Exhibit 10.1





Exhibit 10.1




Published CUSIP Number: 39365LAA8




SECOND AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of June 30, 2011




among




THE GREENBRIER COMPANIES, INC.,

as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent,




UNION BANK, NATIONAL ASSOCIATION,

as Syndication Agent,




MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

as Sole Lead Arranger and Sole Book Manager,




and




The Other Lenders Party Hereto




 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page	 
	 
	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	26	 
	1.03 Accounting Terms
	 	 	27	 
	1.04 Exchange Rates; Currency Equivalents
	 	 	27	 
	1.05 Additional Alternative Currencies
	 	 	28	 
	1.06 Change of Currency
	 	 	29	 
	1.07 Times of Day
	 	 	29	 
	1.08 Letter of Credit Amounts
	 	 	29	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	29	 
	2.01 Committed Loans
	 	 	29	 
	2.02 Borrowings, Conversions and Continuations of Committed Loans
	 	 	30	 
	2.03 Letters of Credit
	 	 	32	 
	2.04 Swing Line Loans
	 	 	40	 
	2.05 Security
	 	 	42	 
	2.06 Prepayments
	 	 	42	 
	2.07 Termination or Reduction of Commitments
	 	 	43	 
	2.08 Repayment of Loans
	 	 	44	 
	2.09 Interest
	 	 	44	 
	2.10 Fees
	 	 	44	 
	2.11 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
	 	 	45	 
	2.12 Evidence of Debt
	 	 	46	 
	2.13 Payments Generally; Administrative Agent’s Clawback
	 	 	46	 
	2.14 Sharing of Payments by Lenders
	 	 	48	 
	2.15 Increase in Commitments
	 	 	49	 
	2.16 Cash Collateral
	 	 	50	 
	2.17 Defaulting Lenders
	 	 	51	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	52	 
	3.01 Taxes
	 	 	52	 
	3.02 Illegality
	 	 	54	 
	3.03 Inability to Determine Rates
	 	 	55	 
	3.04 Increased Costs
	 	 	55	 
	3.05 Compensation for Losses
	 	 	57	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	58	 
	3.07 Survival
	 	 	58	 
	ARTICLE IV CONDITIONS PRECEDENT TO Credit Extensions
	 	 	58	 
	4.01 Conditions of Initial Credit Extension
	 	 	58	 
	4.02 Conditions to all Credit Extensions
	 	 	60	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES
	 	 	61	 
	5.01 Existence, Qualification and Power; Compliance with Laws
	 	 	61	 
	5.02 Authorization; No Contravention
	 	 	61	 
	5.03 Governmental Authorization; Other Consents
	 	 	61	 
	5.04 Binding Effect
	 	 	61	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	62	 
	5.06 Litigation
	 	 	62	 
	5.07 No Default
	 	 	62	 
	5.08 Ownership of Property; Liens
	 	 	62	 
	5.09 Environmental Compliance
	 	 	63	 





 


 









 





	 	 	 	 	 
	Section	 	Page	 
	 
	 	 	 	 
	5.10 Insurance
	 	 	63	 
	5.11 Taxes
	 	 	63	 
	5.12 ERISA Compliance
	 	 	63	 
	5.13 Subsidiaries; Equity Interests
	 	 	64	 
	5.14 Margin Regulations; Investment Company Act
	 	 	64	 
	5.15 Disclosure
	 	 	64	 
	5.16 Compliance with Laws
	 	 	65	 
	5.17 Intellectual Property; Licenses, Etc.
	 	 	65	 
	ARTICLE VI AFFIRMATIVE COVENANTS
	 	 	65	 
	6.01 Financial Statements
	 	 	65	 
	6.02 Certificates; Other Information
	 	 	66	 
	6.03 Notices
	 	 	68	 
	6.04 Payment of Obligations
	 	 	68	 
	6.05 Preservation of Existence, Etc.
	 	 	69	 
	6.06 Maintenance of Properties
	 	 	69	 
	6.07 Maintenance of Insurance
	 	 	69	 
	6.08 Compliance with Laws
	 	 	70	 
	6.09 Books and Records
	 	 	70	 
	6.10 Inspection Rights
	 	 	70	 
	6.11 Use of Proceeds
	 	 	70	 
	6.12 [Reserved]
	 	 	71	 
	6.13 Additional Subsidiary Guarantors
	 	 	71	 
	6.14 Pledged Assets
	 	 	71	 
	6.15 Post-Closing Matters
	 	 	72	 
	ARTICLE VII NEGATIVE COVENANTS
	 	 	72	 
	7.01 Liens
	 	 	72	 
	7.02 Investments
	 	 	75	 
	7.03 Indebtedness
	 	 	76	 
	7.04 Fundamental Changes
	 	 	78	 
	7.05 Dispositions
	 	 	79	 
	7.06 Restricted Payments
	 	 	80	 
	7.07 Change in Nature of Business
	 	 	81	 
	7.08 Transactions with Affiliates
	 	 	81	 
	7.09 Burdensome Agreements
	 	 	81	 
	7.10 Use of Proceeds
	 	 	82	 
	7.11 Financial Covenants
	 	 	82	 
	7.12 Capital Expenditures
	 	 	83	 
	ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES
	 	 	83	 
	8.01 Events of Default
	 	 	83	 
	8.02 Remedies Upon Event of Default
	 	 	85	 
	8.03 Application of Funds
	 	 	86	 
	ARTICLE IX ADMINISTRATIVE AGENT
	 	 	87	 
	9.01 Appointment and Authority
	 	 	87	 
	9.02 Rights as a Lender
	 	 	87	 
	9.03 Exculpatory Provisions
	 	 	87	 
	9.04 Reliance by Administrative Agent
	 	 	88	 
	9.05 Delegation of Duties
	 	 	88	 
	9.06 Resignation of Administrative Agent
	 	 	89	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	89	 
	9.08 No Other Duties, Etc.
	 	 	90	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	90	 
	9.10 Collateral and Guaranty Matters
	 	 	90	 





 


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	Section	 	Page	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS
	 	 	91	 
	10.01 Amendments, Etc.
	 	 	91	 
	10.02 Notices; Effectiveness; Electronic Communication
	 	 	92	 
	10.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	94	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	95	 
	10.05 Payments Set Aside
	 	 	96	 
	10.06 Successors and Assigns
	 	 	97	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	100	 
	10.08 Right of Setoff
	 	 	101	 
	10.09 Interest Rate Limitation
	 	 	102	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	102	 
	10.11 Survival of Representations and Warranties
	 	 	102	 
	10.12 Severability
	 	 	102	 
	10.13 Replacement of Lenders
	 	 	103	 
	10.14 Governing Law; Jurisdiction; Etc.
	 	 	103	 
	10.15 Waiver of Jury Trial
	 	 	104	 
	10.16 USA PATRIOT Act Notice
	 	 	105	 
	10.17 Judgment Currency
	 	 	105	 
	10.18 Statutory Notice
	 	 	105	 
	10.19 No Advisory or Fiduciary Responsibility
	 	 	105	 
	10.20 Electronic Execution of Assignments and Certain Other Documents
	 	 	106	 
	10.21 Amendment and Restatement of Existing Credit Agreement
	 	 	106	 





 


iii









 





SCHEDULES




	 	 	 
	1.01A

	 	Existing Letters of Credit
	1.01B

	 	Mandatory Cost Formulae
	2.01

	 	Commitments and Applicable Percentages
	5.03

	 	Governmental Authorizations; Other Consents
	5.10

	 	Insurance
	5.13

	 	Subsidiaries and Other Equity Investments
	5.17

	 	IP Rights
	7.01

	 	Existing Liens
	7.02

	 	Existing Investments
	7.03

	 	Existing Indebtedness
	7.09

	 	Burdensome Agreements
	10.02

	 	Administrative Agent’s Office; Certain Addresses for Notices






EXHIBITS




	 	 	 
	 	 	Form of
	 
	 	 
	A

	 	Committed Loan Notice
	B

	 	Swing Line Loan Notice
	C

	 	Note
	D

	 	Compliance Certificate
	E

	 	Assignment and Assumption
	F

	 	Subsidiary Guaranty
	G

	 	Opinion Matters
	H

	 	Borrowing Base Certificate
	I

	 	Administrative Questionnaire







 


iv











 




SECOND AMENDED AND RESTATED CREDIT AGREEMENT




This SECOND AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of
June 30, 2011, among THE GREENBRIER COMPANIES, INC., an Oregon corporation (the
“Borrower”), each Lender (defined herein) from time to time a party hereto and BANK OF
AMERICA, N.A., as Administrative Agent.



INTRODUCTORY STATEMENT




The Borrower is a party to a certain Amended and Restated Credit Agreement dated as of
November 7, 2006 with certain Lenders and Bank of America, N.A., as administrative agent for such
Lenders (as amended, supplemented or otherwise modified from time to time until (but not including)
the date of this Agreement, the “Existing Credit Agreement”), which credit agreement
amended and restated a certain Credit Agreement dated as of June 29, 2005.



The parties to this Agreement desire to amend the Existing Credit Agreement as set forth
herein and to restate the Existing Credit Agreement in its entirety to read as follows. This
Agreement is not a novation of the Existing Credit Agreement.



The Borrower has requested that the Lenders provide each of them with revolving loans and
letters of credit, and the Lenders are willing to do so on the terms and conditions set forth
herein.



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



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS





1.01 Defined Terms.




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



“Account” has the meaning provided in Article 9 of the Uniform Commercial Code in
effect in New York as of the Closing Date and shall also include any rights to payment evidenced by
or constituting chattel paper (as defined in Article 9 of the Uniform Commercial Code in effect in
New York as of the Closing Date).



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



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



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


 


1









 





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



“Aggregate Commitments” means the Commitments of all the Lenders. The amount of the
Aggregate Commitments in effect on the Closing Date is $245,000,000.




“Agreement” means this Credit Agreement.



“Alternative Currency” means each of the Euro, the Mexican Peso, the Canadian Dollar,
Sterling, and each other currency (other than Dollars) that is approved in accordance with
Section 1.05.



“Alternative Currency Sublimit” means an amount equal to the lesser of $50,000,000 and
the amount available under the Revolver Ceiling. The Alternative Currency Sublimit is part of, and
not in addition to the Aggregate Commitments.



“Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time; provided that if the commitments of each Lender to make Committed Loans
and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to
Section 8.02 or if the Aggregate Commitments have expired, then such Applicable Percentage
shall be determined based on the Applicable Percentage of such Lender most recently in effect,
giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is
set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and
Assumption (or other document contemplated by this Agreement) pursuant to which such Lender becomes
a party hereto, as applicable. The Applicable Percentages shall be subject to adjustment as
provided in Section 2.17.



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



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Rate	 
	 	 	 	 	Consolidated	 	 	 	 	 	Eurocurrency	 	 	 	 
	Pricing	 	 	Capitalization	 	Commitment	 	 	Rate Loans +	 	 	Base Rate	 
	Level	 	 	Ratio	 	Fee	 	 	Letters of Credit	 	 	Loans	 
	 	1	 	 	> 0.60:1.0
	 	 	0.500	%	 	 	2.75	%	 	 	1.75	%
	 	2	 	 	> 0.50:1.0 but < 0.60:1.0
	 	 	0.500	%	 	 	2.50	%	 	 	1.50	%
	 	3	 	 	< 0.50:1.0
	 	 	0. 375	%	 	 	2.25	%	 	 	1.25	%






Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Capitalization Ratio shall become effective as of the first Business Day immediately following the
date a Compliance Certificate is delivered pursuant to Section 6.02(b); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with such
Section, then upon request of the Required Lenders Pricing Level 1 shall apply as of the first
Business Day after the date on which such Compliance Certificate was required to have been
delivered and Pricing Level 1 shall remain in effect until such time as the Compliance Certificate
has been delivered pursuant to Section 6.02(b). The Applicable Rate in
effect from the Closing Date through delivery of the Compliance Certificate for the fiscal
year ending on August 31, 2011 shall be determined based upon Pricing Level 2.


 


2









 





“Applicable Time” means, with respect to any borrowings and payments in any
Alternative Currency, the local time in the place of settlement for such Alternative Currency as
may be determined by the Administrative Agent or the L/C Issuer, as the case may be, to be
necessary for timely settlement on the relevant date in accordance with normal banking procedures
in the place of payment.



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



“Arranger” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, in its capacity
as sole lead arranger and sole book manager.



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



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



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



“Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended August 31, 2010, and the related
consolidated statements of income or operations, stockholders’ equity and cash flows for such
fiscal year of the Borrower and its Subsidiaries, including the notes thereto.



“Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.07, and (c) the date of termination of the Commitment of each Lender
to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to
Section 8.02.




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



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



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


 


3









 





“Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base
Rate Loans shall be denominated in Dollars.




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




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



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



“Borrowing Base” means, as of any date of determination, with respect to the assets of
the Borrower and the Subsidiary Guarantors, the sum of (i) the lesser of (A) 85% of the Dollar
amount of the net book value of the Perfected Lease Assets and (B) 85% of the Dollar amount of the
orderly liquidation value of the Perfected Lease Assets (determined as of the most recent appraisal
thereof), (ii) 60% of the Dollar amount of the net book value of Unperfected Lease Assets (not to
exceed $15,000,000 in the aggregate), (iii) 80% of the Dollar amount of Eligible Accounts, (iv) 50%
of the Dollar amount of Eligible Inventory, and (v) 50% of the Dollar amount of Eligible Property,
Plant and Equipment.



“Borrowing Base Certificate” means a certificate in a form attached as Exhibit
H or other form reasonably acceptable to the Administrative Agent, which calculates the
Borrowing Base as of any date of determination.



“Business Day” means (with respect to Obligations denominated in Dollars, any day
other than a Saturday, Sunday or other day on which commercial banks are authorized to close under
the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is
located, and (where applicable):




(a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in
respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried
out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such
day on which dealings in deposits in Dollars are conducted by and between banks in the
London interbank eurodollar market;




(b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Euro, any fundings, disbursements, settlements and payments in Euro in
respect of any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out
pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET
Day;




(c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in a currency other than Dollars or Euro, means any such day on which dealings
in deposits in the relevant currency are conducted by and between banks in the London or
other applicable offshore interbank market for such currency; and




(d) if such day relates to any fundings, disbursements, settlements and payments in a
currency other than Dollars or Euro in respect of a Eurocurrency Rate Loan denominated in a
currency other than Dollars or Euro, or any other dealings in any currency other than
Dollars or Euro to be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan (other than any interest rate settings), means any such day on which
banks are open for foreign exchange business in the principal financial center of the
country of such currency.


 


4









 






“Canadian Dollar” or “CDN$” means lawful money of Canada.



“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the Administrative Agent, the L/C Issuer or the Swing Line Lender (as
applicable) and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing
Line Loans, or obligations of Lenders to fund participations in respect of either thereof (as the
context may require), cash or deposit account balances or, if the L/C Issuer or the Swing Line
Lender benefitting from such collateral shall agree in its sole discretion, other credit support,
in each case pursuant to documentation in form and substance satisfactory to (a) the Administrative
Agent and (b) the L/C Issuer or the Swing Line Lender (as applicable). “Cash Collateral”
shall have a meaning correlative to the foregoing and shall include the proceeds of such cash
collateral and other credit support.



“Change in Law” means the occurrence, after the Closing Date, 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 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” means an event or series of events by which:




(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan), other than the Excluded Affiliates, becomes
the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange
Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of
all Equity Interests that such person or group has the right to acquire (such right, an
“option right”), whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of 35% or more of the Equity Interests of the
Borrower entitled to vote for members of the board of directors or equivalent governing body
of the Borrower on a fully-diluted basis (and taking into account all such securities that
such person or group has the right to acquire pursuant to any option right); or




(b) during any period of 24 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of the Borrower cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or
(iii) whose election or nomination to that board or other equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body (excluding, in the case of both clause (ii) and clause (iii), any individual whose
initial nomination for, or assumption of office as, a member of that board or equivalent
governing body occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any
person or group other than a solicitation for the election of one or more directors by
or on behalf of the board of directors).


 


5









 






“Closing Date” means June 30, 2011.




“Code” means the Internal Revenue Code of 1986.



“Collateral” means any and all assets and rights and interests in or to property of
the Loan Parties, whether tangible or intangible, in which a Lien is granted or purported to be
granted pursuant to the Loan Documents to secure any of the Obligations.



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



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



“Committed Loan” has the meaning specified in Section 2.01. Subject to the
definition of “Base Rate Loan”, Committed Loans may be denominated in Dollars or Alternative
Currencies.



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



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



“Consolidated Adjusted Interest Coverage Ratio” means, as of any date of
determination, the ratio of (a) Consolidated EBITDA plus rent expense for the period of the four
prior fiscal quarters ending on such date to (b) Consolidated Interest Charges (excluding
(i) any non-cash impact associated with any equity or equity-linked securities and (ii) any
prepayment premiums or penalties associated with the voluntary prepayment or redemption of
Indebtedness permitted under Section 7.03 paid in cash by the Borrower or any of its
Subsidiaries) plus rent expense for such period. Solely for purposes of this definition, “rent
expense” shall include operating lease expense. Notwithstanding the forgoing, the aggregate amount
of prepayment premiums excluded from Consolidated Interest Charges pursuant to the parenthetical
in clause (b) of the preceding sentence, together with the aggregate amount of consent fees added
back to Consolidated Net Income for purposes of calculating Consolidated EBITDA pursuant to clause
(a)(vi) of such definition, shall not exceed 3% of the outstanding principal amount of the
applicable Indebtedness permitted under Section 7.03 so prepaid or redeemed. In addition,
solely for purposes of this definition and in the sole discretion of the Borrower, Consolidated
EBITDA and Consolidated Interest Charges shall include pro-forma adjustments to incorporate the
financial results of any entity acquired during the subject period by the Borrower or its
Subsidiaries.



“Consolidated Capitalization Ratio” means, as of any date of determination, the ratio
of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated Funded
Indebtedness plus Stockholders’ Equity as of such date.


 


6









 





“Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a)
the following to the extent deducted (except in the case of clause (vii)) in calculating such
Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) income tax expense
or benefit (net of income tax credits) as reported on the consolidated statement of operations of
the Borrower and its Subsidiaries for such period, (iii) depreciation and amortization expense,
(iv) other extraordinary, unusual or non-recurring charges, expenses or losses of the Borrower and
its Subsidiaries reducing such Consolidated Net Income which do not represent a cash item in such
period or any future period, (v) non-cash stock compensation expenses for such period which do not
represent a cash item in such period or any future period, (vi) consent fees (excluding fees to
waive existing defaults) paid to holders of Indebtedness permitted under Section 7.03,
(vii) to the extent not already included in Consolidated EBITDA, proceeds of business interruption
insurance received by the Borrower or any of its Subsidiaries, (viii) costs, fees, expenses,
charges and any one-time payments made related to (A) the Loan Parties’ negotiation and entry into
the Loan Documents, or (B) any Permitted Acquisition or any debt or equity offering (whether or not
consummated) and (ix) all unrealized non-cash losses under interest rate Swap Contracts during such
period and minus (b) to the extent included in calculating such Consolidated Net Income,
(i) extraordinary, unusual or non-recurring income or gains of the Borrower and its Subsidiaries
increasing such Consolidated Net Income which does not represent a cash item in such period or any
future period and (ii) all unrealized non-cash gains under interest rate Swap Contracts during such
period. Notwithstanding the forgoing, the aggregate amount of consent fees added back to
Consolidated Net Income for purposes of calculating Consolidated EBITDA pursuant to clause (a)(vi)
of the preceding sentence, together with the aggregate amount of prepayment premiums excluded from
Consolidated Interest Charges pursuant to the parenthetical in clause (b) of the first sentence of
the definition of Consolidated Adjusted Interest Coverage Ratio, shall not exceed 3% of the
outstanding principal amount of the applicable Indebtedness permitted under Section 7.03 so
repaid or the holders of which have been so compensated.



