Exhibit 10.1






Exhibit 10.1




EXECUTION VERSION




 

 








AMENDED AND RESTATED CREDIT AGREEMENT




by and among



GREATBATCH LTD.




THE FINANCIAL INSTITUTIONS identified herein as Lenders,




MANUFACTURERS AND TRADERS TRUST COMPANY, as Administrative Agent,




BANK OF AMERICA, N.A., as Syndication Agent, and




PNC BANK, N.A. and RBS CITIZENS, NA, as Co-Documentation Agents




Dated as of June 24, 2011




 

 







 


 









 














AMENDED AND RESTATED CREDIT AGREEMENT




This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 24, 2011 (this
“Agreement”), is made by and among MANUFACTURERS AND TRADERS TRUST COMPANY (“M&T”),
individually, as the Issuing Bank, a Lender, the Swingline Lender and the Administrative Agent,
BANK OF AMERICA, N.A., as the Syndication Agent and a Lender, PNC BANK, N.A. and RBS CITIZENS, NA,
as Co-Documentation Agents and each a Lender, the LENDERS (referred to below), and GREATBATCH LTD.,
a New York corporation (the “Borrower”). M&T, when acting in its capacity as
administrative agent for the Lenders and the Issuing Bank, or any successor or assign that assumes
that position pursuant to the terms of this Agreement, is hereinafter referred to as the
“Administrative Agent.” Certain capitalized terms used in this Agreement are defined in
Article 1 (Definitions).



Background of Agreement




The Borrower and its Subsidiaries are engaged in the business of developing and manufacturing
critical medical device technologies for the cardiac, neurology, vascular and orthopaedic markets,
and developing and manufacturing battery and wireless sensing technologies for high-end niche
applications in the energy, military, portable medical and other markets. The Borrower, M&T and
each lender party thereto entered into that certain Credit Agreement dated as of May 22, 2007 (as
amended prior to the date hereof, the “Existing Credit Agreement”). The Borrower has
requested that the Lenders provide a senior credit facility, which would amend and restate the
Existing Credit Agreement and which would consist of a revolving credit facility in an aggregate
amount not to exceed at any time (except as provided in Subsection 2.1.8 (Increases in Facility))
$400,000,000 with a letter of credit subfacility in an aggregate amount equal to $15,000,000 and a
swing line subfacility in an aggregate amount equal to $15,000,000.



Borrower’s direct parent, Greatbatch, Inc., a Delaware corporation (“Parent”), and the
Subsidiaries of the Borrower will derive substantial benefits from this credit facility. The
Borrower may, among other things, use proceeds of the Loans hereunder to make capital contributions
in, and extend credit to, its U.S. Subsidiaries and, to the extent permitted hereby, to its Foreign
Subsidiaries. Such access to capital provided to the Subsidiaries through this financing is on
terms that are more advantageous to the Subsidiaries than such Subsidiaries could obtain if they
accessed capital independently. Accordingly, the credit facility provided for in this Agreement is
to be guaranteed by Parent and, subject to the next sentence, the Borrower’s U.S. Subsidiaries from
time to time, and secured by the equity of the Borrower, the U.S. Subsidiaries of the Borrower and
sixty-six percent (66%) of the equity of certain of its Foreign Subsidiaries, as well as by the
material assets of the guarantors. Certain Ventures that are U.S. Subsidiaries are not required to
become guarantors; however Ventures and Foreign Subsidiaries may become guarantors at a later date
pursuant to the terms of this Agreement.



NOW, THEREFORE, it is agreed that the Existing Credit Agreement is hereby amended and restated
in its entirety as follows:


 


 









 





ARTICLE 1




DEFINITIONS



1.1 DEFINED TERMS.



As used in this Agreement, the following terms shall have the meanings specified in this
Section 1.1 unless the context otherwise requires.



2007 Debentures: the 21/4% convertible subordinated debentures due 2013 of Parent
issued pursuant to the 2007 Indenture.



2007 Indenture: the Indenture dated as of March 28, 2007 between Parent and
Manufacturers and Traders Trust Company, as trustee, under which the 2007 Debentures were issued.



Accumulated Funding Deficiency: any accumulated funding deficiency as defined in
Section 302(a) of ERISA.



Acquisition: (a) any acquisition by the Borrower or any of its Subsidiaries of an
interest in any other Person that shall then become Consolidated with the Borrower and its
Subsidiaries in accordance with GAAP (including, by way of merger into Borrower or any Subsidiary
or otherwise), or (b) any acquisition by the Borrower or any of its Subsidiaries of all or any
substantial part of the assets of any other Person or of a division or line of business of any
other Person, in any case, whether by purchase, lease, exchange, issuance of equity or debt
securities, merger, reorganization or any other method.



Adjusted EBITDA: for each period the following items for the four fiscal quarters
ended on, or most recently prior to, the last day of such period: Net Income plus without
duplication to the extent deducted in computing Net Income, the sum of (without duplication):




(a) Interest Expense;




(b) income tax expense;




(c) depreciation and amortization expense;




(d) write-off of debt discount and debt issuance costs and commissions,
discounts and other fees and charges associated with Indebtedness (including
the Loans and any convertible securities);




(e) any extraordinary, unusual or non-recurring expenses or losses
(including expenses or losses on sales or abandonment of assets outside of
the ordinary course of business) determined in accordance with GAAP;




(f) share-based compensation plus any other non-cash charges, including, for
the sake of clarity, non-cash impairments of intangible assets;


 


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(g) net losses attributable to discontinued operations;




(h) non-recurring actual expenses in connection with Permitted Acquisitions;




(i) restructuring charges previously incurred and reported prior to the date
such Person becomes a Subsidiary of the Borrower in connection with a
Permitted Acquisition to the extent the charges can be agreed upon by
Majority Lenders and the Borrower;



minus to the extent included in computing Net Income, but without duplication, the sum of:





(i) any extraordinary, unusual or non-recurring income or gains
(including gains on sales or abandonment of assets outside of the
ordinary course of business) determined in accordance with GAAP; and




(ii) any other non-cash income;




(iii) net income attributable to discontinued operations; and




(iv) any net gain from the collection of proceeds of life insurance
policies.



Adjusted GAAP: the meaning specified in Subsection 7.3.3(b)(i) (Additional Provisions
Respecting Calculation of Financial Covenants).



Adjusted LIBOR: the rate per annum (rounded upwards if necessary to the nearest
one-hundredth of one percent) determined by the Administrative Agent to be equal to the quotient of
(a) LIBOR, divided by (b) a number equal to 1.00 minus the Reserve Percentage.



Administrative Agent: the meaning specified in the preamble to this Agreement.



Administrative Questionnaire: an Administrative Questionnaire in a form supplied by
the Administrative Agent.



Affiliate: 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 Parties: has the meaning specified in Subsection 11.1.4 (Platform).



Agreement: this Credit Agreement, as amended, modified or supplemented from time to
time.



Applicable Margin: the meaning specified in Subsection 2.8.2 (Applicable Margin).


 


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Applicable Percentage: with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.



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



Assignment and Assumption: an assignment and assumption entered into by a Lender and
an Eligible Assignee (with the consent of any party whose consent is required by Subsection 11.6
(Successors and Assigns)), and accepted by the Administrative Agent, in substantially the form of
Exhibit H or any other form approved by the Administrative Agent.



Available Commitment: the meaning specified in Subsection 2.1.2 (Available
Commitment).



Banking Services: each and any of the following bank services provided to any Loan
Party by the Administrative Agent, a Lender, the Issuing Bank or, an Affiliate of the foregoing:
(a) commercial credit cards, (b) stored value cards and (c) treasury and/or cash management
services (including controlled disbursement, automated clearinghouse transactions, return items,
overdrafts and interstate depository network services) provided that in the case of any
Lender or Affiliate thereof, (i) the Administrative Agent and (so long as no Event of Default shall
have occurred and be continuing a the time of such consent) the Borrower shall have consented in
writing to such Person being a Secured Party (which consent shall not be unreasonably withheld) and
(ii) in the case of any such Affiliate, such Affiliate shall have executed and delivered to the
Administrative Agent a joinder to this Agreement (in form and substance satisfactory to the
Administrative Agent) agreeing to be bound by the provisions of this Agreement respecting the role
of the Administrative Agent, including all exculpatory provisions and indemnification provisions,
as if such Affiliate were a Lender hereunder and the obligations under the Banking Services
Obligations were Obligations hereunder or such other arrangement as Administrative Agent shall
agree to.



Banking Services Obligations: any and all obligations of the Loan Parties, whether
absolute or contingent and howsoever and whenever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefor) in
connection with Banking Services.



Base Rate: the highest of (a) the variable per annum rate of interest so designated
from time to time by the Administrative Agent as its prime rate (which rate is a reference rate and
does not necessarily represent the lowest or best rate being charged to any customer), (b) the
Federal Funds Rate plus one-half of one percent (1/2%) per annum and (c) a rate of interest equal to
one month LIBOR as in effect on the first Eurodollar Business Day of the then current month plus
one percent (1%) per annum.


 


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Base Rate Loans: Loans bearing interest at a rate equal to the Base Rate plus the
Applicable Margin.



Board of Directors: the board of directors, board of managers or similar group that
directs the affairs of a Person.



Borrower: the meaning specified in the preamble to this Agreement.



Business Day: any day other than a Saturday, Sunday or day which shall be in the
State of New York a legal holiday or day on which banking institutions are required or authorized
to close.



Capital Expenditures: expenditures for fixed or capital assets, including the
purchase, construction or rehabilitation of equipment or other physical assets that are required to
be capitalized under GAAP.



Capital Lease: a lease with respect to which the lessee is required to recognize the
acquisition of an asset and the incurrence of a liability in accordance with GAAP.



Capital Lease Obligation: with respect to any Capital Lease, the amount of the
obligation of the lessee thereunder which would in accordance with GAAP appear on a balance sheet
of such lessee in respect of such Capital Lease or otherwise be disclosed in a note to such balance
sheet.



Capital Stock: any class of preferred, common or other capital stock, share capital
or similar equity interest of a Person, including any partnership interest in any partnership or
limited partnership and any membership interest in any limited liability company.



Cash Collateralize: to deposit in a controlled account or to pledge and deposit with
or deliver to the Administrative Agent, for the benefit of one or more of the Issuing Bank or
Lenders, as collateral for LC Obligations or obligations of Lenders to fund participations in
respect of LC Obligations, cash or deposit account balances or, if the Administrative Agent and
each applicable Issuing Bank shall agree in their sole discretion, other credit support, in each
case pursuant to documentation in form and substance satisfactory to the Administrative Agent and
each applicable Issuing Bank. “Cash Collateral” shall have a meaning correlative to the
foregoing and shall include the proceeds of such cash collateral and other credit support.



Cash Equivalents: any of the following: (i) full faith and credit obligations of the
United States of America, or fully guaranteed as to interest and principal by the full faith and
credit of the United States of America, maturing in not more than one year from the date such
investment is made; (ii) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States
of America, by any political subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state, commonwealth, territory,
political subdivision, taxing authority or foreign government (as the case may be) are rated at
least A2 by S&P or A by Moody’s; (iii) time deposits and certificates of deposit having a final
maturity of not more than one


 


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year after the date of issuance thereof of any commercial bank or depository institution
incorporated under the laws of the United States of America or any state thereof or the District of
Columbia, which (a) in the case of a bank, is a member of the Federal Reserve System and (b) in the
case of either a bank or a depository institution, has a combined capital and surplus of not less
than $1,000,000,000 and with a senior unsecured debt credit rating of at least “A” by Moody’s or
“A” by S&P; (iv) commercial paper of companies, banks, trust companies or national banking
associations incorporated or doing business under the laws of the United States of America or one
of the States thereof, in each case having a remaining term until maturity of not more than one
hundred eighty (180) days from the date such investment is made and rated at least P-1 by Moody’s
or at least A-1 by S&P; (v) repurchase agreements with any financial institution having combined
capital and surplus of not less than $1,000,000,000 with a term of not more than seven (7) days for
underlying securities of the type referred to in clauses (i) and (ii) above; and (vi) money market
funds which invest primarily in the Cash Equivalents set forth in the preceding clauses (i) — (vi)
and seek to maintain a net asset value of 1.00 as their primary objective.




CERCLA: the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended from time to time, and all rules and regulations promulgated in connection
therewith.



Change in Law: the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration, interpretation,
implementation or application thereof by any Governmental Authority or (c) the making or issuance
of any request, rule, guideline or directive (whether or not having the force of law) by any
Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or
directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or
directives promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in
Law”, regardless of the date enacted, adopted or issued.



Change of Control:



(a) Any person or group of persons (within the meaning of Section 13(d) of the Securities
Exchange Act of 1934, as amended) shall obtain ownership or control in one or more series of
transactions of more than thirty percent (30%) of the Capital Stock of Parent entitled to vote in
the election of members of the Board of Directors of Parent; or



(b) Parent ceases to be the legal and beneficial owner (as defined in Rules 13d-3 and 13d-5
under the Securities Exchange Act of 1934, as amended) of 100% of the Capital Stock of the
Borrower, free and clear of all Liens, except for Liens in favor of the Administrative Agent; or



(c) There shall have occurred under any indenture or other instrument evidencing any
Indebtedness or preferred equity any “change of control” or “fundamental change” (or similar term
as defined in such indenture or other evidence of Indebtedness or
preferred equity) obligating the Borrower to repurchase, redeem or repay all or any part of
the Indebtedness or Capital Stock provided for therein; or


 


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(d) The Borrower merges with or into another Person and the Borrower is not the surviving
entity or sells or disposes of all or substantially all of its assets or all or substantially all
of the equity of its Subsidiaries to any Person; or



(e) During any period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of Parent (together with any new directors whose election
by such Board of Directors or whose nomination for election by the shareholders of Parent was
approved by a vote of 66 2/3% of the directors of Parent at the time of such approval who were
either directors at the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the Board of Directors
then in office.



CIP Regulations: the meaning specified in Section 10.11 (Reliance on Administrative
Agent’s Customer Identification Program).



Closing Date: June 24, 2011.



Closing Date GAAP: the meaning specified in Subsection 7.3.3(a).



COBRA: the group health plan continuation coverage requirements of Section 4980B of
the Code and Part 6 of Subtitle B of Title I of ERISA.



Code: the Internal Revenue Code of 1986, as amended, or its predecessor or successor,
as applicable, and any Treasury regulations, revenue rulings or technical information releases
issued thereunder.



Collateral: all property of any sort in which any Loan Party has granted, or
purported to grant, a security interest or other Lien pursuant to any of the Loan Documents.



Commitment: the meaning specified in Subsection 2.1.1 (Commitment to Make RC Loans).



Commitment Fee: the meaning specified in Subsection 2.7.1 (Commitment Fees).



Commitment Fee Base: the meaning specified in Subsection 2.7.1 (Commitment Fees).



Commitment Fee Rate: the meaning specified in Subsection 2.7.1 (Commitment Fees).



Communications: the meaning specified in Subsection 11.1.4 (Platform).



Consolidated: with respect to any Person and any specified Subsidiaries of such
Person, refers to the consolidation of financial statements of such Person and such Subsidiaries
and of particular items in such financial statements in accordance with GAAP.


 


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Consolidating: with respect to any Person and any specified Subsidiaries of such
Person, refers to the separate presentation of financial statements of each such Person in
accordance with GAAP.



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



Control Agreement: the meaning specified in Subsection 4.1.6 (Control Agreements).



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



Default: any condition or event which, with notice or lapse of time or both, would
become an Event of Default.



Default Rate: the meaning specified in Subsection 2.8.6 (Default Rate).



Defaulting Lender: subject to Subsection 2.15.2 (Defaulting Lender Cure), any Lender
that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the
date such Loans were required to be funded hereunder unless such Lender notifies the Administrative
Agent and the Borrower in writing that such failure is the result of such Lender’s determination
that one or more conditions precedent to funding (each of which conditions precedent, together with
any applicable default, shall be specifically identified in such writing) has not been satisfied,
or (ii) pay to the Administrative Agent, any Issuing Bank, any Swingline Lender or any other Lender
any other amount required to be paid by it hereunder (including in respect of its participation in
Letters of Credit or Swing Loans) within two Business Days of the date when due, (b) has notified
the Borrower, the Administrative Agent or any Issuing Bank or Swingline Lender in writing that it
does not intend to comply with its funding obligations hereunder, or has made a public statement to
that effect (unless such writing or public statement relates to such Lender’s obligation to fund a
Loan hereunder and states that such position is based on such Lender’s determination that a
condition precedent to funding (which condition precedent, together with any applicable default,
shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has
failed, within three Business Days after written request by the Administrative Agent or the
Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply
with its prospective funding obligations hereunder (provided that such Lender shall cease to be a
Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the
Administrative Agent and the Borrower), or (d) unless the Administrative Agent determines in its
sole discretion that a Lender should not be a Defaulting Lender by virtue of the facts and
circumstances described in this clause (d) has, or has a direct or indirect parent company that
has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for
it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of
creditors or


 


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similar Person charged with reorganization or liquidation of its business or assets, including the
Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in
such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any equity interest in that Lender or any direct or indirect parent
company thereof by a Governmental Authority so long as such ownership interest does not result in
or provide such Lender with immunity from the jurisdiction of courts within the United States or
from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or
such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements
made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting
Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error,
and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b) (Defaulting
Lender Cure)) upon delivery of written notice of such determination to the Borrower, each Issuing
Bank, each Swingline Lender and each Lender.




Designated Person: the meaning specified in Section 5.18 (Foreign Assets Control
Regulation, Etc.)



Disqualified Stock: with respect to any Person, any Capital Stock which by its terms
(or by the terms of any security into which it is convertible or for which it is exchangeable):
(a) matures or is mandatorily redeemable for any reason; (b) is convertible or exchangeable for
Indebtedness or Disqualified Stock or (c) is or may for any reason be redeemable at the option of
the holder thereof, in whole or in part, in each case, on or prior to the first anniversary of the
stated maturity of the Notes.



DOL: United States Department of Labor, or any governmental agency or instrumentality
succeeding to the functions thereof.



Dollars and $: dollars in lawful currency of the United States of America.



Effective Date: the meaning specified in Subsection 2.1.8 (Increases in Facility).



Eligible Assignee:



(a) a Lender;



(b) an Affiliate of a Lender;



(c) an Approved Fund; and



(d) any Person (other than a natural person) subject to such consents, if any, as may be
required under Subsection 11.6.2(c) (Assignment by Lenders); provided that notwithstanding
the foregoing, “Eligible Assignee” shall not include the Borrower or any of the Borrower’s
Affiliates or Subsidiaries.



Employee Pension Plan: any Plan which (a) the Borrower, any of its Subsidiaries or
any ERISA Affiliate maintains, contributes to, or otherwise has any liability with respect thereto
and (b) is subject to Part 3 of Subtitle B of Title I of ERISA.


 


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Environmental Laws: any national, state or local law or regulation (including CERCLA,
OSHA and RCRA) enacted in connection with or relating to the protection or regulation of the
environment, including those laws, statutes, and regulations regulating the disposal, removal,
production, storing, refining, handling, transferring, processing, or transporting of Hazardous
Substances, and any regulations issued or promulgated in connection with such statutes by any
Governmental Authority and any orders, decrees or judgments issued by any court of competent
jurisdiction in connection with any of the foregoing.



ERISA: the Employee Retirement Income Security Act of 1974, as amended, and any
regulations issued thereunder by the Department of Labor or PBGC.



ERISA Affiliate: (a) any corporation included with the Borrower in a controlled group
of corporations within the meaning of Section 414(b) of the Code, (b) any trade or business
(whether or not incorporated) which is under common control with the Borrower within the meaning of
Section 414(c) of the Code, (c) any member of an affiliated service group of which the Borrower is
a member within the meaning of Section 414(m) of the Code and (d) any other group including the
Borrower that is treated as a single employer within the meaning of Section 414(o) of the Code.



Eurodollar Business Day: a day on which the relevant London international financial
markets are open for dealings in Dollar deposits and which is also other than a Saturday, Sunday or
day which shall be in the State of New York a legal holiday or day on which banking institutions
are required or authorized to close.



Eurodollar Deposits: U.S. dollar-denominated deposits at foreign banks or foreign
branches of American banks.



Event of Default: the meaning specified in Section 9.1 (Events of Default).



Excluded Assets: collectively, (a) real property and (b) except as provided by clause
(b) of Section 8.28 (Certain Obligations Respecting Subsidiaries), thirty-four percent (34%) of the
Capital Stock of the First-Tier Foreign Subsidiaries of the Borrower.



Excluded Taxes: 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 the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
lending office is located; (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in the
case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under
Subsection 2.14.2 (Replacement of Lenders)), any withholding tax that is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new
lending office) or is attributable to such Foreign Lender’s


 


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failure or inability (other than as a result of a Change in Law) to comply with Subsection 2.13.5
(Status of Lenders), except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to Subsection 2.13.1
(Payments Free of Taxes) or any withholding tax imposed pursuant to FATCA (or any amended or
successor version of FATCA that is substantively comparable and not materially more onerous to
comply with).




Executive Order: the Executive Order No. 13224 on Terrorist Financing, effective
September 24, 2001, and relating to Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism.



Existing Credit Agreement: the meaning specified in the Background of this Agreement.



FATCA: Sections 1471 through 1474 of the Code, as of the date of this Agreement, and
any current or future regulations or official interpretations thereof.



FCPA: the meaning specified Section 5.7(b) (Litigation; Compliance with Laws; OFAC
Requirements).



Federal Funds Rate: for any period, a fluctuating interest rate per annum equal for
each day during such period to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such
day, provided that (a) if such day is not a Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next Business Day as so published on the next
succeeding Business Day, and (b) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to the Administrative Agent on such day on such
transactions as determined by the Administrative Agent.



Financial Officer: the Chief Financial Officer, Treasurer or Corporate Controller of
the Borrower.



First-Tier Foreign Subsidiary: a Foreign Subsidiary which has the majority of its
Capital Stock issued to the Parent and/or one or more U.S. Subsidiaries of the Parent.



Foreign Lender: any Lender that is organized under the laws of a jurisdiction other
than that in which the Borrower is resident for tax purposes. For purposes of this definition, the
United States of America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.



Foreign Subsidiary: any Subsidiary that is organized under the laws of a jurisdiction
other the United States of America, any State thereof or the District of Columbia.


 


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Fronting Exposure: at any time there is a Defaulting Lender, (a) with respect to any
Issuing Bank, such Defaulting Lender’s Applicable Percentage of the outstanding LC Obligations with
respect to Letters of Credit issued by such Issuing Bank other than LC Obligations as to which such
Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash
Collateralized in accordance with the terms hereof, and (b) with respect to any Swingline Lender,
such Defaulting Lender’s Applicable Percentage of outstanding Swing Loans made by such Swingline
Lender other than Swing Loans as to which such Defaulting Lender’s participation obligation has
been reallocated to other Lenders.



Fronting Fee: the meaning specified in Subsection 3.1.6 (Fees).



Fund: 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.



GAAP: generally accepted accounting principles in the United States consistently
applied, as in effect from time to time; provided that, for purposes of calculating
financial covenants, the provisions of Section 7.3 (Additional Provisions Respecting the
Calculation of Financial Covenants) shall apply to the extent set forth in such section.



GB Ventures: GBV, LLC, a Delaware limited liability company and a wholly-owned
Subsidiary of the Parent.



Governmental Authority: the government of the United States of America or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank) and any group or body charged with setting financial accounting or regulatory capital rules
or standards (including, without limitation, the Financial Accounting Standards Board, the Bank for
International Settlements or the Basel Committee on Banking Supervision or any successor or similar
authority to any of the foregoing).



Guarantor: each of Parent and the Subsidiary Guarantors.



Guaranty: as applied to any Person, any direct or indirect liability, contingent or
otherwise, of such Person with respect to any indebtedness, lease, dividend or other obligation of
another Person, including any such obligation directly or indirectly guaranteed, endorsed
(otherwise than for collection or deposit in the ordinary course of business) or discounted or sold
with recourse by such Person, or in respect of which such Person is otherwise directly or
indirectly liable, including any such obligation in effect guaranteed by such Person through any
agreement (contingent or otherwise) to purchase, repurchase or otherwise acquire such obligation or
any security therefor, or to provide funds for the payment or discharge of such obligation (whether
in the form of loans, advances, stock purchases, capital contributions or otherwise), or to
maintain the solvency or any balance sheet or other financial condition of the obligor of such
obligation, or to make payment for any products, materials or supplies or for any transportation or
services


 


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regardless of the non-delivery or non-furnishing thereof, in any such case if the purpose or intent
of such agreement is to provide assurance that such obligation will be paid or discharged, or that
any agreements relating thereto will be complied with, or that the holders of such obligation will
be protected against loss in respect thereof.




Greatbatch Mexico: the meaning specified in Subsection 4.1.12(d) (Financial
Statements).



Hazardous Substances: any and all chemicals, pollutants, contaminants, toxic or
hazardous wastes or any other substances that might pose a hazard to health or safety, the removal
of which may be required or the generation, manufacture, refining, production, processing,
treatment, storage, handling, transportation, transfer, use, disposal, release, discharge,
spillage, seepage or filtration of which is or shall be restricted, prohibited or penalized by any
Environmental Law (including petroleum products, asbestos, urea formaldehyde foam insulation, lead
based paint and polychlorinated biphenyls and substances defined as Hazardous Substances under
CERCLA).



IEEPA: the International Emergency Economic Power Act, 50 U.S.C. §1701 et. seq.



HSBC: means HSBC Bank USA, National Association.



HSBC Swap Obligations: those certain obligations relating to Swap Agreements between
a Loan Party and HSBC, entered into prior to the Closing Date in accordance with the Existing
Credit Agreement, and set forth on Schedule 5.26(b) hereto.



Indebtedness: (of any entity, without duplication) means (a) all indebtedness for
borrowed money including seller paper; (b) all obligations for the deferred purchase price of
property or services; (c) all obligations evidenced by notes, bonds, debentures or other similar
instruments; (d) all indebtedness created or arising under any conditional sale or other title
retention agreement; (e) all Capital Lease Obligations; (f) all obligations, contingent or
otherwise under acceptance, letter of credit or similar facilities; (g) all obligations to
purchase, redeem, retire, defease or otherwise acquire for value any Capital Stock; (h) all
obligations under Interest Rate Protection Agreements; (i) all guarantees of items of indebtedness
described in the other clauses of this definition; (j) all obligations secured by any lien on the
assets of such entity; (k) all payments required by such entity under non-compete agreements; (l)
all indebtedness of any partnership in which such entity is a general partner unless such
indebtedness is non-recourse to such entity; (m) all obligations under synthetic leases and other
off balance sheet financing; and (n) other obligations that are the functional equivalent of the
Indebtedness referred to in clauses (a) through (m). Notwithstanding the foregoing, Indebtedness
shall not include trade accounts payable, accrued expenses or obligations in respect of usual and
customary “earn-out” or similar agreements not shown as liabilities on the balance sheet in
accordance with GAAP.



Indemnified Taxes: Taxes other than Excluded Taxes.



Indemnitee: the meaning specified in Subsection 11.14.2 (Indemnification by the
Borrower).


 


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Information: the meaning specified in Subsection 11.13.2 (Information).



Intellectual Property: the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including (a) all copyrights arising under the laws of the United
States, any other country or any political subdivision thereof, whether registered or unregistered
and whether published or unpublished, all registrations and recordings thereof, and all
applications in connection therewith, including all registrations, recordings and applications in
the United States Copyright Office, (b) inventions, discoveries and ideas (whether patentable or
unpatentable and whether or not reduced to practice), and all patents, patent rights, applications
for patents (including divisions, continuations, continuations-in-part and renewal applications),
and any renewals, extensions or reissues thereof, in the United States, any other country or any
political subdivision thereof; (c) all trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade dress, service marks, logos, domain names and
other source or business identifiers, and all goodwill associated therewith, now existing or
hereafter adopted or acquired, all registrations and recordings thereof, and all applications in
connection therewith, whether in the United States Patent and Trademark Office or in any similar
office or agency of the United States, any State thereof or any other country or any political
subdivision thereof, or otherwise, and all common law rights related thereto; (d) all trade secrets
arising under the laws of the United States, any other country or any political subdivision
thereof; (e) all rights to obtain any reissues, renewals or extensions of the foregoing; (f) all
licenses for any of the foregoing and (g) all causes of action for infringement of the foregoing.



Intellectual Property Collateral Agreement: the meaning specified in Subsection 4.1.7
(Amended and Restated Intellectual Property Collateral Agreement).



Interest Expense: for any period, interest expense in accordance with GAAP but
excluding non-cash interest expense.



Interest Period: the period commencing on the date of a borrowing and ending on the
numerically corresponding day in the calendar Month that is one, two, three or six Months;
provided, that (i) if any Interest Period would end on a day other than a Eurodollar
Business Day, such Interest Period shall be extended to the next succeeding Eurodollar Business Day
unless such next succeeding Eurodollar Business Day would fall in the next calendar Month, in which
case such Interest Period shall end on the next preceding Eurodollar Business Day and (ii) any
Interest Period that commences on the last Business Day of a calendar Month (or on a day for which
there is no numerically corresponding day in the last calendar Month of such Interest Period) shall
end on the last Eurodollar Business Day of the last calendar Month of such Interest Period;
provided, further, that, in the event an Interest Period is extended to the next
Eurodollar Business Day in a Month, the succeeding Interest Period will end on the day it would
have ended had the preceding Interest Period not been so extended (e.g., if the preceding period is
extended to the 16th because the 15th is not a Eurodollar Business Day, the succeeding period will
end on the 15th as long as it is a Eurodollar Business Day).For purposes hereof, the date of a Loan
initially shall be the date on which such Loan is made and thereafter shall be the effective date
of the most recent conversion or continuation of such Loan.


 


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Interest Rate Protection Agreement: a Swap Agreement entered into in order to
effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating
rate to another floating rate or otherwise) with respect to any interest-bearing liability or
investment of any Borrower or any Subsidiary.



Investment: as applied to any Person (the “investor”) but without duplication: (a)
any direct or indirect purchase or other acquisition by such investor of stock or other securities
of any other Person, (b) any Guaranty by such investor of obligations of any other Person, (c) any
direct or indirect loan, advance or capital contribution by such investor to any other Person,
including all Indebtedness and accounts receivable owing to such investor from such other Person
which are not current assets or did not arise from sales to such other Person in the ordinary
course of business and (d) any Swap Agreement entered into by such Person.



Investor: the meaning specified in Section 8.3 (Investments, Loans, Acquisitions,
Etc.).



IRS: Internal Revenue Service, or any governmental agency or instrumentality
succeeding to the functions thereof.



Issuing Bank: M&T, in its capacity as issuer of Letters of Credit hereunder, or any
successor or assign that assumes that position pursuant to the terms of this Agreement.



Law: all common law and all applicable provisions of constitutions, laws, statutes,
ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders
of courts or Governmental Authorities and all orders and decrees of all courts and arbitrators.



LC Obligations: at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of Unreimbursed Drawings.



Lender and Lenders: each of the financial institutions and Funds that signs a
Lender Addendum and each other financial institution or Fund that is an assignee of the foregoing
from time to time in accordance with the provisions of this Agreement.



Lender Addendum: a Lender Addendum substantially in the form attached hereto as
Exhibit I.



Lender Required Payment: the meaning specified in Subsection 2.12.1 (Funding by
Lenders; Presumption by Administrative Agent).



Letters of Credit: any and all letters of credit issued pursuant to this Agreement.



Letter of Credit Fees: the meaning specified in Subsection 3.1.6 (Fees).



Letter of Credit Sublimit: the meaning specified in Subsection 3.1.1 (Commitment to
Issue Letters of Credit).


 


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LIBOR: the rate per annum as determined on the basis of the offered rates for
deposits in Dollars, for a period of time equal to the relevant Interest Period which appears on
Reuters Screen LIBOR01 Page (or any successor page) as of 11:00 a.m. London time on the day that is
two Eurodollar Business Days preceding the commencement of such Interest Period; provided,
however, if the rate described above is unavailable on any applicable interest determination date,
then LIBOR shall be the rate determined by the Administrative Agent from another recognized source
or interbank quotation.



LIBOR Loans: Loans bearing interest at a rate equal to Adjusted LIBOR plus the
Applicable Margin.



Lien: with respect to any asset, any mortgage, lien, pledge, adverse claim, charge,
security interest or other encumbrance, or any other type of preferential arrangement that has the
practical effect of creating a security interest, in respect of such asset. For the purposes of
this Agreement and the other Loan Documents, Borrower or any of its Subsidiaries shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the interest of a vendor
or lessor under any conditional sale agreement, Capital Lease or other title retention agreement
relating to such asset.



Liquidity: at any time, the sum of the Available Commitment at such time and the cash
and Cash Equivalents of the Borrower and its Subsidiaries on hand in deposit accounts maintained
with the Administrative Agent or subject to Control Agreements in favor of the Administrative
Agent.



Loan Documents: this Agreement, the Notes, the Suretyship Agreements, the Pledge
Agreement, the Security Agreements and any and all agreements, documents and instruments executed,
delivered or filed pursuant to this Agreement, as the same may be amended, modified or supplemented
from time to time. For the sake of clarity, Interest Rate Protection Agreements, agreements in
respect of Banking Services and Letters of Credit are not Loan Documents, but obligations in
respect thereof owing to Swap Parties (in the case of Interest Rate Protection Agreements) and the
Issuing Bank and the Lenders (in the case of Letters of Credit) which shall be secured by the
Collateral.



Loan Parties: the parties to this Agreement and any of the other Loan Documents,
including the Borrower, the U.S. Subsidiaries of the Borrower and Parent, but excluding the
Administrative Agent, the Lenders, and the Issuing Bank.



Loans: the amounts loaned to the Borrower pursuant to this Agreement. Loans may be
RC Loans or Swing Loans.



M&T: the meaning specified in the preamble to this Agreement.



Majority Lenders: at any time, Lenders (excluding Defaulting Lender) having greater
than fifty percent (50%) of the Total Facility. The Total Facility of any Defaulting Lender shall
be disregarded in determining Majority Lenders at any time.


 


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Margin Stock: any “margin security” or “margin stock” as defined in Regulation T, U
and X of the Board of Governors of the Federal Reserve System.



Material Adverse Change: any material adverse change in



(a) the business, condition (financial or otherwise), operations, properties or prospects of
(i) the Borrower, (ii) Parent and its Subsidiaries taken as a whole or (iii) the Borrower or any of
its Subsidiaries, individually, if such change could result in the insolvency or dissolution (other
than pursuant to a merger or dissolution permitted by this Agreement) of such Person or in the loss
of control (by the current holder thereof) over such Person’s assets;



(b) the binding nature, validity or enforceability of any of the Loan Documents;



(c) the ability of any Loan Party to perform its obligations under any of the Loan Documents
to which it is a party; or



(d) the validity, perfection, priority or enforceability of the Liens granted to the
Administrative Agent in respect of the Collateral.



Material Line of Business: as at any date of determination, any line of business of
the Borrower and its Subsidiaries that has generated for the previous four fiscal quarters of the
Borrower and its Subsidiaries at least fifteen percent (15%) of the Adjusted EBITDA of the Borrower
and its Subsidiaries taken as a whole during the same four fiscal quarters.



Maturity Date: June 24, 2016; provided, that if the 2007 Debentures shall not
have been either repaid in full (x) in accordance with the provisions of Subsection 8.4.2
(Restricted Payments; Permitted Debenture Payments) or (y) in connection with the occurrence of a
Permitted Debenture Refinancing, in either case, by March 1, 2013 (on subordinated terms reasonably
acceptable to the Administrative Agent), the “Maturity Date” shall be March 1, 2013.



Minimum Collateral Amount: means, at any time, (i) with respect to Cash Collateral
consisting of cash or deposit account balances, an amount equal to 105% of the Fronting Exposure of
the Issuing Bank with respect to Letters of Credit issued and outstanding at such time and (ii)
otherwise, an amount determined by the Administrative Agent and the Issuing Bank in their sole
discretion.



Month: a period from and including a given day in a calendar month to the day in the
subsequent calendar month numerically corresponding to such given day except that (a) if there is
no numerical correspondent in such subsequent calendar month, or (b) if such given day is the last
day of a calendar month, such day shall be the last day of such subsequent calendar month.



Multiemployer Plan: a multiemployer pension plan as defined in Section 3(37) of ERISA
to which Borrower, any of its Subsidiaries or any ERISA Affiliate is required to contribute.


 


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Net Income: of any Person for any period, the aggregate net income (or loss) of such
Person for such period determined in accordance with GAAP; provided that the following
items shall be excluded from the calculation of Net Income of such Person and its Subsidiaries, on
a Consolidated basis: (a) the portion of net income (but not losses) of any Subsidiary that is
prohibited by Law or contract from paying dividends and (b) net income of entities in which such
Person has an investment (other than Subsidiaries of such Person) except to the extent such net
income is distributed in cash to such Person or a Subsidiary of such Person.



Non-Consenting Lender: the meaning specified in Subsection 2.14.2 (Replacement of
Lenders).



Non-Defaulting Lender: means, at any time, each Lender that is not a Defaulting
Lender at such time.



Non-Guarantor Ventures: Ventures that do not, pursuant to Section 8.28, become Loan
Parties.



Notes: the promissory notes delivered by the Borrower to the Lenders (including any
successors or assigns thereof) pursuant to this Agreement (including any amendments, modifications
or supplements which may from time to time be created in respect of such notes), and any
replacement promissory notes issued in lieu of the foregoing, including but not limited to, the RC
Notes and the Swing Note.



