any conditional sale or other title retention agreement and any capital lease having the same
economic effect as any of the foregoing).



“Loan Documents” shall mean, collectively, this Agreement, the Notes (if any), the
Blocked Account Agreements, the Fee Letter, all Collateral Access Agreements, all Borrowing Base
Certificates, the LC Documents, the Security Documents, the Post-Closing Matters Agreement, all
Notices of Borrowing, all Notices of Conversion/Continuation, all Compliance Certificates and any
and all other instruments, agreements, documents and writings executed by and among any Borrower,
the Administrative Agent or any Lender, the Swingline Lender or the Issuing Bank in connection with
any of the foregoing, including, without limitation, any environmental indemnities related to Real
Estate; provided, however, that, notwithstanding the foregoing, none of the Bank
Product Documents shall constitute Loan Documents.



“Loans” shall mean all Revolving Loans, Swingline Loans and Agent Advances in the
aggregate or any of them, as the context shall require.



“Material Adverse Effect” shall mean, with respect to any event, act, condition or
occurrence of whatever nature (including any adverse determination in any litigation, arbitration,
or governmental investigation or proceeding), whether singularly or in conjunction with any other
event or events, act or acts, condition or conditions, occurrence or occurrences whether or not
related, a material adverse change in, or a material adverse effect on, (i) the business, results
of operations, condition (financial or otherwise), assets, operations, liabilities (contingent or
otherwise) or properties of the Company and its Subsidiaries taken as a whole, (ii) the ability of
the Borrowers to pay any of their obligations under the Loan Documents or perform any of their
obligations under the Loan Documents, (iii) the rights and remedies of the Administrative Agent,
the Issuing Bank, Swingline Lender, and the Lenders under any of the Loan Documents, (iv) the
legality, validity or enforceability of any of the Loan Documents or (v) the attachment,
perfection or priority of any Lien of the Administrative Agent under the Security Documents on
a material portion of the Collateral.


 


21









 





“Material Contracts” shall mean, collectively, all contracts, leases, instruments,
guaranties, licenses or other arrangements (other than the Loan Documents) to which any Borrower is
or becomes a party and which are required to be filed with the U.S. Securities and Exchange
Commission under Regulation S-K.



“Material Indebtedness” shall mean Indebtedness (other than the Loans and Letters of
Credit) of the Company or any of its Subsidiaries, individually or in an aggregate committed or
outstanding principal amount exceeding $7,500,000.




“Moody’s” shall mean Moody’s Investors Service, Inc.



“Mortgage” shall mean a mortgage, deed of trust, deed to secure debt or similar
security instrument made or to be made by a Person owning an interest in real property granting a
Lien on such interest in real estate as security for the payment of Indebtedness.




“Multiemployer Plan” shall have the meaning set forth in Section 4001(a)(3) of ERISA.



“Necessary Authorizations” shall mean all material authorizations, consents, permits,
approvals, licenses, and exemptions from, and all filings and registrations with, and all reports
to, any Governmental Authority whether federal, state, local, and all agencies thereof, which are
required for the transactions contemplated by the Loan Documents and the conduct of the businesses
and the ownership (or lease) of the properties and assets of the Borrowers.



“Net Cash Proceeds” shall mean, with respect to any sale, lease, transfer, casualty
loss or other disposition or loss of assets by any Borrower or any issuance by any Borrower of any
Equity Interests or the incurrence by any Borrower of any Indebtedness (other than the
Obligations), the aggregate amount of cash received for such assets or Equity Interests, or as a
result of such Indebtedness, net of reasonable and customary transaction costs properly
attributable to such transaction and payable by such Borrower to a non-Affiliate in connection with
such sale, lease, transfer or other disposition of assets or the issuance of any Equity Interests
or the incurrence of any Indebtedness, including, without limitation, sales commissions and
underwriting discounts.



“Non-Borrower Subsidiaries” shall mean the following Subsidiaries of the Company: The
Boulder Publishing Company, LLC, The Denver Publishing Company, Hall Systems, Inc., United Media
KK, Longview Holdings and Citywide InfoTech Co. Ltd.



“Non-Defaulting Lender” shall mean, at any time, a Lender that is not a Defaulting
Lender.


 


22









 





“Notes” shall mean, collectively, the Revolving Credit Notes and the Swingline Note.



“Notices of Borrowing” shall mean, collectively, the Notices of Revolving Borrowing,
and the Notices of Swingline Borrowing.



“Notice of Conversion/Continuation” shall mean the notice given by the Administrative
Borrower to the Administrative Agent in respect of the conversion or continuation of an outstanding
Borrowing as provided in Section 2.6(b).



“Notice of Revolving Borrowing” shall have the meaning as set forth in Section
2.3.



“Notice of Swingline Borrowing” shall have the meaning as set forth in Section
2.4.



“Obligations” shall mean (a) all amounts owing by any Borrower to the Administrative
Agent, the Issuing Bank or any Lender (including the Swingline Lender) pursuant to or in connection
with this Agreement or any other Loan Document or otherwise with respect to any Loan or Letter of
Credit, including without limitation, all principal, interest (including any interest accruing
after the filing of any petition in bankruptcy or the commencement of any insolvency,
reorganization or like proceeding relating to any Borrower, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding), all reimbursement obligations, fees,
expenses, indemnification and reimbursement payments, costs and expenses (including all reasonable
fees and expenses of counsel to the Administrative Agent, the Issuing Bank and any Lender
(including the Swingline Lender) incurred pursuant to this Agreement or any other Loan Document),
whether direct or indirect, absolute or contingent, liquidated or unliquidated, now existing or
hereafter arising hereunder or thereunder, and (b) all obligations of any Borrower in respect of
Bank Products between any Borrower and any Lender or Affiliate of any Lender, together with all
renewals, extensions, modifications or refinancings of any of the foregoing.



“OFAC” shall mean the U.S. Department of the Treasury’s Office of Foreign Assets
Control.



“Off-Balance Sheet Liabilities” of any Person shall mean (i) any repurchase obligation
or liability of such Person with respect to accounts or notes receivable sold by such Person, (ii)
any liability of such Person under any sale and leaseback transactions that do not create a
liability on the balance sheet of such Person, (iii) any Synthetic Lease Obligation or (iv) any
obligation arising with respect to any other transaction which is the functional equivalent of or
takes the place of borrowing but which does not constitute a liability on the balance sheet of such
Person.



“OSHA” shall mean the Occupational Safety and Health Act of 1970, as amended from time
to time, and any successor statute.



“Other Taxes” shall mean any and 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.


 


23









 





“Organizational Documents” means (i) with respect to any corporation, its certificate
or articles of incorporation or organization, as amended, and its by-laws, as amended, (ii) with
respect to any limited partnership, its certificate of limited partnership, as amended, and its
partnership agreement, as amended, (iii) with respect to any general partnership, its partnership
agreement, as amended, and (iv) with respect to any limited liability company, its articles of
organization, certificate of formation or comparable documents, as amended, and its operating
agreement, as amended. In the event any term or condition of this Agreement or any other Credit
Document requires any Organizational Document to be certified by a secretary of state or similar
governmental official, the reference to any such “Organizational Document” shall only be to a
document of a type customarily certified by such governmental official.




“Overadvances” shall have the meaning set forth in Section 2.2(b).



“Parent Company” shall mean, with respect to a Lender, the bank holding company (as
defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person owning,
beneficially or of record, directly or indirectly, a majority of the shares of such Lender.




“Participant” shall have the meaning set forth in Section 10.4(d).




“Patriot Act” shall have the meaning set forth in Section 10.14.



“Payment Office” shall mean the office of the Administrative Agent located at 303
Peachtree Street, N.E., Atlanta, Georgia 30308, or such other location as to which the
Administrative Agent shall have given written notice to the Administrative Borrower and the other
Lenders.



“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in
ERISA, and any successor entity performing similar functions.



“Perfection Certificate” shall mean a certificate or certificates of the Borrowers in
substantially the form of Exhibit F hereto.



“Permitted Discretion” shall mean a determination made by the Administrative Agent in
the exercise of reasonable commercial discretion in accordance with customary business practices
for comparable asset-based lending transactions from time to time.




“Permitted Investments” shall mean:




(i) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the United States), in each case
maturing within one year from the date of acquisition thereof;


 


24









 






(ii) commercial paper having the highest rating, at the time of acquisition thereof, of
S&P or Moody’s and in either case maturing within six months from the date of acquisition
thereof;




(iii) certificates of deposit, bankers’ acceptances and time deposits maturing within
180 days of the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States or any state thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;




(iv) fully collateralized repurchase agreements with a term of not more than 30 days
for securities described in clause (i) above and entered into with a financial institution
satisfying the criteria described in clause (iii) above; and




(v) mutual funds investing solely in any one or more of the Permitted Investments
described in clauses (i) through (iv) above.




“Permitted Liens” shall mean, as applied to any Person:



(a) Any Lien in favor of the Administrative Agent or any other Lender given to secure the
Obligations;



(b) (i) Liens on real estate for real estate taxes not yet delinquent and (ii) Liens for
taxes, assessments, judgments, governmental charges or levies, or claims not yet delinquent or the
non-payment of which is being diligently contested in good faith by appropriate proceedings and for
which adequate reserves have been set aside on such Person’s books;



(c) Liens of carriers, warehousemen, mechanics, laborers, suppliers, workers and materialmen
incurred in the ordinary course of business for sums not yet due or being diligently contested in
good faith, if such reserve or appropriate provision, if any, as shall be required by GAAP shall
have been made therefor;



(d) Liens incurred in the ordinary course of business in connection with worker’s compensation
and unemployment insurance or other types of social security benefits;



(e) Easements, rights-of-way, restrictions (including zoning or deed restrictions), and other
similar encumbrances on the use of real property which in the reasonable opinion of the
Administrative Agent do not materially interfere with the ordinary conduct of the business of such
Person;



(f) Purchase money security interests and Liens securing Capitalized Lease Obligations
provided that such Lien attaches only to the asset (which asset shall not constitute Inventory) so
purchased or leased by such Person and secures only Indebtedness incurred by such Person in order
to purchase or lease such asset, but only to the extent permitted by Section 7.1;


 


25









 





(g) Deposits to secure the performance of bids, trade contracts, tenders, sales, leases,
statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;



(h) Liens on assets of the Borrowers existing as of the Restatement Date which are set forth
on Schedule 7.2;



(i) Statutory Liens in favor of landlords with respect to Inventory at leased premises in a
state that provides for statutory Liens in favor of landlords or Liens arising under leases entered
into by a Borrower in the ordinary course of business;



(j) with respect to Real Estate subject to a Mortgage, Permitted Encumbrances (as defined in
such Mortgage); and



(k) judgment and attachment liens not giving rise to an Event of Default or Liens created by
or existing from any litigation or legal proceeding that are currently being contested in good
faith by appropriate proceedings and with respect to which adequate reserves are being maintained
in accordance with GAAP.



“Person” shall mean any individual, partnership, firm, corporation, association, joint
venture, limited liability company, trust or other entity, or any Governmental Authority.



“Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which any Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.



“Post Closing Matters Agreement” shall mean that certain Post-Closing Matters
Agreement dated as of the date hereof between the Company and the Administrative Agent on behalf of
the Lenders.



“Pro Forma Basis” shall mean, in connection with any calculation of compliance with
any financial covenant in Article VI hereof, the calculation thereof after giving effect on a pro
forma basis to (x) the incurrence, assumption, acquisition or repayment of any Indebtedness after
the first day of the relevant period of four consecutive Fiscal Quarters (the “Relevant Period”)
(including any incurrence of Indebtedness to finance a transaction or payment giving rise for the
need to make such determination) as if such Indebtedness had been incurred, assumed, acquired or
repaid on the first day of such Relevant Period, (y) the making of any Restricted Payment or
Investment after the first day of the Relevant Period as if such Restricted Payment or Investment
had been made on the first day of such Relevant Period and (z) the sale or other disposition of
assets (including sales in connection with a Sale/Leaseback Transaction) after the first day of the
Relevant Period as if such asset sale had been made as of the first day of such Relevant Period.



“Pro Rata Share” shall mean, with respect to any Lender at any time, a percentage, the
numerator of which shall be the sum of such Lender’s Revolving Commitment (or if such Revolving
Commitments have been terminated or expired or the Loans have been declared to be due and payable,
such Lender’s Revolving Credit Exposure) and the denominator of which shall be the sum of all
Lenders’ Revolving Commitments (or if such Revolving Commitments have been terminated or expired or
the Loans have been declared to be due and payable, all Revolving Credit Exposure of all Lenders
funded under such Revolving Commitments).


 


26









 





“Property” shall mean any real property or personal property, plant, building,
facility, structure, underground storage tank or unit, equipment, Inventory or other asset owned,
leased or operated by any Borrower or any Subsidiary (including, without limitation, any surface
water thereon or adjacent thereto, and soil and groundwater thereunder).



“Real Estate” means a parcel (or group of related parcels) of real property owned by a
Borrower.



“Regulation D, T, U and X” shall mean Regulation D, T, U and X, respectively, of the
Board of Governors of the Federal Reserve System, as the same may be in effect from time to time,
and any successor regulations.



“Related Parties” shall mean, with respect to any specified Person, such Person’s
Affiliates and the respective managers, administrators, trustees, partners, directors, officers,
employees, agents, advisors or other representatives of such Person and such Person’s Affiliates.



“Release” shall have the meaning assigned to such term in the Environmental Indemnity
Agreement dated as of the Restatement Date among the Borrowers and the Administrative Agent.



“Rent Reserve” shall mean, with respect to any leased real property an amount equal to
three (3) months rental expense for such leased real property (or such other amount as the
Administrative Agent may deem appropriate in its Permitted Discretion based on the circumstances).



“Required Lenders” shall mean, at any time, Lenders holding more than 50% of the
aggregate outstanding Revolving Commitments at such time or if the Lenders have no Revolving
Commitments outstanding, then Lenders holding more than 50% of the Revolving Credit Exposure;
provided, that if at any time only two (2) Lenders exist hereunder, Required Lenders shall
mean both such Lenders.



“Requirement of Law” for any Person shall mean the Organizational Documents of such
Person, and any law, treaty, rule or regulation, or determination of a Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to which such Person
or any of its property is subject.



“Reserves” shall mean reserves that the Administrative Agent may establish from time
to time in its Permitted Discretion for such purposes as the Administrative Agent shall deem
necessary. Without limiting the generality of the foregoing, the following reserves shall be
deemed an exercise of the Administrative Agent’s Permitted Discretion: (a) reserves for price
adjustments and damages, (b) reserves for obsolescence of Inventory; (c) reserves for special order
goods and deferred shipment sales; (d) reserves for potential dilution related to Accounts; (e)
reserves for accrued but unpaid ad valorem, excise and personal property tax liability; (f) Bank
Product Reserves; (g) reserves for accrued, unpaid interest on the Obligations; (h) reserves for
landlord’s, warehousemen’s, bailees’, shippers’, brokers’ or carriers’ charges; (i) with respect to
Eligible Inventory, reserves for any required royalty or similar licensing payments, (j) Rent
Reserves; (k) reserves for liabilities arising as a result of the occurrence of an ERISA Event and
(l) reserves for any other matter that has a negative impact on the value of the Collateral.


 


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“Responsible Officer” shall mean any of the president, the chief executive officer,
the chief operating officer, the chief financial officer, the treasurer or a vice president of the
Company or such other representative of the Borrowers as may be designated in writing by any one of
the foregoing with the consent of the Administrative Agent; and, with respect to the financial
covenants, Borrowing Base Certificate and Compliance Certificate, Responsible Officer shall mean
only the chief financial officer or the treasurer of the Company or such other officer of the
Company as may be agreed to in writing by the Administrative Agent.



“Restatement Date” shall mean the date on which the conditions precedent set forth in
Section 3.1 have been satisfied or waived in accordance with Section 10.2.




“Restricted Payment” shall have the meaning set forth in Section 7.5.



“Revolving Commitment” shall mean, with respect to each Lender, the commitment of such
Lender to make Revolving Loans to the Borrowers and to acquire participations in Letters of Credit
and Swingline Loans in an aggregate principal amount not exceeding the amount set forth with
respect to such Lender on Schedule II, as such schedule may be amended pursuant to
Section 2.23, or in the case of a Person becoming a Lender after the Restatement Date
through an assignment of an existing Revolving Commitment, the amount of the assigned “Revolving
Commitment” as provided in the Assignment and Acceptance executed by such Person as an assignee, in
each case as such commitment may be subsequently increased or deceased pursuant to terms hereof.



“Revolving Commitment Termination Date” shall mean the earliest of (i) June 30, 2013,
(ii) the date on which the Revolving Commitments are terminated pursuant to Section 2.7 and
(iii) the date on which all amounts outstanding under this Agreement have been declared or have
automatically become due and payable (whether by acceleration or otherwise).



“Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the
sum of the outstanding principal amount of such Lender’s Revolving Loans, Agent Advance Exposure,
LC Exposure and Swingline Exposure.



“Revolving Credit Note” shall mean an amended and restated promissory note of the
Borrowers payable to the order of a requesting Lender in the principal amount of such Lender’s
Revolving Commitment, in substantially the form of Exhibit A.



“Revolving Loan” shall mean a loan made by a Lender (other than the Swingline Lender)
to the Borrowers under its Revolving Commitment, which may either be a Base Rate Loan or a
Eurodollar Loan.




“S&P” shall mean Standard & Poor’s, a Division of the McGraw-Hill Companies.


 


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“Sanctioned Country” shall mean a country subject to a sanctions program identified on
the list maintained by OFAC and available at
http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise published
from time to time.



“Sanctioned Person” shall mean (i) a Person named on the list of “Specially
Designated Nationals and Blocked Persons” maintained by OFAC available at
http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or as otherwise published from
time to time, or (ii) (A) an agency of the government of a Sanctioned Country, (B) an organization
controlled by a Sanctioned Country, or (C) a person resident in a Sanctioned Country, to the extent
subject to a sanctions program administered by OFAC.




“Sale/Leaseback Transaction” shall have the meaning set forth in Section 7.9.



“Security Agreement” shall mean that certain Pledge and Security Agreement dated as of
the Restatement Date among the Borrowers and the Administrative Agent, on behalf of, and for the
benefit of, the Lenders.



“Security Documents” shall mean, collectively, the Security Agreement, all UCC-1
financing statements, any Mortgages relating to Real Estate and any other document, instrument or
agreement granting Collateral for the Obligations, as the same may be amended or modified from time
to time.



“Subsidiary” shall mean, with respect to any Person (the “parent”), any
corporation, partnership, joint venture, limited liability company, association or other entity the
accounts of which would be consolidated with those of the parent in the parent’s consolidated
financial statements if such financial statements were prepared in accordance with GAAP as of such
date, as well as any other corporation, partnership, joint venture, limited liability company,
association or other entity (i) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power, or in the case of a
partnership, more than 50% of the general partnership interests are, as of such date, owned,
controlled or held, or (ii) that is, as of such date, otherwise controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
Unless otherwise indicated, all references to “Subsidiary” hereunder shall mean a Subsidiary of a
Borrower.



“Swingline Commitment” shall mean the commitment, if any, of the Swingline Lender to
make Swingline Loans. As of the Restatement Date, the Swingline Commitment is equal to
$15,000,000.



“Swingline Exposure” shall mean, with respect to each Lender, the principal amount of
the Swingline Loans in which such Lender is legally obligated either to make a Base Rate Loan or to
purchase a participation in accordance with Section 2.4, which shall equal such Lender’s
Pro Rata Share of all outstanding Swingline Loans.




“Swingline Lender” shall mean SunTrust Bank.


 


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“Swingline Loan” shall mean a loan made to the Borrowers by the Swingline Lender under
the Swingline Commitment.



“Swingline Note” shall mean the promissory note of the Borrowers payable to the order
of the Swingline Lender in the principal amount of the Swingline Commitment, substantially the form
of Exhibit B.



“Swingline Rate” shall mean, for any Interest Period, the Base Rate in effect from
time to time plus the Applicable Margin.



“Synthetic Lease” shall mean a lease transaction under which the parties intend that
(i) the lease will be treated as an “operating lease” by the lessee pursuant to Statement of
Financial Accounting Standards No. 13, as amended and (ii) the lessee will be entitled to various
tax and other benefits ordinarily available to owners (as opposed to lessees) of like property.



“Synthetic Lease Obligations” shall mean, with respect to any Person, the sum of (i)
all remaining rental obligations of such Person as lessee under Synthetic Leases which are
attributable to principal and, without duplication, (ii) all rental and purchase price payment
obligations of such Person under such Synthetic Leases assuming such Person exercises the option to
purchase the lease property at the end of the lease term.



“Taxes” shall mean any and all present or future taxes, levies, imposts, duties,
deductions, charges, assessments or withholdings imposed by any Governmental Authority, including
any interests, additions to tax or penalties applicable thereto.



“Trust” shall mean The Edward W. Scripps Trust, being that certain trust for the
benefit of descendants of Edward W. Scripps and owning shares of capital stock of the Company.



“Type,” when used in reference to a Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Base Rate.



“UCC” shall mean the Uniform Commercial Code as the same may, from time to time, be
enacted and in effect in the State of New York; provided, that to the extent that the UCC
is used to define any term herein and such term is defined differently in different Articles or
Divisions of the UCC, the definition of such term contained in Article or Division 9 shall govern;
provided further, that in the event that, by reason of mandatory provisions of law,
any or all of the attachment, perfection or priority of, or remedies with respect to, the
Administrative Agent’s Lien on any Collateral is governed by the Uniform Commercial Code as enacted
and in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the
Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of
the provisions thereof relating to such attachment, perfection, priority or remedies and for
purposes of definitions related to such provisions.



“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.


 


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Section 1.2. Classifications of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g. a “Revolving Loan” or a “Swingline Loan”) or
by Type (e.g. a “Eurodollar Loan” or a “Base Rate Loan”) or by Class and Type (e.g. “Revolving
Eurodollar Loan”). Borrowings also may be classified and referred to by Class (e.g. “Revolving
Borrowing”) or by Type (e.g. “Eurodollar Borrowing”) or by Class and Type (e.g. “Revolving
Eurodollar Borrowing”).



Section 1.3. Accounting Terms and Determination. Unless otherwise defined or
specified herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to be delivered
hereunder shall be prepared, in accordance with GAAP as in effect from time to time, applied on a
basis consistent with the most recent audited consolidated financial statement of the Company
delivered pursuant to Section 5.1(a); provided, that if the Administrative Borrower
notifies the Administrative Agent that the Borrowers wish to amend any covenant in Article
VI to eliminate the effect of any change in GAAP on the operation of such covenant (or if the
Administrative Agent notifies the Administrative Borrower that the Required Lenders wish to amend
Article VI for such purpose), then the Borrower’s compliance with such covenant shall be
determined on the basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Administrative Borrower and the Required Lenders. Notwithstanding any other
provision contained herein, all terms of an accounting or financial nature used herein shall be
construed, and all computations of amounts and ratios referred to herein shall be made, without
giving effect to any election under Statement of Financial Accounting Standards 159 (or any other
Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other
liabilities of any Borrower or any Subsidiary at “fair value”, as defined therein.



Section 1.4. Terms Generally. 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”. In the
computation of periods of time from a specified date to a later specified date, the word “from”
means “from and including” and the word “to” means “to but excluding”. Unless the context requires
otherwise (i) any definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document as it was
originally executed or as it may from time to time be amended, restated, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or modifications set forth
herein), (ii) any reference herein to any Person shall be construed to include such Person’s
successors and permitted assigns, (iii) the words “hereof”, “herein” and “hereunder” and words of
similar import shall be construed to refer to this Agreement as a whole and not to any particular
provision hereof, and (iv) all references to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles, Sections, Exhibits and Schedules to this Agreement. To the extent
that any of the representations and warranties contained in Article IV under this Agreement
is qualified by “Material Adverse Effect”, then the qualifier “in all material respects” contained
in Section 3.2 and the qualifier “in any material respect” contained in Section
8.1(c) shall not apply. Unless otherwise indicated, all references to time are references to
Eastern Standard Time or Eastern Daylight Savings Time, as the case may be. Unless otherwise
expressly provided herein, all references to dollar amounts shall mean Dollars. In determining
whether any individual event, act, condition or occurrence of the foregoing types could reasonably
be expected to result in a Material Adverse Effect, notwithstanding that a particular event, act,
condition or occurrence does not itself have such effect, a Material Adverse Effect shall be
deemed to have occurred if the cumulative effect of such event, act, condition or occurrence and
all other such events, acts, conditions or occurrences of the foregoing types which have occurred
could reasonably be expected to result in a Material Adverse Effect.


 


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ARTICLE II




AMOUNT AND TERMS OF THE REVOLVING COMMITMENTS




Section 2.1. General Description of Facilities. Subject to and upon the terms and
conditions herein set forth, (i) the Lenders hereby establish in favor of the Borrowers a revolving
credit facility pursuant to which each Lender severally agrees (to the extent of such Lender’s
Revolving Commitment) to make Revolving Loans to the Borrowers in accordance with Section
2.2, (ii) the Issuing Bank agrees to issue Letters of Credit in accordance with Section
2.21, (iii) the Swingline Lender agrees to make Swingline Loans in accordance with Section
2.4, and (iv) each Lender agrees to purchase a participation interest in the Letters of Credit
and the Swingline Loans pursuant to the terms and conditions hereof; provided, that in no
event shall the aggregate principal amount of all outstanding Revolving Loans, Swingline Loans and
outstanding LC Exposure exceed at any time the Aggregate Revolving Commitment Amount from time to
time in effect.




Section 2.2. Revolving Loans.



(a) Revolving Loans. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make Revolving Loans, ratably in proportion to its Pro Rata Share, to
the Borrowers, from time to time during the Availability Period, in an aggregate principal amount
outstanding at any time that will not result in (a) such Lender’s Revolving Credit Exposure
exceeding such Lender’s Revolving Commitment (b) the Aggregate Revolving Credit Exposure exceeding
the lesser of (i) the Aggregate Revolving Commitment Amount and (ii) the Borrowing Base then in
effect or (c) Excess Availability being less than zero. During the Availability Period, the
Borrowers shall be entitled to borrow, prepay and reborrow Revolving Loans in accordance with the
terms and conditions of this Agreement; provided, that the Borrowers may not borrow or
reborrow should there exist a Default or Event of Default at the time of the proposed Borrowing.




 


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(b) Overadvances.




(i) Notwithstanding any provision of this Agreement to the contrary but subject to the
limitations set forth in this subsection (b), at the request of the Administrative
Borrower, the Administrative Agent may in its sole discretion (but without any obligation
to do so), make Revolving Loans to the Borrowers, on behalf of the Lenders, in amounts that
exceed Excess Availability (any such excess Revolving Loans are herein referred to
collectively as “Overadvances”); provided that (i) the
aggregate amount of Overadvances outstanding at any time, together with the aggregate
amount of Agent Advances outstanding at such time, shall not exceed $7,500,000, (ii) the
aggregate amount of outstanding Overadvances plus the Aggregate Revolving Credit Exposure
shall not at any time exceed the Aggregate Revolving Commitments and (iii) the Borrowers
shall, jointly and severally, pay all Overadvances on the earlier of demand by the
Administrative Agent and 30 days after such Overadvances were funded. Overadvances may be
made even if the conditions precedent set forth in Section 3.2 have not been
satisfied. All Overadvances shall be secured by the Collateral and shall constitute
Obligations hereunder. All Overadvances shall be Base Rate Loans. The Administrative
Agent’s authorization to make Overadvances may be revoked at any time by the Required
Lenders. Any such revocation must be in writing and shall become effective prospectively
upon the Administrative Agent’s receipt thereof.




(ii) Upon the making of an Overadvance (whether before or after the occurrence of a
Default), each Lender shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably purchased from the Administrative Agent, without recourse
or warranty, an undivided interest and participation in such Overadvance in proportion to
its Pro Rata Share. The Administrative Agent may, at any time (and shall, on at least a
weekly basis when any Overadvance is outstanding), require the Lenders to fund their
participations. From and after the date, if any, on which any Lender is required to fund
its participation in any Overadvance purchased hereunder, the Administrative Agent shall
promptly distribute to such Lender, such Lender’s Pro Rata Share of all payments of
principal and interest and all proceeds of Collateral received by the Administrative Agent
in respect of such Overadvance.




(c) Agent Advances.