“Consolidated Funded Indebtedness” means, as of any date of determination with respect
to the Borrower and its Subsidiaries on a consolidated basis, without duplication, the sum of: (a)
all obligations of such Person for borrowed money and all obligations of such Person evidenced by
bonds, debentures, notes, loan agreements or other similar instruments; (b) all obligations of such
Person to pay the deferred purchase price of property or services (other than trade accounts
payable in the ordinary course of business, advisory fees and any earn-out obligation until such
earn-out obligation is required to become a liability on the balance sheet of such Person in
accordance with GAAP); (c) Indebtedness (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including Indebtedness arising under conditional
sales or other title retention agreements), whether or not such Indebtedness shall have been
assumed by such Person or is limited in recourse; provided, however, that if such
Indebtedness is limited in recourse to the property encumbered thereby, such indebtedness shall be
deemed to be equal to the lesser of the (i) fair market value of such asset at such date of
determination and (ii) the amount of such Indebtedness; (d) capital leases and Synthetic Lease
Obligations; (e) all obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Disqualified Equity Interest in such Person or any other Person,
valued, in the case of a redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends; (f) all Guarantees
with respect to Indebtedness of the types specified in clauses (a) through (e) above of another
Person; and (g) all Indebtedness of the types referred to in clauses (a) through (f) above of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which any Loan Party or any Subsidiary is a general partner or joint
venturer, except to the extent that Indebtedness is expressly made non-recourse to such Person.


 


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



“Consolidated Net Income” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, the net income of the Borrower and its Subsidiaries (excluding
extraordinary items) for that period; provided, however, that, without duplication,
Consolidated Net Income shall be calculated without giving effect to (a) the cumulative effect of a
change in accounting principles, (b) any write-off of deferred financing costs incurred as a result
of the refinancing of Indebtedness, (c) purchase accounting adjustments required or permitted by
GAAP, (d) any non-cash net after-tax income or loss from operating results of discontinued
operations as determined by GAAP, and any after-tax gains or losses from sales of discontinued
operations, and (e) any non-cash impairment, charges or asset write-downs or write-offs (other than
write-downs or write-offs of current assets), in each case pursuant to GAAP.



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



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



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



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



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



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


 


8









 





“Defaulting Lender” means, subject to Section 2.17(b), any Lender that, as
determined by the Administrative Agent, (a) has failed to perform any of its funding obligations
hereunder, including in respect of its Loans or participations in respect of Letters of Credit or
Swing Line Loans, within three Business Days of the date required to be funded by it hereunder, (b)
has notified the Borrower or the Administrative Agent that it does not intend to comply with its
funding obligations or has made a public statement to that effect with respect to its funding
obligations hereunder or under other agreements in which it commits to extend credit, (c) has
failed, within three Business Days after request by the
Administrative Agent or the Borrower, to confirm in a manner satisfactory to the
Administrative Agent that it will comply with its funding obligations, or (d) has, or has a direct
or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief
Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of
creditors or similar Person charged with reorganization or liquidation of its business or a
custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent
to, approval of or acquiescence in any such proceeding or appointment; 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.



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



“Disqualified Equity Interest” means any Equity Interest of any Person that by its
terms (or by the terms of any security into which it is convertible or for which it is exchangeable
at the option of the holder thereof) or upon the happening of any event (a) matures or is
mandatorily redeemable in cash pursuant to a sinking fund obligation or otherwise, (b) is
redeemable in cash at the option of the holder thereof, or (c) requires or mandates the purchase,
redemption, retirement, defeasance or other similar payment (other than dividends) for cash, in
each case on or prior to the date that is 91 days after the Maturity Date.




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



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



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



“Eligible Account” means an Account owned by any Loan Party which satisfies all of the
following requirements:




(a) the Account is a genuine obligation resulting from the sale or lease of goods by,
the rendition of services by or hire of vessels of by such Loan Party to a Person (other
than to a Subsidiary, Affiliate, SPE or Joint Venture) in the ordinary course of business;




(b) the Account is subject to a first priority perfected Lien to secure the
Obligations;




(c) there are no conditions which must be satisfied before such Loan Party is entitled
to receive payment of the Account;




(d) the account debtor has not asserted in writing any defense to payment and has not
asserted in writing any counterclaim or offset against the Borrower or any Subsidiary;




(e) to the extent any credit balance exists in favor of the account debtor, such credit
balance has been deducted from the Account balance;


 


9









 






(f) except with respect to car hire receivables, such Loan Party has sent an invoice or
statement to the account debtor in the amount of the Account; and




(g) Accounts arising from (i) contracts subject to performance or surety bonds with
respect to which contracts the account debtors have elected to have the bonding company
assume or provide for the assumption of the applicable Loan Party’s performance obligations
with respect thereto and (ii) any other contracts with respect to which such bonding company
described in clause (i) has provided a surety or performance bond.




For purposes of this Agreement, the amount of any Eligible Account shall be determined to be
net of any portion thereof that is received by the Loan Parties for the benefit of third
parties and net of any lease payments owed by the Loan Parties with respect to goods
subleased by the Loan Parties to third parties.



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



“Eligible Inventory” means all Inventory of the Loan Parties, including raw materials,
work-in-process, and finished goods, valued at the lower of cost (on a FIFO basis) or market value,
in accordance with GAAP, which satisfies all of the following requirements:




(a) the Inventory is owned by a Loan Party and is subject to a first priority perfected
Lien to secure the Obligations;




(b) the Inventory is held for sale in the business of a Loan Party, is of good and
merchantable title, and is not obsolete, defective or unsalable;




(c) the Inventory is covered by insurance to any extent required by any Loan Document;




(d) the Inventory is not subject to any licensing agreement, trademark or other
proprietary right to which the applicable Loan Party is not subject or has the benefit of,
and which would prohibit or restrict its sale by the Lender to third parties; and




(e) the Inventory is stored in the United States or Canada.



“Eligible Property, Plant and Equipment” means the net book value of all owned
equipment (as defined in Article 9 of the Uniform Commercial Code in effect in New York as of the
Closing Date) and real property of the Loan Parties (i) which has been pledged or, in the case of
real property, mortgaged to the Lenders as security for the Obligations and against which the
Lenders have obtained a first priority, perfected, and, in the case of real property, title
insured, security interest, (ii) which is located in the United States and (iii) in the case of
real property, with respect to which the Administrative Agent has received, and is satisfied with
the results of, an appraisal for such real property and a Phase I environmental assessment.



“EMU” means the economic and monetary union in accordance with the Treaty of Rome
1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam
Treaty of 1998.


 


10









 





“EMU Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency.



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



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



“Equity Interests” of any Person means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of, or interest in, (however
designated) equity of such Person, including any preferred stock, but excluding any debt security
that is convertible into, or exchangeable for Equity Interests.




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



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



“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e)
of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Plan amendment as a termination under
Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.



“Euro” and “EUR” mean the lawful currency of the Participating Member States
introduced in accordance with the EMU Legislation.




“Eurocurrency Rate” means,


 


11









 






(a) for any Interest Period with respect to a Eurocurrency Rate Loan, (i) the rate per
annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as
published by Reuters (or such other commercially available source providing quotations of
BBA LIBOR as may be designated by the Administrative Agent from time to time) at
approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period, for
deposits in the relevant currency (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period or (ii) if such published rate is not
available at such time for any reason, the rate determined by the Administrative Agent to be
the rate at which deposits in the relevant currency for delivery on the first day of such
Interest Period in Same Day Funds in the approximate amount of the Eurocurrency Rate Loan
being made, continued or converted and with a term equivalent to such Interest Period would
be offered by Bank of America’s London Branch (or other Bank of America branch or Affiliate)
to major banks in the London or other offshore interbank market for such currency at their
request at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period; and




(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate
per annum equal to (i) BBA LIBOR at approximately 11:00 a.m. London time two Business Days
prior to such date for Dollar deposits being delivered in the London interbank market for a
term of one month commencing that day or (ii) if such published rate is not available at
such time for any reason, the rate per annum determined by the Administrative Agent to be
the rate at which deposits in Dollars for delivery on the date of determination in same day
funds in the approximate amount of the Base Rate Loan being made or maintained and with a
term equal to one month would be offered by Bank of America’s London Branch to major banks
in the London interbank Eurodollar market at their request at the date and time of
determination.



“Eurocurrency Rate Loan” means a Committed Loan that bears interest at a rate based on
clause (a) of the definition of “Eurodollar Base Rate.” Eurocurrency Rate Loans may be
denominated in Dollars or in an Alternative Currency. All Committed Loans denominated in an
Alternative Currency must be Eurocurrency Rate Loans.




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



“Excluded Affiliates” means Mr. William A. Furman, his spouse, direct descendants, any
Person Controlled by any of them and/or a trust for the benefit of any of them.



“Excluded Property” means, collectively (a) any rights or interests under any
contract, lease, license, permit or agreement, including, without limitation, interests in
partnerships, joint ventures or other such non-wholly owned Subsidiaries, if under the terms of
such contract, lease, license, permit or agreement, or applicable Law with respect thereto, the
granting of a security interest therein in the manner contemplated by the Loan Documents is
prohibited (except (i) where such prohibition has been waived or the consent of the other party to
such contract, lease, permit, license or agreement has been obtained or (ii) to the extent that an
otherwise applicable prohibition on such grant is rendered ineffective by the Uniform Commercial
Code or other applicable Laws), (b) equipment subject to a capitalized lease or purchase money
Liens permitted under Section 7.01(j) or 7.01(s) that prohibit the granting of any
other Lien on such equipment; provided that such equipment shall become Collateral upon
release of such capitalized lease or purchase money Lien, (c) any fixtures attached to real
property that is subject to a Lien permitted under Section 7.01(j) or 7.01(s), (d)
lease-related assets, including, but not limited to, rail cars, marine barges and other surface
transportation equipment, and related chattel paper, that (i) are subject to Liens that secure Term
Debt permitted under Section 7.03(d) that prohibit the granting of any other Lien on such
assets and (ii) are excluded from the Borrowing Base; provided that such assets shall
become Collateral upon release of such Lien, (e) any IP Rights for which a perfected Lien thereon
is not effected by filing of a Uniform Commercial Code financing statement or by appropriate
evidence of such Lien being filed in the United States Copyright Office or the United States Patent
and Trademark Office, (f) unless otherwise pledged as Collateral by the Loan Parties in their
discretion, any personal property (other than personal property described in clause (e) above) for
which the attachment or perfection of a Lien
thereon is not governed by the Uniform Commercial Code or evidenced by filings with the
Surface Transportation Board, (g) any intent-to-use applications for trademarks to the extent that,
and solely during the period in which, the grant of a security interest therein would impair the
validity or enforceability of such applications under applicable Law, (h) Equity Interests of any
Foreign Subsidiary, to the extent that such Equity Interests are not required to be (and have not
been) pledged pursuant to Section 6.14, and (i) Equity Interests in any Joint Venture
(including Greenbrier-GIMSA, LLC), SPE, or Managed Person to the extent and for so long as either
(y) the Organization Documents of such Joint Venture, SPE, or Managed Person prohibit the granting
of security interests therein in the manner contemplated by the Loan Documents or (z) the terms of
any financing arrangements with respect to such Joint Venture, SPE, or Managed Person prohibit the
granting of Equity Interests therein in the manner contemplated by the Loan Documents.
Notwithstanding the foregoing, “Excluded Property” shall not include any property pledged in
accordance with Section 6.14(c).


 


12









 





“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by net income (however denominated), doing
business taxes, and franchise taxes imposed on it (in lieu of net income taxes), by any
Governmental Authority or other taxing authority, (b) any branch profits taxes imposed by the
United States or any similar tax imposed by any other jurisdiction in which the Borrower is
located, (c) any backup withholding tax that is required by the Code to be withheld from amounts
payable to a Lender that has failed to comply with Section 3.01(e), (d) any taxes imposed
on any “withholdable payment” payable to such recipient as a result of the failure of such
recipient to satisfy the applicable requirements as set forth in FATCA to establish that such
payment is exempt from withholding under FATCA and (e) in the case of a Foreign Lender (other than
an assignee pursuant to a request by the Borrower under Section 10.13), 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
failure or inability (other than as a result of a Change in Law) to comply with Section
3.01(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new Lending Office (or assignment), to receive additional amounts
from the Borrower with respect to such withholding tax pursuant to Section 3.01(a).



“Existing Credit Agreement” has the meaning specified in the Introductory Statement
hereto.



“Existing Letters of Credit” means those Letters of Credit listed on Schedule
1.01A.



“FATCA” means Sections 1471 through 1474 of the Code and any regulations promulgated
thereunder or official interpretations thereof.



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



“Fee Letter” means the letter agreement, dated June 30, 2011, among the Borrower, the
Administrative Agent and the Arranger.


 


13









 





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




“Foreign Subsidiary” means any Subsidiary other than a Domestic Subsidiary.




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



“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C
Obligations other than L/C 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 the Swing Line Lender, such Defaulting Lender’s Applicable
Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance
with the terms hereof.



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



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



“Golden West Agreements” means the Re-marketing Agreement dated as of November 19,
1987 among Southern Pacific Transportation Company, St. Louis Southwestern Railway Company,
Greenbrier Leasing Corporation and the Greenbrier Railcar, Inc., the Amendment to Re-marketing
Agreement among Southern Pacific Transportation Company, St. Louis Southwestern Railway Company,
Greenbrier Leasing Corporation and Greenbrier Railcar, Inc. dated as of November 15, 1988, the
Amendment No. 2 to Re-marketing Agreement among Southern Pacific Transportation Company, St. Louis
Southwestern Railway Company, Greenbrier Leasing Corporation and Greenbrier Railcar, Inc., and the
Amendment No. 3 to Re-marketing Agreement dated November 19, 1987 among Southern Pacific
Transportation Company, St. Louis Southwestern Railway Company, Greenbrier Leasing Corporation and
Greenbrier Railcar, Inc. dated as of March 5, 1991, in each case as in effect on the Closing Date.



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


 


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



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




“Honor Date” has the meaning specified in Section 2.03(c).



“Immaterial Subsidiary” means, as of any date, any Subsidiary (a) whose total assets,
as of that date, are less than $5,000,000 and (b) whose total revenues for the most recent
twelve-month period do not exceed $5,000,000. Notwithstanding the foregoing, in no event shall any
Subsidiary that Guarantees the Borrower’s obligations under that certain Indenture, dated as of May
22, 2006, among the Borrower, the guarantors party thereto and U.S. Bank National Association, as
trustee, be an “Immaterial Subsidiary” for purposes of the Loan Documents.



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




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




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




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




(d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business, advisory
fees and any earn-out obligation until such earn-out obligation is required to become a
liability on the balance sheet of such Person in accordance with GAAP);




(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse; provided, however, that if
such indebtedness is limited in recourse to the property encumbered thereby, such
indebtedness shall be deemed to be equal to the lesser of the (i) fair market value of such
asset at such date of determination and (ii) the amount of such indebtedness;


 


15









 






(f) capital leases and Synthetic Lease Obligations;




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




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



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




“Indemnified Taxes” means Taxes other than Excluded Taxes.




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




“Information” has the meaning specified in Section 10.07.



“Interest Payment Date” means, (a) as to any Eurocurrency Rate Loan, the last day of
each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the
last Business Day of each March, June, September and December and the Maturity Date.



“Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on
the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency
Rate Loan and ending on the date that is seven (7) days, fourteen (14) days, one, two, three or six
months thereafter, as selected by the Borrower in its Committed Loan Notice or such other period
that is twelve months or less requested by the Borrower any and consented to by all the Lenders;
provided that:




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




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




(iii) no Interest Period shall extend beyond the Maturity Date.



“Inventory” has the meaning provided in Article 9 of the Uniform Commercial Code in
effect in New York as of the Closing Date.


 


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“Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to, assumption of debt
of, or purchase or other acquisition of any other debt or equity participation or interest in,
another Person, including any partnership or joint venture interest in such other Person, or (c)
the purchase or other acquisition (in one transaction or a series of transactions) of all or
substantially all of the property of, or a line of business or division of, another Person. For
purposes of covenant compliance, the amount of any Investment made by any Person shall be the
amount actually invested, without adjustment for subsequent increases or decreases in the value of
such Investment less all cash returns, cash dividends and cash distributions (or the fair market
value of any non-cash returns, dividends and distributions) received by such Person from such
Investment.




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




“IRS” means the United States Internal Revenue Service.



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



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



“Joint Venture” means a Person or other legal arrangement which meets the following
criteria: (a) it is a single-purpose corporation, partnership, limited liability company, joint
venture or other similar legal arrangement (whether created by contract or conducted through a
separate legal entity) formed by the Borrower or any of its Subsidiaries with another Person in
order to conduct a common venture or enterprise with such Person and (b) the Borrower and its
Subsidiaries directly or indirectly own less than 75% of the Equity Interests.



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



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



“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter
of Credit which has not been reimbursed on the date when made or refinanced as a Committed
Borrowing. All L/C Borrowings shall be denominated in Dollars.



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



“L/C Issuer” means (a) Bank of America, (b) solely to the extent that Bank of America
is unable or unwilling to issue such Letters of Credit hereunder, any other Lender with a Revolving
Commitment
that upon request of the Borrower agrees to issue one or more Letters of Credit hereunder, as
issuer of such Letters of Credit, and/or (c) any successor issuer of Letters of Credit hereunder.
The term “L/C Issuer” when used with respect to a Letter of Credit or the L/C Obligations relating
to a Letter of Credit shall refer to the L/C Issuer that issued such Letter of Credit.


 


17









 





“L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts with respect to Letters of Credit, including L/C Borrowings. For purposes of
computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.08. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such
Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be
drawn.



“Lender” means each of the Persons identified as a “Lender” on the signature pages
hereto and each other Person that becomes a “Lender” in accordance with this Agreement and their
successors and assigns and, as the context requires, includes the Swing Line Lender.



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



“Letter of Credit” means a standby or sight draft commercial letter of credit issued
under this Agreement. Letters of Credit may be issued in Dollars or in Alternative Currencies.



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



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



“Letter of Credit Fee” means any letter of credit fee payable by the Borrower to the
Administrative Agent, for the account of the Lenders, pursuant to Section 2.03(h).



“Letter of Credit Sublimit” means an amount equal to the lesser of $50,000,000 or the
amount available under the Revolver Ceiling. The Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Commitments.



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



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



“Loan Documents” means (a) this Agreement, (b) each Note, (c) each Issuer Document,
(d) the Fee Letter, (e) the Subsidiary Guaranty, (f) the Security Agreement, (g) the Pledge
Agreement and (h)
each other security agreement, pledge, deed of trust, mortgage or other document purporting to
create a Lien on the Collateral.


 


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



“Managed Person” means any entity for which a Loan Party provides management or other
services but with respect to which neither the Borrower nor any Subsidiary has any ownership
interest.



“Mandatory Cost” means, with respect to any period, the percentage rate per annum
determined in accordance with Schedule 1.01B. 



“Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties or financial condition or results of
operations of the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the
ability of the Loan Parties taken as a whole to perform their material obligations under any Loan
Document to which it is a party; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against any Loan Party of any Loan Document to which they are a
party.



“Material Contractual Obligation” means, with respect to any Person, (i) each
Contractual Obligation to which such Person is a party involving aggregate consideration payable to
or by such Person of an amount equal to or greater than the Threshold Amount (other than purchase
orders in the ordinary course of the business of such Person), and (ii) all other contracts or
agreements, the loss of which could reasonably be expected to result in a Material Adverse Effect.




“Maturity Date” means June 30, 2016.



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



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



“Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan
or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and including (i) interest
and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof
of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in such proceeding and (ii) all
costs and expenses in connection with the enforcement or collection of the obligations that are
reimbursable by any Loan Party under the terms of any Loan Document. The foregoing shall also
include (a) all obligations under any Swap Contract between any Loan Party and any Lender or
Affiliate of a Lender that is permitted to be incurred pursuant to Section 7.03(c) and (b)
all obligations under any Treasury Management Agreement between any Loan Party and any Lender or
Affiliate of a Lender.



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


 


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



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



“Overnight Rate” means, for any day, (a) with respect to any amount denominated in
Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the
Administrative Agent, the L/C Issuer, or the Swing Line Lender, as the case may be, in accordance
with banking industry rules on interbank compensation, and (b) with respect to any amount
denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits
in the applicable Alternative Currency, in an amount approximately equal to the amount with respect
to which such rate is being determined, would be offered for such day by a branch or Affiliate of
Bank of America in the applicable offshore interbank market for such currency to major banks in
such interbank market. 