Obligations: any and all indebtedness, obligations and liabilities of any type or
nature, direct or indirect, absolute or contingent, related or unrelated, due or not due,
liquidated or unliquidated, arising by operation of law or otherwise, now existing or hereafter
arising or created of the Borrower, and/or any Subsidiary of the Borrower, Parent and/or any other
Person, to any Secured Party, related to the Loans, the LC Obligations or (without duplication)
represented by or incurred pursuant or relating to the Loan Documents. Without limiting the
generality of the foregoing, the term “Obligations” shall include:



(a) principal of, and interest on the Loans and the Notes;



(b) any and all other fees, indemnities, costs, obligations and liabilities of the Borrower
and its Subsidiaries from time to time under or in connection with the Loan Documents;



(c) all obligations of the Borrower owing to the Issuing Bank or any Lender under Letters of
Credit or other debt instruments issued by the Issuing Bank or any Lender under the terms of this
Agreement; and



(d) all amounts (including post-petition interest) in respect of the foregoing that would be
payable but for the fact that the obligations to pay such amounts are unenforceable or not
allowable due to the existence of a proceeding under any Debtor Relief Law involving the Borrower
or any of its Subsidiaries.



OFAC: the U.S. Department of Treasury’s Office of Foreign Asset Control.


 


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Officer’s Compliance Certificate: a certificate in the form of Exhibit G.



Organizational Documents: means, with respect to any Person other than a natural
person, the documents by which such Person was organized (such as a certificate of incorporation,
certificate of limited partnership or articles of organization, and including any certificates of
designation for preferred stock or other forms of preferred equity) and which relate to the
internal governance of such Person (such as bylaws, a partnership agreement or an operating,
limited liability or members agreement).



OSHA: the Occupational Safety and Health Act, 29 U.S.C. 651 et seq.



Other Taxes: 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.



Parent: the meaning specified in the preamble to this Agreement.



Parent Suretyship Agreement: the meaning specified in paragraph (b) of Subsection
4.1.4 (Amended and Restated Guaranty and Suretyship Agreements).



Participant: the meaning assigned to such term in Subsection 11.6.4(a)
(Participations).



PATRIOT Act: the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56) (The USA PATRIOT Act).



PBGC: Pension Benefit Guaranty Corporation, or any governmental agency or
instrumentality succeeding to the functions thereof.



Permitted Acquisitions: Acquisitions, for which the aggregate amount of consideration
for all such acquisitions through the Maturity Date does not exceed $250,000,000, subject to
Section 8.30 (Reset Provision) so long as (i) before and after giving effect to any such
Acquisition, the Borrower is in pro forma compliance with the financial covenants set forth in
Article 7 (Financial Covenants) of this Agreement; (ii) the target is engaged primarily in
businesses that are the same as, or reasonably related to, those of the Borrower and its
Subsidiaries; (iii) the Administrative Agent shall have received 5 Business Days’ prior written
notice, and if the Acquisition is for an amount greater than $25,000,000, a copy of the acquisition
agreement, lien searches, a pro forma compliance certificate and such other information,
documentation and opinions as the Administrative Agent may reasonably request, (iv) the Specified
Restricted Use Conditions are satisfied, and (v) the Acquisition is approved by the Borrower’s and
the target’s Board of Directors.


 


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Permitted Business: the business of developing, manufacturing, distributing and
selling medical device technologies for the cardiac, neurology, vascular and orthopaedic markets,
and developing, manufacturing, distributing and selling battery and wireless sensing technologies
for high-end niche applications in the energy, military, portable medical and other markets, and
activities directly related to the foregoing.



Permitted Debenture Refinancing: any amendments to or refinancing of the 2007
Debentures by Parent so long as (a) after giving effect to the amendments and replacements the
Borrower would be in compliance on a pro forma basis with the financial covenants set forth in
Article 7 of this Agreement (Financial Covenants), (b) pursuant to such amendments or replacements,
there is no amortization, maturity, mandatory prepayments or repurchase obligations prior to the
date that is 91 days after the Maturity Date and (c) the Indebtedness under such amendments or
replacements is unsecured and subordinated on terms substantially consistent with the subordination
provisions in the 2007 Debentures or on such other terms as are acceptable to the Administrative
Agent.



Permitted Liens: the meaning specified in Subsection 8.2.1 (In General).



Permitted Perfection Limitations: a limitation on the perfected status of Collateral
to the extent that (a) perfection would require a notation on the records of the issuer of title
(such as motor vehicle titles) and no notation is made; or (b) the laws of a jurisdiction outside
of the United States of America governs the issue of perfection except for Liens on 66% of the
equity of Precimed or (c) the Collateral consists of a securities brokerage or deposit account
maintained with the Administrative Agent or a Lender and perfection is dependent on an account
control agreement provided nothing in this definition shall affect or be deemed to limit
any setoff rights that the Administrative Agent or any Lender shall have with respect thereto.



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



Plan: an “Employee Pension Benefit Plan” (as defined in Section 3(2) of ERISA) or an
“Employee Welfare Benefit Plan” (as defined in Section 3(1) of ERISA) which is maintained, or to
which contributions are, or are required to be, made, by the Borrower, any of its Subsidiaries or
any ERISA Affiliate, except a Multiemployer Plan.



Platform: the meaning specified in Subsection 11.1.4 (Platform).



Pledge Agreement: the meaning specified in Subsection 4.1.5 (Amended and Restated
Pledge Agreements).



Precimed: P Medical Holding SA, a societe anonyme organized and existing under the
laws of Switzerland.



Predecessor Indebtedness: the meaning specified in Subsection 4.1.10 (Repayment of
Existing Indebtedness).


 


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Prohibited Person: any Person:



(a) listed in the Annex to, or is otherwise subject to the provisions of, the Executive Order;



(b) that is owned or controlled by, or acting for or on behalf of, any person or entity that
is listed in the Annex to, or is otherwise subject to the provisions of the Executive Order;



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



(d) that is named as a “specifically designated national (SDN)” on the most current list
published by OFAC at its official website, http://www.treas.gov.ofac/t11sdn.pdf or at any
replacement website or other replacement official publication of such list;



(e) that is covered by IEEPA or OFAC; or



(f) that is an affiliate (including any principal, officer, immediate family member or close
associate) of a Person described in one or more of clauses (a) — (e) of this definition of
Prohibited Person.



Prohibited Transaction: the meaning given to such term in Section 406 of ERISA,
Section 4975(c) of the Code and any Treasury regulations issued thereunder.



QIG: QIG Group, LLC, a Delaware limited liability company and a wholly-owned
Subsidiary of the Borrower.



Quarterly Payment Date: the last Business Day of each March, June, September and
December and the Maturity Date.



RC Loans: the meaning specified in Subsection 2.1.1 (Commitment to Make RC Loans).



RC Note: the meaning specified in Subsection 2.6 (Notes).



RCRA: the Resource Conservation and Recovery Act of 1976, as amended, and any rules
and regulations issued in connection therewith.



Recipient: the meaning specified in Section 8.3 (Investments, Loans, Acquisitions,
Etc.)



Register: the meaning specified in Subsection 11.6.3 (Register).



Related Parties: with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and
representatives of such Person and of such Person’s Affiliates.


 


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Release: a release, spill, emission, leaking, pumping, injection, deposit, disposal,
discharge, dispersal, leaching or migration into the indoor or outdoor environment or into or out
of any property, including the movement of Hazardous Substances through or in the air, soil,
surface water, groundwater or property.



Remedial Action: actions necessary to comply with any Environmental Law or otherwise
required by any Governmental Authority with respect to (a) the investigation, clean up, removal,
treatment or handling Hazardous Substances in the indoor or outdoor environment; (b) the prevention
of Releases or threats of Releases or minimization of further Releases of Hazardous Substances so
they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or
outdoor environment or (c) the performance of pre-remedial studies and investigations and
post-remedial monitoring and care.



Reorganization: any reorganization as defined in Section 4241(a) of ERISA.



Reportable Event: with respect to any Employee Pension Plan, an event described in
Section 4043(c) of ERISA.



Reserve Percentage: the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed on member banks of the Federal Reserve
System against “Euro-currency Liabilities” as defined in Regulation D of the Board of Governors of
the Federal Reserve System (or any successor), as such regulation may be amended from time to time
or any successor regulation, as the maximum reserve requirement (including any basic, supplemental,
emergency, special, or marginal reserves) applicable with respect to Eurocurrency liabilities as
that term is defined in Regulation D (or against any other category of liabilities that includes
deposits by reference to which the interest rate of Eurodollar Loans is determined), whether or not
any Lender has any Eurocurrency liabilities subject to such reserve requirement at that time.



Reset Election Date: the meaning specified in Section 8.30 (Reset Provision).



Restricted Payment: (a) any dividend or other distribution, direct or indirect, on
account of any shares of any class of Capital Stock of the Borrower or any of its Subsidiaries, as
the case may be, now or hereafter outstanding, except a dividend payable solely in shares of
Capital Stock (other than Disqualified Stock) of the Borrower or such Subsidiary, as the case may
be;



(b) any redemption, retirement, purchase or other acquisition, direct or indirect, of any
shares of any class of Capital Stock of the Borrower or any of its Subsidiaries, as the case may
be, now or hereafter outstanding, or of any warrants, rights or options to acquire any such shares
or interests, except to the extent that the consideration therefor consists solely of shares of
Capital Stock (other than Disqualified Stock) of the Borrower or such Subsidiary;



(c) any sinking fund, other prepayment or installment payment on account of any Capital Stock
of the Borrower or any of its Subsidiaries;


 


-22-









 





(d) any other payment, loan or advance to a shareholder or other equity holder of the Borrower
or any Subsidiary of the Borrower whether in the capacity of such Person as a shareholder or
otherwise, except salaries and other compensation, the payment of which is not otherwise restricted
under the Loan Documents, paid in the ordinary course of business, consistent with past practice;



(e) any forgiveness or release without adequate consideration by the Borrower or any
Subsidiary of the Borrower of any Indebtedness or other obligation owing to the Borrower or such
Subsidiary by a shareholder or other equity holder of the Borrower or a Subsidiary of the Borrower;
or



(f) any payment of principal, interest, fees or other amounts in respect of subordinated
Indebtedness.



Revolving Credit Exposure: means, as to any Lender at any time, the aggregate
principal amount at such time of its outstanding Loans and such Lender’s participation in LC
Obligations and Swing Loans at such time.



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/enforcement/ofac/sdn/t11sdn.pdf, or as otherwise published from time
to time.



Sanctioned Person: shall mean (a) a person named on the list of Specially Designated
Nationals or Blocked Persons maintained by OFAC available at
http://www.treas.gov/offices/enforcement/ofac/sdn/t11sdn.pdf, or as otherwise published from time
to time or (b) (i) an agency of the government of a Sanctioned Country; (ii) an organization
controlled by a Sanctioned Country or (iii) a person resident in a Sanctioned Country, to the
extent subject to a sanctions program administered by OFAC.



Secured Obligations: collectively, (a) the Obligations, (b) any Banking Services
Obligations and (c) obligations of any Loan Party under or arising out of Swap Agreements that have
been or will be entered into with any Swap Party (including HSBC to the extent of the HSBC Swap
Obligations) from time to time consistent with the terms of this Agreement.



Secured Party: the Administrative Agent, the Lenders, the Issuing Bank, the
Indemnitees and all other Persons referred to in any of the Loan Documents as a beneficiary of the
security interest granted therein and all other holders of Secured Obligations, including any and
all Swap Parties (including HSBC to the extent related to the HSBC Swap Obligations).



Security Agreement: the meaning specified in Subsection 4.1.3 (Amended and Restated
Security Agreement).



Solvent: a condition of a Person on a particular date, whereby on such date (a) the
fair value of the property of such Person is greater than the total amount of liabilities,
including contingent liabilities, of such Person, (b) the present fair salable value of the assets
of such Person is


 


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not less than the amount that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and
liabilities mature, and (d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person’s property would constitute an
unreasonably small capital. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount that, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.




Specified Restricted Uses: collectively, (a) Permitted Acquisitions; (b) Investments
made pursuant to clause (e) of Section 8.3 (Investments, Loans, Acquisitions, Etc.); (c) Restricted
Payments made pursuant to Subsection 8.4.2 (Permitted Debenture Payments); and (d) Restricted
Payments made pursuant to Subsection 8.4.3 (Permitted Stock Repurchases).



Specified Restricted Use Conditions: with respect to any Specified Restricted Use
each of the following: (a) no Default or Event of Default shall have occurred and be continuing or
caused thereby; (b) there shall be minimum Liquidity of at least $50,000,000 after giving pro forma
effect to the proposed Specified Restricted Use; (c) subject to the Reset Provision, the aggregate
amount expended on all Specified Restricted Uses shall not exceed $250,000,000; and (d) the Total
Leverage Ratio on a pro forma basis after giving effect to the proposed Specified Restricted Use
shall be less than 4.25 to 1.0 at any time on or before December 30, 2011 and less than 3.75 to 1.0
at any time thereafter.



Subsidiary: with respect to any Person (referred to in this definition as the
“parent”),



(a) any other Person of which more than 50% of the issued and outstanding equity having
ordinary voting power to elect a majority of the Board of Directors or other governing body is
directly or indirectly owned or controlled by such parent; or



(b) any other Person of which more than 50% of the voting equity interests are directly or
indirectly owned or controlled by such parent.



For the sake of clarity a Subsidiary of a Person shall include any direct or indirect Subsidiary of
such Person.




Subsidiary Guarantor: each U.S. Subsidiary of the Parent, and such other Foreign
Subsidiaries of the Parent and Ventures as designated by the Borrower from time to time or as are
required to guarantee the Obligations pursuant to Section 8.28 (Certain Obligations Respecting
Subsidiaries).



Subsidiary Suretyship Agreement: the meaning specified in paragraph (a) of Subsection
4.1.4 (Amended and Restated Guaranty and Suretyship Agreements).



Suretyship Agreements: the Parent Suretyship Agreement and the Subsidiary Suretyship
Agreement.


 


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



Swap Party: Swap Party: any party to a Swap Agreement that is a Lender or an
Affiliate of a Lender (or at the time the applicable Swap Agreement was entered into was a Lender
or an Affiliate of a Lender), provided that (a) the Administrative Agent and (so long as no Event
of Default shall have occurred and be continuing a the time of such consent) the Borrower shall
have consented in writing to such Person being a Swap Party (which consent shall not be
unreasonably withheld or delayed) and (b) in the case of any Affiliate, such Affiliate shall have
executed and delivered to the Administrative Agent a joinder to this Agreement (in form and
substance satisfactory to the Administrative Agent) agreeing to be bound by the provisions of this
Agreement respecting the role of the Administrative Agent, including all exculpatory provisions and
indemnification provisions, as if such Affiliate were a Lender hereunder and the obligations under
the Swap Agreement were Obligations hereunder or such other arrangement as Administrative Agent
shall agree to.



Swing Note: the meaning specified in Subsection 2.6 (Notes).



Swingline Lender: M&T so long as it is a Lender, or if M&T is no longer a Lender,
then a Lender designated by the Borrower and acceptable to the Administrative Agent.



Swing Loans: the meaning specified in Subsection 2.2.1 (Swing Loan Advances).



Taxes: all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.



Total Facility: as to any Lender at any time, the unused Commitments and Revolving
Credit Exposure of such Lender at such time.



Total Indebtedness: all Indebtedness of Parent, the Borrower and its Subsidiaries on
a Consolidated basis, other than Indebtedness described in clauses (g) and (h) of the definition of
“Indebtedness” above to the extent such Indebtedness described in clauses (g) and (h) does not, in
accordance with GAAP, appear as a liability on the Consolidated balance sheet of Parent, Borrower
and its Subsidiaries.


 


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Total Leverage Ratio: the ratio of (a) the amount of Total Indebtedness less cash and
Cash Equivalents in a maximum aggregate amount of $30,000,000 to (b) Adjusted EBITDA.



Unreimbursed Drawings: drawings made under Letters of Credit which, for any reason,
have not been reimbursed by or on behalf of the Borrower, whether through borrowings of Loans
hereunder or otherwise.



U.S. Subsidiary: any Subsidiary is organized under the laws of the United States of
America, any State thereof or the District of Columbia; provided, however, no
Non-Guarantor Venture shall be considered a U.S. Subsidiary.



Venture: a Person in which GB Ventures and QIG, individually or collectively, own a
majority or controlling interest of its Capital Stock.



Withdrawal Liability: any withdrawal liability as defined in Section 4201 of ERISA.



1.2 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.” Unless the context requires otherwise (a)
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 from time to time
amended, supplemented or otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (b) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and
“hereunder,” and words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement, (e) any reference to any Law or regulation herein shall,
unless otherwise specified, refer to such Law or regulation as amended, modified or supplemented
from time to time and (f) the words “asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.


 


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ARTICLE 2




THE LOANS



2.1 REVOLVING CREDIT LOANS.



2.1.1 Commitment to Make RC Loans. Subject to, and upon the terms and conditions set forth in
this Agreement, the Lenders shall make advances to the Borrower until the Maturity Date in an
aggregate principal amount outstanding at any one time not to exceed Four Hundred Million Dollars
($400,000,000) (as the same may be increased or reduced pursuant to the terms of this Agreement,
the “Commitment”); provided, however, that (a) the aggregate amount of the
Commitment available for borrowing at any time shall not exceed the Available Commitment at such
time; and (b) the amount and percentage of the Commitment and the Available Commitment which each
Lender is obligated to lend shall not exceed at any time the amount or percentage set forth in the
Lender Addendum for such Lender (as supplemented and amended by giving effect to the assignments
contemplated by this Agreement). The Commitment of any Lender is sometimes referred to herein as
such Lender’s Commitment. Within the limits set forth above, the Borrower may borrow under this
Section 2.1, repay or prepay such advances, and reborrow under this Section 2.1. The amounts
loaned to the Borrower pursuant to the revolving credit facility described in this Section 2.1 are
referred to as the “RC Loans.”



2.1.2 Available Commitment. “Available Commitment” shall mean the initial Commitment,
as the same is reduced or increased (as provided in clause (e) below) by:



(a) voluntary reductions in the Commitment pursuant to Subsection 2.1.3 (Voluntary Commitment
Reductions);



(b) mandatory reductions in the Commitment pursuant to Subsection 2.1.4 (Mandatory Prepayments
and Reductions in the Facility);



(c) the amount of LC Obligations;



(d) the aggregate principal amount of any outstanding Swing Loans and RC Loans; and



(e) increases in the Commitment pursuant to Subsection 2.1.8 (Increases in Facility).



2.1.3 Voluntary Commitment Reductions. The Borrower shall have the right at any time and from
time to time upon five (5) Business Days’ prior written notice to the Administrative Agent to
permanently reduce (on a pro rata basis among the Lenders) or terminate the Commitment. Any
partial reductions shall be in minimum amounts of Five Million Dollars ($5,000,000) and in whole
multiples of One Million Dollars ($1,000,000) in excess of such minimum amount.



2.1.4 Mandatory Prepayments and Reductions in the Facility. The amount of the credit facility
under this Agreement shall reduce at the times and in the amounts specified below. The reductions
shall permanently reduce the Commitment (with a corresponding reduction in the amount of the RC
Loans whether or not there shall then be any Available Commitment). Each such payment of Loans
shall be subject Subsection 2.8.5 (Breakage) and shall be accompanied by accrued interest to the
date of such prepayment if the Loans are repaid in full. Nothing in this Subsection 2.1.4 shall be
construed to constitute the Administrative
Agent’s or any Lender’s consent to any transaction that is not permitted by other provisions
of this Agreement or the other Loan Documents.


 


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(a) Issuance of Debt. At any time that Parent, the Borrower or any of its
Subsidiaries shall incur any Indebtedness (exclusive of (i) Indebtedness permitted under clauses
(a) through (f) of Subsection 8.1.1 (In General), and (ii) to the extent that the principal amount
of any Permitted Debenture Refinancing does not exceed the principal amount of the 2007 Debentures,
any Permitted Debenture Refinancing), Borrower shall prepay, on the date of such incurrence
thereof, such amount of the Loans as is equal to one hundred percent (100%) of the net cash
proceeds of such Indebtedness. Amounts so paid shall serve to permanently reduce the amount of the
Commitment.



(b) Issuance of Equity. At any time that (i) the Borrower or any of its Subsidiaries
shall issue any equity (exclusive of equity issued to the Borrower or any of its Subsidiaries), or
(ii) Parent shall issue any equity (exclusive of common equity of Parent issued to finance
Permitted Acquisitions or pursuant to any employee stock based compensation plans), the Borrower
shall prepay, on the date of such issuance thereof, such amount of the Loans as is equal to fifty
percent (50%) of the net cash proceeds of such equity; provided, however, that so
long as no Default or Event of Default exists at the time of the issuance of Capital Stock of a
Venture or would exist immediately after giving effect thereto, the Borrower shall not be obligated
to make any prepayment of the Loans in connection with the issuance of Capital Stock of a
Non-Guarantor Venture. Amounts so paid shall serve to reduce the amount of the Commitment.



(c) Material Recovery Event. In the event Parent, the Borrower or any of its
Subsidiaries (or the Administrative Agent as loss payee or assignee) receives property or casualty
insurance proceeds and/or a condemnation or similar payment (relating to one event, condition or
transaction or a series of related events, conditions or transactions),



(i) in an amount in excess of Twenty Five Million Dollars ($25,000,000) per occurrence, unless
the Majority Lenders specifically consent to the use of such proceeds or other payment by the
Borrower or the applicable Subsidiary;



(ii) in a lesser amount, if such Person does not, in fact, use the proceeds to repair or
replace the applicable property within 180 days of receipt of such proceeds; or



(iii) at the request of the Majority Lenders, in any amount if there is then an Event of
Default that has occurred and is continuing,



the Borrower shall promptly, and in any event no later than five (5) Business Days from the date of
receipt thereof pay to the Administrative Agent, for the ratable benefit of the Lenders, one
hundred percent (100%) of all such insurance proceeds or payments as a prepayment of the Loans.
Amounts so paid shall serve to reduce the amount of the Commitment.




 


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(d) Certain Asset Dispositions. At any time that Parent, the Borrower or any of its
Subsidiaries sells, transfers or otherwise disposes of any of its assets or property
(other than dispositions permitted under clauses (a), (b) and (c) of Subsection 8.7.2 (Sales
and Other Dispositions)), the Borrower shall promptly prepay such amount of the Loans as is equal
to the net cash proceeds of such disposition. If any proceeds are received in a form other than
cash and subsequently converted into cash, then such proceeds shall be treated as net cash proceeds
for purposes of this clause (d) at such time as they are converted into cash. Notwithstanding the
foregoing, so long as no Event of Default or Default is then existing, and the Borrower notifies
the Administrative Agent of its intent to do so at the time of receipt thereof, the Borrower may
use the net cash proceeds of such dispositions to reinvest in like assets not prohibited by the
terms of this Agreement made within 180 days after receipt of the net cash proceeds provided,
however, that if the assets disposed of are held by the Borrower or a Subsidiary Guarantor, then
the like assets shall also be held by the Borrower or a Subsidiary Guarantor. If the Borrower does
not so notify the Administrative Agent, it shall prepay the Loans within five (5) Business Days of
receipt of the proceeds. If the Borrower does so notify the Administrative Agent, but the Borrower
fails to use the net cash proceeds to reinvest in like assets within said 180-day period, then the
Borrower shall prepay the Loans on the date that is 180 days after the date of receipt of the net
cash proceeds. Nothing in this paragraph shall be construed to permit dispositions otherwise
prohibited by this Agreement. Amounts paid pursuant to this clause (d) other than from proceeds of
sales of Capital Stock or assets of any Non-Guarantor Ventures shall serve to permanently reduce
the amount of the Commitment.



2.1.5 Repayment in connection with Commitment Reductions and on Maturity Date. Upon the
effective date of each reduction in the Commitment referred to in this Section 2.1 (whether
voluntary or mandatory), the Borrower shall be required to pay to the Administrative Agent for the
benefit of the Lenders the principal amount of the Loans and/or Swing Loans, to the extent, if any,
that (a) the aggregate principal amount of any Loans and Swing Loans then outstanding plus LC
Obligations exceeds (b) the amount of the Available Commitment as so reduced. All amounts of
principal, interest and fees relating to RC Loans not due and payable before the Maturity Date are
due and payable on that date.



2.1.6 Voluntary Prepayment. The Borrower shall be permitted to prepay the RC Loans at any
time without penalty or premium except as otherwise provided in Subsection 2.8.5 (Breakage). In
connection with each voluntary prepayment:



(a) The Borrower shall provide the Administrative Agent with notice of its intention to
prepay,



(i) no later than 11:00 a.m. (New York, NY time) on the date of prepayment in the case of Base
Rate Loans; and



(ii) no later than 11:00 a.m. (New York, NY time) three (3) Business Days prior to the date of
prepayment in the case of LIBOR Loans.



(b) Each prepayment of principal of an RC Loan shall be in an amount equal to the then full
outstanding amount thereof or in a minimum amount equal to One Million Dollars ($1,000,000) and
integral multiples of Five Hundred Thousand Dollars ($500,000) in excess of such minimum amount.


 


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(c) The Borrower shall pay accrued interest on the amount prepaid if the Loans are repaid in
full.



2.1.7 Relationship of Commitment Reductions, Mandatory Prepayments and Voluntary Prepayments
to Interest Rate Protection Agreements. Any voluntary reductions to the Commitment made pursuant
to Subsection 2.1.3 (Voluntary Commitment Reductions), mandatory reductions to the Commitment made
pursuant to Subsections 2.1.4 (Mandatory Prepayments and Reductions in the Facility) or voluntary
prepayments of RC Loans pursuant to Subsection 2.1.6 (Voluntary Prepayment) shall not affect the
Borrower’s obligation to continue making payments under any Interest Rate Protection Agreement with
any Swap Party, which obligations shall remain in full force and effect notwithstanding such
prepayment, subject to the terms of such Interest Rate Protection Agreement.



2.1.8 Increases in Facility.



(a) Provided there exists no Default or Event of Default and the Borrower is in compliance
with the terms of this Agreement, the Borrower shall have the right at any time and from time to
time, upon five (5) Business Days’ prior written notice to the Administrative Agent to request an
increase in the Commitment provided that (i) the aggregate amount of all such increases shall not
exceed Two Hundred Million Dollars ($200,000,000); (ii) each increase shall be in a minimum amount
of at least Twenty Million Dollars ($20,000,000) and (iii) the Borrower may make a maximum of four
(4) such requests.



(b) No Lender shall be required to increase the amount of its Commitment, and no Lender shall
be deemed to have increased the amount of its Commitment except pursuant to a writing signed by
such Lender. In the event that the existing Lenders do not agree to increase their Commitments in
an amount equal to the amount requested by the Borrower, to achieve the full amount of a requested
increase and subject to the approval of the Administrative Agent (which approvals shall not be
unreasonably withheld), the Borrower may also invite additional Eligible Assignees to become
Lenders pursuant to a joinder or other agreement in form and substance satisfactory to the
Administrative Agent and its counsel.



(c) If the Commitment is increased in accordance with this Subsection 2.1.8 (Increases in
Facility), the Administrative Agent and the Borrower shall determine the effective date (the
“Effective Date”) and the Administrative Agent shall determine the final allocation of such
increase.



(d) As a condition precedent to such increase, (i) the Borrower shall deliver to the
Administrative Agent a certificate of each Loan Party dated as of the Effective Date (in sufficient
copies for each Lender) signed by a duly authorized officer of such Loan Party (A) certifying and
attaching the resolutions adopted by such Loan Party approving or consenting to such increase and
(B) in the case of the Borrower, certifying that, before and after (on a pro forma basis) giving
effect to such increase (1) the representations and warranties contained in Article 5
(Representations and Warranties) and the other Loan Documents are true and correct in all material
respects on and as of the Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true and correct in all
material respects as of such earlier date, and (2) no Default or Event of Default


 


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exists; (ii) counsel for the Borrower shall have provided to the Administrative Agent a
supplemental opinion in form and substance reasonably satisfactory to the Administrative Agent;
(iii) the Borrower shall have delivered to each Lender an amended Form U-1 which shall be executed
by the Borrower and completed to the satisfaction of the Administrative Agent, and which shall
include a current list of the Collateral supporting the credit extended under this Agreement; (iv)
the Borrower shall have executed and delivered such other instruments and documents as the
Administrative Agent shall have reasonably requested in connection with such increase and (v)
Eligible Assignees that are to become Lenders pursuant to paragraph (b) above shall have executed
such joinder or other documents as the Administrative Agent shall reasonably request.




2.2 SWING LOANS.



2.2.1 Swing Loan Advances. Upon the terms and subject to the conditions of this Agreement,
the Swingline Lender may (but is not obligated to) make, from time to time, from and including the
Closing Date to but excluding the Maturity Date, one or more Loans (“Swing Loans”) to the
Borrower, in an aggregate outstanding principal amount not exceeding at any time Fifteen Million
Dollars ($15,000,000); provided, however, that no Swing Loan shall be made at any time in
an amount in excess of the Available Commitment.



2.2.2 Terms of Swing Loan Borrowings. The Borrower shall give the Swingline Lender notice
(which shall be irrevocable) of a request for a Swing Loan no later than 12:00 noon (New York, NY
time) on the day such Loan is requested; if such notice is received later than 12:00 noon (New
York, NY time), then the request shall be deemed to be a request for a Swing Loan to be made on the
next Business Day. Each Swing Loan shall be in a principal amount equal to or greater than Two
Hundred Thousand Dollars ($200,000) and shall bear interest at the Base Rate plus the Applicable
Margin. The Borrower shall repay the principal amount of each Swing Loan (together with all
accrued interest) no later than 3:00 p.m. (New York, NY time) on the earliest of (a) the date that
is five (5) Business Days after the date that such Loan is made; (b) the date that demand is made
therefor by the Swingline Lender and (c) the Maturity Date. However, nothing in this Subsection
2.2.2 shall prohibit the Borrower from repaying any Swing Loan with the proceeds of another Swing
Loan that it may borrow hereunder.



2.2.3 Participation by Lenders. Upon demand made to the Lenders by the Swingline Lender,
which demand may be made before or after an Event of Default or Default, and before or after the
maturity date of the subject Swing Loans, but subject to the provisions of Subsection 2.2.5
(Certain Limitations), each Lender shall promptly, irrevocably and unconditionally purchase from
the Swingline Lender, without recourse or warranty, an undivided interest and participation in the
Swing Loans then outstanding. Each Lender shall effect such purchase by paying to the Swingline
Lender in immediately available funds, without reduction or deduction of any kind, including
reductions or deductions for set-off, recoupment or counterclaim, an amount equal to such Lender’s
pro rata share of the principal amount of all Swing Loans then outstanding. Each Lender’s pro rata
share of the Swing Loans shall be based on the amount of such Lender’s pro rata share of the total
RC Commitment (or if the RC Commitment is then terminated, based on the amount of such RC Lender’s
pro rata share of the total RC Commitment at the time the Swing Loan immediately prior to
termination of the RC


 


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Commitment). Thereafter, the Lenders’ respective interests in such Swing Loans, and the
remaining interest of the Swingline Lender in such Swing Loans, shall in all respects be treated as
RC Loans under this Agreement, except that such Swing Loans shall be due and payable by the
Borrower on the dates referred to in Subsection 2.2.2 (Terms of Swing Loan Borrowings).




If any Lender does not pay any amount which it is required to pay pursuant to this Subsection
2.2.3 promptly upon the Swingline Lender’s demand therefor, (a) the Swingline Lender shall be
entitled to recover such amount on demand from such Lender, together with interest thereon, at the
Federal Funds Rate for the first three (3) Business Days, and thereafter at the Base Rate, for each
day from the date of such demand, if made prior to 2:00 p.m. (New York, NY time) on any Business
Day, or, if made at any later time, from the next Business Day following the date of such demand,
until the date such amount is paid in full to the Swingline Lender by such Lender and (b) the
Swingline Lender shall be entitled to all interest payable by the Borrower on such amount until the
date on which such amount is received by the Swingline Lender from such Lender. Moreover, any
Lender that shall fail to make available the required amount shall be a Defaulting Lender until
such amount with interest is paid in full to the Swingline Lender by such Lender. Without limiting
any obligations of any Lender pursuant to this Subsection 2.2.3, if any Lender does not pay such
corresponding amount promptly upon the Swingline Lender’s demand therefor, the Swingline Lender
shall notify the Borrower and the Borrower shall promptly repay such corresponding amount to the
Swingline Lender together with accrued interest thereon at the applicable rate on such Swing Loans.



2.2.4 No Set-off, Etc. Subject only to the limitations set forth in Subsection 2.2.5 (Certain
Limitations), the obligations of each Lender to make available to the Swingline Lender the amounts
set forth in Subsection 2.2.3 (Participation by Lenders) shall be absolute, unconditional and
irrevocable under any and all circumstances, shall be without reduction for any set-off or
counterclaim of any nature whatsoever, may not be terminated, suspended or delayed for any reason
whatsoever, shall not be subject to qualification or exception and shall be made in accordance with
the terms of this Agreement.



2.2.5 Certain Limitations. No Lender shall be obligated to purchase a participation in any
Swing Loan pursuant to Subsection 2.2.3 (Participation by Lenders), if such Lender proves that (a)
the conditions set forth in Subsections 4.2.1 (No Default) or 4.2.3 (Representations and
Warranties) were not satisfied at the time such Swing Loan was made (unless such condition was
waived in accordance with the terms of this Agreement) and (b) such Lender had notified the
Swingline Lender in a writing received by the Swingline Lender at least one (1) Business Day prior
to the time that it made such Swing Loan that the Swingline Lender was not authorized to make such
Swing Loan because such conditions were not satisfied and stating with specificity the reason
therefor.



2.2.6 Resignation of Swingline Lender. The Swingline Lender may resign at any time by giving
30 days’ prior notice to the Administrative Agent, the Lenders and the Borrower, so long as the
Swingline Lender uses commercially reasonable efforts to have a new Swingline Lender designated
prior to the expiration of such notice period and such new Swingline Lender agrees to assume the
responsibilities of the Swingline Lender upon such expiration. After the resignation of the
Swingline Lender hereunder, the retiring Swingline Lender shall remain a party hereto and shall
continue to have all the rights and obligations of a
Swingline Lender under this Agreement and the other Loan Documents with respect to Swing Loans
made by it prior to such resignation, but shall not be required to make any additional Swing Loans.


 


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2.3 BORROWING NOTICE.



Each RC Loan that is a Base Rate Loan shall be in the minimum amount of Two Million Dollars
($2,000,000) and integral multiples of Five Hundred Thousand Dollars ($500,000) in excess of such
minimum amount. Each RC Loan that is a LIBOR Loan shall be in the minimum amount of Two Million
Dollars ($2,000,000) and integral multiples of Five Hundred Thousand Dollars ($500,000) in excess
of such amount. To effect a funding, the Borrower shall give the Administrative Agent written
notice in the form attached to this Agreement as Exhibit B specifying the type, amount and
date of each intended borrowing and the manner in which the same shall be disbursed, which notice:



(a) in the case of RC Loans that are Base Rate Loans, shall be given no later than 11:00 a.m.
(New York, NY time) at least one (1) Business Day prior to the date of such borrowing;



(b) in the case of LIBOR Loans, shall be given no later than 11:00 a.m. (New York, NY time) at
least three (3) Eurodollar Business Days prior to the date of such borrowing and shall specify the
Interest Period with respect to such borrowing; and



(c) in the case of Swing Loans, shall be given no later than 12:00 noon (New York, NY time) on
the date of such borrowing.



Notwithstanding the foregoing, the Administrative Agent may (but is not obligated to) act upon
telephone notice by the Borrower whether or not written notice is received; provided
nothing in this sentence shall relieve the Borrower from providing written notice as provided by
this Section.




Except in the case of Swing Loans, the Administrative Agent in turn shall give prompt written
or telephonic (promptly confirmed in writing) notice to each Lender of its pro rata share of the
borrowing, the interest rate option selected and the scheduled date of the funding. After receipt
of such notice, each Lender shall make such arrangements as are necessary to assure that its share
of the funding shall be immediately available (in Dollars) to the Administrative Agent no later
than 2:30 p.m. (New York, NY time), on the date on which the funding is to occur. After receipt of
the funds, the Administrative Agent, subject to the satisfaction of the conditions precedent set
forth in Section 4.2 (Requirements for Each Loan/Letter of Credit), shall disburse the amount of
such funding in accordance with instructions in the Borrower’s borrowing notice.



The Lenders shall not be obligated to comply with a borrowing notice if there shall then exist
an Event of Default or a Default regardless of whether the Lenders have determined to exercise
their remedies arising upon the occurrence of such Event of Default or Default.


 


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2.4 [RESERVED].



2.5 LENDERS’ OBLIGATIONS SEVERAL.



Each Lender is severally bound by this Agreement, but there shall be no joint obligation of
the Lenders under this Agreement. The failure of any Lender to make any share of the Loans or
fulfill any obligations respecting Letters of Credit to be made or fulfilled by it on the date
specified for the Loans or such obligations shall not relieve any other Lender of its obligation to
make its share of the Loans or fulfill other obligations on such date, but neither any Lender nor
the Administrative Agent shall be responsible for the failure of any other Lender to make a share
of the Loans or fulfill other obligations to be made or fulfilled by such other Lender.