(i) Notwithstanding any provision of this Agreement to the contrary but subject to the
limitations set forth in this subsection (c), the Administrative Agent is authorized by the
Borrowers and the Lenders, from time to time in the Administrative Agent’s sole discretion
(but shall have absolutely no obligation to do so), (A) at any time that a Default exists,
or (B) at any time that any of the other conditions precedent set forth in Article
III have not been satisfied, to make Revolving Loans to the Borrowers (on a joint and
several basis) on behalf of all Lenders, which the Administrative Agent, in its Permitted
Discretion, deems necessary or desirable (1) to preserve or protect the Collateral, or any
portion thereof, (2) to enhance the likelihood of, or maximize the amount of, repayment of
the Loans and other Obligations, or (3) to pay any other amount chargeable to or required
to be paid by the Borrowers pursuant to the terms of this Agreement, including costs, fees,
and expenses as provided under this Agreement or the other Loan Documents (any of such
advances are herein referred to as “Agent Advances”); provided, that (i)
the aggregate amount of Agent Advances outstanding at any time, together with the aggregate
amount of Overadvances outstanding at such time shall not exceed $7,500,000, (ii) the
aggregate amount of outstanding Agent Advances plus the Aggregate Revolving Credit Exposure
shall not exceed the Aggregate Revolving Commitments and (iii) the Borrowers shall, jointly
and severally, pay all Agent Advances on the earlier of demand by the Administrative Agent
and 30 days after such Agent Advances were funded. Agent Advances may be made
even if the conditions precedent set forth in Section 3.2 have not been
satisfied. All Agent Advances shall be secured by the Collateral and shall constitute
Obligations hereunder. All Agent Advances shall bear interest as Base Rate Loans. The
Administrative Agent’s authorization to make Agent Advances may be revoked at any time by
the Required Lenders. Any such revocation must be in writing and shall become effective
prospectively upon the Administrative Agent’s receipt thereof. The Administrative Agent
shall promptly provide to the Administrative Borrower written notice of any Agent Advance.


 


33









 






(ii) Upon the making of an Agent Advance by the Administrative Agent in accordance
with the terms hereof, each Lender shall be deemed, without further action by any party
hereto, to have unconditionally and irrevocably purchased from the Administrative Agent,
without recourse or warranty, an undivided interest and participation in such Agent Advance
in proportion to its Pro Rata Share. From and after the date, if any, on which any Lender
is required to fund its participation in any Agent Advance purchased hereunder, the
Administrative Agent shall promptly distribute to such Lender, such Lender’s Pro Rata Share
of all payments of principal and interest and all proceeds of Collateral received by the
Administrative Agent in respect of such Agent Advance.




(iii) Each Agent Advance shall be subject to all terms and conditions of this
Agreement and the other Loan Documents applicable to Revolving Loans, except that all
payments thereon shall be made to the Administrative Agent solely for its own account and
the making of any Agent Advance shall not require the consent of the Borrowers. The
Administrative Agent shall have no duty or obligation to make any Agent Advance hereunder.




(iv) The Administrative Agent shall notify each Lender no less frequently than weekly,
as determined by the Administrative Agent, of the principal amount of Agent Advances
outstanding as of 12:00 noon as of such date, and each Lender’s Pro Rata Share thereof.
Each Lender shall before 2:00 p.m. on such Business Day make available to the
Administrative Agent, in immediately available funds, the amount of its Pro Rata Share of
such principal amount of Agent Advances outstanding. Upon such payment by a Lender, such
Lender shall be deemed to have made a Revolving Loan to the Borrowers, notwithstanding any
failure of the Borrowers to satisfy the conditions in Section 3.2. The
Administrative Agent shall use such funds to repay the principal amount of Agent Advances.
Additionally, if at any time any Agent Advances are outstanding, any of the events
described in Section 8.1(h) or Section 8.1(i) shall have occurred, then
each Lender shall automatically, upon the occurrence of such event, and without any action
on the part of the Administrative Agent, the Borrowers or the Lenders, be deemed to have
purchased an undivided participation in the principal and interest of all Agent Advances
then outstanding in an amount equal to such Lender’s Pro Rata Share and each Lender shall,
notwithstanding such Event of Default, immediately pay to the Administrative Agent in
immediately available funds, the amount of such Lender’s participation (and upon receipt
thereof, the Administrative Agent shall deliver to such Lender, a loan participation
certificate dated the date of receipt of such funds in
such amount). The disbursement of funds in connection with the settlement of Agent
Advances hereunder shall be subject to the terms and conditions of Section 2.5.


 


34









 





(d) Loans in excess of Excess Availability. If at any time the amount of the
Aggregate Revolving Credit Exposures exceed the Aggregate Revolving Commitments, the Borrowing Base
or any other applicable limitation set forth in this Agreement (including, without limitation, the
limitations on Swingline Loans, Agent Advances, Overadvances and Letters of Credit) such excess
shall nevertheless constitute a portion of the Obligations that are secured by the Collateral and
are entitled to all benefits thereof. In no event, however, shall the Borrowers have any right
whatsoever to (i) receive any Revolving Loan, (ii) receive any Swingline Loan, or (iii) request the
issuance or renewal of any Letter of Credit if, before or after giving effect thereto, there shall
exist a Default, and in no event shall the Borrowers have any right whatsoever to receive any Agent
Advance or Overadvance. In the event that (1) the Lenders shall make any Revolving Loans, (2) the
Swingline Lender shall make any Swingline Loan, (3) the Administrative Agent shall make any Agent
Advances or Overadvances or (4) the Issuing Bank shall agree to the issuance or renewal of any
Letter of Credit, which in any such case gives rise to the Revolving Credit Exposure exceeding the
Aggregate Revolving Commitments, the Borrowing Base or any other applicable limitation set forth in
this Agreement, the Borrowers shall make, on demand, a payment on the Obligations to be applied to
the Revolving Loans, the Swingline Loans, the Agent Advances and the Overadvances, as appropriate,
in an aggregate principal amount equal to such excess.



Section 2.3. Procedure for Revolving Borrowings. The Administrative Borrower shall
give the Administrative Agent written notice (or telephonic notice promptly confirmed in writing)
of each Revolving Borrowing substantially in the form of Exhibit 2.3 (a “Notice of
Revolving Borrowing”) (x) prior to 11:00 a.m. on the requested date of each Base Rate Borrowing
and (y) prior to 11:00 a.m. three (3) Business Days prior to the requested date of each Eurodollar
Borrowing. Each Notice of Revolving Borrowing shall be irrevocable and shall specify: (i) the
aggregate principal amount of such Borrowing, (ii) the date of such Borrowing (which shall be a
Business Day), (iii) the Type of such Revolving Loan comprising such Borrowing and (iv) in the case
of a Eurodollar Borrowing, the duration of the initial Interest Period applicable thereto (subject
to the provisions of the definition of Interest Period). Each Revolving Borrowing shall consist
entirely of Base Rate Loans or Eurodollar Loans, as the Administrative Borrower may request. The
aggregate principal amount of each Eurodollar Borrowing shall be not less than $1,000,000 or a
larger multiple of $500,000, and there shall be no minimum aggregate principal amount or minimum
increment for Base Rate Borrowings. At no time shall the total number of Eurodollar Borrowings
outstanding at any time exceed six. Promptly following the receipt of a Notice of Revolving
Borrowing in accordance herewith, the Administrative Agent shall advise each Lender of the details
thereof and the amount of such Lender’s Revolving Loan to be made as part of the requested
Revolving Borrowing.




Section 2.4. Swingline Commitment.



(a) Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Borrowers, from time to time during the Availability Period, in an aggregate
principal amount outstanding at any time not to exceed the lesser of (i)
the Swingline Commitment then in effect and (ii) the difference between (x) the lesser of (1)
the Aggregate Revolving Commitment Amount and (2) the Borrowing Base minus (y) Aggregate Revolving
Credit Exposure; provided, that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan. The Borrowers shall be entitled to
borrow, repay and reborrow Swingline Loans in accordance with the terms and conditions of this
Agreement.


 


35









 





(b) The Administrative Borrower shall give the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of each Swingline Borrowing substantially in the
form of Exhibit 2.4 attached hereto (“Notice of Swingline Borrowing”) prior to
10:00 a.m. on the requested date of each Swingline Borrowing. Each Notice of Swingline Borrowing
shall be irrevocable and shall specify: (i) the principal amount of such Swingline Loan, (ii) the
date of such Swingline Loan (which shall be a Business Day) and (iii) the account of the Borrowers
to which the proceeds of such Swingline Loan should be credited. The Administrative Agent will
promptly advise the Swingline Lender of each Notice of Swingline Borrowing. Each Swingline Loan
shall accrue interest at the Swingline Rate and shall have an Interest Period (subject to the
definition thereof) as agreed between the Administrative Borrower and the Swingline Lender. The
aggregate principal amount of each Swingline Loan shall be not less than $100,000 or a larger
multiple of $50,000, or such other minimum amounts agreed to by the Swingline Lender and the
Administrative Borrower. The Swingline Lender will make the proceeds of each Swingline Loan
available to the Borrowers in Dollars in immediately available funds at the account specified by
the Borrowers in the applicable Notice of Swingline Borrowing not later than 1:00 p.m. on the
requested date of such Swingline Loan.



(c) The Swingline Lender, at any time and from time to time in its sole discretion, may, on
behalf of the Administrative Borrower (which hereby irrevocably authorizes and directs the
Swingline Lender to act on its behalf), give a Notice of Revolving Borrowing to the Administrative
Agent requesting the Lenders (including the Swingline Lender) to make Base Rate Loans in an amount
equal to the unpaid principal amount of any Swingline Loan. Each Lender will make the proceeds of
its Base Rate Loan included in such Borrowing available to the Administrative Agent for the account
of the Swingline Lender in accordance with Section 2.5, which will be used solely for the
repayment of such Swingline Loan.



(d) If for any reason a Base Rate Borrowing may not be (as determined in the sole discretion
of the Administrative Agent), or is not, made in accordance with the foregoing provisions, then
each Lender (other than the Swingline Lender) shall purchase an undivided participating interest in
such Swingline Loan in an amount equal to its Pro Rata Share thereof on the date that such Base
Rate Borrowing should have occurred. On the date of such required purchase, each Lender shall
promptly transfer, in immediately available funds, the amount of its participating interest to the
Administrative Agent for the account of the Swingline Lender. If such Swingline Loan bears
interest at a rate other than the Base Rate, such Swingline Loan shall automatically become a Base
Rate Loan on the effective date of any such participation and interest shall become payable on
demand.


 


36









 





(e) Each Lender’s obligation to make a Base Rate Loan pursuant to Section 2.4(c) or
(d) or to purchase the participating interests pursuant to Section 2.4(d) shall be
absolute and unconditional and shall not be affected by any circumstance, including without
limitation (i)
any setoff, counterclaim, recoupment, defense or other right that such Lender or any other
Person may have or claim against the Swingline Lender, the Borrowers or any other Person for any
reason whatsoever, (ii) the existence of a Default or an Event of Default or the termination of any
Lender’s Revolving Commitment, (iii) the existence (or alleged existence) of any event or condition
which has had or could reasonably be expected to have a Material Adverse Effect, (iv) any breach of
this Agreement or any other Loan Document by the Borrowers, the Administrative Agent or any Lender
or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the
foregoing. If such amount is not in fact made available to the Swingline Lender by any Lender, the
Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof (i) at the Federal Funds Rate
until the second Business Day after such demand and (ii) at the Base Rate at all times thereafter.
Until such time as such Lender makes its required payment, the Swingline Lender shall be deemed to
continue to have outstanding Swingline Loans in the amount of the unpaid participation for all
purposes of the Loan Documents. In addition, such Lender shall be deemed to have assigned any and
all payments made of principal and interest on its Loans and any other amounts due to it hereunder,
to the Swingline Lender to fund the amount of such Lender’s participation interest in such
Swingline Loans that such Lender failed to fund pursuant to this Section 2.4, until such
amount has been purchased in full.




Section 2.5. Funding of Borrowings.



(a) Each Lender will make available (i) each Eurodollar Loan to be made by it hereunder on the
proposed date thereof by wire transfer in immediately available funds by 11:00 a.m. to the
Administrative Agent at the Payment Office and (ii) each Base Rate Loan to be made by it hereunder
on the proposed date thereof by wire transfer in immediately available funds by 3:00 p.m. to the
Administrative Agent at the Payment Office; provided, that the Swingline Loans will be made
as set forth in Section 2.4. The Administrative Agent will make such Loans available to
the Borrowers by promptly crediting the amounts that it receives, in like funds by the close of
business on such proposed date, to an account maintained by the Borrowers with the Administrative
Agent or at the Administrative Borrower’s option, by effecting a wire transfer of such amounts to
an account designated by the Administrative Borrower to the Administrative Agent.



(b) Unless the Administrative Agent shall have been notified by any Lender prior to 5:00 p.m.
one (1) Business Day prior to the date of a Borrowing (or, in the case of Base Rate Loans, prior to
3:00 p.m. on the date of such Borrowing) in which such Lender is to participate 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 amount available to the
Administrative Agent on such date, and the Administrative Agent, in reliance on such assumption,
may make available to the Borrowers (but shall have no obligations to make available to any
Borrower) on such date a corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent by such Lender on the date of such Borrowing, the
Administrative Agent shall be entitled to recover such corresponding amount on demand from such
Lender together with interest at the Federal Funds Rate until the second Business Day after such
demand and thereafter at the Base Rate. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent’s demand therefor, the
Administrative Agent shall promptly notify the Administrative Borrower, and the Borrowers
shall immediately pay such corresponding amount to the Administrative Agent together with interest
at the rate specified for such Borrowing. Nothing in this subsection shall be deemed to relieve
any Lender from its obligation to fund its Pro Rata Share of any Borrowing hereunder or to
prejudice any rights which the Borrowers may have against any Lender as a result of any default by
such Lender hereunder.


 


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(c) All Revolving Borrowings shall be made by the Lenders on the basis of their respective Pro
Rata Shares. No Lender shall be responsible for any default by any other Lender in its obligations
hereunder, and each Lender shall be obligated to make its Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to make its Loans hereunder.




Section 2.6. Interest Elections.



(a) Each Borrowing initially shall be of the Type specified in the applicable Notice of
Borrowing, and in the case of a Eurodollar Borrowing, shall have an initial Interest Period as
specified in such Notice of Borrowing. Thereafter, the Administrative Borrower may elect to
convert such Borrowing into a different Type or to continue such Borrowing, and in the case of a
Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section
2.6. The Administrative Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing. This Section shall NOT apply to Swingline
Borrowings, which may not be converted or continued.



(b) To make an election pursuant to this Section 2.6, the Administrative Borrower
shall give the Administrative Agent prior written notice (or telephonic notice promptly confirmed
in writing) of each Borrowing substantially in the form of Exhibit 2.6 attached hereto (a
“Notice of Conversion/Continuation”) that is to be converted or continued, as the case may
be, (x) prior to 10:00 a.m. on the requested date of a conversion into a Base Rate Borrowing and
(y) prior to 11:00 a.m. three (3) Business Days prior to a continuation of or conversion into a
Eurodollar Borrowing. Each such Notice of Conversion/Continuation shall be irrevocable and shall
specify (i) the Borrowing to which such Notice of Conversion/Continuation applies and if different
options are being elected with respect to different portions thereof, the portions thereof that are
to be allocated to each resulting Borrowing (in which case the information to be specified pursuant
to clauses (iii) and (iv) shall be specified for each resulting Borrowing); (ii) the effective date
of the election made pursuant to such Notice of Conversion/Continuation, which shall be a Business
Day, (iii) whether the resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar
Borrowing; and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the Interest Period
applicable thereto after giving effect to such election, which shall be a period contemplated by
the definition of “Interest Period”. If any such Notice of Conversion/Continuation requests a
Eurodollar Borrowing but does not specify an Interest Period, the Administrative Borrower shall be
deemed to have selected an Interest Period of one month. The principal amount of any resulting
Borrowing shall satisfy the minimum borrowing amount for Eurodollar Borrowings and Base Rate
Borrowings set forth in Section 2.3.



(c) If, on the expiration of any Interest Period in respect of any Eurodollar Borrowing, the
Administrative Borrower shall have failed to deliver a Notice of Conversion/Continuation, then,
unless such Borrowing is repaid as provided herein, the Administrative Borrower shall be deemed to
have elected to convert such Borrowing to a Base Rate Borrowing. No Borrowing may be converted
into, or continued as, a Eurodollar Borrowing if a Default or an Event of Default exists, unless
the Administrative Agent and each of the Lenders shall have otherwise consented in writing. No
conversion of any Eurodollar Loans shall be permitted except on the last day of the Interest Period
in respect thereof.


 


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(d) Upon receipt of any Notice of Conversion/Continuation, the Administrative Agent shall
promptly notify each Lender of the details thereof and of such Lender’s portion of each resulting
Borrowing.




Section 2.7. Optional Reduction and Termination of Revolving Commitments.



(a) Unless previously terminated, all Revolving Commitments, Swingline Commitments and LC
Commitments shall terminate on the Revolving Commitment Termination Date.



(b) Upon at least three (3) Business Days’ prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent (which notice shall be irrevocable), the
Administrative Borrower may reduce the Aggregate Revolving Commitments in part or terminate the
Aggregate Revolving Commitments in whole; provided, that (i) any partial reduction shall
apply to reduce proportionately and permanently the Revolving Commitment of each Lender, (ii) any
partial reduction pursuant to this Section 2.7 shall be in an amount of at least $5,000,000
and any larger multiple of $1,000,000, and (iii) no such reduction shall be permitted which would
reduce the Aggregate Revolving Commitment Amount to an amount less than the outstanding Revolving
Credit Exposures of all Lenders. Any such reduction in the Aggregate Revolving Commitment Amount
below the sum of the principal amount of the Swingline Commitment and the LC Commitment shall
result in a proportionate reduction (rounded to the next lowest integral multiple of $100,000) in
the Swingline Commitment and the LC Commitment.



(c) With the written approval of the Administrative Agent, the Borrowers may terminate (on a
non-ratable basis) the unused amount of the Revolving Commitment of a Defaulting Lender upon not
less than five (5) Business Days’ prior notice to the Administrative Agent (which will promptly
notify the Lenders thereof), and in such event the provisions of Section 2.22 will apply to
all amounts thereafter paid by the Borrowers for the account of any such Defaulting Lender under
this Agreement (whether on account of principal, interest, fees, indemnity or other amounts),
provided that such termination will not be deemed to be a waiver or release of any claim
the Borrowers, the Administrative Agent, the Issuing Bank, the Swingline Lender or any Lender may
have against such Defaulting Lender.



Section 2.8. Repayment of Loans.




(a) The outstanding principal amount of all Revolving Loans shall be due and payable (together
with accrued and unpaid interest thereon) on the Revolving Commitment Termination Date.
Notwithstanding the foregoing, however, in the event that at any time and for any reason there
shall exist an Overadvance, the Borrowers shall pay to the Administrative Agent, on demand, an
amount equal to the Overadvance, which payment shall constitute a mandatory payment of the
Revolving Loans, Agent Advances, Swingline Loans and Letter of Credit Reserve Account, as
appropriate.



 


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(b) The principal amount of each Swingline Borrowing shall be due and payable (together with
accrued and unpaid interest thereon) on the earlier of (i) the last day of the Interest Period
applicable to such Borrowing and (ii) the Revolving Commitment Termination Date.



Section 2.9. Evidence of Indebtedness. (a) Each Lender shall maintain in accordance
with its usual practice appropriate records evidencing the Indebtedness of the Borrowers to such
Lender resulting from each Loan made by such Lender from time to time, including the amounts of
principal and interest payable thereon and paid to such Lender from time to time under this
Agreement. The Administrative Agent shall maintain appropriate records in which shall be recorded
(i) the Revolving Commitment of each Lender, (ii) the amount of each Loan made hereunder by each
Lender, the Class and Type thereof and the Interest Period applicable thereto, (iii) the date of
each continuation thereof pursuant to Section 2.6, (iv) the date of each conversion of all
or a portion thereof to another Type pursuant to Section 2.6, (v) the date and amount of
any principal or interest due and payable or to become due and payable from the Borrowers to each
Lender hereunder in respect of such Loans and (vi) both the date and amount of any sum received by
the Administrative Agent hereunder from the Borrowers in respect of the Loans and each Lender’s Pro
Rata Share thereof. The entries made in such records shall be prima facie evidence of the
existence and amounts of the obligations of the Borrowers therein recorded; provided, that
the failure or delay of any Lender or the Administrative Agent in maintaining or making entries
into any such record or any error therein shall not in any manner affect the obligation of the
Borrowers to repay the Loans (both principal and unpaid accrued interest) of such Lender in
accordance with the terms of this Agreement.



(b) At the request of any Lender (including the Swingline Lender) at any time, the Borrowers
agree that they will execute and deliver to such Lender a Revolving Credit Note and, in the case of
the Swingline Lender only, a Swingline Note, payable to the order of such Lender.



Section 2.10. Optional Prepayments. The Borrowers shall have the right at any time
and from time to time to prepay any Borrowing, in whole or in part, without premium or penalty, by
giving irrevocable written notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent no later than (i) in the case of prepayment of any Eurodollar Borrowing, 11:00
a.m. not less than three (3) Business Days prior to any such prepayment, (ii) in the case of any
prepayment of any Base Rate Borrowing, 11:00 a.m. on the date of such prepayment, and (iii) in the
case of Swingline Borrowings, prior to 11:00 a.m. on the date of such prepayment. Each such notice
shall be irrevocable and shall specify the proposed date of such prepayment and the principal
amount of each Borrowing or portion thereof to be prepaid. Prepayments of Base Rate Borrowings or
Eurodollar
Borrowings shall be in minimum amounts of $1,000,000 and in integral multiples of $500,000.
Upon receipt of any such notice, the Administrative Agent shall promptly notify each affected
Lender of the contents thereof and of such Lender’s Pro Rata Share of any such prepayment. If such
notice is given, the aggregate amount specified in such notice shall be due and payable on the date
designated in such notice, together with accrued interest to such date on the amount so prepaid in
accordance with Section 2.12(e); provided, that if a Eurodollar Borrowing is
prepaid on a date other than the last day of an Interest Period applicable thereto, the Borrowers
shall also pay all amounts required pursuant to Section 2.18. Each partial prepayment of
any Loan (other than a Swingline Loan) shall be in an amount that would be permitted in the case of
an advance of a Revolving Borrowing of the same Type pursuant to Section 2.2 or in the case
of a Swingline Loan pursuant to Section 2.4. Each prepayment of a Borrowing shall be
applied ratably to the Loans comprising such Borrowing. Notwithstanding the foregoing, the
Borrowers shall not make any repayment or prepayment of the Revolving Loans unless and until the
balance of the Swingline Loans and the Agent Advances then outstanding is zero.


 


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Section 2.11. Mandatory Repayments.



(a) In the event that after the Restatement Date, any Borrower shall issue any Equity
Interests or shall incur any Indebtedness (other than Indebtedness permitted under Section
7.1(a), (b), (c), (d) or (e)), one hundred percent (100%) of the Net Cash Proceeds received by
such Borrower from such issuance or incurrence shall be paid on the date of receipt of the proceeds
thereof by such Borrower to the Lenders as a mandatory payment of the Loans. Any payment due
hereunder shall be applied first to repay outstanding Agent Advances, second to
repay outstanding Swingline Loans and third to repay outstanding Revolving Loans. So long
as no Event of Default exists, all such other Net Cash Proceeds shall be applied in the manner set
forth in Section 2.26(a). Notwithstanding the foregoing, if an Event of Default exists,
all Net Cash Proceeds shall be applied in the manner set forth in Section 2.26(b). The
Aggregate Revolving Commitments of all Lenders shall not be permanently reduced by the amount of
any payment of the Agent Advances, Swingline Loans or Revolving Loans due under this Section
2.11(a). Nothing in this Section shall authorize any Borrower to incur any Indebtedness except
as permitted by this Agreement or to issue any Equity Interests except to the extent not prohibited
by this Agreement.



(b) One hundred percent (100%) of the Net Cash Proceeds from the sale, transfer, assignment or
other disposition, or casualty or condemnation loss of any Collateral or other assets of any
Borrower (other than sales or dispositions permitted pursuant to clauses (a), (b) and (e) of
Section 7.6) shall be paid on the date of receipt thereof by the Borrowers as a mandatory
payment of the Obligations. So long as no Event of Default exists, all such Net Cash Proceeds
shall be applied first to repay outstanding Agent Advances, second to repay
outstanding Swingline Loans and third to repay outstanding Revolving Loans. So long as no
Event of Default exists, all such other Net Cash Proceeds shall be applied in the manner set forth
in Section 2.26(a). Notwithstanding the foregoing, if an Event of Default exists, all Net
Cash Proceeds shall be applied in the manner set forth in Section 2.26(b). The Aggregate
Revolving Commitments of all Lenders shall not be permanently reduced by the amount of any payment
of the Agent Advances, Swingline Loans or Revolving Loans due under this Section 2.11(b).



(c) One hundred percent (100%) of the Net Cash Proceeds from the Eligible Tax Refund shall be
paid on the date of receipt thereof by the Borrowers as a mandatory payment of the Obligations. So
long as no Event of Default exists, all such Net Cash Proceeds shall be applied first to
repay outstanding Agent Advances, second to repay outstanding Swingline Loans and
third to repay outstanding Revolving Loans. So long as no Event of Default exists, all
such other Net Cash Proceeds shall be applied in the manner set forth in Section 2.26(a).
Notwithstanding the foregoing, if an Event of Default exists, all Net Cash Proceeds shall be
applied in the manner set forth in Section 2.26(b). The Aggregate Revolving Commitments of
all Lenders shall not be permanently reduced by the amount of any payment of the Agent Advances,
Swingline Loans or Revolving Loans due under this Section 2.11(c).


 


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Section 2.12. Interest on Loans.



(a) The Borrowers shall pay interest on each Base Rate Loan at the Base Rate in effect from
time to time and on each Eurodollar Loan at the Adjusted LIBO Rate for the applicable Interest
Period in effect for such Loan, plus, in each case, the Applicable Margin in effect from time to
time.



(b) The Borrowers shall pay interest on each Swingline Loan at the Swingline Rate in effect
from time to time.



(c) Notwithstanding clauses (a) and (b) above, if an Event of Default has occurred and is
continuing, at the option of the Required Lenders, and after acceleration, the Borrowers shall pay
interest (“Default Interest”) with respect to all Eurodollar Loans at the rate per annum
equal to 2.0% above the otherwise applicable interest rate for such Eurodollar Loans for the
then-current Interest Period until the last day of such Interest Period, and thereafter, and with
respect to all Base Rate Loans and all other Obligations hereunder (other than Loans), at the rate
per annum equal to 2.0% above the otherwise applicable interest rate for Base Rate Loans.



(d) Interest on the principal amount of all Loans shall accrue from and including the
Restatement Date (in the case of Loans outstanding on the Restatement Date) and the date such Loans
are made to but excluding the date of any repayment thereof. Interest on all outstanding Base Rate
Loans shall be payable monthly in arrears on the last day of each calendar month and on the
Revolving Commitment Termination Date. Interest on all outstanding Eurodollar Loans shall be
payable on the last day of each Interest Period applicable thereto, and, in the case of any
Eurodollar Loans having an Interest Period in excess of one month or 30 days, respectively, on each
day which occurs each month or 30 days, as the case may be, after the initial date of such Interest
Period, and on the Revolving Commitment Termination Date, in each case in arrears. Interest on
each Swingline Loan shall be payable monthly in arrears. Interest on any Loan which is converted
into a Loan of another Type or which is repaid or prepaid shall be payable on the date of such
conversion or on the date of any such repayment or prepayment (on the amount repaid or prepaid)
thereof. All Default Interest shall be payable on demand.



(e) The Administrative Agent shall determine each interest rate applicable to the Loans
hereunder and shall promptly notify the Administrative Borrower and the Lenders of
such rate in writing (or by telephone, promptly confirmed in writing). Any such determination
shall be conclusive and binding for all purposes, absent manifest error.




Section 2.13. Fees.



(a) The Borrowers shall pay to the Administrative Agent for its own account fees in the
amounts and at the times previously agreed upon in writing by the Company and the Administrative
Agent.


 


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(b) The Borrowers agree to pay to the Administrative Agent for the account of each Lender a
commitment fee, which shall accrue at the Applicable Percentage per annum on the average daily
amount of the unused Revolving Commitment of such Lender during the Availability Period. For
purposes of computing commitment fees with respect to the Revolving Commitments, the Revolving
Commitment of each Lender shall be deemed used to the extent of the outstanding Revolving Loans and
LC Exposure, but not Swingline Exposure or Agent Advance Exposure of such Lender.



(c) The Borrowers agree to pay (i) to the Administrative Agent, for the account of each
Lender, a letter of credit fee with respect to its participation in each Letter of Credit, which
shall accrue at a rate per annum equal to the Applicable Margin for Eurodollar Loans then in effect
on the average daily amount of such Lender’s LC Exposure attributable to such Letter of Credit
during the period from and including the date of issuance of such Letter of Credit to but excluding
the date on which such Letter of Credit expires or is drawn in full (including without limitation
any LC Exposure that remains outstanding after the Revolving Commitment Termination Date) and (ii)
to the Issuing Bank for its own account a facing fee, which shall accrue at the rate of 0.25% per
annum on the average daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the Availability Period (or until the date that such Letter
of Credit is irrevocably cancelled, whichever is later), as well as the Issuing Bank’s standard
fees with respect to issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Notwithstanding the foregoing, if the Required Lenders elect to
increase the interest rate on the Loans to the Default Interest pursuant to Section
2.12(c), the rate per annum used to calculate the letter of credit fee pursuant to clause (i)
above shall automatically be increased by an additional 2% per annum.