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




“Participating Member State” means each state so described in any EMU Legislation.




“PBGC” means the Pension Benefit Guaranty Corporation.



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



“Perfected Lease Assets” means those certain lease-related assets, including, but not
limited to, rail cars, marine barges and other surface transportation equipment, and related
chattel paper, of the Borrower, or of Subsidiary Guarantors, which have been pledged to the Lenders
as security for the Obligations, and against which the Lenders have obtained a first priority,
perfected security interest.


 


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“Permitted Acquisition” means an Investment consisting of the acquisition by the
Borrower or a Subsidiary Guarantor, in a single transaction or in a series of related transactions,
of either (a) all or any substantial portion of the property of, or a line of business or division
of, another Person or (b) at least a
majority of the Voting Stock of another Person, in each case whether or not involving a merger
or consolidation with such other Person (any such transaction, an “Acquisition”),
provided, that (i) the property acquired (or the property of the Person acquired) in such
Acquisition is used or useful in the same or a similar line of business as the Borrower and its
Subsidiaries were engaged in on the Closing Date (or any reasonable extensions or expansions
thereof), (ii) in the case of an Acquisition of the Equity Interests of another Person, the board
of directors (or other comparable governing body) of such other Person shall have duly approved
such Acquisition, (iii) the Borrower shall have delivered to the Administrative Agent a certificate
demonstrating that, upon giving effect to such Acquisition, the Loan Parties would be in compliance
with the financial covenants set forth in Section 7.11 on a Pro Forma Basis, (iv) the
representations and warranties made by the Loan Parties in each Loan Document shall be true and
correct in all material respects at and as if made as of the date of such Acquisition (after giving
effect thereto), (v) if such transaction involves the purchase of an interest in a partnership
between a Loan Party as a general partner and entities unaffiliated with the Borrower as the other
partners, such transaction shall be effected by having such equity interest acquired by a corporate
holding company directly or indirectly wholly-owned by such Loan Party newly formed for the sole
purpose of effecting such transaction, and (vi) immediately after giving effect to such
Acquisition, there shall be at least $25,000,000 of undrawn availability under the Aggregate
Commitments and the Revolver Ceiling.



“Permitted Liens” means, at any time, Liens in respect of property of any Loan Party
or any Subsidiary permitted to exist at such time pursuant to the terms of Section 7.01.



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



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




“Platform” has the meaning specified in Section 6.02.



“Pledge Agreement” means that certain Second Amended and Restated Pledge Agreement,
dated as of the Closing Date, among the Loan Parties party thereto and the Administrative Agent.




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



“Pro Forma Basis” means, for purposes of calculating the financial covenants set forth
in Section 7.11 (including for purposes of determining the Applicable Rate), that any
Permitted Acquisition shall be deemed to have occurred as of the first day of the most recent four
fiscal quarter period preceding the date of such transaction for which the Borrower was required to
deliver (and has delivered) financial statements pursuant to Section 6.01(a) or
(b). In connection with the foregoing, (a) income statement items attributable to the
Person or property acquired shall be included to the extent relating to any period applicable in
such calculations to the extent (i) such items are not otherwise included in such income statement
items for the Borrower and its Subsidiaries in accordance with GAAP or in accordance with any
defined terms set forth in Section 1.01 and (ii) such items are supported by financial
statements or other information reasonably satisfactory to the Administrative Agent and (b) any
Indebtedness incurred or assumed by the Borrower or any Subsidiary (including the Person or
property acquired) in connection with such transaction and any Indebtedness of the Person or
property acquired which is not retired in connection with such transaction shall be deemed to have
been incurred as of the first day of the applicable period.



“Qualified Equity Interests” means the Equity Interests that are not Disqualified
Equity Interests.


 


21









 






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



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



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



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



“Required Lenders” means, as at any date of determination, Lenders holding in the
aggregate more than 50% of (a) the Dollar amount of the unfunded Commitments and the outstanding
Committed Loans, L/C Obligations and participations therein or (b) if the Commitments have been
terminated, the Dollar amount of the outstanding Committed Loans, L/C Obligations and
participations therein. The unfunded Commitments of, and the outstanding Committed Loans, L/C
Obligations and participations therein held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.



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



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



“Revaluation Date” means (a) with respect to any Committed Loan, each of the
following: (i) each date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative
Currency, and (ii) each date of a continuation of a Eurocurrency Rate Loan denominated in an
Alternative Currency pursuant to Section 2.02, and (iii) such additional dates as the
Administrative Agent shall determine or the Required Lenders shall require; and (b) with respect to
any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit
denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit
having the effect of increasing the amount thereof (solely with respect to the increased amount),
(iii) each date of any payment by the L/C Issuer under any Letter of Credit denominated in an
Alternative Currency, (iv) in the case of the Existing Letters of Credit, the Closing Date and (v)
such additional dates as the Administrative Agent or the L/C Issuer shall determine or the Required
Lenders shall require.



“Revolver Ceiling” means the amount that is the lesser of (a) the Aggregate
Commitments and (b) the amount available under the Borrowing Base.


 


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“Same Day Funds” means (a) with respect to disbursements and payments in Dollars,
immediately available funds, and (b) with respect to disbursements and payments in an Alternative
Currency, same day or other funds as may be determined by the Administrative Agent or the L/C
Issuer, as the case may be, to be customary in the place of disbursement or payment for the
settlement of international banking transactions in the relevant Alternative Currency.



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



“Security Agreement” means that certain Second Amended and Restated Security
Agreement, dated as of the Closing Date, among the Loan Parties party thereto and the
Administrative Agent.



“SPE” means any Person that is a direct or indirect, special purpose subsidiary of the
Borrower that engages in no activities other than those reasonably related to or in connection with
the entering into of transactions described in Section 7.05, including lease
securitization, structured finance or syndication transactions, and/or in acquiring, managing,
marketing, remarketing, leasing and/or selling rail cars and which is designated by the board of
directors of the Borrower as an SPE; provided (a) that neither the Borrower nor any
Subsidiary (i) shall provide any Guarantee or other credit support to such Person, (ii) shall have
any contract, agreement, arrangement or understanding with such Person other than on terms that are
fair and reasonable and that are no less favorable to the Borrower or such Subsidiary than could be
obtained from an unrelated Person (other than representations, warranties and covenants (including
those relating to servicing) entered into in the ordinary course of business in connection with a
transactions contemplated by Section 7.05(f)), including lease securitization, structured
finance or syndication transactions), and (iii) shall have any obligation to maintain or preserve
such Person’s financial condition or to cause such Person to achieve certain levels of operating
results and (b) no portion of the Indebtedness or any other obligations (contingent or otherwise)
of such Person shall be recourse to the Borrower or its Subsidiaries (other than representations,
warranties and covenants (including those relating to servicing) entered into in the ordinary
course of business in connection with a transactions contemplated by Section 7.05(f),
including lease securitization, structured finance or syndication transactions).



“Special Notice Currency” means at any time an Alternative Currency, other than the
currency of a country that is a member of the Organization for Economic Cooperation and Development
at such time located in North America or Europe.



“Spot Rate” for a currency means the rate determined by the Administrative Agent or
the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the
spot rate for the purchase by such Person of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days
prior to the date as of which the foreign exchange computation is made; provided that the
Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution
designated by the Administrative Agent or the L/C Issuer if the Person acting in such capacity does
not have as of the date of determination a spot buying rate for any such currency; and
provided further that the L/C Issuer may use such spot rate quoted on the date as
of which the foreign exchange computation is made in the case of any Letter of Credit denominated
in an Alternative Currency.




“Sterling” and “£” means the lawful currency of the United Kingdom.



“Stockholders’ Equity” means, as of any date of determination, consolidated
stockholders’ equity of the Borrower and its Subsidiaries as of that date determined in accordance
with GAAP but excluding
any non-cash impact of (i) goodwill impairment charges, (ii) increases (or decreases) from
accumulated other comprehensive income (or loss) and (iii) the issuance of any equity or
equity-linked securities.


 


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“Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Borrower. For purposes of the Loan Documents, the term “Subsidiary” shall
not include any “SPE”, any “Managed Person” or any “Joint Venture”.



“Subsidiary Guarantors” means, collectively, Autostack Company LLC, Greenbrier Leasing
Company LLC, Greenbrier Railcar LLC, Gunderson LLC, Gunderson Rail Services LLC, Gunderson Marine
LLC, Greenbrier-Concarril, LLC, Greenbrier Leasing Limited Partner, LLC, Greenbrier Management
Services, LLC, Meridian Rail Holdings Corp., Meridian Rail Acquisition Corp., Meridian Rail Mexico
City Corp., Brandon Railroad LLC, Greenbrier Leasing, L.P., Greenbrier Railcar Leasing, Inc. and
Gunderson Specialty Products, LLC and each other Subsidiary that becomes a Subsidiary Guarantor
after the Closing Date in accordance with Section 6.13.



“Subsidiary Guaranty” means the Second Amended and Restated Subsidiary Guaranty made
by each of the Subsidiary Guarantors in favor of the Administrative Agent and the Lenders,
substantially in the form of Exhibit F.



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



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



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



“Swing Line Lender” means Bank of America, or any successor Swing Line Lender
hereunder.


 


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



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



“Swing Line Sublimit” means an amount equal to the lesser of $15,000,000 and the
amount available under the Revolver Ceiling. The Swing Line Sublimit is part of, and not in
addition to, the Aggregate Commitments.



“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).



“TARGET Day” means any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be
operative, such other payment system (if any) determined by the Administrative Agent to be a
suitable replacement) is open for the settlement of payments in Euro.



“Taxes” means 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.




“Term Debt” has the meaning specified in Section 7.03(d).




“Threshold Amount” means $15,000,000.



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



“Treasury Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, funds transfer, automated
clearinghouse, zero balance accounts, returned check concentration, controlled disbursement,
lockbox, account reconciliation and reporting and trade finance services and other cash management
services.



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



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




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



“Unperfected Lease Assets” means those certain lease-related assets, including, but
not limited to, rail cars, marine barges and other surface transportation equipment, and related
chattel paper, of the Borrower, or of Subsidiary Guarantors, which have been pledged to the Lenders
as security for the Obligations, but for which the Lenders have not received a first priority,
perfected security interest.


 


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“Unreimbursed Amount” means, with respect to any drawing under a Letter of Credit that
is not reimbursed by the Borrower in accordance with Section 2.03(c)(i), the amount of such
unreimbursed drawing.



“Warrant Documents” means the WRC Warrants, the WRC Warrant Agreement and the WRC
Investor Rights Agreement.




“WRC” means WL Ross & Co. LLC.




“WRC Credit Agreement” has the meaning specified in Section 4.01(c).



“WRC Investor Rights Agreement” means the Investor Rights and Restrictions Agreement,
dated as of June 10, 2009, among the Company, WRC and the holders from time to time party thereto.



“WRC Warrant Purchase Agreement” means the Warrant Purchase Agreement, dated as of
June 10, 2009, among the Company, WLR Institutional Lending LLC and the holders from time to time
party thereto.



“WRC Warrants” means the warrants to purchase common stock of the Company issued
pursuant to the WRC Warrant Purchase Agreement.




1.02 Other Interpretive Provisions.



With reference to this Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:



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



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


 


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




1.03 Accounting Terms.



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



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



(c) Calculations; Consolidation of Variable Interest Entities. Notwithstanding the
above, the parties hereto acknowledge and agree that all calculations of the financial covenants in
Section 7.11 (including for purposes of determining the Applicable Rate) shall be made on a
Pro Forma Basis. All references herein to consolidated financial statements of the Borrower and
its Subsidiaries or to the determination of any amount for the Borrower and its Subsidiaries on a
consolidated basis or any similar reference shall, in each case, be deemed to include each variable
interest entity (other than any such entity that is an SPE) that the Borrower is required to
consolidate pursuant to FASB Interpretation No. 46 — Consolidation of Variable Interest Entities:
an interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a
Subsidiary as defined herein. Notwithstanding the foregoing, for purposes of determining
compliance with any covenant (including the computation of any financial covenant) contained
herein, any change in GAAP requiring leases which were previously classified as operating leases to
be treated as capitalized leases shall be ignored for the purpose of determining Indebtedness
hereunder and such leases shall continue to be treated as operating leases for such purpose
consistent with GAAP as in effect on the date hereof.




1.04 Exchange Rates; Currency Equivalents.



(a) The Administrative Agent or the L/C Issuer, as applicable, shall determine the Spot Rates
as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit
Extensions and Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates shall
become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any
amounts between the applicable currencies until the next Revaluation Date to occur. Except for
purposes of financial statements delivered by Loan Parties hereunder or calculating financial
covenants hereunder or except as otherwise provided herein, the applicable amount of any currency
(other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as
so determined by the Administrative Agent or the L/C Issuer, as applicable.


 


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(b) Wherever in this Agreement in connection with a Committed Borrowing, conversion,
continuation or prepayment of a Loan or the issuance, amendment or extension of a Letter of Credit,
an amount, such as a required minimum or multiple amount, is expressed in Dollars but such
Committed Borrowing, Loan or Letter of Credit is denominated in an Alternative Currency, such
amount shall be the relevant Alternative Currency equivalent of such Dollar amount (rounded to the
nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined
by the Administrative Agent or the L/C Issuer, as the case may be.




1.05 Additional Alternative Currencies.



(a) The Borrower may from time to time request that Eurocurrency Rate Loans be made and/or
Letters of Credit be issued in a currency other than those specifically listed in the definition of
“Alternative Currency;” provided that such requested currency is a lawful currency (other
than Dollars) that is readily available and freely transferable and convertible into Dollars. In
the case of any such request with respect to the making of Eurocurrency Rate Loans, such request
shall be subject to the approval of the Administrative Agent and the Lenders that would be
obligated to make Credit Extensions denominated in such requested currency; and in the case of any
such request with respect to the issuance of Letters of Credit, such request shall be subject to
the approval of the Administrative Agent and the L/C Issuer.



(b) Any such request shall be made to the Administrative Agent not later than 8:00 a.m., 20
Business Days prior to the date of the desired Credit Extension (or such other time or date as may
be agreed by the Administrative Agent and, in the case of any such request pertaining to Letters of
Credit, the L/C Issuer, in its or their sole discretion). In the case of any such request
pertaining to Eurocurrency Rate Loans, the Administrative Agent shall promptly notify each Lender
thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative
Agent shall promptly notify the L/C Issuer thereof. Each Lender (in the case of any such request
pertaining to Eurocurrency Rate Loans) or the L/C Issuer (in the case of a request pertaining to
Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m., ten Business
Days after receipt of such request whether it consents, in its sole discretion, to the making of
Eurocurrency Rate Loans or the issuance of Letters of Credit, as the case may be, in such requested
currency.



(c) Any failure by a Lender or the L/C Issuer, as the case may be, to respond to such request
within the time period specified in the preceding sentence shall be deemed to be a refusal by such
Lender or the L/C Issuer, as the case may be, to permit Eurocurrency Rate Loans to be made or
Letters of Credit to be issued in such requested currency. If the Administrative Agent and all the
Lenders that would be obligated to make Credit Extensions denominated in such requested currency
consent to making Eurocurrency Rate Loans in such requested currency, the Administrative Agent
shall so notify the Borrower and such currency shall thereupon be deemed for all purposes to be an
Alternative Currency hereunder for purposes of any Committed Borrowings of Eurocurrency Rate Loans;
and if the Administrative Agent and the L/C Issuer consent to the issuance of Letters of Credit in
such requested currency, the Administrative Agent shall so notify the Borrower and such currency
shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of
any Letter of Credit issuances. If the Administrative Agent shall fail to obtain consent to any
request for an additional currency under this Section 1.05, the Administrative Agent shall
promptly so notify the Borrower. Any specified currency of an Existing Letter of Credit that is
neither Dollars nor one of the Alternative Currencies specifically listed in the definition of
“Alternative Currency” shall be deemed an Alternative Currency with respect to such Existing Letter
of Credit only.


 


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1.06 Change of Currency.



(a) The obligation of the Borrower to make a payment denominated in the national currency unit
of any member state of the European Union that adopts the Euro as its lawful currency after the
Closing Date shall be redenominated into Euro at the time of such adoption (in accordance with the
EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual
of interest expressed in this Agreement in respect of that currency shall be inconsistent with any
convention or practice in the London interbank market for the basis of accrual of interest in
respect of the Euro, such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful currency;
provided that if any Committed Borrowing in the currency of such member state is
outstanding immediately prior to such date, such replacement shall take effect, with respect to
such Committed Borrowing, at the end of the then current Interest Period.



(b) Each provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to reflect
the adoption of the Euro by any member state of the European Union and any relevant market
conventions or practices relating to the Euro.



(c) Each provision of this Agreement also shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be appropriate to reflect
a change in currency of any other country and any relevant market conventions or practices relating
to the change in currency.




1.07 Times of Day.



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




1.08 Letter of Credit Amounts.



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



ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS





2.01 Committed Loans.



Subject to the terms and conditions set forth herein, each Lender severally agrees to make
loans (each such loan, a “Committed Loan”) to the Borrower in Dollars or in one or more
Alternative Currencies from time to time, on any Business Day during the Availability Period, in an
aggregate amount not to exceed at any time outstanding the amount of such Lender’s Commitment;
provided, however, that after giving effect to any Borrowing of Committed Loans,
(i) the Total Outstandings shall not exceed the Revolver Ceiling, and (ii) the aggregate
Outstanding Amount of the Committed Loans of
any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all
L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all
Swing Line Loans shall not exceed such Lender’s Commitment, and (iii) the aggregate Outstanding
Amount of all Committed Loans denominated in Alternative Currencies shall not exceed the
Alternative Currency Sublimit. Within the limits of each Lender’s Commitment, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section 2.01, prepay
under Section 2.06, and reborrow under this Section 2.01. Each Borrowing of
Committed Loans shall be made as provided in Section 2.02 below. Committed Loans may be
Base Rate Loans or Eurocurrency Rate Loans, as further provided herein, provided,
however, all Borrowings made on the Closing Date shall be made as Base Rate Loans.


 


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2.02 Borrowings, Conversions and Continuations of Committed Loans.



(a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other,
and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable
notice to the Administrative Agent which may be given by telephone. Each such notice must be
received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the
requested date of any Borrowing of, conversion to or continuation of Committed Loans that are
Eurocurrency Rate Loans denominated in Dollars or of any conversion of any such Eurocurrency Rate
Loans denominated in Dollars to Base Rate Committed Loans, (ii) four Business Days (or five
Business Days in the case of a Special Notice Currency) prior to the requested date of
any Borrowing or continuation of Committed Loans that are Eurocurrency Rate Loans denominated in
Alternative Currencies, and (iii) on the requested date of any Borrowing of Committed Loans that
are Base Rate Committed Loans. Notwithstanding the foregoing, if the Borrower wishes to request
Eurocurrency Rate Loans having an Interest Period other than seven (7) days, fourteen (14) days,
one, two, three or six months in duration as provided in the definition of “Interest Period,” the
applicable notice must be received by the Administrative Agent not later than 11:00 a.m. (i) four
Business Days prior to the requested date of such Borrowing, conversion or continuation of
Committed Loans that are Eurocurrency Rate Loans denominated in Dollars, or (ii) five Business Days
(or six Business days in the case of a Special Notice Currency) prior to the requested date of such
Borrowing, conversion or continuation of Committed Loans that are Eurocurrency Rate Loans
denominated in Alternative Currencies, whereupon the Administrative Agent shall give prompt notice
to the Lenders of such request and determine whether the requested Interest Period is acceptable to
all of them. Not later than 11:00 a.m., on the applicable Business Day specified in the
immediately preceding sentence for which a request for such a Borrowing, conversion or continuation
must be received, the Administrative Agent shall notify the Borrower (which notice may be by
telephone) whether or not the requested Interest Period has been consented to by all the Lenders.
Each telephonic notice pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed
and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $500,000 in excess thereof. Except as provided in Sections 2.03(c) and
2.04(c), each Committed Borrowing of or conversion to Base Rate Committed Loans shall be in
a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed
Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a
Committed Borrowing, a conversion of Committed Loans from one Type to the other, or a continuation
of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation,
as the case may be (which shall be a Business Day), (iii) the principal amount of Committed Loans
to be borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or to which
existing Committed Loans are to be converted, (v) if applicable, the duration of the Interest
Period with respect thereto, and (vi) the currency of the Committed Loans to be borrowed. If the
Borrower fails to specify a currency in a Committed Loan Notice requesting a Borrowing, then the
Committed Loans so requested shall be made in Dollars. If the Borrower fails to specify a Type of
Committed Loan in a Committed Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then
the applicable Committed Loans shall be made as, or converted to, Base Rate Loans;
provided, however, that in the case of a failure to timely request a continuation
of Committed Loans denominated in an Alternative Currency, such Loans shall be continued as
Eurocurrency Rate Loans in their original currency with an Interest Period of one month. Any
automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest
Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the Borrower
requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such
Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified
an Interest Period of one month. No Committed Loan may be converted into or continued as a
Committed Loan denominated in a different currency, but instead must be prepaid in the original
currency of such Committed Loan and reborrowed in the other currency.