2.6 NOTES.



Upon the request of any Lender, the aggregate principal amount of each Lender’s share of the
Commitment and RC Loans shall be evidenced by an amended and restated note to be issued by the
Borrower to each Lender in substantially the form attached to this Agreement as Exhibit A-1
(each, a “RC Note” and collectively, the “RC Notes”). Upon the request of the
Swingline Lender, the Swing Loans and commitment therefor shall be evidenced by an amended and
restated note to be issued by the Borrower to the Swingline Lender in substantially the form
attached to this Agreement as Exhibit A-2 (the “Swing Note”). Upon receipt of (a)
an affidavit of an officer of a Lender as to the loss, theft, destruction or mutilation of any
Note, and in the case of any such mutilation, upon cancellation of such Note, and (b) an
appropriate indemnification agreement, the Borrower will issue, in lieu thereof, a replacement
Note.



2.7 FEES TO LENDERS.



2.7.1 Commitment Fees.



(a) The Borrower shall pay to the Administrative Agent, for the account of the Lenders,
quarterly in arrears on each Quarterly Payment Date a commitment fee (the “Commitment Fee”)
(calculated on the basis of a 360-day year for the actual days elapsed) equal to the Commitment Fee
Rate multiplied by the Commitment Fee Base determined on an average daily basis.



(b) The term “Commitment Fee Rate” shall mean the following:



The Commitment Fee Rate shall be 0.250% from the date hereof until five (5) Business Days
after the delivery of the Officer’s Compliance Certificate for the period ending June 30, 2011
pursuant to Subsection 6.1.3 (Delivery of Officer’s Compliance Certificates). Thereafter, the
Commitment Fee Rate shall be the rate specified below based on the Borrower’s Total Leverage Ratio
as reflected in the most recently delivered Officer’s Compliance Certificate:



	 	 	 
	Total Leverage Ratio	 	Commitment Fee Rate
	≥ 2.00
	 	0.250%
	x < 2.00
	 	0.175%





 


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The Commitment Fee Rate shall be adjusted five (5) Business Days after each Officer’s
Compliance Certificate is delivered pursuant to Subsection 6.1.3 (Delivery of Officer’s Compliance
Certificates); provided, however, at any time that the Borrower shall have not delivered
such certificate at the time specified in Subsection 6.1.3 (Delivery of Officer’s Compliance
Certificates), until such time as such certificate is so delivered to the Administrative Agent, the
Commitment Fee Rate shall be 0.250%.



(c) “Commitment Fee Base” means an amount at any time equal to (i) the Commitment
less (ii) the sum of the aggregate principal amount of outstanding RC Loans, the face
amount of outstanding Letters of Credit and any Unreimbursed Drawings in respect of Letters of
Credit. Outstanding Swing Loans shall not reduce the Commitment Fee Base.



(d) Notwithstanding the foregoing, if, as a result of any restatement of or other adjustment
to the financial statements of the Borrower or for any other reason, the Borrower or the Majority
Lenders determine that (i) the Total Leverage Ratio as calculated by the Borrower as of any
applicable date was inaccurate and (ii) an accurate calculation of the Total Leverage Ratio would
have resulted in higher pricing for such period, the Borrower shall immediately and retroactively
be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly
on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under Debtor Relief Laws, automatically and without
further action by the Administrative Agent, any Lender or the Issuing Bank), an amount equal to the
excess of the amount of interest and fees that should have been paid for such period over the
amount of interest and fees actually paid for such period. This clause (d) shall not limit the
rights of the Administrative Agent, any Lender or the Issuing Bank, as the case may be, under
Article 3 (Letters of Credit), Section 2.8 (Interest) or under Article 9 (Events of Default). The
Borrower’s obligations under this paragraph shall survive the termination of the Commitments and
the repayment of all other Obligations hereunder.



2.7.2 Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of the Issuing Bank and/or Lenders, as applicable, such letter of credit fees as are
described in Article 3 (Letters of Credit).



2.7.3 Other Fees. The Borrower shall pay such other fees, if any, as the Borrower has
otherwise agreed to pay to the Administrative Agent, the Issuing Bank, and/or the Lenders.



2.8 INTEREST.



2.8.1 Rates. The Loans (other than Swing Loans) shall bear interest at the Borrower’s option
(subject to the limitation and conditions set forth in this Section 2.8) at the Base Rate plus the
Applicable Margin or at the Adjusted LIBOR plus the Applicable Margin. Interest on Base Rate Loans
shall be payable monthly on the first day of the month, in arrears, commencing with the Month
following the Month in which the Closing Date occurs. Interest on LIBOR Loans shall be payable on
the last day of each Interest Period; provided, that if the Interest Period is six Months
or longer, interest shall be payable on the ninetieth day of the Interest Period, every ninetieth
day thereafter until the end of the Interest Period and on the last


 


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day of the Interest Period. Swing Loans shall bear interest at the Base Rate plus the
Applicable Margin on Base Rate Loans; accrued interest on Swing Loans shall be payable at the
earlier of (a) the date the principal amount of such Swing Loans are payable and (b) on the first
day of each month, in arrears. All computations of interest shall be made on the basis of a
360-day year and the actual number of days elapsed. Changes in the rate of interest
resulting from changes in the Base Rate shall take place immediately without notice or demand of
any kind.




2.8.2 Applicable Margin. Except as set forth in Subsection 2.8.3 (Adjustments to Applicable
Margin), (a) the term “Applicable Margin” when used with respect to the Base Rate shall
mean the following:



	 	 	 
	Total Leverage Ratio	 	Base Rate Applicable Margin
	(Calculated on a Trailing Four-Quarter Basis)	 	for Loans
	≥ 4.00
	 	1.000%
	3.00 ≤ x < 4.00
	 	0.500%
	2.50 ≤ x < 3.00
	 	0.250%
	2.00 ≤ x < 2.50
	 	0.000%
	1.00 ≤ x < 2.00
	 	0.000%
	x < 1.00
	 	0.000%






 


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and (b) the term “Applicable Margin” when used with respect to Adjusted LIBOR
shall mean the following:



	 	 	 
	Total Leverage Ratio	 	Adjusted LIBOR
	(Calculated on a Trailing Four-Quarter Basis)	 	Applicable Margin for Loans
	≥ 4.00
	 	3.000%
	3.00 ≤ x < 4.00
	 	2.500%
	2.50 ≤ x < 3.00
	 	2.000%
	2.00 ≤ x < 2.50
	 	1.750%
	1.00 ≤ x < 2.00
	 	1.625%
	x < 1.00
	 	1.500%






2.8.3 Adjustments to Applicable Margin. From the Closing Date until five (5) Business Days
after the financial statements and Officer’s Compliance Certificate for the period ending June 30,
2011 are delivered to the Administrative Agent pursuant to Subsection 6.1.3 (Delivery of Officer’s
Compliance Certificates), the Applicable Margins shall be 0.250% for Base Rate Loans and 2.00% for
LIBOR Loans. Thereafter, the Applicable Margin shall be adjusted five (5) Business Days after the
delivery of each Officer’s Compliance Certificate most recently delivered pursuant to Subsection
6.1.3 (Delivery of Officer’s Compliance Certificates); provided, however, at any time that
the Borrower shall have not delivered such certificate at the time specified in Subsection 6.1.3
(Delivery of Officer’s Compliance Certificates), until such time as such certificate is so
delivered to the Administrative Agent, the Applicable Margin shall be the maximum amount for the
applicable type of Loan set forth above and, provided further, if the Borrower
incorrectly reports or calculates the Leverage Ratio, the Administrative Agent or the Majority
Lenders, in its or their sole discretion, may change interest retroactively based on the Applicable
Margin that should have been in effect for such period that the Leverage Ratio was incorrectly
reported or calculated. The foregoing shall not limit any rights of the Lenders to receipt of the
Default Rate, if applicable.



Notwithstanding the foregoing, if, as a result of any restatement of or other adjustment to
the financial statements of the Borrower or for any other reason, the Borrower or the Majority
Lenders determine that (i) the Total Leverage Ratio as calculated by the Borrower as of any
applicable date was inaccurate and (ii) an accurate calculation of the Total Leverage Ratio would
have resulted in higher pricing for such period, the Borrower shall immediately and retroactively
be obligated to pay to the Administrative Agent for the account of the applicable Lenders, promptly
on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under Debtor Relief Laws, automatically and without
further action by the Administrative Agent, any Lender or the Issuing Bank), an amount equal to the
excess of the amount of interest and fees that should have been paid for such period over the
amount of interest and fees actually paid for such period. This


 


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paragraph shall not limit the
rights of the Administrative Agent, any Lender or the Issuing Bank,
as the case may be, under Article 3 (Letters of Credit), this Section 2.8 (Interest) or under
Article 9 (Events of Default). The Borrower’s obligations under this paragraph shall survive the
termination of the Commitments and the repayment of all other Obligations hereunder.



2.8.4 LIBOR Election.



(a) Unless otherwise elected by the Borrower, all Loans shall be Base Rate Loans. The
Borrower may, upon at least three (3) Eurodollar Business Days’ prior written notice to the
Administrative Agent in the form attached to this Agreement as Exhibit C, and subject to
and upon the terms and conditions set forth in this Agreement, elect to borrow money that will bear
interest based on Adjusted LIBOR plus the Applicable Margin or to convert a portion of the Loans to
bear interest based on Adjusted LIBOR plus the Applicable Margin. Any such election may be made
with respect to a principal amount designated in such notice and equal to at least Two Million
Dollars ($2,000,000) and integral multiples of Five Hundred Thousand Dollars ($500,000) in excess
of such minimum, for the Interest Period next ensuing, which shall equal one, two, three, or six
Months as designated by the Borrower in its notice.



(b) The Borrower may not convert any outstanding Loans to LIBOR Loans if at the time of such
conversion there shall exist a Default or an Event of Default.



(c) If an interest rate based on Adjusted LIBOR plus the Applicable Margin is elected, such
interest rate shall remain in effect for the Interest Period selected and such interest rate shall
not otherwise be converted to another interest rate prior to the expiration of the Interest Period
except as otherwise required by this Subsection 2.8.4. If an Interest Period for any LIBOR Loan
would otherwise commence on a day which is not a Eurodollar Business Day, such Interest Period
shall commence on the next Eurodollar Business Day.



(d) Each LIBOR Loan shall, on the last day of the applicable Interest Period, automatically
convert into a Base Rate Loan unless, at least three (3) Eurodollar Business Days prior thereto,
the Administrative Agent has received a notice in the form attached hereto as Exhibit C
that the Borrower has elected to continue such Loan as a LIBOR Loan.



(e) The Borrower may not elect an interest rate based on Adjusted LIBOR if such election would
require the Administrative Agent to administer concurrently a combination of elective rates of
interest based on Adjusted LIBOR and/or a combination of Interest Periods that exceed an aggregate
of six.



(f) No Interest Period may be elected that would end later than the Maturity Date.



2.8.5 Breakage. In the event that the Borrower makes a prepayment (whether voluntary or
mandatory) of any LIBOR Loans on a day other than the last day of the applicable Interest Period,
including any such prepayment as a result of an assignment required by Subsection 2.14.2
(Replacement of Lenders), or fails to borrow a LIBOR Loan, or fails to convert a Loan to a LIBOR
Loan on the date specified in the applicable notice, the Borrower will pay to the Administrative
Agent, upon demand, for the account of the affected Lenders, any cost, loss or expense incurred as
a result thereof. Each affected Lender shall certify the amount of
such cost, loss or expense to the Borrower, which certification and statement shall be
conclusive in the absence of manifest error.


 


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2.8.6 Default Rate. Anything in this Agreement to the contrary notwithstanding, upon the
occurrence and during the continuance of an Event of Default (whether or not the Administrative
Agent has accelerated payment of the Notes), upon notice from the Administrative Agent, which may
be retroactive to the Event of Default, the unpaid principal of the Loans, Letter of Credit Fees
and all reimbursement obligations in respect of Letters of Credit shall bear interest at the
interest rate otherwise in effect plus two percent (2%) (the “Default Rate”).



2.8.7 Source of Funds. Although each Lender may elect to purchase in the London Inter-Bank
Eurocurrency Market one or more Eurodollar Deposits in order to fund or maintain its funding of
LIBOR Loans hereunder, it is acknowledged that the provisions of this Agreement relating to such
funding are included only for the purpose of determining the rate of interest to be paid and any
other amounts owing under this Agreement in connection with such election, and each Lender shall be
entitled to fund and maintain its funding of all or any part of that portion of the principal
amount of the Loans in any manner it sees fit. Nonetheless, all such determinations shall be made
as if each Lender had actually funded and maintained its LIBOR Loans through the purchase of
Eurodollar Deposits.



2.8.8 Interest Due with Certain Repayments and Prepayments. In addition to payments of
accrued interest as provided in Subsection 2.8.1 (Rates), accrued interest on the following
repayments and prepayments shall be due and payable at the time of such repayments and prepayments:



(a) all repayments and prepayments of Swing Loans; and



(b) all repayments and prepayments of RC Loans on the Maturity Date (whether such date is the
originally contemplated Maturity Date, a later date on which the Commitment is extended or an
earlier date on which the Commitment is terminated)



it being understood that this Subsection 2.8.8 does not interfere with the obligation of the
Borrower pursuant to Subsection 2.8.5 (Breakage) with respect to any such repayment or prepayment.




2.9 INCREASED COSTS; UNAVAILABILITY.



2.9.1 Increased Costs Generally. If any Change in Law shall:



(a) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance
charge or similar requirement against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve requirement reflected in the
Adjusted LIBOR) or the Issuing Bank;



(b) 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 LIBOR Loan
made by it, or change the basis of taxation of payments to such


 


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Lender or the Issuing Bank in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 2.13 (Taxes) and the imposition of, or any change in the rate of, any Excluded
Tax payable by such Lender or the Issuing Bank); or



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



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



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



2.9.3 Certificates for Reimbursement. A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the Issuing Bank or its holding
company, as the case may be, as specified in Subsections 2.9.1 (Increased Costs Generally) or 2.9.2
(Capital Requirements) and delivered to the Borrower shall be conclusive absent manifest error.
The Borrower shall pay such Lender or the Issuing Bank, as the case may be, the amount shown as due
on any such certificate within ten (10) days after receipt thereof.



2.9.4 Delay in Requests. Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section 2.9 shall not constitute a waiver of such Lender’s or
the Issuing Bank’s right to demand such compensation; provided, that the Borrower shall not
be required to compensate a Lender or the Issuing Bank pursuant to this


 


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Section 2.9 for any increased costs incurred or reductions suffered more than nine months
prior to the date that such Lender or the Issuing Bank, as the case may be, notifies the Borrower
of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the
Issuing Bank’s intention to claim compensation therefor (except that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the nine-month period referred to
above shall be extended to include the period of retroactive effect thereof).



2.9.5 Inability to Determine LIBOR. In the event that the Administrative Agent or the
Majority Lenders shall have determined that for any reason it has become impossible or
impracticable to determine the Adjusted LIBOR (or the Adjusted LIBOR for any specified Interest
Periods), the Administrative Agent shall promptly give notice of such determination to the
Borrower. In that case, no part of the Loans shall thereafter be available at the Adjusted LIBOR
(or at the Adjusted LIBOR for the specified Interest Period) until the Administrative Agent
determines that the circumstances described above cease to exist.



2.9.6 Laws Affecting LIBOR Availability. If any Lender shall determine that it has become
unlawful or impossible for such Lender (or any of its lending offices) to make or maintain LIBOR
Loans (or LIBOR Loans of a specified duration) due to (a) the introduction of, or any change in,
any Law or any change in the interpretation or administration thereof by any Governmental
Authority, or (b) compliance by any Lender (or any of its lending offices) with any request or
directive (whether or not having the force of law) of any such Governmental Authority, such Lender
shall promptly give notice thereof to the Administrative Agent and the Administrative Agent shall
promptly give notice thereof to the Borrower and the other Lenders. Thereafter, until the
Administrative Agent notifies the Borrower that such circumstances no longer exist, (i) the
obligations of the Lenders to make such LIBOR Loans (or LIBOR Loans of the specified duration) and
the right of the Borrower to convert any Loan or continue any Loan as such shall be suspended and
thereafter the Borrower may select only Base Rate Loans (or LIBOR Loans of other durations)
hereunder, and (ii) if any Lender may not lawfully continue to maintain a Loan as a LIBOR Loan to
the end of the then current Interest Period applicable thereto, the applicable Loan shall
immediately be converted to a Base Rate Loan.



2.10 PURPOSE.



The proceeds of the Loans shall be used by the Borrower: (a) to refinance existing
Indebtedness (including the existing convertible subordinated indebtedness of Parent as permitted
under this Agreement); (b) to make Restricted Payments permitted under this Agreement; (c) to
finance acquisitions, investments and Capital Expenditures permitted under this Agreement; and (d)
to provide for working capital needs and general corporate purposes; provided, however,
that none of the proceeds of the Loans may be used by any Loan Party to purchase or carry any
Margin Stock in violation of applicable Law including, Regulations T, U and X of the Board of
Governors of the Federal Reserve System.



2.11 MECHANICS OF PAYMENTS: BORROWER PAYMENTS.



2.11.1 Manner of Making Payments. All payments on account of principal of and interest on the
Loans, the Commitment Fee, and all other amounts otherwise payable to the Lenders under this
Agreement (other than payments in respect of Swing Loans
which shall be


 


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made directly to the Swingline Lender) shall be made to the Administrative
Agent. All payments shall be made by the Borrower to the Administrative Agent, in Dollars in
immediately available funds, without counterclaim or setoff and free and clear of, and without any
deduction or withholding for, any taxes or other payments. Unless otherwise specified, all
payments by the Borrower shall be made by 12:00 noon (New York, NY time) on the due date for such
payment, (and if by wire transfer, in accordance with the instructions on the signature page to
this Agreement) or by the Administrative Agent debiting an account of the Borrower with the
Administrative Agent. The failure by the Borrower to make a payment by 12:00 noon (New York, NY
time) shall not constitute an Event of Default if such payment is made on the due date; however,
any payment made after such time on such due date shall be deemed made on the next Business Day for
the purpose of interest and reimbursement calculations.



2.11.2 Payments by Borrower; Presumptions by Administrative Agent. Unless the Administrative
Agent shall have received notice from the 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
Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the Issuing Bank, as the case may be, the amount due. In such event,
if the Borrower has not in fact made such payment, then each of the Lenders or the 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 Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation.



2.11.3 Disbursements from Administrative Agent to Lenders. The Administrative Agent shall
promptly remit to each Lender its pro rata share of payments received pursuant to Subsection 2.11.1
(Manner of Making Payments) in immediately available funds, except that all reimbursement payments
in respect of losses, out-of-pocket expenses, funding losses or like matters shall be retained by
the Administrative Agent or remitted to the Lenders according to their respective appropriate
entitlement to such reimbursement and except as otherwise provided with respect to Defaulting
Lenders. Unless otherwise provided in this Agreement or the other Loan Documents, payments from
the Borrower shall be applied first to fees, then to interest (to the extent then payable), then to
principal of Base Rate Loans, and then to principal of LIBOR Loans (and among such LIBOR Loans,
first to those with the earliest expiring Interest Periods).



2.11.4 Authorization to Deduct Funds and Make Loans in Satisfaction of Obligations. At any
time that the Borrower is required to make a payment of principal, interest, reimbursement
obligations in respect of Letters of Credit, fees, costs, expenses or other amounts pursuant to the
terms of this Agreement or the other Loan Documents and, in any case, fails to do so, in addition
to other rights and remedies of the Administrative Agent and Lenders hereunder, under the other
Loan Documents and at Law, the Borrower hereby authorizes the Administrative Agent and the Lenders
(at their option, after receipt of notice from the Administrative Agent to do so) to cause the
aforesaid payments to be made first by drawing under the credit facilities provided under this
Agreement, and then (if there is no availability
under the Commitment) by


 


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deducting funds from the balance of any of the Borrower’s accounts
maintained with the Administrative Agent, or by making additional loans (and any such loans shall
be subject to interest at the Default Rate and shall be part of the Obligations secured by all of
the security interests granted pursuant to the Loan Documents); provided, however, that
notwithstanding the making by the Lenders of any of the aforesaid payments as set forth in this
sentence, the failure of the Borrower to make any of the aforesaid payments when due shall
constitute an Event of Default. The Administrative Agent and the Lenders may cause payments to be
made pursuant to this Subsection 2.11.4, in their sole discretion, regardless of the existence of
an Event of Default and whether or not the aggregate amount of the outstanding Loans, after giving
effect to such payments, exceeds the amount of the Commitments. Notwithstanding the foregoing, the
Lenders shall have no obligation to make any additional loans to the Borrower pursuant to this
Subsection 2.11.4.



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



(a) 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



(b) the provisions of this Subsection 2.11.5 shall not be construed to apply to (x) any
payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement
(including the application of funds arising from the existence of a Defaulting Lender), or (y) 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 Unreimbursed Drawings to any assignee or participant, other
than to the Borrower or any Subsidiary thereof (as to which the provisions of this Subsection
2.11.5 shall apply).



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



2.11.6 Payments Due on Non-Business Days. Subject to Subsection 2.8.4 (LIBOR Election) as to
payments with respect to Adjusted LIBOR, if any payment under the Loan Documents becomes due on a
day that is not a Business Day, the due date of such payment
shall be extended to the next succeeding Business Day, and such extension of time shall be
included in computing interest and fees in connection with such payment.


 


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2.12 MECHANICS OF PAYMENTS; LENDER PAYMENTS.



2.12.1 Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative
Agent shall have received notice from a Lender prior to the proposed date of any Loan, that such
Lender will not make available to the Administrative Agent such Lender’s share of such Loan, the
Administrative Agent may assume that such Lender has made such share available on such date in
accordance with Section 2.3 (Borrowing Notice) and may, in reliance upon such assumption (but shall
not be required to), make available to the Borrower a corresponding amount. In such event, if a
Lender has not in fact made its share of the applicable Loan available to the Administrative Agent,
then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but excluding the date of
payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the
greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation, and (ii) in the case of a payment to be made
by the Borrower, the interest rate applicable to Loans bearing interest at the Base Rate plus
Applicable Margin. If the Borrower and such Lender shall pay such interest to the Administrative
Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its
share of the applicable Loan to the Administrative Agent, then the amount so paid shall constitute
such Lender’s Loan included in the applicable borrowing. Any payment by the Borrower shall be
without prejudice to any claim the Borrower may have against a Lender that shall have failed to
make such payment to the Administrative Agent.



2.13 TAXES



2.13.1 Payments Free of Taxes. Any and all payments by or on account of any obligation of the
Borrower hereunder or under any other Loan Document shall be made free and clear of and without
reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if the
Borrower shall be required by applicable Law to deduct any Indemnified Taxes (including any 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 additional sums payable under
this Section 2.13) the Administrative Agent, each Lender or the Issuing Bank, as the case may be,
receives an amount equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions and (iii) the Borrower shall timely pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable Law.



2.13.2 Payment of Other Taxes by the Borrower. Without limiting the provisions of Subsection
2.13.1 (Payments Free of Taxes), the Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.


 


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2.13.3 Indemnification.



(a) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within 10 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section 2.13) paid by the Administrative Agent, such Lender or the Issuing Bank,
as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or the Issuing Bank (with a copy to the
Administrative Agent), 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.



(b) Without limiting other indemnities in this Agreement and the other Loan Documents, each
Lender shall indemnify the Administrative Agent within 10 days after demand therefor, for the full
amount of any Excluded Taxes attributable to such Lender that are payable by the Administrative
Agent, and reasonable expenses arising therefrom or with respect thereto, whether or not such
Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to any Lender by
the Administrative Agent shall be conclusive absent manifest error.



2.13.4 Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall 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.



2.13.5 Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the Law of the jurisdiction in which the Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable Law or reasonably requested by
the Borrower or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable Law as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable Law or
reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements.



Without limiting the generality of the foregoing, in the event that the Borrower is resident
for tax purposes in the United States of America, any Foreign Lender shall deliver to the Borrower
and the Administrative Agent (in such number of copies as shall be requested by the recipient) on
or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from
time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if
such Foreign Lender is legally entitled to do so), whichever of the following is applicable:



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


 


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(b) duly completed copies of Internal Revenue Service Form W-8ECI,



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



(d) any other form prescribed by applicable Law as a basis for claiming exemption from or a
reduction in United States Federal withholding tax (including, but not limited to, any
documentation required by FATCA) duly completed together with such supplementary documentation as
may be prescribed by applicable Law to permit the Borrower to determine the withholding or
deduction required to be made.



2.13.6 Treatment of Certain Refunds. If the Administrative Agent, a Lender or the Issuing
Bank determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes
as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.13, it shall pay to the Borrower an amount equal to
such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section 2.13 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent, such Lender or the Issuing
Bank, as the case may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that the Borrower, upon the
request of the Administrative Agent, such Lender or the Issuing Bank, agrees to repay the amount
paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent, such Lender or the Issuing Bank in the event
the Administrative Agent, such Lender or the Issuing Bank is required to repay such refund to such
Governmental Authority. This paragraph shall not be construed to require the Administrative Agent,
any Lender or the Issuing Bank to make available its tax returns (or any other information relating
to its taxes that it deems confidential) to the Borrower or any other Person.



2.13.7 Survival. Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in this Section 2.13 shall
survive the payment in full of the Obligations and the termination of the Commitments.


 


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2.14 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.



2.14.1 Designation of a Different Lending Office. If any Lender requests compensation under
Section 2.9 (Increased Costs; Unavailability), or requires the Borrower to
pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.13 (Taxes), then such Lender shall (at the request of Borrower) use
reasonable efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.9 (Increased Costs; Unavailability) or Section 2.13
(Taxes), 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. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.



2.14.2 Replacement of Lenders. If any Lender requests compensation under Section 2.9
(Increased Costs; Unavailability), or if the Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.13
(Taxes), or if any Lender is a Defaulting Lender, or if any Lender does not approve an amendment of
this Agreement or any other Loan Document which is approved by the Majority Lenders and which is
required to also be approved by such Lender to be effective pursuant to Section 11.5 (Amendment,
Waiver and Consents) (any such Lender, a “Non-Consenting Lender”) then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 11.6 (Successors and Assigns), all of its
interests, rights and obligations under this Agreement and the related Loan Documents to an
Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that



(a) the Borrower shall have paid to the Administrative Agent the assignment fee specified in
Section 11.6 (Successors and Assigns),



(b) such Lender shall have received payment of an amount equal to the outstanding principal of
its Loans and participations in Unreimbursed Drawings, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder and under the other Loan Documents (including any amounts
under Subsection 2.8.5 (Breakage)) from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Borrower (in the case of all other amounts),



(c) in the case of any such assignment resulting from a claim for compensation under Section
2.9 (Increased Costs; Unavailability) or payments required to be made pursuant to Section 2.13
(Taxes), such assignment will result in a reduction in such compensation or payments thereafter,



(d) such assignment does not conflict with applicable Law, and



(e) in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender,
the applicable assignee shall have consented to the applicable amendment, waiver or consent.


 


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




2.15 DEFAULTING LENDERS.



2.15.1 Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in
this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is
no longer a Defaulting Lender, to the extent permitted by applicable law:



(a) Waivers and Amendments. Such Defaulting Lender shall not have the right to
approve or disapprove any amendment, waiver or consent with respect to this Agreement or other Loan
Documents except (a) the Commitment of such Lender may not be increased or extended without the
consent of such Lender, (b) the principal amount of any Loans outstanding to such Defaulting Lender
may not be waived, forgiven or reduced without such Lender’s consent (unless all Lenders affected
thereby are treated similarly), or (c) the final maturity date(s) of such Defaulting Lender’s Loans
may not be extended without such Defaulting Lender’s consent (unless all Lenders affected thereby
are treated similarly).



(b) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other
amounts received by the Administrative Agent for the account of such Defaulting Lender (whether
voluntary or mandatory, at maturity, pursuant to Article 9 (Events of Default) or otherwise) or
received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.11 (Right of
Setoff) shall be applied at such time or times as may be determined by the Administrative Agent as
follows:



first, to the payment of any amounts owing by such Defaulting Lender to the Administrative
Agent hereunder;



second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to
any Issuing Bank or Swingline Lender hereunder;



third, to Cash Collateralize the Issuing Bank’s Fronting Exposure with respect to such
Defaulting Lender in accordance with paragraph (e) below (Cash Collateral; Repayment of Swing
Loans);



fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the
funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion
thereof as required by this Agreement, as determined by the Administrative Agent;



fifth, if so determined by the Administrative Agent and (so long as no Default or Event of
Default exists) the Borrower, to be held in a deposit account and released in order to (x) satisfy
such Defaulting Lender’s potential future funding obligations with respect to Loans under this
Agreement and (y) Cash Collateralize the Issuing Bank’s future Fronting Exposure with respect to
such Defaulting Lender with respect to future Letters of Credit issued
under this Agreement, in accordance with paragraph (e) below (Cash Collateral; Repayment of
Swing Loans);


 


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sixth, to the payment of any amounts owing to the Lenders, the Issuing Bank or Swingline
Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender,
the Issuing Bank or Swingline Lenders against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement;



seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing
to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the
Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its
obligations under this Agreement; and



eighth, to such Defaulting Lender or as otherwise directed by a court of competent
jurisdiction;



provided that if (x) such payment is a payment of the principal amount of any Loans or
Unreimbursed Drawings in respect of which such Defaulting Lender has not fully funded its
appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a
time when the conditions set forth in Section 4.2 (Requirements for Each Loan/Letter of Credit)
were satisfied or waived, such payment shall be applied solely to pay the Loans of, and
Unreimbursed Drawings owed to, all Non-Defaulting Lenders on a pro rata basis prior to being
applied to the payment of any Loans of, or Unreimbursed Drawings owed to, such Defaulting Lender
until such time as all Loans and funded and unfunded participations in LC Obligations and Swing
Loans are held by the Lenders pro rata in accordance with the Commitments under the applicable
facility without giving effect to paragraph (d) below (Defaulting Lender — Reallocation of
Participation to Reduce Fronting Exposure). Any payments, prepayments or other amounts paid or
payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting
Lender or to post Cash Collateral pursuant to this Subsection 2.15.1(b) shall be deemed paid to and
redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.



(c) Certain Fees. No Defaulting Lender shall be entitled to receive any Commitment
Fee for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be
required to pay any such fee that otherwise would have been required to have been paid to that
Defaulting Lender).




(i) Each Defaulting Lender shall be entitled to receive letter of
credit fees otherwise payable to it for any period during which that Lender
is a Defaulting Lender only to the extent allocable to its Applicable
Percentage of the stated amount of Letters of Credit for which it has
provided Cash Collateral pursuant to paragraph (e) below (Cash Collateral;
Repayment of Swing Loans).


 


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(ii) With respect to any Commitment Fee, any such other fees due
hereunder or letter of credit not required to be paid to any Defaulting
Lender pursuant to this Section 2.15, the Borrower shall (x) pay to
each Non-Defaulting Lender that portion of any such fee otherwise payable to
such Defaulting Lender with respect to such Defaulting Lender’s
participation in LC Obligations or Swing Loans that has been reallocated to
such Non-Defaulting Lender pursuant to clause (d) below, (y) pay to each
Issuing Bank and Swingline Lender, as applicable, the amount of any such fee
otherwise payable to such Defaulting Lender to the extent allocable to such
Issuing Bank’s or Swingline Lender’s Fronting Exposure to such Defaulting
Lender, and (z) not be required to pay the remaining amount of any such fee.



(d) Reallocation of Participations to Reduce Fronting Exposure. All or any part of
such Defaulting Lender’s participation in LC Obligations and Swing Loans shall be reallocated among
the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated
without regard to such Defaulting Lender’s Commitment) but only to the extent that (x) the
conditions set forth in Section 4.2 (Requirements for Each Loan/Letter of Credit) are satisfied at
the time of such reallocation (and, unless the Borrower shall have otherwise notified the
Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted
that such conditions are satisfied at such time), and (y) such reallocation does not cause the
aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting
Lender’s RC Commitment. No reallocation hereunder shall constitute a waiver or release of any
claim of any party hereunder against a Defaulting Lender arising from that Lender having become a
Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such
Non-Defaulting Lender’s increased exposure following such reallocation.



(e) Cash Collateral; Repayment of Swing Loans. If the reallocation described in
clause (d) above cannot, or can only partially, be effected, the Borrower shall, without prejudice
to any right or remedy available to it hereunder or under law, (x) first, prepay Swing Loans in an
amount equal to the Swingline Lenders’ Fronting Exposure and (y) second, Cash Collateralize the
Issuing Bank’s Fronting Exposure in accordance with the procedures set forth in Subsection 2.17
(Cash Collateral Account).



2.15.2 Defaulting Lender Cure. If the Administrative Agent, the Swingline Lender and Issuing
Bank and, if no Event of Default shall then have occurred and be continuing, the Borrower, agree in
writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the
parties hereto, whereupon as of the effective date specified in such notice and subject to any
conditions set forth therein (which may include arrangements with respect to any Cash Collateral),
that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of
the other Lenders or take such other actions as the Administrative Agent may determine to be
necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing
Loans to be held pro rata by the Lenders in accordance with the Commitments under the applicable
facility (without giving effect to paragraph (d) of Subsection 2.15.1 (Defaulting Lender —
Reallocation of Participations to Reduce Fronting Exposure), whereupon such Lender will cease to be
a Defaulting Lender; provided that no adjustments will be made retroactively with respect
to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting
Lender; and provided, further, that
except to the extent otherwise expressly agreed by the affected parties, no change hereunder
from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party
hereunder arising from that Lender’s having been a Defaulting Lender.


 


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2.15.3 New Swing Loans/Letters of Credit. So long as any Lender is a Defaulting Lender, (i)
the Swingline Lender shall not be required to fund any Swing Loans unless it is satisfied that it
will have no Fronting Exposure after giving effect to such Swing Loan and (ii) no Issuing Bank
shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied
that it will have no Fronting Exposure after giving effect thereto.



2.16 TERMINATION OF DEFAULTING LENDER. THE BORROWER MAY TERMINATE THE UNUSED AMOUNT
OF THE COMMITMENT OF ANY RC LENDER THAT IS A DEFAULTING LENDER UPON NOT LESS THAN FIVE BUSINESS
DAYS’ PRIOR NOTICE TO THE ADMINISTRATIVE AGENT (WHICH SHALL PROMPTLY NOTIFY THE LENDERS THEREOF),
AND IN SUCH EVENT THE PROVISIONS OF PARAGRAPH (D) OF SUBSECTION 2.15.1(B) (DEFAULTING LENDER
WATERFALL) WILL APPLY TO ALL AMOUNTS THEREAFTER PAID BY THE BORROWER FOR THE ACCOUNT OF SUCH
DEFAULTING LENDER UNDER THIS AGREEMENT (WHETHER ON ACCOUNT OF PRINCIPAL, INTEREST, FEES, INDEMNITY
OR OTHER AMOUNTS); PROVIDED THAT (I) NO EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING, AND (II) SUCH TERMINATION SHALL NOT BE DEEMED TO BE A WAIVER OR RELEASE OF ANY CLAIM
THE BORROWER, THE ADMINISTRATIVE AGENT, ANY ISSUING BANK, THE SWINGLINE LENDER OR ANY LENDER MAY
HAVE AGAINST SUCH DEFAULTING LENDER.



2.17 CASH COLLATERAL.



Without limiting the provisions of Subsection 3.1.9 (Cash Collateral Account), at any time
that there shall exist a Defaulting Lender, within one Business Day following the written request
of the Administrative Agent or any Issuing Bank (with a copy to the Administrative Agent), if the
reallocation described in paragraph (d) of Subsection 2.15.1 (Defaulting Lender — Reallocation of
Participations to Reduce Fronting Exposure) cannot, or can only partially, be effected, the
Borrower shall Cash Collateralize the Issuing Bank’s Fronting Exposure with respect to such
Defaulting Lender (determined after giving effect to such paragraph (d) and any Cash Collateral
provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.



(a) Grant of Security Interest. The Borrower, and to the extent provided by any
Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the
benefit of the Issuing Bank, and agrees to maintain, a first priority security interest in all such
Cash Collateral as security for the Defaulting Lenders’ obligation to fund participations in
respect of LC Obligations, to be applied pursuant to clause (b) below. If at any time the
Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person
other than the Administrative Agent and the Issuing Bank as herein provided, or that the total
amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will,
promptly upon demand by the Administrative Agent, pay or provide to the


 


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Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such
deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender). To the
extent that such Cash Collateral is also subject to a Lien securing the Secured Obligations,
notwithstanding any provision in the Loan Documents to contrary, such Cash Collateral shall be used
for the purposes described in this Section.



(b) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under this Section 2.17 (Cash Collateral) or Section 2.15
(Defaulting Lenders) in respect of Letters of Credit shall be applied to the satisfaction of the
Defaulting Lender’s obligation to fund participations in respect of LC Obligations (including, as
to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for
which the Cash Collateral was so provided, prior to any other application of such property as may
otherwise be provided for herein.



(c) Termination of Requirement. Cash Collateral (or the appropriate portion thereof)
provided to reduce any Issuing Bank’s Fronting Exposure shall no longer be required to be held as
Cash Collateral pursuant to this Section 2.17 (Cash Collateral) following (i) the elimination of
the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the
applicable Lender), or (ii) the determination by the Administrative Agent and the Issuing Bank that
there exists excess Cash Collateral; provided that, subject to Section 2.15 (Defaulting
Lenders) the Person providing Cash Collateral and each Issuing Bank may agree that Cash Collateral
shall be held to support future anticipated Fronting Exposure or other obligations and
provided further that to the extent that such Cash Collateral was provided by the
Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to
the Loan Documents.