(d) The Borrowers shall pay to the Administrative Agent, for the ratable benefit of each
Lender, the amendment fee previously agreed upon by the Company and the Administrative Agent, which
shall be due and payable on the Restatement Date.



(e) Accrued fees (i) under paragraph (b) above shall be payable monthly in arrears on the last
day of each month and (ii) under paragraph (c) above shall be payable quarterly in arrears on the
last day of each fiscal quarter, in each case commencing on September 30, 2009 and on the Revolving
Commitment Termination Date (and if later, the date the Loans and LC Exposure shall be repaid in
their entirety); provided, that any such fees accruing after the Revolving Commitment
Termination Date shall be payable on demand.



(f) Anything herein to the contrary notwithstanding, during such period as a Lender is a
Defaulting Lender, such Defaulting Lender will not be entitled to any fees accruing during such
period pursuant to clauses (b) and (c) of this Section (without prejudice to the rights of the
Lenders other than Defaulting Lenders in respect of such fees), or any amendment fees hereafter
offered to any Lender, and the pro rata payment provisions of Section 2.20 will
automatically be deemed adjusted to reflect the provisions of this Section.




 


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Section 2.14. Computation of Interest and Fees.



All computations of interest and fees hereunder shall be made on the basis of a year of
360 days for the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or fees are payable (to the extent computed on the
basis of days elapsed). Each determination by the Administrative Agent of an interest amount or
fee hereunder shall be made in good faith and, except for manifest error, shall be final,
conclusive and binding for all purposes.



Section 2.15. Inability to Determine Interest Rates. If prior to the commencement of
any Interest Period for any Eurodollar Borrowing,




(i) the Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrowers) that, by reason of circumstances affecting the
relevant interbank market, adequate means do not exist for ascertaining LIBOR for such
Interest Period, or




(ii) the Administrative Agent shall have received notice from the Required Lenders
that the Adjusted LIBO Rate does not adequately and fairly reflect the cost to such Lenders
of making, funding or maintaining their Eurodollar Loans for such Interest Period,



the Administrative Agent shall give written notice (or telephonic notice, promptly confirmed in
writing) to the Administrative Borrower and to the Lenders as soon as practicable thereafter. In
the case of Eurodollar Loans, until the Administrative Agent shall notify the Administrative
Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) the
obligations of the Lenders to make Eurodollar Revolving Loans or to continue or convert outstanding
Loans as or into Eurodollar Loans shall be suspended and (ii) all such affected Loans shall be
converted into Base Rate Loans on the last day of the then current Interest Period applicable
thereto unless the Borrowers prepay such Loans in accordance with this Agreement. Unless the
Administrative Borrower notifies the Administrative Agent at least one Business Day before the date
of any Eurodollar Revolving Borrowing for which a Notice of Revolving Borrowing has previously been
given that it elects not to borrow on such date, then such Revolving Borrowing shall be made as a
Base Rate Borrowing.



Section 2.16. Illegality. If any Change in Law shall make it unlawful or impossible
for any Lender to make, maintain or fund any Eurodollar Loan and such Lender shall so notify the
Administrative Agent, the Administrative Agent shall promptly give notice thereof to the
Administrative Borrower and the other Lenders, whereupon until such Lender notifies the
Administrative Agent and the Administrative Borrower that the circumstances giving rise to such
suspension no longer exist, the obligation of such Lender to make Eurodollar Revolving Loans, or to
continue or convert outstanding Loans as or into Eurodollar Loans, shall be suspended. In the case
of the making of a Eurodollar Revolving Borrowing, such Lender’s Revolving Loan shall be made as a
Base Rate Loan as part of the same Revolving Borrowing for the same Interest Period and if the
affected Eurodollar Loan is then outstanding, such Loan shall be converted to a Base Rate Loan
either (i) on the last day of the then current Interest Period applicable to such Eurodollar Loan
if such Lender may lawfully continue to maintain such Loan to such date or (ii) immediately if such
Lender shall determine that it may not lawfully continue to maintain such Eurodollar Loan to such
date. Notwithstanding the foregoing, the affected Lender shall, prior to giving such notice to the
Administrative Agent, designate a different Applicable Lending Office if such designation would
avoid the need for giving such notice and if such designation would not otherwise be
disadvantageous to such Lender in the good faith exercise of its discretion.


 


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Section 2.17. Increased Costs.




(a) If any Change in Law shall:




(i) impose, modify or deem applicable any reserve, special deposit or similar
requirement that is not otherwise included in the determination of the Adjusted LIBO Rate
hereunder against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank;




(ii) subject any Lender or the Issuing Bank 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 Loan made by it, or change the basis of taxation of payments to such Lender
or the Issuing Bank in respect thereof (except for Indemnified Taxes or Other Taxes covered
by Section 2.19 and the imposition of, or any change in the rate of, any Excluded
Tax payable by such Lender or the Issuing Bank); or




(iii) impose on any Lender or on the Issuing Bank or the eurodollar interbank market
any other condition, cost or expense affecting this Agreement or any Eurodollar Loans made
by such Lender or any Letter of Credit or any participation therein;



and the result of either of the foregoing is to increase the cost to such Lender of making,
converting into, continuing or maintaining a Eurodollar Loan or to increase the cost to such Lender
or the Issuing Bank of participating in or issuing any Letter of Credit or to reduce the amount
received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest
or any other amount), then the Borrowers shall promptly pay, upon written notice from and demand by
such Lender on the Administrative Borrower (with a copy of such notice and demand to the
Administrative Agent), to the Administrative Agent for the account of such Lender, within five
Business Days after the date of such notice and demand, additional amount or amounts sufficient to
compensate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred
or reduction suffered.



(b) If any Lender or the Issuing Bank shall have determined that on or after the date of this
Agreement any Change in Law regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender’s or the Issuing Bank’s capital (or on the capital of the Parent
Company of such Lender or the Issuing Bank’s) as a consequence of its obligations hereunder or
under or in respect of any Letter of Credit to a level below that which such Lender, the Issuing
Bank or the Parent Company of such Lender or the Issuing Bank could have achieved but for such
Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies or the
policies of the Parent Company of such Lender or the Issuing Bank with respect to capital adequacy)
then, from time to time, within five (5) Business Days
after receipt by the Administrative Borrower of written demand by such Lender (with a copy
thereof to the Administrative Agent), the Borrowers shall pay to such Lender such additional
amounts as will compensate such Lender, the Issuing Bank or the Parent Company of such Lender or
the Issuing Bank for any such reduction suffered.


 


45









 





(c) A certificate of a Lender or the Issuing Bank setting forth: (i) the amount or amounts
necessary to compensate such Lender, the Issuing Bank or the Parent Company of such Lender or the
Issuing Bank, as the case may be, specified in paragraph (a) or (b) of this Section 2.17
and (ii) in reasonable detail the basis of the calculation of such amount or amounts, shall be
delivered to the Administrative Borrower (with a copy to the Administrative Agent) and shall be
conclusive, absent manifest error. The Borrowers shall pay any such Lender or the Issuing Bank, as
the case may be, such amount or amounts within 10 days after receipt thereof.



(d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section 2.17 shall not constitute a waiver of such Lender’s or the Issuing
Bank’s right to demand such compensation.



Section 2.18. Funding Indemnity. In the event of (a) the payment of any principal of
a Eurodollar Loan other than on the last day of the Interest Period applicable thereto (including
as a result of an Event of Default), (b) the conversion or continuation of a Eurodollar Loan other
than on the last day of the Interest Period applicable thereto, or (c) the failure by the Borrowers
to borrow, prepay, convert or continue any Eurodollar Loan on the date specified in any applicable
notice (regardless of whether such notice is withdrawn or revoked), then, in any such event, the
Borrowers shall compensate each Lender, within five (5) Business Days after written demand from
such Lender, for any loss, cost or expense attributable to such event. In the case of a Eurodollar
Loan, such loss, cost or expense shall be deemed to include an amount determined by such Lender to
be the excess, if any, of (A) the amount of interest that would have accrued on the principal
amount of such Eurodollar Loan if such event had not occurred at the Adjusted LIBO Rate applicable
to such Eurodollar Loan for the period from the date of such event to the last day of the then
current Interest Period therefor (or in the case of a failure to borrow, convert or continue, for
the period that would have been the Interest Period for such Eurodollar Loan) over (B) the amount
of interest that would accrue on the principal amount of such Eurodollar Loan for the same period
if the Adjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid or converted or the
date on which the Borrowers failed to borrow, convert or continue such Eurodollar Loan. A
certificate setting forth: (i) any additional amount payable under this Section 2.18 and
(ii) in reasonable detail the basis of the calculation of such additional amount, submitted to the
Administrative Borrower by any Lender (with a copy to the Administrative Agent) shall be
conclusive, absent manifest error.



Section 2.19. Taxes.



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


 


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(b) In addition, the Borrowers shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law (provided that with respect to property taxes relating
to Real Estate subject to a Mortgage, the timeframe for payment of such taxes shall be governed by
the applicable Mortgage).



(c) The Borrowers shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within five (5) Business Days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes paid by the Administrative Agent, such Lender or the Issuing Bank, as the case
may be, on or with respect to any payment by or on account of any obligation of the Borrowers
hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section 2.19) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate setting forth: (i) the amount of such payment or liability and (ii) in reasonable
detail the basis of the calculation of such payment or liability, delivered to the Administrative
Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its own behalf or on
behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest error.



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



(e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the Code or any treaty to which the United States is a party, with respect to payments under
this Agreement shall deliver to the Administrative Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the Administrative Borrower
as will permit such payments to be made without withholding or at a reduced rate. Without limiting
the generality of the foregoing, each Foreign Lender agrees that it will deliver to the
Administrative Agent and the Administrative Borrower (or in the case of a Participant, to the
Lender from which the related participation shall have been purchased), as appropriate, two (2)
duly completed copies of (i) Internal Revenue Service Form W-8 ECI, or any successor form thereto,
certifying that the payments received from the Borrowers hereunder are effectively connected with
such Foreign Lender’s conduct of a trade or business in the United States; or (ii) Internal Revenue
Service Form W-8 BEN, or any successor form thereto, certifying that such Foreign Lender is
entitled to benefits under an income tax treaty to which the United States is a party which
eliminates or reduces the rate of withholding tax on payments of interest; or (iii) Internal
Revenue Service Form W-8 BEN, or any successor form prescribed


 


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by the Internal Revenue Service,
together with a certificate (A) establishing that the payment to the Foreign Lender qualifies as “portfolio interest” exempt from U.S. withholding tax under Code
section 871(h) or 881(c), and (B) stating that (1) the Foreign Lender is not a bank for purposes of
Code section 881(c)(3)(A), or the obligation of the Borrowers hereunder is not, with
respect to such Foreign Lender, a loan agreement entered into in the ordinary course of its trade
or business, within the meaning of that section; (2) the Foreign Lender is not a 10% shareholder of
any Borrower within the meaning of Code section 871(h)(3) or 881(c)(3)(B); and (3) the Foreign
Lender is not a controlled foreign corporation that is related to any Borrower within the meaning
of Code section 881(c)(3)(C); or (iv) such other Internal Revenue Service forms as may be
applicable to the Foreign Lender, including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender
shall deliver to the Administrative Borrower and the Administrative Agent such forms on or before
the date that it becomes a party to this Agreement (or in the case of a Participant, on or before
the date such Participant purchases the related participation). In addition, each such Foreign
Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Foreign Lender. Each such Foreign Lender shall promptly notify the
Administrative Borrower and the Administrative Agent at any time that it determines that it is no
longer in a position to provide any previously delivered certificate to the Administrative Borrower
(or any other form of certification adopted by the Internal Revenue Service for such purpose).



Section 2.20. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.



(a) The Borrowers shall make each payment required to be made by it hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under
Section 2.17, Section 2.18 or Section 2.19, or otherwise) prior to 12:00
noon on the date when due, in immediately available funds, free and clear of any defenses, rights
of set-off, counterclaim, or withholding or deduction of taxes. Any amounts received after such
time on any date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at the Payment Office, except payments to
be made directly to the Issuing Bank or Swingline Lender as expressly provided herein and except
that payments pursuant to Section 2.17, Section 2.18 and Section 2.19 shall
be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in
the case of any payment accruing interest, interest thereon shall be made payable for the period of
such extension. All payments hereunder shall be made in Dollars.




(b) [intentionally omitted].


 


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(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
participations in LC Disbursements or Swingline Loans that would result in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans and participations
in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received
by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans and participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit
of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and participations in LC
Disbursements and Swingline Loans; provided, that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrowers pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any
assignee or participant, other than to any Borrower or any Subsidiary or Affiliate thereof (as to
which the provisions of this paragraph shall apply). The Borrowers consent to the foregoing and
agree, to the extent they may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the Borrowers rights of
set-off and counterclaim with respect to such participation as fully as if such Lender were a
direct creditor of the Borrowers in the amount of such participation.



(d) Unless the Administrative Agent shall have received notice from the Administrative
Borrower prior to the date on which any payment is due to the Administrative Agent for the account
of the Lenders or the Issuing Bank hereunder that the Borrowers will not make such payment, the
Administrative Agent may assume that the Borrowers have made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the
Issuing Bank, as the case may be, the amount or amounts due. In such event, if the Borrowers have
not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender or Issuing Bank 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 Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.



Section 2.21. Letters of Credit.



(a) During the Availability Period, the Issuing Bank, in reliance upon the agreements of the
other Lenders pursuant to Section 2.21(d), agrees to issue, at the request of the
Administrative Borrower, Letters of Credit for the account of the Borrowers on the terms and
conditions hereinafter set forth; provided, that (i) each Letter of Credit shall expire on
the earlier of (A) the date one year after the date of issuance of such Letter of Credit (or in the
case of any renewal or extension thereof, one year after such renewal or extension) and (B) the
date that is five (5) Business Days prior to the Revolving Commitment Termination Date; (ii) each
Letter of Credit shall be in a stated amount of at least $100,000; and (iii) the Administrative
Borrower may not request any Letter of Credit, if, after giving effect to such issuance (A) the
aggregate LC Exposure would exceed the LC Commitment or (B) the Aggregate Revolving Credit Exposure
would exceed the lesser of (1) the Aggregate Revolving Commitment Amount and (2) the Borrowing Base
then in effect. Each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from the Issuing Bank without recourse a participation in
each Letter of Credit equal to such Lender’s Pro Rata Share of the aggregate amount available
to be drawn under such Letter of Credit on the date of issuance with respect to all other Letters
of Credit. Each issuance of a Letter of Credit shall be deemed to utilize the Revolving Commitment
of each Lender by an amount equal to the amount of such participation.


 


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(b) To request the issuance of a Letter of Credit (or any amendment, renewal or extension of
an outstanding Letter of Credit), the Administrative Borrower shall give the Issuing Bank and the
Administrative Agent irrevocable written notice at least three (3) Business Days prior to the
requested date of such issuance specifying the date (which shall be a Business Day) such Letter of
Credit is to be issued (or amended, extended or renewed, as the case may be), the expiration date
of such Letter of Credit, the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. In addition to the satisfaction of the conditions in Article
III, the issuance of such Letter of Credit (or any amendment which increases the amount of such
Letter of Credit) will be subject to the further conditions that such Letter of Credit shall be in
such form and contain such terms as the Issuing Bank shall approve and that the Administrative
Borrower shall have executed and delivered any additional applications, agreements and instruments
relating to such Letter of Credit as the Issuing Bank shall reasonably require; provided,
that in the event of any conflict between such applications, agreements or instruments and this
Agreement, the terms of this Agreement shall control.



(c) At least two Business Days prior to the issuance of any Letter of Credit, the Issuing Bank
will confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received such notice and if not, the Issuing Bank will provide the Administrative Agent
with a copy thereof. Unless the Issuing Bank has received notice from the Administrative Agent on
or before the Business Day immediately preceding the date the Issuing Bank is to issue the
requested Letter of Credit (1) directing the Issuing Bank not to issue the Letter of Credit because
such issuance is not then permitted hereunder because of the limitations set forth in Section
2.21(a) or that one or more conditions specified in Article III are not then satisfied,
then, subject to the terms and conditions hereof, the Issuing Bank shall, on the requested date,
issue such Letter of Credit in accordance with the Issuing Bank’s usual and customary business
practices.



(d) The Issuing Bank shall examine all documents purporting to represent a demand for payment
under a Letter of Credit promptly following its receipt thereof. The Issuing Bank shall notify the
Administrative Borrower and the Administrative Agent of such demand for payment and whether the
Issuing Bank has made or will make a LC Disbursement thereunder; provided, that any failure
to give or delay in giving such notice shall not relieve the Borrowers of their obligation to
reimburse the Issuing Bank and the Lenders with respect to such LC Disbursement. The Borrowers
shall be irrevocably and unconditionally obligated to reimburse the Issuing Bank for any LC
Disbursements paid by the Issuing Bank in respect of such drawing, without presentment, demand or
other formalities of any kind. Unless the Administrative Borrower shall have notified the Issuing
Bank and the Administrative Agent prior to 11:00 a.m. on the Business Day immediately prior to the
date on which such drawing is honored that the Borrowers intend to reimburse the Issuing Bank for
the amount of such drawing in funds other than from the proceeds of Revolving Loans, the
Administrative Borrower shall be deemed to have timely given a Notice of Revolving Borrowing to the
Administrative Agent requesting the
Lenders to make a Base Rate Borrowing on the date on which such drawing is honored in an exact
amount due to the Issuing Bank; provided, that for purposes solely of such Borrowing, the
conditions precedent set forth in Section 3.2 shall not be applicable. The Administrative
Agent shall notify the Lenders of such Borrowing in accordance with Section 2.3, and each
Lender shall make the proceeds of its Base Rate Loan included in such Borrowing available to the
Administrative Agent for the account of the Issuing Bank in accordance with Section 2.5.
The proceeds of such Borrowing shall be applied directly by the Administrative Agent to reimburse
the Issuing Bank for such LC Disbursement.


 


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(e) If for any reason a Base Rate Borrowing may not be (as determined in the sole discretion
of the Administrative Agent), or is not, made in accordance with the foregoing provisions, then
each Lender (other than the Issuing Bank) shall be obligated to fund the participation that such
Lender purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share of such LC
Disbursement on and as of the date which such Base Rate Borrowing should have occurred. Each
Lender’s obligation to fund its participation shall be absolute and unconditional and shall not be
affected by any circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have against the
Issuing Bank or any other Person for any reason whatsoever, (ii) the existence of a Default or an
Event of Default or the termination of the Aggregate Revolving Commitments, (iii) any adverse
change in the condition (financial or otherwise) of any Borrower or any Subsidiaries, (iv) any
breach of this Agreement by any Borrower or any other Lender, (v) any amendment, renewal or
extension of any Letter of Credit or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. On the date that such participation is required to
be funded, each Lender shall promptly transfer, in immediately available funds, the amount of its
participation to the Administrative Agent for the account of the Issuing Bank. Whenever, at any
time after the Issuing Bank has received from any such Lender the funds for its participation in a
LC Disbursement, the Issuing Bank (or the Administrative Agent on its behalf) receives any payment
on account thereof, the Administrative Agent or the Issuing Bank, as the case may be, will
distribute to such Lender its Pro Rata Share of such payment; provided, that if such
payment is required to be returned for any reason to the Borrowers or to a trustee, receiver,
liquidator, custodian or similar official in any bankruptcy proceeding, such Lender will return to
the Administrative Agent or the Issuing Bank any portion thereof previously distributed by the
Administrative Agent or the Issuing Bank to it.



(f) To the extent that any Lender shall fail to pay any amount required to be paid pursuant to
paragraphs (d) or (e) of this Section on the due date therefor, such Lender shall pay interest to
the Issuing Bank (through the Administrative Agent) on such amount from such due date to the date
such payment is made at a rate per annum equal to the Federal Funds Rate; provided, that if
such Lender shall fail to make such payment to the Issuing Bank within three (3) Business Days of
such due date, then, retroactively to the due date, such Lender shall be obligated to pay interest
on such amount at the rate set forth in Section 2.12(c).


 


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(g) If any Event of Default shall occur and be continuing, on the Business Day that the
Administrative Borrower receives notice from the Administrative Agent or the Required Lenders
demanding that its reimbursement obligations with respect to the Letters of Credit be Cash
Collateralized pursuant to this paragraph, the Borrowers shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the benefit of the
Issuing Bank and the Lenders, an amount in cash equal to the LC Exposure as of such date plus
any accrued and unpaid fees thereon; provided, that such obligation to Cash Collateralize
the reimbursement obligations of the Borrowers with respect to Letters of Credit shall become
effective immediately, and such deposit shall become immediately due and payable, without demand or
notice of any kind, upon the occurrence of any Event of Default with respect to the Borrowers
described in clause (g) or (h) of Section 8.1. Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the obligations of the
Borrowers under this Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account. Each Borrower agrees to
execute any documents and/or certificates to effectuate the intent of this paragraph. Other than
any interest earned on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the Borrowers’ risk and expense, such
deposits shall not bear interest. Interest and profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it had not been reimbursed and to the
extent so applied, shall be held for the satisfaction of the reimbursement obligations of the
Borrowers for the LC Exposure at such time or, if the maturity of the Loans has been accelerated,
with the consent of the Required Lenders, be applied to satisfy other obligations of the Borrowers
under this Agreement and the other Loan Documents. If the Borrowers are required to Cash
Collateralize the reimbursement obligations of the Borrowers with respect to Letters of Credit as a
result of the occurrence of an Event of Default, such cash collateral so posted (to the extent not
so applied as aforesaid), including interest and profits, if any, on any such investments, as
aforesaid, shall be returned to the Borrowers within three Business Days after all Events of
Default have been cured or waived.



(h) Promptly following the end of each calendar quarter, the Issuing Bank shall deliver
(through the Administrative Agent) to each Lender and the Administrative Borrower a report
describing the aggregate Letters of Credit outstanding at the end of such Fiscal Quarter. Upon the
request of any Lender from time to time, the Issuing Bank shall deliver to such Lender any other
information reasonably requested by such Lender with respect to each Letter of Credit then
outstanding.



(i) The Borrowers’ obligation to reimburse LC Disbursements hereunder shall be absolute,
unconditional and irrevocable and shall be performed strictly in accordance with the terms of this
Agreement under all circumstances whatsoever and irrespective of any of the following
circumstances:




(i) Any lack of validity or enforceability of any Letter of Credit or this Agreement;




(ii) The existence of any claim, set-off, defense or other right which any Borrower or
any Subsidiary or Affiliate of any Borrower may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons or entities for whom any such
beneficiary or transferee may be acting), any Lender (including the Issuing Bank) or any
other Person, whether in connection with this Agreement or the Letter of Credit or any
document related hereto or thereto or any unrelated transaction;




(iii) Any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect;


 


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(iv) Payment by the Issuing Bank under a Letter of Credit against presentation of a
draft or other document to the Issuing Bank that does not comply with the terms of such
Letter of Credit;




(v) Any other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section 2.21, constitute a
legal or equitable discharge of, or provide a right of setoff against, the Borrower’s
obligations hereunder; or




(vi) The existence of a Default or an Event of Default.



Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related Party of any of the
foregoing shall have any liability or responsibility by reason of or in connection with the
issuance or transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to above), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any consequence arising from causes
beyond the control of the Issuing Bank; provided, that the foregoing shall not be construed
to excuse the Issuing Bank from liability to the Borrowers to the extent of any actual direct
damages (as opposed to special, indirect (including claims for lost profits or other consequential
damages), or punitive damages, claims in respect of which are hereby waived by the Borrowers to the
extent permitted by applicable law) suffered by the Borrowers that are caused by the Issuing Bank’s
failure to exercise due care when determining whether drafts or other documents presented under a
Letter of Credit comply with the terms thereof. The parties hereto expressly agree, that in the
absence of gross negligence or willful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have
exercised due care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to documents presented that
appear on their face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or information to the
contrary, or refuse to accept and make payment upon such documents if such documents are not in
strict compliance with the terms of such Letter of Credit.



(j) Unless otherwise expressly agreed by the Issuing Bank and the Administrative Borrower when
a Letter of Credit is issued and subject to applicable laws, (i) each standby Letter of Credit
shall be governed by the “International Standby Practices 1998” (ISP98) (or such later revision as
may be published by the Institute of International Banking Law & Practice on any date any Letter of
Credit may be issued), (ii) each documentary Letter of Credit shall be governed by the Uniform
Customs and Practices for Documentary Credits (2007 Revision), International Chamber of Commerce
Publication No. 600 (or such later revision as may be published by the International Chamber of
Commerce on any date any Letter of Credit
may be issued) and (iii) the Administrative Borrower shall specify the foregoing in each
letter of credit application submitted for the issuance of a Letter of Credit.


 


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Section 2.22. Cash Collateralization of Defaulting Lender Commitment.



If a Lender becomes, and during the period it remains, a Defaulting Lender, the following
provisions shall apply with respect to any outstanding LC Exposure and any outstanding Swingline
Exposure of such Defaulting Lender:



(a) each of the Issuing Bank and the Swingline Lender is hereby authorized by the Borrowers
(which authorization is irrevocable and coupled with an interest) to give, in its discretion,
through the Administrative Agent, Notices of Borrowing pursuant to Section 2.3 in such
amounts and in such times as may be required to (i) reimburse an outstanding LC Disbursement, and
(ii) repay an outstanding Swingline Loan, as applicable;



(b) the Borrowers will, not later than three (3) Business Days after demand by the
Administrative Agent (at the direction of the Issuing Bank and/or the Swingline Lender, as the case
may be), (a) Cash Collateralize a portion of the obligations of the Borrowers to the Issuing Bank
and the Swingline Lender equal to such Defaulting Lender’s LC Exposure or Swingline Exposure, as
the case may be, (b) in the case of such Swingline Exposure, prepay all Swingline Loans, or (c)
make other arrangements satisfactory to the Administrative Agent, and to the Issuing Bank and the
Swingline Lender, as the case may be, in their sole discretion to protect them against the risk of
non-payment by such Defaulting Lender; provided that no such Cash Collateralization will
constitute a waiver or release of any claim the Borrowers, the Administrative Agent, the Issuing
Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender, or cause
such Defaulting Lender to be a Non-Defaulting Lender; and



(c) any amount paid by the Borrowers for the account of a Defaulting Lender under this
Agreement (whether on account of principal, interest, fees, indemnity payments or other amounts)
will not be paid or distributed to such Defaulting Lender, but will instead be retained by the
Administrative Agent in a segregated non-interest bearing account until the termination of the
Commitments at which time the funds in such account will be applied by the Administrative Agent, to
the fullest extent permitted by law, in the following order of priority: first to the
payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this
Agreement, second to the payment of any amounts owing by such Defaulting Lender to the
Issuing Bank or the Swingline Lender (pro rata as to the respective amounts owing
to each of them) under this Agreement, third to the payment of post-default interest and
then current interest due and payable to the Non-Defaulting Lenders, ratably among them in
accordance with the amounts of such interest then due and payable to them, fourth to the
payment of fees then due and payable to the Non-Defaulting Lenders hereunder, ratably among them in
accordance with the amounts of such fees then due and payable to them, fifth to pay
principal and unreimbursed LC Disbursements then due and payable to the Non-Defaulting Lenders
hereunder ratably in accordance with the amounts thereof then due and payable to them,
sixth to the ratable payment of other amounts then due and payable to the Non-Defaulting
Lenders, and seventh to pay amounts owing under this Agreement to such Defaulting Lender or
as a court of competent jurisdiction may otherwise direct.


 


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Section 2.23. Increase of Revolving Commitments; Additional Lenders.



(a) So long as no Default or Event of Default has occurred and is continuing, from time to
time after the Restatement Date, the Administrative Borrower may, upon at least 30 days’ written
notice to the Administrative Agent (who shall promptly provide a copy of such notice to each
Lender), propose to increase the Aggregate Revolving Commitments by an amount not to exceed
$100,000,000 (the amount of any such increase, the “Additional Revolving Commitment
Amount”); provided, that any proposed Additional Revolving Commitment Amount shall not
be less than $20,000,000. Each Lender shall have the right for a period of 15 days following
receipt of such notice, to elect by written notice to the Administrative Borrower and the
Administrative Agent to increase its Revolving Commitment by a principal amount equal to its Pro
Rata Share of the Additional Revolving Commitment Amount. No Lender (or any successor thereto)
shall have any obligation to increase its Revolving Commitment or its other obligations under this
Agreement and the other Loan Documents, and any decision by a Lender to increase its Revolving
Commitment shall be made in its sole discretion independently from any other Lender.



(b) If any Lender shall not elect to increase its Revolving Commitment pursuant to subsection
(a) immediately above, the Administrative Borrower may designate another bank or other financial
institution (which may be, but need not be, one or more of the existing Lenders) which at the time
agrees to, in the case of any such Person that is an existing Lender, increase its Revolving
Commitment and in the case of any other such Person (an “Additional Lender”), become a
party to this Agreement; provided, however, that any new bank or financial
institution must be acceptable to the Administrative Agent (which acceptance shall not unreasonably
be withheld) and the Administrative Borrower. The sum of the increases in the Revolving
Commitments of the existing Lenders pursuant to this subsection (b) plus the Revolving Commitments
of the Additional Lenders shall not in the aggregate exceed the unsubscribed amount of the
Additional Revolving Commitment Amount.