 


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(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount (and currency) of its Applicable Percentage of the applicable
Committed Loans, and if no timely notice of a conversion or continuation is provided by the
Borrower, the Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans or continuation of Committed Loans denominated in a currency other
than Dollars, in each case as described in the preceding subsection. In the case of a Committed
Borrowing, each Lender shall make the amount of its Committed Loan available to the Administrative
Agent in Same Day Funds at the Administrative Agent’s Office for the applicable currency not later
than 11:00 a.m., in the case of any Committed Loan denominated in Dollars, and not later than the
Applicable Time specified by the Administrative Agent in the case of any Committed Loan in an
Alternative Currency, in each case on the Business Day specified in the applicable Committed Loan
Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if
such Borrowing is the initial Credit Extension, Section 4.01), the Administrative Agent
shall make all funds so received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of
America with the amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by
the Borrower; provided, however, that if, on the date the Committed Loan Notice
with respect to a Borrowing of Committed Loans denominated in Dollars is given by the Borrower, the
Borrower has outstanding L/C Borrowings, then the proceeds of such Borrowing, first, shall
be applied to the payment in full of any such L/C Borrowings, and, second, shall be made
available to the Borrower as provided above.



(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. During the
existence of a Default, no Loans may be requested as, converted to or continued as Eurocurrency
Rate Loans (whether in Dollars or any Alternative Currency) without the consent of the Required
Lenders, and the Required Lenders may demand that any or all of the then outstanding Committed
Loans that are Eurocurrency Rate Loans denominated in an Alternative Currency be prepaid, or
redenominated into Dollars in the amount of the Dollar Equivalent thereof, on the last day of the
then current Interest Period with respect thereto.



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



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


 


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2.03 Letters of Credit.




(a) The Letter of Credit Commitment.




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




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




(A) the expiry date of such requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the Lenders have approved such expiry
date; provided that the expiry date may extend up to one year beyond the
Letter of Credit Expiration Date provided that the subject Letter of Credit is Cash
Collateralized pursuant to Section 2.16.




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




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


 


32









 






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




(C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial stated amount less than (1) $100,000, in the
case of a commercial Letter of Credit, and (2) $250,000, in the case of a standby
Letter of Credit;




(D) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is to be denominated in a currency other than Dollars or an
Alternative Currency;




(E) the L/C Issuer does not as of the issuance date of such requested Letter of
Credit issue Letters of Credit in the requested currency;




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




(G) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has
entered into arrangements, including the delivery of Cash Collateral, satisfactory
to the L/C Issuer (in its sole discretion) with the Borrower or such Lender to
eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving
effect to Section 2.17(a)(iv)) with respect to the Defaulting Lender arising
from either the Letter of Credit then proposed to be issued or that Letter of Credit
and all other L/C Obligations as to which the L/C Issuer has actual or potential
Fronting Exposure, as it may elect in its sole discretion.




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




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




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


 


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




(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Responsible
Officer of the Borrower. Such Letter of Credit Application must be received by the L/C
Issuer and the Administrative Agent not later than 10:00 a.m. at least two Business Days (or
such later date and time as the Administrative Agent and the L/C Issuer may agree in a
particular instance in their sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be. In the case of a request for an initial issuance of a Letter
of Credit, such Letter of Credit Application shall specify in form and detail reasonably
satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing thereunder; and (G)
such other matters as the L/C Issuer may require. In the case of a request for an amendment
of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form
and detail reasonably satisfactory to the L/C Issuer (A) the Letter of Credit to be amended;
(B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature
of the proposed amendment; and (D) such other matters as the L/C Issuer may reasonably
require. Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative
Agent such other documents and information pertaining to such requested Letter of Credit
issuance or amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may reasonably require.




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




(iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an “Auto-Extension Letter of
Credit”); provided that any such Auto-Extension Letter of Credit must permit the
L/C Issuer to prevent any such extension at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in
each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.
Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a
specific request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of
Credit has been issued, the Lenders shall be deemed to have authorized (but may not require)
the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry
date not later than the Letter of Credit Expiration Date (except that the expiry date may
extend up to one year beyond the Letter of Credit Expiration Date provided that, as of the
Letter of Credit Expiration Date, the subject Letter of Credit is Cash Collateralized
pursuant to Section 2.16); provided, however, that the L/C Issuer
shall not permit any such extension if (A) the L/C Issuer has determined that it would not
be permitted, or would have no obligation, at such time to issue
such Letter of Credit in its revised form (as extended) under the terms hereof (by
reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise),
or (B) it has received notice (which may be by telephone or in writing) on or before the day
that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative
Agent that the Required Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the Borrower that one or more of the applicable
conditions specified in Section 4.02 is not then satisfied, and in each such case
directing the L/C Issuer not to permit such extension.


 


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(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C
Issuer will also deliver to the Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment. On a monthly basis, the L/C Issuer shall
deliver to the Administrative Agent a complete list of all outstanding Letters of Credit
issued by the L/C Issuer as provided in Section 2.03(f).




(c) Drawings and Reimbursements; Funding of Participations.




(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. In the case of a Letter of Credit denominated in an
Alternative Currency, the Borrower shall reimburse the L/C Issuer in such Alternative
Currency, unless (A) the L/C Issuer (at its option) shall have specified in such notice that
it will require reimbursement in Dollars or (B) in the absence of any such requirement for
reimbursement in Dollars, the Borrower shall have notified the L/C Issuer promptly following
receipt of the notice of drawing that it will reimburse the L/C Issuer in Dollars. In the
case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated
in an Alternative Currency, the L/C Issuer shall notify the Borrower of the Dollar
Equivalent of the amount of the drawing promptly following the determination thereof. Not
later than 10:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit
to be reimbursed in Dollars, or the Applicable Time on the date of any payment by the L/C
Issuer under a Letter of Credit to be reimbursed in an Alternative Currency (each such date,
an “Honor Date”), the Borrower shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing and in the applicable
currency. If the Borrower fails to so reimburse the L/C Issuer by such time in the case of
a Letter of Credit, the Administrative Agent shall promptly notify each Lender of the Honor
Date, the Unreimbursed Amount (expressed in Dollars in the amount of the Dollar Equivalent
thereof in the case of a Letter of Credit denominated in an Alternative Currency) and the
amount of such Lender’s Applicable Percentage thereof. In such event, the Borrower shall be
deemed to have requested a Committed Borrowing of Base Rate Loans to be disbursed on the
Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but
subject to the amount of the unutilized portion of the Commitments and the conditions set
forth in Section 4.02 (other than the delivery of a Committed Loan Notice). In no
event may the Borrower extend the time for reimbursing any drawing under a commercial Letter
of Credit by obtaining a banker’s acceptance from the L/C Issuer. Any notice given by the
L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be
given by telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or binding effect of such
notice.




(ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available (and the Administrative Agent may apply Cash Collateral provided for this
purpose) for the account of the L/C Issuer, in Dollars, at the Administrative Agent’s Office
in an amount equal
to its Applicable Percentage of the Unreimbursed Amount not later than 10:00 a.m. on the
Business Day specified in such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.03(c)(iii), each Lender that so makes funds available shall
be deemed to have made a Base Rate Committed Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer in Dollars.


 


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




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




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




(vi) If any Lender fails to make available to the Administrative Agent for the account
of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), then, without limiting the other provisions of this Agreement, the L/C
Issuer shall be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available to the L/C
Issuer at a rate per annum equal to the applicable Overnight Rate from time to time in
effect. If such Lender pays such amount (with interest and fees as aforesaid), the amount
so paid shall constitute such Lender’s Committed Loan included in the relevant Borrowing or
L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of
the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to
any amounts owing under this clause (vi) shall be conclusive absent manifest error.


 


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(d) Repayment of Participations.




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




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



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




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




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




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




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




(v) any adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Borrower or any Subsidiary or in the relevant currency
markets generally; or


 


37









 






(vi) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or any Subsidiary;




provided, that nothing in this Section 2.03(e) shall be deemed a waiver of
the third and fourth sentences in Section 2.03(f).



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



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



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


 


38









 





(h) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, in Dollars, a Letter of Credit
Fee (i) for each commercial Letter of Credit equal to 0.125% per annum times the Dollar
Equivalent of the daily amount available to be drawn under such Letter of Credit, and (ii) for each
standby Letter of Credit equal to the Applicable Rate times the Dollar Equivalent of the
daily amount available to be drawn under such Letter of Credit; provided, however,
any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with respect to
any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral
satisfactory to the L/C Issuer pursuant to this Section 2.03 shall be payable, to the
maximum extent permitted by applicable Law, to the other Lenders in accordance with the upward
adjustments in their respective Applicable Percentages allocable to such Letter of Credit pursuant
to Section 2.17(a)(iv), with the balance of such fee, if any, payable to the L/C Issuer for
its own account to the extent the Borrower has not provided Cash Collateral pursuant to Section
2.16 (or in the event the Borrower has provided such Cash Collateral, such balance shall be
deemed waived and shall not be payable by the Borrower). For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall
be determined in accordance with Section 1.08. Letter of Credit Fees shall be (i) computed
on a quarterly basis in arrears and (ii) due and payable on the first Business Day after the end of
each March, June, September and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. If there is any change in the Applicable Rate during any quarter, the daily amount
available to be drawn under each standby Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such Applicable Rate was in
effect. Notwithstanding anything to the contrary contained herein, upon the request of the
Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the
Default Rate.



(i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.
Subject to the penultimate sentence of this subsection (i), the Borrower shall pay directly to the
L/C Issuer for its own account, in Dollars, a fronting fee (i) with respect to each commercial
Letter of Credit, at the rate specified in the Fee Letter, computed on the Dollar Equivalent of the
amount of such Letter of Credit, and payable upon the issuance thereof, (ii) with respect to any
amendment of a commercial Letter of Credit increasing the amount of such Letter of Credit, at a
rate separately agreed between the Borrower and the L/C Issuer, computed on the Dollar Equivalent
of the amount of such increase, and payable upon the effectiveness of such amendment, and (iii)
with respect to each standby Letter of Credit, at the rate per annum specified in the Fee Letter,
computed on the Dollar Equivalent of the daily amount available to be drawn under such Letter of
Credit on a quarterly basis in arrears. Such fronting fee in respect of any Letter of Credit shall
be due and payable on the tenth Business Day after the end of each March, June, September and
December in respect of the most recently-ended quarterly period (or portion thereof, in the case of
the first payment), commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.08. In addition, the
Borrower shall pay directly to the L/C Issuer for its own account, in Dollars, the customary
issuance, presentation, amendment and other processing fees, and other standard costs and charges,
of the L/C Issuer relating to letters of credit as from time to time in effect; such customary fees
and standard costs and charges are due and payable on demand and are nonrefundable.



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



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


 


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2.04 Swing Line Loans.



(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender may, in its discretion and in reliance upon the agreements of the other Lenders set
forth in this Section 2.04, make loans to the Borrower in Dollars (each a “Swing Line
Loan”) from time to time on any Business Day during the Availability Period in an aggregate
amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding
the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the
Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as Swing Line
Lender, may exceed the amount of such Lender’s Commitment; provided, however, that
after giving effect to any Swing Line Loan, (A) the Total Outstandings shall not exceed the
Revolver Ceiling, and (B) the aggregate Outstanding Amount of the Committed Loans of any Lender,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender’s Commitment, and provided, further, that the Borrower
shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan.
Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may
borrow under this Section 2.04, prepay under Section 2.06, and reborrow under this
Section 2.04. Immediately upon the making of a Swing Line Loan, each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line
Lender a risk participation in such Swing Line Loan in an amount equal to the product of such
Lender’s Applicable Percentage times the amount of such Swing Line Loan.



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


 


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(c) Refinancing of Swing Line Loans.




(i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Lender make a Committed Loan that is a Base Rate Committed
Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line
Loans then outstanding; such request shall be made in writing (which written request shall
be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.02, without regard to the minimum and multiples specified
therein for the principal amount of Base Rate Loans, but subject to the unutilized
Commitments and the conditions set forth in Section 4.02. The Swing Line Lender
shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly
after delivering such notice to the Administrative Agent. Each Lender shall make an amount
equal to its Applicable Percentage of the amount specified in such Committed Loan Notice
available to the Administrative Agent in Same Day Funds (and the Administrative Agent may
apply Cash Collateral available with respect to the applicable Swing Line Loan) for the
account of the Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated
payments not later than 10:00 a.m. on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available
shall be deemed to have made a Base Rate Committed Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the Swing Line Lender.




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




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




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


 


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(d) Repayment of Participations.




(i) At any time after any Lender has purchased and funded a risk participation in a
Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line
Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage of such
payment (appropriately adjusted, in the case of interest payments, to reflect the period of
time during which such Lender’s risk participation was funded) in the same funds as those
received by the Swing Line Lender.




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



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



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




2.05 Security.



All Obligations of the Borrower under this Agreement and all other Loan Documents shall be
secured by the Collateral in accordance with the Loan Documents.




2.06 Prepayments.



(a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay Committed Loans in whole or in part without premium or penalty;
provided that (i) such notice must be received by the Administrative Agent not later than
10:00 a.m. (A) three Business Days prior to the requested date of prepayment of Committed Loans
that are Eurocurrency Rate Loans denominated in Dollars, (B) four Business Days (or five Business
Days in the case of a Special Notice Currency) prior to the requested date of prepayment
of Committed Loans that are Eurocurrency Rate Loans denominated in Alternative Currencies, and (C)
on the requested date of prepayment of Committed Loans that are Base Rate Committed Loans. Any
prepayment of Eurocurrency Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $1,000,000 in excess thereof. Each such notice shall specify the date and amount of
such prepayment and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Loans are to
be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify
each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable
Percentage of such prepayment. If such notice is given by the Borrower, the Borrower shall make
such prepayment and the payment amount specified in such notice shall be due and payable on the
date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be
accompanied by all accrued interest on the amount prepaid, together with any additional
amounts required pursuant to Section 3.05. Subject to Section 2.17, each such
prepayment shall be applied to the Committed Loans of the Lenders in accordance with their
respective Applicable Percentages.


 


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(b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by the Swing
Line Lender and the Administrative Agent not later than 10:00 a.m. on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein.



(c) If the Administrative Agent notifies the Borrower at any time that the Total Outstandings
at such time exceed the Revolver Ceiling, then, within two Business Days after receipt of such
notice, the Borrower shall prepay Committed Loans, prepay Swing Line Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding
Amount as of such date of payment to an amount not to exceed the Revolver Ceiling;
provided, however, the Borrower shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section 2.06(c) unless, after the prepayment in full of all
Committed Loans and Swing Line Loans, the Total Outstandings exceed the Revolver Ceiling.



(d) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount
of all Committed Loans denominated in Alternative Currencies at such time exceeds the Alternative
Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the
Borrower shall prepay its Committed Loans in an aggregate amount sufficient to reduce such
Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Alternative
Currency Sublimit then in effect.




2.07 Termination or Reduction of Commitments.



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


 


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2.08 Repayment of Loans.



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



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




2.09 Interest.



(a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate,
plus (in the case of a Eurocurrency Rate Loan of any Lender which is lent from a Lending
Office in the United Kingdom or a Participating Member State) the Mandatory Cost; (ii) each Base
Rate Committed Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Rate; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount
thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Rate.



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




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




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




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



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




2.10 Fees.




In addition to certain fees described in subsections (h) and (i) of Section 2.03:



(a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, a commitment fee in Dollars
equal to the Applicable Rate times the actual daily amount by which the Aggregate
Commitments exceed the sum of
(i) the Outstanding Amount of Committed Loans and (ii) the Outstanding Amount of L/C
Obligations, subject to adjustment as provided in Section 2.17. The commitment fee shall
accrue at all times during the Availability Period, including at any time during which one or more
of the conditions in Article IV is not met, and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December, commencing with the
first such date to occur after the Closing Date, and on the Maturity Date. The commitment fee
shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in effect.


 


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(b) Other Fees.




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




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




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



(a) All computations of interest for Base Rate Loans (including Base Rate Loans determined by
reference to the Eurodollar Base Rate) shall be made on the basis of a year of 365 or 366 days, as
the case may be, and actual days elapsed. All other computations of fees and interest shall be
made on the basis of a 360-day year and actual days elapsed (which results in more fees or
interest, as applicable, being paid than if computed on the basis of a 365-day year), or, in the
case of interest in respect of Committed Loans denominated in Alternative Currencies as to which
market practice differs from the foregoing, in accordance with such market practice. Interest
shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid, provided that
any Loan that is repaid on the same day on which it is made shall, subject to Section
2.12(a), bear interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest
error.



(b) If, as a result of any restatement of or other adjustment to the financial statements of
the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the
Consolidated Capitalization Ratio as calculated by the Borrower as of any applicable date was
inaccurate and (ii) a proper calculation of the Consolidated Capitalization Ratio would have
resulted in higher pricing for such period, the Borrower shall promptly and retroactively be
obligated to pay to the Administrative Agent for the account of the applicable Lenders or the L/C
Issuer, as the case may be, promptly on demand by the Administrative Agent (or, after the
occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under
the Bankruptcy Code of the United States, automatically and without further action by the
Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of the amount of
interest and fees that should have been paid for such period over the amount of interest and fees
actually paid for such period. This paragraph shall not limit the rights of the Administrative
Agent, any Lender or the L/C Issuer, as the case may be, under Section 2.03(c)(iii),
2.03(h) or 2.09(b) or under Article VIII.


 


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2.12 Evidence of Debt.



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



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




2.13 Payments Generally; Administrative Agent’s Clawback.



(a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, (i) all payments by the Borrower hereunder (except with respect to principal of
and interest on Loans denominated in an Alternative Currency) shall be made to the Administrative
Agent, for the account of the respective Lenders to which such payment is owed, at the
Administrative Agent’s Office in Dollars and in Same Day Funds not later than 1:00 p.m. on the date
specified herein, and (ii) all payments by the Borrower hereunder with respect to principal and
interest on Loans denominated in an Alternative Currency shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in such Alternative Currency and in Same Day Funds not later than the Applicable
Time specified by the Administrative Agent on the dates specified herein. Without limiting the
generality of the foregoing, the Administrative Agent may require that any payments due from the
Borrower under this Agreement be made in the United States. If, for any reason, the Borrower is
prohibited by any Law from making any required payment hereunder in an Alternative Currency, the
Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative Currency
payment amount. The Administrative Agent will promptly distribute to each Lender its Applicable
Percentage (or other applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender’s Lending Office. All payments received by the Administrative
Agent (i) after 1:00 p.m., in the case of payments in Dollars, or (ii) after the Applicable Time
specified by the Administrative Agent in the case of payments in an Alternative Currency, shall in
each case be deemed received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day, and such extension
of time shall be reflected in computing interest or fees, as the case may be.


 


46









 





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



(ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer
hereunder that the Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due.
In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the
L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or the L/C Issuer, in Same Day Funds with interest
thereon, for each day from and including the date such amount is distributed to it to but excluding
the date of payment to the Administrative Agent, at the Overnight Rate.