ARTICLE 3




LETTERS OF CREDIT



3.1 LETTERS OF CREDIT.



3.1.1 Commitment to Issue Letters of Credit. Subject to the requirements set forth below, the
Borrower may use a portion of the Commitment, which portion shall not exceed the sum of Fifteen
Million Dollars ($15,000,000) (the “Letter of Credit Sublimit”) for the purpose of causing
the Issuing Bank to issue standby Letters of Credit for the account of the Borrower or any of its
U.S. Subsidiaries; provided, that (a) the Borrower or the applicable Subsidiary executes
and delivers a letter of credit application and reimbursement agreement in a form acceptable to the
Issuing Bank and complies with any conditions to the issuance of such Letter of Credit (including
the payment of any applicable fees) set forth therein; (b) the Issuing Bank approves the form of
such Letter of Credit; (c) except for evergreen Letters of Credit approved by the Issuing Bank it
is sole discretion, but which will not be extended for a period past the Maturity Date, such Letter
of Credit bears an expiration date not later than the earlier of (i) one year after the date of
issuance and (ii) 30 days prior to the Maturity Date; (d) the Issuing Bank receives a request for
issuance three (3) Business Days prior to the date of issuance (unless the Issuing Bank, in its
sole and absolute discretion, agrees to shorter notice in any instance); (e)


 


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the purpose of such Letter of Credit shall be acceptable to the Issuing Bank; and (f) the
conditions set forth in Section 4.2 (Requirements for Each Loan/Letter of Credit) are fulfilled to
the satisfaction of the Issuing Bank as of the date of the issuance of such Letter of Credit.
Notwithstanding anything in this Article 3, the Issuing Bank shall be under no obligation to issue
any Letter of Credit if there is a Defaulting Lender, unless the Issuing Bank has entered into
arrangements satisfactory to the Issuing Bank with the Borrower or such Lender to eliminate the
Issuing Bank’s risk with respect to such Defaulting Lender.




3.1.2 Reimbursement Obligations. The Borrower (or any U.S. Subsidiary that is an account
party) is absolutely, unconditionally and irrevocably obligated to reimburse the Issuing Bank for
all amounts drawn under each Letter of Credit. If any draft is presented under a Letter of Credit,
the payment of which is required to be made at any time on or before the Maturity Date, then
payment by the Issuing Bank of such draft shall constitute an RC Loan (which is a Base Rate Loan)
hereunder the proceeds of which are used to reimburse the Issuing Bank (without regard to any
required notice periods, Available Commitment amount or minimum advance requirements, all of which
are waived for this purpose) and interest shall accrue from the date the Issuing Bank makes payment
on such draft under such Letter of Credit provided, however, if there is not then an
Available Commitment in an amount at least equal to the amount of the draw, Borrower shall repay
the excess amount of the Loan within one (1) Business Day after the date that the Issuing Bank
notifies the Borrower of such deemed Loan. The Borrower further agrees that the Issuing Bank may
reimburse itself for such drawing at any time when there is no Available Commitment from the
balance in any other account of the Borrower maintained with the Issuing Bank.



3.1.3 Limitation on Amount. The Issuing Bank shall not be obligated or permitted under this
Section 3.1 to issue any Letter of Credit for the account of the Borrower to the extent that the
sum of (a) the amount that would be available to be drawn under the proposed Letter of Credit plus
(b) the sum of all amounts available to be drawn under outstanding Letters of Credit plus (c) any
Unreimbursed Drawings would exceed the lesser of (i) the Letter of Credit Sublimit and (ii) the
excess of the Commitment over the aggregate principal amount of the RC Loans and Swing Loans then
outstanding.



3.1.4 Obligations Absolute. The Borrower’s obligations under this Section 3.1 (including any
obligations to repay draws under Letters of Credit issued hereunder) shall be absolute and
unconditional under any and all circumstances and irrespective of the occurrence of any Default or
Event of Default or any condition precedent whatsoever or any setoff, counterclaim or defense to
payment that the Borrower may have or have had against the Issuing Bank, the Administrative Agent,
any Lender or any beneficiary of a Letter of Credit. The Borrower further agrees that the Issuing
Bank, the Administrative Agent and the Lenders shall not be responsible for, and the Borrower’s
reimbursement obligations shall not be affected by, among other things, the validity or genuineness
of documents or of any endorsements thereon, even if such documents should in fact prove to be in
any or all respects invalid, fraudulent or forged, or any dispute between or among the Borrower,
the beneficiary of any Letter of Credit or any financial institution or other party to which any
Letter of Credit may be transferred or any claims or defenses whatsoever of the Borrower against
the beneficiary of any Letter of Credit or any such transferee. The Issuing Bank, the
Administrative Agent and the Lenders shall not be liable for any error, omission, interruption or
delay in transmission, dispatch
or delivery of any


 


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message or advice, however transmitted, in connection with any Letter of
Credit. Any action taken or omitted by the Issuing Bank under or in connection with each Letter of
Credit and the related drafts and documents shall be binding upon the Borrower and shall not result
in any liability on the part of the Issuing Bank. Notwithstanding anything to the contrary set
forth in this Subsection 3.1.4, the Borrower shall not have any obligations to indemnify the
Issuing Bank, the Administrative Agent or any Lender in respect of any liability resulting from any
such Person’s gross negligence or willful misconduct.



3.1.5 Reliance by Issuing Bank. The Issuing Bank shall be entitled to rely, and shall be
fully protected in relying upon, any Letter of Credit, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document believed by it to be genuine and correct and believed by it to
have been signed, sent or made by the proper Person(s) and upon advice and statements of legal
counsel, independent accountants and other experts selected by the Issuing Bank and the
Administrative Agent.



3.1.6 Fees. The Borrower shall pay to the Administrative Agent for the account of the Lenders
a fee per annum equal to the product of (a) the Applicable Margin for RC Loans bearing interest at
a rate based on Adjusted LIBOR multiplied by (b) the face amount of each outstanding Letter of
Credit (to the extent such face amount is undrawn) (the “Letter of Credit Fees”). In
addition, the Borrower shall pay to the Issuing Bank, for its own account, a fronting fee equal to
0.125% per annum of the face amount of all outstanding Letters of Credit (to the extent such face
amount is undrawn) (a “Fronting Fee”). All Letter of Credit Fees shall be payable
quarterly in arrears on each Quarterly Payment Date based on the number of days that a Letter of
Credit is outstanding during such quarter (calculated on the basis of a 360-day year). All
Fronting Fees shall be payable at the time of issuance and any extension. The Borrower shall also
pay to the Issuing Bank all of the Issuing Bank’s standard fees and charges for the opening,
amendment, modification, presentation or cancellation of a Letter of Credit and otherwise in
respect of a Letter of Credit and shall execute all of the Issuing Bank’s standard agreements in
connection with the issuance of the Letter of Credit.



3.1.7 Participation by Lenders.



(a) Effective immediately upon the issuance of each Letter of Credit and without further
action on the part of the Issuing Bank, the Issuing Bank shall be deemed to have granted to each
Lender, and each Lender shall be deemed to have irrevocably purchased and received from the Issuing
Bank, without recourse or warranty, an undivided interest and participation in such Letter of
Credit to the extent of each Lender’s percentage of the Commitment. Further, each Lender
acknowledges and agrees that it shall be absolutely liable, to the extent of its percentage of the
Commitment, to fund on demand or reimburse the Issuing Bank on demand for the amount of each draft
paid by the Issuing Bank under each Letter of Credit to the extent that such amount is not
immediately reimbursed by the Borrower.



(b) In furtherance of the provisions of the preceding paragraph (a), the Issuing Bank shall
notify the Administrative Agent promptly upon receipt of notice of an intended draw under a Letter
of Credit. The Administrative Agent shall give written, telecopied or telegraphic notice to each
of the other Lenders of its pro rata share of such draw and the


 


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scheduled date thereof. After receipt of such notice, and whether or not an Event of Default
or Default then exists and whether or not there shall then be any Available Commitment, each Lender
shall make available to the Administrative Agent such Lender’s share of such draw in immediately
available funds (in Dollars) to the Administrative Agent no later than 12:00 noon (New York, NY
time) on the date specified in the Administrative Agent’s notice. The failure of the Issuing Bank
or the Administrative Agent to give timely notice pursuant to this Subsection 3.1.7 shall not
affect the right of the Issuing Bank to reimbursement from the Lenders. Any amount paid by the
Issuing Bank and Lenders pursuant to a draw made under a Letter of Credit shall constitute an RC
Loan and shall be repaid pursuant to the provisions respecting RC Loans, provided that if
an Event of Default or Default exists at the time of a draw, the Borrower shall immediately
reimburse the amount of such draw to the Administrative Agent for the benefit of the Lenders.



3.1.8 Standard of Conduct. The Issuing Bank shall be entitled to administer each Letter of
Credit in the ordinary course of business and in accordance with its usual practices, modified from
time to time as it deems appropriate under the circumstances, and shall be entitled to use its
discretion in taking or refraining from taking any action in connection herewith as if it were the
sole party involved. Any action taken or omitted to be taken by the Issuing Bank under or in
connection with any Letter of Credit shall not create for the Issuing Bank any resulting liability
to any other Lender.



3.1.9 Cash Collateral Account. In the event that (a) the excess of (i) the amount of the
Commitment over (ii) the aggregate principal amount of RC Loans and Swing Loans then outstanding is
less than (b) the amount of any LC Obligations at any time for any reason (whether because the
Commitment has been reduced or terminated or otherwise), the Borrower shall forthwith pay to the
Administrative Agent an amount equal to the excess of the amount described in clause (b) above over
the amount described in clause (a) above. Such amount shall be applied first, against any
Unreimbursed Drawings and second, against the unpaid principal amount of any Loans then
outstanding, and the remainder shall be maintained by the Administrative Agent in an interest
bearing cash collateral account in the name of and for the benefit of the Administrative Agent and
the Lenders to secure the repayment of Borrower’s obligation to reimburse the Lenders for drafts
drawn or that may be drawn under outstanding Letters of Credit until the earlier of (1) such time
as all outstanding Letters of Credit have expired or been cancelled and (2) the excess of the
amount described in clause (b) above over the amount described in clause (a) above no longer
exists.



3.1.10 Obligations Secured. The obligations of the Borrower to the Issuing Bank, the
Administrative Agent and the Lenders in respect of Letters of Credit shall be guaranteed pursuant
to the Loan Documents and shall be secured by the Collateral.



3.2 RESIGNATION OF ISSUING BANK.



The Issuing Bank may resign at any time by giving 30 days’ prior notice to the Administrative
Agent, the Lenders and the Borrower, so long as the Issuing Bank uses commercially reasonable
efforts to have a new Issuing Bank designated prior to the expiration of such notice period and
such new Issuing Bank agrees to assume the responsibilities of the Issuing Bank upon such
expiration. After the resignation of the Issuing Bank hereunder, the


 


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retiring issuing bank shall remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Bank under this Agreement and the other Loan Documents with respect to
Letters of Credit issued by it prior to such resignation, but shall not be required to issue
additional Letters of Credit or to extend, renew or increase any existing Letter of Credit.




ARTICLE 4




CONDITIONS TO FUNDINGS AND ISSUANCE OF LETTERS OF CREDIT



4.1 CONDITIONS TO INITIAL FUNDING.



The obligation of the Lenders to make the initial Loans or the Issuing Bank to issue the
initial Letters of Credit pursuant to this Agreement shall be subject to the fulfillment, to the
satisfaction of the Administrative Agent, the Lenders and Issuing Bank (unless otherwise
specified), of the following conditions.



4.1.1 Execution of this Agreement. This Agreement shall have been duly executed by the
Borrower, each Lender, the Issuing Bank and the Administrative Agent.



4.1.2 Notes. The Borrower shall have delivered duly executed Notes to each of the Lenders
that requests a Note.



4.1.3 Amended and Restated Security Agreement. Parent, the Borrower and each Subsidiary
Guarantor, shall have executed and delivered to the Administrative Agent an Amended and Restated
Security Agreement (as amended, modified or supplemented from time to time in accordance with the
terms hereof and thereof, the “Security Agreement”) in substantially the form attached to
this Agreement as Exhibit D, together with (a) such Uniform Commercial Code financing
statements as are necessary to perfect the security interests created by such Security Agreement,
(b) such landlord waivers and bailee waivers as the Administrative Agent shall request to the
extent not already provided, which shall be provided within 90 days after the Closing Date or such
longer period as agreed to by the Administrative Agent in its sole discetion, and (c) a power of
attorney duly executed by each such Loan Party in substantially the form attached as Annex
B to the Security Agreement.



4.1.4 Amended and Restated Guaranty and Suretyship Agreement.



(a) Each Subsidiary Guarantor shall have executed and delivered to the Administrative Agent an
Amended and Restated Guaranty and Suretyship Agreement (as amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof, the “Subsidiary Suretyship
Agreement”) in substantially the form attached to this Agreement as Exhibit E-1.



(b) Parent shall have executed and delivered to the Administrative Agent an Amended and
Restated Guaranty and Suretyship Agreement (as amended, modified or supplemented from time to time
in accordance with the terms hereof and thereof, the “Parent Suretyship Agreement”) in
substantially the form attached to this Agreement as Exhibit E-2.


 


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4.1.5 Amended and Restated Pledge Agreements. (a) Each Loan Party shall have executed and
delivered to the Administrative Agent an Amended and Restated Pledge Agreement (as amended,
modified or supplemented from time to time in accordance with the terms hereof and thereof, the
“Pledge Agreement”) in substantially the form attached to this Agreement as Exhibit
F, together with the stock and other certificates, assignment powers (duly executed in blank
and undated) and financing statements required thereunder, and (b) the Borrower shall have
delivered to the Administrative Agent such documentation necessary to provide a for a valid and
enforceable lien against the Capital Stock of Precimed under Swiss Law.



4.1.6 Control Agreements. The Borrower shall have delivered to the Administrative Agent a
control agreement, in form and substance satisfactory to the Administrative Agent (each such
agreement, as amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof, a “Control Agreement”), for each deposit account and securities
brokerage account (except as provided in the Permitted Perfection Limitations), duly executed by
each depository bank and securities intermediary, as applicable, and applicable Loan Party for each
account included in the Collateral.



4.1.7 Amended and Restated Intellectual Property Collateral Agreement. Each Loan Party that
owns any Intellectual Property registered at the United States Patent and Trademark Office or
United States Copyright Office shall have executed and delivered to the Administrative Agent such
amended and restated agreements (each as amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof, an “Intellectual Property Collateral
Agreement”), in form and substance satisfactory to the Administrative Agent, together with such
other notices for recording in the United States Patent and Trademark Office or the United States
Copyright Office and such Uniform Commercial Code financing statements as are necessary or
advisable to perfect and maintain the security interests reflected therein.



4.1.8 Lien Searches. The Borrower shall have delivered to the Administrative Agent Uniform
Commercial Code, tax and judgment lien searches of a recent date, in such offices as are acceptable
to the Administrative Agent, together with United States Patent and Trademark Office and United
States Copyright Office searches of a recent date, in each case, with respect to the Borrower and
each of its Subsidiaries, showing no Liens except Permitted Liens.



4.1.9 Evidence of Insurance. The Administrative Agent shall have received evidence of the
insurance required by Section 8.14 (Insurance), together with the Lender loss payable and/or
additional insured clauses and endorsements required thereby.



4.1.10 Repayment of Existing Indebtedness. All Indebtedness of Borrower and its Subsidiaries
other than Indebtedness permitted under Subsection 8.1.1 (In General) (the “Predecessor
Indebtedness”) shall have been repaid in full concurrently with the initial advances under this
Agreement. In addition, each Person to which any Predecessor Indebtedness is owed shall have
terminated all commitments in respect of its respective Predecessor Indebtedness and shall have
prepared and executed and/or filed (or agreed to file concurrent with the receipt of payment in
full of its respective Predecessor Indebtedness) such
releases and


 


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terminations of all liens and cancellations of all guarantees or other collateral
security instruments and agreements provided in connection therewith as the Administrative Agent
shall request, in form and substance satisfactory to the Administrative Agent.



4.1.11 Payment of Fees and Costs. The Borrower shall have paid all of the fees required to be
paid to the Administrative Agent and the other Lenders on the Closing Date and all other fees,
costs, expenses and other amounts due and payable under this Agreement and the other documents
contemplated herein, including, without limitation, the fees and expenses of counsel for the
Administrative Agent in connection with the negotiation, preparation, execution, and delivery of
this Agreement and the other documents contemplated herein.



4.1.12 Financial Statements; Projections.



(a) The Lenders shall have received an audited Consolidated balance sheet, a statement of
income and changes in retained earnings and a statement of cash flows of Parent, the Borrower and
its Subsidiaries for the fiscal years ended December 31, 2008, 2009 and 2010, certified (without
qualification or exception) by Deloitte & Touche LLP or other nationally recognized independent
public accountants selected by the Borrower and acceptable to the Administrative Agent, all in form
and substance satisfactory to the Administrative Agent.



(b) The Lenders shall have received a Consolidated balance sheet, statement of income and
changes in retained earnings and statement of cash flows for Parent, the Borrower and its
Subsidiaries for the quarter ending March 31, 2011, certified (subject to normal year-end audit
adjustments) by a Financial Officer of the Borrower as (i) having been prepared in accordance with
GAAP and (ii) presenting fairly the financial position and results of operations of Parent, the
Borrower and such Subsidiaries as at the end of such quarters.



(c) The Lenders shall have received a management-prepared Consolidating balance sheet,
statement of income and changes in retained earnings and statement of cash flows, showing
separately the results of operations and financial condition of (i) the Domestic Subsidiaries
including the Borrower, taken as a separate group, (ii) the Foreign Subsidiaries, taken as a
separate group, and (iii) the Non-Guarantor Ventures, if any, taken as a separate group.



(d) The Lenders shall have received a balance sheet of Greatbatch Medical, S. de R.L. de C. V.
(“Greatbatch Mexico”) as of a recent date, certified by a Financial Officer of the Borrower
as (i) having been prepared in accordance with generally accepted accounting principles in Mexico
and (ii) presenting fairly the financial position and results of operation of Greatbatch Mexico.



(e) The Lenders shall have received a final set of operating projections for Parent, the
Borrower and its Subsidiaries, dated no more than 120 days prior to the Closing Date, for the
period beginning on or before the Closing Date and ending on the third anniversary of the date
hereof, which shall be in reasonable detail, shall be based on the closing capital structure of
Parent, the Borrower and its Subsidiaries, shall reflect the consummation of the
transactions contemplated by this Agreement and shall be in form and substance satisfactory to
the Administrative Agent.


 


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4.1.13 Corporate Proceedings. All corporate, partnership and other legal proceedings and all
instruments in connection with the transactions contemplated by this Agreement and other Loan
Documents (including, without limitation, certified Organizational Documents, resolutions and
incumbency certificates of each of the Loan Parties) shall be satisfactory in form and substance to
the Administrative Agent and its counsel, and the Administrative Agent and its counsel shall have
received all information and copies of all documents and records of all corporate and partnership
proceedings which the Administrative Agent or its counsel has requested, such documents where
appropriate to be certified by proper corporate, partnership, governmental or other authorities.



4.1.14 Consents and Approvals. All corporate, governmental and judicial consents, approvals
and waivers and other third party consents, approvals and waivers necessary in connection with this
Agreement and the Loans or other related transactions, shall have been obtained and, if applicable,
become final and nonappealable, and shall remain in full force and effect, without the imposition
of any conditions that are not acceptable to the Lenders.



4.1.15 HSBC Acknowledgement. The Administrative Agent shall have received an acknowledgement,
in form and substance satisfactory to the Administrative Agent, from HSBC agreeing and
acknowledging to the provisions of this Agreement as they relate to HSBC and the HSBC Swap
Obligations and that it is not a Lender under this Agreement and has no rights of a Lender.



4.1.16 Material Adverse Change; Compliance with Law.



(a) No Material Adverse Change shall have occurred since December 31, 2010.



(b) No event shall have occurred or be threatened and no facts or circumstances shall exist,
including, without limitation, any action, suit, investigation, litigation or proceeding pending or
threatened in a court or before any arbitrator or governmental instrumentality, that could result
in a Material Adverse Change.



(c) The Borrower and its Subsidiaries shall be in substantial compliance with all Laws,
including, without limitation, Environmental Laws.



(d) No material adverse change shall have occurred in any of the facts or information given to
the Administrative Agent regarding Parent or any of its Subsidiaries.



4.1.17 Opinions of Counsel. The Administrative Agent shall have received a favorable opinion
of counsel as to the transactions contemplated hereby (including as to the senior debt status of
the Obligations relative to the 2007 Debentures) addressed to the Administrative Agent, the Issuing
Bank and the Lenders and dated as of the Closing Date, in form and content satisfactory to the
Administrative Agent, the Issuing Bank and the Lenders from Hodgson Russ LLP, counsel to the
Borrower, its Subsidiaries and the other Loan Parties.



4.1.18 Officer’s Compliance Certificate. There shall have been delivered to each Lender an
Officer’s Compliance Certificate, dated as of the Closing Date, demonstrating pro forma compliance
with the financial covenants set forth in Article 7 (Financial Covenants) and certifying as to the
truth of the representations and warranties contained in this Agreement or otherwise made in
writing in connection herewith and the absence of any Default and Event of Default as of such date.


 


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4.1.19 Good Standing. The Administrative Agent shall have received (a) good standing
certificates of a recent date for each of Parent, the Borrower and its Subsidiaries, evidencing its
good standing under the Laws of the state of its incorporation or formation and (b) good standing
certificates of a recent date for each of Parent, the Borrower and its Subsidiaries, evidencing its
good standing under the Laws of the states in which it is qualified to do business.



4.1.20 Other Requirements. The Administrative Agent shall have received such additional
information and material as the Administrative Agent or any Lender may reasonably request.



4.2 REQUIREMENTS FOR EACH LOAN/LETTER OF CREDIT.



The Lenders shall not be required to make any Loans to the Borrower (including the initial
Loan) and the Issuing Bank shall not be required to issue any Letters of Credit (including the
initial Letter of Credit) unless each of the following conditions are satisfied.



4.2.1 No Default. There shall not, either prior to or after giving effect to each such
funding or Letter of Credit, exist a Default or Event of Default.



4.2.2 Borrowing Notice/Request for Letter of Credit. The Administrative Agent shall have
timely received a borrowing notice pursuant to Section 2.3 (Borrowing Notice) or the Issuing Bank
shall have received a timely request for a Letter of Credit pursuant to Subsection 3.1.1
(Commitment to Issue Letters of Credit) and all accompanying documentation required thereby.



4.2.3 Representations and Warranties. Each of the representations and warranties of the
Borrower and the other Loan Parties made in the Loan Documents shall be true and correct in all
respects (or in all material respects if any such representation or warranty is not by its terms
already qualified as to materiality) as of the date of each such Loan or Letter of Credit (both
immediately prior to and after giving effect to such Loan or Letter of Credit) as if made on and as
of such date.



4.2.4 Method of Certifying Certain Conditions. The request for, and acceptance of, each Loan
and each Letter of Credit by the Borrower shall be deemed a representation and warranty by the
Borrower that the conditions specified in Subsections 4.2.1 (No Default) and 4.2.3 (Representations
and Warranties) have been satisfied.



 


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ARTICLE 5




REPRESENTATIONS AND WARRANTIES



In order to induce the Issuing Bank and the Lenders to enter into this Agreement and to make
the Loans and other extensions of credit contemplated by this Agreement, the Borrower hereby makes
the following representations and warranties (which are unaffected by any investigation of the
Administrative Agent, the Issuing Bank or any Lender):



5.1 STATUS.



5.1.1 Organization and Qualification. Each of Parent, the Borrower and its Subsidiaries is a
duly organized and validly existing corporation, partnership or limited liability company, as
applicable, under the Laws of the respective jurisdictions indicated on Schedule 5.1.1 and
each is in good standing under the Laws of its jurisdiction of incorporation or formation, as the
case may be. Each such Person has perpetual existence and has the corporate, partnership or
limited liability company, as applicable, power and authority to own its property and assets and to
transact the business in which it is engaged or presently proposes to engage. None of such Persons
has failed to qualify to do business in any state or jurisdiction where the failure to so qualify
could result in a Material Adverse Change. As of the Closing Date, such Persons are qualified to
do business as a foreign corporation, partnership, or limited liability company, as applicable, in
the states in the United States, if applicable, listed on Schedule 5.1.1.



5.1.2 Capitalization. All of the issued and outstanding shares of Capital Stock of the
Borrower are owned by Parent. The Borrower does not have any Subsidiaries and does not presently
operate all or any portion of its business through any other Persons, other than as disclosed on
Schedule 5.1.2. Schedule 5.1.2 also correctly lists as to the Borrower, each of
its Subsidiaries and (other than with respect to clause (d) below) Parent on the Closing Date:



(a) its name;



(b) the classes of Capital Stock issued by Parent, the Borrower and each of its Subsidiaries
and the principal characteristics of each such class; and



(c) the names of each of the equity holders and the number and percentage of the issued and
outstanding shares or other equity interests of each class (and certificate numbers by which such
shares or other equity interests are designated, if applicable) owned by each of such holders.



All the outstanding shares of Capital Stock of the Borrower and each of its Subsidiaries are
validly issued, fully paid and nonassessable, and all such shares and other equity interests
indicated on Schedule 5.1.2 as owned by the Borrower or the Persons indicated on
Schedule 5.1.2 are so owned beneficially and of record by such Person, free and clear of
any Lien, except for Liens created pursuant to the Loan Documents. Schedule 5.1.2 also
correctly lists as to the Borrower and each of its Subsidiaries any options, warrants or other
securities issued by the Borrower or any Subsidiary of the Borrower and the identity of each holder
of any such option, warrant or other security. Except as set forth on Schedule 5.1.2,
there are no preemptive rights, offers, options, rights, agreements or commitments of any kind
(contingent or otherwise) relating to the issuance, conversion, registration, voting, sale or
transfer of any equity interests or other securities of the Borrower or any of its Subsidiaries
(including the Capital Stock of the Borrower or any of its Subsidiaries) or obligating the
Borrower, any of its
Subsidiaries or any other Person to purchase or redeem any such equity interests or other
securities pursuant to the Organizational Documents or any agreement or other instrument to which
the Borrower or any of its Subsidiaries is a party or by which any of them may be bound.


 


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5.1.3 Stock Ownership. Schedule 5.1.3 lists all of the Margin Stock owned or held by
or on behalf of each of Parent, the Borrower and its Subsidiaries as of the date of this Agreement
and the approximate value thereof.



5.2 POWER AND AUTHORITY; ENFORCEABILITY.



Each Loan Party has the corporate, partnership or other similar power to execute, deliver and
carry out the terms and provisions of the Loan Documents to which it is a party, and each such
Person has taken all necessary corporate, partnership or other similar action (including any
consent of stockholders or partners required by Law or by their respective Organizational
Documents) to authorize the execution, delivery and performance of the Loan Documents to which it
is a party. The Loan Documents, when executed and delivered by each Loan Party which is a party
thereto, constitute or will constitute the authorized, valid and legally binding obligations of
such Person enforceable in accordance with their respective terms, except as such enforceability
may be limited by applicable Debtor Relief Laws and by general principles of equity.



5.3 NO VIOLATION OF AGREEMENTS; ABSENCE OF CONFLICTS.



The execution and delivery of the Loan Documents, the consummation of the transactions
contemplated by the Loan Documents and compliance with the terms and provisions of the Loan
Documents, will not:



(a) require any consent or approval, governmental or otherwise, not already obtained;



(b) violate any Law or judgment respecting Parent, the Borrower or any of its Subsidiaries;



(c) conflict with, result in a breach of, or constitute a default under, the Organizational
Documents of any Loan Party or Subsidiary thereof, or under any indenture, agreement, license or
other instrument to which a Loan Party or any of its Subsidiaries is a party or by which any of
them or their respective properties may be bound; or



(d) result in, or require the creation or imposition of, any Lien upon or with respect to any
property now owned or hereafter acquired by a Loan Party or any of its Subsidiaries.



5.4 RECORDING, ENFORCEABILITY AND CONSENT.



Assuming the due recording of the UCC-1 financing statements and the Intellectual Property
Collateral Agreements delivered in connection herewith, no consent, approval or authorization of
any Person, or recording, filing, registration, notice or other similar action with or to any
Person, is required in order to insure the legality, validity, binding effect or enforceability of
any of the Loan Documents as against all Persons, except such consents,
approvals, authorizations and actions as are identified on Schedule 5.4 hereto, all of
which have


 


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been obtained and remain in effect. No consent, approval or authorization of any Person
that has not been obtained is required for the continued conduct by Parent, the Borrower or any of
its Subsidiaries of their respective businesses as presently conducted or as presently proposed to
be conducted.



5.5 LINES OF BUSINESS.



The Borrower and its Subsidiaries are engaged only in Permitted Businesses. Parent is not
engaged in any business activities other than (i) owning 100% of the outstanding Capital Stock of
the Borrower; (ii) owning 100% of the outstanding Capital Stock of GB Ventures; (iii) owning 1.0%
of the outstanding Capital Stock of Greatbatch Mexico; and (iii) engaging in activities directly
related to the foregoing.



5.6 SECURITY INTEREST IN COLLATERAL.



The Borrower has delivered, or caused to be delivered, to the Administrative Agent all UCC-1
financing statements in recordable form that may be necessary to perfect the security interests
granted pursuant to the Loan Documents to the extent that such security interests may be perfected
by filing. The Borrower has delivered, or caused to be delivered, to the Administrative Agent all
instruments, documents, certificates and investment property necessary to perfect the security
interests granted pursuant to the Loan Documents, to the extent such security interests may be
perfected by delivery. Upon the filing of such UCC-1 financing statements in the offices specified
thereon and the recordation of the Intellectual Property Collateral Agreements in the United States
Copyright Office, no further action, including, without limitation, any filing or recording of any
document or the obtaining of any consent, is necessary in order to establish, perfect and maintain
the Administrative Agent’s first priority security interests (subject to Permitted Perfection
Limitations) in the equity of the Borrower, the U.S. Subsidiaries of the Borrower, the Ventures
owned by GB Ventures or QIG and sixty six percent (66%) of the First-Tier Foreign Subsidiaries of
the Borrower, and in the personal property (including fixtures and Intellectual Property) of each
Loan Party other than Excluded Assets (for the benefit of the Secured Parties), except for the
periodic filing of continuation statements with respect to such UCC-1 financing statements. Upon
the sale or other disposition by GB Ventures or QIG of any Capital Stock in any Venture to any
Person, the Administrative Agent’s security interest in such Capital Stock will be deemed to be
automatically released so long as any proceeds or such sale or other disposition are applied in
accordance with the terms of this Agreement.



5.7 LITIGATION; COMPLIANCE WITH LAWS; OFAC REQUIREMENTS.



(a) There are no claims, actions, suits, protests, reconsiderations or proceedings
(collectively, “litigation”) pending, or to the knowledge of the Borrower or any of its
Subsidiaries, threatened, against or affecting Parent, the Borrower, any of its shareholders or any
of its Subsidiaries or their respective equity holders before any court or Governmental Agency or
arbitral tribunal which could reasonably be expected to result in a Material Adverse Change or
which allege the invalidity of or dispute any terms of the Loan Documents and, to the
knowledge of the Borrower and its Subsidiaries, there is no basis for any of the foregoing.
Schedule 5.7 lists all litigation as of the Closing Date in which the amount in controversy
exceeds $250,000 or which could result in a Material Adverse Change.


 


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(b) Parent, the Borrower and each of its Subsidiaries are in compliance in all respects with
all Laws, including all Environmental Laws and all applicable Food and Drug Administration rules
and regulations, except for such matters of noncompliance as could not, individually or in the
aggregate, result in a Material Adverse Change. Without limiting the generality of the foregoing,
none of Parent, the Borrower or any Subsidiary thereof, has, directly or indirectly, made any
payments to foreign government officials in violation of the Foreign Corrupt Practices Act of 1977
as amended (15 U.S.C. §§ 78dd-1, et seq.) (“FCPA”). The Borrower has delivered to the
Administrative Agent a copy of its written compliance program regarding FCPA and is and has been in
compliance with the FCPA and other laws relating to foreign investment and has instituted and
maintains policies and procedures designed to ensure continued compliance therewith.



(c) None of the Borrower, any Guarantor or any Affiliate of the Borrower or any Guarantor is a
Sanctioned Person. No proceeds of any Loan will be used, and none have been used, to fund any
operations in, finance any investment or activities in or make any payments to, a Sanctioned Person
or a Sanctioned Country.



5.8 NO BURDENSOME AGREEMENTS; MATERIAL AGREEMENTS.



Neither Parent, the Borrower nor any of its Subsidiaries is a party to any agreement or
instrument or subject to any corporate or other restrictions that, assuming compliance by such
Persons with the terms of such agreements or instruments, could result in a Material Adverse
Change. Parent, the Borrower and its Subsidiaries have such good and enforceable agreements with
third parties as are necessary to conduct their respective businesses as presently conducted or as
contemplated to be conducted. The material agreements of the Company as of the Closing Date are
listed on Schedule 5.8 hereto.



5.9 CONDITION OF PROPERTY.



The material properties, equipment and systems of the Borrower and its Subsidiaries are in
good repair, working order and operating condition, reasonable wear and tear excepted, and are and
will be in compliance in all material respects with all standards or rules imposed by any
Governmental Authority. Parent has no tangible assets.



5.10 LICENSES; INTELLECTUAL PROPERTY.



Parent, the Borrower and each of its Subsidiaries owns or is the licensee of all patents,
trademarks, service marks, trade names, trade dress, trade secrets, domain names, copyrights,
franchises, licenses and authorizations, governmental or otherwise that are individually or in the
aggregate material to the business, and all other material rights, priorities or privileges
relating to Intellectual Property necessary for the conduct of their respective businesses as
presently conducted, without any known material conflict with the rights of any other Person. No
settlement agreements, consents, licenses, judgments, orders, forbearance to sue
or similar obligations limit or restrict Parent’s, the Borrower’s or any of its Subsidiaries’
rights in


 


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and to such patents, trademarks, service marks, trade names, trade dress, trade secrets,
domain names, copyrights, franchises, licenses and authorizations, or such other rights, priorities
or privileges relating to Intellectual Property except those that do not relate to such patents,
trademarks, service marks, trade names, trade dress, trade secrets, domain names, copyrights,
franchises, licenses and authorizations that individually or in the aggregate are material to the
business of the Borrower or its Subsidiaries or involve material amounts of money. No claim or
proceeding, or to the knowledge of the Borrower, threat of claim or proceeding, has been asserted
by any Person against Parent, the Borrower or any of its Subsidiaries relating to the use, right to
use or ownership of any Intellectual Property used or presently proposed to be used in the conduct
of their respective businesses, or challenging or questioning the validity or effectiveness of any
Intellectual Property used or presently proposed to be used in the conduct of their respective
businesses. Parent, the Borrower and its Subsidiaries have taken all commercially reasonable steps
to maintain the confidentiality of their material trade secrets and, to the Borrower’s knowledge,
there has been no misappropriation of any of such trade secrets by any Person. Schedule
5.10 attached hereto correctly lists, as of the Closing Date, all material or registered
patents, trademarks, service marks, trade names, trade dress, copyrights and material governmental
licenses, authorizations and similar rights, of the Borrower and the Guarantors. All material
copyrights are registered with the United States Copyright Office.



5.11 TITLE TO PROPERTIES; LIENS.



Parent, the Borrower and each of its Subsidiaries has good and marketable title to its
properties and assets, including the properties and assets reflected in the financial statements
referred to in Subsection 5.13.1 (Financial Statements) (except properties and assets disposed of
since the date thereof in accordance with Subsection 8.7.2 (Sales and Other Dispositions)), and
none of such properties or assets is subject to any Liens except Permitted Liens. The Borrower and
each of its Subsidiaries enjoys peaceful and undisturbed possession under all leases necessary in
any material respect for the operation of such properties and assets, and all such leases are valid
and subsisting and in full force and effect. Borrower and each of its Subsidiaries has obtained
all material easements and material equipment rental or other material agreements necessary for the
operation of its business as now conducted or presently proposed to be conducted.



5.12 MANAGEMENT AGREEMENTS.



Neither Parent, the Borrower nor any of its Subsidiaries is a party to any management,
employment, consulting or other similar agreement or arrangement (whether oral or written)
respecting the management of their respective businesses except for usual and customary employment
agreements.



5.13 FINANCIAL STATEMENTS AND PROJECTIONS.



5.13.1 Financial Statements. Each of the financial statements delivered pursuant to
Subsections 4.1.12 (Financial Statements; Projections), 6.1.1 (Delivery of Quarterly Financial
Statements), and 6.1.2 (Delivery of Annual Financial Statements; Accountants’ Certification) have
been prepared in accordance with GAAP applied on a consistent basis throughout the period specified
and present fairly in all material respects the financial position of
Parent, the Borrower and its Subsidiaries as of the date specified and the results of
operations and statements


 


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of cash flow for the period specified subject, in the case of quarterly
financial statements delivered pursuant to Subsection 4.1.12 (Financial Statements; Projections) or
Subsection 6.1.1 (Delivery of Quarterly Financial Statements), to usual year-end adjustments and
the absence of footnotes.