(c) An increase in the aggregate amount of the Revolving Commitments pursuant to this
subsection (c) shall become effective upon the receipt by the Administrative Agent of an supplement
or joinder in form and substance satisfactory to the Administrative Agent executed by each Borrower
and by each Additional Lender and by each other Lender whose Revolving Commitment is to be
increased, setting forth the new Revolving Commitments of such Lenders and setting forth the
agreement of each Additional Lender to become a party to this Agreement and to be bound by all the
terms and provisions hereof, together with Notes evidencing such increase in the Revolving
Commitments, and such evidence of appropriate corporate authorization on the part of the Borrowers
with respect to the increase in the Revolving Commitments and such opinions of counsel for the
Borrowers with respect to the increase in the Revolving Commitments as the Administrative Agent may
reasonably request.



(d) Upon the acceptance of any such agreement by the Administrative Agent, the Aggregate
Revolving Commitment Amount shall automatically be increased by the amount of the Revolving
Commitments added through such agreement and Schedule II shall automatically be deemed
amended to reflect the Revolving Commitments of all Lenders after giving effect to the addition of
such Revolving Commitments.


 


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(e) Upon any increase in the aggregate amount of the Revolving Commitments pursuant to this
Section 2.23 that is not pro rata among all Lenders, (x) within five Business Days, in the
case of any Base Rate Loans then outstanding, and at the end of the then current Interest Period
with respect thereto, in the case of any Eurodollar Loans then outstanding, the Borrowers shall
prepay such Loans in their entirety and, to the extent the Administrative Borrower elects to do so
and subject to the conditions specified in Article III, the Administrative Borrower shall
reborrow Loans from the Lenders in proportion to their respective Revolving Commitments after
giving effect to such increase, until such time as all outstanding Loans are held by the Lenders in
proportion to their respective Revolving Commitments after giving effect to such increase and (y)
effective upon such increase, the amount of the participations held by each Lender in each Letter
of Credit then outstanding shall be adjusted automatically such that, after giving effect to such
adjustments, the Lenders shall hold participations in each such Letter of Credit in proportion to
their respective Revolving Commitments.



Section 2.24. Mitigation of Obligations. If any Lender requests compensation under
Section 2.17, or if any Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 2.19, then
such Lender shall 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 sole judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable under Section 2.17 or Section
2.19, as the case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Each
Borrower hereby agrees to pay all costs and expenses incurred by any Lender in connection with such
designation or assignment, promptly upon such Lender’s provision to the Administrative Borrower of
reasonable documentation of such costs and expenses.



Section 2.25. Replacement of Lenders. If any Lender requests compensation under
Section 2.17, or if any Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 2.19, or if
any Lender is a Defaulting Lender, then the Borrowers may, at their sole expense and effort (but
without prejudice to any rights or remedies the Borrowers may have against such Defaulting Lender),
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 set forth in
Section 10.4(b)) all its interests, rights and obligations under this Agreement to an
assignee that shall assume such obligations (which assignee may be another Lender but excluding any
Defaulting Lender); provided, that (i) the Administrative Borrower shall have received the
prior written consent of the Administrative Agent, which consent shall not be unreasonably
withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding
principal amount of all Loans owed to it, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (in the case of such outstanding principal and
accrued interest) and from the Borrowers (in the case of all other amounts) and (iii) in the case
of a claim for compensation under Section 2.17 or payments required to be made pursuant to
Section 2.19, such assignment will result in a reduction in such compensation or payments.
A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to
require such assignment and delegation cease to apply.


 


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Section 2.26. Application of Payments.



(a) Payments Prior to Event of Default. Prior to the occurrence and continuance of an
Event of Default, all amounts received by the Administrative Agent from the Borrowers (other than
payments specifically earmarked for application to certain principal, interest, fees or expenses
hereunder or payments made pursuant to Section 2.11 (which shall be applied as earmarked
or, with respect to payments under Section 2.11, as set forth in Section 2.11),
shall be distributed by the Administrative Agent in the following order of priority:



FIRST, pro rata, to the payment of (i) out-of-pocket costs and expenses (including reasonable
attorneys’ fees) of the Administrative Agent incurred by the Administrative Agent in connection
with the enforcement of the rights of the Administrative Agent, the Issuing Bank and the Lenders
under the Loan Documents and (ii) any Agent Advances made by the Administrative Agent under or
pursuant to the terms of the Loan Documents and interest accrued thereon;



SECOND, pro rata, to the payment of any fees then due and payable to the Administrative Agent,
the Issuing Bank or the Swingline Lender hereunder or under any other Loan Documents;



THIRD, pro rata, to the payment of all Obligations consisting of accrued fees and interest
then due and payable to the Lenders hereunder;




FOURTH, to the payment of principal then due and payable on the Swingline Loans;




FIFTH, to the payment of principal then due and payable on the Revolving Loans;



SIXTH, to the payment of the Obligations arising in respect of Bank Products then due and
payable; and



SEVENTH, to the payment of all other Obligations not otherwise referred to in this Section
2.26(a) then due and payable.



Subject to items “FIRST” through “SEVENTH” preceding, the Administrative Agent and the Lenders
shall have the continuing and exclusive right to apply and reverse and reapply any and all such
proceeds and payments to any portion of the Obligations. Amounts distributed with respect to any
Indebtedness in respect of Bank Products shall be the lesser of the applicable Bank Product Amount
last reported to Administrative Agent or the actual amount of such Indebtedness, as calculated by
the methodology reported to the Administrative Agent for determining the amount due. The
Administrative Agent shall have no obligation to calculate the amount to be distributed with
respect to any Indebtedness in respect of Bank Products, but may rely upon written notice of the
amount (setting forth a reasonably detailed calculation) from the relevant Lender or Affiliate of a
Lender providing such Bank Products. In the absence of such notice, Administrative Agent may
assume the amount to be distributed is the Bank Product Amount last reported to it.


 


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(b) Payments Subsequent to Event of Default. Notwithstanding anything in this
Agreement or any other Loan Document which may be construed to the contrary, subsequent
to the occurrence and during the continuance of an Event of Default, payments and prepayments
with respect to the Obligations made to the Administrative Agent, the Issuing Bank or the Lenders,
or any of them, or otherwise received by any of the foregoing Persons (from realization on
Collateral or otherwise) shall be distributed in the following order of priority (subject, as
applicable, to Section 2.20):



FIRST, pro rata, to the payment of (i) out-of-pocket costs and expenses (including reasonable
attorneys’ fees) of the Administrative Agent incurred in connection with the enforcement of the
rights of the Administrative Agent, the Issuing Bank and the Lenders under the Loan Documents and
(ii) any Agent Advances made by the Administrative Agent under or pursuant to the terms of the Loan
Documents (including any costs incurred in connection with the sale or disposition of any
Collateral);



SECOND, pro rata, to payment of any fees owed to the Administrative Agent, the Issuing Bank or
the Swingline Lender hereunder or under any other Loan Document;



THIRD, to the payment of out-of-pocket costs and expenses (including reasonable attorneys’
fees) of the Lenders incurred in connection with the enforcement of their respective rights under
the Loan Documents;



FOURTH, to the payment of all obligations consisting of accrued fees and interest payable to
the Lenders hereunder;




FIFTH, to the payment of the principal of the Swingline Loans then outstanding;



SIXTH, pro rata, to (i) the payment of principal on the Revolving Loans then outstanding, and
(ii) the Letter of Credit Reserve Account to the extent of one hundred five percent (105%) of any
LC Exposure then outstanding;




SEVENTH, to the payment of any Obligation arising in respect of Bank Products;



EIGHTH, to any other Obligations not otherwise referred to in this Section 2.26(b);
and



NINTH, upon satisfaction in full of all Obligations, to the Borrowers or as otherwise required
by law.



Subject to items “FIRST” through “EIGHTH” preceding, the Administrative Agent and the Lenders
shall have the continuing and exclusive right to apply and reverse and reapply any and all such
proceeds and payments to any portion of the Obligations. Amounts distributed with respect to any
Indebtedness in respect of Bank Products shall be the lesser of the applicable Bank Product Amount
last reported to Administrative Agent or the actual amount of such Indebtedness, as calculated by
the methodology reported to the Administrative Agent for determining the amount due. The
Administrative Agent shall have no obligation to calculate the amount to be distributed with
respect to any Indebtedness in respect of Bank Products, but may rely upon written notice of the
amount (setting forth a reasonably detailed calculation) from the relevant Lender or Affiliate of a
Lender providing such Bank Products. In the absence of such
notice, Administrative Agent may assume the amount to be distributed is the Bank Product
Amount last reported to it.


 


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Section 2.27. Bank Products. The Borrowers may obtain Bank Products from any Lender
or any of their respective Affiliates, although the Borrowers are not required to do so. To the
extent Bank Products are provided by an Affiliate of any Lender, Borrowers agree to indemnify and
hold the Administrative Agent and Lenders harmless from any and all costs and obligations now or
hereafter incurred by any of the Lenders which arise from any indemnity given by any Lender to any
of their respective Affiliates related to such Bank Products; provided, however,
that nothing contained herein is intended to limit any Borrower’s rights, with respect to any
Lender or any Lender’s Affiliates, if any, that arise as a result of the execution of Bank Product
Documents. The agreement contained in this Section 2.27 shall survive termination of this
Agreement. The Borrowers acknowledge and agree that the obtaining of Bank Products from any Lender
or such Lender’s Affiliates (a) is in the sole and absolute discretion of such Lender or such
Lender’s Affiliates, and (b) is subject to all rules and regulations of such Lender or such
Lender’s Affiliates.



ARTICLE III




CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT




Section 3.1. Conditions To Effectiveness. This Agreement, and the obligations of the
Lenders (including the Swingline Lender) to make Loans and the obligation of the Issuing Bank to
issue any Letter of Credit hereunder, shall not become effective until the date on which each of
the following conditions is satisfied (or waived in accordance with Section 10.2).



(a) The Administrative Agent, its Affiliates and the Lenders shall have received payment of
all fees, expenses and other amounts due and payable on or prior to the Restatement Date, including
reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and
disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the
Borrowers hereunder, under any other Loan Document and under any agreement with the Administrative
Agent or SunTrust Robinson Humphrey, Inc.



(b) The Administrative Agent (or its counsel) shall have received the following, each to be in
form and substance satisfactory to the Required Lenders:




(i) a duly executed and effective notice from the Company of a voluntary reduction of
the Aggregate Revolving Commitments under the Existing Credit Agreement in an amount not
less than $50,000,000;




(ii) a counterpart of this Agreement signed by or on behalf of each party hereto or
written evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement;




(iii) duly executed Notes payable to each applicable Lender;




(iv) one or more Perfection Certificates duly completed and executed by each of the
Borrowers;


 


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(v) the Security Agreement duly executed by the Borrowers, together with UCC financing
statements, delivery of all certificated securities and instruments pledged under the
Security Agreement, executed stock powers and other appropriate endorsements and other
documents related thereto;




(vi) fully executed and notarized Mortgages, in proper form for recording in all
appropriate places in all applicable jurisdictions, encumbering all Real Estate listed on
Schedule 3.1, together with legal opinions relating to the validity and
enforceability thereof, and such other related documents, agreements, instruments as may be
reasonably required by the Administrative Agent;




(vii) a certificate of the Secretary or Assistant Secretary of each Borrower in the
form of Exhibit 3.1(b)(vii), attaching and certifying copies of its Organizational
Documents, and of the resolutions of its board of directors or similar governing body
authorizing the execution, delivery and performance of the Loan Documents to which it is a
party and certifying the name, title and true signature of each officer of each Borrower
executing the Loan Documents to which it is a party;




(viii) a certificate of good standing from the Secretary of State of the jurisdiction
of incorporation or organization of each Borrower;




(ix) a favorable written opinion of Baker & Hostetler, LLP, counsel to the Borrowers,
together with local counsel opinions described in clause (vi) above, in each case addressed
to the Administrative Agent and each of the Lenders, and covering such matters relating to
the Borrowers, the Loan Documents and the transactions contemplated therein as the
Administrative Agent or the Required Lenders shall reasonably request;




(x) a certificate in the form of Exhibit 3.1(b)(x), dated the Restatement Date
and signed by a Responsible Officer, certifying that (x) no Default or Event of Default
exists, (y) all representations and warranties of the Borrowers set forth in the Loan
Documents are true and correct and (z) since the date of the financial statements of the
Company described in Section 4.5, there shall have been no change which has had or
could reasonably be expected to have a Material Adverse Effect;




(xi) certified copies of all consents, approvals, authorizations, registrations and
filings and orders required or advisable to be made or obtained under any Requirement of
Law, or by any Contractual Obligation of any Borrower, in connection with the execution,
delivery, performance, validity and enforceability of the Loan Documents or any of the
transactions contemplated thereby, and such consents, approvals, authorizations,
registrations, filings and orders shall be in full force and effect and all applicable
waiting periods shall have expired, and no investigation or inquiry by any Governmental
Authority regarding this Agreement or any transaction being financed with the proceeds
hereof shall be ongoing;




(xii) copies of the audited consolidated financial statements for the Company and its
Subsidiaries for the Fiscal Years ended 2006, 2007 and 2008 including balance
sheets, statements of income, stockholders’ equity and cash flows, all in reasonable
detail and reported on by independent public accountants of nationally recognized standing
and in accordance with GAAP;


 


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(xiii) Certificates of insurance with respect to the Borrowers describing the types
and amounts of insurance (property and liability) maintained by the Borrowers, naming the
Agent as additional insured on liability policies and with lender loss payee endorsements
for property and casualty policies, in each case, meeting the requirements of Section
5.8;




(xiv) Pay-off letters, termination statements, canceled mortgages and the like
required by the Administrative Agent in connection with the removal of any Liens (other
than Permitted Liens), including, without limitation, all tax liens, against the assets of
the Borrowers;




(xv) UCC, tax lien and judgment search results with respect to each Borrower from all
appropriate jurisdictions and filing offices;




(xvi) Delivery of Collateral Access Agreements, Blocked Account Agreements, leases,
bailee agreements, intellectual property licenses, inventory licensing agreements, all
other Material Contracts and such other diligence items as the Administrative Agent may
require;




(xvii) Evidence satisfactory to the Administrative Agent that the Liens granted
pursuant to the Security Documents will be first priority perfected Liens on the Collateral
(subject only to Permitted Liens);




(xviii) Completion of due diligence regarding the Eligible Tax Refund with results of
such due diligence being satisfactory to Administrative Agent and the Arranger in their
sole discretion;




(xix) Commencement of field audits of all Accounts and Inventory by auditors and
appraisers selected by the Administrative Agent and the Arranger;




(xx) The cash management system of the Borrowers, including without limitation all
Collateral Related Accounts and the Blocked Accounts, shall be reasonably satisfactory to
the Administrative Agent and shall provide for springing full dominion and control in favor
of the Administrative Agent over all deposit accounts, if an Event of Default has occurred
and is continuing;




(xxi) The Administrative Agent shall have received a Borrowing Base Certificate
reflecting that, among other things, as of the Restatement Date and after giving effect to
all Obligations outstanding hereunder and any Borrowings requested to be made or Letters of
Credit to be issued on the Restatement Date, a 20% Triggering Event shall not occur (with
trade payables being paid currently, expenses and liabilities being paid in the ordinary
course of business and without acceleration of sales and without deterioration in working
capital);


 


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(xxii) A duly executed and completed Post-Closing Matters Agreement; and




(xxiii) Confirmation that no litigation, investigation or proceeding of or before any
arbitrators or Governmental Authorities is pending against or, to the knowledge of the
Borrowers, threatened against any Borrower that could reasonably be expected to have a
Material Adverse Effect.



(c) The Administrative Agent shall have received evidence satisfactory to it that all
Necessary Authorizations are in full force and effect and are not subject to any pending or
threatened reversal or cancellation, that no other consents or approvals are required and that no
Default exists, after giving effect to the initial Loans hereunder, and the Administrative Agent
shall have received a certificate of a Responsible Officer of the Administrative Borrower so
stating.



(d) The Administrative Agent shall have completed such other business and legal due diligence
with respect to the Borrowers and the results thereof shall be acceptable to the Administrative
Agent, in its sole discretion.



Without limiting the generality of the provisions of this Section, for purposes of determining
compliance with the conditions specified in this Section, 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 hereunder 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 Restatement Date specifying its objection thereto.



Section 3.2. Each Credit Event. The obligation of each Lender to make a Loan (but
excluding Loans, the proceeds of which are to reimburse the Administrative Agent for Agent
Advances) on the occasion of any Borrowing and of the Issuing Bank to issue, amend, renew or extend
any Letter of Credit is subject to the satisfaction of the following conditions:



(a) at the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of
Default shall exist;



(b) at the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, all representations and
warranties of the Borrowers set forth in the Loan Documents shall be true and correct in all
material respects on and as of the date of such Borrowing or the date of issuance, amendment,
extension or renewal of such Letter of Credit, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such representations and warranties
shall be true and correct in all material respects as of such earlier date), in each case before
and after giving effect thereto;



(c) since the date of the financial statements of the Company described in Section
4.5, there shall have been no change which has had or could reasonably be expected to have a
Material Adverse Effect;


 


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(d) the Administrative Borrower shall have delivered the required Notice of Borrowing, if
applicable;



(e) Excess Availability at the time of any request for a Borrowing or issuance, of a Letter of
Credit hereunder is greater than or equal to the amount of such requested Loan or Letter of Credit;
and



(f) the Administrative Agent shall have received such other documents, certificates or
information as the Administrative Agent or the Required Lenders may reasonably request, all in form
and substance reasonably satisfactory to the Administrative Agent or the Required Lenders.



In addition to the other conditions precedent herein set forth, if any Lender is a Defaulting
Lender at the time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, the Issuing Bank will not
be required to issue any Letter of Credit or to extend, renew or amend any outstanding Letter of
Credit and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing
Bank or the Swingline Lender, as the case may be, is satisfied that any exposure that would result
therefrom is fully covered or eliminated by the Borrowers Cash Collateralizing the obligations of
the Borrowers in respect of such Letter of Credit or Swingline Loan in an amount at least equal to
the aggregate amount of the obligations (contingent or otherwise) of such Defaulting Lender in
respect of such Letter of Credit or Swingline Loan, or makes other arrangements satisfactory to the
Administrative Agent, the Issuing Bank and the Swingline Lender in their sole discretion to protect
them against the risk of non-payment by such Defaulting Lender; provided that no such Cash
Collateralization will constitute a waiver or release of any claim the Borrower, the Administrative
Agent, the Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting
Lender, or cause such Defaulting Lender to be a Non-Defaulting Lender.



Each Borrowing and each issuance, amendment, extension or renewal of any Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrowers on the date thereof as to the
matters specified in paragraphs (a), (b) and (c) of this Section 3.2.



Section 3.3. Delivery of Documents. All of the Loan Documents, certificates, legal
opinions and other documents and papers referred to in this Article III, unless otherwise
specified, shall be delivered to the Administrative Agent for the account of each of the Lenders
and, except for the Notes, in sufficient counterparts or copies for each of the Lenders and shall
be in form and substance satisfactory in all respects to the Administrative Agent.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES





The Borrowers represent and warrant to the Administrative Agent and each Lender as follows:



Section 4.1. Existence; Power. Each Borrower and each Subsidiary (i) is duly
organized, validly existing and in good standing as a corporation, partnership or limited liability
company under the laws of the jurisdiction of its organization, (ii) has all requisite power and
authority to carry on its business as now conducted, and (iii) is duly qualified to do
business, and is in good standing, in each jurisdiction where such qualification is required,
except where a failure to be so qualified could not reasonably be expected to result in a Material
Adverse Effect.


 


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Section 4.2. Organizational Power; Authorization. The execution, delivery and
performance by each Borrower of the Loan Documents to which it is a party are within such
Borrower’s organizational powers and have been duly authorized by all necessary organizational, and
if required, shareholder, partner or member, action. This Agreement has been duly executed and
delivered by each Borrower, and constitutes, and each other Loan Document to which each Borrower is
a party, when executed and delivered by such Borrower, will constitute, valid and binding
obligations of such Borrower, enforceable against it in accordance with their respective terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting the enforcement of creditors’ rights generally and by general principles of
equity.



Section 4.3. Capital Stock and Related Matters. The authorized Equity Interests as of
the Restatement Date of each Borrower and each Subsidiary and the number of shares of such Equity
Interests that are issued and outstanding as of the Restatement Date are as set forth on
Schedule 4.3. All of the shares of such Equity Interests that are issued and outstanding
as of the Restatement Date have been duly authorized and validly issued and are fully paid and
non-assessable. None of such Equity Interests have been issued in violation of the Securities Act,
or the securities, “Blue Sky” or other Applicable Laws of any applicable jurisdiction. As of the
Restatement Date, the Equity Interests of each such Borrower (other than the Company) and each
Subsidiary are owned by the parties listed on Schedule 4.3 in the amounts set forth on such
schedule and a description of the Equity Interests of each such party is listed on Schedule
4.3. Except as described on Schedule 4.3, no Borrower and no Subsidiary has
outstanding any stock or securities convertible into or exchangeable for any shares of its Equity
Interests, nor are there any preemptive or similar rights to subscribe for or to purchase, or any
other rights to subscribe for or to purchase, or any options for the purchase of, or any agreements
providing for the issuance (contingent or otherwise) of, or any calls, commitments, or claims of
any character relating to, any Equity Interests or any stock or securities convertible into or
exchangeable for any Equity Interests. Except as set forth on Schedule 4.3, no Borrower
and no Subsidiary is subject to any obligation (contingent or otherwise) to repurchase or otherwise
acquire or retire any shares of its Equity Interests or to register any shares of its Equity
Interests, and there are no agreements restricting the transfer of any shares of such Borrower’s or
such Subsidiary’s Equity Interests or restricting the ability of any Subsidiary of any Borrower
from making distributions, dividends or other Restricted Payments to such Borrower.



Section 4.4. Governmental Approvals; No Conflicts. The execution, delivery and
performance by each Borrower of this Agreement and each of the other Loan Documents and the Bank
Product Documents to which it is a party (a) do not require any consent or approval of,
registration or filing with, or any action by, any Governmental Authority, except those as have
been obtained or made and are in full force and effect, and except for filings required by
applicable securities laws and regulations, which filings have been made or will be made on or
prior to the date on which such filings are required to be made, (b) will not violate any
Requirements of Law applicable to each Borrower or any Subsidiary or any judgment, order or ruling
of any Governmental Authority, (c) will not violate or result in a default under any indenture,
material agreement or other material instrument binding on each Borrower or any Subsidiary or any
of its assets or give rise to a
right thereunder to require any payment to be made by each Borrower or any Subsidiary and (d)
will not result in the creation or imposition of any Lien on any asset of any Borrower or any
Subsidiary, except Liens (if any) created under the Loan Documents.


 


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Section 4.5. Financial Statements. The Company has furnished to each Lender (i) the
audited consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2008 and
the related consolidated statements of income, shareholders’ equity and cash flows for the Fiscal
Year then ended, accompanied by the opinion of Deloitte & Touche LLP and (ii) the unaudited
financial statements of the Company and its Subsidiaries as of June 30, 2009, consisting of
consolidated balance sheet and the related consolidated statements of income, shareholders’ equity
and cash flows for the six-month period ending on such date. Such financial statements fairly
present the consolidated financial condition of the Company and its Subsidiaries as of such dates
and the consolidated results of operations for such periods in conformity with GAAP consistently
applied, subject to year end audit adjustments and the absence of footnotes. Since
December 31, 2008, there have been no changes with respect to the Company and its Subsidiaries
which have had or could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.



Section 4.6. Liabilities, Litigation and Environmental Matters.



(a) As of the Restatement Date, except for liabilities incurred in the normal course of
business, no Borrower and no Subsidiary has any material (individually or in the aggregate)
liabilities, direct or contingent, except as disclosed or referred to in the financial statements
referred to in Section 4.5 or with respect to the Obligations. As of the Restatement Date,
except as described on Schedule 4.6(a), there is no litigation, legal or administrative
proceeding, investigation, or other action of any nature pending or, to the knowledge of the
Borrowers, threatened against or affecting any Borrower or any Subsidiary or any of their
respective properties which could reasonably be expected to result in any judgment against or
liability of such Borrower or Subsidiary in excess of $250,000 in the aggregate with respect to all
Borrowers and their Subsidiaries, or the loss of any certification or license material to the
operation of such Borrower’s or Subsidiary’s business. None of such litigation disclosed on
Schedules 4.6(a), individually or collectively, could reasonably be expected to have a
Material Adverse Effect. No litigation, investigation or proceeding of or before any arbitrators
or Governmental Authorities is pending against or, to the knowledge of the Borrowers, threatened
against any Borrower or any Subsidiary which in any manner draws into question the validity or
enforceability of this Agreement or any other Loan Document.



(b) Except for the matters set forth on Schedule 4.6(b), no Borrower and no Subsidiary
(i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental Liability, except, in the
case of any of the foregoing, where such failure or actual or possible liability, either singly or
in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.


 


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Section 4.7. Compliance with Laws and Agreements. Each of the Borrowers and each
Subsidiary are in compliance with (a) all Requirements of Law and all judgments, decrees and orders
of any Governmental Authority and (b) all indentures, agreements or other instruments binding upon
them or their properties, except where non-compliance, either singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.



Section 4.8. Material Contracts. Schedule 4.8 contains a complete list, as of
the Restatement Date, of each Material Contract, true, correct and complete copies of which have
been delivered to the Administrative Agent. No Borrower and no Subsidiary is in default under or
with respect to any Material Contract to which it is a party or by which it or any of its
properties are bound. Except as set forth on Schedule 4.8, none of the Material Contracts
set forth on Schedule 4.8 requires the consent of any Person to the granting of a Lien in
favor of the Administrative Agent on the rights of any Borrower thereunder.



Section 4.9. Investment Company Act, Etc. No Borrower and no Subsidiary is (a) an
“investment company” or is “controlled” by an “investment company”, as such terms are defined in,
or subject to regulation under, the Investment Company Act of 1940, as amended or (b) otherwise
subject to any other regulatory scheme limiting its ability to incur debt or requiring any approval
or consent from or registration or filing with, any Governmental Authority in connection therewith.



Section 4.10. Taxes. Except as set forth on Schedule 4.10, all federal, state
and other tax returns of each Borrower and each Subsidiary required by law to be filed have been
duly filed, all such tax returns are true, complete and correct in all material respects, and all
federal, state, and other taxes (including without limitation, all real estate and personal
property, income, franchise, transfer and gains taxes), all general or special assessments, and
other governmental charges or levies upon each Borrower and each Subsidiary and any of their
respective properties, income, profits, and assets, which are due and payable, have been paid,
except any payment of any of the foregoing which such Borrower or such Subsidiary, as applicable,
is currently contesting in good faith by appropriate proceedings and with respect to which reserves
in conformity with GAAP have been provided on the books of such Borrower or such Subsidiary, as the
case may be. No adjustment relating to any tax returns has been proposed formally or informally by
any Governmental Authority and, to the knowledge of each Borrower no basis exists for any such
adjustment. The charges, accruals, and reserves on the books of the Borrowers and their
Subsidiaries in respect of taxes are, in the reasonable judgment of the Borrowers, adequate. Except
as set forth on Schedule 4.10, no Borrower and no Subsidiary is subject to audit for
federal income tax for 2006 or any prior tax year, or has knowledge of any pending audit, by the
Internal Revenue Service or any other taxing authority. Except as described in Schedule
4.10, no Borrower has executed or filed with the Internal Revenue Service or any other
Governmental Authority any agreement or other document extending, or having the effect of
extending, the period for assessment or collection of any taxes. Except as set forth on
Schedule 4.10, no Borrower and none of their respective predecessors are liable for any
taxes: (i) under any agreement (including any tax sharing agreements) or (ii) to each Borrower’s
knowledge, as a transferee. As of the Restatement Date, no Borrower has agreed, or been requested,
to make any adjustment under Code Section 481(a), by reason of a change in accounting method or
otherwise, which would have a Materially Adverse Effect.


 


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Section 4.11. Margin Regulations. None of the proceeds of any of the Loans or Letters
of Credit will be used, directly or indirectly, for “purchasing” or “carrying” any “margin stock”
with the respective meanings of each of such terms under Regulation U or for any purpose that
violates the provisions of the Regulation T, U or X. No Borrower and no Subsidiary is engaged
principally, or as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying “margin stock.”



Section 4.12. ERISA. Except as set forth on Schedule 4.12, no ERISA Event has
occurred or is reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be expected to result
in a Material Adverse Effect. Except as set forth on Schedule 4.12, the present value of
all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of the assets of such Plan.



Section 4.13. Ownership of Property.



(a) Each Borrower and each Subsidiary has good title to, or valid leasehold interests in, all
of its real and tangible personal property material to the operation of its business, including all
such properties reflected in the most recent audited consolidated balance sheet of the Company
referred to in Section 4.5 or purported to have been acquired by any Borrower or any
Subsidiary after said date (except as sold or otherwise disposed of in the ordinary course of
business), in each case free and clear of Liens prohibited by this Agreement. All leases that
individually or in the aggregate are material to the business or operations of each Borrower and
each Subsidiary are valid and subsisting and are in full force in all material respects.