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



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



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


 


47









 





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



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




2.14 Sharing of Payments by Lenders.



If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of the Committed Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Committed Loans or participations
and accrued interest thereon greater than its pro rata share thereof as provided
herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent
of such fact, and (b) purchase (for cash at face value) participations in the Committed Loans and
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders if such Lender is a
Lender, 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 Committed Loans and other amounts owing them,
provided that:




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




(ii) the provisions of this Section shall not be construed to apply to (A) any payment
made by or on behalf of 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), (B) the application of Cash Collateral provided for in Section
2.16, or (C) any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Committed Loans or subparticipations in L/C
Obligations or Swing Line Loans to any assignee or participant, other than to the Borrower
or any Subsidiary thereof (as to which the provisions of this Section shall apply).



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


 


48









 






2.15 Increase in Commitments.



(a) Request for Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Borrower may from time to time,
request an increase in the Aggregate Commitments by an amount (for all such requests) not exceeding
$100,000,000; provided that (i) any such request for an increase shall be in a minimum
amount of $5,000,000. At the time of sending such notice, the Borrower (in consultation with the
Administrative Agent) shall specify the time period within which each Lender is requested to
respond (which shall in no event be less than ten Business Days from the date of delivery of such
notice to the Lenders).



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



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



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



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



(f) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.14 or 10.01 to the contrary.


 


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2.16 Cash Collateral.



(a) Certain Credit Support Events. Upon the request of the Administrative Agent or
the L/C Issuer (i) if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and
such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration
Date, any L/C Obligation for any reason remains outstanding, the Borrower shall, in each case,
immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations in an amount
equal to 105% of the then Outstanding Amount of all L/C Obligations. At any time that there shall
exist a Defaulting Lender, immediately upon the request of the Administrative Agent, the L/C Issuer
or the Swing Line Lender, the Borrower shall deliver to the Administrative Agent Cash Collateral in
an amount sufficient to cover all Fronting Exposure (after giving effect to Section
2.17(a)(iv) and any Cash Collateral provided by the Defaulting Lender).



(b) Grant of Security Interest. All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America. The Borrower, and to the extent provided by any Lender, such Lender,
hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the
Administrative Agent, the L/C Issuer and the Lenders (including the Swing Line Lender), and agrees
to maintain, a first priority security interest in all such cash, deposit accounts and all balances
therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of
the foregoing, all as security for the obligations to which such Cash Collateral may be applied
pursuant to Section 2.16(c). 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 as
herein provided, or that the total amount of such Cash Collateral is less than the applicable
Fronting Exposure and other obligations secured thereby, the Borrower or the relevant Defaulting
Lender will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative
Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.



(c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section 2.16 or Sections
2.03, 2.04, 2.05, 2.17 or 8.02 in respect of Letters of Credit
or Swing Line Loans shall be held and applied to the satisfaction of the specific L/C Obligations,
Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral
provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for
which the Cash Collateral was so provided, prior to any other application of such property as may
be provided for herein.



(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations under any of this Section 2.16 or Sections
2.03, 2.04, 2.05 or 2.17 shall be released promptly following (i) the
elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including
by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its
assignee following compliance with Section 10.06(b)(vi))) or (ii) the Administrative
Agent’s good faith determination that there exists excess Cash Collateral; provided,
however, (x) that Cash Collateral furnished by or on behalf of a Loan Party shall not be
released during the continuance of a Default or Event of Default (and following application as
provided in this Section 2.16 may be otherwise applied in accordance with Section
8.03), and (y) the Person providing Cash Collateral and the L/C Issuer or Swing Line Lender, as
applicable, may agree that Cash Collateral shall not be released but instead held to support future
anticipated Fronting Exposure or other obligations.


 


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2.17 Defaulting Lenders.



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




(i) Waivers and Amendments. That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 10.01.




(ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise,
and including any amounts made available to the Administrative Agent by that Defaulting
Lender pursuant to Section 10.08), 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 that Defaulting Lender to the Administrative Agent hereunder;
second, to the payment on a pro rata basis of any amounts owing by that Defaulting
Lender to the L/C Issuer or Swing Line Lender hereunder; third, if so determined by
the Administrative Agent or requested by the L/C Issuer or Swing Line Lender, to be held as
Cash Collateral for future funding obligations of that Defaulting Lender of any
participation in any Swing Line Loan or Letter of Credit; fourth, as the Borrower
may request (so long as no Default exists), to the funding of any Loan in respect of which
that 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 the Borrower, to be held in a non-interest bearing deposit account
and released in order to satisfy obligations of that Defaulting Lender to fund Loans under
this Agreement; sixth, to the payment of any amounts owing to the Lenders, the L/C
Issuer or Swing Line Lender as a result of any judgment of a court of competent jurisdiction
obtained by any Lender, the L/C Issuer or Swing Line Lender against that Defaulting Lender
as a result of that Defaulting Lender’s breach of its obligations under this Agreement;
seventh, so long as no 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 that Defaulting Lender as a result of that Defaulting Lender’s breach of
its obligations under this Agreement; and eighth, to that 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 L/C Borrowings in respect of
which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans
or L/C Borrowings were made at a time when the conditions set forth in Section 4.02
were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C
Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to
the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender. 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 Section 2.17(a)(ii) shall be deemed paid to and redirected by that
Defaulting Lender, and each Lender irrevocably consents hereto.




(iii) Certain Fees. That Defaulting Lender (x) shall not be entitled to
receive any commitment fee pursuant to Section 2.10(a) 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) and
(y) shall be limited in its right to receive Letter of Credit Fees as provided in
Section 2.03(h).




(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure.
During any period in which there is a Defaulting Lender, for purposes of computing the
amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit or Swing Line Loans pursuant to Sections 2.03
and 2.04, the “Applicable Percentage” of each non-Defaulting Lender shall be
computed without giving effect to the Commitment of that Defaulting Lender;
provided, that, (i) each such reallocation shall be given effect only if, at the
date the applicable Lender becomes a Defaulting Lender, no Default exists; and (ii) the
aggregate
obligation of each non-Defaulting Lender to acquire, refinance or fund participations in
Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of
(1) the Commitment of that non-Defaulting Lender minus (2) the aggregate Outstanding
Amount of the Committed Loans of that Lender.


 


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(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swing Line
Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting Lender should
no longer be deemed to be 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 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 Line Loans to be held
on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving
effect to Section 2.17(a)(iv)), whereupon that 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.



ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY





3.01 Taxes.



(a) 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) the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an
amount equal to the sum it would have received had no such 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.



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



(c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent, each Lender and the L/C Issuer, 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) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by
a Lender or the L/C Issuer (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a
Lender or the L/C Issuer, shall be conclusive absent manifest error.


 


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(d) 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.



(e) 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, any Foreign Lender shall deliver to Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:




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




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




(iii) 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, or




(iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax 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.


 


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Without limiting the obligations of the Lenders set forth above regarding delivery of certain
forms and documents to establish each Lender’s status for U.S. withholding tax purposes, each
Lender agrees promptly to deliver to the Administrative Agent or the Borrower, as the
Administrative Agent or the Borrower shall reasonably request, on or prior to the Closing Date, and
in a timely fashion thereafter, such other documents and forms required by any relevant taxing
authorities under the Laws of any other jurisdiction, duly executed and completed by such Lender,
as are required under such Laws to confirm
such Lender’s entitlement to any available exemption from, or reduction of, applicable
withholding taxes in respect of all payments to be made to such Lender outside of the U.S. by the
Borrower pursuant to this Agreement or otherwise to establish such Lender’s status for withholding
tax purposes in such other jurisdiction. Each Lender shall promptly (i) notify the Administrative
Agent of any change in circumstances which would modify or render invalid any such claimed
exemption or reduction, and (ii) take such steps as shall not be materially disadvantageous to it,
in the reasonable judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable Laws of any such
jurisdiction that the Borrower make any deduction or withholding for taxes from amounts payable to
such Lender. Additionally, the Borrower shall promptly deliver to the Administrative Agent or any
Lender, as the Administrative Agent or such Lender shall reasonably request, on or prior to the
Closing Date, and in a timely fashion thereafter, such documents and forms required by any relevant
taxing authorities under the Laws of any jurisdiction, duly executed and completed by the Borrower,
as are required to be furnished by such Lender or the Administrative Agent under such Laws in
connection with any payment by the Administrative Agent or any Lender of Taxes or Other Taxes, or
otherwise in connection with the Loan Documents, with respect to such jurisdiction.



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




3.02 Illegality.



If any Lender reasonably determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Loans whose interest is determined by reference to the
Eurocurrency Rate (whether denominated in Dollars or an Alternative Currency), or to determine or
charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed
material restrictions on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars or any Alternative Currency in the applicable interbank market, then, on notice thereof by
such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to
make or continue Eurocurrency Rate Loans in the affected currency or currencies or to convert Base
Rate Committed Loans to Eurocurrency Rate Loans, shall be suspended and (ii) if such notice asserts
the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is
determined by reference to the Eurocurrency Rate component of the Base Rate, the interest rate on
which Base Rate Loans of such Lender, shall, if necessary to avoid such illegality, be determined
by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate,
in each case until such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x)
the Borrower shall, upon demand from such Lender (with a
copy to the Administrative Agent), prepay or, if applicable, convert all such Eurocurrency
Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans shall, if
necessary to avoid such illegality, be determined by the Administrative Agent without reference to
the Eurocurrency Rate component of the Base Rate), either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such
day, or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate
Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest
rates based upon the Eurocurrency Rate, the Administrative Agent shall during the period of such
suspension compute the Base Rate applicable to such Lender without reference to the Eurocurrency
Rate component thereof until the Administrative Agent is advised in writing by such Lender that it
is no longer illegal for such Lender to determine or charge interest rates based upon the
Eurocurrency Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued
interest on the amount so prepaid or converted.


 


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3.03 Inability to Determine Rates.



If the Required Lenders reasonably determine that for any reason in connection with any
request for a Eurocurrency Rate Loan or a conversion to or continuation thereof that (a) deposits
(whether in Dollars or an Alternative Currency) are not being offered to banks in the applicable
offshore interbank market for such currency for the applicable amount and Interest Period of such
Eurocurrency Rate Loan, (b) adequate and reasonable means do not exist for determining the
Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate
Loan (whether denominated in Dollars or an Alternative Currency) or in connection with an existing
or proposed Base Rate Loan, or (c) the Eurocurrency Rate for any requested Interest Period with
respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost to
such Lenders of funding such Eurocurrency Rate Loan, the Administrative Agent will promptly so
notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or
maintain Eurocurrency Rate Loans in the affected currency or currencies shall be suspended and (y)
in the event of a determination described in the preceding sentence with respect to the
Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency Rate component in
determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the
instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans in the affected currency or currencies or, failing that, will be deemed to
have converted such request into a request for a Committed Borrowing of Base Rate Loans in the
amount specified therein.




3.04 Increased Costs.




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




(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except (A) any reserve requirement
contemplated by Section 3.04(e) and (B) the requirements of the Bank of England and
the Financial Services Authority or the European Central Bank reflected in the Mandatory
Cost, other than as set forth below) or the L/C Issuer;




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


 


55









 






(iii) prevent the Mandatory Cost, as calculated hereunder, from representing the cost
to any Lender of complying with the requirements of the Bank of England and/or the Financial
Services Authority or the European Central Bank in relation to its making, funding or
maintaining Eurocurrency Rate Loans; or




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



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



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



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



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


 


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(e) Additional Reserve Requirements. The Borrower shall pay to each Lender, as long
as such Lender shall be required to comply with any reserve ratio requirement or analogous
requirement of any other central banking or financial regulatory authority imposed in respect of
the maintenance of the Commitments or the funding of the Eurocurrency Rate Loans, such additional
costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five
decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as
determined by such Lender in good faith, which determination shall be conclusive, absent manifest
error), which in each case shall be due and payable on each date on which interest is payable on
such Loan, provided the Borrower shall have received at least 10 days’ prior notice (with a
copy to the Administrative Agent) of such additional costs from such Lender. If a Lender fails to
give notice 10 days prior to the relevant Interest Payment Date, such additional costs shall be due
and payable 10 days from receipt of such notice.




3.05 Compensation for Losses.



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




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




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




(c) any failure by the Borrower to make payment of any Loan or drawing under any Letter
of Credit (or interest due thereon) denominated in an Alternative Currency on its scheduled
due date or any payment thereof in a different currency; or




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



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



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


 


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3.06 Mitigation Obligations; Replacement of Lenders.



(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 3.04, or the Borrower is required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if
any Lender gives a notice pursuant to Section 3.02, then such Lender shall use reasonable
efforts to designate a different Lending Office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches or affiliates, if,
in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the
future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and
(ii) in each case, would not subject such Lender 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.



(b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any
Lender gives a notice pursuant to Section 3.02 (which has not been revoked), the Borrower
may replace such Lender in accordance with Section 10.13.




3.07 Survival.



All of the obligations of the Borrower under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other Obligations hereunder.



ARTICLE IV




CONDITIONS PRECEDENT TO Credit Extensions





4.01 Conditions of Initial Credit Extension.



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




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




(i) executed counterparts of this Agreement, the Security Agreement, the Pledge
Agreement and the Subsidiary Guaranty;




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




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


 


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




(v) such executed documents as the Administrative Agent may reasonably require
to perfect the Lenders’ first priority security interest in the Collateral, subject
to the Liens set forth in Schedule 7.01, including notices of grants of
security interests in intellectual property to be filed with the United States
Patent and Trademark Office or United States Copyright Office, filings with the
United States Surface Transportation Board and stock transfer powers;




(vi) favorable opinions of Paul Hastings Janofsky & Walker LLP and Tonkon Torp
LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each
Lender, as to the matters set forth in Exhibit G and such other matters
concerning the Loan Parties and the Loan Documents as the Required Lenders may
reasonably request;




(vii) a certificate of a Responsible Officer of the Borrower either (A)
attaching copies of all consents, licenses and approvals required in connection with
the execution, delivery and performance by the Loan Parties and the validity against
the Loan Parties of the Loan Documents, and such consents, licenses and approvals
shall be in full force and effect, or (B) stating that, except as otherwise provided
in Section 5.03, no such consents, licenses or approvals are so required;




(viii) a certificate signed by a Responsible Officer of the Borrower certifying
(A) that the conditions specified in Sections 4.02(a) and (b) have
been satisfied, (B) that there has been no event or circumstance since the date of
the Audited Financial Statements that has had or could be reasonably expected to
have, either individually or in the aggregate, a Material Adverse Effect, and (C)
that there is no action, suit, investigation or proceeding pending or, to the
knowledge of the Borrower, threatened in any court or before any arbitrator or
governmental authority that could reasonably be expected to have a Material Adverse
Effect; and




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



(b) There shall be at least $20,000,000 of undrawn availability under the Aggregate
Commitments and the Revolver Ceiling.



(c) Substantially concurrently with the initial Credit Extensions on the Closing Date, that
certain credit agreement dated as of June 10, 2009 by and among the Borrower, the holders from time
to time party thereto and WL Ross & Co. LLC, as administrative agent (the “WRC Credit
Agreement”), shall have been terminated, all obligations thereunder shall have been paid in
full and all security interests securing such obligations shall have been released.



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


 


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



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




4.02 Conditions to all Credit Extensions.



The obligation of each Lender and the L/C Issuer to honor any Request for Credit Extension
(other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other
Type, or a continuation of Eurocurrency Rate Loans) is subject to the following conditions
precedent:



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



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



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



(d) In the case of a Credit Extension to be denominated in an Alternative Currency, there
shall not have occurred any change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which in the reasonable opinion of the
Administrative Agent, the Required Lenders or the L/C Issuer (in the case of any Letter of Credit
to be denominated in an Alternative Currency) would make it impracticable for such Credit Extension
to be denominated in the relevant Alternative Currency.



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


 


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ARTICLE V




REPRESENTATIONS AND WARRANTIES




The Borrower, on behalf of itself and the Subsidiary Guarantors, represents and warrants to
the Administrative Agent and the Lenders that:




5.01 Existence, Qualification and Power; Compliance with Laws.



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




5.02 Authorization; No Contravention.



The execution, delivery and performance by each Loan Party of each Loan Document to which such
Person is party, have been duly authorized by all necessary corporate or other organizational
action, and do not (a) contravene the terms of any of such Person’s Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of any Lien under, or
require any payment to be made under (i) any (y) with respect to the creation of any Lien,
Contractual Obligation or (z) with respect to any conflict, breach or contravention or payment,
Material Contractual Obligation, in each case, to which such Person is a party or affecting such
Person or the properties of such Person or any of its Subsidiaries or (ii) any material order,
injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person
or its property is subject; or (c) violate any material Law.




5.03 Governmental Authorization; Other Consents.



No approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority is necessary or required in connection with the execution,
delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other
Loan Document, except (a) as have been obtained or made and are in full force and effect, (b) for
the authorizations, approvals, actions, notices and filings listed on Schedule 5.03, (c)
filings and recordings with respect to the Collateral to be made, or otherwise delivered to the
Administrative Agent for filing or recordation and (d) notices and filings required by law in
connection with the exercise of remedies pursuant to the Loan Documents. The execution, delivery
and performance by each Loan Party of each Loan Document to which such Person is party do not
require any approval of any Loan Party’s equity holders or any approval or consent of any Person
under any Contractual Obligation of any Loan Party, other than consents or approvals that have been
obtained and that are still in force and effect and except, in the case of Contractual Obligations,
for consents or approvals, the failure to obtain could not individually or in the aggregate
reasonably be expected to have a Material Adverse Effect.




5.04 Binding Effect.



This Agreement has been, and each other Loan Document, when delivered hereunder, will have
been, duly executed and delivered by each Loan Party that is party thereto. This Agreement
constitutes,
and each other Loan Document when so delivered will constitute, a legal, valid and binding
obligation of such Loan Party, enforceable against each Loan Party that is party thereto in
accordance with its terms, except as enforcement thereof may be limited by applicable Debtor Relief
Laws and by general principles of equity.


 


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5.05 Financial Statements; No Material Adverse Effect.



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



(b) The unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated
February 28, 2011, and the related consolidated statements of income or operations and cash flows
for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein, and
(ii) fairly present in all material respects the financial condition of the Borrower and its
Subsidiaries as of the date thereof and their results of operations for the period covered thereby,
subject to the absence of footnotes and to normal year-end audit adjustments.



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




5.06 Litigation.



There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of
the Borrower, threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of
their properties or revenues that (a) purport to adversely affect this Agreement or any other Loan
Document, or any of the transactions contemplated hereby in any material respect, or (b) either
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.




5.07 No Default.



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




5.08 Ownership of Property; Liens.



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


 


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5.09 Environmental Compliance.



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




5.10 Insurance.



The properties of the Borrower and its Subsidiaries are insured with financially sound and
reputable insurance companies that are not Affiliates of the Borrower, in such amounts, and with
such deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Borrower or the applicable
Subsidiary operates; provided, however, that the Borrower may reduce the amount of
insurance required to be maintained above to the extent that the Borrower maintains a
self-insurance program providing insurance coverage in lieu thereof and in a manner consistent with
past practices or otherwise in accordance with sound business practices by companies in similar
businesses similarly situated and located. The property and general liability insurance coverage
of the Loan Parties as in effect on the Closing Date is outlined as to carrier, policy number,
expiration date, type, amount and deductibles on Schedule 5.10.




5.11 Taxes.



The Borrower and its Subsidiaries have filed all Federal and state income taxes and other
material tax returns and reports required to be filed, and have paid all Federal and state income
taxes and other material taxes, assessments, fees and other governmental charges levied or imposed
upon them or their properties, income or assets otherwise due and payable, except (a) those which
are being contested in good faith by appropriate proceedings diligently conducted and for which
adequate reserves have been provided in accordance with GAAP and (b) those (other than Federal
income taxes) where the failure to do so could not reasonably be expected to result in liability in
excess of $2,000,000 in the aggregate. There is no proposed tax assessment against the Borrower or
any Subsidiary that would, if made, have a Material Adverse Effect. Neither any Loan Party nor any
Subsidiary thereof is party to any formal tax sharing agreement.




5.12 ERISA Compliance.



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



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


 


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




5.13 Subsidiaries; Equity Interests.



As of the Closing Date, the Borrower has no Subsidiaries other than those specifically
disclosed in Part (a) of Schedule 5.13, and all of the outstanding Equity Interests in such
Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by a Loan
Party in the amounts specified on Part (a) of Schedule 5.13 free and clear of all Liens
(other than Liens permitted by clauses (a) and (c) of Section 7.01). As of the Closing
Date, the Borrower has no equity investments in any other corporation or entity other than those
specifically disclosed in Part(b) of Schedule 5.13. All of the outstanding Equity
Interests in the Borrower have been validly issued and are fully paid and nonassessable.