5.13.2 Undisclosed Liabilities. Neither Parent, the Borrower nor any of its Subsidiaries has
any material liabilities, contingent or otherwise, other than as disclosed in the financial
statements referred to in Subsection 5.13.1 (Financial Statements) and there are not now and not
anticipated any material unrealized losses of Parent, the Borrower or any of its Subsidiaries.



5.13.3 Absence of Material Adverse Change. Since the date of the financial statements
delivered pursuant to Subsection 4.1.12 (Financial Statements; Projections), there has been no
event, circumstance, condition or development that has resulted in, or could result in, a Material
Adverse Change.



5.13.4 Projections. The operating projections submitted on behalf of the Borrower to the
Lenders pursuant to Subsection 4.1.12 (Financial Statements; Projections) and Subsection 6.1.6
(Annual Budget) present to the best of the Borrower’s knowledge and belief based on the assumptions
set forth in such projections, which assumptions were reasonable at the time presented, the
expected results of operations and sources and uses of cash of Parent, the Borrower and its
Subsidiaries for the periods covered by such projections, it being understood that actual results
may differ.



5.14 TAX RETURNS AND PAYMENTS; OTHER FEES.



(a) All tax returns, reports and statements required by Law to be filed (including extensions)
by or in respect of Parent, the Borrower and its Subsidiaries and their assets have been filed.
All taxes, assessments and other governmental charges levied upon Parent, the Borrower and its
Subsidiaries and any of their respective properties, assets, income or franchises that are due and
payable have been paid, other than those presently payable without penalty or interest and other
than any charge or claim being contested in good faith by appropriate proceedings promptly
initiated and diligently conducted and for which any reserve or other appropriate provision, if
any, as shall be required by GAAP has been made therefor and, if the filing of a bond or other
indemnity is necessary to avoid the creation of a Lien against any of the assets of the Borrower or
any of its Subsidiaries, such bond has been filed or indemnity posted.



(b) Parent, the Borrower and each of its Subsidiaries has paid all franchise, license and
other fees and charges that have become due pursuant to any franchise or permit in respect of its
business and has made appropriate provision as is required by GAAP for any such fees and charges
which have accrued.



5.15 FISCAL YEAR.



The fiscal year of Parent, the Borrower and each of its Subsidiaries ends on the Friday
closest to December 31.


 


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5.16 FEDERAL RESERVE REGULATIONS.



None of the Loan Parties is engaged principally or as one of its important activities in the
business of extending credit for the purpose of purchasing or carrying any Margin Stock in
violation of any applicable Laws. None of the proceeds of any of the Loans shall be used to
purchase or carry, or to reduce or retire or refinance any credit incurred to purchase or carry any
Margin Stock, or to extend credit to others for the purpose of purchasing or carrying any Margin
Stock in violation of any applicable Laws. None of the Loan Parties, nor any bank acting on any of
its behalf, has taken or will take any action which might cause this Agreement or the Notes to
violate Regulation T, U or X or any other regulation of the Board of Governors of the Federal
Reserve System, as now or hereafter in effect.



5.17 INVESTMENT COMPANY ACT.



None of the Loan Parties is an “investment company,” or a company “controlled” by an
“investment company,” within the meaning of the Investment Company Act of 1940, as amended.



5.18 FOREIGN ASSETS CONTROL REGULATIONS, ETC.



Neither the making of the Loans hereunder or the use of proceeds thereof will violate the
Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the
United States Treasury Department or any enabling legislation or executive order relating thereto.
No Loan Party or, to the Knowledge of any Loan Party, any of its Affiliates is a Person described
or designated in the Specially Designation Nationals and Blocked Persons List of the Office of
Foreign Assets Control or in Section 1 of the Anti-Terrorism Order (“Designated Person”).
No Loan Party engages in any dealings or transactions with any such Designated Person. Each Loan
Party is in compliance, in all material respects, with the USA Patriot Act (Title III of Pub.L.
107-56 (signed into law October 26, 2001)).



5.19 COMPLIANCE WITH ERISA.



5.19.1 Plans. None of Parent, the Borrower, any of its Subsidiaries nor any ERISA Affiliate
maintains or contributes to any Employee Pension Plan or Multiemployer Plan, except as disclosed on
Schedule 5.19 attached hereto. The Borrower has furnished to the Administrative Agent a
copy of the most recent actuarial report for each Employee Pension Plan that is a defined benefit
plan as defined in Section 3(35) of ERISA, that is subject to the minimum funding standards of Part
3 of Subtitle B of Title I of ERISA, and for any Plan that is a funded employee welfare benefit
plan, and each such report is accurate in all material respects.



5.19.2 Favorable Determination Letters. Each Plan, which is intended to be qualified within
the meaning of Section 401(a) of the Code, has received a favorable determination letter from the
Internal Revenue Service with respect to all plan document qualification requirements for which the
remedial amendment period under Section 401(b) of the Code has closed, any plan document amendments
required by such determination letter were made as and when required by such determination letter,
and nothing has occurred, whether by
action or failure to act, since the date of such letter which would prevent any such plan from
remaining so qualified.


 


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5.19.3 Compliance. Each Plan has been operated in all material respects in compliance with
the requirements of the Code and ERISA and the terms of each Plan.



5.19.4 Absence of Certain Conditions. Except as specifically disclosed on Schedule
5.19: (a) there has been no transaction in connection with which Parent, the Borrower, its
Subsidiaries or their respective ERISA Affiliates could be subject to either a material civil
penalty assessed pursuant to Section 502(i) of ERISA or a material tax penalty imposed pursuant to
Section 4975 of the Code; (b) there is no Accumulated Funding Deficiency with respect to any
Employee Pension Plan, whether or not waived, or an unfulfilled obligation to contribute to any
Multiemployer Plan; (c) no liability to the PBGC has been or is reasonably expected to be incurred
with respect to any Employee Pension Plan except for required premium payments to the PBGC; (d)
there has been (i) no Reportable Event with respect to any Employee Pension Plan, and (ii) no event
or condition which presents a material risk of termination of any Employee Pension Plan by the
PBGC, in either case involving conditions which could result in any liability to the PBGC; (e) none
of Parent, the Borrower, its Subsidiaries or any ERISA Affiliate (i) has incurred or reasonably
expects to incur Withdrawal Liability with respect to any Multiemployer Plan, (ii) has received any
notification that a Multiemployer Plan is in Reorganization, or (iii) reasonably expects any
Multiemployer Plan to be in Reorganization; (f) there is no material liability, and no
circumstances exist pursuant to which any such material liability could reasonably be imposed on
Parent, the Borrower, any of its Subsidiaries or any ERISA Affiliate under Sections 4980B, 4980D or
5000 of the Code or Sections 409 and 502(l) of ERISA; (g) there is no Plan (that is an “employee
welfare benefit plan,” as defined in Section 3(1) of ERISA) (i) providing for retiree health and/or
life insurance or death benefits or (ii) having unfunded liabilities; (h) none of Parent, the
Borrower, any of its Subsidiaries or any ERISA Affiliate is subject to the Early Warning Program of
the PBGC (as described in PBGC Technical Update 00-3) or has been contacted by the PBGC in
connection with the PBGC’s Early Warning Program; and (i) there is no outstanding material
liability attributable to any employee pension benefit plan (as defined in Section 3(2) of ERISA)
subject to Title IV of ERISA or any multiemployer plan (as defined in Section 3(37) of ERISA) which
was previously maintained by or to which contributions were made or required to be made by Parent,
the Borrower, any of its Subsidiaries or any ERISA Affiliate, or any entity that heretofore was an
ERISA Affiliate.



5.19.5 Absence of Certain Liabilities. No liability (whether or not such liability is being
litigated) has been asserted against Parent, the Borrower, any of its Subsidiaries or any ERISA
Affiliate in connection with any Employee Pension Plan or any Multiemployer Plan by the PBGC other
than for required premium payments to the PBGC, by a trustee appointed pursuant to Section 4042(b)
or (c) of ERISA, or by a sponsor or an agent of a sponsor of a Multiemployer Plan, and no lien has
been attached and no Person has threatened to attach a lien on any of the Borrower’s, any of its
Subsidiaries’ or any ERISA Affiliate’s property as a result of failure to comply with ERISA or as a
result of the termination of any Plan.


 


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5.20 ACCURACY AND COMPLETENESS OF DISCLOSURE.



Neither this Agreement nor any other document, certificate or instrument delivered to the
Administrative Agent or the Lenders by or on behalf of the Borrower or any other Loan Party in
connection with this Agreement contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained in this Agreement and in such
other documents, certificates or instruments not misleading in light of the circumstances under
which such statements were made.



5.21 ADEQUACY OF CAPITAL; SOLVENCY.



The proceeds of the Loans, together with the proceeds of Indebtedness permitted under Section
8.1 (Indebtedness) and the cash flow from the operations of the Borrower and its Subsidiaries, will
be sufficient to enable the Borrower and its Subsidiaries to operate their respective businesses as
presently conducted or as presently proposed to be conducted. Parent has no assets or liabilities
other than 100% of the outstanding Capital Stock of the Borrower, 1.0% of the outstanding Capital
Stock of Greatbatch Mexico and 100% of the outstanding Capital Stock of GB Ventures, and assets and
liabilities directly related thereto. Parent has no liabilities except for (a) usual and customary
obligations related to its existence, (b) usual and customary obligations related to compliance
with requirements for public companies and the ownership of the Capital Stock of the Borrower,
Greatbatch Mexico and GB Ventures and (c) the 2007 Debentures and any Permitted Debenture
Refinancing. The Borrower, and after giving effect to any savings clauses in the Suretyship
Agreements, each of the other Loan Parties, is Solvent and will be Solvent after giving effect to
the transactions contemplated by this Agreement.



5.22 ABSENCE OF RESTRICTIVE PROVISIONS.



Other than the restrictions contained in this Agreement, neither Parent, the Borrower nor any
of its Subsidiaries is subject or party to any agreement, lien or encumbrance, Organizational
Document, regulatory or other provision (except for applicable statutory corporate Law)
restricting, directly or indirectly,



(a) the payment of dividends or distributions by a Subsidiary of the Borrower or the making of
advances or other cash payments by any Subsidiary of the Borrower, in each case to the Borrower or
any of its Subsidiaries; or



(b) the ability of Parent, the Borrower or any of its Subsidiaries to create, incur, assume or
permit to exist any Lien on or with respect to any property or asset of Parent, the Borrower or any
of its Subsidiaries.



5.23 ENVIRONMENTAL COMPLIANCE.



(a) None of the real property currently or previously owned or occupied by Parent, the
Borrower or any of its Subsidiaries or their assets has ever been used by previous owners or
operators, or has ever been used by Parent, the Borrower or any of its Subsidiaries, to treat,
produce, store, handle, transfer, process, transport, dispose or otherwise Release any Hazardous
Substances in violation of any Environmental Law except, in the case of previous owners or
operators, where such violation could not reasonably be expected to result in
any liability to Parent, the Borrower or its Subsidiaries, individually or in the aggregate,
in excess of an aggregate of Ten Million Dollars ($10,000,000) over the term of this Agreement.


 


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(b) There is no condition that exists on the real property owned or occupied by Parent, the
Borrower or any of its Subsidiaries that requires Remedial Action except where such Remedial Action
could not reasonably be expected to result in any cost or liability to Parent, the Borrower or its
Subsidiaries, individually or in the aggregate, in excess of an aggregate of Ten Million Dollars
($10,000,000) over the term of this Agreement.



(c) Neither Parent, the Borrower nor any of its Subsidiaries has been notified of, or has
actual knowledge of any notification having been filed with regard to, a Release on or about or
into any real property now or previously owned or occupied by Parent, the Borrower or any of its
Subsidiaries or their assets.



(d) Neither Parent, the Borrower nor any of its Subsidiaries has received a summons, citation,
notice of violation, administrative order, directive, letter or other communication, written or
oral, from any Governmental Authority concerning any intentional or unintentional action or
omission related to the generation, storage, transportation, handling, transfer, disposal or
treatment of Hazardous Substances in violation of any Environmental Law.



(e) There are no “friable” (as that term is defined in regulations under the Federal Clean Air
Act) asbestos or asbestos-containing materials which have not been encapsulated in accordance with
accepted guidelines promulgated by the United States Environmental Protection Agency existing in
any real property owned or occupied by Parent, the Borrower or any of its Subsidiaries.



(f) No equipment containing polychlorinated biphenyls, including electrical transformers, is
located on any real property owned or occupied by Parent, the Borrower or any of its Subsidiaries
in levels that exceed those permitted by any and all Governmental Authorities with jurisdiction
over such premises and which are not properly labeled in accordance with requisite standards.



(g) Each of the tanks (if any) on any real property owned or occupied by Parent, the Borrower
or any of its Subsidiaries has been registered and tested to the extent required by, and in
accordance with, any applicable Environmental Laws, and there is no evidence of leakage from any
such tanks. All tanks that have been removed or abandoned have been closed in accordance with
applicable standards under Environmental Laws.



5.24 LABOR MATTERS.



Each of the Borrower and its Subsidiaries has a stable work force in place and is not, as of
the Closing Date, party to any collective bargaining agreement nor has any labor union been
recognized as the representative of its employees except as set forth on Schedule 5.24.
There are no strikes or other labor disputes pending or, to the Borrower’s knowledge, threatened
against the Borrower or any of its Subsidiaries. Hours worked and payments made to the employees
of the Borrower and its Subsidiaries have not been in violation of the Fair Labor Standards Act or
any other applicable Law dealing with such matters. The working conditions of employees of the
Borrower and its Subsidiaries are in compliance in all material respects with


 


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OSHA and any other applicable Law. All payments due from the Borrower and its Subsidiaries, or for
which any claim may be made against any of them, on account of wages and employee and retiree
health and welfare insurance and other benefits have been paid or accrued as a liability on their
books in accordance with GAAP, as the case may be. The consummation of the transactions
contemplated by the Loan Documents will not give rise to a right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement to which the
Borrower or any of its Subsidiaries is a party or by which the Borrower or any of its Subsidiaries
is bound.




5.25 BROKERS.



No finder or broker acting on behalf of Parent, the Borrower or any of its Subsidiaries has
brought about the obtaining, making or closing of the Loans, and neither Parent, the Borrower nor
any of its Subsidiaries has or will have any obligation to any Person in respect of any finder’s or
brokerage fees in connection therewith.



5.26 EXISTING INDEBTEDNESS.



(a) Schedule 5.26(a)
lists all Indebtedness of Parent, the Borrower and its
Subsidiaries as of the Closing Date (other than the Loans), and provides the following information
with respect to each item of such Indebtedness: the obligor, each guarantor and each other Person
similarly liable in respect thereof, the holder thereof, the aggregate amount of all commitments
thereunder (and the allocation of such commitments, if any, as among revolving credit Indebtedness,
term notes or similar Indebtedness and other credits such as letter of credit or banker’s
acceptance facilities), the approximate outstanding amount thereunder (and under each individual
facility thereunder), and a description of the collateral securing such Indebtedness, if any.
Except as disclosed in Schedule 5.26(a), as of the Closing Date, neither Parent, the
Borrower nor any of its Subsidiaries will be in default and no waiver of any such default will be
in effect, in the payment of any principal or interest on any such Indebtedness and no event or
condition will exist as of the Closing Date with respect to any such Indebtedness that would permit
(or that with notice or the lapse of time, or both, would permit) one or more Persons to cause such
Indebtedness to become due and payable before its regularly scheduled dates of payment.



(b) As of the Closing Date, the obligations under or arising out of Swap Agreements are as set
forth on
Schedule 5.26(b).



ARTICLE 6




REPORTING REQUIREMENTS AND NOTICES



The Borrower covenants that from the date of this Agreement, and for so long as any of the
Obligations remain unpaid, any Letters of Credit remain outstanding, the Lenders have an unexpired
commitment to lend hereunder or the Issuing Bank has an unexpired commitment to issue Letters of
Credit hereunder, it shall comply with each of the reporting and notice requirements set forth in
this Article 6.


 


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6.1 FINANCIAL DATA AND REPORTING REQUIREMENTS; NOTICE OF CERTAIN EVENTS.



6.1.1 Delivery of Quarterly Financial Statements. As soon as practicable and in any event
within forty five (45) days after the close of each of the first three quarters of each fiscal year
of the Borrower, the Borrower shall deliver to the Lenders a management-prepared Consolidated
balance sheet, statement of income and changes in retained earnings, and statement of cash flows of
Parent, the Borrower and its Subsidiaries as at the end of and for (a) the period commencing at the
end of the previous fiscal year and ending with the end of such quarter and (b) the period
commencing at the end of the previous fiscal quarter and ending with the end of such currently
reported quarter, setting forth in comparative form the corresponding figures for the appropriate
periods of the preceding fiscal year, each certified by a Financial Officer of the Borrower as (i)
having been prepared in accordance with GAAP (with any changes in accounting policies discussed in
reasonable detail) and (ii) presenting fairly the financial position and results of operations of
Parent, the Borrower and its Subsidiaries as at the date and for the period specified (subject to
normal recurring year-end audit adjustments), it being understood that footnotes may be omitted.
The Borrower shall also deliver a management-prepared Consolidating balance sheet, statement of
income and changes in retained earnings and statement of cash flows, showing separately the results
of operations and financial condition of (i) the Domestic Subsidiaries including the Borrower,
taken as a separate group, (ii) the Foreign Subsidiaries, taken as a separate group, and (iii) the
Non-Guarantor Ventures, if any, taken as a separate group.



6.1.2 Delivery of Annual Financial Statements; Accountants’ Certification. As soon as
practicable and in any event within ninety (90) days after the close of each fiscal year of the
Borrower, the Borrower shall deliver to the Lenders:



(a) an audited Consolidated balance sheet, statement of income and changes in retained
earnings, and statement of cash flows of Parent, the Borrower and each of its Subsidiaries, as at
the end of and for the fiscal year just closed in reasonable detail and certified (without any
“going concern” or like qualification or exception and without any qualifications or exceptions as
to the scope of such audit) by Deloitte & Touche, LLP or another nationally-recognized independent
certified public accountants selected by the Borrower and satisfactory to the Administrative Agent;



(b) an attestation report of such independent certified public accountants as to Parent’s
internal controls pursuant to Section 404 of Sarbanes-Oxley expressing no concern that would result
in such firm’s inability to issue a financial audit opinion without limitation, qualification or
modification;



(c) so long as not contrary to the then current recommendations of the American Institute of
Certified Public Accountants, the year-end financial statements delivered pursuant to the preceding
paragraph (a) shall be accompanied by a written statement of the Borrower’s independent public
accountants that in making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to believe that the Borrower
has violated any provisions of Article 7 (Financial Covenants)
or, if any such violation has occurred, specifying the nature and period of existence thereof,
it being understood that such accountants shall not be liable directly or indirectly to any Person
for any failure to obtain knowledge of any such violation;


 


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(d) a management-prepared Consolidating balance sheet, statement of income and changes in
retained earnings and statement of cash flows, showing separately the results of operations and
financial condition of each Foreign Subsidiary and the results of operations and financial
condition of the U.S. Subsidiaries as a separate group, except that (1) the U.S. Subsidiaries shall
include the Borrower and (2) the French and Swiss Subsidiaries may be shown as a combined group, as
at the end of and for the fiscal year just closed; and



(e) a management-prepared Consolidating balance sheet, statement of income and changes in
retained earnings and statement of cash flows, showing separately the results of operations and
financial condition of the Non-Guarantor Ventures, if any, as a separate group.



6.1.3 Delivery of Officer’s Compliance Certificates. As soon as practicable after the close
of each quarter of each fiscal year of the Borrower and in any event no later than the date on
which financial statements are required to be delivered for each such quarter or year, as provided
in Subsections 6.1.1 (Delivery of Quarterly Financial Statements) or 6.1.2 (Delivery of Annual
Financial Statements; Accountants’ Certification), the Borrower shall deliver to the Lenders an
Officer’s Compliance Certificate certified by a Financial Officer of the Borrower (a) demonstrating
compliance with the financial covenants set forth in Article 7 (Financial Covenants) and (b)
certifying that, as at the date of such certificate, there existed no Event of Default and no
Default, or, if any such Event of Default or Default existed, specifying the nature thereof, the
period of existence thereof and what action the Borrower proposes to take or has taken with respect
thereto.



6.1.4 Auditors’ Reports. Promptly upon receipt, Parent or the Borrower shall deliver to the
Lenders copies of all management letters, financial reports or written recommendations, if any,
submitted to Parent or any of its Subsidiaries by its auditors in connection with each annual or
interim audit or examination of its books by such auditors.



6.1.5 SEC Filings, Etc. Promptly upon receipt or transmission thereof by Parent, as
applicable, the Borrower shall deliver to the Lenders:



(a) all letters of comment or material correspondence sent to Parent or any of its
Subsidiaries by any securities exchange or the Securities and Exchange Commission in relation to
the affairs of Parent or any of its Subsidiaries;



(b) all regular and periodic reports and all registration statements and prospectuses, if any,
filed by Parent or any of its Subsidiaries with any securities exchange or with the Securities and
Exchange Commission or any governmental authority succeeding to any of its functions;



(c) all financial statements, reports, notices and proxy statements sent or made available
generally by Parent or any of its Subsidiaries to other lenders to such Persons (if any) and their
other respective bondholders or security holders (or any trustee or other
representative of any of the foregoing) and any non-routine notices or other non-routine
correspondence from such lenders, bondholders or security holders (or trustee or other
representative of such Persons); and


 


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(d) all press releases and other statements made available by Parent or any of its
Subsidiaries to the public concerning material developments in their respective businesses



provided, however, that any information or document described in clauses (a) through (d) of
this Subsection 6.1.5 that is filed with the SEC via the EDGAR filing system shall be deemed to be
delivered to Lenders upon the Lenders’ receipt of notice (including any notice received via e-mail)
from the Borrower that such information or document has been filed and is available on EDGAR
provided, further, however, that no such notice need be delivered in connection with the
regularly filed Annual Reports of Parent on Form 10-K or Quarterly Reports of Parent on Form 10-Q.




6.1.6 Annual Budget. As soon as available, and in any event within ninety (90) days of the
commencement of each fiscal year, the Borrower shall deliver to the Lenders management-prepared
operating projections and budgets for Parent, the Borrower and its Subsidiaries for such fiscal
year, which shall include a balance sheet, income statement and statement of cash flows, together
with a statement presenting the assumptions made in preparing such projections and budgets and, as
soon as available, significant revisions, if any, of such projections and budgets, in each case (a)
in reasonable detail and otherwise in form and substance satisfactory to the Lenders and (b)
accompanied by a certificate of the Borrower, executed on its behalf by a Financial Officer,
stating that (i) such projections and budgets (x) have been prepared on the basis of the
assumptions stated therein and (y) represent the Borrower’s best and most recent estimate of the
future financial performance of Parent, the Borrower and its Subsidiaries and (ii) such assumptions
are believed by the Borrower to be reasonable and fair in light of current business conditions and
current facts known to the Borrower.



6.2 NOTICE OF DEFAULTS.



The Borrower shall immediately give written notice to the Lenders (a) of any Default or Event
of Default, (b) if any Lender has given notice to the Borrower or taken any other action with
respect to a claimed Default or Event of Default, or (c) if any Person has given any notice of or
taken any other action with respect to a claimed default or event or condition of the type referred
to in Subsection 9.1.3 (Cross Default to Indebtedness), specifying the nature and period of
existence of any such Default or Event of Default, or specifying the notice given or action taken
by such Lender or Person and the nature of such claimed Default, Event of Default, event or
condition, and what action the Borrower has taken, is taking or proposes to take with respect
thereto.



 


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6.3 NOTICE OF DISPUTES AND OTHER MATTERS.



The Borrower shall promptly give written notice to the Administrative Agent of the following
matters:


6.3.1 Certain Litigation. Any actions, proceedings or claims commenced or asserted against
Parent, the Borrower or any of its Subsidiaries in which the amount involved is $250,000 or more
and that is not fully covered by insurance (subject to usual and customary deductibles), or which,
if not solely a claim for monetary damages, could reasonably be expected to, if adversely
determined, result in a Material Adverse Change;



6.3.2 Conditions Affecting Collateral. Any of the following conditions: (a) movement of any
material amount of Collateral to a location not identified in the Security Agreement; (b)
acquisition of property by the Borrower or any Guarantor not subject to a valid and perfected first
priority Lien pursuant to the Loan Documents (subject to Permitted Liens and Permitted Perfection
Limitations) other than Excluded Assets; (c) any change of name, type of business entity or
jurisdiction of registration or any change of address of the chief executive office of the Borrower
or any Guarantor or (d) any other circumstance that could reasonably be expected to adversely
affect the attachment, perfection or enforcement of the Administrative Agent’s security interest in
the Collateral;



6.3.3 Material Adverse Change. Any Material Adverse Change or the existence of any facts or
circumstances or the occurrence or failure to occur of any event which could result in a Material
Adverse Change; and



6.3.4 Representations and Warranties. Any changes in facts or circumstances on which the
representations and warranties set forth in this Agreement are made that makes such representations
and warranties false or misleading in any material respect.



6.4 ERISA NOTICES.



The Borrower shall deliver to the Administrative Agent:





(a) promptly, and in any event within ten (10) Business Days, after the receipt thereof,
copies of all reports and notices which the Borrower, any of its Subsidiaries or any ERISA
Affiliate receives from PBGC, IRS or the DOL, and at the request of Lender, copies of all annual
reports for Employee Pension Plans filed with the DOL or IRS, and



(b) as soon as possible and in any event within ten (10) Business Days after Borrower, any of
its Subsidiaries or any ERISA Affiliate knows or has reason to know that (i) any Reportable Event
has occurred or is reasonably expected to occur with respect to any Employee Pension Plan, (ii) an
Accumulated Funding Deficiency has been incurred or an application has been made to the Secretary
of the Treasury for a waiver or modification of the minimum funding standard or an extension of any
amortization period under Section 412 of the Code with respect to an Employee Pension Plan, (iii)
proceedings have been instituted or are reasonably expected to be instituted under Title IV of
ERISA to terminate any Employee Pension Plan, (iv) any Withdrawal Liability from a Multiemployer
Plan has been or will be incurred by Borrower, any of its Subsidiaries or any ERISA Affiliate, (v)
any Multiemployer Plan is or is reasonably expected to be in Reorganization, terminated,
partitioned or declared insolvent, (vi) an action has been instituted pursuant to Section 515 of
ERISA to collect a delinquent contribution to a Multiemployer Plan, (vii) any event, transaction or
condition has occurred or


 


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will occur that could reasonably be expected to result in the imposition of a lien under Part
3 of Subtitle B of Title I of ERISA or Title IV of ERISA, (viii) any Prohibited Transaction or
other transaction, event or condition has occurred or will occur with respect to a Plan that could
reasonably be expected to result in the Borrower, any of its Subsidiaries or any ERISA Affiliate
incurring a material liability or becoming subject to a material penalty or excise tax, or (ix) the
PBGC has contacted the Borrower, any of its Subsidiaries or any ERISA Affiliate with respect to the
PBGC’s Early Warning Program, a certificate of the Chief Executive Officer or Chief Financial
Officer of the Borrower setting forth the details as to such event, transaction or condition and
the action the Borrower has taken, is taking or proposes to take with respect thereto and with
respect to (i) and (ii) above, with copies of any notices and applications.



6.5 INTELLECTUAL PROPERTY.



The Borrower shall notify the Administrative Agent of any of the following conditions no later
than the date that the delivery of the Officer’s Compliance Certificate is required, pursuant to
Subsection 4.1.17 (Officer’s Compliance Certificate) immediately following the occurrence of such
event or condition: (a) any changes in and to the ownership of, or rights to use, any material
Intellectual Property owned or licensed by the Borrower or any of its Subsidiaries; (b) the
registration of any copyrights at the United States Copyright Office; (c) any material infringement
or misappropriation of any material Intellectual Property owned or licensed by the Borrower or any
of its Subsidiaries by any Person of which the Borrower or any of its Subsidiaries has Knowledge;
(d) the receipt of any written claim, demand or threat, or the institution of any proceeding,
relating to any material Intellectual Property owned or licensed by the Borrower or any of its
Subsidiaries or (e) any other material adverse change affecting or relating in any way to any
Intellectual Property owned or licensed by the Borrower or any of its Subsidiaries.



6.6 MISCELLANEOUS.



With reasonable promptness, the Borrower shall deliver such other information respecting the
business, operations and financial condition of Parent, itself and its Subsidiaries as the
Administrative Agent or any Lender may from time to time reasonably request.



6.7 AUTHORIZATION OF THIRD PARTIES TO DELIVER INFORMATION.



Any opinion, report or other information delivered to the Administrative Agent, the Issuing
Bank or any Lender pursuant to the Loan Documents is hereby deemed to have been authorized and
directed by the Borrower to be delivered for the benefit, and reliance thereupon, of such
recipient.



 


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ARTICLE 7




FINANCIAL COVENANTS



The Borrower covenants that from the date of this Agreement and for so long as any of the
Obligations remain unpaid, any Letters of Credit remain outstanding, the Lenders have an unexpired
commitment to lend hereunder or the Issuing Bank has an unexpired commitment to issue Letters of
Credit hereunder, it shall comply with each of the financial covenants set forth in this Article 7.



7.1 INTEREST COVERAGE RATIO.



Parent, the Borrower and its Subsidiaries, on a Consolidated basis, shall maintain a ratio of
Adjusted EBITDA to Interest Expense (each for the four preceding fiscal quarters) calculated as of
the last day of any fiscal quarter, of at least 3.00 to 1.00.



7.2 TOTAL LEVERAGE RATIO.



Parent, the Borrower and its Subsidiaries, on a Consolidated basis, shall maintain a Total
Leverage Ratio of no more than the ratios specified below:



	 	 	 
	Ratio	 	Period
	 
	 	 
	4.50 to 1.00

	 	Closing Date through December 30, 2011.
	4.00 to 1.00

	 	December 31, 2011 and thereafter.






This covenant shall be tested quarterly and at any time the Borrower or any of its Subsidiaries
incurs Indebtedness; provided, however, subject to any other requirements in this
Agreement, Borrower shall not be required to deliver evidence of compliance at the time of the
incurrence of Indebtedness.




7.3 ADDITIONAL PROVISIONS RESPECTING CALCULATION OF FINANCIAL COVENANTS.



Except as otherwise provided in this Agreement, the following provisions shall apply.



7.3.1 All the calculations of financial covenants shall be based upon the figures set forth in
the Consolidated financial statements of Parent, the Borrower and its Subsidiaries most recently
delivered pursuant to this Agreement even where this Agreement may refer to a period ended on, or
most recently prior to, a specified date of determination.



7.3.2 Calculations made pursuant to this Article 7 shall give effect, on a pro forma basis, to
all Acquisitions and dispositions made during the quarter or year to which the required compliance
relates, as if such Acquisition or disposition had been consummated on the first day of the
applicable period, provided, that items of revenue and expense shall be based on actual
amounts and not adjusted to give effect to potential savings and similar adjustments. Calculation
of financial covenants in connection with Acquisitions and dispositions shall be


 


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based on the results of operations and financial position of Parent, the Borrower and its
Subsidiaries set forth on the most recently delivered financial statements, adjusted, in the case
of an Acquisition, to give effect to any additional Indebtedness incurred in connection therewith
and to include the results of operations and financial position of the target during the applicable
period, and in the case of a disposition, to give effect to any repayment of Indebtedness in
connection therewith and to exclude the results of operations and financial position for the
applicable period of the assets so disposed of.




7.3.3
(a) Notwithstanding the definition of “GAAP” in Section 1.1 (Defined Terms), or any
provision to the contrary in this Agreement, the financial covenants set forth in this Article 7
shall be calculated for all purposes in accordance with generally accepted accounting principles as
in effect on the date of the delivery of the financial statements referred to in Subsection 4.1.12
(Financial Statements; Projections) (“Closing Date GAAP”) subject to the following
provisions of this Subsection 7.3.3.



(b) If, after the date of this Agreement, there are any changes to GAAP that would affect the
calculation of the financial covenants, and if the Borrower so requests, the Majority Lenders may:



(i) approve the request of the Borrower to change the basis for calculating the financial
covenants from Closing Date GAAP to Closing Date GAAP as modified to incorporate the change or
changes in GAAP requested by the Borrower, after which time, Closing Date GAAP shall be deemed to
be Closing Date GAAP as so adjusted (“Adjusted GAAP”); and



(ii) in connection with any such change to Adjusted GAAP, if the Majority Lenders deem it to
be appropriate, may adjust one or more of the financial covenants set forth in this Article 7 (and,
without limiting the generality of the foregoing, the set points for determining Applicable Margin,
Commitment Fee or any other amount derived from the ratios referred to in the financial covenants)
or the method of calculating such financial covenants for all purposes (including, without
limitation, for purposes of determining Applicable Margin) in such manner as is necessary or
desirable to carry out the initial intent of the parties with respect to such covenants (and
pricing, as applicable) as originally drafted.



(c) At any time that GAAP changes, the Borrower may initiate a request pursuant to the
preceding paragraph (b), it being understood that the right to make such a request is not a
one-time right. If Closing Date GAAP has already been adjusted to be Adjusted GAAP at the time of
any such request and if the Majority Lenders agree to such further adjustments, then Adjusted GAAP
shall thereafter be deemed to incorporate such further adjustments.



7.3.4 At any time that Closing Date GAAP (or Adjusted GAAP, as applicable) is not the same as
GAAP, the Borrower shall deliver, together with the Officer’s Compliance Certificate pursuant to
Subsection 6.1.3 (Delivery of Officer’s Compliance Certificates), a reconciliation of each of the
component figures used in determining compliance with the financial covenants (based on Closing
Date GAAP or Adjusted GAAP, as applicable) and the corresponding amounts shown on the financial
statements delivered pursuant to Section 6.1
(Financial Data and Reporting Requirements; Notice of Certain Events) (based on GAAP). If so
requested by the Majority Lenders, the Borrower shall also provide a confirmation of such
reconciliation by the Borrower’s independent certified public accountants.


 


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ARTICLE 8




BUSINESS COVENANTS



The Borrower covenants that from the date of this Agreement, and for so long as any of the
Obligations remain unpaid, any Letters of Credit remain outstanding, the Lenders have an unexpired
Commitment to lend hereunder or the Issuing Bank has an unexpired commitment to issue Letters of
Credit hereunder, it shall comply with each of the covenants set forth in this Article 8.



8.1 INDEBTEDNESS.



8.1.1 In General. The Borrower shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume, guarantee, permit to exist or otherwise become or
remain directly or indirectly liable with respect to any Indebtedness other than each of the
following:



(a) obligations under Swap Agreements consistent with the terms of this Agreement;



(b) obligations under the Loan Documents and Letters of Credit;



(c) obligations in an aggregate principal amount not to exceed Seven Million Dollars
($7,000,000) at any time outstanding in respect of Capital Lease Obligations and purchase money
security interests;



(d) obligations owing to the Borrower or to any Subsidiary Guarantor by the Borrower or any
other Subsidiary Guarantor;



(e) other Indebtedness (not otherwise provided for in this subsection 8.1.1) existing on the
Closing Date and listed on Schedule 8.1 hereto, and any amendments or refinancings thereof
so long as such amendments and refinancings do not increase the principal amount thereof, shorten
the maturity or weighted amortization or substantially increase the obligations of the obligors;



(f) unsecured Indebtedness of the Borrower or any Subsidiary Guarantor in an aggregate amount
not to exceed Ten Million Dollars ($10,000,000) at any one time outstanding; provided that
before and after the incurrence of any such Indebtedness, the Borrower shall be in compliance with
the financial covenants set forth in Article 7 (Financial Covenants);



(g) Indebtedness in an aggregate amount outstanding any at any time not to exceed Fifteen
Million Dollars ($15,000,000) that is secured by any asset acquired by Borrower or any Subsidiary
at the time of any such acquisition provided that such Indebtedness
(i) existed at the time of the acquisition of such asset by Borrower or any Subsidiary and
(ii) is not incurred in contemplation of such acquisition;


 


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(h) Indebtedness permitted under clause (b) of Section 8.3 (Investments, Loans, Acquisitions);



(i) Indebtedness permitted by clause (d) of Section 8.3 (Investments, Loans, Acquisition);



(j) [Reserved];



(k) Indebtedness permitted by clause (e) of Section 8.3 (Investments, Loans, Acquisition);



(l) unsecured Indebtedness of one or more Foreign Subsidiaries, the aggregate outstanding
principal amount of which Indebtedness is not at any time in excess of Ten Million Dollars
($10,000,000);



(m) Indebtedness arising from the deferral of payment of a Restricted Payment allowed under
Subsection 8.4.5 (Restricted Payments; Ventures) (whether or not such Indebtedness is
subordinated);



(n) Indebtedness permitted by clause (i) of Section 8.3; and



(o) Guarantees by the Parent, a Borrower or Subsidiaries of the Borrower of Indebtedness
permitted by clause (l) above.



8.1.2 Limitation on Incurrence. In addition to the limitations on the incurrence or existence
of Indebtedness referred to above, no Indebtedness may be incurred by the Borrower or any of its
Subsidiaries unless immediately before and after giving effect to the incurrence of such
Indebtedness, no Default or Event of Default shall have occurred and be continuing.