(b) Except as set forth on Schedule 4.13(b), each Borrower and each Subsidiary owns,
or is licensed, or otherwise has the right, to use, all patents, trademarks, service marks, trade
names, copyrights and other intellectual property material to its business, and the use thereof by
any Borrower or any Subsidiary does not infringe in any material respect on the rights of any other
Person, except where the failure to have such rights, or any such infringement, could not
reasonably be expected to result in a Material Adverse Effect.



(c) Except as set forth on Schedule 4.13(c), the properties of each Borrower and each
Subsidiary are insured with financially sound and reputable insurance companies which are not
Affiliates of any 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 Borrowers or any applicable Subsidiary operates.



Section 4.14. Disclosure. The Company has duly filed all reports required to be filed
with the Securities and Exchange Commission. None of the reports (including without limitation all
reports that the Company is required to file with the Securities and Exchange Commission),
financial statements, certificates or other information furnished by or on behalf of the Company to
the Administrative Agent or any Lender in connection with the negotiation or syndication of this
Agreement or any other Loan Document or delivered hereunder or thereunder (as modified or
supplemented by any other information so furnished) contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein,
taken as a whole, in light of the circumstances under which they were made, not misleading;
provided, that with respect to projected financial information, the Borrowers represent
only that such information was prepared in good faith based upon assumptions believed to be
reasonable at the time.


 


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Section 4.15. Labor Relations. There are no strikes, lockouts or other material labor
disputes or grievances against any Borrower or any Subsidiary, or, to the Borrowers’ knowledge,
threatened against any Borrower or any of its Subsidiaries, and no significant unfair labor
practice, charges or grievances are pending against any Borrower or any of its Subsidiaries, or to
the Borrowers’ knowledge, threatened against any of them before any Governmental Authority. All
payments due from the Borrowers or any Subsidiary pursuant to the provisions of any collective
bargaining agreement have been paid or accrued as a liability on the books of such Borrower or any
such Subsidiary, except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect.



Section 4.16. Subsidiaries and Joint Ventures. Schedule 4.16 sets forth, for
each Person set forth thereon, a complete and accurate statement of (i) the percentage ownership of
each such Person by the applicable Borrower, (ii) the state or other jurisdiction of incorporation
or formation, as appropriate, of each such Person, and the type of legal entity for each such
Person, (iii) each state in which each such Person is qualified to do business on the Restatement
Date and (iv) all of each such Person’s trade names, trade styles or doing business forms which
such Person has used or under which such Person has transacted business during the five (5) year
period immediately preceding the Restatement Date. No Borrower and no Subsidiary is a partner or
joint venturer in any partnership or joint venture other than as expressly set described on
Schedule 4.16.



Section 4.17. Insolvency. After giving effect to the execution and delivery of the
Loan Documents and the making of the Loans under this Agreement, the Company and its Subsidiaries,
taken as a whole, will not be “insolvent” within the meaning of such term as defined in § 101 of
Title 11 of the United States Code, as amended from time to time, or be unable to pay their debts
generally as such debts become due, or have an unreasonably small capital to engage in any business
or transaction, whether current or contemplated.



Section 4.18. OFAC. None of the Borrowers, or any Affiliate of the Borrowers (i) is a
Sanctioned Person, (ii) has more than 15% of its assets in Sanctioned Countries, or (iii) derives
more than 15% of its operating income from investments in, or transactions with Sanctioned Persons
or Sanctioned Countries. No part of the proceeds of any Loans hereunder will be used directly or
indirectly to fund any operations in, finance any investments or activities in or make any payments
to, a Sanctioned Person or a Sanctioned Country or for any payments to any governmental official or
employee, political party, official of a political party, candidate for political office, or anyone
else acting in an official capacity, in order to obtain, retain or direct business or obtain any
improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as
amended.



Section 4.19. Patriot Act. No Borrower nor any Subsidiary is an “enemy” or an “ally
of the enemy” within the meaning of Section 2 of the Trading with the Enemy Act of the United
States of America (50 U.S.C. App. §§ 1 et seq.), as amended or any enabling legislation or
executive order relating thereto. No Borrower nor any Subsidiary is in violation of (a) the
Trading with the Enemy Act, as amended, (b) any of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto or (c) the Patriot Act. No Borrower nor any
Subsidiary (i) is a blocked person described in section 1 of Executive Order 13224, signed by
President George W. Bush on September 24, 2001 (a “Blocked Person”) or (ii) to the best of
its knowledge, engages in any dealings or transactions, or is otherwise associated, with any such
blocked person.


 


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Section 4.20. Real Property. All real property leased by each Borrower and each
Subsidiary as of the Restatement Date, and the name of the lessor of such real property, is set
forth in Schedule 4.20. The leases of each Borrower and each Subsidiary are valid,
enforceable and in full force and effect, and have not been modified or amended, except as
otherwise set forth in Schedule 4.20. The Borrowers and their Subsidiaries are the sole
holders of the lessee’s interests under such leases, and have the right to pledge, mortgage, assign
and sublet the same except as set forth in Schedule 4.20. No Borrower or any Subsidiary
has made any pledge, mortgage, assignment or sublease of any of it rights under such leases except
pursuant to the Loan Documents and as set forth in Schedule 4.20 and, there is no default
or condition which, with the passage of time or the giving of notice, or both, would constitute a
material default on the part of any of the Borrowers or their Subsidiaries or, to the knowledge of
the Borrowers, any other party under such leases and the Borrowers and their Subsidiaries have paid
all rents and other charges due and payable under such leases. A description of all Real Estate as
of the Restatement Date is set forth in Schedule 4.20. As of the Restatement Date, no
Borrower and no Subsidiary owns, leases or uses any real property other than as set forth on
Schedule 4.20. Each Borrower and each Subsidiary owns good and marketable fee simple title
to all of its Real Estate, and none of its respective Real Estate is subject to any Liens, except
Permitted Liens. No Borrower and no Subsidiary owns or holds, or is obligated under or a party to,
any option, right of first refusal or any other contractual right to purchase, acquire, sell,
assign or dispose of any Real Estate or any real property leased by it.



Section 4.21. Security Interests. The security interests created by the Security
Agreement and the other Security Documents in favor of the Administrative Agent for the benefit of
the Lenders are legal, valid and enforceable security interests in all right, title and interest of
the Borrowers in the Collateral, and the Administrative Agent, for the benefit of the Lenders, has
a fully perfected first lien on, and security interest in, all right, title and interest in all of
the collateral described therein (subject to Permitted Liens).



Section 4.22. Name of Borrowers. Except as set forth on Schedule 4.22, no
Borrower and no Subsidiary has changed its name within the preceding five (5) years from the
Restatement Date, nor has any Borrower or any Subsidiary transacted business under any other name
or trade name.



Section 4.23. Representations and Warranties Relating to Eligible Accounts. As to
each Account that is identified by a Borrower as an Eligible Account in the most recent Borrowing
Base Certificate submitted to the Administrative Agent by the Administrative Borrower, to such
Borrower’s knowledge, upon reasonable inquiry, such Account is not ineligible as of the date of
such Borrowing Base Certificate by virtue of one or more of the excluding criteria set forth in the
definition of Eligible Accounts.


 


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Section 4.24. Representations and Warranties Relating to Eligible Inventory. With
respect to all Eligible Inventory, the Administrative Agent may rely upon all statements,
warranties, or representations made in any Borrowing Base Certificate in determining the
classification of such Inventory and in determining which items of Inventory listed in such
Borrowing Base Certificate meet the requirements of eligibility



Section 4.25. No Fraudulent Conveyance. No Borrower has entered into this Agreement
or any other Loan Document with the actual intent to hinder, delay, or defraud any creditor. The
Borrowers have received reasonably equivalent value in exchange for their respective obligations
under the Loan Documents. Giving effect to this Agreement and the Loans and other obligations
hereunder, the fair saleable value of the Borrowers’ assets exceeds and will, immediately following
the execution and delivery of this Agreement and the other Loan Documents, exceed the Borrowers’
total liabilities, including, without limitation, subordinated, unliquidated, disputed or
contingent liabilities. The fair saleable value of the Borrowers’ assets is and will, immediately
following the execution and delivery of this Agreement and the other Loan Documents, be greater
than the Borrowers’ probable liabilities, including the maximum amount of their contingent
liabilities or its debts as such debts become absolute and matured. The Borrowers’ assets do not
and, immediately following the execution and delivery of this Agreement and the other Loan
Documents will not, constitute unreasonably small capital to carry out their business as conducted
or as proposed to be conducted. The Borrowers do not intend to, and do not believe that they will,
incur debts and liabilities (including, without limitation, contingent liabilities and other
commitments) beyond their ability to pay such debts as they mature (taking into account the timing
and amounts to be payable on or in respect of obligations of the Borrowers).



ARTICLE V




AFFIRMATIVE COVENANTS




Each Borrower covenants and agrees that so long as any Lender has a Revolving Commitment
hereunder or any Obligation remains unpaid or outstanding:



Section 5.1. Financial Statements and Other Information. The Administrative Borrower
will deliver to the Administrative Agent and each Lender:



(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of
the Company, a copy of the annual audited report for such Fiscal Year for the Company and its
Subsidiaries, containing a consolidated balance sheet of the Company and its Subsidiaries as of the
end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and
cash flows (together with all footnotes thereto) of the Company and its Subsidiaries for such
Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal
Year, all in reasonable detail and reported on by Deloitte & Touche LLP or other independent public
accountants of nationally recognized standing (without a “going concern” or like qualification,
exception or explanation and without any qualification or exception as to scope of such audit) to
the effect that such financial statements present fairly in all material respects the financial
condition and the results of operations of the Company and its Subsidiaries for such Fiscal Year on
a consolidated basis in accordance with GAAP and that the
examination by such accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards;


 


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(b) as soon as available and in any event within 60 days after the end of each of the first
three Fiscal Quarters of the Company, an unaudited consolidated balance sheet of the Company and
its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated
statements of income and cash flows of the Company and its Subsidiaries for such Fiscal Quarter and
the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form (i)
the figures for the corresponding quarter and the corresponding portion of the Company’s previous
Fiscal Year (ii) deviations from budgeted projections previously delivered to the Administrative
Agent for the corresponding quarter and the corresponding portion of such Fiscal Year;



(c) as soon as available and in any event within 30 days after the end of each month, an
unaudited consolidated balance sheet of the Company and its Subsidiaries as of the end of such
month and the related unaudited consolidated statements of income of the Company and its
Subsidiaries for such month and the then elapsed portion of such Fiscal Year, setting forth in each
case in comparative form the figures for the corresponding month and the corresponding portion of
the Company’s previous Fiscal Year;



(d) concurrently with the delivery of the financial statements referred to in clauses (a), (b)
and (c) above, a Compliance Certificate signed by the chief financial officer or treasurer of the
Company, (i) certifying as to whether there exists a Default or Event of Default on the date of
such certificate, and if a Default or an Event of Default then exists, specifying the details
thereof and the action which the Borrowers have taken or propose to take with respect thereto, (ii)
setting forth in reasonable detail calculations demonstrating compliance with the financial
covenant set forth in Article VI (whether or not such covenant is required to be tested at
such time), and (iii) stating whether any change in GAAP or the application thereof has occurred
since the date of the Company’s audited financial statements referred to in Section 4.5
and, if any change has occurred, specifying the effect of such change on the financial statements
accompanying such certificate; provided, however, that no action shall be required
by the Borrowers under this clause (iii) to the extent any such change in GAAP or the application
thereof does not affect or apply to the Borrowers or their Subsidiaries, including the presentation
by the Borrowers of their financial statements;



(e) concurrently with the delivery of the financial statements referred to in clause (a)
above, a list of all sales or other dispositions of assets made pursuant to Section 7.6(c)
and Section 7.6(d) of this Agreement by the Company and its Subsidiaries during the Fiscal
Year most recently ended, including a description of the type of replacement assets and amount and
type of other proceeds, if any, received from such sales or other dispositions;



(f) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all functions of said Commission, or with any
national securities exchange, or distributed by the Company to its shareholders generally, as the
case may be;


 


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(g) no later than sixty (60) days after the end of each Fiscal Year, an annual budget for the
current Fiscal Year approved by the board of directors of the Company including, without
limitation, a four-quarter projected income statement, balance sheet, statement of cash flows and
availability forecast on a quarter-by-quarter basis; and



(h) promptly following any request therefor, such other information regarding the results of
operations, business affairs and financial condition of the Company or any Subsidiary as the
Administrative Agent or any Lender may reasonably request.



In the event that any financial statement delivered pursuant to Section 5.1(a) or (b),
any Borrowing Base Certificate or any Compliance Certificate is shown to be inaccurate (regardless
of whether this Agreement or any Revolving Commitment is in effect when such inaccuracy is
discovered), and such inaccuracy, if corrected, would have led to the application of a higher
Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin
applied for such Applicable Period, then (i) the Administrative Borrower shall immediately deliver
to the Administrative Agent a corrected Compliance Certificate or Borrowing Base Certificate for
such Applicable Period, (ii) the Applicable Margin for such Applicable Period shall be determined
in accordance with the corrected Compliance Certificate or Borrowing Base Certificate, and (iii)
the Borrowers shall immediately pay to the Administrative Agent the accrued additional interest
owing as a result of such increased Applicable Margin for such Applicable Period, which payment
shall be promptly applied by the Administrative Agent to the Obligations in accordance with
Section 2.11. This Section 5.1 shall not limit the rights of the Administrative
Agent or the Lenders with respect to Section 2.12(c) and Article VIII hereof.



Any financial statements delivered pursuant to this Section 5.1 shall include segment
reporting in accordance with Statement of Financial Accounting Standards 131.



Section 5.2. Notices of Material Events. The Administrative Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following:




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



(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or, to the knowledge of the Borrowers, affecting the Borrowers or
any Subsidiary which, if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;



(c) the occurrence of any event or any other development by which any Borrower or any
Subsidiary (i) fails to comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) becomes subject to any
Environmental Liability, (iii) receives notice of any claim with respect to any Environmental
Liability, or (iv) becomes aware of any basis for any Environmental Liability and in each of the
preceding clauses, which individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect;



(d) except to the extent that the actions, facts or circumstances described in Schedule
4.11 constitute or may result in an ERISA Event, the occurrence of any ERISA Event
that alone, or together with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Company and its Subsidiaries in an aggregate amount
exceeding $2,000,000;


 


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(e) the occurrence of any default or event of default, or the receipt by any Borrower or any
Subsidiary of any written notice of an alleged default or event of default, with respect to any
Material Indebtedness of a Borrower or any Subsidiary;



(f) upon (and in any event within five (5) Business Days of) any Borrower’s obtaining
knowledge of the institution of, or a written threat of, any action, suit, governmental
investigation or arbitration proceeding against any Borrower or any Subsidiary, which action, suit,
governmental investigation or arbitration proceeding, if adversely determined, could expose, in
such Borrower’s reasonable judgment, any Borrower or any Subsidiary to liability in an aggregate
amount in excess of $500,000; and



(g) any other development in the business or affairs of a Borrower or a Subsidiary that
results in, or could reasonably be expected to result in, a Material Adverse Effect.



Each notice delivered under this Section 5.2 shall be accompanied by a written statement of
a Responsible Officer setting forth the details of the event or development requiring such notice
and any action taken or proposed to be taken with respect thereto.



Section 5.3. Existence; Conduct of Business. Each Borrower will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to, except as permitted by
Section 7.3(a), preserve, renew and maintain in full force and effect its legal existence
and its respective rights, licenses, permits, privileges, franchises, patents, copyrights,
trademarks and trade names material to the conduct of its business and will continue to engage in
the same business as presently conducted or such other businesses that are reasonably related
thereto; provided, that nothing in this Section 5.3 shall prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 7.3.



Section 5.4. Compliance with Laws, Etc. Each Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and requirements of any Governmental
Authority applicable to its business and properties, including without limitation, all
Environmental Laws, ERISA and OSHA, except where the failure to do so, either individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect.



Section 5.5. Payment of Obligations. Each Borrower will, and will cause each of its
Subsidiaries to, pay and discharge all of its obligations and liabilities (including without
limitation all taxes, assessments and other government charges, levies and all other claims that
could result in a statutory Lien) before the same shall become delinquent or in default, except
where (a) (i) the validity or amount thereof is being contested in good faith by appropriate
proceedings and (ii) the applicable Borrower or such Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP or (b) the failure to pay or discharge any
such obligations or liabilities could not reasonably be expected to result in a Material Adverse
Effect.



Section 5.6. Books and Records. Each Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which full, true and correct entries
shall be made of all financial transactions in relation to its business and activities to the
extent necessary to prepare the consolidated financial statements of Borrowers in conformity with
GAAP.


 


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Section 5.7. Visitation, Inspection, Etc. Each Borrower will, and will cause each of
its Subsidiaries to, permit any representative of the Administrative Agent or any Lender, so long
as the same does not unreasonably interfere with the business of the Borrowers or any Subsidiary,
to (a) visit and inspect its properties, (b) examine its books and records and to make copies and
take extracts therefrom, (c) to discuss its affairs, finances and accounts with any of its officers
and with its independent certified public accountants, and (d) conduct appraisals, field
examinations and audits of Accounts, Inventory, other Property of the Borrowers and their
Subsidiaries, all at such reasonable times and as often as the Administrative Agent or any Lender
may reasonably request after reasonable prior notice to the Administrative Borrower;
provided, the Borrowers shall only be obligated to reimburse the Administrative Agent for
two Real Estate appraisals and two field audits in any twelve (12) month period; provided,
further, that (i) if a 20% Triggering Event occurs, then the Borrowers shall be obligated
to pay the Administrative Agent for three (3) field audits in any twelve month period and (ii) if
an Event of Default has occurred and is continuing, then the Borrowers shall pay for as many field
audits and real estate appraisals that the Administrative Agent requests in its Permitted
Discretion; provided, further, if an Event of Default has occurred and is
continuing, no prior notice shall be required; and provided, further, that each
person obtaining any such information shall hold all such information in accordance with, and
subject to, the confidentiality provisions of Section 10.11.



Section 5.8. Maintenance of Properties; Insurance. Each Borrower will, and will cause
each of its Subsidiaries to, keep and maintain all property material to the conduct of its business
in good working order and condition, ordinary wear and tear excepted. Each Borrower will, and will
cause each of its Subsidiaries to, maintain insurance including, but not limited to, liability,
property insurance, commercial general liability, product liability, business interruption,
directors’ and officers’ liability, workers’ compensation/employer’s liability and fidelity
coverage insurance, in such amounts and against such risks as would be customary for companies in
the same industry and of comparable size as the Borrowers and their Subsidiaries from financially
sound and reputable insurance companies having and maintaining an A.M. Best rating of “A+” or
better and being in a size category of VI or larger or otherwise acceptable to the Administrative
Agent. In addition to the foregoing, each Borrower further agrees to maintain and pay for
insurance upon all goods constituting Collateral wherever located, in storage or in transit in
vehicles, vessels or aircraft, including goods evidenced by documents, covering casualty, hazard,
commercial general liability and such other risks and in such amounts as would be customary for
companies in the same industry and of comparable size as the Borrower, from financially sound and
reputable insurance companies having and maintaining an A.M. Best rating of “A+” or better and
being in a size category of VI or larger or otherwise acceptable to the Administrative Agent to
insure the interest of the Administrative Agent, the Issuing Bank and the Lenders in such
Collateral. All such property insurance policies shall name the Administrative Agent as loss payee
and all liability insurance policies shall name the Administrative Agent as additional insured.
Each Borrower shall deliver the original certificates of insurance evidencing that the required
insurance is in force together with satisfactory lender’s loss payable and additional insured, as
applicable, endorsements. Each policy of insurance or endorsement shall contain a clause requiring
the insurer to give not less than thirty (30) days’ prior written notice to the Administrative
Agent in the event of cancellation or modification of the policy for any reason whatsoever and a
clause that the interest of the
Administrative Agent shall not be impaired or invalidated by any act or neglect of any
Borrower or owner of the Collateral nor by the occupation of the premises for purposes more
hazardous than are permitted by said policy. If any Borrower fails to provide and pay for such
insurance, the Administrative Agent may, at the Borrowers’ expense, procure the same, but shall not
be required to do so. Each Borrower agrees to deliver to the Administrative Agent, promptly as
rendered, true copies of all material reports made in any reporting forms to insurance companies,
and such other reports made to insurance companies as the Administrative Agent may request from
time to time.


 


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Section 5.9. Use of Proceeds and Letters of Credit. The Borrowers will use the
proceeds of all Loans to finance working capital needs, Capital Expenditures, acquisitions
permitted pursuant to Section 7.4 and for other general corporate purposes of the Borrowers
and their Subsidiaries. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that would violate any rule or regulation of the Board of Governors of
the Federal Reserve System, including Regulations T, U or X. All Letters of Credit will be used
for general corporate purposes.



Section 5.10. Further Assurances. Each Borrower will, and will cause each Subsidiary
to, execute any and all further documents, agreements and instruments, and take all such further
actions which may be required under any applicable law, or which the Administrative Agent or any
Lender may reasonably request, to effectuate the transactions contemplated by the Loan Documents.
Without in any way limiting the foregoing, upon receipt of an affidavit of an officer of the
Administrative Agent or any Lender as to the loss, theft, destruction or mutilation of the Notes,
any Mortgage relating to Real Estate or any of the other Loan Documents which is not of public
record, and, in the case of any such mutilation, upon surrender and cancellation of such Notes,
Mortgages relating to Real Estate or such other Loan Document, the Borrowers will issue, in lieu
thereof, a replacement thereof, dated the date of the original Notes, any Mortgage relating to Real
Estate or such other Loan Document, as applicable, in the same principal amount thereof and
otherwise of like tenor.



Section 5.11. Lien Perfection. Each Borrower agrees to take such action as may be
requested by the Administrative Agent to perfect or continue the perfection of the Administrative
Agent’s (on behalf of, and for the benefit of, the Lenders) security interest in the Collateral in
accordance with the Security Agreement. Each Borrower hereby authorizes the Administrative Agent
to file any such financing statement on such Borrower’s behalf describing the Collateral as “all
assets of the debtor” or “all personal property of the debtor.”



Section 5.12. Location of Collateral. All Collateral, other than In-Transit Inventory
and Inventory sold in the ordinary course of business, will at all times be kept by the Borrowers
at one or more of the business locations of the Borrowers set forth in Schedule 5.12. The
Inventory shall not, without the prior written approval of the Administrative Agent, be moved from
the locations set forth on Schedule 5.12 except as permitted in the immediately preceding
sentence and prior to an Event of Default, (a) sales or other dispositions of assets permitted
pursuant to Section 7.6 and (b) the storage of Inventory at locations within the
continental US other than those specified in the first sentence of this Section 5.12 if (i)
the Administrative Borrower gives the Administrative Agent written notice of the new storage
location at least thirty (30) days prior to storing Inventory at such location, (ii) the Lenders’
security interest in such Inventory is and continues to be a duly perfected, first priority Lien
thereon, (iii) neither any Borrower’s nor the
Administrative Agent’s right of entry upon the premises where such Inventory is stored or its
right to remove the Inventory therefrom, is in any way restricted, (iv) either (A) the owner of
such premises, and any bailee, warehouseman or similar party that will be in possession of such
Inventory, shall have executed and delivered to the Administrative Agent a Collateral Access
Agreement or (B) the Administrative Agent shall have established a Rent Reserve, in each case, to
the extent such Person has a statutory priming Lien with respect to the Inventory at such location,
and (v) all negotiable documents and receipts in respect of any Collateral maintained at such
premises are promptly delivered to the Administrative Agent and any non-negotiable documents and
receipts in respect of any Collateral maintained at such premises are issued to the Administrative
Agent and promptly delivered to the Administrative Agent.


 


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Section 5.13. Protection of Collateral. All insurance expenses and expenses of
protecting, storing, warehousing, insuring, handling, maintaining and shipping the Collateral
(including, without limitation, all rent payable by any Borrower to any landlord of any premises
where any of the Collateral may be located), and any and all excise, property, sales, and use taxes
imposed by any state, federal, or local authority on any of the Collateral or in respect of the
sale thereof, shall be borne and paid by the Borrowers. If the Borrowers fail to promptly pay any
portion thereof when due, the Lenders may, at their option, but shall not be required to, make a
Base Rate Loan for such purpose and pay the same directly to the appropriate Person. The Borrowers
agree to reimburse the Lenders promptly therefor with interest accruing thereon daily at the
Default Rate provided in this Agreement. All sums so paid or incurred by the Lenders for any of
the foregoing and all reasonable costs and expenses (including attorneys’ fees, legal expenses, and
court costs) which the Lenders may incur in enforcing or protecting the Lien on or rights and
interest in the Collateral or any of their rights or remedies under this or any other agreement
between the parties hereto or in respect of any of the transactions to be had hereunder until paid
by the Borrowers to the Lenders with interest at the Default Rate, shall be considered Obligations
owing by the Borrowers to the Lenders hereunder. Such Obligations shall be secured by all
Collateral and by any and all other collateral, security, assets, reserves, or funds of the
Borrowers in or coming into the hands or inuring to the benefit of the Lenders. Neither the
Administrative Agent nor the Lenders shall be liable or responsible in any way for the safekeeping
of any of the Collateral or for any loss or damage thereto (except for reasonable care in the
custody thereof while any Collateral is in the Lenders’ actual possession) or for any diminution in
the value thereof, or for any act or default of any warehouseman, carrier, forwarding agency, or
other person whomsoever, but the same shall be at the Borrowers’ sole risk.



Section 5.14. Assignments and Records of Accounts. If so requested by the
Administrative Agent following an Event of Default, each Borrower shall execute and deliver to the
Administrative Agent, for the benefit of the Lenders, formal written assignments of all of the
Accounts daily, which shall include all Accounts that have been created since the date of the last
assignment, together with copies of invoices or invoice registers related thereto. Each Borrower
shall keep accurate and complete records of the Accounts and all payments and collections thereon.


 


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Section 5.15. Administration of Accounts.



(a) The Administrative Agent retains the right after the occurrence and during the continuance
of an Event of Default to notify the Account Debtors that the Accounts have been assigned to the
Administrative Agent, for the benefit of the Lenders, and to collect the
Accounts directly in its own name and to charge the collection costs and expenses, including
attorneys’ fees, to the Borrowers. The Administrative Agent has no duty to protect, insure,
collect or realize upon the Accounts or preserve rights in them. Each Borrower irrevocably makes,
constitutes and appoints the Administrative Agent as such Borrower’s true and lawful attorney and
agent-in-fact to endorse such Borrower’s name on any checks, notes, drafts or other payments
relating to, the Accounts which come into the Administrative Agent’s possession or under the
Administrative Agent’s control as a result of its taking any of the foregoing actions.
Additionally, the Administrative Agent, for the benefit of the Lenders, shall have the right to
collect and settle or adjust all disputes and claims directly with the Account Debtor and to
compromise the amount or extend the time for payment of the Accounts upon such terms and conditions
as the Administrative Agent may deem advisable, and to charge the deficiencies, reasonable costs
and expenses thereof, including attorney’s fees, to the Borrowers.



(b) If an Account includes a charge for any tax payable to any governmental taxing authority,
the Administrative Agent on behalf of the Lenders is authorized, in its sole discretion, to pay the
amount thereof to the proper taxing authority for the account of the applicable Borrower and to
make a Base Rate Advance to the Borrowers to pay therefor. The Borrowers shall notify the
Administrative Agent if any Account includes any tax due to any governmental taxing authority and,
in the absence of such notice, the Administrative Agent shall have the right to retain the full
proceeds of the Account and shall not be liable for any taxes to any governmental taxing authority
that may be due by any Borrower by reason of the sale and delivery creating the Account.



(c) Whether or not a Default has occurred, any of the Administrative Agent’s officers,
employees or agents shall have the right, at any time or times hereafter, in the name of the
Lenders, or any designee of the Lenders or the Borrowers, to verify the validity, amount or other
matter relating to any Accounts by mail, telephone, electronic mail, facsimilie or otherwise. The
Borrowers shall cooperate fully with the Administrative Agent and the Lenders in an effort to
facilitate and promptly conclude any such verification process.



Section 5.16. The Blocked Accounts.