5.14 Margin Regulations; Investment Company Act.



(a) The Borrower is not engaged nor will it engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock.



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




5.15 Disclosure.



No report, financial statement, certificate or other information furnished (whether in writing
or orally) by or on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by
other information so furnished), when taken as a whole, contains any material misstatement of fact
or omits to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being understood that for purposes of
this Section 5.15, such reports, financial statements, certificates and other information
shall not include any financial projections, budgets, forecasts, pro forma data and other forward
looking statements (“Projections”) or any information of a general economic or general
industry nature. All Projections provided by the Borrower have been prepared in good faith based
upon assumptions believed to be reasonable at the time (it being understood that such Projections
are subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s
control, and that the Projections are not a guarantee of financial performance may differ and such
differences may be material).


 


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5.16 Compliance with Laws.



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




5.17 Intellectual Property; Licenses, Etc.



The Borrower and its Subsidiaries own, or possess the right to use, all of the trademarks,
service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other
intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for
the operation of their respective businesses, without, to the knowledge of the Borrower, conflict
with the rights of any other Person. To the knowledge of the Borrower, no slogan or other
advertising device, product, process, method, substance, part or other material now employed, or
now contemplated to be employed, by the Borrower or any Subsidiary infringes upon any valid rights
held by any other Person. No claim or litigation regarding any of the foregoing is pending or, to
the knowledge of the Borrower, threatened, which, either individually or in the aggregate, is
reasonably expected to have a Material Adverse Effect. Set forth on Schedule 5.17 is a
list of all IP Rights registered or pending registration with the United States Copyright Office or
the United States Patent and Trademark Office and owned by each Loan Party as of the Closing Date.



ARTICLE VI




AFFIRMATIVE COVENANTS




So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied (other than contingent amounts not yet due and
Obligations under Treasury Management Agreements that any Lender or any Affiliate of any Lender has
permitted to remain outstanding), or any Letter of Credit shall remain outstanding (other than
Letters of Credit that have been Cash Collateralized), the Borrower shall, and shall (except in the
case of the covenants set forth in Sections 6.01, 6.02, and 6.03) cause
each Subsidiary to:




6.01 Financial Statements.



Deliver to the Administrative Agent and each Lender:




(a) as soon as available, but in any event no later than 90 days after the end of each
fiscal year of the Borrower (commencing with the fiscal year ended August 31, 2011), a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal
year, and the related consolidated statements of income or operations, stockholders’ equity
and cash flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and prepared in accordance
with GAAP in all material respects, such consolidated statements to be audited and
accompanied by a report and opinion of KPMG or any other independent certified public
accountant of nationally recognized standing, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be subject to any “going
concern” or like qualification or exception or any qualification or exception as to the
scope of such audit; and


 


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(b) as soon as available, but in any event no later than 45 days after the end of each
of the first three fiscal quarters of each fiscal year of the Borrower (commencing with the
fiscal quarter ended May 31, 2011), a consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements
of income or operations and cash flows for such fiscal quarter and for the portion of the
Borrower’s fiscal year then ended, setting forth in each case in comparative form the
figures for the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail, such
consolidated statements to be certified by a Responsible Officer of the Borrower as fairly
presenting in all material respects the financial condition, results of operations,
stockholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with
GAAP in all material respects, subject only to normal year-end audit adjustments and the
absence of footnotes; and




(c) as soon as available, but in any event not later than 75 days after the beginning
of each fiscal year of the Borrower, forecasts prepared by management of the Borrower of
consolidated balance sheets and statements of income or operations and cash flows of the
Borrower and its Subsidiaries on a quarterly basis for such fiscal year (including the
fiscal year in which the Maturity Date occurs).



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




6.02 Certificates; Other Information.



Deliver to the Administrative Agent (for further distribution to the Lenders), in form and
detail reasonably satisfactory to the Administrative Agent and the Required Lenders:




(a) within 45 days after the end of each fiscal quarter, a Borrowing Base Certificate
as of the last day of such fiscal quarter;




(b) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by
a Responsible Officer of the Borrower which shall include such supplements to Schedules
5.13(a) and 5.17, as are necessary such that, as supplemented, such
Schedules would be accurate and complete as of the date of such Compliance
Certificate (which delivery may, unless the Administrative Agent, or a Lender requests
executed originals, be by electronic communication including fax or email and shall be
deemed to be an original authentic counterpart thereof for all purposes);




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




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


 


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




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




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




(h) upon closing of any offering of Term Debt which affects the Borrowing Base, upon a
pledge of assets permitted pursuant to Section 7.01, or at the Borrower’s sole
discretion upon the acquisition of assets by the Borrower or any of its Subsidiaries outside
of the ordinary course of business (but otherwise permitted hereunder), an updated Borrowing
Base Certificate which incorporates the acquired or pledged assets to reflect such assets on
a pro-forma basis; and




(i) within thirty (30) days after closing of any offering of Term Debt, a certificate
signed by a Responsible Officer which confirms that (i) such offering did not cause an Event
of Default, and (ii) the documentation associated with such offering, a copy of which shall
be attached to the certificate, does not impose a limitation on the ability of the Borrower
or its Subsidiaries to make Restricted Payments to the Borrower or its Subsidiaries.



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


 


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




6.03 Notices.




Promptly notify the Administrative Agent and each Lender:




(a) of the occurrence of any Default;


(b) of any matter that has resulted or is reasonably expected to result in a Material Adverse
Effect;




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



(d) of any material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary.



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




6.04 Payment of Obligations.



Pay and discharge as the same shall become due and payable, all its obligations and
liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon
it or its properties or assets, (i) unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are
being maintained by the Borrower or such Subsidiary or (ii) except to the extent that the failure
to do so could not reasonably be expected to have a Material Adverse Effect; and (b) all lawful
claims (other than tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets) which, if unpaid, would by law become a Lien upon its property (except for
Permitted Liens).


 


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6.05 Preservation of Existence, Etc.



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




6.06 Maintenance of Properties.



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




6.07 Maintenance of Insurance.



(a) Maintain with financially sound and reputable insurance companies not Affiliates of the
Borrower, insurance with respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business, of such types and
in such amounts (after giving effect to any self-insurance compatible with the following standards)
as are customarily carried under similar circumstances by such other Persons. The Administrative
Agent and Lenders acknowledge and agree that the insurance set forth on Schedule 5.10 as of
the Closing Date satisfies the requirements of this Section 6.07(a) as of the Closing Date.



(b) Cause the Administrative Agent to be named as loss payee or mortgagee, as its interest may
appear, and/or additional insured with respect to any such insurance providing liability coverage
or coverage in respect of any Collateral. All certificates of property and general liability
insurance are to be delivered to the Administrative Agent, with the loss payable (but only in
respect of Collateral) and additional insured endorsements in favor of the Administrative Agent and
shall provide for not less than 30 days (10 days in the case of non-payment) prior written notice
to the Administrative Agent of the exercise of any right of cancellation.



(c) So long as one or more of the following conditions is true (i) no Event of Default has
occurred and is continuing, (ii) the Outstanding Amount of Loans is not greater than $0, or (iii)
the loss covered by such insurance involves a potential claim of less than $10,000,000, then,
Borrower and its Subsidiaries shall have the sole right to file claims under any property and
general liability insurance policies, to receive, receipt and give acquittance for any payments
that may be payable thereunder, and to execute any and all endorsements, receipts, releases,
assignments, reassignments or other documents that may be necessary to effect the collection,
compromise or settlement of any claims under any such insurance policies. Upon the occurrence and
during the continuance of an Event of Default, the Administrative Agent shall have the sole right
to file claims involving losses under any property and general liability insurance policies in
respect of the Collateral, to receive, receipt and give acquittance for any payments that may be
payable thereunder, and to execute any and all endorsements, receipts, releases, assignments,
reassignments or other documents that may be necessary to effect the collection, compromise or
settlement of any claims under any such insurance policies.


 


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6.08 Compliance with Laws.



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




6.09 Books and Records.



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




6.10 Inspection Rights.



(a) Permit representatives and independent contractors of the Administrative Agent (who may be
accompanied by the Lenders at the sole expense of such Lenders) to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss its affairs, finances and accounts with its Responsible
Officers, and independent public accountants, at such reasonable times during normal business hours
and as often as may be reasonably desired, upon reasonable advance notice to the Borrower;
provided, however, that excluding any such visits and inspections during the
continuance of an Event of Default, none of the Administrative Agent or any of the Lenders may
exercise rights under this Section 6.10(a) more often that two (2) times during any
calendar year and only one (1) such visit by Administrative Agent (and no visits by any Lenders)
shall be at the Borrower’s expense; provided, further, that when an Event of
Default exists the Administrative Agent (or any of its respective representatives or independent
contractors) (and any Lender may accompany Administrative Agent at its own expense) may do any of
the foregoing at the expense of the Borrower at any time during normal business hours and without
advance notice.



(b) Notwithstanding anything to the contrary contained herein, the Administrative Agent shall
conduct annual appraisals of the Loan Parties’ rail car fleet. Such appraisals shall be done at
the expense of the Borrower (provided that Borrower shall only be responsible for the actual
charges paid or incurred by Administrative Agent in connection with the performance of such
appraisal) and shall be performed by an appraiser reasonably acceptable to the Administrative
Agent.



(c) At the discretion of the Administrative Agent or the Required Lenders, the Administrative
Agent shall have the right to require or conduct an annual field audit of the Collateral. Such
field audit shall be done at the expense of the Borrower (provided that Borrower shall only be
responsible for the actual charges paid or incurred by Administrative Agent in connection with the
performance of such appraisal) and shall be performed by an auditor reasonably acceptable to the
Administrative Agent.




6.11 Use of Proceeds.



Use the proceeds of the Credit Extensions for working capital and other general corporate
purposes not in contravention of any applicable Law or of any Loan Document.


 


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6.12 [Reserved].




6.13 Additional Subsidiary Guarantors.



Notify the Administrative Agent at the time that (i) any Person becomes a Domestic Subsidiary
or (ii) any Domestic Subsidiary ceases to be an Immaterial Subsidiary, and, in each case, promptly
thereafter (and in any event within 30 days), cause such Person to (a) become a Subsidiary
Guarantor by executing and delivering to the Administrative Agent a counterpart of the Subsidiary
Guaranty or such other document as the Administrative Agent shall deem appropriate for such
purpose, and (b) deliver to the Administrative Agent documents of the types referred to in clauses
(iii) and (iv) of Section 4.01(a) and favorable opinions of counsel to such Person (which
shall cover, among other things, the legality, validity, binding effect and enforceability of the
documentation referred to in clause (a)), all in form, content and scope reasonably satisfactory to
the Administrative Agent.




6.14 Pledged Assets.



(a) Equity Interests. Cause 100% of the issued and outstanding Equity Interests
(other than Excluded Property) of each direct Domestic Subsidiary of each Loan Party, to be subject
at all times to a first priority, perfected Lien in favor of the Administrative Agent pursuant to
the terms and conditions of the Loan Documents, together with opinions of counsel (except in
respect of Equity Interests of Immaterial Subsidiaries) and any filings and deliveries reasonably
necessary in connection therewith to perfect the security interests therein, all in form and
substance reasonably satisfactory to the Administrative Agent.



(b) Other Property. (i) Cause all of the owned and leased personal property (other
than Excluded Property and Equity Interests of Subsidiaries not pledged pursuant to subsection (a)
above) of each Loan Party to be subject at all times to first priority, perfected Liens in favor of
the Administrative Agent to secure the Obligations pursuant to the terms and conditions of the Loan
Documents, subject in any case to Liens permitted by Section 7.01 and (ii) deliver such
other documentation as the Administrative Agent may reasonably request in connection with the
foregoing, including, without limitation, appropriate UCC-1 financing statements, landlord’s
waivers, certified resolutions and other organizational and authorizing documents of such Person,
favorable opinions of counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to above and the
perfection of the Administrative Agent’s Liens thereunder) and other items as may be reasonably
requested by the Administrative Agent, all in form, content and scope reasonably satisfactory to
the Administrative Agent.



(c) In addition, the Loan Parties may pledge additional assets as Collateral pursuant to
additional Loan Documents in form and substance reasonably satisfactory to the Administrative
Agent, together with such other documentation as the Administrative Agent may reasonably request in
connection therewith. To the extent such additional Collateral satisfies the applicable
eligibility requirements, such Collateral shall be included in the Borrowing Base.



(d) Notwithstanding the foregoing, the Loan Parties shall not be required to be in compliance
with clauses (a) and (b) of this Section 6.14 with respect to newly formed or acquired
Subsidiaries until the thirty day period set forth in Section 6.13 has expired.


 


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6.15 Post-Closing Matters.



To the extent not delivered to the Administrative Agent on the Closing Date:



(a) within thirty (30) days of the Closing Date (or such later date as determined by the
Administrative Agent in its sole discretion), deliver all certificates evidencing any certificated
Equity Interests pledged to the Administrative Agent pursuant to the Pledge Agreement, together
with duly executed in blank, undated stock powers attached thereto.



(b) within 15 days (or such later date as determined by the Administrative Agent in its sole
discretion), deliver a favorable opinion of Alvord & Alvord addressed to the Administrative Agent
and each Lender, as to the filings made with the United States Surface Transportation Board.



ARTICLE VII




NEGATIVE COVENANTS




So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied (other than contingent amounts not yet due and
Obligations under Treasury Management Agreements that any Lender or any Affiliate of any Lender has
permitted to remain outstanding), or any Letter of Credit shall remain outstanding (other than
Letters of Credit that have been Cash Collateralized), the Borrower shall not, nor shall it permit
any Subsidiary to, directly or indirectly:




7.01 Liens.



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




(a) Liens pursuant to any Loan Document;




(b) Liens existing on the Closing Date and listed on Schedule 7.01 and any
renewals or extensions thereof, provided that (i) the property covered thereby is
not increased other than after-acquired property that is affixed or incorporated into such
property and proceeds and products of such property, (ii) the principal amount secured or
benefited thereby is not increased, (iii) the direct or any contingent obligor with respect
thereto is not changed, and (iv) any renewal or extension of the obligations secured or
benefited thereby is permitted by Section 7.03(b);




(c) Liens for taxes, fees, assessments and other governmental charges and levies not
yet due or which are being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the books of the
applicable Person in accordance with GAAP;




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




(e) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any
Lien imposed by ERISA or applicable environmental Law;


 


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(f) (i) deposits to secure the performance of bids, trade contracts and leases (other
than in connection with the borrowing of money), statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the ordinary
course of business, and/or (ii) Liens on rail cars (the “transferred rail cars”) or other
personal property (“transferred personal property”) that are transferred to the Borrower or
any of its Subsidiaries by customers as consideration for the future delivery by the
Borrower or any of its Subsidiaries to such customer of (1) existing rail car assets or
other existing assets, (2) to-be-refurbished rail car assets or other to-be-refurbished
assets or (3) to-be-constructed rail car assets or other to-be-constructed assets, so long
as in either case (x) no Default exists or would result from the creation of such Liens, (y)
such Liens (A) secure only the performance obligations of the Borrower and its Subsidiaries
to deliver the assets described in items (1), (2) or (3) of this clause (f) to such
customer, (B) extend to no property of the Borrower and its Subsidiaries other than the
transferred rail cars or other transferred personal property, (C) are released upon
completion of performance by the Borrower and its Subsidiaries and (z) the transferred rail
cars or other transferred personal property shall not be included in the Borrowing Base
while they are subject to such Liens;




(g) any zoning restrictions, easements, rights-of-way, encroachments, protrusions and
other similar encumbrances and title defects affecting real property which, in the
aggregate, do not in any case materially interfere with the ordinary conduct of the business
of the applicable Person, or the use of the property for the intended purpose;




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




(i) Liens securing Indebtedness permitted under Section 7.03(d);
provided that such Liens do not at any time encumber any property other than
lease-related assets (including, but not limited to, rail cars, marine barges and other
surface transportation equipment, and related chattel paper) that are excluded from the
Borrowing Base;




(j) Liens securing Indebtedness permitted under Section 7.03(e);
provided that (i) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not
exceed the cost of the property being acquired on the date of acquisition (other than by the
amount of premiums paid thereon and the fees and expenses incurred in connection therewith);
provided, further, that individual financings of equipment provided by one
lender may be cross-collateralized to other individual financings of equipment provided by
such lender;




(k) Liens on assets of Foreign Subsidiaries securing Indebtedness permitted under
Section 7.03(f);




(l) Liens in favor of a banking or other financial institution arising as a matter of
Law or under customary general terms and conditions encumbering deposits or other funds
maintained with such banking or other financial institution (including the right of set off)
and that are within the general parameters customary in the banking industry;




(m) any right of a licensor under any license agreement for the use of intellectual
property or other intangible assets as to which the Borrower or such Subsidiary is the
licensee;




(n) any leases, licenses, subleases or sublicenses granted to others (i) in the
ordinary course of business not interfering in any material respect, alone or in the
aggregate, with the
conduct of the business of the Borrower and its Subsidiaries taken as a whole or (ii)
permitted pursuant to Section 7.05;


 


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(o) Liens in favor of owners or purchasers of goods (including materials and/or
components used in connection with the manufacture thereof) being manufactured or serviced
in the ordinary course of business; provided that (i) such Liens do not at any time
encumber any property other than the goods being manufactured or serviced (and such owned or
purchased materials and/or components used in connection with the manufacture or service
thereof) for such purchaser or owner, (ii) such purchaser or owner shall have paid for the
materials being used to manufacture or service such goods through the making of progress
payments or similar advances and (iii) such goods shall be excluded from the Borrowing Base;




(p) Liens in favor Loan Parties granted by any of Gunderson-Concarril S.A. de C.V.,
Greenbrier-GIMSA, LLC or Gunderson-GIMSA S. de R.L. de C.V. to secure any Indebtedness owed
to a Loan Party;




(q) Liens solely on any cash earnest money deposits made by the Borrower or any of its
Subsidiaries in connection with a Permitted Acquisition;




(r) deposits in the ordinary course to secure liability insurance carriers and Liens on
premium refunds and insurance proceeds securing the financing of insurance premiums
permitted hereunder;




(s) Liens securing Indebtedness permitted by Section 7.03(m) on property of a
Person existing at the time such Person is merged into or consolidated with the Borrower or
any of its Subsidiaries or otherwise becomes a Subsidiary of the Borrower; provided,
that such Liens were not created in contemplation of such merger, consolidation or
Investment and do not extend to any assets other than those of the Person merged into or
consolidated with the Borrower or such Subsidiary or acquired by the Borrower or such
Subsidiary;




(t) customary negative pledges on assets being sold or Disposed of, including customary
restrictions on distributions by a Subsidiary of the Borrower to be sold, pursuant to an
agreement that has been entered into for the sale or disposition of all or substantially all
of the Equity Interests or assets of such Subsidiary; provided, that such
Disposition is permitted by Section 7.05;




(u) Liens on cash and cash equivalents deposited with a third-party trustee that arise
in connection with the defeasance, discharge or redemption of Indebtedness;




(v) Liens in favor of the Borrower or any of its Subsidiaries securing Indebtedness
permitted under Section 7.03(i); provided that such Liens shall not be
provided by Loan Parties in favor of Subsidiaries that are not Loan Parties;




(w) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;




(x) Liens on assets leased to the Borrower or any Subsidiary under operating leases
(including Liens on any subleases of such assets by the Borrower or such Subsidiary to third
parties), which Liens (i) are granted in favor of the lessor with respect to the lease
granting the Borrower or such Subsidiary rights in such assets as the lessee and (ii) secure
the Borrower’s or such Subsidiary’s obligations to the lessor under such lease; and


 


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(y) Liens not otherwise permitted under this Section 7.01, provided that the
obligations secured thereby shall not exceed $5,000,000 in the aggregate at any time
outstanding;




Anything to the contrary contained herein notwithstanding, it is understood and agreed
that a portion of proceeds of the initial Credit Extensions on the Closing Date will be used
to repay in full the Indebtedness under the WRC Credit Agreement and, accordingly, both (y)
the Indebtedness under the WRC Credit Agreement and (z) the Liens securing the Indebtedness
and other obligations under the WRC Credit Agreement, in each case, shall be permitted
hereunder on the Closing Date (but not thereafter) until such time as the initial Credit
Extensions are made.