8.2 LIENS; AND LICENSES.



8.2.1 In General. The Borrower shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any
property or assets of the Borrower or any Subsidiary of the Borrower, except each of the following
(the items referred to in clauses (a) through (g) are, collectively, the “Permitted
Liens”):



(a) Liens created in favor of the Administrative Agent for the benefit of the Secured Parties
pursuant to the Loan Documents and Liens, if any, in favor of the Issuing Bank to Cash
Collateralize or otherwise secure obligations of a Defaulting Lender to fund risk participations
under this Agreement;



(b) Liens for taxes, assessments or other governmental charges the payment of which is not yet
due or the payment of which is not at the time required by Section 8.11 (Payment of Taxes and
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(c) statutory Liens of landlords and statutory Liens of carriers, warehousemen, mechanics and
materialmen incurred in the ordinary course of business for sums not yet due or the payment of
which is not at the time required by Section 8.11 (Payment of Taxes and Claims);



(d) leases or subleases granted to others, easements, rights-of-way, restrictions and other
similar charges or encumbrances on real property, in each case incidental to, and not interfering
with, the ordinary conduct of the business of the Borrower or any of its Subsidiaries
provided, that the Borrower shall notify the Administrative Agent of any such lease or
subleases and Administrative Agent may in the case of real property leases or subleases, in its
discretion, require assignments of the rents thereunder;



(e) Capital Leases and purchase money Liens incurred in compliance with clause (c) of
Subsection 8.1.1 (In General); provided, that no such security interest shall extend to or
cover any property other than the leased property or property acquired with such purchase money
Indebtedness;



(f) Liens on assets at the time of acquisition of such asset by Borrower or any Subsidiary;
provided that (i) such Liens exist at the time of such acquisition and are not created in
anticipation of the acquisition of such asset, (ii) any such Lien does not by its terms cover any
asset other the asset acquired and (iii) any such Lien does not by its terms secure any
Indebtedness other than Indebtedness permitted under Section 8.1 (Indebtedness) of this Agreement;
and



(g) other Liens existing on the Closing Date and listed on Schedule 8.2 hereto,
relating to Indebtedness listed on Schedule 8.1 hereto and any amendments or refinancing
permitted by Subsection 8.1.1(e) (In General), so long as the Liens do not encumber any property
not encumbered by the Liens listed on Schedule 8.2 hereto.



8.2.2 Negative Pledge. The Borrower shall not, and shall not permit any of its Subsidiaries
to, agree with any Person to restrict or place limitations on the right of the Borrower or any of
its Subsidiaries to create, incur, assume or permit to exist any Lien on or with respect to any
property, including real property, or asset of the Borrower or any of its Subsidiaries.



8.2.3 Licenses. The Borrower shall not, and shall not permit any of its Subsidiaries to,
license or sublicense any of its Intellectual Property or general intangibles if the effect of such
license or sublicense is to transfer all or substantially all of the licensor’s or sublicensor’s
economic value in the Intellectual Property or general intangible to the licensee or sublicensee
except pursuant to a disposition permitted by Subsection 8.7.2 (Sales and Other Dispositions).



8.3 INVESTMENTS, LOANS, ACQUISITIONS, ETC. The Borrower shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, make or permit to exist any Investment
or make any Acquisition, except that the Borrower and its Subsidiaries may permit to exist and, so
long as no Default or Event of Default then exists or would be caused thereby, the Borrower and its
Subsidiaries may make, any of the following:



(a) Permitted Acquisitions;


 


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(b) Investments by the Borrower in Foreign Subsidiaries in an aggregate amount at any time
outstanding not to exceed Twenty Million Dollars ($20,000,000) for capital expansion or working
capital purposes; provided, that, to the extent that Borrower or any Subsidiary provides a
Guarantee pursuant to clause (o) of Section 8.1.1 (Indebtedness; General) of Foreign Subsidiary
Indebtedness incurred pursuant to Subsection 8.1.1(l) (Indebtedness; General), the above dollar
amount provided for in this clause (b) shall be reduced dollar-for-dollar by an amount equal to
such Guaranteed Indebtedness.



(c) Investments by the Borrower or any Subsidiary Guarantors in Subsidiary Guarantors, the
creation by the Borrower or any Subsidiary Guarantor of new direct or indirect wholly-owned
Subsidiaries that become Subsidiary Guarantors, and loans or advances from any Subsidiary Guarantor
to the Borrower;



(d) Investments by Foreign Subsidiaries in other Foreign Subsidiaries or the creation by a
Foreign Subsidiary of additional Foreign Subsidiaries;



(e) subject to Section 8.30 (Reset Provision), Investments in an aggregate amount at any time
outstanding not to exceed Sixty Million Dollars ($60,000,000), (excluding operating expenses that
are written off in the ordinary course of business) so long as after giving pro forma effect to the
proposed Investment the Specified Restricted Use Conditions are satisfied;



(f) Investments in Interest Rate Protection Agreements consistent with the terms of this
Agreement or other Swap Agreements entered into in the ordinary course of business for the purpose
of minimizing risk and not for speculative purposes;



(g) Investments in Cash Equivalents;



(h) Investments in connection with a Permitted Stock Repurchase under Subsection 8.4.3
(Permitted Stock Repurchases); and



(i) other Investments existing on the Closing Date and listed on Schedule 8.3 hereto.



For the purposes of this Section 8.3 (Investments, Loans, Acquisitions, Etc), the “amount” of any
loan, advance, extension of credit or investment made by any Person or Persons (collectively, the
“Investor”) in any other Person or Persons (collectively, the “Recipient”) shall
be:




(1) with respect to any loans, advances or extensions of credit made by any Investor to or in
any Recipient, an amount equal to the principal amount of loans, advances and extensions of credit
made to the Recipient, directly or indirectly, by the Investor; and



(2) with respect to any equity investment made by any Investor in any Recipient, the amount of
capital contributions made in the Recipient, directly or indirectly, by the Investor or the
purchase price paid to the Recipient by any Investor in respect of any Capital Stock of the
Recipient issued by the Recipient to the Investor.


 


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Notwithstanding the foregoing, for purposes of clause (e) only, the “amount” of any loan, advance,
extension of credit or investment made by any Person or Persons (collectively, the
“Investor”) in any other Person or Persons (collectively, the “Recipient”) shall
be:




(1) with respect to any loan, advance or extension of credit made by any Investor to or in any
Recipient, an amount equal to the principal amount of such loan, advance or extensions of credit
made to the Recipient, directly or indirectly, by the Investor less the amount of any repayment or
prepayment of such principal amount; and



(2) with respect to any equity investment made by any Investor in any Recipient, the amount of
any capital contribution made in the Recipient, directly or indirectly, by the Investor or the
purchase price paid to the Recipient by any Investor in respect of any Capital Stock of the
Recipient issued by the Recipient to the Investor less the amount of any dividend or stock
repurchase received on account of any such equity investment.



8.4 RESTRICTED PAYMENTS.



The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, declare, order, pay, make or set apart any sum or property for any Restricted Payment,
except that:



8.4.1 Intercompany. Restricted Payments may be declared and paid by direct or indirect
wholly-owned Subsidiaries of the Borrower to the Borrower and other direct or indirect wholly-owned
Subsidiaries of the Borrower.



8.4.2 Permitted Debenture Payments. Subject to Section 8.30 (Reset Provision), the Borrower
may make one or more Restricted Payments to be distributed to Parent in an aggregate amount for all
such Restricted Payments not to exceed, at any date of determination, $198,000,000, the proceeds of
which may be used by Parent to make payments to holders of the 2007 Debentures if such holders of
the 2007 Debentures exercise their conversion rights under the 2007 Indenture and Parent elects to
satisfy its conversion obligations, in whole or in part, in cash, in each case or to repay or
prepay the 2007 Debentures, so long as (A) the Specified Restricted Use Conditions are
satisfied,(B) the Borrower provides notice to the Administrative Agent that the Restricted Payment
is being made and (C) the proceeds of the Restricted Payment are promptly used by Parent to make
such payments to holders of the 2007 Debentures, as applicable.



8.4.3 Permitted Stock Repurchases. Subject to Section 8.30 (Reset Provision), the Borrower
may make one or more Restricted Payments to be distributed to Parent in an aggregate amount for all
such Restricted Payments not to exceed, at any date of determination, $60,000,000, the proceeds of
which may be used by Parent to repurchase outstanding Capital Stock of Parent so long as (i) the
Specified Restricted Use Conditions are satisfied, (ii) the Borrower provides notice to the
Administrative Agent that the Restricted Payment is being made, and (iii) the proceeds of the
Restricted Payment are promptly used by Parent to make such stock repurchases.


 


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8.4.4 Debenture Interest Payments. So long as: (i) no Default or Event of Default exists at
the time of the respective Restricted Payment or would exist immediately after giving effect
thereto and (ii) the Borrower is in pro forma compliance with the financial covenants set forth in
Article 7 (Financial Covenants) of this Agreement, the Borrower may make regularly scheduled
payments of interest (a) on the 2007 Debentures and/or (b) on the debentures issued pursuant to any
Permitted Debenture Refinancing so long as the aggregate amount of payments in respect of (a) and
(b) in any calendar year does not exceed Six Million Dollars ($6,000,000).



8.4.5 Ventures. Restricted Payments for tax distributions and for the redemption of Capital
Stock in a Venture (including subsequent payments on Indebtedness arising from the deferral of a
payment created in connection with the redemption of Capital Stock in a Venture so long as the
deferred payment is not guaranteed by a Loan Party) may be made by the Borrower to a
Venture to be distributed to any Person holding a minority interest in the Capital Stock of
such Venture so long as no Default or Event of Default exists at the time of the Restricted Payment
or would exist immediately after giving effect thereto.



8.5 SALE-LEASEBACKS.



The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, sell or otherwise transfer, in one or more related transactions, any property (whether
real, personal or mixed) and thereafter rent or lease such transferred property or substantially
identical property.



8.6 TRANSACTIONS WITH AFFILIATES.



The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, engage in any transaction with any Affiliate on terms that are less favorable to the
Borrower or such Subsidiary than those that might be obtained at the time from unaffiliated third
parties, provided that the foregoing restrictions shall not apply to (a) transactions
exclusively among the Borrower and its Subsidiary Guarantors not prohibited by this Agreement, (b)
Restricted Payments, to the extent permitted under Section 8.4 (Restricted Payments), (c) usual and
customary indemnification obligations in the Organizational Documents of the Borrower and its
Subsidiaries for acts and omissions of their officers and directors, (d) Investments permitted by
Section 8.3 (Investments, Loans, Acquisitions, Etc.) and (e) transactions exclusively among the
Foreign Subsidiaries. If any Affiliate transaction (other than as set forth in the preceding
proviso) involves an amount in excess of Five Million Dollars ($5,000,000), it shall be approved by
a majority of the disinterested members (if any) of the Board of Directors of the Borrower. If any
such Affiliate transaction involves an amount in excess of Twenty Million Dollars ($20,000,000), it
shall be determined by a nationally recognized investment banking or accounting firm to be fair to
the Borrower and its Subsidiaries.



 


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8.7 MERGERS AND DISPOSITIONS.



8.7.1 Consolidations and Mergers. The Borrower shall not, and shall not permit any of its
Subsidiaries to:



(a) directly or indirectly, consolidate with or merge into any Person, except:



(i) a Subsidiary of the Borrower may consolidate with or merge into the Borrower so long as
the Borrower is the survivor;



(ii) a Subsidiary of the Borrower may consolidate with or merge into a Subsidiary Guarantor so
long as the Subsidiary Guarantor is the survivor;



(iii) a Foreign Subsidiary may consolidate with or merge into another Foreign Subsidiary; and



(iv) so long as no Default or Event of Default then exists or would be created thereby, a
Subsidiary of the Borrower may consolidate with or merge with another Person to effect a Permitted
Acquisition or a disposition permitted by Subsections 8.7.2 (Sales and Other Dispositions), in each
case subject to Section 8.28 (Certain Obligations Respecting Subsidiaries); or



(b) enter into any winding-up, liquidation, dissolution, division or similar transaction
except:



(i) a Subsidiary of the Borrower may be dissolved following the transfer of all of its assets
to the Borrower or one or more Subsidiary Guarantors; and



(ii) a Foreign Subsidiary may be dissolved following the transfer of all of its assets to the
Borrower, one or more Subsidiary Guarantors and/or one or more Foreign Subsidiaries.



8.7.2 Sales and Other Dispositions. The Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, sell, lease, license, abandon or otherwise transfer or
dispose of any of its assets or property of any nature except:



(a) sales of inventory in the ordinary course of its business;



(b) licensing or sublicensing of Intellectual Property of Borrower or any of its Subsidiaries
in the ordinary course of business consistent with past practice so long as the effect of such
license or sublicense shall not transfer all or substantially all of the licensor’s or
sublicensor’s economic value in the Intellectual Property to the licensee or sublicensee;



(c) transfers of assets or property to the Borrower or a Subsidiary Guarantor;



(d) transfers of assets or property from a Foreign Subsidiary to another Foreign Subsidiary;



(e) transfers of assets in an amount not to exceed Twenty-Five Million Dollars ($25,000,000)
in any fiscal year, so long as at the time of such disposition no Default or Event of Default
exists or would be created thereby; and


 


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(f) sales of any assets of, or equity interests in, Non-Guarantor Ventures.



Notwithstanding the foregoing or anything to the contrary contained in this Agreement, neither
the Borrower nor any of its Subsidiaries shall sell, transfer or otherwise dispose of any of its
respective assets or property in violation of Regulation U of the Board of Governors of the Federal
Reserve System.



8.8 MANAGEMENT ARRANGEMENTS.



The Borrower shall not, and shall not permit any of its Subsidiaries to, (a) enter into or
remain bound by any management, employment or consulting agreement with any Person that gives such
Person the right to manage its business, except for usual and customary employment agreements and
consulting agreements consistent with past practice, or (b) directly or indirectly pay or accrue to
any Person any sum or property for fees for management or similar services rendered in connection
with the operation of a Permitted Business except as set forth above.



8.9 EXISTENCE.



Subject to the provisions of Subsection 8.7.1 (Consolidations and Mergers), the Borrower shall
at all times preserve and keep in full force and effect (a) its corporate existence and (b) the
corporate, partnership or other existence of each of its Subsidiaries, and the good standing of
such Persons in all states or jurisdictions in which they are formed or required to qualify to do
business, except, as to qualification only, where the failure to keep in full force and effect any
such good standing could not result in a Material Adverse Change.



8.10 COMPLIANCE WITH LAW.



The Borrower shall, and shall cause each of its Subsidiaries to, comply with all Laws, and
obtain or maintain all material permits, franchises and other governmental authorizations and
approvals necessary for the ownership, acquisition and disposition of their respective properties
and the conduct of their respective businesses including, all applicable Food and Drug
Administration rules and regulations, except for such matters of noncompliance as could not,
individually or in the aggregate, result in a Material Adverse Change. Without limiting the
generality of the foregoing, the Borrower and its Subsidiaries shall be in compliance with all
orders, rules, regulations issued by, and recommendations of, the U.S. Department of the Treasury
and OFAC pursuant to IEEPA, the PATRIOT Act, other legal requirements relating to money laundering
or terrorism and any executive orders related thereto, which at the time apply to them.



8.11 PAYMENT OF TAXES AND CLAIMS.



The Borrower shall, and shall cause each of its Subsidiaries to, pay all taxes, assessments
and other governmental charges imposed upon it or any of its properties or assets or in respect of
any of its franchises, business, income or profits before any penalty or interest accrues thereon,
and all claims (including, without limitation, claims for labor, services, materials and


 


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supplies) for sums that have become due and payable and that by Law create a Lien upon any of its
properties or assets, provided that no such charge or claim need be paid if being contested
in good faith by appropriate proceedings promptly initiated and diligently conducted and if such
reserve or other appropriate provision, if any, as shall be required by GAAP shall have been made
therefor and, if the filing of a bond or other indemnity is necessary to avoid the creation of a
Lien against any of the assets of the Borrower or any of its Subsidiaries, such bond shall have
been filed or indemnity provided.




8.12 TAX CONSOLIDATION.



The Borrower will not file or consent to or permit the filing of any consolidated income tax
return on behalf of it or any of its Subsidiaries with any Person (other than a consolidated return
of Parent, the Borrower and its Subsidiaries). The Borrower will not, and will not permit any of
its Subsidiaries to, enter into any agreement with any Person which would cause the Borrower or any
of such Subsidiaries to bear more than the amount of taxes to which it would have been subject had
it separately filed (or filed as part of a consolidated return among Parent, the Borrower and its
Subsidiaries).



8.13 COMPLIANCE WITH ERISA



(a) The Borrower shall not, and shall not permit any of its Subsidiaries or any of its ERISA
Affiliates to, take, or fail to take, any of the following actions or permit any of the following
events to occur if such action or event individually or together with all other actions or events
would subject the Borrower, any of its Subsidiaries or any of its ERISA Affiliates to any material
tax, penalty, or other liabilities:



(i) engage in or knowingly consent to any “party in interest” or any “disqualified person,” as
such terms are defined in Section 3(14) of ERISA and Section 4975(e)(2) of the Code respectively,
engaging in any Prohibited Transaction in connection with which the Borrower, any of its
Subsidiaries or any ERISA Affiliate could be subject to either a civil penalty assessed pursuant to
Section 502(i) of ERISA or a tax imposed by Section 4975 of the Code;



(ii) terminate any Employee Pension Plan in a manner, or take any other action, which could
result in any liability of the Borrower, any of its Subsidiaries or any ERISA Affiliate to the
PBGC;



(iii) fail to make full payment when due of all amounts which, under the provisions of any
Plan or any Multiemployer Plan, the Borrower, any of its Subsidiaries or any ERISA Affiliate is
required to pay as contributions thereto, or permit to exist any Accumulated Funding Deficiency,
whether or not waived, with respect to any Employee Pension Plan or fail to pay PBGC premiums when
due;



(iv) permit the current value of all vested accrued benefits under all Employee Pension Plans
which are subject to Title IV of ERISA to exceed the current value of the assets of such plans
allocable to such vested accrued benefits, except as may be permitted under actuarial funding
standards adopted in accordance with Section 430 of the Code;


 


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(v) withdraw from any Multiemployer Plan, if such withdrawal would result in the imposition of
Withdrawal Liability;



(vi) fail to comply in all material respects with the requirements of COBRA regarding
continued health coverage, of the Health Insurance Portability and Accountability Act of 1996, and
of Section 1862(b) of the Social Security Act, with respect to any Plans subject to the
requirements thereof; or



(vii) fail to comply in all other material respects with the provisions of ERISA and the Code
with respect to any Plan.



(b) The Borrower shall comply with the ERISA reporting requirements set forth in Section 6.4
(ERISA Notices).



As used in this Section 8.13, the term “accrued benefit” has the meaning specified in Section
3(23) of ERISA and the term “current value” has the meaning specified in Section 4001(a)(18)(B) of
ERISA.



8.14 INSURANCE.



8.14.1 Liability, Property Damage, Etc. The Borrower shall maintain, and shall cause each of
its Subsidiaries to maintain, with financially sound and reputable insurers, insurance against loss
or damage and liability of the kinds customarily insured against by Persons of established
reputation engaged in the same or similar businesses and similarly situated and in such amounts as
are customarily carried under similar circumstances by other such Persons and otherwise as is
prudent for Persons engaged in such business. The Borrower’s general liability and property
insurance shall name the Administrative Agent as lender loss payee and additional insured and shall
provide for at least thirty (30) days advance notice to the Administrative Agent prior to any
non-renewal, cancellation, change in risks (in any material respect) or material amendment of any
such Insurance, except for such limitations as may be consistent with industry standards unless
such limitations are not acceptable to the Administrative Agent, in its sole discretion. In
addition, the Borrower shall, and shall cause each of its Subsidiaries to, maintain such other
insurance as may be required by the Security Agreements and the other Loan Documents. Annually
(and from time to time upon request of the Administrative Agent), the Borrower shall promptly
furnish to the Administrative Agent evidence, in form and substance satisfactory to the
Administrative Agent, of the maintenance of all insurance, indemnities or bonds required by this
Subsection 8.14.1.



8.14.2 PBGC. The Borrower shall maintain or cause to be maintained all insurance available
through the PBGC and/or insurers acceptable to the Administrative Agent against its obligations and
the obligations of its Subsidiaries to the PBGC.



8.15 MAINTENANCE OF PROPERTIES.



The Borrower shall, and shall cause each of its Subsidiaries to: (a) maintain its properties
in good repair, working order and condition, ordinary wear and tear excepted; and (b) make all
appropriate and proper repairs, renewals, replacements, additions and improvements thereto,
ordinary wear and tear excepted; and (c) keep all systems and equipment that may now or in


 


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the future be subject to compliance with any material standards or rules imposed by any
Governmental Authority in compliance in all material respects with such standards or rules. The
Borrower shall, and shall cause each of its Subsidiaries to, take all steps necessary to prosecute,
maintain, preserve, defend and protect, and, when necessary, renew: (i) all franchises, licenses,
permits, patent applications, patents, trademarks, service marks, trade dress, domain names, trade
names, trade secrets, copyrights and other general intangibles and Intellectual Property owned or
licensed by any of them, including but not limited to the payment of all necessary maintenance fees
and the filing of all statutory declarations, except where such Person has reasonably determined
that it is in its best interest to terminate or abandon any such asset and such termination or
abandonment does not have a Material Adverse Effect and (ii) all agreements to which any of them
are parties that are necessary to conduct the Borrower’s or the applicable Subsidiary’s business.




8.16 MAINTENANCE OF RECORDS; FISCAL YEAR.



The Borrower shall, and shall cause each of its Subsidiaries to, keep at all times books of
record and account in which full, true and correct entries shall be made of all dealings or
transactions in relation to its business and affairs. The Borrower shall, and shall cause each of
its Subsidiaries to, keep its books of account and financial statements in accordance with GAAP and
to report on the basis of a fiscal year ending on the Friday closest to December 31.



8.17 INSPECTION.



Upon reasonable notice (and for this purpose no more than two (2) Business Days’ notice shall
be required under any circumstances) if no Event of Default or Default shall exist, or at any time
with or without notice after the occurrence of an Event of Default or Default, the Borrower shall,
and shall cause each of its Subsidiaries to, allow any representative of the Administrative Agent,
the Issuing Bank or any Lender to visit and inspect any of the properties of the Borrower and any
of its Subsidiaries, to examine the books of account and other records and files of the Borrower
and any of its Subsidiaries (including the financial statements (audited and unaudited, to the
extent prepared) of each Subsidiary and information with respect to each business operated by the
Borrower and any of its Subsidiaries), to make copies thereof and to discuss the affairs, business,
finances and accounts of the Borrower and its Subsidiaries with their personnel and accountants.



8.18 EXCHANGE OF NOTES.



Upon receipt of a written notice of loss, theft, destruction or mutilation of any or all of
the Notes and of a letter of indemnity from the affected Lender or its successors or assigns, and
upon surrendering for cancellation such Notes if mutilated (in which event no indemnity shall be
required), the Borrower shall execute and deliver a new Note or Notes of like tenor in lieu of such
lost, stolen, destroyed or mutilated Notes, as the case may be.



8.19 TYPE OF BUSINESS; OTHER ACTIVITIES.



The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly enter into any business that is not a Permitted Business.


 


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8.20 ISSUANCE OF EQUITY.



The Borrower shall not, and shall not permit any of its Subsidiaries to, issue, authorize the
issuance of, or obligate itself to issue any shares of its Capital Stock or other equity to any
Person that (a) would contravene any other provision of this Agreement, including result in a
Change of Control, or (b) would result in there being Capital Stock of the Borrower or any of its
Subsidiaries (other than thirty-four percent (34%) of the Capital Stock of First-Tier Foreign
Subsidiaries and the Capital Stock of other Foreign Subsidiaries) that is not pledged pursuant to
the Pledge Agreement.



8.21 CHANGE IN DOCUMENTS.



The Borrower shall not, and shall not permit any of its Subsidiaries to, amend or otherwise
modify the respective Organizational Documents of such Person in any manner inconsistent with this
Agreement or in any manner that could reasonably be expected to have an adverse effect on the
rights of the Administrative Agent and Lenders.



8.22 PAYMENT OF SUBORDINATED INDEBTEDNESS.



The Borrower will not, and Borrower will not permit any of its Subsidiaries to, make any
voluntary payment or prepayment, whether in respect of principal, interest, fees, expenses or
otherwise, or any redemption, retirement, purchase or other acquisition, direct or indirect, in
respect of any subordinated Indebtedness. So long as no Default or Event of Default has occurred
and is continuing, the Borrower and its Subsidiaries may make required payments on subordinated
Indebtedness in accordance with its terms when due, but only to the extent in compliance with the
subordination provisions applicable thereto. The Borrower shall not, and shall not permit any
Subsidiary to, make any principal payments in respect of (or make any payment to Parent in respect
of or which may be used to repay) any Indebtedness of Parent other than as expressly permitted in
Subsection 8.4.2 (Permitted Debenture Payments) and Subsection 8.4.4 (Debenture Interest Payments).



8.23 SENIORITY OVER SUBORDINATED DEBENTURES.



The Borrower shall cause the 2007
Debentures and the Permitted Debenture Refinancing and all Indebtedness pursuant to amendments
thereto and refinancings thereof and pursuant to any other Indebtedness purported to be
subordinated to the Loans to be duly subordinated to the Secured Obligations.



8.24 COMPLIANCE WITH FEDERAL RESERVE REGULATIONS.



No proceeds of the Loans shall be used, in whole or in part, by the Borrower, any of its
Subsidiaries or other Person, directly or indirectly, to purchase or carry, or to reduce or retire
or refinance any credit incurred to purchase or carry, any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any Margin Stock in violation of applicable Law.
Neither the Borrower nor any of its Subsidiaries shall, directly or indirectly, otherwise take or
permit to be taken any action which would result in the Loans or the carrying out of any of the
other transactions contemplated by this Agreement being violative of Regulation T, U or X of the
Board of Governors of the Federal Reserve System or any other regulation of the Board of Governors
of the Federal Reserve System.


 


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8.25 LIMITATIONS ON CERTAIN RESTRICTIVE PROVISIONS.



The Borrower shall not, and shall not permit any of its Subsidiaries to, (a) permit or place
any restriction, directly or indirectly, on (i) the payment of dividends or distributions by any of
such Subsidiaries, or (ii) the transfer by any of such Subsidiaries of any of its properties or
assets, in each case, to the Borrower or its Subsidiaries or (b) agree with any Person that the
Borrower and/or any of its Subsidiaries shall not allow Liens to be created on its assets or shall
not amend the Loan Documents except any such agreement set forth in the Loan Documents.



8.26 ENVIRONMENTAL MATTERS.



The Borrower shall not, and shall not permit any of its Subsidiaries to,



(a) cause a Release of any Hazardous Substance in violation of any Environmental Law or so as
to create a risk of harm to public or occupant health or safety or to the environment, or



(b) permit to exist any Release of any Hazardous Substance on any real property owned or
occupied by the Borrower or any of its Subsidiaries in violation of any Environmental Law or so as
to create a risk of harm to public or occupant health or safety or to the environment, or



(c) take any other action (or fail to take any action) in violation of any Environmental Law
or take any action (or fail to take any action) so as to create a risk of harm to public or
occupant health or safety or to the environment.



8.27 CORPORATE SEPARATENESS.



(a) The Borrower shall, and shall cause each of its Subsidiaries to, conduct its business and
operations separate from that of each Affiliate that is not the Borrower or one of Borrower’s
Subsidiaries. Without limiting the generality of the foregoing, the Borrower shall not, and shall
not permit any of its Subsidiaries, to commingle funds with any Person that is not the Borrower or
a Subsidiary of the Borrower.



(b) The Borrower shall and shall cause each of the Subsidiary Guarantors to, conduct its
business and operations separate from that of each Affiliate that is not the Borrower or one of the
Subsidiary Guarantors. Without limiting the generality of the foregoing, the Borrower shall not,
and shall not permit any of its Subsidiary Guarantors to commingle funds with any Person that is
not the Borrower or a Subsidiary Guarantor.





8.28 CERTAIN OBLIGATIONS RESPECTING SUBSIDIARIES.



(a) The Borrower will take such action, and will cause each of its Subsidiaries to take such
action, from time to time as shall be necessary to ensure that Parent, and all U. S. Subsidiaries
of the Borrower are guarantors of the Secured Obligations and that all of the equity and material
assets (other than Excluded Assets) of the Borrower and all Guarantors are subject to a first
priority Lien securing the Secured Obligations, subject to no other Lien except Permitted Liens and
subject to Permitted Perfection Limitations. Without limiting the generality of the foregoing, in
the event that the Borrower or any of its Subsidiaries shall form or


 


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acquire any new Subsidiary (which it shall only do in conformity with the provisions of this
Agreement), the Borrower, contemporaneously with the formation or acquisition of such new
Subsidiary: (i) will execute and deliver, such documents as shall be necessary to cause (without
duplication) all of the Capital Stock of any new Venture owned by GB Ventures or QIG, any new U.S.
Subsidiary and up to a maximum of sixty-six percent (66%) of the Capital Stock of any new
First-Tier Foreign Subsidiary of the Borrower or of a Guarantor to be duly pledged (on a
first-priority perfected basis) to secure the Secured Obligations; (ii) will cause each new U.S.
Subsidiary to execute and deliver a Subsidiary Suretyship Agreement (or a joinder thereto),
joinders to the Security Agreements and Pledge Agreements, UCC-1 financing statements, and such
other documents as may be necessary to cause such new U.S. Subsidiary to be a guarantor of the
Secured Obligations and its material assets (other than Excluded Assets) to be pledged to secure
such guaranty; and (iii) will cause such new U.S. Subsidiary to deliver such proof of corporate
action, incumbency of officers, opinions of counsel and other documents as is consistent with those
delivered by the Borrower pursuant to Section 4.1 (Conditions to Initial Funding) upon the Closing
Date or as the Administrative Agent shall have requested, and to take such other action as the
Administrative Agent shall request to perfect the security interest in the Capital Stock and
material assets (other than Excluded Assets) of such new U.S. Subsidiary created pursuant to the
Loan Documents.



(b) If at any time



(1) the aggregate amount of the Adjusted EBITDA of the (X) (direct and indirect)
Foreign Subsidiaries of the Parent and (Y) the Non-Guarantor Ventures shall exceed fifteen
percent (15%) of the Adjusted EBITDA of Parent and its Subsidiaries, on a Consolidated
basis, or



(2) the aggregate amount of the assets of the (X) (direct and indirect) Foreign
Subsidiaries of the Parent and (Y) the Non-Guarantor Ventures shall exceed fifteen percent
(15%) of the aggregate amount of the assets of Parent and its Subsidiaries, on a
Consolidated basis,



then notwithstanding any provision of this Agreement or any Loan Document to the contrary, the
Borrower shall either:




(ii) cause one or more Foreign Subsidiaries and/or Ventures to guaranty the Secured
Obligations and pledge their material personal property assets to secure such guaranty and
shall pledge (or cause the relevant Subsidiaries to pledge) 100% of the equity of such
Foreign Subsidiaries or Ventures, as applicable to the extent necessary to cause (i) the
aggregate amount of the Adjusted EBITDA of the Loan Parties to exceed eighty-five percent
(85%) of the Adjusted EBITDA of Parent and its Subsidiaries, on a Consolidated basis, and
(ii) the aggregate amount of the assets of the Loan Parties to exceed eighty-five percent
(85%) of the aggregate amount of the assets of Parent and its Subsidiaries, on a
Consolidated basis; or



 


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(iii) exclude the results of operations and financial condition of the Foreign
Subsidiaries and Non-Guarantors Ventures from the Financial Covenants in Article 7
(Financial Covenants) and provide separate financial statements
pursuant to Subsection 6.1.1 (Delivery of Quarterly Financial Statements ) and Subsection 6.1.2
(Delivery of Annual Financial Statements; Accountants’ Certification) and a reconciliation
of the financial statements showing the effects of excluding the Foreign Subsidiaries and
Non-Guarantor Ventures.



Notwithstanding anything to the contrary in this agreement, unless and until such time as Borrower
shall cause the Foreign Subsidiaries and/or Ventures to guaranty the Secured Obligations and pledge
their material assets in accordance with clause (i) above, (x) the Borrower and the Subsidiary
Guarantors shall not transfer, either by way of Investment or otherwise, assets to any Venture or
Foreign Subsidiary in excess of the amounts permitted in Section 8.3(e) (Investments, Loans,
Acquisitions, Etc.), and (y) all transactions between the Loan Parties on the one hand, and a
Foreign Subsidiary or Venture on the other hand, shall be in the ordinary course of business and,
except as provided in Section 8.3(e) (Investments, Loans, Acquisitions, Etc.), on an arm’s length
basis.




8.29 FURTHER ASSURANCES.



At its sole cost and expense, upon the reasonable request of the Administrative Agent or the
Majority Lenders, the Borrower shall, and shall cause each of its Subsidiaries to, execute and
deliver to the Administrative Agent and the Lenders such further instruments and do or cause to be
done such further acts as may be necessary or proper in the reasonable opinion of the
Administrative Agent to carry out more effectively the provisions and purpose of this Agreement and
the other Loan Documents including (i) such landlord waivers and bailee waivers as the
Administrative Agent or the Majority Lenders shall request and (ii) a control agreement for each
deposit account and brokerage account included in the Collateral, as the Administrative Agent or
the Majority Lenders shall request.



8.30 RESET PROVISION.



If at any time the Total Leverage Ratio of the Borrower and its Subsidiaries, on a
Consolidated basis, for the two most recently ended fiscal quarters (as evidenced by financial
statements delivered pursuant to Section 6.1.1 (Delivery of Quarterly Financial Statements) or
Section 6.1.2 (Delivery of Annual Financial Statements; Accountants’ Certification), as applicable,
for such quarters and the delivery of an Officer’s Compliance Certificate pursuant to Section
6.3(Delivery of Officer’s Compliance Certificates) is less than 2.75 to 1.00, the Borrower may make
an election (the date of such election being the “Reset Election Date”) by delivering a notice to
the Administrative Agent certifying that the conditions to the election have been satisfied and
directing the Administrative Agent to reset the amount referenced in clause (c) of the definition
of Specified Restricted Use Conditions to be reset at $250,000,000 and the amount permitted for
each of the Specified Restricted Uses shall be reset to the amount set forth in this Agreement
therefor on the Closing Date. On the Reset Election Date, the amount referenced in clause (c) of
the definition of Specified Restricted Use Conditions and in each of the provisions referenced in
the definition of Specified Restricted Uses shall be so reset to the full amount available as of
the Closing Date, enabling the Borrower to use such provisions after the Reset Election Date as if
no Restricted Payments or Investments had been made in reliance on such provisions prior to the
Reset Election Date.


 


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8.31 POST-CLOSING COVENANTS.



8.31.1 Tax Clearance Certificates/Letter. Within thirty (30) days of the Closing Date (as the
same may be extended by the Administrative Agent) the Borrower shall deliver to the Administrative
Agent, a tax clearance certificate or similar clearance letter, as applicable, issued by (i) the
State of Minnesota in respect of the Borrower, (ii) the State of Colorado in respect of QIG, (iii)
the Commonwealth of Massachusetts in respect of Electrochem Solutions, Inc., and (iv) the State of
Minnesota in respect of Greatbatch-Globe Tool, Inc.



8.31.2 Insurance. As soon as practicable, but in any event within fifteen (15) Business Days
following the Closing Date (or such later date as the Administrative Agent may agree to in its sole
discretion), Borrower shall deliver, or cause to be delivered, (a) endorsements to Borrower’s
insurance certificates naming Manufacturers and Traders Trust Company, as Administrative Agent, as
additional insured and lender loss payee, (or such other evidence of the lender loss payee and
additional insured status as may be acceptable to the Administrative Agent), (b) evidence that the
Administrative Agent shall receive advance notice prior to any non-renewal, cancellation, change in
risks (in any material respect) or material amendment of any such Insurance from the Borrower’s
insurer in the time period provided for under Subsection 8.14.1(Liability, Property, Damage, Etc.)
and (c) such other related documentation as may be reasonably requested by the Administrative
Agent.