(a) Each Collateral Related Account owned or maintained by the Borrowers shall be maintained
at a bank or financial institution which is reasonably acceptable to the Administrative Agent (each
such bank, a “Cash Management Bank”). As of the Restatement Date, each deposit account and
securities account of the Borrowers are listed on Schedule 5.16 and such schedule
designates which accounts are Collateral Related Accounts. Each Collateral Related Account
maintained by any Borrower shall be subject to a control agreement and lockbox agreements as the
Administrative Agent may reasonably require (a “Blocked Account Agreement”), each in form
and substance reasonably satisfactory to the Administrative Agent and such bank or financial
institution (each such account, a “Blocked Account”). Each such Blocked Account Agreement
shall provide, among other things, that from and after the Restatement Date, the relevant Cash
Management Bank, agrees, from and after the receipt of a notice (an “Activation Notice”)
from the Administrative Agent (which Activation Notice shall (unless otherwise directed by the
Required Lenders) be given by the Administrative Agent at any time at which (i) an Event of Default
has occurred and is continuing or (ii) after October 15, 2009, a 20% Triggering Event has occurred
for three (3) consecutive Business Days
(the foregoing being referred to herein as an “Activation Event”)), to forward
immediately all amounts in each Collateral Related Account, as the case may be to the
Administrative Agent per its instructions and to commence the process of daily sweeps from such
account to the Administrative Agent; provided, however, that after an Activation
Event has occurred, if Excess Availability on each day during any period of forty-five (45)
consecutive calendar days is greater than the lesser of (A) $30,000,000 or (B) twenty percent (20%)
of the Aggregate Revolving Commitments, the Administrative Agent shall terminate the Activation
Notice previously given; provided, further, that in the event that an Activation
Event occurs more than twice in any twelve-month period, the Administrative Agent shall not
thereafter be permitted to terminate any Activation Notices previously given and such Activation
Event shall at all times thereafter continue to exist.


 


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(b) In the event that any Borrower shall at any time receive any remittances of any of the
foregoing directly or shall receive any other funds representing proceeds of the Collateral, such
Borrower shall hold the same as trustee for the Administrative Agent, shall segregate such
remittances from its other assets, and shall promptly deposit the same into a Blocked Account.



Section 5.17. Formation of Subsidiaries. At the time of the formation of any direct
or indirect Domestic Subsidiary of any Borrower after the Restatement Date or the acquisition of
any direct or indirect Domestic Subsidiary of any Borrower after the Restatement Date, the
Borrowers, as appropriate, shall (a) cause such Subsidiary to provide to the Administrative Agent,
for the benefit of the Lenders, a joinder and supplement to this Agreement substantially in the
form of Exhibit E (each, a “Joinder to Credit Agreement”), pursuant to which such Subsidiary shall
agree to join as a Borrower under this Agreement, a supplement to the Security Agreement, and such
other security documents, together with appropriate Uniform Commercial Code financing statements,
all in form and substance reasonably satisfactory to the Administrative Agent and (b)  provide to
the Administrative Agent, for the benefit of the Lenders, all other documentation, including one or
more opinions of counsel satisfactory to the Administrative Agent, which in its reasonable opinion
is appropriate with respect to such formation or acquisition and the execution and delivery of the
applicable documentation referred to above. Nothing in this Section 5.17 shall authorize
any Borrower or any Subsidiary of a Borrower to form or acquire any Subsidiary absent express
authorization to so form or acquire such Subsidiary pursuant to Article 7. Any document, agreement
or instrument executed or issued pursuant to this Section 5.17 shall be a “Loan Document”
for purposes of this Agreement.



Section 5.18. Borrowing Base Certificates.



(a) Commencing on and after October 15, 2009, within three (3) Business Days after the end of
each fiscal week following the date on which a 20% Triggering Event has occurred, then prior to
2:00 p.m. the Administrative Borrower shall deliver to the Administrative Agent, (A) a Borrowing
Base Certificate as of the close of business on the last day of the immediately preceding fiscal
week, which shall be in such form as shall be satisfactory to the Administrative Agent, including
(without limitation) a roll-forward of all origination and collection activity for Accounts, (B) an
Inventory status report (C) a categorical breakdown of all Inventory and Accounts, (D) an aging of
all Accounts as of such date and (E) account statements with respect to each Collateral Related
Account, in each case in form and substance satisfactory
to the Administrative Agent, together with such other reports and supporting documentation as
the Administrative Agent may reasonably request regarding the calculation of the Borrowing Base;
provided that, thereafter, if Excess Availability on each day during any period of
forty-five (45) consecutive calendar days is greater than the lesser of (A) $30,000,000 or (B)
twenty percent (20%) of the Aggregate Revolving Commitments, Borrowing Base Certificates shall no
longer be required to be delivered on a weekly basis until the occurrence of the next
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(b) Within (i) fifteen (15) days after the end of each fiscal month, the Administrative
Borrower shall deliver to the Administrative Agent, (A) a Borrowing Base Certificate as of the last
day of the prior fiscal month, which shall be in such form as shall be satisfactory to the
Administrative Agent, including (without limitation) a roll-forward of all origination and
collection activity for Accounts, (B) an Inventory status report, (C) a categorical breakdown of
all Inventory and Accounts, (D) an aging of all Accounts as of such date and (E) account statements
with respect to each Collateral Related Account, in each case in form and substance satisfactory to
the Administrative Agent, together with such other reports and supporting documentation as the
Administrative Agent may reasonably request regarding the calculation of the Borrowing Base;
provided, however, so long as there are no outstanding Loans or Letters of Credit
as of such date of determination, the Borrowers shall only be required to deliver the Borrowing
Base Certificate without such supporting documentation.



Section 5.19. Estoppel Certificates.



(a) After request by the Administrative Agent, the Borrowers shall, within fifteen (15) days
of such request, furnish the Administrative Agent for the benefit of Lenders or any proposed
assignee or any Lender with a statement, duly acknowledged and certified, setting forth (i) the
original principal amount of the Notes, (ii) the unpaid principal amount of the Notes, (iii) the
rate of interest of the Notes, (iv) the terms of payment and maturity date of the Notes, (v) the
date installments of interest and/or principal were last paid, (vi) that, except as provided in
such statement, no Event of Default exists, (vii) that this Agreement, the Notes, the Mortgages on
any Real Estate and the other Loan Documents are valid, legal and binding obligations and have not
been modified or if modified, giving particulars of such modification, (viii) whether any offsets
or defenses exist against the obligations secured hereby and, if any are alleged to exist, a
detailed description thereof and (ix) as to any other matters reasonably requested by the
Administrative Agent and reasonably related to the obligations created and evidenced by this
Agreement, the Loan Documents, the Mortgages or the applicable Real Estate.



(b) The Borrowers shall use their commercially reasonable best efforts to deliver to the
Administrative Agent for the benefit of the Lenders, promptly upon request of the Administrative
Agent, duly executed estoppel certificates from any one or more Tenants (as defined in the
applicable Mortgage relating to Real Estate) attesting to such facts regarding any Lease as the
Administrative Agent may require, including, but not limited to, attestations that each such Lease
covered thereby is in full force and effect with no defaults thereunder on the part of any party,
that none of the Rents have been paid more than one month in advance, except as security, and that
the lessee claims no defense or offset against the full and timely performance of its obligations
under the Lease.



(c) The Borrowers shall deliver to the Administrative Agent for the benefit of the Lenders
upon request, estoppel certificates from each party under the Property Documents (as defined in the
applicable Mortgage relating to Real Estate) in form and substance reasonably acceptable to
Mortgagee.


 


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ARTICLE VI




FINANCIAL COVENANT




Each Borrower covenants and agrees that so long as any Lender has a Revolving Commitment
hereunder or any Obligation remains unpaid or outstanding:



Section 6.1. Fixed Charge Coverage Ratio. If at any time Excess Availability is less
than the Financial Covenant Threshold Amount (a “Financial Covenant Trigger Event”), the
Borrowers shall have and maintain a Fixed Charge Coverage Ratio of at least 1.10 to 1.00 as of the
last day of the immediately preceding fiscal month end for which financial statements have been
delivered and as of each subsequent fiscal month end thereafter; provided that (a) a breach
of such covenant when so tested shall not be cured by a subsequent increase of Excess Availability
above the Financial Covenant Threshold Amount and (b) such requirement to maintain a Fixed Charge
Coverage Ratio of at least 1.10 to 1.00 shall no longer apply for subsequent periods if Excess
Availability on each day during any period of forty-five (45) consecutive calendar days commencing
after the date of such Financial Covenant Trigger Event is greater than or equal to the Financial
Covenant Threshold Amount, after which time the requirement to comply with the Fixed Charge
Coverage Ratio shall not apply unless a subsequent Financial Covenant Trigger Event occurs.



ARTICLE VII




NEGATIVE COVENANTS




Each Borrower covenants and agrees that so long as any Lender has a Revolving Commitment
hereunder or any Obligation remains outstanding:



Section 7.1. Indebtedness and Preferred Equity. The Borrowers will not, and will not
permit any of their Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness,
except:




(a) Indebtedness created pursuant to the Loan Documents;



(b) Indebtedness of the Company and its Subsidiaries existing on the date hereof and set forth
on Schedule 7.1 and extensions, renewals and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof (immediately prior to giving effect to such
extension, renewal or replacement) or shorten the maturity or the weighted average life thereof;



 


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(c) Indebtedness of the Borrowers or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital Lease Obligations,
and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a
Lien on any such assets prior to the acquisition thereof; provided, that such
Indebtedness is incurred prior to or within 90 days after such acquisition or the completion
of such construction or improvements or extensions, renewals, and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof (immediately prior to
giving effect to such extension, renewal or replacement) or shorten the maturity or the weighted
average life thereof; provided, further, that the aggregate principal amount of
such Indebtedness does not exceed $10,000,000 at any time outstanding;




(d) Unsecured Indebtedness of a Borrower owing to another Borrower;



(e) Indebtedness in respect of Hedging Obligations permitted by Section 7.10 and Bank
Products;




(f) Indebtedness secured by Liens permitted pursuant to Section 7.2(d); and



(g) other unsecured Indebtedness of the Borrowers in an aggregate principal amount not to
exceed $50,000,000 at any time outstanding; provided, no such Indebtedness under this
clause (g) shall have a maturity date earlier than the date occurring six (6) calendar months after
the Revolving Commitment Termination Date.



The Borrowers will not, and will not permit any Subsidiary to, issue any preferred stock or other
preferred equity interests that (i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (ii) is or may become redeemable or repurchaseable by a Borrower or such
Subsidiary at the option of the holder thereof, in whole or in part or (iii) is convertible or
exchangeable at the option of the holder thereof for Indebtedness or preferred stock or any other
preferred equity interests described in this paragraph, on or prior to, in the case of clause (i),
(ii) or (iii), the first anniversary of the Revolving Commitment Termination Date.



Section 7.2. Liens. The Borrowers will not, and will not permit any of their
Subsidiaries to, create, incur, assume or suffer to exist any Lien on any of its assets or property
now owned or hereafter acquired or, except:




(a) Permitted Liens;



(b) purchase money Liens upon or in any fixed or capital assets to secure the purchase price
or the cost of construction or improvement of such fixed or capital assets or to secure
Indebtedness incurred solely for the purpose of financing the acquisition, construction or
improvement of such fixed or capital assets (including Liens securing any Capital Lease
Obligations); provided, that (i) such Lien secures Indebtedness permitted by Section
7.1(c), (ii) such Lien attaches to such asset concurrently or within 90 days after the
acquisition, improvement or completion of the construction thereof; (iii) such Lien does not extend
to any other asset; and (iv) the Indebtedness secured thereby does not exceed the cost of
acquiring, constructing or improving such fixed or capital assets;



(c) extensions, renewals, or replacements of any Lien referred to in paragraphs (a) and (b) of
this Section 7.2; provided, that the principal amount of the Indebtedness secured
thereby is not increased and that any such extension, renewal or replacement is limited to the
assets originally encumbered thereby; and


 


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(d) Liens on Real Estate not constituting Collateral; provided, that (i) the aggregate
principal amount of Indebtedness secured by such Liens under this clause (d) shall not exceed
$30,000,000 at any time outstanding and (ii) such Liens shall not encumber any Property of the
Borrowers other than the Real Estate (including improvements thereon) subject to such Lien.



Section 7.3. Fundamental Changes.



(a) The Borrowers will not, and will not permit any of their Subsidiaries to, merge into or
consolidate into any other Person, or permit any other Person to merge into or consolidate with it,
or sell, lease, transfer or otherwise dispose of (in a single transaction or a series of
transactions) all or substantially all of its assets (in each case, whether now owned or hereafter
acquired) or all or substantially all of the stock of any of its Subsidiaries (in each case,
whether now owned or hereafter acquired) or liquidate or dissolve; provided, that if at the
time thereof and immediately after giving effect thereto on a pro forma basis, no Default or Event
of Default shall have occurred and be continuing (i) any Borrower may merge with another Borrower;
provided, that, in the case of a merger involving the Company, the Company shall be
the survivor of any such merger, (ii) any Borrower (other than the Company) and any Non-Borrower
Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets
to a Borrower and (iv) any Borrower (other than the Company) and any Non-Borrower Subsidiary may
liquidate or dissolve in accordance with applicable law if the Administrative Borrower determines
in good faith that such liquidation or dissolution is in the best interests of the Company and its
Subsidiaries and will not adversely affect the Borrowers’ ability to perform their obligations
under this Agreement.



(b) The Borrowers will not, and will not permit any of their Subsidiaries to, engage in any
business other than businesses of the type conducted by the Borrowers and their Subsidiaries on the
date hereof and businesses reasonably related thereto.



Section 7.4. Investments, Loans, Etc.. The Borrowers will not, and will not permit
any of their Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any
Person that was not a wholly-owned Subsidiary prior to such merger), any Equity Interests, evidence
of indebtedness or other securities (including any option, warrant, or other right to acquire any
of the foregoing) of, make any loans or advances to, or make any investment or any other interest
in, any other Person, or purchase or otherwise acquire (in one transaction or a series of
transactions) any assets of any other Person that constitute a business unit or division of such
another Person, or purchase or acquire all or substantially all of the assets of another Person, or
create or form any Subsidiary (all of the foregoing being collectively called
“Investments”), provided, that: (a) the Borrowers and their Subsidiaries may make
and hold Permitted Investments, and (b) the Borrowers and their Subsidiaries may make other
Investments so long as (i) no Default has occurred and is continuing or would result from the
making of such Investment and (ii) the Administrative Borrower delivers to the Administrative Agent
a certificate, together with supporting documents in form and substance satisfactory to the
Administrative Agent, executed by a Responsible Officer certifying that as of such date of such
proposed Investment (A) no 20% Triggering Event is projected to occur at any time during the twelve
(12) month period immediately following such Investment, (B) the Borrowers are projected to have
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 Coverage Ratio of at least 1.10:1.00 at all times during the twelve
(12) month period immediately following such Investment and (C) the amount of all Investments made by the Borrowers and their Subsidiaries
pursuant to this subclause (b) shall not exceed $10,000,000 in the aggregate for the period of four
consecutive Fiscal Quarters most recently ended; provided, further, that, in
addition to the foregoing conditions of this Section, if Consolidated EBITDA for the period of four
consecutive Fiscal Quarters most recently ended (excluding from Consolidated EBITDA any amounts
attributable to an Investments consummated during such period) equals or exceeds $75,000,000, the
maximum amount of Investments permitted pursuant to this subclause (b) will be increased to
$20,000,000 in the aggregate for the period of four consecutive Fiscal Quarters most recently
ended; provided, further, that the aggregate amount of Investments made by the
Borrowers pursuant to this subclause (b) during the term of this Agreement shall not exceed
$50,000,000. Notwithstanding any other provision contained herein to the contrary, (x) the
Borrowers and their Subsidiaries may make Investments not otherwise permitted under this Section in
an aggregate amount not to exceed $2,000,000 in any Fiscal Year so long as (i) no Default has
occurred and is continuing or would result from the making of such Investment and (ii) the
Administrative Borrower delivers to the Administrative Agent a certificate, together with
supporting documents in form and substance satisfactory to the Administrative Agent, executed by a
Responsible Officer certifying that, as of such date of such proposed Investment, no 20% Triggering
Event is projected to occur at any time during the twelve (12) month period immediately following
such Investment and (y) the Borrowers shall not make any Investments after the Restatement Date in
any of the Non-Borrower Subsidiaries; provided, the Borrowers shall be permitted to make
Investments after the Restatement Date in Longview Holdings in an amount not to exceed $325,000.



Section 7.5. Restricted Payments. The Borrowers will not, and will not permit their
Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any dividend
(other than dividends payable by a Borrower solely in shares of any class of its common stock) on
any class of its Equity Interests, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, retirement, or other acquisition of,
any Equity Interests of the Borrowers or any Subsidiary or any options, warrants, or other rights
to purchase such Equity Interests, whether now or hereafter outstanding (each, a “Restricted
Payment”); provided, that: (a) the Borrowers (other than the Company) and their
Subsidiaries may in any event declare and pay cash and other dividends (i) to another Borrower, or
(ii) to the Company and (b) the Borrowers may make Restricted Payments after the Restatement Date
so long as: (i) before and after giving effect to such Restricted Payment, no Default has occurred
and is continuing or would result from the making of such Restricted Payment and (ii) the
Administrative Borrower delivers to the Administrative Agent a certificate, together with
supporting documents in form and substance satisfactory to the Administrative Agent, executed by a
Responsible Officer certifying that as of such date of such proposed Restricted Payment and after
giving effect thereto (A) no 20% Triggering Event is projected to occur at any time during the
twelve (12) month period immediately following such Restricted Payment, (B) the Borrowers are
projected to have and maintain a Fixed Charge Coverage Ratio of at least 1.10:1.00 at all times
during the twelve (12) month period immediately following such Restricted Payment and (C) the
amount of all Restricted Payments made by the Borrowers and their Subsidiaries pursuant to this
subclause (b) shall not exceed $10,000,000 in the aggregate for the period of four consecutive
Fiscal Quarters most recently ended; provided, further, that, in addition to the
foregoing conditions of this Section, if Consolidated EBITDA for the period of four consecutive
Fiscal Quarters most recently ended (excluding from Consolidated EBITDA any amounts attributable to
an Investments consummated during such period) equals or exceeds $75,000,000, the maximum amount of


 


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Restricted Payments permitted pursuant to this subclause (b) will be increased to $20,000,000 in the aggregate for the
period of four consecutive Fiscal Quarters most recently ended; provided, further,
that the aggregate amount of Restricted Payments made by the Borrowers pursuant to this subclause
(b) during the term of this Agreement shall not exceed $50,000,000. Notwithstanding any other
provision contained herein to the contrary, (x) the Borrowers and their Subsidiaries may make
Restricted Payments not otherwise permitted under this Section in an aggregate amount not to exceed
$2,000,000 in any Fiscal Year so long as (i) no Default has occurred and is continuing or would
result from the making of such Restricted Payment and (ii) the Administrative Borrower delivers to
the Administrative Agent a certificate, together with supporting documents in form and substance
satisfactory to the Administrative Agent, executed by a Responsible Officer certifying that, as of
such date of such proposed Restricted Payment, no 20% Triggering Event is projected to occur at any
time during the twelve (12) month period immediately following such Restricted Payment and (y) the
Borrowers shall not make any Restricted Payments after the Restatement Date to any of the
Non-Borrower Subsidiaries.



Section 7.6. Sale of Assets. The Borrowers will not, and will not permit any of their
Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of, any of its assets,
business or property, whether now owned or hereafter acquired, or, in the case of any Subsidiary of
the Company, issue or sell any shares of such Subsidiary’s Equity Interests to any Person other
than the Company or any wholly-owned Subsidiary of the Company (or to qualify directors if required
by applicable law), except:



(a) the sale or other disposition for fair market value of obsolete or worn out property or
other property not necessary for operations disposed of in the ordinary course of business;




(b) the sale of Inventory and Permitted Investments in the ordinary course of business;



(c) so long as no Default or Event of Default then exists or would result therefrom and the
Borrowers comply with Section 2.11(b), the sale or other disposition of assets (x) in an
amount not to exceed $5,000,000 in the case of any individual sale or disposition or series of
related sales or dispositions and (y) in an amount not to exceed $10,000,000 in the aggregate, when
taken together with all other such asset sales or dispositions (other than as described in clauses
(a) and (b) immediately above) in any Fiscal Year;



(d) so long as no Default or Event of Default then exists or would result therefrom and the
Borrowers comply with Section 2.11(b), the sale or other disposition of assets in
connection with Sale/Leaseback Transactions permitted under Section 7.9;



(e) any Borrower may grant leases or subleases to other Persons of excess office or other
space so long as such lease or sublease (x) does not materially interfere with the conduct of the
business of any Borrower and (y) is on fair and reasonable terms and conditions; and



(f) so long as (x) no Default or Event of Default then exists or would result therefrom, (y)
the consideration for such sale is paid solely in cash at the time of such sale and
(z) the Borrowers comply with Section 2.11(b), Scripps Howard Publishing, Inc. may
sell the Real Estate located at 1075 Central Avenue, Naples, Florida 34102 for fair market value as
determined by the board of directors of the Company.


 


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Notwithstanding anything to the contrary, no Borrower may convey, sell, lease, assign, transfer or
otherwise dispose of, any of its assets, business or property, to any Non-Borrower Subsidiary.



Section 7.7. Transactions with Affiliates. The Borrowers will not, and will not
permit any of their Subsidiaries to, sell, lease or otherwise transfer any property or assets to,
or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any
other transactions with, any of their Affiliates, except (a) in the ordinary course of business at
prices and on terms and conditions not less favorable to such Borrower or such Subsidiary than
could be obtained on a comparable arm’s-length basis from unrelated third parties and (b) any
Restricted Payment permitted by Section 7.5; provided, however, this Section 7.7
shall not be deemed to prohibit any of the transactions or relationships with Affiliates
contemplated by the agreements listed on Schedule 7.7 attached hereto.



Section 7.8. Restrictive Agreements. The Borrowers will not, and will not permit any
Subsidiary to, directly or indirectly, enter into, incur or permit to exist any agreement that
prohibits, restricts or imposes any condition upon (a) the ability of any Borrower or any
Subsidiary to create, incur or permit any Lien upon any of its assets or properties, whether now
owned or hereafter acquired, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to its Equity Interests, to make or repay loans or advances to the
Borrowers or any other Subsidiary, to Guarantee Indebtedness of the Borrowers or any other
Subsidiary or to transfer any of its property or assets to the Borrowers or any Subsidiary of the
Borrowers; provided, that (i) the foregoing shall not apply to prohibitions, restrictions
and conditions imposed by law or by this Agreement or any other Loan Document, (ii) the foregoing
shall not apply to customary prohibitions, restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided such prohibitions, restrictions
and conditions apply only to the Subsidiary that is sold and such sale is permitted hereunder,
(iii) clause (a) shall not apply to prohibitions, restrictions and conditions imposed by any
agreement relating to secured Indebtedness permitted by this Agreement if such prohibitions,
restrictions and conditions apply only to the property or assets securing such Indebtedness, and
(iv) clause (a) shall not apply to customary provisions in leases and other contracts restricting
the assignment thereof.



Section 7.9. Sale and Leaseback Transactions. The Borrowers will not, and will not
permit any of their Subsidiaries to, enter into any arrangement, directly or indirectly, whereby it
shall sell or transfer any Property used or useful in its business, whether now owned or
hereinafter acquired, and thereafter rent or lease such Property or other property that it intends
to use for substantially the same purpose or purposes as the property sold or transferred (each, a
“Sale/Leaseback Transaction”), unless at the time such Sale/Leaseback Transaction is
entered into no Default or Event of Default has occurred and is continuing and the Borrowers comply
with Section 2.11(b).


 


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Section 7.10. Hedging Transactions. The Borrowers will not, and will not permit any
of their Subsidiaries to, enter into any Hedging Transaction, other than Hedging Transactions
entered into in the ordinary course of business to hedge or mitigate risks to which any
Borrower or any Subsidiary is exposed in the conduct of its business or the management of its
liabilities. Solely for the avoidance of doubt, the Borrowers acknowledge that a Hedging
Transaction entered into for speculative purposes or of a speculative nature (which shall be deemed
to include any Hedging Transaction under which any Borrower or any of the Subsidiaries is or may
become obliged to make any payment (i) in connection with the purchase by any third party of any
common stock or any Indebtedness or (ii) as a result of changes in the market value of any common
stock or any Indebtedness) is not a Hedging Transaction entered into in the ordinary course of
business to hedge or mitigate risks.



Section 7.11. Guaranties. No Borrower will, or will permit any Subsidiary, at any
time to Guarantee, or enter into or assume any Guarantee, or be obligated with respect to, or
permit to be outstanding, any Guarantee, other than (a) as permitted by Section 7.1(d), (b)
Guarantees by a Borrower of obligations under agreements of any other Borrower entered into in
connection with the acquisition of services, supplies, and equipment in the ordinary course of
business of such Borrower, (c) endorsements of instruments in the ordinary course of business and
(d) Guarantees existing on the Restatement Date and disclosed on Schedule 7.11.



Section 7.12. Accounting Changes. The Borrowers will not, and will not permit any of
their Subsidiaries to, make any significant change in accounting treatment or reporting practices,
except as required by GAAP, or change the fiscal year of a Borrower or of any of its Subsidiaries,
except to change the fiscal year to conform its fiscal year to that of the Company.



Section 7.13. Government Regulation. The Borrowers will not, and will not permit any
of their Subsidiaries to (a) be or become subject at any time to any law, regulation, or list of
any Government Authority of the United States (including, without limitation, the U.S. Office of
Foreign Asset Control list) that prohibits or limits the Lenders or the Administrative Agent from
making any advance or extension of credit to the Borrowers or from otherwise conducting business
with the Borrowers, or (b) fail to provide documentary and other evidence of the identity of the
Borrowers or their Subsidiaries as may be requested by the Lenders or the Administrative Agent at
any time to enable the Lenders or the Administrative Agent to verify the identity of the Borrowers
or their Subsidiaries or to comply with any applicable law or regulation, including, without
limitation, Section 326 of the Patriot Act.



Section 7.14. ERISA Liability. No Borrower shall fail to meet all of the applicable
minimum funding requirements of ERISA and the Code, without regard to any waivers thereof, and, to
the extent that the assets of any of their Plans would be less (by $1,000,000 or more) than an
amount sufficient to maintain an Adjusted Funding Target Percentage (as defined under Code Section
436(j)(2) of at least 80%, the Borrowers shall make the contributions necessary, by the applicable
due dates for making contributions for the Plan Year of any such Plans (all as defined in Code
Section 430) (based on the Borrowers’ current actuarial assumptions) to attain an Adjusted Funding
Target Percentage of at least 80%. No Borrower shall, or shall cause or permit any ERISA Affiliate
to, (a) cause or permit to occur any event that could result in the imposition of a Lien under
Section 412 of the Code or Section 302 or 4068 of ERISA, or (b) cause or permit to occur an ERISA
Event to the extent such ERISA Event could reasonably be expected to have a Materially Adverse
Effect.


 


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Section 7.15. Waivers and Amendments. No Borrower shall, or shall permit any
Subsidiary to (a) enter into any amendment of, or agree to or accept any waiver with respect to,
its Organizational Documents which would adversely affect the rights of such Borrower or such
Subsidiary, as applicable, or the Lenders, or (b) permit any Material Contract to be cancelled or
terminated prior to its stated maturity if such cancellation or termination would reasonably be
likely to result in a Material Adverse Effect



Section 7.16. Bank Accounts. Without in any way limiting the requirements of
Section 5.16, the Borrowers will not, and will not permit any Subsidiary to, directly or
indirectly, open, maintain or otherwise have any checking, savings, deposit, securities or other
accounts at any lender or other financial institution where cash or cash equivalents are or may be
deposited or maintained with any Person, other than (x) Collateral Related Accounts subject to
Blocked Account Agreements in accordance with Section 5.16 and (y) the Excluded Accounts;
provided that the Borrowers may open and maintain petty cash accounts, trust accounts,
payroll accounts and employee benefit accounts so long as the cash and cash equivalents held or
maintained in such petty cash accounts, trust accounts, payroll accounts and employee benefit
accounts does not at any time exceed (i) $100,000 in any single such account and (ii) $1,000,000 in
the aggregate for all such accounts; provided, further, that the cash and/or cash
equivalents deposited or maintained in the Excluded Accounts shall not at any time exceed
$5,000,000 in the aggregate.