7.02 Investments.




Make or permit to exist any Investments, except:



(a) Investments held by the Borrower or such Subsidiary in the form of cash equivalents or
other investments permitted under the Borrower’s cash investment policy as approved by the
Borrower’s board of directors;



(b) advances to officers, directors and employees of the Borrower and Subsidiaries in an
aggregate amount not to exceed $500,000 at any time outstanding, for travel, entertainment,
relocation and analogous ordinary business purposes;



(c) Investments (i) by any Loan Party in another Loan Party, (ii) by any Domestic Subsidiary
that is not a Loan Party in any other Domestic Subsidiary that is not a Loan Party and (iii) by any
Foreign Subsidiary in the Borrower or in any of its Subsidiaries;



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



(e) other Investments not exceeding $15,000,000 in the aggregate in any fiscal year of the
Borrower;



(f) Investments in Subsidiaries that are not Subsidiary Guarantors and in SPEs, in each case
made after the Closing Date in an aggregate outstanding amount not exceeding the sum of (i)
$30,000,000 plus (ii) any excess amount of Restricted Payments available to be paid pursuant to
Section 7.06(d) that have not been distributed and have not been invested pursuant to
Section 7.02(g) or 7.02(j);



(g) Investments in Joint Ventures made after the Closing Date in an aggregate outstanding
amount not exceeding the sum of (i) $20,000,000 plus (ii) any excess amount of Restricted Payments
available to be paid pursuant to Section 7.06(d) that have not been distributed and have
not been invested pursuant to Section 7.02(f) or 7.02(j);



(h) Investments in any Person for the purpose of acquiring, managing, marketing, remarketing,
leasing and/or selling rail cars in an aggregate amount for all Investments made pursuant to this
clause (h) not to exceed $30,000,000 at any time outstanding;



(i) purchases of Inventory by a Loan Party on behalf of any of Gunderson-Concarril S.A. de
C.V., Greenbrier-GIMSA, LLC or Gunderson-GIMSA S. de R.L. de C.V.;


 


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(j) Investments in Greenbrier-GIMSA, LLC or Gunderson-GIMSA S. de R.L. de C.V. made after the
Closing Date in an aggregate outstanding amount not exceeding the sum of (i) $30,000,000 plus (ii)
any excess amount of Restricted Payments available to be paid pursuant to Section 7.06(d)
that have not been distributed and have not been invested pursuant to Section 7.02(f) or
7.02(g);




(k) Permitted Acquisitions;



(l) to the extent constituting Investments, the creation of Liens, the making of fundamental
changes, the consummation of Dispositions, and the making of Restricted Payments permitted under
Sections 7.01, 7.04, 7.05 and 7.06, respectively;



(m) Investments to the extent that payment for such Investments is made solely with Qualified
Equity Interests or with the net proceeds of the issuance of Qualified Equity Interests;
provided that any Investments made with the net proceeds of the issuance of Qualified
Equity Interests shall be made substantially contemporaneously with the issuance of such Qualified
Equity Interests;



(n) Investments consisting of (i) discretionary contributions made during such time as no
Event of Default exists in an aggregate amount not to exceed $1,000,000 per fiscal year to a
“rabbi” trust for the benefit of employees within the meaning of Revenue Procedure 92-64 and (ii)
required contributions to a “rabbi” trust for the benefit of employees within the meaning of
Revenue Procedure 92-64;




(o) Swap Contracts permitted by Section 7.03(c);



(p) Investments held by a Person acquired in a Permitted Acquisition to the extent that such
Investments were not made in contemplation of or in connection with such Permitted Acquisition and
were in existence on the date of such Permitted Acquisition; and



(q) Investments existing on the Closing Date and set forth on Schedule 7.02 (and any
extensions, modifications or renewals thereof provided that the amount of the original
Investment is not increased except as otherwise permitted by this Section 7.02).



7.03 Indebtedness.



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



(a) Indebtedness under the Loan Documents;



(b) Indebtedness outstanding on the Closing Date and listed on Schedule 7.03 and any
refinancings, refundings, renewals or extensions thereof; provided that the amount of such
Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder;



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


 


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(d) private offerings of debt securities or long-term Indebtedness to institutional investors
or financial institutions by the Loan Parties or other Domestic Subsidiaries which Indebtedness (i)
is secured by lease-related assets (including, but not limited to, rail cars, marine barges and
other surface transportation equipment, and related chattel paper) that are excluded from the
Borrowing Base and (ii) in the case of any such Indebtedness not in existence on the Closing Date,
if in a principal amount in excess of $30,000,000, contains terms and conditions reasonably
acceptable to the Administrative Agent (any such Indebtedness, “Term Debt”);
provided; however, that the aggregate amount of all such Term Debt at any one time
outstanding pursuant to this subsection (d) shall not exceed $200,000,000



(e) capital leases (including sale-leaseback transactions) or purchase money obligations for
fixed or capital assets, within the limitations set forth in Section 7.01(j), and in an
aggregate amount not to exceed $25,000,000 at any one time outstanding, and any refinancings,
refundings, renewals, or extensions thereof; provided that the amount of such Indebtedness is not
increased at the time of such refinancing, refunding, renewal or extension except by an amount
equal to accrued and unpaid interest on such Indebtedness and a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in connection with such
refinancing;




(f) Indebtedness of Foreign Subsidiaries incurred in the ordinary course of business;




(g) earn-out obligations incurred in respect of Permitted Acquisitions;



(h) Guarantees given by the Borrower or any Subsidiary Guarantor in respect of Indebtedness of
the Borrower or any other Subsidiary Guarantor that is otherwise permitted under this Section
7.03;



(i) intercompany Indebtedness resulting from loans and advances permitted by Section
7.02;



(j) obligations in respect of performance, bid, appeal and surety bonds and performance and
completion guarantees or obligations in respect of letters of credit related thereto provided by
the Borrower or any of its Subsidiaries in the ordinary course of business;



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



(l) Indebtedness incurred in favor of insurance companies (or their financing affiliates) in
connection with the financing of insurance premiums; provided, that the total of all such
Indebtedness shall not exceed the aggregate amount of such unpaid insurance premiums;



(m) Indebtedness of a Person of the type described in Section 7.03(e) existing at the
time such Person is merged into or consolidated with the Borrower or any of its Subsidiaries or
otherwise becomes a Subsidiary of the Borrower; which Indebtedness was not incurred in
contemplation of such merger, consolidation or Investment and is non-recourse to the Borrower or
any Subsidiary other than such Person, and any refinancings, refundings, renewals or extensions
thereof, provided that (i) the property securing such Indebtedness is not increased, (ii)
the principal amount of such Indebtedness is not increased at the time of such refinancing,
refunding, renewal or extension except by an amount equal to accrued and unpaid interest on such
Indebtedness and a reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount
equal to any existing commitments unutilized thereunder and (iii) the direct or any contingent
obligor with respect to such Indebtedness is not changed;


 


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(n) Indebtedness of the Borrower or any of its Subsidiaries to the extent the net proceeds
thereof are promptly deposited to defease or satisfy and discharge any other Indebtedness of such
obligor not prohibited by this Section 7.03; provided that: (i) the amount of such
new Indebtedness does not exceed the outstanding amount of the Indebtedness to be defeased or
satisfied and discharged except by an amount equal to a reasonable premium or other reasonable
amount paid, and fees and expenses reasonably incurred, in connection with such defeasance or
satisfaction and discharge, (ii) the terms relating to principal amount, amortization, maturity,
collateral (if any) and subordination (if any), and other material terms taken as a whole, of any
such new Indebtedness are no less favorable in any material respect to the Borrower and its
Subsidiaries or the Lenders than the terms of any agreement or instrument governing the
Indebtedness being defeased or satisfied and discharged and the interest rate applicable to any
such new Indebtedness does not exceed the then applicable market interest rate and (iii) upon such
defeasance, discharge or satisfaction, such new Indebtedness must otherwise be permitted under
another subsection of this Section 7.03 and shall thereafter not be permitted under this
subsection (n);



(o) to the extent constituting Indebtedness, obligations in respect of credit cards, credit
card processing services, debit cards, stored value cards, purchase cards (including so-called
“procurement cards” or “P-cards”), or in connection with services provided under Treasury
Management Agreements, in each case, incurred in the ordinary course of business; and



(p) other unsecured Indebtedness, on terms reasonably acceptable to the Administrative Agent,
in an aggregate principal amount at any one time outstanding not to exceed $150,000,000.



Anything to the contrary contained herein notwithstanding, it is understood and agreed that a
portion of proceeds of the initial Credit Extensions on the Closing Date will be used to repay in
full the Indebtedness under the WRC Credit Agreement and, accordingly, both (y) the Indebtedness
under the WRC Credit Agreement and (z) the Liens securing the Indebtedness and other obligations
under the WRC Credit Agreement, in each case, shall be permitted hereunder on the Closing Date (but
not thereafter) until such time as the initial Credit Extensions are made.




7.04 Fundamental Changes.



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



(a) any Subsidiary may merge with (i) the Borrower, provided that the Borrower shall
be the continuing or surviving Person, (ii) any one or more other Subsidiaries, provided
that when any Subsidiary Guarantor is merging with another Subsidiary, the Subsidiary Guarantor
shall be the continuing or surviving Person or (iii) any Person in order to effect any Investment
permitted pursuant to Section 7.02, provided that a Subsidiary shall be the continuing or
surviving Person (and if a Subsidiary Guarantor is party to such transaction, a Subsidiary
Guarantor shall be the surviving Person);



(b) the Borrower may merge or consolidate with another corporation or entity which merger or
consolidation merely effects the form or domicile of the Borrower without changing the respective
holdings of capital stock in the Borrower (or in the surviving entity) by stockholders and pursuant
to which all obligations of the Borrower in respect of this Agreement are and remain obligations of
the surviving entity; and


 


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




7.05 Dispositions.




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




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




(b) Dispositions of inventory in the ordinary course of business, including sales,
leases or exchanges of such assets, and in connection with the Golden West Agreements, in
each case in the ordinary course of business;




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




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




(e) (i) Dispositions permitted by Section 7.04 and, (ii) to the extent
constituting a Disposition for value, and without regard to whether such Disposition is made
for cash, equity or other property and without regard to the proviso in the last sentence of
this Section 7.05 with respect to fair market value, Dispositions of property, plant
and equipment assets of the business conducted at Lewistown, Pennsylvania having an
aggregate book value of up to $3,500,000, together with any associated accounts receivable,
inventory and accounts payable, that are made in connection with the formation and initial
capitalization of the Joint Venture described in Section 7.02(g);




(f) Dispositions of lease assets in lease securitization, structured finance or
syndication transactions, provided that the Borrower remains in compliance with its
limitations under the Borrowing Base and all other terms and conditions of this Agreement;
and




(g) Dispositions pursuant to any sale-leaseback transactions under Section
7.03(e);




(h) any single transaction or series of related transactions that involves assets
having a fair market value of less than $1,000,000; provided that the aggregate
amount of all Dispositions pursuant to this clause (h) to occur in any fiscal year shall not
exceed $2,500,000;




(i) Dispositions of cash equivalents in the ordinary course of business;




(j) leases or subleases of property, including real property, in each case in the
ordinary course of business not materially interfering with the conduct of the business of
the Borrower and its Subsidiaries, taken as a whole;


 


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(k) licenses for the use of IP Rights in the ordinary course of the Borrower’s or such
Subsidiary’s business;




(l) Dispositions of accounts receivable in connection with the compromise, settlement
or collection thereof in the ordinary course of business;




(m) any surrender or waiver of contractual rights or the settlement, release or
surrender of contractual rights or other litigation claims in the ordinary course of
business;




(n) to the extent constituting a Disposition, Liens, Investments, fundamental changes
and Restricted Payments permitted by Sections 7.01, 7.02, 7.04 and
7.06, respectively;




(o) casualty events or other insured damage to, or any taking under power of eminent
domain or by condemnation or similar proceedings of, any property of the Borrower or any of
its Subsidiaries; and




(p) the sales of the real properties located at 3701 N. 16th Street, Omaha, Nebraska
and 4233 N. 31st Avenue, Omaha, Nebraska;



provided, however, that (1) any Disposition pursuant to clauses (c), (f), (g) and
(i) shall be for fair market value and (2) no Disposition of less than all of the Equity Interests
of a Subsidiary Guarantor to Person that is not a Loan Party shall be permitted by this Section
7.02.




7.06 Restricted Payments.



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




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




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




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




(d) the Borrower may declare or pay Restricted Payments after the Closing Date in an
aggregate amount not to exceed the sum of (i) $40,000,000 plus (ii) 50% of the
cumulative Consolidated Net Income of the Borrower and its Subsidiaries since May 31, 2011,
which net income shall be calculated without giving effect to the non-cash effects of the
issuance of the WRC Warrants minus (iii) all amounts available to make Restricted
Payments pursuant to this subsection (d) that have been invested pursuant to Sections
7.02(f), 7.02(g) and 7.02(j); and


 


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(e) the Borrower may make payments of cash in lieu of fractional shares in connection
with the exercise of or conversion of securities that are exercisable or convertible into
Equity Interests; and




(f) to the extent constituting Restricted Payments, the Borrower and the Subsidiaries
may enter into and consummate transactions expressly permitted by any provision of
Section 7.02 or 7.04




7.07 Change in Nature of Business.



Engage in any material line of business substantially different from those lines of business
conducted by the Borrower and its Subsidiaries on the Closing Date or any business substantially
related or incidental thereto.




7.08 Transactions with Affiliates.



Other than (a) transactions not prohibited by this Agreement (including the payment of
Restricted Payments permitted by Section 7.06), (b) the transactions contemplated by the
Warrant Documents (all as in effect on the Closing Date), (c) payment of reasonable directors fees,
(d) any issuance of Qualified Equity Interests of the Borrower to Affiliates of the Borrower and
(e) any employment, consulting, service or termination agreement or reasonable and customary
indemnification arrangements, entered into by the Borrower or any of its Subsidiaries with
directors, officers and employees of the Borrower or any of its Subsidiaries and the payment of
compensation to directors, officers and employees of the Borrower or any of its Subsidiaries
(including amounts paid pursuant to employee benefit plans, employee stock option or similar
plans), enter into any transaction of any kind with any Affiliate of the Borrower, whether or not
in the ordinary course of business, other than on fair and reasonable terms substantially as
favorable to the Borrower or such Subsidiary as would be obtainable by the Borrower or such
Subsidiary at the time in a comparable arm’s length transaction with a Person other than an
Affiliate.




7.09 Burdensome Agreements.



Enter into any Contractual Obligation that limits the ability (a) of any Subsidiary Guarantor
to make Restricted Payments to the Borrower or any Subsidiary Guarantor or to otherwise transfer
property to the Borrower or any Subsidiary Guarantor, (b) of any Subsidiary Guarantor to Guarantee
the Obligations or (c) of the Borrower or any Subsidiary Guarantor to create, incur, assume or
suffer to exist Liens on property of such Person (other than Excluded Property) to secure the
Obligations, except:




(i) Contractual Obligations in existence as of the Closing Date and set forth in
Schedule 7.09;




(ii) Contractual Obligations contained in this Agreement or any other Loan Document;




(iii) any negative pledge incurred or provided in favor of any holder of Indebtedness
permitted under Section 7.03(d), 7.03(e) or 7.03(m) solely to the
extent any such negative pledge relates to the property financed by or the subject of such
Indebtedness; or (b) requires the grant of a Lien to secure an obligation of such Person if
a Lien is granted to secure another obligation of such Person;


 


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(iv) any instrument governing Indebtedness or Equity Interests of a Person and its
Subsidiaries acquired by the Borrower or any of its Subsidiaries as in effect at the time of
such
acquisition (except to the extent such Indebtedness was incurred in connection with or
in contemplation of such acquisition), which encumbrance or restriction is not applicable to
any Person, or the properties or assets of any Person, other than the Person and its
Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired,
provided that, in the case of Indebtedness, such Indebtedness was permitted by
Section 7.03;




(v) customary provisions restricting subletting or assignment of any lease, contract,
or license of the Borrower or any Subsidiary or customary provisions in agreements that
restrict the assignment of such agreement or any rights thereunder;




(vi) any agreement for the sale or other Disposition of assets, including customary
restrictions on distributions by a Subsidiary of the Borrower to be sold, pursuant to an
agreement that has been entered into for the sale or disposition of all or substantially all
of the Equity Interests or assets of such Subsidiary; provided, that such
Disposition was permitted by Section 7.05;




(vii) any instrument or agreements governing Indebtedness permitted by Section
7.03(f), which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Foreign Subsidiaries obligated in respect
of such Indebtedness;




(viii) negative pledges in favor of holders of Indebtedness permitted by Section
7.03 that limit the right of the debtor to dispose of or encumber the assets financed
with such Indebtedness;




(ix) restrictions on cash or other deposits imposed by customers under contracts
entered into in the ordinary course of business;




(x) customary provisions in joint venture agreements and other similar agreements
applicable to Joint Ventures permitted under Section 7.02 and applicable solely to
such Joint Venture and are entered into in the ordinary course of business; and




(xi) in the case of subclause (a), any agreement or instrument relating to any
Indebtedness of a Subsidiary permitted to be incurred subsequent to the Closing Date
pursuant to Section 7.03 if the encumbrances and restrictions are not materially
more restrictive than those set forth in this Agreement and do not otherwise materially
impair the ability of the Loan Parties to perform their obligations under this Agreement.




7.10 Use of Proceeds.



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




7.11 Financial Covenants.




Beginning with the fiscal quarter ended August 31, 2011:



(a) Consolidated Adjusted Interest Coverage Ratio. Permit the Consolidated Adjusted
Interest Coverage Ratio, as determined on the last day of each fiscal quarter, calculated for the
period
consisting of the four consecutive fiscal quarters ending on the date set forth below, to be
less than the ratio corresponding to such fiscal quarter:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	February	 	 	 	 	 	 	 	 	 	 
	Calendar Year	 	28/29	 	 	May 31	 	 	August 31	 	 	November 30	 
	2011
	 	 	N/A	 	 	 	N/A	 	 	 	1.75 to 1.0	 	 	 	1.75 to 1.0	 
	2012
	 	 	1.75 to 1.0	 	 	 	1.75 to 1.0	 	 	 	1.75 to 1.0	 	 	 	2.00 to 1.0	 
	thereafter
	 	 	2.00 to 1.0	 	 	 	2.00 to 1.0	 	 	 	2.00 to 1.0	 	 	 	2.00 to 1.0	 





 


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(b) Consolidated Capitalization Ratio. Permit the Consolidated Capitalization Ratio
as of the end of any fiscal quarter of the Borrower to be greater than 0.70 to 1.0.



For purposes of the financial ratio calculations in this Section 7.11, no earnings or
losses of any Managed Person shall be included.




7.12 Capital Expenditures.



Make or become legally obligated to make any expenditure in respect of the purchase or other
acquisition of any fixed or capital asset (excluding (i) normal replacements and maintenance which
are properly charged to current operations, (ii) expenditures made with the proceeds of any
Disposition of fixed or capital assets within 180 days of the date of such Disposition permitted
under Section 7.05, (iii) expenditures made as a lessee of real property to improve the
leasehold estate, so long as and to the extent that such expenditure has actually been reimbursed
in cash by the applicable lessor, and (iv) expenditures to the extent financed with the proceeds of
Indebtedness (other than a borrowing of revolving debt or short-term debt)), except for capital
expenditures in the ordinary course of business not exceeding $50,000,000 in the aggregate in any
fiscal year for the Borrower and its Subsidiaries, and any such expenditures made for leasing
assets.