ARTICLE 9




EVENTS OF DEFAULT



9.1 EVENTS OF DEFAULT.



“Event of Default” wherever used herein means any one of the following events
(whatever the reason for such Event of Default, whether it shall be voluntary or involuntary or be
effected by operation of Law or pursuant to any judgment, decree or order of any court, or any
order, rule or regulation of any administrative or governmental instrumentality):



9.1.1 Failure to Pay Principal or Reimbursement Obligations. If the Borrower shall fail to
make any payment of (a) the principal of the Loans on the dates when the same shall become due and
payable, whether at stated maturity or at a date fixed for any installment or prepayment thereof or
otherwise or (b) reimbursement obligations in respect of Letters of Credit on the dates when the
same shall become due and payable; or



9.1.2 Failure to Pay Interest, Fees, Etc. If the Borrower shall fail to make any payment of
interest on the Loans, the Commitment Fees, or any other amounts owing hereunder (other than
principal of the Loans and reimbursement obligations in respect of Letters of Credit) on the dates
when such interest, Commitment Fees or other amounts shall become due and payable, and such failure
continues for more than five (5) Business Days; or



9.1.3 Cross Default to Indebtedness. (a) If Parent, the Borrower or any of its Subsidiaries
shall default (as payor or guarantor or other surety) in the payment of any Indebtedness (other
than obligations which are covered in Subsections 9.1.1 (Failure to Pay Principal or Reimbursement
Obligations) and 9.1.2 (Failure to Pay Interest, Fees, Etc.)) and the


 


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underlying obligation with respect to which a default has occurred aggregates Five Million
Dollars ($5,000,000) or more or could result in a required payment of Five Million Dollars
($5,000,000) or more, or (b) if any event shall occur or condition shall exist in respect of any
such Indebtedness which would permit, or shall have caused, the acceleration of the payment, time
for payment or maturity of any such Indebtedness; or




9.1.4 Other Cross-Defaults. If Parent, the Borrower or any of its Subsidiaries shall default
in the payment when due or in the performance or observance of any obligation (except obligations
which are covered in Subsections 9.1.1 (Failure to Pay Principal or Reimbursement Obligations),
9.1.2 (Failure to Pay Interest, Fees, Etc.) and 9.1.3 (Cross Default to Indebtedness)), whether now
or hereafter incurred, which default results in or could reasonably be expected to result in a
required payment or loss of revenue of Five Million Dollars ($5,000,000) or more or results in or
could reasonably be expected to result in a Material Adverse Change; or



9.1.5 Misrepresentations. If any representation or warranty made (a) by any Loan Party in
this Agreement or in any other Loan Document or (b) by the Borrower or any other Person (other than
the Administrative Agent, the Issuing Bank or a Lender) in any document, certificate or statement
furnished pursuant to this Agreement or any other Loan Document, shall be false or misleading in
any respect (or in any material respect if such representation or warranty is not by its terms
already qualified as to materiality) when made or deemed made; or



9.1.6 Certain Covenant Defaults.



(a) If there shall occur a default in the due performance or observance of any term, covenant
or agreement to be performed or observed pursuant to Sections 8.9 (Existence) as it pertains to
Subsidiaries of the Borrower, 8.10 (Compliance with Laws), 8.13 (Compliance with ERISA), 8.15
(Maintenance of Properties), 8.16 (Maintenance of Records; Fiscal Year), 8.18 (Exchange of Notes),
8.28 (Certain Obligations Respecting Subsidiaries) or 8.29 (Further Assurances), in each case, to
the extent such default shall continue unremedied for a period of ten (10) or more Business Days if
such default if capable of being cured; or



(b) If there shall occur a default in the due performance or observance of any term, covenant
or agreement to be performed or observed pursuant to any of Article 6 (Reporting Requirements and
Notices), Article 7 (Financial Covenants), or Article 8 (Business Covenants) other than pursuant to
the Sections set forth in Subsection 9.1.6(a) (Certain Covenant Defaults) above.



9.1.7 Other Covenant Defaults. If there shall occur any default in the due performance or
observance of any term, covenant or agreement to be performed or observed pursuant to the
provisions of this Agreement, other than as provided in Subsections 9.1.1 (Failure to Pay Principal
or Reimbursement Obligations), 9.1.2 (Failure to Pay Interest, Fees, Etc.), 9.1.3 (Cross Default to
Indebtedness) and 9.1.6 (Certain Covenant Defaults), or any agreement incidental hereto (other than
as provided in Subsection 9.1.8 (Other Loan Document Defaults; Security) and, if capable of being
remedied, such default shall continue unremedied for thirty (30) days after the commencement of
such default; or


 


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9.1.8 Other Loan Document Defaults; Security. If any Loan Party shall fail to perform any of
its obligations under any Loan Documents (after taking into account any applicable cure period set
forth in such agreements); or if the validity of this Agreement or any of the other Loan Documents
shall have been challenged or disaffirmed by or on behalf of any of such parties thereto; or if,
other than as a direct result of any action or inaction of the Administrative Agent, the Issuing
Bank or the Lenders, the Liens created or intended to be created by any of the Loan Documents on
any material amount of collateral shall at any time cease to be valid and perfected first priority
Liens in favor of the Administrative Agent (for the benefit of the Secured Parties), subject to no
equal or prior Liens except Permitted Liens and subject to Permitted Perfection Limitations; or if
any court or other Governmental Authority shall issue a judgment, order, decree or ruling to the
effect that any material covenant, agreement or obligation of any Loan Party under any Loan
Document is illegal, invalid or unenforceable; or



9.1.9 Custody or Control of Assets. If custody or control of any substantial part of the
property of the Borrower or the Guarantors shall be assumed by any Governmental Authority or any
court of competent jurisdiction, or any other Person at the insistence of any Governmental
Authority or any court of competent jurisdiction; or



9.1.10 Discontinuance of Business. If the Borrower and its Subsidiaries shall suspend for
more than ten (10) Business Days or discontinue their business or any Material Line of Business; or



9.1.11 Insolvency. (a) If Parent, the Borrower or any of its Subsidiaries shall (i) make an
assignment for the benefit of creditors or a composition with creditors, (ii) generally not be
paying its debts as they mature, (iii) admit its inability to pay its debts as they mature, (iv)
file a petition in bankruptcy, (v) become insolvent (howsoever such insolvency may be evidenced),
(vi) be adjudicated insolvent or bankrupt, (vii) petition or apply to any tribunal for the
appointment of any receiver, custodian, liquidator or trustee of or for it or any substantial part
of its property or assets, or (viii) commence any proceeding relating to it under any Debtor Relief
Law; or (b) if there shall be commenced against Parent, the Borrower or any of its Subsidiaries any
such proceeding and the same shall not be dismissed within 30 days or an order, judgment or decree
approving the petition in any such proceeding shall be entered against Parent, the Borrower or any
of its Subsidiaries; or (c) if Parent, the Borrower or any of its Subsidiaries shall have
concealed, removed, or permitted to be concealed or removed, any part of its property, with intent
to hinder, delay or defraud its creditors, or any of them, or shall have made or suffered a
transfer of any of its property which may be fraudulent under any Debtor Relief Law including any
fraudulent transfer or fraudulent conveyance or similar Law; or (d) if Parent, the Borrower or any
of its Subsidiaries shall have made any transfer of its property to or for the benefit of a
creditor which constitutes a preferential transfer under any bankruptcy or similar Law; or (e) if
Parent, the Borrower or any of its Subsidiaries shall have suffered or permitted, while insolvent,
any creditor to obtain a lien upon any of its property through legal proceedings or distraint; or



9.1.12 Material Adverse Change. If there shall occur or be threatened any event, or if there
shall exist any fact or condition, which could result in a Material Adverse Change; or



9.1.13 Change of Control. If there shall occur a Change of Control; or


 


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9.1.14 Subordination. If the obligations purported to be subject any subordination agreement
in favor of the Administrative Agent cease to be fully subordinated to all of the obligations under
this Agreement; or



9.1.15 Interest Rate Protection Agreements. If the Borrower or any of its Subsidiaries shall
default in any payment or performance of any obligations under any Swap Agreement entered into with
any Swap Party, regardless of the amount involved in such default; or



9.1.16 Judgments. If any judgment or judgments or assessment or assessments for the payment
of money in excess of Five Million Dollars ($5,000,000) in the aggregate (except to the extent
covered by insurance) shall be rendered against Parent, the Borrower or any of its Subsidiaries and
such judgment remains either unstayed or unsatisfied for a period of thirty (30) days or more; or



9.1.17 Change of Management. If there shall occur any event, transaction or occurrence as a
result of which (a) Thomas J. Hook shall cease to serve in a key management position with the
Borrower, (b) both of Thomas J. Mazza and Marco Benedetti shall cease to serve in key management
positions with the Borrower or (c) one of Thomas J. Mazza and Marco Benedetti shall cease to serve
in a key management position with the Borrower, unless in the case of (a) or (b), a replacement (or
replacements in the case of clause (b)) of comparable experience in the industry reasonably
acceptable to the Majority Lenders is employed in such capacity (or capacities) within ninety (90)
days after such event, transaction or occurrence and, in the case of (c) unless a replacement of
comparable experience in the industry reasonably acceptable to the Majority Lenders is employed in
such capacity within one hundred eighty (180) days after such event, transaction or occurrence; or



9.1.18 Restricted Payment Default. If the holders of any convertible debentures of Parent
tender any such debentures for conversion at a time when Parent has not made a physical settlement
election except to the extent that the Borrower is permitted to make Restricted Payments to satisfy
Parent’s obligations arising out of such conversion under Subsection 8.4.2 (Permitted Debenture
Payments).



9.2 ACCELERATION; REMEDIES.



9.2.1 Acceleration upon Insolvency. Upon the occurrence of any event described in Subsection
9.1.11 (Insolvency), the entire unpaid principal balance of the Notes, and interest accrued and
premium, if any, thereon, and any unpaid accrued Commitment Fees and all other amounts accrued
hereunder or under the other Loan Documents, shall be immediately due and payable by the Borrower
and the Commitments shall terminate without presentment, demand, protest, notice of protest or
other notice of dishonor of any kind, all of which are hereby expressly waived by the Borrower.



9.2.2 Acceleration upon Other Defaults. Upon the occurrence of any Event of Default other
than any event described in Subsection 9.1.11 (Insolvency), or at any time thereafter if any Event
of Default shall then be continuing, the Administrative Agent shall, if directed by the Majority
Lenders, (a) by written notice to the Borrower, declare the entire unpaid


 


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principal balance or any portion of the principal balance of all or any of the Notes, and
interest accrued and premium, if any, thereon and any unpaid accrued Commitment Fees and all other
amounts accrued hereunder or under the other Loan Documents, to be immediately due and payable by
the Borrower, and/or (b) terminate the Commitment.




9.2.3 Remedies in General. In the event of acceleration pursuant to Subsection 9.2.1
(Acceleration upon Insolvency) or Subsection 9.2.2 (Acceleration upon Other Defaults), all
principal and interest, premium, fees, and other amounts shall thereupon become and be immediately
due and payable, without presentation, demand, protest, notice of protest or other notice of
dishonor of any kind, all of which are hereby expressly waived by the Borrower; and the
Administrative Agent (acting directly or through appointment of one or more trustees of the
Administrative Agent’s choosing) may proceed to protect and enforce its rights and those of the
Issuing Bank and the Lenders under the Loan Documents in any manner or order it deems expedient
without regard to any equitable principles of marshalling or otherwise. In addition to all other
rights hereunder or under Law, the Administrative Agent shall have the right to institute
proceedings in equity or other appropriate proceedings for the specific performance of any covenant
or agreement made in any of the Loan Documents or for an injunction against the violation of any of
the terms of any of the Loan Documents or in aid of the exercise of any power granted in any of the
Loan Documents or by Law or otherwise. Further, the Administrative Agent shall be entitled to the
appointment of a trustee or receiver for all or any part of the businesses of the Borrower or any
of its Subsidiaries, which trustee or receiver shall have such powers as may be conferred by the
appointing authority. All rights and remedies given by this Agreement, the Notes and the other
Loan Documents are cumulative and not exclusive of any of such rights or remedies or of any other
rights or remedies available to the Administrative Agent, the Issuing Bank or any Lender, and no
course of dealing between the Borrower or any of its Subsidiaries, on one hand, and the
Administrative Agent, the Issuing Bank or any Lender, on the other hand, or any delay or omission
in exercising any right or remedy shall operate as a waiver of any right or remedy, and every right
and remedy may be exercised from time to time and as often as shall be deemed appropriate by the
Administrative Agent.



9.3 PROCEEDS OF COLLATERAL.



Following an Event of Default and acceleration of the Obligations, the Administrative Agent
shall apply proceeds of Collateral as follows:




First, to payment of that portion of the Secured Obligations constituting fees,
expenses (including expenses relating to attorneys’ fees and other professionals’ fees),
indemnities and other amounts due to the Administrative Agent in its capacity as such;




Second, to payment of that portion of the Secured Obligations constituting accrued and
unpaid interest and accrued and unpaid Commitment Fees or other fees, ratably amongst the
Secured Parties in proportion to the respective amounts described in this clause “Second”
due to them;




Third, to payment of that portion of the Secured Obligations constituting unpaid
principal of the Loans, reimbursement obligations under Letters of Credit and obligations
arising out of Interest Rate Protection Agreements, ratably amongst the Lenders in
proportion to the respective amounts described in this clause “Third” due to them;




 


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Fourth, to payment of all other Secured Obligations, ratably amongst the Secured
Parties in proportion to the respective amounts described in this clause “Fourth” due to
them; and




Finally, the balance, if any, after all of the Secured Obligations have been satisfied,
to the Borrower or its applicable Subsidiary or as otherwise required by Law.




Notwithstanding the foregoing, Cash Collateral provided to specifically secure LC
Obligations shall first be applied against any outstanding LC Obligations.



ARTICLE 10




AGENCY



10.1 APPOINTMENT AND AUTHORITY.



Each of the Lenders and the Issuing Bank hereby irrevocably appoints M&T to act on its behalf
as the Administrative Agent hereunder and under the other Loan Documents and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article are solely for the
benefit of the Administrative Agent, the Lenders and the Issuing Bank, and neither the Borrower nor
any other Loan Party shall have rights as a third party beneficiary of any of such provisions. It
is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or
any other similar term) with reference to the Administrative Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable
law. Instead such term is used as a matter of market custom, and is intended to create or reflect
only an administrative relationship between contracting parties.



Without limiting the generality of the foregoing, the Lenders and the Issuing Bank hereby
authorize the Administrative Agent (in its sole discretion):



(a) in connection with the sale or other disposition of any asset included in the Collateral
or all of the Capital Stock of any Guarantor, to the extent undertaken in accordance with the terms
of this Agreement, to release a Lien granted to it (for the benefit of the Secured Parties) on such
asset or Capital Stock and/or to release such Guarantor from its obligations hereunder;



(b) to determine that the cost to the Borrower is disproportionate to the benefit to be
realized by the Administrative Agent, the Lenders and the other Secured Parties by perfecting a
Lien in a given asset or group of assets included in the Collateral and that the Borrower should
not be required to perfect such Lien in favor of the Administrative Agent (for the benefit of the
Secured Parties);


 


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(c) to appoint subagents to be the holder of record of a Lien to be granted to the
Administrative Agent (for the benefit of the Secured Parties) or to hold on behalf of the
Administrative Agent the Collateral or instruments relating thereto;



(d) to enter into and perform its obligations under the other Loan Documents; and



(e) to execute and deliver the agreements contemplated by Section 11.5 (Amendments, Waivers
and Consents).



In addition to any other rights and remedies hereunder or under the other Loan Documents or
applicable law, upon the occurrence and during the continuance of an Event of Default, each of the
Secured Parties hereby authorizes the Administrative Agent to take such actions on behalf of the
Secured Parties and to exercise such powers as are delegated to the Administrative Agent by the
terms hereof and the other Loan Documents together with such actions and powers as are reasonably
incidental thereto and exercise any other rights and remedies under applicable law, in the name of
the Secured Parties or otherwise, including sell, assign, lease, license (on an exclusive or
nonexclusive basis) or otherwise dispose of the Collateral or any part thereof in one or more
parcels at public or private sale, at any of the Administrative Agent’s offices or elsewhere, for
cash, on credit or for future delivery, at such time or times and at such price or prices and upon
such other terms as the Administrative Agent may deem commercially reasonable and to credit bid any
or all of the Secured Obligations on behalf of the Secured Parties in connection with any sale or
other disposition of any or all assets or equity of any or all Loan Parties.



10.2 RIGHTS AS A LENDER.



The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated
or unless the context otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from,
lend money to, own securities of, act as the financial advisor or in any other advisory capacity
for, and generally engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any
duty to account therefor to the Lenders.



10.3 EXCULPATORY PROVISIONS.



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



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


 


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(b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Majority Lenders (or such other number or percentage of the Lenders as shall be expressly provided
for herein or in the other Loan Documents), provided that the Administrative Agent shall
not be required to take any action that, in its opinion or the opinion of its counsel, may expose
the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law,
including for the avoidance of doubt any action that may be in violation of the automatic stay
under any Debtor Relief Law or that may effect a forfeiture, modification or termination of
property of a Defaulting Lender in violation of any Debtor Relief Law and shall be entitled to
confirmation by the Lenders of their indemnification of the Administrative Agent for any such
actions;, and



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



The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Majority Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.5 (Amendments, Waivers and Consents)
and 9.2 (Acceleration; Remedies) or (ii) in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of any Event of Default
unless and until notice describing such Event of Default is given to the Administrative Agent by
the Borrower, a Lender or the Issuing Bank which notice states that it is a “Notice of Default” or
a “Notice of an Event of Default.”



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



10.4 RELIANCE BY ADMINISTRATIVE AGENT.



The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement


 


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made to it orally or by telephone and believed by it to have been made by the proper Person, and
shall not incur any liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the Issuing Bank,
the Administrative Agent may presume that such condition is satisfactory to such Lender or the
Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such
Lender or the Issuing Bank prior to the making of such Loan or the issuance of such Letter of
Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.




10.5 DELEGATION OF DUTIES.



The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent. The Administrative Agent shall not be
responsible for the negligence or misconduct of any sub-agents except to the extent that a court of
competent jurisdiction determines in a final and non appealable judgment that the Administrative
Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.



10.6 RESIGNATION OF ADMINISTRATIVE AGENT.



The Administrative Agent may at any time give notice of its resignation to the Lenders, the
Issuing Bank and the Borrower. Upon receipt of any such notice of resignation, the Majority
Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which
shall be a Lender, or an Affiliate of a Lender. If no such successor shall have been so appointed
by the Majority Lenders and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent meeting the
qualifications set forth above, provided that if the Administrative Agent shall notify the
Borrower and the Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations hereunder and under the
other Loan Documents (except that in the case of any collateral security held by the Administrative
Agent on behalf of the Lenders or the Issuing Bank under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (2) all payments, communications and determinations provided
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the Administrative Agent shall instead be made by or to each Lender and the Issuing Bank
directly, until such time as the Majority Lenders appoint a successor Administrative Agent as
provided for above in this paragraph. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring (or retired) Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents (if not already discharged therefrom as
provided above in this paragraph). The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this Article 10 and Section 11.14 (Expenses;
Indemnity; Damage Waiver) shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.




10.7 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.



Each Lender and the Issuing Bank acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender and the Issuing Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.



10.8 OTHER AGENTS. No Documentation Agent or Syndication Agent shall have any duties
hereunder. No Documentation Agent or Syndication Agent shall be liable to any party hereto for any
actions such person may take or fail to take in its capacity as Documentation Agent or Syndication
Agent, as applicable, except for liability arising as a result of such person’s own gross
negligence or willful misconduct.



10.9 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.



In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the
principal of any Loan or LC Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent shall have made any
demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such
proceeding or otherwise:



(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, LC Obligations and all other Secured Obligations that are owing and
unpaid and to file such other documents as may be necessary or


 


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advisable in order to have the claims of the Lenders, the Issuing Bank and the Administrative
Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of
the Lenders, the Issuing Bank and the Administrative Agent and their respective agents and counsel
and all other amounts due the Lenders, the Issuing Bank and the Administrative Agent constituting
Secured Obligations allowed in such judicial proceeding; and




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



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and Issuing Bank to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders 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 hereunder or under any other Loan Document.




10.10 COLLATERAL AND GUARANTY MATTERS.



The Secured Parties irrevocably authorize the Administrative Agent, at its option and in its
discretion:



(a) to release any Lien on any property granted to or held by the Administrative Agent under
any Loan Document (x) upon termination of all Commitments and payment in full of all Obligations
(other than contingent indemnification obligations) and the expiration or termination of all
Letters of Credit (other than Letters of Credit as to which other arrangements satisfactory to the
Administrative Agent and the applicable Issuing Bank shall have been made) as more fully set forth
in Section 11.16 (Termination of Security; Partial Release of Security), (y) that is sold or
otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any
sale or other disposition permitted under the Loan Documents as more fully set forth in Section
11.16 (Termination of Security; Partial Release of Security), or (z) subject to Section 11.5
(Amendments, Waivers and Consents), if approved, authorized or ratified in writing by the Majority
Lenders; and



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



10.11 NO RELIANCE ON ADMINISTRATIVE AGENT’S CUSTOMER IDENTIFICATION PROGRAM . Each
Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or
assignees, may rely on the Administrative Agent to carry out such Lender’s, Affiliate’s,
participant’s or assignee’s customer identification program, or other obligations required or
imposed under or pursuant to the USA PATRIOT Act or the regulations thereunder, including the
regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the “CIP
Regulations”), or any other Anti-Terrorism Law, including any programs involving any of the
following items relating to or in connection with any Borrower, its Affiliates or its agents, this
Agreement, the Other Documents or the
transactions hereunder or contemplated hereby: (1) any identity verification procedures, (2)
any record-keeping, (3) comparisons with government lists, (4) customer notices or (5) other
procedures required under the CIP Regulations or such other laws.


 


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10.12 NO ADVISORY OR FIDUCIARY RESPONSIBILITY..



In connection with all aspects of each transaction contemplated hereby (including in
connection with any amendment, waiver or other modification hereof or of any other Loan Document),
the Borrower acknowledges and agrees that: (i) (A) the arranging and other services regarding this
Agreement provided by the Administrative Agent and the Lenders are arm’s-length commercial
transactions between the Borrower and its Affiliates, on the one hand, and the Administrative Agent
and the Lenders, on the other hand, (B) the Borrower has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is
capable of evaluating, and understands and accepts, the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents; (ii) (A) each of the Lenders is
and has been acting solely as a principal and, except as expressly agreed in writing by the
relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary
for the Borrower or any of its Affiliates, or any other Person and (B) no Lender has any obligation
to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Loan Documents; and (iii) each
of the Lenders and their respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrower and its Affiliates, and no Lender has any
obligation to disclose any of such interests to the Borrower or its Affiliates. To the fullest
extent permitted by law, the Borrower hereby waives and releases any claims that it may have
against each of the Administrative Agent and the Lenders with respect to any breach or alleged
breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated
hereby.



ARTICLE 11




MISCELLANEOUS



11.1 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.



11.1.1 Notices Generally. Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in Subsection 11.1.2 (Electronic
Communications)), all notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or registered mail or
sent by telecopier as follows:



(a) if to the Borrower or any other Loan Party, to it at 10000 Wehrle Drive, Clarence New York
14031, Attention of Marco Benedetti (Telecopier No. (716) 759- 5037; Telephone No. (716) 759-5856)
and Timothy G. McEvoy (Telecopier No. (716) 759-5028); Telephone No. (716)759-5623 and a copy to
Hodgson Russ LLP, 140 Pearl Street, Suite 100, Buffalo, NY 14202-4040 (Telecopier No.
(716)819-4643; Telephone No. (716) 848-1277) Attention of John P. Amershadian (which copy shall not
constitute notice);


 


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(b) if to the Administrative Agent, to it at One Fountain Plaza, Buffalo, New York, 14203,
Attention: Michael Prendergast (Telecopier No. (716) 848-7318; Telephone No. (716) 848-7304) and a
copy to 25 South Charles Street, 12th Floor, Baltimore, Maryland 21201, Attention of
Hugh Giorgio (Telecopier No. (410) 244-4477; Telephone No. (410) 244-3849) and a copy to Drinker
Biddle & Reath, LLP, One Logan Square, Suite 2000, Philadelphia, Pennsylvania 19103 (Telecopier No.
(215) 988-2757; Telephone No. (215) 988-2665) Attention of Jill Bronson (which copy shall not
constitute notice);



(c) if to the Issuing Bank, to it at One Fountain Plaza, Buffalo, New York, 14203, Attention:
Michael Prendergast (Telecopier No. (716) 848-7318; Telephone No. (716) 848-7304) and a copy to 25
South Charles Street, 12th Floor, Baltimore, Maryland 21201, Attention of Hugh Giorgio
(Telecopier No. (410) 244-4477; Telephone No. (410) 244-3849) and a copy to Drinker Biddle & Reath,
LLP, One Logan Square, Suite 2000, Philadelphia, Pennsylvania 19103 (Telecopier No. (215) 988-2757;
Telephone No. (215) 988-2665) Attention of Jill Bronson (which copy shall not constitute notice);
and



(d) if to a Lender, to it at its address (or telecopier number) set forth in its
Administrative Questionnaire.



Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next Business Day for the recipient).
Notices delivered through electronic communications to the extent provided in Subsection 11.1.2
(Electronic Communications), shall be effective as provided in Subsection 11.1.2 (Electronic
Communications). In the event of a discrepancy between any telephonic and any written notice, the
written notice shall control. Any Lender giving any notice to the Borrower shall send
simultaneously a copy of such notice to the Administrative Agent.




11.1.2 Electronic Communications. Notices and other communications to the Lenders and the
Issuing Bank hereunder may be delivered or furnished by electronic communication (including e-mail
and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender or Issuing Bank
pursuant to Section 2.12 (Mechanics of Payments; Lender Payments) or Subsection 3.1.7
(Participation by Lenders). If such Lender or Issuing Bank, as applicable, has notified the
Administrative Agent that is incapable of receiving notices under such Sections by electronic
communication, the Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to
particular notices or communications.



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


 


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next Business Day for the recipient, and (b) notices or communications posted to an Internet
or intranet website shall be deemed received upon the deemed receipt by the intended recipient at
its e-mail address as described in the foregoing clause (a) of notification that such notice or
communication is available and identifying the website address therefor.




11.1.3 Change of Address, Etc. Any party hereto may change its address or telecopier number
for notices and other communications hereunder by notice to the other parties hereto.



11.1.4 Platform.



(a) The Borrower agrees that the Administrative Agent may, but shall not be obligated to, make
the Communications (as defined below) available to the Issuing Bank and the other Lenders by
posting the Communications on Debt Domain, Intralinks, Syndtrak or a substantially similar
electronic transmission system (the “Platform”).



(b) The Platform is provided “as is” and “as available.” The Agent Parties (as defined below)
do not warrant the adequacy of the Platform and expressly disclaim liability for errors or
omissions in the Communications. No warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of merchantability, fitness for a particular purpose,
non-infringement of third-party rights or freedom from viruses or other code defects, is made by
any Agent Party in connection with the Communications or the Platform. In no event shall the
Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have
any liability to the Borrower or the other Loan Parties, any Lender or any other Person or entity
for damages of any kind, including, without limitation, direct or indirect, special, incidental or
consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of
the Borrower’s, any Loan Party’s or the Administrative Agent’s transmission of communications
through the Platform. “Communications” means, collectively, any notice, demand,
communication, information, document or other material that the Borrower or any Loan Party provides
to the Administrative Agent pursuant to any Loan Document or the transactions contemplated therein
which is distributed to the Administrative Agent, any Lender or any Issuing Bank by means of
electronic communications pursuant to this Section, including through the Platform.



11.2 SURVIVAL OF REPRESENTATIONS.



All representations and warranties contained in the Loan Documents shall survive the making of
the Loans and the issuance of the Letters of Credit and shall not be waived by the execution and
delivery of this Agreement or any investigation by the Administrative Agent, the Issuing Bank or
the Lenders.



11.3 NO IMPLIED WAIVERS.



No failure or delay on the part of the Administrative Agent, the Issuing Bank or any Lender in
exercising any right, power or privilege under the Loan Documents and no course of dealing between
the Borrower or any of its Subsidiaries, on the one hand, and the Administrative Agent, the Issuing
Bank or any Lender, on the other hand, shall operate as a waiver of any such


 


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right, power or privilege. No single or partial exercise of any right, power or privilege under
the Loan Documents precludes any other or further exercise of any such right, power or privilege or
the exercise of any other right, power or privilege. The rights and remedies expressly provided in
the Loan Documents are cumulative and not exclusive of any rights or remedies which the
Administrative Agent, the Issuing Bank or any Lender would otherwise have. No notice to or demand
on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances or shall constitute a waiver of the right of the Administrative
Agent, the Issuing Bank or any Lender to take any other or further action in any circumstances
without notice or demand. Any waiver that is given shall be effective only if in writing and only
for the limited purposes expressly stated in the applicable waiver.




11.4 SEVERABILITY.



Every provision of the Loan Documents is intended to be severable. If any term or provision
of the Loan Documents shall be invalid, illegal or unenforceable for any reason, the validity,
legality and enforceability of the remaining provisions shall not be affected or impaired thereby.
Any invalidity, illegality or unenforceability of any term or provision of the Loan Documents in
any jurisdiction shall not affect the validity, legality or enforceability of any such term or
provision in any other jurisdiction.



11.5 AMENDMENTS, WAIVERS AND CONSENTS.



11.5.1 In General. This Agreement and the other Loan Documents may not be amended or modified
except by a written instrument describing such amendment or modification executed by the Borrower
and the Administrative Agent with the consent of the Lenders as provided in this Subsection 11.5.1.
With the written consent of the Majority Lenders, the Administrative Agent may, on behalf of the
Lenders, enter into agreements that modify, amend or supplement this Agreement or any other Loan
Document, and with such consent, the Administrative Agent may waive compliance with any provision
of any of the Loan Documents, all as referred to in this Subsection 11.5.1. However, no such
modification, amendment, supplement or waiver shall:



(a) increase the maximum amount of the Commitment of any Lender without such Lender’s written
consent;



(b) extend the Maturity Date or any scheduled amortization or date for payment of principal or
interest on the Loans of any Lender without such Lender’s written consent,



(c) amend the interest rate provisions hereof to decrease the rate of interest payable to any
Lender without such Lender’s written consent, provided that the written consent of the
Majority Lenders, rather than the consent of all Lenders, shall be sufficient to waive imposition
of the Default Rate pursuant to Subsection 2.8.6 (Default Rate),



(d) reduce the principal amount of Loans due to any Lender without such Lender’s written
consent;


 


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(e) reduce the amount of the fees payable under Subsection 2.7.1 (Commitment Fees), Subsection
3.1.6 (Fees) or other fees, payable to any Lender without such Lender’s written consent,



(f) amend, modify or waive the provisions of this Section 11.5 without each Lender’s written
consent,



(g) amend or modify the definition of “Majority Lenders” without each Lender’s written
consent, provided, however, if this Agreement is amended to provide for additional tranches
of revolver or term Indebtedness hereunder, the definition of “Majority Lenders” may be amended to
accommodate such new tranches in a manner similar to the existing Loans and Commitments with the
consent of the Lenders constituting Majority Lenders (determined without giving effect to such
amendment),



(h) release all or substantially all of the guaranties or all or substantially all of the
Collateral that secures the Obligations without each Lender’s written consent; provided
however, the Administrative Agent may without the consent of any Person release any guarantor or
any Collateral granted pursuant to the Loan Documents and file UCC-3 termination statements or
statements of amendment or take other appropriate action (i) as a court of competent jurisdiction
may direct, (ii) in connection with a disposition (other than to the Borrower or any of its
Subsidiaries) permitted under Subsection 8.7.2 (Sales and Other Dispositions) or as otherwise
provided under the Loan Documents, or (iii) if, in accordance with this Agreement, cash proceeds
from any sale or transfer of the Collateral are used to prepay outstanding sums due under this
Agreement or are reinvested in the Borrower and its Subsidiaries, or



(i) waive an Event of Default under Subsection 9.1.1 (Failure to Pay Principal or
Reimbursement Obligations) or 9.1.2 (Failure to Pay Interest, Fees, Etc.) (other than in respect of
the imposition of the Default Rate) after such Event of Default shall have occurred without each
Lender’s written consent (but the Majority Lenders may direct the Administrative Agent to forbear
under such circumstances).



11.5.2 Other Amendments. No modification, amendment, supplement or waiver of any provision of
this Agreement shall be made that would reduce or extend the date of payment for reimbursement
obligations in respect of Letters of Credit without the consent of the Issuing Bank and all Lenders
having a participation interest therein.



11.5.3 Exception. Notwithstanding the foregoing provisions of this Section 11.5 or anything
to the contrary contained in this Agreement, any Lender that has requested that it not receive
material, non-public information concerning the Borrower, and that is therefore unable or unwilling
to vote with respect to an issue arising under this Agreement, will agree to vote, and will be
deemed to have voted, its Commitment under this Agreement pro rata in accordance with the
percentage of Commitments voted in favor of, and the percentage of Commitments voted against, any
such issue under this Agreement.


 


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11.6 SUCCESSORS AND ASSIGNS.



11.6.1 Successors and Assigns Generally. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights
or obligations hereunder without the prior written consent of the Administrative Agent and each
Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder
except (a) to an Eligible Assignee in accordance with the provisions of Subsection 11.6.2
(Assignments by Lenders), (b) by way of participation in accordance with the provisions of
Subsection 11.6.4 (Participations) or (c) by way of pledge or assignment of a security interest
subject to the restrictions of Subsection 11.6.6 (Certain Pledges) (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the extent provided in
Subsection 11.6.4 (Participations) 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.



11.6.2 Assignments by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that any such
assignment shall be subject to the following conditions:



(a) Minimum Amounts.



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



(ii) in any case not described in the preceding paragraph (i), the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable
Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date) shall not be less than Five
Million Dollars ($5,000,000), unless each of the Administrative Agent and, so long as no Default or
Event of Default has occurred and is continuing, the Borrower otherwise consent (each such consent
not to be unreasonably withheld or delayed).



(b) 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 Loan or Commitment assigned, except that this paragraph (b) shall not prohibit any
Lender from assigning all or a portion of its rights and obligations among separate tranches on a
non-pro rata basis. 


 


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(c) Required Consents. No consent shall be required for any assignment except to the
extent required by paragraph (a) of this Subsection 11.6.2 and, in addition:



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



(ii) the consent of the Administrative Agent and Issuing Bank (each such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of a Loan or
Commitment if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or
an Approved Fund with respect to such Lender.



(d) Assignment and Assumption. The parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500 and the assignee, if it is not a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.



(e) No Assignment to Certain Persons. No such assignment shall be made to (A) the
Borrower or any of the Borrower’s Affiliates or Subsidiaries or (B) to any Defaulting Lender or any
of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of
the foregoing Persons described in this clause (B).



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



(g) Certain Additional Payments. In connection with any assignment of rights and
obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and
until, in addition to the other conditions thereto set forth herein, the parties to the assignment
shall make such additional payments to the Administrative Agent in an aggregate amount sufficient,
upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee
of participations or subparticipations, or other compensating actions, including funding, with the
consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans
previously requested but not funded by the Defaulting Lender, to each of which the applicable
assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment
liabilities then owed by such Defaulting Lender to the Administrative Agent, each Issuing Bank,
each Swingline Lender and each other Lender hereunder (and interest accrued thereon), and (y)
acquire (and fund as appropriate) its full pro rata share of all Loans and participations in
Letters of Credit and Swing Loans in accordance with its Applicable Percentage. Notwithstanding
the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender
hereunder shall become effective under applicable law without compliance with the provisions of
this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for
all purposes of this Agreement until such compliance occurs.


 


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Subject to acceptance and recording thereof by the Administrative Agent pursuant to Subsection
11.6.3 (Register), from and after the effective date specified in each Assignment and Assumption,
the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Subsection 2.8.5 (Breakage), Section 2.9 (Increased Costs;
Unavailability) and Section 11.14 (Expenses; Indemnity; Damage Waiver) with respect to the facts
and circumstances occurring prior to the effective date of such assignment; provided, that
except to the extent otherwise expressly agreed by the affected parties, no assignment by a
Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising
from that Lender’s having been a Defaulting Lender. 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 Subsection 11.6.4 (Participations).




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



11.6.4 Participations.



(a) Any Lender may at any time, without the consent of, or notice to, the Administrative Agent
or the Borrower, sell participations to any Person (other than a natural person or the Borrower or
any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a
portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion
of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations, and (iii) the
Borrower, the Administrative Agent, the Lenders and the Issuing Bank shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement. Any Lender may furnish any information concerning the Borrower in its possession from
time to time to prospective Participants, provided that such Lender shall require any such
prospective Participants to agree in writing to maintain the confidentiality of such information as
provided in Section 11.13 (Treatment of Certain Information; Confidentiality; Advertisement).


 


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(b) 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 matters
specifically referred to in clauses (a), (b), (c) and (g) of Section 11.5 (Amendments, Waivers and
Consents). Subject to clause (b) of this Subsection 11.6.4 (Participations), the Borrower agrees
that each Participant shall be entitled to the benefits of Subsection 2.8.5 (Breakage) and Section
2.9 (Increased Costs; Unavailability) to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to Subsection 11.6.2 (Assignments by Lenders). To the extent
permitted by Law, each Participant also shall be entitled to the benefits of Section 11.11 (Right
of Setoff) as though it were a Lender, provided that such Participant agrees to be subject
to Subsection 2.11.5 (Sharing of Payments by Lenders) as though it were a Lender.



11.6.5 Limitations upon Participant Rights. A Participant shall not be entitled to receive
any greater payment under Section 2.9 (Increased Costs; Unavailability) than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 2.13 (Taxes) unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Subsection 2.13.5 (Status of Lenders) as though it were a Lender.



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



11.7 CALCULATIONS AND FINANCIAL DATA.



Except as otherwise provided in this Agreement, calculations under this Agreement shall be
made and financial data and terms referred to in this Agreement shall be prepared and interpreted
both as to classification of items and as to amounts in accordance with GAAP.



11.8 DESCRIPTIVE HEADINGS.



The descriptive headings of the several sections of this Agreement are inserted for
convenience only and shall not affect the meaning or construction of any of the provisions of this
Agreement.



11.9 GOVERNING LAW; JURISDICTION; ETC.



11.9.1 Governing Law. This Agreement and the other Loan Documents and any claims,
controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon,
arising out of or relating to this Agreement or any other Loan Document (except, as to any
other Loan Document, as expressly set forth therein) and the transactions contemplated hereby
and thereby shall be governed by, and construed in accordance with, the Law of the State of New
York (excluding the Laws applicable to conflicts or choice of law).