ARTICLE VIII




EVENTS OF DEFAULT




Section 8.1. Events of Default. If any of the following events (each an “Event of
Default”) shall occur:



(a) the Borrowers shall fail to pay any principal of any Loan or of any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment or otherwise; or



(b) the Borrowers shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount payable under clause (a) of this Section 8.1) payable under this
Agreement or any other Loan Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of five (5) Business Days; or



(c) any representation or warranty made or deemed made by or on behalf of the Borrowers in or
in connection with this Agreement, any other Loan Document (including the Schedules attached to any
of the foregoing) and any amendments or modifications hereof or waivers hereunder, or in any
certificate, report, financial statement or other document submitted to the Administrative Agent or
the Lenders by the Borrowers or any representative of the Borrowers pursuant to or in connection
with this Agreement or any other Loan Document shall prove to be incorrect in any material respect
when made or deemed made or submitted; or



(d) a Borrower shall fail to observe or perform any covenant or agreement contained in
Section 5.1, Section 5.2, Section 5.3, Section 5.5, Section
5.7, Section 5.8, Section 
5.9, Section 5.11, Section 5.13, Section 5.16, Section
5.17 and Section 5.18 (with respect to a Borrower’s existence) or Articles VI
or VII; or


 


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(e) a Borrower shall fail to observe or perform any covenant or agreement contained in this
Agreement (other than those referred to in clauses (a), (b) and (d) above) or any other Loan
Document, and such failure shall remain unremedied for 30 days after the earlier of (i) any
Responsible Officer of such Borrower becomes aware of such failure, or (ii) notice thereof shall
have been given to the Administrative Borrower by the Administrative Agent or any Lender; or



(f) except pursuant to a valid, binding and enforceable termination or release permitted under
the Loan Documents and executed by the Administrative Agent or as otherwise expressly permitted
under any Loan Document, in the reasonable judgment of the Administrative Agent (i) any provision
of any Loan Document shall, at any time after the delivery of such Loan Document, fail to be valid
and binding on, or enforceable against, any Borrower party thereto, (ii) any Borrower shall seek to
terminate any Loan Document, including, without limitation, any Security Document, (iii) any Loan
Document purporting to grant a Lien to secure any Obligation shall, at any time after the delivery
of such Loan Document, fail to create or maintain a valid and enforceable Lien on the Collateral
purported to be covered thereby or such Lien shall fail or cease to be a perfected Lien with the
priority required in the relevant Loan Document with respect to the Collateral or (iv) any Borrower
shall state in writing that any of the events described in clauses (i), (ii) or (iii) above shall
have occurred; or



(g) any Borrower or any Subsidiary (whether as primary obligor or as guarantor or other
surety) shall fail to pay any principal of, or premium or interest on, any Material Indebtedness
that is outstanding, when and as the same shall become due and payable (whether at scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or instrument evidencing or
governing such Indebtedness; or any other event shall occur or condition shall exist under any
agreement or instrument relating to such Indebtedness and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the effect of such event or condition
is to accelerate, or permit the acceleration of, the maturity of such Indebtedness; or any such
Indebtedness shall be declared to be due and payable, or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), purchased or defeased, or any
offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in
each case prior to the stated maturity thereof; or



(h) any Borrower or any Subsidiary shall (i) commence a voluntary case or other proceeding or
file any petition seeking liquidation, reorganization or other relief under any federal, state or
foreign bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the
appointment of a custodian, trustee, receiver, liquidator or other similar official of it or any
substantial part of its property, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in clause (i) of this
Section 8.1, (iii) apply for or consent to the appointment of a custodian, trustee,
receiver, liquidator or other similar official for any such Borrower or any such Subsidiary or for
a substantial part of its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors, or (vi) take any
action for the purpose of effecting any of the foregoing; or


 


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(i) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of any Borrower or any
Subsidiary or its debts, or any substantial part of its assets, under any federal, state or foreign
bankruptcy, insolvency or other similar law now or hereafter in effect or (ii) the appointment of a
custodian, trustee, receiver, liquidator or other similar official for any Borrower or any
Subsidiary or for a substantial part of its assets, and in any such case, such proceeding or
petition shall remain undismissed for a period of 60 days or an order or decree approving or
ordering any of the foregoing shall be entered; or



(j) any Borrower or any Subsidiary shall become unable to pay, shall admit in writing its
inability to pay, or shall fail to pay, its debts as they become due; or



(k) any Borrower or any Subsidiary shall receive or have been issued notice of the termination
for default or the actual termination for default of any Material Contract; or



(l) except to the extent that the actions, facts or circumstances described in Schedule
4.12 constitute or may result in an ERISA Event, an ERISA Event shall have occurred that, when
taken together with other ERISA Events that have occurred, could reasonably be expected to result
in liability to the Borrowers or their Subsidiaries in an aggregate amount exceeding $5,000,000; or



(m) any judgment or order for the payment of money in excess of $2,500,000 in the aggregate
shall be rendered against any Borrower or any Subsidiary, and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order or (ii) there shall be a
period of 30 consecutive days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or



(n) any non-monetary judgment or order shall be rendered against any Borrower or any
Subsidiary that could reasonably be expected to have a Material Adverse Effect, and there shall be
a period of 30 consecutive days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or




(o) a Change in Control shall occur or exist; or



(p) (i) any Borrower shall be enjoined, restrained or in any way prevented by the order of any
Governmental Authority from conducting any material part of the business of such Borrower and such
order shall continue in effect for more than thirty (30) days or (ii) any strike, lockout, labor
dispute, embargo, condemnation, act of God or public enemy or terrorism, or other casualty, which
in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial
curtailment of revenue producing activities of any Borrower if such event or circumstance is not
covered by business interruption insurance and would have a Material Adverse Effect; or



(q) the loss, suspension or revocation of, or failure to renew, any license, permit or
authorization now held or hereafter acquired by any Borrower, or any other action shall
be taken by any Governmental Authority in response to any alleged failure by any Borrower to
be in compliance with applicable law if such loss, suspension, revocation or failure to renew or
other action, individually or in the aggregate, would reasonably be expected to have a Material
Adverse Effect.


 


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Section 8.2. Remedies. If an Event of Default shall have occurred and shall be
continuing, in addition to the rights and remedies set forth elsewhere in this Agreement, the other
Loan Documents and any Bank Product Documents:



(a) With the exception of an Event of Default specified in Section 8.1(h) or
Section 8.1(i), the Administrative Agent may in its discretion (unless otherwise instructed
by the Required Lenders) or shall at the direction of the Required Lenders, (i) terminate the
Aggregate Revolving Commitments and the LC Commitment, or (ii) declare the principal of and
interest on the Loans and all other Obligations (other than any Obligations existing from time to
time of any Borrower to a Lender (or an Affiliate of a Lender) arising in connection with any Bank
Product Documents) to be forthwith due and payable without presentment, demand, protest, or notice
of any kind, all of which are hereby expressly waived, anything in this Agreement or in any other
Loan Document to the contrary notwithstanding, or both.



(b) Upon the occurrence and continuance of an Event of Default specified in Section
8.1(h) or Section 8.1(i), such principal, interest, and other Obligations (other than
any Obligations existing from time to time of any Borrower to a Lender (or an Affiliate of a
Lender) arising in connection with any Bank Product Documents) shall thereupon and concurrently
therewith become due and payable, and the Aggregate Revolving Commitments and the LC Commitment,
shall forthwith terminate, all without any action by the Administrative Agent, the Issuing Bank or
any Lender, without presentment, demand, protest, or other notice of any kind, all of which are
expressly waived, anything in this Agreement or in any other Loan Document to the contrary
notwithstanding.



(c) The Administrative Agent may in its discretion (unless otherwise instructed by the
Required Lenders) or shall at the direction of the Required Lenders exercise all of the
post-default rights granted to the Administrative Agent, the Issuing Bank and the Lenders, or any
of them, under the Loan Documents or under applicable law. The Administrative Agent, for the
benefit of the Issuing Bank and the Lenders, shall have the right to the appointment of a receiver
for the Property of the Borrowers, and the Borrowers hereby consent to such rights and such
appointment and hereby waive any objection the Borrowers may have thereto or the right to have a
bond or other security posted by the Administrative Agent, the Issuing Bank or any Lender, or any
of them, in connection therewith.



(d) In regard to all Letters of Credit with respect to which presentment for honor shall not
have occurred at the time of any acceleration of the Obligations pursuant to the provisions of this
Section 8.2 or, upon the request of the Administrative Agent, after the occurrence of an
Event of Default and prior to acceleration, the Borrowers shall promptly upon demand by the
Administrative Agent deposit in a Letter of Credit Reserve Account opened by the Administrative
Agent for the benefit of the Administrative Agent, the Issuing Bank and the Lenders an amount equal
to one hundred and five percent (105%) of the aggregate then undrawn and unexpired amount of
outstanding Letters of Credit. Amounts held in such Letter of Credit



 


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Reserve Account shall be applied by the Administrative Agent to the payment of drafts drawn
under such Letters of Credit, and the unused portion thereof after such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other Obligations in the
manner set forth in Section 2.26. Pending the application of such deposit to reimbursement
of an LC Disbursement, the Administrative Agent shall, to the extent reasonably practicable, invest
such deposit in an interest bearing open account or similar available savings deposit account and
all interest accrued thereon shall be held with such deposit as additional security for the
Obligations. After all such Letters of Credit shall have expired or been fully drawn upon, all LC
Disbursements shall have been reimbursed and otherwise satisfied, and all other Obligations shall
have been paid in full, the balance, if any, in such Letter of Credit Reserve Account shall be
returned to the Borrowers. Except as expressly provided hereinabove, presentment, demand, protest
and all other notices of any kind are hereby expressly waived by the Borrowers.



(e) The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders
hereunder shall be cumulative, and not exclusive.



ARTICLE IX




THE ADMINISTRATIVE AGENT




Section 9.1. Appointment of Administrative Agent.



(a) Each Lender irrevocably appoints SunTrust Bank as the Administrative Agent and authorizes
it to take such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent under this Agreement and the other Loan Documents, together with all such
actions and powers that are reasonably incidental thereto. The Administrative Agent may perform
any of its duties hereunder or under the other Loan Documents by or through any one or more
sub-agents or attorneys-in-fact appointed by the Administrative Agent. The Administrative Agent
and any such sub-agent or attorney-in-fact may perform any and all of its duties and exercise its
rights and powers through their respective Related Parties. The exculpatory provisions set forth
in this Article shall apply to any such sub-agent or attorney-in-fact and the Related Parties of
the Administrative Agent, any such sub-agent and any such attorney-in-fact 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.



(b) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit
issued by it and the documents associated therewith until such time and except for so long as the
Administrative Agent may agree at the request of the Required Lenders to act for the Issuing Bank
with respect thereto; provided, that the Issuing Bank shall have all the benefits and immunities
(i) provided to the Administrative Agent in this Article with respect to any acts taken or
omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or
proposed to be issued by it and the application and agreements for letters of credit pertaining to
the Letters of Credit as fully as if the term “Administrative Agent” as used in this Article
included the Issuing Bank with respect to such acts or omissions and (ii) as additionally provided
in this Agreement with respect to the Issuing Bank.


 


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Section 9.2. Nature of Duties of Administrative Agent. The Administrative Agent shall
not have any duties or obligations except those expressly set forth in this Agreement and the other
Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent
shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or
an Event of Default has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers, except those
discretionary rights and powers expressly contemplated by the Loan Documents that the
Administrative Agent is required to exercise in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 10.2), and (c) except as expressly set forth in the Loan Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to any Borrower or any Subsidiary that is communicated to or
obtained by the Administrative Agent or any of its Lender Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it, its sub-agents or
attorneys-in-fact with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 10.2) or in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents or
attorneys-in-fact selected by it with reasonable care. The Administrative Agent shall not be
deemed to have knowledge of any Default or Event of Default unless and until written notice thereof
(which notice shall include an express reference to such event being a “Default” or “Event of
Default” hereunder) is given to the Administrative Agent by the Administrative Borrower or any
Lender, and 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 any 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 and conditions set forth in any Loan Document, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in Article III
or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent. The Administrative Agent may consult with legal counsel
concerning all matters pertaining to such duties.



Section 9.3. Lack of Reliance on the Administrative Agent. Each of the Lenders, the
Swingline Lender and the Issuing Bank acknowledges that it has, independently and without reliance
upon the Administrative Agent, the Issuing Bank or any other Lender 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 of the Lenders, the Swingline Lender and the Issuing Bank also acknowledges
that it will, independently and without reliance upon the Administrative Agent, the Issuing Bank or
any other Lender and based on such documents and information as it has deemed appropriate, continue
to make its own decisions in taking or not taking of any action under or based on this Agreement,
any related agreement or any document furnished hereunder or thereunder. Each of the Lenders
acknowledges and agrees that outside legal counsel to the Administrative Agent in connection with
the preparation, negotiation, execution, delivery and administration (including any amendments,
waivers and consents) of this Agreement and the other Loan Documents is acting solely as counsel to
the Administrative Agent and is not acting as counsel to any Lender (other than the Administrative
Agent and its Affiliates) in connection with this Agreement, the other Loan Documents or any of the
transactions contemplated hereby or thereby.


 


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Section 9.4. Certain Rights of the Administrative Agent. If the Administrative Agent
shall request instructions from the Required Lenders with respect to any action or actions
(including the failure to act) in connection with this Agreement, the Administrative Agent shall be
entitled to refrain from such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur liability to any
Person by reason of so refraining. Without limiting the foregoing, no Lender shall have any right
of action whatsoever against the Administrative Agent as a result of the Administrative Agent
acting or refraining from acting hereunder in accordance with the instructions of the Required
Lenders where required by the terms of this Agreement.



Section 9.5. 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, posting or other distribution) believed by it to be genuine and to have been signed, sent
or made by the proper Person. The Administrative Agent may also rely upon any statement made to it
orally or by telephone and believed by it to be made by the proper Person and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal counsel,
independent public 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 such counsel, accountants or
experts.



Section 9.6. The Administrative Agent in its Individual Capacity. The bank serving as
the Administrative Agent shall have the same rights and powers under this Agreement and any other
Loan Document in its capacity as a Lender as any other Lender and may exercise or refrain from
exercising the same as though it were not the Administrative Agent; and the terms “Lenders”,
“Required Lenders”, “holders of Notes”, or any similar terms shall, unless the context clearly
otherwise indicates, include the Administrative Agent in its individual capacity. The bank acting
as the Administrative Agent and its Lender Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrowers or any Subsidiary or Affiliate of the
Borrowers as if it were not the Administrative Agent hereunder.



Section 9.7. Successor Administrative Agent.



(a) The Administrative Agent may resign at any time by giving notice thereof to the Lenders
and the Administrative Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor Administrative Agent, subject to the approval by the Borrowers
provided that no Default or Event of Default shall exist at such time. If no successor
Administrative Agent shall have been so appointed, and shall have accepted such appointment within
30 days after the retiring Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws of the United
States of America or any state thereof or a bank which maintains an office in the United States,
having a combined capital and surplus of at least $500,000,000.


 


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(b) Upon the acceptance of its appointment as the Administrative Agent hereunder by a
successor, such successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and obligations
under this Agreement and the other Loan Documents. If within 45 days after written notice is
given of the retiring Administrative Agent’s resignation under this Section 9.7 no
successor Administrative Agent shall have been appointed and shall have accepted such appointment,
then on such 45th day (i) the retiring Administrative Agent’s resignation shall become
effective, (ii) the retiring Administrative Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (iii) the Required Lenders shall thereafter perform all
duties of the retiring Administrative Agent under the Loan Documents until such time as the
Required Lenders appoint a successor Administrative Agent as provided above. After any retiring
Administrative Agent’s resignation hereunder, the provisions of this Article shall continue in
effect for the benefit of such retiring Administrative Agent and its representatives and agents in
respect of any actions taken or not taken by any of them while it was serving as the Administrative
Agent.



(c) In addition to the foregoing, if a Lender becomes, and during the period it remains, a
Defaulting Lender, the Issuing Bank and/or the Swingline Lender may, upon prior written notice to
the Administrative Borrower and the Administrative Agent, resign as Issuing Bank or Swingline
Lender, respectively, effective at the close of business on a date specified in such notice (which
date may not be less than five Business Days after the date of such notice); provided that
such resignation by the Issuing Bank will have no effect on the validity or enforceability of any
Letter of Credit then outstanding or on the obligations of the Borrowers or any Lender under this
Agreement with respect to any such outstanding Letter of Credit or otherwise to the Issuing Bank;
and provided, further, that such resignation by the Swingline Lender will have no effect on
its rights in respect of any outstanding Swingline Loans or on the obligations of the Borrowers or
any Lender under this Agreement with respect to any such outstanding Swingline Loan.



Section 9.8. Authorization to Execute other Loan Documents. Each Lender hereby
authorizes the Administrative Agent to execute on behalf of all Lenders all Loan Documents other
than this Agreement.



Section 9.9. Collateral. The Administrative Agent is hereby authorized to hold all
Collateral pledged pursuant to any Loan Document and to act on behalf of the Lenders, in its own
capacity and through other agents appointed by it, under the Security Documents; provided,
that the Administrative Agent shall not agree to the release of any Collateral except in accordance
with the terms of this Agreement and the Security Documents. The Lenders acknowledge that the
Loans, any Overadvances, the LC Exposure, all Obligations with respect to Bank Product Documents
and all interest, fees and expenses hereunder constitute one Indebtedness, secured by all of the
Collateral. The Administrative Agent hereby appoints each Lender, the Swingline Lender, and the
Issuing Bank as its agent (and each Lender, the Swingline Lender, and the Issuing Bank hereby
accepts such appointment) for the purpose of perfecting the Administrative Agent’s Liens in assets
which, in accordance with the UCC, can be perfected by possession. Should any Lender, the
Swingline Lender, or the Issuing Bank obtain possession of any such Collateral, subject to the
limitations set forth in the Blocked Account Agreements, promptly upon the Administrative Agent’s
request therefor shall deliver such Collateral to the Administrative Agent or in accordance with
the Administrative Agent’s instructions.


 


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Section 9.10. Release of Collateral.



(a) Each Lender, the Swingline Lender, and the Issuing Bank hereby directs, in accordance with
the terms of this Agreement, the Administrative Agent to release any Lien held by the
Administrative Agent for the benefit of the Lenders:




(i) against all of the Collateral, upon final and indefeasible payment in full in cash
of the Obligations and termination of all Revolving Commitments; or




(ii) against any part of the Collateral sold or disposed of by the Borrowers if such
sale or disposition is permitted by Section 7.6 or is otherwise consented to by the
Required Lenders for such release as set forth in Section 10.2, as certified to the
Administrative Agent by the Administrative Borrower in a certificate of a Responsible
Officer.



(b) At any time after October 15, 2009, the Administrative Borrower may request that the
Administrative Agent, on behalf of the Lenders, (i) release Liens in favor of the Administrative
Agent on certain Real Estate to be mutually agreed-upon by the Administrative Borrower and the
Administrative Agent or (ii) replace certain Eligible Real Property then subject to Liens in favor
of the Administrative Agent with other Real Estate that qualifies as Eligible Real Property (other
than with respect to clause (f) of the definition of Eligible Real Property). So long as the Fair
Market Value of all Eligible Real Property equals or exceeds $120,000,000 after giving effect to
the proposed release of Liens on such Real Estate or replacement of existing Eligible Real Property
with other Real Estate meeting all the qualifications for Eligible Real Property, the
Administrative Agent shall promptly release such Liens.



(c) Each Lender, the Swingline Lender, and the Issuing Bank hereby directs the Administrative
Agent, at the sole cost and expense of the Borrowers, to execute and deliver or file or authorize
the filing of such termination, partial release statements, mortgage releases or other instruments
evidencing release of a Lien, and do such other things as are necessary to release Liens to be
released pursuant to this Section 9.10 promptly upon the effectiveness of any such release.
Upon request by the Administrative Agent at any time, the Lenders, the Swingline Lender, and the
Issuing Bank will confirm in writing the Administrative Agent’s authority to release particular
types or items of Collateral pursuant to this Section 9.10.



Section 9.11. No Other Duties, etc.. Each Lender hereby agrees that none of the Lead
Arranger, the Documentation Agent or the Syndication Agent listed on the cover page of this
Agreement, in their capacities as such, shall have any duties or obligations under any Loan
Documents to the Borrowers or any Lender.



Section 9.12. Withholding Tax. To the extent required by any applicable law, the
Administrative Agent may withhold from any interest payment to any Lender an amount equivalent to
any applicable withholding tax. If the Internal Revenue Service or any authority of the United
States or other jurisdiction asserts a claim that the Administrative Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the appropriate form
was not delivered, was not properly executed, or because such Lender failed to notify the
Administrative Agent of a change in circumstances that rendered the exemption from, or reduction
of, withholding tax ineffective, or for any other reason), such Lender shall indemnify the
Administrative Agent (to the extent that the Administrative Agent has not already been
reimbursed by the Borrowers and without limiting the obligation of the Borrowers to do so) fully
for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise,
including penalties and interest, together with all expenses incurred, including legal expenses,
allocated staff costs and any out of pocket expenses.


 


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Section 9.13. Administrative Agent May File Proofs of Claim.



(a) In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any
Borrower, the Administrative Agent (irrespective of whether the principal of any Loan or any
Revolving Credit Exposure 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
Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise:




(i) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans or Revolving Credit Exposure 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 Issuing Bank, the Swingline Lender and the
Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the Issuing Bank, the Swingline Lender and the
Administrative Agent and its agents and counsel and all other amounts due the Lenders, the
Issuing Bank, the Swingline Lender and the Administrative Agent under Section 10.3)
allowed in such judicial proceeding; and




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



(b) Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Lender, the Swingline Lender
and the Issuing Bank 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, the Swingline Lender
and the Issuing Bank, 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 Section 10.3.



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, the Swingline Lender or the Issuing Bank any
plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the
rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of
any Lender in any such proceeding.


 


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ARTICLE X




MISCELLANEOUS




Section 10.1. Notices.



(a) Except in the case of notices and other communications expressly permitted to be given by
telephone, all notices and other communications to any party herein to be effective shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:



	 	 	 	 	 
	 

	 	To the Borrowers:
	 	The E.W. Scripps Company
	 

	 	 	 	312 Walnut Street
	 

	 	 	 	2800 Scripps Center
	 

	 	 	 	Cincinnati, Ohio 45202
	 

	 	 	 	Attention: Senior Vice President, Chief Financial
Officer and Treasurer
	 

	 	 	 	Telecopy Number: (513) 977-3024
	 
	 	 	 	 
	 

	 	With copies to:
	 	The E.W. Scripps Company
	 

	 	 	 	312 Walnut Street
	 

	 	 	 	2800 Scripps Center
	 

	 	 	 	Cincinnati, Ohio 45202
	 

	 	 	 	Attention: Senior Vice President and General Counsel
	 

	 	 	 	Telecopy Number: (513) 977-3729
	 
	 	 	 	 
	 

	 	 	 	and
	 
	 	 	 	 
	 

	 	 	 	Baker & Hostetler LLP
	 

	 	 	 	3200 National City Center
	 

	 	 	 	1900 East Ninth Street
	 

	 	 	 	Cleveland, OH 44114-3485
	 

	 	 	 	Attention: Edward S. Ginsburg
	 

	 	 	 	Telecopy Number: (216) 696-0740
	 
	 	 	 	 
	 

	 	To the Administrative Agent

or Swingline Lender:
	 	SunTrust Bank
	 

	 	 	 	303 Peachtree Street, N. E./ 23rd Floor
	 

	 	 	 	Atlanta, Georgia 30308
	 

	 	 	 	Attention: E.W. Scripps Portfolio Manager
	 

	 	 	 	T elecopy Number: (404) 813-5890






 


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	 	With a copy to:
	 	SunTrust Bank
	 

	 	 	 	Agency Services
	 

	 	 	 	303 Peachtree Street, N. E./ 25th Floor
	 

	 	 	 	Atlanta, Georgia 30308
	 

	 	 	 	Attention: Doug Weltz
	 

	 	 	 	Telecopy Number: (404) 221-2002
	 
	 	 	 	 
	 

	 	To the Issuing Bank:
	 	SunTrust Bank
	 

	 	 	 	25 Park Place, N. E./Mail Code 3706
	 

	 	 	 	Atlanta, Georgia 30303
	 

	 	 	 	Attention: John Conley
	 

	 	 	 	Telecopy Number: (404) 588-8129
	 
	 	 	 	 
	 

	 	To any other Lender:
	 	the address set forth in the Administrative
Questionnaire or the Assignment and Acceptance Agreement executed by such
Lender







Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such notices and
other communications shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day) delivery, or transmitted in legible
form by facsimile machine, respectively, or if mailed, upon the third Business Day after
the date deposited into the mail or if delivered, upon delivery; provided, that notices
delivered to the Administrative Agent, the Issuing Bank or the Swingline Lender shall
not be effective until actually received by such Person at its address specified in this
Section 10.1.



(b) Any agreement of the Administrative Agent, the Issuing Bank and the Lenders herein to
receive certain notices by telephone or facsimile or other electronic transmission is solely for
the convenience and at the request of the Borrowers. The Administrative Agent, the Issuing Bank
and the Lenders shall be entitled to rely on the authority of any Person purporting to be a Person
authorized by the Borrowers to give such notice and the Administrative Agent, the Issuing Bank and
the Lenders shall not have any liability to the Borrowers or other Person on account of any action
taken or not taken by the Administrative Agent, the Issuing Bank and the Lenders in reliance upon
such telephonic or facsimile notice. The obligation of the Borrowers to repay the Loans and all
other Obligations hereunder shall not be affected in any way or to any extent by any failure of the
Administrative Agent, the Issuing Bank and the Lenders to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Administrative Agent, the Issuing Bank and the
Lenders of a confirmation which is at variance with the terms understood by the Administrative
Agent, the Issuing Bank and the Lenders to be contained in any such telephonic or facsimile notice.


 


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Section 10.2. Waiver; Amendments.



(a) No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder or any other Loan Document, and no course of dealing
between the Borrowers and the Administrative Agent or any Lender, shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or power or any
abandonment or discontinuance of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any rights or remedies
provided by law. No waiver of any provision of this Agreement or any other Loan Document or
consent to any departure by the Borrowers therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) of this Section 10.2, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not
be construed as a waiver of any Default or Event of Default, regardless of whether the
Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default or Event of Default at the time.



(b) No amendment or waiver of any provision of this Agreement or the other Loan Documents, nor
consent to any departure by the Borrowers therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Administrative Borrower and the Required Lenders or the
Borrowers and the Administrative Agent with the consent of the Required Lenders and then such
waiver or consent shall be effective only in the specific instance and for the specific purpose for
which given; provided, that no amendment, waiver or consent shall: (i) increase the
Revolving Commitment of any Lender without the written consent of such Lender (it being understood
and agreed that a waiver of any Default or Event of Default or modification of any of the defined
terms contained herein (other than those defined terms specifically addressed in this Section
10.2(b)) shall not constitute a change in the terms of the Revolving Commitment of any Lender),
(ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest
thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the date fixed for any payment of any principal of, or interest on, any
Loan or LC Disbursement or interest thereon or any fees hereunder or reduce the amount of, waive or
excuse any such payment, or postpone the scheduled date for the termination or reduction of any
Revolving Commitment, without the written consent of each Lender affected thereby, (iv) change
Section 2.20(b) or Section 2.20(c) in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent of each Lender, (v) change any of
the provisions of this Section 10.2 or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders which are required to waive, amend
or modify any rights hereunder or make any determination or grant any consent hereunder, without
the written consent of each Lender, (vi) release any guarantor or limit the liability of any such
guarantor under any guaranty agreement, without the written consent of each Lender, (vii) permit or
allow any sale or release of, or the subordination of the Administrative Agent’s Lien in, any
material Collateral except in conjunction with sales, transfers or releases of Collateral permitted
hereunder, including Section 9.10, without the written consent of each Lender, (viii)
increase the amounts or percentages set forth in the definition of “Borrowing Base” and the defined
terms used therein without the written consent of each Lender, (ix) change the definition of
“Excess Availability” or the defined terms used therein without the written consent of each Lender,
or (x) change any of the provisions of Section 2.26 without the written consent of each
Lender; provided further, that no such agreement shall amend, modify or otherwise affect
the rights, duties or obligations of the Administrative Agent, the


 


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Swingline Bank or the Issuing
Bank without the prior written consent of such Person. In addition to the required consents set forth above, if SunTrust Bank or any
Affiliate thereof has entered into a Hedging Transaction with any Borrower and SunTrust Bank is no
longer the Administrative Agent or a Lender, the consent of SunTrust Bank or such Affiliate shall
be required for any amendment to Section 2.26 or any amendment described in clause (vi)
immediately above. Any amendment, modification, waiver, consent, termination or release of any
Bank Product Documents may be effected by the parties thereto without the consent of the
Administrative Agent or any other Lender. Notwithstanding anything contained herein to the
contrary, this Agreement may be amended and restated without the consent of any Lender (but with
the consent of the Borrowers and the Administrative Agent) if, upon giving effect to such amendment
and restatement, such Lender shall no longer be a party to this Agreement (as so amended and
restated), the Revolving Commitments of such Lender shall have terminated (but such Lender shall
continue to be entitled to the benefits of Section 2.17, Section 2.18, Section
2.19 and Section 10.3), such Lender shall have no other commitment or other obligation
hereunder and shall have been paid in full all principal, interest and other amounts owing to it or
accrued for its account under this Agreement. Notwithstanding anything herein or otherwise to the
contrary, any Event of Default occurring hereunder shall continue to exist (and shall be deemed to
be continuing) until such time as such Event of Default is waived in writing in accordance with the
terms of this Section notwithstanding (i) any attempted cure or other action taken by the Borrowers
or any other Person subsequent to the occurrence of such Event of Default or (ii) any action taken
or omitted to be taken by the Administrative Agent or any Lender prior to or subsequent to the
occurrence of such Event of Default (other than the granting of a waiver in writing in accordance
with the terms of this Section).



Section 10.3. Expenses; Indemnification.



(a) The Borrowers shall pay (i) all reasonable, out-of-pocket costs and expenses of the
Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent and its Affiliates, in connection with the syndication of
the credit facilities provided for herein, the preparation and administration of the Loan Documents
and any amendments, modifications or waivers thereof (whether or not the transactions contemplated
in this Agreement or any other Loan Document shall be consummated), including, but not limited to,
except as otherwise provided in Section 5.7, all out-of-pocket costs and expenses of the
Administrative Agent in connection with their periodic field audits, appraisals and examinations
and all out-of-pocket costs and expenses for each field audit or examination of a Borrower
performed by personnel employed by the Administrative Agent, (ii) all reasonable out-of-pocket
expenses incurred by the Issuing Bank 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
costs and expenses (including, without limitation, the reasonable fees, charges and disbursements
of outside counsel and the allocated cost of inside counsel) incurred by the Administrative Agent,
the Issuing Bank or any Lender in connection with the enforcement or protection of its rights in
connection with this Agreement, the other Loan Documents and the Bank Product Documents, including
its rights under this Section 10.3, or in connection with the Loans made or any 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.


 


100









 





(b) The Borrowers shall indemnify the Administrative Agent (and any sub-agent thereof), each
Lender, the Swingline Lender and the Issuing Bank, and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related expenses (including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify
and hold harmless each Indemnitee from all reasonable fees and time charges and disbursements for
attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against
any Indemnitee by any third party or by the Borrowers arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan Document, any Bank
Product 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, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the Issuing Bank 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) the use by any Person of any
information or materials obtained by or through SyndTrak or other internet web sites, (iv) any
actual or alleged presence or Release of Hazardous Substances on or from any property owned or
operated by the Borrowers or any Subsidiary, or any Environmental Liability related to the
Borrowers or any Subsidiary, or (v) 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 a Borrower, 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 are determined by
a court of competent jurisdiction by final and nonappealable judgment to have resulted from (x) the
gross negligence or willful misconduct of such Indemnitee or (y) in the case of the Administrative
Agent or any Lender, any unexcused breach by the Administrative Agent or such Lender of any of its
obligations under this Agreement.



(c) The Borrowers shall pay, and hold the Administrative Agent and each of the Lenders
harmless from and against, any and all present and future stamp, documentary, and other similar
taxes with respect to this Agreement and any other Loan Documents, any collateral described
therein, or any payments due thereunder, and save the Administrative Agent and each Lender harmless
from and against any and all liabilities with respect to or resulting from any delay or omission to
pay such taxes.



(d) To the extent that the Borrowers fail to pay any amount required to be paid to the
Administrative Agent, the Issuing Bank or the Swingline Lender under clauses (a), (b) or (c)
hereof, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lender’s Pro Rata Share (determined as of the time that
the unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided,
that the unreimbursed expense or indemnified payment, claim, damage, liability or related expense,
as the case may be, was incurred by or asserted against the Administrative Agent, the Issuing Bank
or the Swingline Lender in its capacity as such.


 


101









 





(e) To the extent permitted by applicable law, the Borrowers shall not assert, and hereby
waive, any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to actual or direct 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 or thereby, the transactions contemplated therein, any
Loan or any Letter of Credit or the use of proceeds thereof. No Indemnitee referred to in
paragraph (b) above shall be liable for any damages arising from the use by unintended recipients
of any information or other materials distributed by it 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, except for any damages resulting from
the Indemnitee’s gross negligence or willful misconduct.



(f) All amounts due under this Section 10.3 shall be payable promptly after written
demand therefor



(g) Notwithstanding the foregoing, with respect to any Borrower that has entered into an
Environmental Indemnity Agreement effective as of the Restatement Date, which Environmental
Indemnity Agreement has not been terminated, released or otherwise modified, such provisions in the
Environmental Indemnity Agreement shall control with respect to indemnification regarding
Subsection 10.3(b)(iv) above.



Section 10.4. Successors and Assigns.



(a) 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
Borrowers 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 paragraph (b) of this Section, (ii) by way of participation in
accordance with the provisions of paragraph (d) of this Section or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of paragraph (f) of this Section (and
any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in paragraph (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.



(b) 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 Revolving Commitment, Loans
and other Revolving Credit Exposure 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 Revolving Commitment and the Loans at the time owing to it or in
the case of an assignment to a Lender, a Lender Affiliate of a Lender or an Approved
Fund, no minimum amount need be assigned; and


 


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(B) in any case not described in paragraph (b)(i)(A) of this Section, the
aggregate amount of the Revolving Commitment (which for this purpose includes Loans
and Revolving Credit Exposure outstanding thereunder) or, if the applicable
Revolving Commitment is not then in effect, the principal outstanding balance of the
Loans and Revolving Credit Exposure of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Acceptance, as of the Trade Date) shall not be less
than $1,000,000, unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Administrative Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed); provided,
that the Borrowers shall be deemed to have consented to any such lower amount unless
the Administrative Borrower shall object thereto by written notice to the
Administrative Agent within 5 Business Days after having received notice thereof.




(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, Revolving Credit Exposure or the Revolving
Commitments assigned.




(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by paragraph (b)(i)(B) of this Section and, in addition:




(A) the consent of the Administrative Borrower (such consent not to be
unreasonably withheld or delayed) shall be required unless (x) an Event of Default
has occurred and is continuing at the time of such assignment or (y) such assignment
is to a Lender, a Lender Affiliate of a Lender or an Approved Fund; provided, that
the Borrowers shall be deemed to have consented to such assignment unless the
Administrative Borrower shall object thereto by written notice to the Administrative
Agent within 5 Business Days after having received notice thereof;




(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments to a Person that
is not a Lender with a Revolving Commitment; and




(C) the consent of the Issuing Bank (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment that increases the
obligation of the assignee to participate in exposure under one or more Letters of
Credit (whether or not then outstanding), and the consent of the Swingline Lender
(such consent not to be unreasonably withheld or delayed) shall be required for any
assignment in respect of the Revolving Commitments.


 


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(iv) Assignment and Acceptance. The parties to each assignment shall deliver
to the Administrative Agent (A) a duly executed Assignment and Acceptance, (B) a processing
and recordation fee of $3,500, (C) an Administrative Questionnaire unless the assignee is
already a Lender and (D) the documents required under Section 10.4 if such assignee
is a Foreign Lender.




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




(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 paragraph (c)
of this Section 10.4, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Acceptance, 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 Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance 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 Section 2.17, Section 2.18, Section 2.19
and Section 10.3 with respect to facts and circumstances occurring prior to the effective
date of such assignment. Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in accordance
with paragraph (d) of this Section 10.4.



(c) The Administrative Agent, acting solely for this purpose as an agent of the Borrowers,
shall maintain at one of its offices in Atlanta, Georgia a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Revolving Commitments of, and principal amount of the Loans and Revolving Credit Exposure owing
to, each Lender pursuant to the terms hereof from time to time (the “Register”).
Information contained in the Register with respect to any Lender shall be available for inspection
by any Lender at any reasonable time and from time to time upon reasonable prior notice;
information contained in the Register shall also be available for inspection by the Administrative
Borrower at any reasonable time and from time to time upon reasonable prior notice. In establishing
and maintaining the Register, the Administrative Agent shall serve as the Borrowers’ agent solely
for tax purposes and solely with respect to the actions described in this Section, and the
Borrowers hereby agree that, to the extent SunTrust Bank serves in such capacity, SunTrust Bank and
its officers, directors, employees, agents, sub-agents and affiliates shall constitute
“Indemnitees.”.



(d) Any Lender may at any time, without the consent of, or notice to, the Borrowers, the
Administrative Agent, the Swingline Lender or the Issuing Bank sell participations to any Person
(other than a natural person, any Borrower or any Affiliates or Subsidiaries of any Borrower)
(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 Revolving Commitment
and/or the Loans owing to it); provided that (i) such Lender’s obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative
Agent, the Lenders, the Issuing Bank and the Swingline Lender shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement.


 


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(e) 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, modification or waiver with respect to the following to the
extent affecting such Participant: (i) increase the Revolving Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the date fixed for any payment of any
principal of, or interest on, any Loan or LC Disbursement or interest thereon or any fees hereunder
or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date for the
termination or reduction of any Revolving Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.20(b) or Section 2.20(c) in a manner that
would alter the pro rata sharing of payments required thereby, without the written consent of each
Lender, (v) change any of the provisions of this Section 10.4 or the definition of
“Required Lenders” or any other provision hereof specifying the number or percentage of Lenders
which are required to waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the consent of each Lender; (vi) release any guarantor or
limit the liability of any such guarantor under any guaranty agreement without the written consent
of each Lender except to the extent such release is expressly provided under the terms of such
guaranty agreement; or (vii) release all or substantially all collateral (if any) securing any of
the Obligations. Subject to paragraph (e) of this Section 10.4, each Borrower agrees that
each Participant shall be entitled to the benefits of Section 2.17, Section 2.18
and Section 2.19 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section 10.4. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 10.7 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.17 as though it were a
Lender.



(f) A Participant shall not be entitled to receive any greater payment under Section
2.17 and Section 2.19 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 Borrowers’ 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 2.19
unless the Borrowers are notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrowers, to comply with Section 2.19(e) as
though it were a Lender.



(g) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
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.


 


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Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process.



(a) This Agreement and the other Loan Documents shall be construed in accordance with and be
governed by the law (without giving effect to the conflict of law principles thereof) of the State
of New York.



(b) Each Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the non-exclusive jurisdiction of the United States District Court of the Northern District of
New York and of any state court of the State of New York located in the city of New York, Borough
of Manhattan 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 the transactions contemplated hereby or
thereby, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
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 extent permitted by applicable
law, 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 any other Loan
Document shall affect any right that the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or any other Loan
Document against any Borrower or its properties in the courts of any jurisdiction.



(c) Each Borrower irrevocably and unconditionally waives any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding described in paragraph
(b) of this Section 10.5 and brought in any court referred to in paragraph (b) of this
Section 10.5. Each of the parties hereto irrevocably waives, to the fullest extent
permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.



(d) Each party to this Agreement irrevocably consents to the service of process in the manner
provided for notices in Section 10.1. Nothing in this Agreement or in any other Loan
Document will affect the right of any party hereto to serve process in any other manner permitted
by law.



Section 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO 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 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 PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY 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.


 


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Section 10.7. Right of Setoff. In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, each Lender and the Issuing
Bank shall have the right, at any time or from time to time upon the occurrence and during the
continuance of an Event of Default, without prior notice to the Borrower, any such notice being
expressly waived by the Borrowers to the extent permitted by applicable law, to set off and apply
against all deposits (general or special, time or demand, provisional or final) of the Borrowers at
any time held or other obligations at any time owing by such Lender and the Issuing Bank to or for
the credit or the account of the Borrowers against any and all Obligations held by such Lender or
the Issuing Bank, as the case may be, irrespective of whether such Lender or the Issuing Bank shall
have made demand hereunder and although such Obligations may be unmatured. Each Lender and the
Issuing Bank agree promptly to notify the Administrative Agent and the Borrowers after any such
set-off and any application made by such Lender and the Issuing Bank, as the case may be;
provided, that the failure to give such notice shall not affect the validity of such
set-off and application. Each Lender and the Issuing Bank agrees to apply all amounts collected
from any such set-off to the Obligations before applying such amounts to any other Indebtedness or
other obligations owed by the Borrowers and any Subsidiaries to such Lender or Issuing Bank.



Section 10.8. Counterparts; Integration. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to constitute one and the
same instrument. This Agreement, the Fee Letters, the other Loan Documents, and any separate
letter agreement(s) relating to any fees payable to the Administrative Agent constitute the entire
agreement among the parties hereto and thereto regarding the subject matters hereof and thereof and
supersede all prior agreements and understandings, oral or written, regarding such subject matters.
Delivery of an executed counterpart to this Agreement or any other Loan Document by facsimile
transmission or by electronic mail in pdf form shall be as effective as delivery of a manually
executed counterpart hereof.



Section 10.9. Survival. All covenants, agreements, representations and warranties
made by the Borrowers herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any fee or any other amount payable under
this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Revolving Commitments have not expired or terminated. The provisions of Section 2.17,
Section 2.18, Section 2.19 and Section 10.3 and Article IX shall
survive and remain in full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of
Credit and the Revolving Commitments or the termination of this Agreement or any provision hereof.
All representations and warranties made
herein, in the certificates, reports, notices, and other documents delivered pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the other Loan Documents,
and the making of the Loans and the issuance of the Letters of Credit.


 


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Section 10.10. Severability. Any provision of this Agreement or any other Loan
Document held to be illegal, invalid or unenforceable in any jurisdiction, shall, as to such
jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability
without affecting the legality, validity or enforceability of the remaining provisions hereof or
thereof; and the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction.



Section 10.11. Confidentiality. Each of the Administrative Agent, the Issuing Bank
and the Lenders agrees to take normal and reasonable precautions to maintain the confidentiality of
any information relating to the Borrowers or any of their respective businesses, to the extent
provided or made available to it by or on behalf of the Borrowers or any Subsidiary, other than any
such information that is available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by the Borrowers, except that such information may be
disclosed (i) on a need to know basis to any Related Party of the Administrative Agent, the Issuing
Bank or any such Lender including without limitation accountants, legal counsel and other advisors,
(ii) to the extent required by applicable laws or regulations or by any subpoena or similar legal
process, (iii) to the extent requested by any regulatory agency or authority purporting to have
jurisdiction over it (including any self-regulatory authority such as the National Association of
Insurance Commissioners), (iv) to the extent that such information becomes publicly available other
than as a result of a breach of this Section 10.11, or which becomes available to the
Administrative Agent, the Issuing Bank, any Lender or any Related Party of any of the foregoing on
a non-confidential basis from a source other than the Borrowers, (v) in connection with the
exercise of any remedy hereunder or under any other Loan Documents or any suit, action or
proceeding relating to this Agreement or any other Loan Documents or the enforcement of rights
hereunder or thereunder, (vii) subject to an agreement containing provisions substantially the same
as those of this Section 10.11, to (A) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations under this Agreement,
or (B) any actual or prospective party (or its Related Parties) to any swap or derivative or
similar transaction under which payments are to be made by reference to the Borrowers and their
obligations, this Agreement or payments hereunder, (viii) any rating agency, (ix) the CUSIP Service
Bureau or any similar organization, or (x) with the consent of the Borrowers. Any Person required
to maintain the confidentiality of any information as provided for in this Section 10.11
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
its own confidential information.



Section 10.12. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which may be treated as interest on such Loan under applicable law (collectively,
the “Charges”), shall exceed the maximum lawful rate of interest (the “Maximum
Rate”) which may be contracted for, charged, taken, received or reserved by a Lender holding
such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan
hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum
Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of
such Loan but were not payable
as a result of the operation of this Section 10.12 shall be cumulated and the interest
and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Rate to the date of repayment, shall have been received by such Lender.


 


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Section 10.13. Waiver of Effect of Corporate Seal. Each Borrower represents and
warrants that it is not required to affix its corporate seal to this Agreement or any other Loan
Document pursuant to any requirement of law or regulation, agrees that this Agreement is delivered
by each Borrower under seal and waives any shortening of the statute of limitations that may result
from not affixing the corporate seal to this Agreement or such other Loan Documents.



Section 10.14. Patriot Act. The Administrative Agent and each Lender hereby notifies
the Borrowers that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and
record information that identifies the Borrowers, which information includes the name and address
of each Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify each Borrower in accordance with the Patriot Act. Each Borrower shall, and
shall cause each of its Subsidiaries to, provide to the extent commercially reasonable, such
information and take such other actions as are reasonably requested by the Administrative Agent or
any Lender in order to assist the Administrative Agent and the Lenders in maintaining compliance
with the Patriot Act.



Section 10.15. The Administrative Borrower. Each Borrower hereby irrevocably appoints
the Company as the borrowing agent and attorney-in-fact for all Borrowers (the “Administrative
Borrower”), which appointment shall remain in full force and effect unless and until the
Administrative Agent shall have received prior written notice signed by each Borrower that such
appointment has been revoked and that another Borrower has been appointed the Administrative
Borrower. Each Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (i)
to provide the Administrative Agent with all notices with respect to Loans and Letters of Credit
obtained for the benefit of any Borrower and all other notices and instructions under this
Agreement and (ii) to take such action as the Administrative Borrower deems appropriate on its
behalf to obtain Loans and Letters of Credit and to exercise such other powers as are reasonably
incidental thereto to carry out the purposes of this Agreement.



Section 10.16. All Obligations to Constitute Joint and Several Obligations.



(a) All Obligations shall constitute joint and several obligations of the Borrowers and shall
be secured by the Administrative Agent’s Lien upon all of the Collateral, and by all other Liens
heretofore, now or at any time hereafter granted by each Borrower to the Administrative Agent, for
the benefit of the Lenders, to the extent provided in the Loan Documents or Bank Product Documents
under which such Lien arises. Each Borrower expressly represents and acknowledges that it is part
of a common enterprise with the other Borrowers and that any financial accommodations by the
Lenders to any other Borrower hereunder and under the other Loan Documents and the Bank Product
Documents are and will be of direct and indirect interest, benefit and advantage to all Borrowers.
Each Borrower acknowledges that any Notice of Borrowing, Notice of Conversion/Continuation, Request
for Issuance of Letter of Credit or other notice or request given by the Administrative


 


109









 






 Borrower to
the Administrative Agent shall bind all Borrowers, and that any notice given by the Administrative Agent, the
Issuing Bank or any Lender to the Administrative Borrower shall be effective with respect to all
Borrowers. Each Borrower acknowledges and agrees that each Borrower shall be liable, on a joint
and several basis, for all of the Loans and other Obligations, regardless of which Borrower
actually may have received the proceeds of any of the Loans or other extensions of credit or have
had Letters of Credit issued hereunder or the amount of such Loans received, Letters of Credit
issued or the manner in which the Administrative Agent or any Lender accounts among the Borrowers
for such Loans, Letters of Credit or other extensions of credit on its books and records, and
further acknowledges and agrees that Loans and other extensions of credit to any Borrower inure to
the mutual benefit of all of the Borrowers and that the Administrative Agent and the Lenders are
relying on the joint and several liability of the Borrowers in extending the Loans and other
financial accommodations hereunder. Each Borrower shall be entitled to subrogation and
contribution rights from and against the other Borrowers to the extent any Borrower is required to
pay to any Lender any amount in excess of the Loans advanced directly to, or other Obligations
incurred directly by, such Borrower or as otherwise available under Applicable Law;
provided, however, that such subrogation and contribution rights are and shall be
subject to the terms and conditions of this Section 10.16.



(b) In the event any Borrower (a “Funding Borrower”) shall make any payment or
payments under this Agreement or shall suffer any loss as a result of any realization upon any
Collateral granted by it to secure its obligations hereunder, such Funding Borrower shall have the
right to seek contribution payments from each other Borrower (each, a “Contributing
Borrower”) to the extent permitted by applicable law. Nothing in this Section 10.16(b)
shall affect any Borrower’s joint and several liability to the Lenders for the entire amount of its
Obligations. Each Borrower covenants and agrees that (i) its right to receive any contribution
hereunder from a Contributing Borrower shall be subordinate and junior in right of payment to all
obligations of the Borrowers to the Administrative Agent, the Issuing Bank and the Lenders
hereunder and (ii) it shall not exercise any such contribution rights unless and until the
Obligations shall have been paid in full in cash (or, with respect to Letters of Credit, Cash
Collateralized) and the Revolving Commitments terminated.



(c) Nothing in this Section 10.16(b) shall affect any Borrower’s joint and several
liability to the Administrative Agent, the Issuing Bank and the Lenders for the entire amount of
its Obligations. Each Borrower covenants and agrees that its right to receive any contribution
hereunder from a Contributing Borrower shall be subordinate and junior in right of payment to all
Obligations of the Borrowers to the Administrative Agent, the Issuing Bank and the Lenders
hereunder. No Borrower will exercise any rights that it may acquire by way of subrogation
hereunder or under any other Loan Document or any Bank Product Document or at law by any payment
made hereunder or otherwise, nor shall any Borrower seek or be entitled to seek any contribution or
reimbursement from any other Borrower in respect of payments made by such Borrower hereunder or
under any other Loan Document or under any Bank Product Document, until all amounts owing to the
Administrative Agent, the Issuing Bank and the Lenders on account of the Obligations are paid in
full in cash (or, with respect to Letters of Credit, are Cash Collateralized) and the Revolving
Commitments are terminated. If any amounts shall be paid to any Borrower on account of such
subrogation or contribution rights at any time when all of the Obligations shall not have been so
paid in full, such amount shall be held by such Borrower in trust for the Administrative Agent, the
Issuing Bank and the Lenders segregated
from other funds of such Borrower, and shall, forthwith upon receipt by such Borrower, be
turned over to the Administrative Agent in the exact form received by such Borrower (duly endorsed
by such Borrower to the Administrative Agent, if required), to be applied against the Obligations,
whether matured or unmatured, as provided for herein.


 


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Section 10.17. Waiver of Existing Defaults. The Administrative Borrower acknowledges
that certain Events of Default occurred under (and as defined in) the Existing Credit Agreement as
a result of (i) the failure of the Administrative Borrower to comply with Sections 5.2(a) and 5.3
of the Existing Credit Agreement and (ii) the making of certain misrepresentations under Section
4.1 of the Existing Credit Agreement, in each case with respect to the cancellation of the Articles
of Incorporation or Certificate of Authority (as applicable) of the Administrative Borrower,
Scripps Howard Broadcasting Company, Scripps Howard Publishing, Inc. and United Feature Syndicate,
Inc. (collectively, the “Specified Defaults”). Upon the satisfaction of the conditions set forth
in Section 3.1 of this Agreement, the Lenders hereby waive the Specified Defaults and all
consequences resulting or arising therefrom under the Existing Credit Agreement. The Borrowers
acknowledge and agree that the waiver contained in the foregoing sentence shall not be deemed to be
or constitute a waiver of any covenant, term or provision in this Agreement or hinder, restrict or
otherwise modify the rights and remedies of the Lenders and/or the Administrative Agent hereunder
following the occurrence of any future Default or Event of Default under this Agreement



Section 10.18. Waiver; Delivery of Notice under Existing Credit Agreement. Each
Lender party hereto which is also a party to the Existing Credit Agreement hereby waives compliance
by the Company with the requirement of three (3) Business Days’ (as defined therein) notice
thereunder for the voluntary reduction in Aggregate Revolving Commitments (as defined therein)
pursuant to Section 2.7 of the Existing Credit Agreement



Section 10.19. Knoxville Lease; Company Consent. Pursuant to Section 8.01 of that
certain Lease dated as of August 30, 2002 between The Industrial Development Board of The City of
Knoxville, Tennessee, a Tennessee public nonprofit corporation, as lessor, and the Company, as
lessee evidenced by that certain Memorandum of Lease, dated as of and recorded August 30, 2002, as
Instrument Number 20020830017946 in the official records of Knox County, Tennessee
(the “Knoxville Lease”), in order to encumber the leasehold interest of Knoxville
News-Sentinel Company (“Knoxville News”) in the real property encumbered by the Knoxville
Lease, Knoxville News must obtain the Company’s consent to the same in writing. By execution of
this Agreement, the Company hereby consents to the execution, delivery and recordation of that
certain Leasehold Deed of Trust and Absolute Assignment of Leases and Rents and Security Agreement
(and Fixture Filing), dated the date hereof, given from Knoxville News to Joseph B. Pitt, Jr., as
trustee, for the benefit of the Administrative Agent for the benefit of the Lenders and any other
encumbrance on such leasehold interest granted by Knoxville News to the Administrative Agent for
the benefit of the Lenders in connection with this Agreement.


 


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[Signatures on Following Page]



 


112









 





IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed under
seal in the case of each Borrower by their respective authorized officers as of the day and year
first above written.



	 	 	 	 	 
	 	THE E.W. SCRIPPS COMPANY

BRV, LLC

CHANNEL 7 OF DETROIT, INC.

COLLIER COUNTY PUBLISHING, LLC

EVANSVILLE COURIER COMPANY, INC.

INDEPENDENT PUBLISHING, LLC

KNOXVILLE NEWS-SENTINEL COMPANY

MEDIA PROCUREMENT SERVICES, INC.

MEMPHIS PUBLISHING COMPANY

NEW MEXICO STATE TRIBUNE COMPANY

NEWSPAPER ENTERPRISE ASSOCIATION, INC.

SCRIPPS ASIA INC.

SCRIPPS BC DEVELOPMENT COMPANY

SCRIPPS ENTREPRENEURIAL VENTURES, INC.

SCRIPPS HOWARD BROADCASTING COMPANY

SCRIPPS HOWARD PUBLISHING, INC.

SCRIPPS MEDIA ACCESS, INC.

SCRIPPS TEXAS NEWSPAPERS, LLC

SCRIPPS TREASURE COAST PUBLISHING, LLC

TAMPA BAY TELEVISION, INC.

 	 
	 	By:  	/s/ Timothy E. Stautberg
 	 
	 	 	Name:  	Timothy E. Stautberg 	 
	 	 	Title:  	Senior Vice President, Chief Financial Officer and
Treasurer 	 



	 	 	 	 	 
	 	SCRIPPS VENTURES II, LLC

 	 
	 	By:  	The E.W. Scripps Company, as Managing Member
 	 
	 	 	 
	 	By:  	                    /s/ Timothy E. Stautberg
 	 
	 	 	Name:  	Timothy E. Stautberg 	 
	 	 	Title:  	Senior Vice President, Chief Financial Officer and
Treasurer 	 



[Signatures Continue on Following Pages]




 


 









 





	 	 	 	 	 
	 	D.I.Y. INSURANCE COMPANY

 	 
	 	By:  	/s/ Timothy E. Stautberg
 	 
	 	 	Name:  	Timothy E. Stautberg 	 
	 	 	Title:  	President 	 
	 
	 	
SCRIPPS NATIONAL SPELLING BEE, INC.

 	 
	 	By:  	/s/ Timothy E. Stautberg
 	 
	 	 	Name:  	Timothy E. Stautberg 	 
	 	 	Title:  	President and Treasurer 	 
	 
	 	SCRIPPS VENTURES, LLC

 	 
	 	By:  	/s/ Timothy E. Stautberg
 	 
	 	 	Name:  	Timothy E. Stautberg 	 
	 	 	Title:  	Senior Vice President and Treasurer 	 
	 
	 	UNITED FEATURE SYNDICATE, INC.

 	 
	 	By:  	/s/ Timothy E. Stautberg
 	 
	 	 	Name:  	Timothy E. Stautberg 	 
	 	 	Title:  	Vice President and Treasurer 	 



[Signatures Continue on Following Pages]




Signature Page to Amended and Restated Revolving Credit Agreement



 


 









 





	 	 	 	 	 
	 	SUNTRUST BANK

as Administrative Agent, as Issuing Bank, as

Swingline Lender and as a Lender

 	 
	 	By:  	/s/ J. Haynes Gentry III
 	 
	 	 	Name:  	J. Haynes Gentry III 	 
	 	 	Title:  	Vice President 	 



Signature Page to Amended and Restated Revolving Credit Agreement



 


 









 





	 	 	 	 	 
	 	FIFTH THIRD BANK, an Ohio Banking Corporation

 	 
	 	By:  	/s/ Megan S. Heisel
 	 
	 	 	Name:  	Megan S. Heisel 	 
	 	 	Title:  	Vice President 	 



Signature Page to Amended and Restated Revolving Credit Agreement




 


 









 





	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Susan Bader
 	 
	 	 	Name:  	Susan Bader 	 
	 	 	Title:  	Vice President 	 



Signature Page to Amended and Restated Revolving Credit Agreement




 


 









 





	 	 	 	 	 
	 	

FIRST TENNESSEE BANK, N.A.

 	 
	 	By:  	/s/ Tiffany E. Gardner
 	 
	 	 	Name:  	Tiffany E. Gardner 	 
	 	 	Title:  	Senior Vice President 	 



Signature Page to Amended and Restated Revolving Credit Agreement




 


 









 





	 	 	 	 	 
	 	

PNC BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ C. Joseph Richardson
 	 
	 	 	Name:  	C. Joseph Richardson 	 
	 	 	Title:  	Senior Vice President 	 



Signature Page to Amended and Restated Revolving Credit Agreement




 


 









 





Schedule I




APPLICABLE MARGIN 




	 	 	 	 	 	 	 
	 	 	 	 	Applicable	 	Applicable
	 	 	Average	 	Margin for	 	Margin for
	Pricing	 	Excess	 	Eurodollar	 	Base Rate
	Level	 	Availability	 	Loans	 	Loans
	I

	 	Less than
$30,000,000
	 	3.25% per annum
	 	2.25% per annum
	 
	 	 	 	 	 	 
	II

	 	Greater than or
equal to
$30,000,000 but
less than
$60,000,000
	 	3.00% per annum
	 	2.00% per annum
	 
	 	 	 	 	 	 
	III

	 	Greater than or
equal to
$60,000,000
	 	2.75% per annum
	 	1.75% per annum





 


 









 





Schedule II




REVOLVING COMMITMENT AMOUNTS




	 	 	 	 	 
	 	 	Revolving Commitment	 
	Lender	 	Amount	 
	SunTrust Bank
	 	$	45,000,000	 
	Fifth Third Bank
	 	$	45,000,000	 
	U.S. Bank National Association
	 	$	30,000,000	 
	First Tennessee Bank, N.A.
	 	$	18,750,000	 
	PNC Bank, National Association
	 	$	11,250,000	 
	 
	 	 	 
	 
	 	$	150,000,000