 


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11.9.2 Submission to Jurisdiction. The Borrower irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the courts of the State of New York in
Erie County and of the United States District Court of the Western District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document, or for recognition or enforcement of any judgment, and each
of the parties hereto irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York state court or, to the fullest
extent permitted by applicable Law, in such federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by Law. Nothing in this
Agreement or in any other Loan Document shall affect any right that the Administrative Agent, any
Lender or the Issuing Bank may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against the Borrower or its properties in the courts of any
jurisdiction.



11.9.3 Waiver of Venue. The Borrower irrevocably and unconditionally waives, to the fullest
extent permitted by applicable Law, any objection that it may now or hereafter have to the laying
of venue of any action or proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in Subsection 11.9.2 (Submission to Jurisdiction). Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable Law, the
defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
The Borrower irrevocably waives, to the fullest extent permitted by applicable Law, any right to
bring any action or proceeding against (a) the Administrative Agent in any court outside the county
of Erie, State of New York, or (b) the Issuing Bank or any other Lender other than a state within
the United States designated by the Issuing Bank or such Lender.



11.9.4 Service of Process. Each party hereto irrevocably consents to service of process in
the manner provided for notices in Section 11.1 (Notices; Effectiveness; Electronic Communication).
Nothing in this Agreement will affect the right of any party hereto to serve process in any other
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11.10 MAXIMUM LAWFUL INTEREST RATE.



If, at any time, the rate of interest, together with all amounts that constitute interest and
that are reserved, charged or taken hereunder as compensation for fees, services or expenses
incidental to the making, negotiating or collecting of the Loans, shall be deemed by a court of law
with competent jurisdiction, a governmental agency or a tribunal to exceed the maximum rate of
interest permitted to be charged by the Lenders to the Borrower under applicable Law, if such
interest, fees and expenses are in excess of the maximum amount permitted by applicable Law, then,
during such time as such rate of interest would be deemed excessive, that portion of each sum paid
attributable to that portion of such interest rate that exceeds the maximum rate of interest so
permitted shall be deemed a voluntary prepayment of the unpaid principal amount due pursuant to
this Agreement and the Notes. As used in this Section 11.10, the term “applicable Law” shall mean
the Law in effect as of the date hereof; provided, however, that in the event there is a
change in the Law that results in a higher permissible rate of interest, then this Agreement shall
be governed by such new Law as of its effective date.



11.11 RIGHT OF SETOFF.



If an Event of Default shall have occurred and be continuing, each Lender, the Issuing Bank,
and each of their respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, the Issuing Bank or any such
Affiliate to or for the credit or the account of the Borrower or any other Loan Party against any
and all of the obligations of the Borrower or any other Loan Party now or hereafter existing under
this Agreement or any other Loan Document to such Lender or the Issuing Bank, irrespective of
whether or not such Lender or the Issuing Bank shall have made any demand under this Agreement or
any other Loan Document and although such obligations of the Borrower or any other Loan Party may
be contingent or unmatured or are owed to a branch or office of such Lender or the Issuing Bank
different from the branch or office holding such deposit or obligated on such indebtedness ;
provided that in the event that any Defaulting Lender shall exercise any such right of
setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for
further application in accordance with the provisions of Section 2.15 (Defaulting Lenders) and,
pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed
held in trust for the benefit of the Administrative Agent, the Issuing Bank, and the Lenders, and
(y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing
in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such
right of setoff. The rights of each Lender, the Issuing Bank and their respective Affiliates under
this Section are in addition to other rights and remedies (including other rights of setoff) that
such Lender, the Issuing Bank or their respective Affiliates may have. Each Lender and the Issuing
Bank agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall not affect the validity of
such setoff and application. ANY AND ALL RIGHTS TO REQUIRE ANY LENDER TO EXERCISE ITS RIGHTS OR
REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL THAT SECURES THE LOANS, PRIOR TO EXERCISING ITS RIGHT
TO SET-OFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER OR ANY
GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.


 


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11.12 COUNTERPARTS; INTEGRATION; EFFECTIVENESS; ELECTRONIC EXECUTION.



11.12.1 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement, the other Loan Documents and any separate fee letters or other letter agreements
with respect to fees payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Article 4 (Conditions to Fundings and Issuance of Letters of Credit), this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when the Administrative
Agent shall have received counterparts hereof that, when taken together, bear the signatures of
each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.



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



11.13 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY; ADVERTISEMENT.



11.13.1 Confidentiality. Each of the Administrative Agent, the Lenders and the Issuing Bank
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ respective partners, directors,
officers, employees and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the
extent required by applicable Laws or regulations or by any subpoena or similar legal process, (d)
to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under
any other Loan Document or any Interest Rate Protection Agreement with any Lender or any of its
Affiliates or any action or proceeding relating to this Agreement or any other Loan Document or any
Interest Rate Protection Agreement with any Lender or any of its Affiliates or the enforcement of
rights hereunder or thereunder, (f) subject to


 


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an agreement containing provisions substantially the same as those of this Section, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights
or obligations under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g)
with the consent of the Borrower or (h) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y) becomes available to the
Administrative Agent, any Lender, the Issuing Bank or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrower. Notwithstanding the foregoing, any
Lender may disclose Information, without notice to Borrower, to governmental regulatory authorities
in connection with any regulatory examination of such Lender or in accordance with such Lender’s
regulatory compliance policy.




11.13.2 Information. For purposes of this Section 11.13, “Information” means all
information received from the Borrower or any of its Subsidiaries relating to the Borrower or any
of its Subsidiaries or any of their respective businesses, other than any such information that is
available to the Administrative Agent, any Lender or the Issuing Bank on a nonconfidential basis
prior to disclosure by the Borrower or any of its Subsidiaries, provided that, in the case
of information received from the Borrower or any of its Subsidiaries after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to its own
confidential information.



11.13.3 Advertisement. The Borrower hereby authorizes the Administrative Agent to publish the
name of the Borrower and the amount of the financing evidenced hereby in any “tombstone” or
comparable advertisement which the Administrative Agent elects to publish. In addition, the
Borrower agrees that the Administrative Agent may provide lending industry trade organizations with
information necessary and customary (including the amount and type of facilities, the rates and
counsel’s name) for inclusion in league table measurements after the Closing Date. Without
limiting the generality of the foregoing, the Borrower acknowledges and agrees to the disclosure by
the Administrative Agent after the Closing Date of information relating to the Loans to Gold
Sheets, and other similar bank trade publications, with such information to consist of deal
terms consisting of (i) the Borrower’s name, (ii) principal loan amounts, (iii) interest rate, (iv)
term length and (v) commitment fees and other fees to the Lenders in the syndicate, the identity of
their attorneys and other information customarily found in such publications.



11.14 EXPENSES; INDEMNITY; DAMAGE WAIVER.



11.14.1 Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent (and fees and time charges and disbursements
for attorneys who may be employees of the Administrative Agent), in connection with the syndication
of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and
administration of this Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or
thereof (whether or not the transactions contemplated hereby or thereby shall be consummated),
(ii) all


 


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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, (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or
the Issuing Bank including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Lender or the Issuing Bank (and fees and time charges for attorneys who
may be employees of the Administrative Agent, any Lender or the Issuing Bank), in connection with
the enforcement or protection of its rights in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or in connection with the Loans made or Letters
of Credit issued hereunder, including, all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit, and (iv) any civil
penalty or fine assessed by the U.S. Department of the Treasury’s Office of Foreign Assets Control
against, and all reasonable costs and expenses (including counsel fees and disbursements) incurred
in connection with defense thereof by the Administrative Agent, the Issuing Bank or any Lender as a
result of the funding of Loans, the issuance of Letters of Credit, the acceptance of payments or of
Collateral due under the Loan Documents.



11.14.2 Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each 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 fees, charges and disbursements of any counsel for any Indemnitee and fees
and time charges and disbursements for attorneys who may be employees of any Indemnitee), incurred
by or asserted against any Indemnitee by any third party or by the Borrower or any other Loan Party
arising out of, in connection with, or as a result of (a) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby,
the performance by the parties hereto of their respective obligations hereunder or the consummation
of the transactions contemplated hereby or thereby, (b) 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), (c) any actual or alleged presence or
Release of Hazardous Substances on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any environmental liability related in any way to the Borrower or any of its
Subsidiaries, or (d) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory whether
brought by a third party or by the Borrower or any other Loan Party and regardless of whether any
Indemnitee is a party thereto, provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses (x) are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y)
result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for
breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document if
the Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on
such claim as determined by a court of competent jurisdiction.


 


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11.14.3 Reimbursement by Lenders. To the extent that the Borrower fails to pay any amount
required under Subsections 11.14.1 (Costs and Expenses) and 11.14.2 (Indemnification by the
Borrower) to be paid by it to the Administrative Agent (or any sub-agent thereof), the Issuing Bank
or any Related Party of any of the foregoing, each Lender severally agrees to pay to the
Administrative Agent (or any such sub-agent) or its Related Party, as the case may be, such
Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought based on each Lender’s share of the Total Facility at such time) of
such unpaid amount (including any such unpaid amount in respect of a claim asserted by such
Lender); provided, that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) or the Issuing Bank in its capacity as such, or
against any Related Party of any of the foregoing acting for the Administrative Agent (or any such
sub-agent) or Issuing Bank in connection with such capacity. The obligations of the Lenders under
this Subsection 11.14.3 are subject to the provisions of Section 2.5 (Lenders’ Obligations
Several).



11.14.4 Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable
Law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated
hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee
referred to in Subsection 11.14.2 (Indemnification by the Borrower) 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.



11.14.5 Payments. All amounts due under this Section 11.14 shall be payable promptly after
demand therefor.



11.14.6 Survival. Each party’s obligations under this Section shall survive the termination
of the Loan Documents and payment of the obligations hereunder.



11.15 CERTIFICATION OF AMOUNTS.



The certification by the Administrative Agent, the Issuing Bank or a Lender of the amount of
liabilities, losses, costs, expenses, claims and/or charges pursuant to Section 11.14 (Expenses;
Indemnity; Damage Waiver) shall be conclusive if such amounts have been computed or reached in a
reasonable manner.



11.16 TERMINATION OF SECURITY; PARTIAL RELEASE OF SECURITY.



11.16.1 Termination of Security. At such time as no Secured Party has any commitment to make
financial accommodations to the Borrower pursuant to the terms hereof and all the Secured
Obligations have been indefeasibly paid and performed in full, then the security provided for in
the Loan Documents shall terminate, provided, however, that all
indemnities of the Borrower and each other Loan Party contained in this Agreement or any other
Loan Document shall survive and remain operative and in full force and effect regardless of the
termination of such security.


 


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11.16.2 Partial Release of Security. Effective upon the closing of a disposition of any
Collateral to any Person (other than the Borrower or any of its Subsidiaries) and the application
of proceeds thereof in conformity with the provisions of this Agreement, the Lien of the
Administrative Agent on the assets subject to such disposition shall terminate and upon receipt by
the Administrative Agent of a certification to such effect from the chief financial officer of the
Borrower, the security interest granted under the Loan Documents in the Collateral so disposed of
shall terminate and the Administrative Agent shall deliver such releases as may be appropriate,
provided, however, the security interest granted under the Loan Documents in all remaining
Collateral shall remain in full force and effect.



11.17 WAIVER OF JURY TRIAL.



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



11.18 PATRIOT ACT NOTICE.



TO HELP FIGHT THE FUNDING OF TERRORISM AND MONEY LAUNDERING ACTIVITIES, FEDERAL LAW REQUIRES
ALL FINANCIAL INSTITUTIONS TO OBTAIN, VERIFY AND RECORD INFORMATION THAT IDENTIFIES EACH PERSON WHO
OPENS AN ACCOUNT. FOR PURPOSES OF THIS SECTION 11.18, ACCOUNT SHALL BE UNDERSTOOD TO INCLUDE LOAN
ACCOUNTS.



[Signature Page Follows]




 


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    IN WITNESS WHEREOF, the Borrower, the Administrative Agent, the Issuing Bank and the Lenders have
caused this Agreement to be duly executed by their respective duly authorized officers as of the
date first above written.



	 	 	 	 	 
	 	GREATBATCH LTD.

 	 
	 	By:  	 	 
	 	Name:	Thomas J. Mazza 	 
	 	Title:	Senior Vice President and

Chief Financial Officer 	 


Signature Page to Amended and Restated Credit Agreement



 


 








 





	 	 	 	 	 
	 	MANUFACTURERS AND TRADERS TRUST COMPANY, in its
capacity as the Administrative Agent, the Issuing
Bank, the Swingline Lender and a Lender

 	 
	 	By:  	 	 
	 	Name:	Michael J. Prendergast 	 
	 	Title:	Vice President	 
	 	

Wire Transfer Information




ABA Number: 022000046

Account Number:  3086001950200

Attention:  Adam Capizzi

Re:  Greatbatch, Inc. 
	 



Signature Page to Amended and Restated Credit Agreement




 


 









 







List of Addenda (Exhibits and Schedules)




EXHIBITS




	 	 	 
	Exhibit A-1

	 	Form of Amended and Restated RC Note (§2.6)
	Exhibit A-2

	 	Form of Amended and Restated Swing Note (§2.6)
	Exhibit B

	 	Form of Request for Advance (§2.3)
	Exhibit C

	 	Form of LIBOR Election (§2.8.4)
	Exhibit D

	 	Form of Amended and Restated Security Agreement (§4.1.3)
	Exhibit E-1

	 	Form of Amended and Restated Subsidiary Guaranty and
Suretyship Agreement (§4.1.4)
	Exhibit E-2

	 	Form of Amended and Restated Parent Guaranty and
Suretyship Agreement (§4.1.4)
	Exhibit F

	 	Form of Amended and Restated Pledge Agreement (§4.1.5)
	Exhibit G

	 	Form of Officer’s Compliance Certificate (§1.1)
	Exhibit H

	 	Form of Assignment and Assumption (§11.6.2(d))
	Exhibit I

	 	Lender Addendum (§1.1)






SCHEDULES




	 	 	 
	Schedule 5.1.1

	 	Organization and Qualification
	Schedule 5.1.2

	 	Capitalization
	Schedule 5.1.3

	 	Equity Ownership
	Schedule 5.4

	 	Consents
	Schedule 5.7

	 	Litigation
	Schedule 5.8

	 	Material Agreements
	Schedule 5.10

	 	Intellectual Property
	Schedule 5.19

	 	ERISA
	Schedule 5.24

	 	Labor
	Schedule 5.26(a)

	 	Indebtedness
	Schedule 5.26(b)

	 	Swap Obligations
	Schedule 8.1

	 	Other Indebtedness
	Schedule 8.2

	 	Other Liens
	Schedule 8.3

	 	Other Investments











 


 








 










	 	 	 	 	 	 	 	 	 
	ARTICLE 1	 	DEFINITIONS	 	 	2	 
	1.1	 	Defined Terms	 	 	2	 
	1.2	 	Terms Generally	 	 	26	 
	ARTICLE 2	 	THE LOANS	 	 	27	 
	2.1	 	Revolving Credit Loans	 	 	27	 
	 
	 	2.1.1	 	Commitment to Make RC Loans	 	 	27	 
	 
	 	2.1.2	 	Available Commitment	 	 	27	 
	 
	 	2.1.3	 	Voluntary Commitment Reductions	 	 	27	 
	 
	 	2.1.4	 	Mandatory Prepayments and Reductions in the Facility	 	 	27	 
	 
	 	2.1.5	 	Repayment in connection with Commitment Reductions and on Maturity Date	 	 	29	 
	 
	 	2.1.6	 	Voluntary Prepayment	 	 	29	 
	 
	 	2.1.7	 	Relationship of Commitment Reductions, Mandatory Prepayments and Voluntary Prepayments to Interest Rate Protection Agreements	 	 	30	 
	 
	 	2.1.8	 	Increases in Facility	 	 	30	 
	2.2	 	Swing Loans	 	 	31	 
	 
	 	2.2.1	 	Swing Loan Advances	 	 	31	 
	 
	 	2.2.2	 	Terms of Swing Loan Borrowings	 	 	31	 
	 
	 	2.2.3	 	Participation by Lenders	 	 	31	 
	 
	 	2.2.4	 	No Set-off, Etc.	 	 	32	 
	 
	 	2.2.5	 	Certain Limitations	 	 	32	 
	 
	 	2.2.6	 	Resignation of Swingline Lender	 	 	32	 
	2.3	 	Borrowing Notice	 	 	33	 
	2.4	 	[Reserved]	 	 	34	 
	2.5	 	Lenders’ Obligations Several	 	 	34	 
	2.6	 	Notes	 	 	34	 
	2.7	 	Fees to Lenders	 	 	34	 
	 
	 	2.7.1	 	Commitment Fees	 	 	34	 
	 
	 	2.7.2	 	Letter of Credit Fees	 	 	35	 
	 
	 	2.7.3	 	Other Fees	 	 	35	 
	2.8	 	Interest	 	 	35	 
	 
	 	2.8.1	 	Rates	 	 	35	 






 


 









 






TABLE OF CONTENTS

(continued)





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	 
	 	2.8.2	 	Applicable Margin	 	 	36	 
	 
	 	2.8.3	 	Adjustments to Applicable Margin	 	 	37	 
	 
	 	2.8.4	 	LIBOR Election	 	 	38	 
	 
	 	2.8.5	 	Breakage	 	 	38	 
	 
	 	2.8.6	 	Default Rate	 	 	39	 
	 
	 	2.8.7	 	Source of Funds	 	 	39	 
	 
	 	2.8.8	 	Interest Due with Certain Repayments and Prepayments	 	 	39	 
	2.9	 	Increased Costs; Unavailability	 	 	39	 
	 
	 	2.9.1	 	Increased Costs Generally	 	 	39	 
	 
	 	2.9.2	 	Capital Requirements	 	 	40	 
	 
	 	2.9.3	 	Certificates for Reimbursement	 	 	40	 
	 
	 	2.9.4	 	Delay in Requests	 	 	40	 
	 
	 	2.9.5	 	Inability to Determine LIBOR	 	 	41	 
	 
	 	2.9.6	 	Laws Affecting LIBOR Availability	 	 	41	 
	2.10	 	Purpose	 	 	41	 
	2.11	 	Mechanics of Payments: Borrower Payments	 	 	41	 
	 
	 	2.11.1	 	Manner of Making Payments	 	 	41	 
	 
	 	2.11.2	 	Payments by Borrower; Presumptions by Administrative Agent	 	 	42	 
	 
	 	2.11.3	 	Disbursements from Administrative Agent to Lenders	 	 	42	 
	 
	 	2.11.4	 	Authorization to Deduct Funds and Make Loans in Satisfaction of Obligations	 	 	42	 
	 
	 	2.11.5	 	Sharing of Payments by Lenders	 	 	43	 
	 
	 	2.11.6	 	Payments Due on Non-Business Days	 	 	43	 
	2.12	 	Mechanics of Payments; Lender Payments	 	 	44	 
	 
	 	2.12.1	 	Funding by Lenders; Presumption by Administrative Agent	 	 	44	 
	2.13	 	Taxes	 	 	44	 
	 
	 	2.13.1	 	Payments Free of Taxes	 	 	44	 
	 
	 	2.13.2	 	Payment of Other Taxes by the Borrower	 	 	44	 
	 
	 	2.13.3	 	Indemnification	 	 	45	 
	 
	 	2.13.4	 	Evidence of Payments	 	 	45	 
	 
	 	2.13.5	 	Status of Lenders	 	 	45	 






 


 









 




TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	 
	 	2.13.6	 	Treatment of Certain Refunds	 	 	46	 
	 
	 	2.13.7	 	Survival	 	 	46	 
	2.14	 	Mitigation Obligations; Replacement of Lenders	 	 	47	 
	 
	 	2.14.1	 	Designation of a Different Lending Office	 	 	47	 
	 
	 	2.14.2	 	Replacement of Lenders	 	 	47	 
	2.15	 	Defaulting Lenders	 	 	48	 
	 
	 	2.15.1	 	Defaulting Lender Adjustments	 	 	48	 
	 
	 	2.15.2	 	Defaulting Lender Cure	 	 	50	 
	 
	 	2.15.3	 	New Swing Loans/Letters of Credit	 	 	51	 
	2.16	 	Termination of Defaulting Lender	 	 	51	 
	2.17	 	Cash Collateral	 	 	51	 
	ARTICLE 3	 	LETTERS OF CREDIT	 	 	52	 
	3.1	 	Letters of Credit	 	 	52	 
	 
	 	3.1.1	 	Commitment to Issue Letters of Credit	 	 	52	 
	 
	 	3.1.2	 	Reimbursement Obligations	 	 	53	 
	 
	 	3.1.3	 	Limitation on Amount	 	 	53	 
	 
	 	3.1.4	 	Obligations Absolute	 	 	53	 
	 
	 	3.1.5	 	Reliance by Issuing Bank	 	 	54	 
	 
	 	3.1.6	 	Fees	 	 	54	 
	 
	 	3.1.7	 	Participation by Lenders	 	 	54	 
	 
	 	3.1.8	 	Standard of Conduct	 	 	55	 
	 
	 	3.1.9	 	Cash Collateral Account	 	 	55	 
	 
	 	3.1.10	 	Obligations Secured	 	 	55	 
	3.2	 	Resignation of Issuing Bank	 	 	55	 
	ARTICLE 4	 	CONDITIONS TO FUNDINGS AND ISSUANCE OF LETTERS OF CREDIT	 	 	56	 
	4.1	 	Conditions to Initial Funding	 	 	56	 
	 
	 	4.1.1	 	Execution of this Agreement	 	 	56	 
	 
	 	4.1.2	 	Notes	 	 	56	 
	 
	 	4.1.3	 	Amended and Restated Security Agreement	 	 	56	 
	 
	 	4.1.4	 	Amended and Restated Guaranty and Suretyship Agreement	 	 	56	 
	 
	 	4.1.5	 	Amended and Restated Pledge Agreements	 	 	57	 






 


 









 





TABLE OF CONTENTS

(continued)



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	 
	 	4.1.6	 	Control Agreements	 	 	57	 
	 
	 	4.1.7	 	Amended and Restated Intellectual Property Collateral Agreement	 	 	57	 
	 
	 	4.1.8	 	Lien Searches	 	 	57	 
	 
	 	4.1.9	 	Evidence of Insurance	 	 	57	 
	 
	 	4.1.10	 	Repayment of Existing Indebtedness	 	 	57	 
	 
	 	4.1.11	 	Payment of Fees and Costs	 	 	58	 
	 
	 	4.1.12	 	Financial Statements; Projections	 	 	58	 
	 
	 	4.1.13	 	Corporate Proceedings	 	 	59	 
	 
	 	4.1.14	 	Consents and Approvals	 	 	59	 
	 
	 	4.1.15	 	HSBC Acknowledgement	 	 	59	 
	 
	 	4.1.16	 	Material Adverse Change; Compliance with Law	 	 	59	 
	 
	 	4.1.17	 	Opinions of Counsel	 	 	59	 
	 
	 	4.1.18	 	Officer’s Compliance Certificate	 	 	59	 
	 
	 	4.1.19	 	Good Standing	 	 	60	 
	 
	 	4.1.20	 	Other Requirements	 	 	60	 
	4.2	 	Requirements for Each Loan/Letter of Credit	 	 	60	 
	 
	 	4.2.1	 	No Default	 	 	60	 
	 
	 	4.2.2	 	Borrowing Notice/Request for Letter of Credit	 	 	60	 
	 
	 	4.2.3	 	Representations and Warranties	 	 	60	 
	 
	 	4.2.4	 	Method of Certifying Certain Conditions	 	 	60	 
	ARTICLE 5	 	REPRESENTATIONS AND WARRANTIES	 	 	61	 
	5.1	 	Status	 	 	61	 
	 
	 	5.1.1	 	Organization and Qualification	 	 	61	 
	 
	 	5.1.2	 	Capitalization	 	 	61	 
	 
	 	5.1.3	 	Stock Ownership	 	 	62	 
	5.2	 	Power and Authority; Enforceability	 	 	62	 
	5.3	 	No Violation of Agreements; Absence of Conflicts	 	 	62	 
	5.4	 	Recording, Enforceability and Consent	 	 	62	 
	5.5	 	Lines of Business	 	 	63	 
	5.6	 	Security Interest in Collateral	 	 	63	 






 


 









 





TABLE OF CONTENTS

(continued)





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	5.7	 	Litigation; Compliance with Laws; OFAC Requirements	 	 	63	 
	5.8	 	No Burdensome Agreements; Material Agreements	 	 	64	 
	5.9	 	Condition of Property	 	 	64	 
	5.10	 	Licenses; Intellectual Property	 	 	64	 
	5.11	 	Title to Properties; Liens	 	 	65	 
	5.12	 	Management Agreements	 	 	65	 
	5.13	 	Financial Statements and Projections	 	 	65	 
	 
	 	5.13.1	 	Financial Statements	 	 	65	 
	 
	 	5.13.2	 	Undisclosed Liabilities	 	 	66	 
	 
	 	5.13.3	 	Absence of Material Adverse Change	 	 	66	 
	 
	 	5.13.4	 	Projections	 	 	66	 
	5.14	 	Tax Returns and Payments; Other Fees	 	 	66	 
	5.15	 	Fiscal Year	 	 	66	 
	5.16	 	Federal Reserve Regulations	 	 	67	 
	5.17	 	Investment Company Act	 	 	67	 
	5.18	 	Foreign Assets Control
Regulations, Etc.	 	 	67	 
	5.19	 	Compliance with ERISA	 	 	67	 
	 
	 	5.19.1	 	Plans	 	 	67	 
	 
	 	5.19.2	 	Favorable Determination Letters	 	 	67	 
	 
	 	5.19.3	 	Compliance	 	 	68	 
	 
	 	5.19.4	 	Absence of Certain Conditions	 	 	68	 
	 
	 	5.19.5	 	Absence of Certain Liabilities	 	 	68	 
	5.20	 	Accuracy and Completeness of Disclosure	 	 	69	 
	5.21	 	Adequacy of Capital; Solvency	 	 	69	 
	5.22	 	Absence of Restrictive Provisions	 	 	69	 
	5.23	 	Environmental Compliance	 	 	69	 
	5.24	 	Labor Matters	 	 	70	 
	5.25	 	Brokers	 	 	71	 
	5.26	 	Existing Indebtedness	 	 	71	 
	ARTICLE 6	 	REPORTING REQUIREMENTS AND NOTICES	 	 	71	 






 


 









 




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	6.1	 	Financial Data and Reporting Requirements; Notice of Certain Events	 	 	72	 
	 
	 	6.1.1	 	Delivery of Quarterly Financial Statements	 	 	72	 
	 
	 	6.1.2	 	Delivery of Annual Financial Statements; Accountants' Certification	 	 	72	 
	 
	 	6.1.3	 	Delivery of Officer's Compliance Certificates	 	 	73	 
	 
	 	6.1.4	 	Auditors’ Reports	 	 	73	 
	 
	 	6.1.5	 	SEC Filings, Etc.	 	 	73	 
	 
	 	6.1.6	 	Annual Budget	 	 	74	 
	6.2	 	Notice of Defaults	 	 	74	 
	6.3	 	Notice of Disputes and Other Matters	 	 	75	 
	 
	 	6.3.1	 	Certain Litigation	 	 	75	 
	 
	 	6.3.2	 	Conditions Affecting Collateral	 	 	75	 
	 
	 	6.3.3	 	Material Adverse Change	 	 	75	 
	 
	 	6.3.4	 	Representations and Warranties	 	 	75	 
	6.4	 	ERISA Notices	 	 	75	 
	6.5	 	Intellectual Property	 	 	76	 
	6.6	 	Miscellaneous	 	 	76	 
	6.7	 	Authorization of Third Parties to Deliver Information	 	 	76	 
	ARTICLE 7	 	FINANCIAL COVENANTS	 	 	77	 
	7.1	 	Interest Coverage Ratio	 	 	77	 
	7.2	 	Total Leverage Ratio	 	 	77	 
	7.3	 	Additional Provisions Respecting Calculation of Financial Covenants	 	 	77	 
	ARTICLE 8	 	BUSINESS COVENANTS	 	 	79	 
	8.1	 	Indebtedness	 	 	79	 
	 
	 	8.1.1	 	In General	 	 	79	 
	 
	 	8.1.2	 	Limitation on Incurrence	 	 	80	 
	8.2	 	Liens; and Licenses	 	 	80	 
	 
	 	8.2.1	 	In General	 	 	80	 
	 
	 	8.2.2	 	Negative Pledge	 	 	81	 
	 
	 	8.2.3	 	Licenses	 	 	81	 
	8.3	 	Investments, Loans, Acquisitions, Etc.	 	 	81	 






 


 









 




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	8.4	 	Restricted Payments	 	 	83	 
	 
	 	8.4.1	 	Intercompany	 	 	83	 
	 
	 	8.4.2	 	Permitted Debenture Payments	 	 	83	 
	 
	 	8.4.3	 	Permitted Stock Repurchases	 	 	83	 
	 
	 	8.4.4	 	Debenture Interest Payments	 	 	84	 
	 
	 	8.4.5	 	Ventures	 	 	84	 
	8.5	 	Sale-Leasebacks	 	 	84	 
	8.6	 	Transactions with Affiliates	 	 	84	 
	8.7	 	Mergers and Dispositions	 	 	85	 
	 
	 	8.7.1	 	Consolidations and Mergers	 	 	85	 
	 
	 	8.7.2	 	Sales and Other Dispositions	 	 	85	 
	8.8	 	Management Arrangements	 	 	86	 
	8.9	 	Existence	 	 	86	 
	8.10	 	Compliance with Law	 	 	86	 
	8.11	 	Payment of Taxes and Claims	 	 	86	 
	8.12	 	Tax Consolidation	 	 	87	 
	8.13	 	Compliance with ERISA	 	 	87	 
	8.14	 	Insurance	 	 	88	 
	 
	 	8.14.1	 	Liability, Property Damage, Etc.	 	 	88	 
	 
	 	8.14.2	 	PBGC	 	 	88	 
	8.15	 	Maintenance of Properties	 	 	88	 
	8.16	 	Maintenance of Records; Fiscal Year	 	 	89	 
	8.17	 	Inspection	 	 	89	 
	8.18	 	Exchange of Notes	 	 	89	 
	8.19	 	Type of Business; Other Activities	 	 	89	 
	8.20	 	Issuance of Equity	 	 	90	 
	8.21	 	Change in Documents	 	 	90	 
	8.22	 	Payment of Subordinated Indebtedness	 	 	90	 
	8.23	 	Seniority Over Subordinated Debentures	 	 	90	 
	8.24	 	Compliance with Federal Reserve Regulations	 	 	90	 






 


 









 




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	8.25	 	Limitations on Certain Restrictive Provisions	 	 	91	 
	8.26	 	Environmental Matters	 	 	91	 
	8.27	 	Corporate Separateness	 	 	91	 
	8.28	 	Certain Obligations Respecting Subsidiaries	 	 	91	 
	8.29	 	Further Assurances	 	 	93	 
	8.30	 	Reset Provision	 	 	93	 
	8.31	 	Post-Closing Covenants	 	 	94	 
	 
	 	8.31.1	 	Tax Clearance Certificates/Letter	 	 	94	 
	 
	 	8.31.2	 	Insurance	 	 	94	 
	ARTICLE 9	 	EVENTS OF DEFAULT	 	 	94	 
	9.1	 	Events of Default	 	 	94	 
	 
	 	9.1.1	 	Failure to Pay Principal or Reimbursement Obligations	 	 	94	 
	 
	 	9.1.2	 	Failure to Pay Interest, Fees, Etc.	 	 	94	 
	 
	 	9.1.3	 	Cross Default to Indebtedness	 	 	94	 
	 
	 	9.1.4	 	Other Cross-Defaults	 	 	95	 
	 
	 	9.1.5	 	Misrepresentations	 	 	95	 
	 
	 	9.1.6	 	Certain Covenant Defaults	 	 	95	 
	 
	 	9.1.7	 	Other Covenant Defaults	 	 	95	 
	 
	 	9.1.8	 	Other Loan Document Defaults; Security	 	 	96	 
	 
	 	9.1.9	 	Custody or Control of Assets	 	 	96	 
	 
	 	9.1.10	 	Discontinuance of Business	 	 	96	 
	 
	 	9.1.11	 	Insolvency	 	 	96	 
	 
	 	9.1.12	 	Material Adverse Change	 	 	96	 
	 
	 	9.1.13	 	Change of Control	 	 	96	 
	 
	 	9.1.14	 	Subordination	 	 	97	 
	 
	 	9.1.15	 	Interest Rate Protection Agreements	 	 	97	 
	 
	 	9.1.16	 	Judgments	 	 	97	 
	 
	 	9.1.17	 	Change of Management	 	 	97	 
	 
	 	9.1.18	 	Restricted Payment Default	 	 	97	 
	9.2	 	Acceleration; Remedies	 	 	97	 






 


 









 




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	 	9.2.1	 	Acceleration upon Insolvency	 	 	97	 
	 
	 	9.2.2	 	Acceleration upon Other Defaults	 	 	97	 
	 
	 	9.2.3	 	Remedies in General	 	 	98	 
	9.3	 	Proceeds of Collateral	 	 	98	 
	ARTICLE 10	 	AGENCY	 	 	99	 
	10.1	 	Appointment and Authority	 	 	99	 
	10.2	 	Rights as a Lender	 	 	100	 
	10.3	 	Exculpatory Provisions	 	 	100	 
	10.4	 	Reliance by Administrative Agent	 	 	101	 
	10.5	 	Delegation of Duties	 	 	102	 
	10.6	 	Resignation of Administrative Agent	 	 	102	 
	10.7	 	Non-Reliance on Administrative Agent and Other Lenders	 	 	103	 
	10.8	 	Other Agents	 	 	103	 
	10.9	 	Administrative Agent May File Proofs of Claim	 	 	103	 
	10.10	 	Collateral and Guaranty Matters	 	 	104	 
	10.11	 	No Reliance on Administrative Agent’s Customer Identification Program	 	 	104	 
	10.12	 	No Advisory Or Fiduciary Responsibility	 	 	105	 
	ARTICLE 11	 	MISCELLANEOUS	 	 	105	 
	11.1	 	Notices; Effectiveness; Electronic Communication	 	 	105	 
	 
	 	11.1.1	 	Notices Generally	 	 	105	 
	 
	 	11.1.2	 	Electronic Communications	 	 	106	 
	 
	 	11.1.3	 	Change of Address, Etc.	 	 	107	 
	 
	 	11.1.4	 	Platform	 	 	107	 
	11.2	 	Survival of Representations	 	 	107	 
	11.3	 	No Implied Waivers	 	 	107	 
	11.4	 	Severability	 	 	108	 
	11.5	 	Amendments, Waivers and Consents	 	 	108	 
	 
	 	11.5.1	 	In General	 	 	108	 
	 
	 	11.5.2	 	Other Amendments	 	 	109	 
	 
	 	11.5.3	 	Exception	 	 	109	 






 


 









 




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	11.6	 	Successors and Assigns	 	 	110	 
	 
	 	11.6.1	 	Successors and Assigns Generally	 	 	110	 
	 
	 	11.6.2	 	Assignments by Lenders	 	 	110	 
	 
	 	11.6.3	 	Register	 	 	112	 
	 
	 	11.6.4	 	Participations	 	 	112	 
	 
	 	11.6.5	 	Limitations upon Participant Rights	 	 	113	 
	 
	 	11.6.6	 	Certain Pledges	 	 	113	 
	11.7	 	Calculations and Financial Data	 	 	113	 
	11.8	 	Descriptive Headings	 	 	113	 
	11.9	 	Governing Law; Jurisdiction; Etc.	 	 	113	 
	 
	 	11.9.1	 	Governing Law	 	 	113	 
	 
	 	11.9.2	 	Submission to Jurisdiction	 	 	114	 
	 
	 	11.9.3	 	Waiver of Venue	 	 	114	 
	 
	 	11.9.4	 	Service of Process	 	 	114	 
	11.10	 	Maximum Lawful Interest Rate	 	 	115	 
	11.11	 	Right of Setoff	 	 	115	 
	11.12	 	Counterparts; Integration; Effectiveness; Electronic Execution	 	 	116	 
	 
	 	11.12.1	 	Counterparts; Integration; Effectiveness	 	 	116	 
	 
	 	11.12.2	 	Electronic Execution of Assignments	 	 	116	 
	11.13	 	Treatment of Certain Information; Confidentiality; Advertisement	 	 	116	 
	 
	 	11.13.1	 	Confidentiality	 	 	116	 
	 
	 	11.13.2	 	Information	 	 	117	 
	 
	 	11.13.3	 	Advertisement	 	 	117	 
	11.14	 	Expenses; Indemnity; Damage Waiver	 	 	117	 
	 
	 	11.14.1	 	Costs and Expenses	 	 	117	 
	 
	 	11.14.2	 	Indemnification by the Borrower	 	 	118	 
	 
	 	11.14.3	 	Reimbursement by Lenders	 	 	119	 
	 
	 	11.14.4	 	Waiver of Consequential Damages, Etc.	 	 	119	 
	 
	 	11.14.5	 	Payments	 	 	119	 
	 
	 	11.14.6	 	Survival	 	 	119	 






 


 









 




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	11.15	 	Certification of Amounts	 	 	119	 
	11.16	 	Termination of Security; Partial Release of Security	 	 	119	 
	 
	 	11.16.1	 	Termination of Security	 	 	119	 
	 
	 	11.16.2	 	Partial Release of Security	 	 	120	 
	11.17	 	Waiver of Jury Trial	 	 	120	 
	11.18	 	Patriot Act Notice	 	 	120