ARTICLE VIII




EVENTS OF DEFAULT AND REMEDIES





8.01 Events of Default.




Any of the following shall constitute an Event of Default:



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



(b) Specific Covenants. The Borrower fails to perform or observe any term, covenant
or agreement contained in (i) Section 6.01, which failure continues for more than five (5) Business
Days after the date specified for performance or compliance with such term or condition or (ii) any
of Section 6.02, 6.03, 6.05(a), 6.10, 6.11, 6.13 or
6.14 or Article VII, other than pursuant to Sections 7.02 and 7.03,
or any Subsidiary Guarantor fails to perform or observe any term, covenant or agreement contained
in its Subsidiary Guaranty; or


 


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(c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part
to be performed or observed and such failure continues for 30 days after the earlier of (i) the
date upon which a Responsible Officer of a Loan Party knew of such failure and (ii) the date upon
which written notice thereof is given to the Borrower by the Administrative Agent; or



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



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



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



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


 


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(h) Judgments. There is entered against the Borrower or any Subsidiary (i) a final
judgment or order for the payment of money in an aggregate amount exceeding the Threshold Amount
(to the extent not covered by independent third-party insurance as to which the insurer does not
dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in
either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order,
or (B) there is a period of 30 consecutive days during which a stay of enforcement of such
judgment, by reason of a pending appeal or otherwise, is not in effect; or



(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of the Borrower
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when
due, after the expiration of any applicable grace period, any installment payment with respect to
its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate
amount in excess of the Threshold Amount; or



(j) Invalidity of Loan Documents. Any material provision of any Loan Document, at any
time after its execution and delivery and for any reason other than as expressly permitted
hereunder, as in accordance with the terms of such Loan Document or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party contests in any manner the
validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it
has any or further liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any provision of any Loan Document; or




(k) Change of Control. There occurs any Change of Control.



Solely for purposes of determining whether an Event of Default has occurred under Section
8.01(f) or 8.01(g), it is understood and agreed that all Immaterial Subsidiaries
affected by the applicable event or circumstance shall be considered together, as a single
consolidated Person, for purposes of determining whether an Event of Default under Section
8.01(f) or 8.01(g) has occurred.




8.02 Remedies Upon Event of Default.



If any Event of Default occurs and is continuing, the Administrative Agent shall, at the
request of, or may, with the consent of, the Required Lenders, take any or all of the following
actions:




(i) declare the commitment of each Lender to make Loans and any obligation of the L/C
Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and
obligation shall be terminated; and




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




(iii) declare the unpaid principal amount of all outstanding Loans, all interest
accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby expressly waived by the Borrower; and




(iv) exercise on behalf of itself and the Lenders all rights and remedies available to
it and the Lenders under the Loan Documents and applicable law or equity;


 


85









 





provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States (or
other applicable Debtor Relief Law), the obligation of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically
become due and payable, and the obligation of the Borrower to Cash Collateralize its L/C
Obligations as aforesaid shall automatically become effective, in each case without further act of
the Administrative Agent or any Lender.




8.03 Application of Funds.



After the exercise of remedies provided for in Section 8.02 (or after the Loans have
automatically become immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to Section 8.02), any
amounts received on account of the Obligations shall be applied in the following order:



First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;



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



Third, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans and L/C Borrowings and fees, premiums and scheduled
periodic payments, and any interest accrued thereon, due under any Swap Contract between any Loan
Party and any Lender, or any Affiliate of a Lender, to the extent such Swap Contract is permitted
by Section 7.03(c), ratably among the Lenders (and, in the case of such Swap Contracts,
Affiliates of Lenders) and the L/C Issuer in proportion to the respective amounts described in this
clause Third held by them;



Fourth, (a) payment of that portion of the Obligations constituting unpaid principal
of the Loans and L/C Borrowings, (b) payment of breakage, termination or other payments, and any
interest accrued thereon, due under any Swap Contract between any Loan Party and any Lender, or any
Affiliate of a Lender, to the extent such Swap Contract is permitted by Section 7.03(c),
(c) payments of amounts due under any Treasury Management Agreement between any Loan Party and any
Lender, or any Affiliate of a Lender and (d) Cash Collateralize that portion of L/C Obligations
comprised of the aggregate undrawn amount of Letters of Credit, ratably among the Lenders (and, in
the case of such Swap Contracts and Treasury Management Agreements, Affiliates of Lenders) and the
L/C Issuer in proportion to the respective amounts described in this clause Fourth held by
them; and



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



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


 


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ARTICLE IX




ADMINISTRATIVE AGENT





9.01 Appointment and Authority.



Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on
its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes
the Administrative Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article (other than
Sections 9.06 and 9.10) are solely for the benefit of the Administrative Agent, the
Lenders and the L/C Issuer, and the Borrower shall not have rights as a third party beneficiary of
any of such provisions.




9.02 Rights as a Lender.



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




9.03 Exculpatory Provisions.



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




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




(b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and




(c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, or shall be liable for the failure to disclose, any information
relating to any of 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.


 


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The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii)
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.



The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document, or the creation,
perfection or priority of any Lien purported to be created by the Loan Documents, (v) the value or
the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.




9.04 Reliance by Administrative Agent.



The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall
have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such
Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.




9.05 Delegation of Duties.



The Administrative Agent may perform any and all of its duties and exercise its rights and
powers hereunder or under any other Loan Document by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform
any and all of its duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the
Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent.


 


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9.06 Resignation of Administrative Agent.



The Administrative Agent may at any time give notice of its resignation to the Lenders, the
L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have
the right, with the consent of the Borrower at all times other than during the existence of an
Event of Default (which consent shall not be unreasonably withheld or delayed), to appoint a
successor, which shall be a bank with an office in the United States, or an Affiliate of any such
bank with an office in the United States. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on
behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall notify the
Borrower and the Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice and (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 L/C Issuer under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (2) all payments, communications and determinations provided
to be made by, to or through the Administrative Agent shall instead be made by or to each Lender
and the L/C Issuer directly, until such time as a successor Administrative Agent has been appointed
as provided for above in this Section. Upon the acceptance of a successor’s appointment as the
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After a retiring Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 10.04 shall continue in effect for
the benefit of such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as the Administrative Agent.



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




9.07 Non-Reliance on Administrative Agent and Other Lenders.



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


 


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9.08 No Other Duties, Etc.



Anything herein to the contrary notwithstanding, none of the documentation agents, syndication
agents, bookrunners or arrangers listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the other Loan Documents, except in its capacity,
as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.




9.09 Administrative Agent May File Proofs of Claim.



In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any
Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall
be entitled and empowered, by intervention in such proceeding or otherwise:




(a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations arising under
the Loan Documents that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and the
Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer
and the Administrative Agent under Sections 2.03(h) and (i), 2.10
and 10.04) allowed in such judicial proceeding; and




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



and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to 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 L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.



Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.




9.10 Collateral and Guaranty Matters.



The Lenders and the L/C Issuer irrevocably authorize the Administrative Agent, at its option
and in its discretion,




(a) to release any Lien on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Commitments and payment in
full of all Obligations (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit, (ii) that is transferred or to be
transferred as part of or in connection with any Disposition permitted hereunder or under
any other Loan Document, (iii) that is owned by a Person other than a Loan Party, including
vessels under construction for third parties pursuant to a contract, that are held by a Loan
Party as a bailee for such other Person,
or (iv) subject to Section 10.01, if approved, authorized or ratified in
writing by the Required Lenders;


 


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




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



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



ARTICLE X




MISCELLANEOUS





10.01 Amendments, Etc.



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



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



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



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



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



(e) amend Section 1.06 or the definition of “Alternative Currency” without the written
consent of each Lender that is obligated to make Credit Extensions in such Alternative Currency;


 


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(f) change any provision of this Section or the definition of “Required Lenders”, or change
any provision of this Section 10.01 without the written consent of each Lender directly
affected thereby;



(g) except in connection with a transaction permitted under Section 7.04 or
7.05, release all or substantially all of the value of the Subsidiary Guaranty without the
written consent of each Lender whose Obligations are Guaranteed thereby; or



(h) release all or substantially all of the Collateral in any transaction or series of related
transactions without the written consent of each Lender whose Obligations are secured by such
Collateral;



and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto.



Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or
consent which by its terms requires the consent of all Lenders or each affected Lender may be
effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x)
the Commitment of any Defaulting Lender may not be increased or extended without the consent of
such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or
each affected Lender that by its terms affects any Defaulting Lender more adversely than other
affected Lenders shall require the consent of such Defaulting Lender.




10.02 Notices; Effectiveness; Electronic Communication.



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




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




(ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire (including, as
appropriate, notices delivered solely to the Person designated by a Lender on its
Administrative Questionnaire then in effect for the delivery of notices that may contain
material non-public information relating to the Borrower).



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


 


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(b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuer hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C
Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to
particular notices or communications.



Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.



(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any
Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of
any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the
Administrative Agent’s transmission of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however, that in no
event shall any Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or any
other Person for indirect, special, incidental, consequential or punitive damages (as opposed to
direct or actual damages).



(d) Change of Address, Etc. The Borrower, the Administrative Agent, the L/C Issuer
and the Swing Line Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the other parties hereto. Each other Lender may change
its address, telecopier or telephone number for notices and other communications hereunder by
notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender. In
addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that
the Administrative Agent has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail
address to which notices and other communications may be sent and (ii) accurate wire
instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one
individual at or on behalf of such Public Lender to at all times have selected the “Private Side
Information” or similar designation on the content declaration screen of the Platform in order to
enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance
procedures and applicable Law, including United States Federal and state securities Laws, to make
reference to Borrower Materials that are not made available through the “Public Side Information”
portion of the Platform and that may contain material non-public information with respect to the
Borrower or its securities for purposes of United States Federal or state securities laws.


 


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(e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Committed Loan Notices and Swing Line Loan Notices) given by or on behalf of the
Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or
were not preceded or followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall
indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of
them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on
each notice given by or on behalf of the Borrower. All telephonic notices to and other telephonic
communications with the Administrative Agent may be recorded by the Administrative Agent, and each
of the parties hereto hereby consents to such recording.




10.03 No Waiver; Cumulative Remedies; Enforcement.



No failure by any Lender or the Administrative Agent to exercise, and no delay by any such
Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder or under any other Loan Document (including the imposition of the Default Rate) preclude
any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided, and provided under each
other Loan Document are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.



Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and
the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its
benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan
Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights and remedies that
inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may
be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in
accordance with Section 10.08 (subject to the terms of Section 2.14), or (d) any
Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and
provided, further, that if at any time there is no Person acting as Administrative
Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the
rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in
addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject
to Section 2.14, any Lender may, with the consent of the Required Lenders, enforce any
rights and remedies available to it and as authorized by the Required Lenders.


 


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10.04 Expenses; Indemnity; Damage Waiver.



(a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
enforcement and collection, delivery and administration of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether
or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer
(including the fees, charges and disbursements of any counsel for the Administrative Agent, any
Lender or the L/C Issuer), and shall pay all fees and time charges for attorneys who may be
employees of the Administrative Agent, any Lender or the L/C Issuer, in connection with the
enforcement or protection of its rights (A) in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or (B) in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any
collection, enforcement, workout, restructuring or negotiations in respect of such Loans or Letters
of Credit.



(b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of
the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold
each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the fees, charges and disbursements of one counsel to the Administrative Agent
and one counsel to all Indemnitees, taken as a whole, and if reasonably necessary, a single local
counsel for the Administrative Agent and a single local counsel for all Indemnittees, taken as a
whole, in each relevant jurisdiction, and solely in the case of a conflict of interest, one
additional counsel for each of the affected Indemnitees), and shall indemnify and hold harmless
each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees
of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party
or by the Borrower or any other Loan Party arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto of their
respective obligations hereunder or thereunder, the consummation of the transactions contemplated
hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its
Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third party or by the
Borrower or any other Loan Party, 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, (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 other Loan Party
has obtained a final and nonappealable judgment in its favor on such claim as determined by a court
of competent jurisdiction or (z) any dispute solely among the Indemnitees other than any claims
against an
Indemnitee in its capacity or in fulfilling its role as Administrative Agent or Arranger or
any similar role under this Agreement or any other Loan Document and other than any claims arising
out of any act or omission of the Borrower or any of its Affiliates.


 


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(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any
of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such,
or against any Related Party of any of the foregoing acting for the Administrative Agent (or any
such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders
under this subsection (c) are subject to the provisions of Section 2.13(e).



(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, neither the Borrower nor any Lender shall assert, and each hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as
a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of
the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any
damages arising from the use by unintended recipients of any information or other materials
distributed 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.



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



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




10.05 Payments Set Aside.



To the extent that any payment by or on behalf of the Borrower is made to the Administrative
Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender
exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof
is subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer or
such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or such setoff had not
occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative
Agent upon demand its applicable share (without duplication) of any amount so recovered from or
repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date
such payment is made at a rate per annum equal to the applicable Overnight Rate from time to time
in effect, in the applicable currency of such recovery or payment. The obligations of the Lenders
and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in
full of the Obligations and the termination of this Agreement.


 


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10.06 Successors and Assigns.



(a) Successors and Assigns Generally. The provisions of this Agreement and the other
Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto 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 or thereunder without the prior
written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with
the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with
the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of the Administrative Agent, the L/C Issuer and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.



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




(i) Minimum Amounts.




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




(B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $5,000,000, unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single assignee (or to
an assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been met.




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


 


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




(A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;




(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
any 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; and




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




(D) the consent of the Swing Line Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment that increases the
obligation of the assignee to participate in exposure under one or more Swing Line
Loans made (or to be made) by the Swing Line Lender.




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




(v) No Assignment to Certain Persons. No such assignment shall be made to (A)
the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (B) 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), or (C) a natural
person.




(vi) 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 or any 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 Line 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 (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04
with respect to facts and circumstances occurring prior to the effective date of such assignment.
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with subsection (d) of
this Section.



(c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower (and such agency being solely for tax purposes), shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”). The entries in the Register shall be conclusive absent
manifest error, 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. In addition, the
Administrative Agent shall maintain on the Register information regarding the designation, and
revocation of designation, of any Lender as a Defaulting Lender. The Register shall be available
for inspection by the Borrower and any Lender at any reasonable time and from time to time upon
reasonable prior notice.



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


 


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(e) Limitation upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 than the Lender would have
been entitled to receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower’s prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 3.01 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 3.01(e) as though it were a Lender.



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



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




10.07 Treatment of Certain Information; Confidentiality.



Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its Affiliates and to its and its Affiliates’ respective partners, directors, officers,
employees, agents, trustees, advisors and representatives (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory authority, such as
the National Association of Insurance Commissioners), (c) to the extent required by applicable laws
or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as, or at least as restrictive 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 L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a
source other than the Borrower. In addition, the Administrative Agent and the Lenders may disclose
the existence of this Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to the Administrative
Agent and the Lenders in connection with the administration and management of this Agreement, the
other Loan Documents, the Commitments, and the Credit Extensions.


 


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For purposes of this Section, “Information” means all information received from the
Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective
businesses, other than any such information that is available to the Administrative Agent, any
Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary. Any Person required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.



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




10.08 Right of Setoff.



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


 


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10.09 Interest Rate Limitation.



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




10.10 Counterparts; Integration; Effectiveness.



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




10.11 Survival of Representations and Warranties.



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




10.12 Severability.



If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid
or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Without limiting the foregoing provisions of this Section 10.12, if and to the extent that
the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be
limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, the L/C
Issuer or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in
effect only to the extent not so limited.


 


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10.13 Replacement of Lenders.



If (a) any Lender requests compensation under Section 3.04, (b) the Borrower is
required to pay any additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 3.01, (c) any Lender gives a notice pursuant to
Section 3.02 (which has not been revoked), (d) a Lender (a “Non-Consenting Lender”)
does not consent to a proposed change, waiver, discharge or termination with respect to any Loan
Document that has been approved by the Required Lenders as provided in Section 10.01 but
requires unanimous consent of all Lenders or all Lenders directly affected thereby (as applicable)
or (e) any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 10.06), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment), provided that:




(i) the Administrative Agent shall have received the assignment fee specified in
Section 10.06(b);




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




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




(iv) such assignment does not conflict with applicable Laws; and




(v) in the case of any such assignment resulting from a Non-Consenting Lender’s failure
to consent to a proposed change, waiver, discharge or termination with respect to any Loan
Document, the applicable replacement bank, financial institution or Fund consents to the
proposed change, waiver, discharge or termination;



provided that the failure by such Lender to execute and deliver an Assignment and
Assumption shall not impair the validity of the removal of such Lender and the mandatory assignment
of such Lender’s Commitments and outstanding Loans and participations in L/C Obligations and Swing
Line Loans pursuant to this Section 10.13 shall nevertheless be effective without the
execution by such Lender of an Assignment and Assumption.



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




10.14 Governing Law; Jurisdiction; Etc.



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


 


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(b) SUBMISSION TO JURISDICTION. EACH OF THE BORROWER, THE ADMISTRATIVE AGENT, THE L/C
ISSUER AND EACH LENDER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT
FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES
HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY
LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.



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



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




10.15 Waiver of Jury Trial.



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


 


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10.16 USA PATRIOT Act Notice.



Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Act.




10.17 Judgment Currency.



If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due
hereunder or any other Loan Document in one currency into another currency, the rate of exchange
used shall be that at which in accordance with normal banking procedures the Administrative Agent
could purchase the first currency with such other currency on the Business Day preceding that on
which final judgment is given. The obligation of the Borrower in respect of any such sum due from
it to the Administrative Agent or the Lenders hereunder or under the other Loan Documents shall,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in
which such sum is denominated in accordance with the applicable provisions of this Agreement (the
“Agreement Currency”), be discharged only to the extent that on the Business Day following
receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the
Administrative Agent may in accordance with normal banking procedures purchase the Agreement
Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less
than the sum originally due to the Administrative Agent from the Borrower in the Agreement
Currency, the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Administrative Agent or the Person to whom such obligation was owing against such
loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due
to the Administrative Agent in such currency, the Administrative Agent agrees to return the amount
of any excess to the Borrower (or to any other Person who may be entitled thereto under applicable
law).




10.18 Statutory Notice.



UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY THE LENDERS CONCERNING
LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR
SECURED SOLELY BY THE BORROWER’S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED
BY THE LENDERS TO BE ENFORCEABLE.




10.19 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),
each of the Loan Parties acknowledges and agrees, and acknowledges the other Loan Parties’
understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by
the Administrative Agent, the Arranger and the Lenders are arm’s-length commercial transactions
between the Loan Parties and their respective Affiliates, on the one hand, and the Administrative
Agent, the Arranger and the Lenders, on the other hand, (B) each of the Loan Parties has consulted
its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and
(C) each of the Loan Parties is capable of evaluating, and understands and accepts, the terms,
risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii)
(A) the Administrative Agent, the Arranger and each Lender each is and has been acting solely as a
principal and, except as expressly agreed in writing by the relevant parties,
has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Loan
Parties or any of their respective Affiliates, or any other Person and (B) neither the
Administrative Agent, the Arranger nor any Lender has any obligation to the Loan Parties or any of
their respective Affiliates with respect to the transactions contemplated hereby except those
obligations expressly set forth herein and in the other Loan Documents; and (iii) the
Administrative Agent, the Arranger, the Lenders and their respective Affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of the Loan Parties and
their respective Affiliates, and neither the Administrative Agent, the Arranger nor any lender has
any obligation to disclose any of such interests to the Loan Parties and their respective
Affiliates. To the fullest extent permitted by Law, each of the Loan Parties hereby waives and
releases any claims that it may have against the Administrative Agent, the Arranger and each Lender
with respect to any breach or alleged breach of agency or fiduciary duty in connection with any
aspect of any transaction contemplated hereby.


 


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10.20 Electronic Execution of Assignments and Certain Other Documents.



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




10.21 Amendment and Restatement of Existing Credit Agreement.



The parties to the Existing Credit Agreement each hereby agrees that, at such time as this
Agreement shall have become effective pursuant to the terms of Article IV, (a) the Existing
Credit Agreement automatically shall be deemed amended, superseded and restated in its entirety by
this Agreement and (b) the Commitments under the Existing Credit Agreement and as defined therein
automatically shall be replaced with the Commitments hereunder. This Agreement is not a novation
of the Existing Credit Agreement. The promissory notes executed and delivered by the Borrower
under the Existing Credit Agreement are hereby cancelled and shall be deemed replaced with the
Notes issued hereunder. This amendment and restatement has been effected in accordance with the
terms of the Existing Credit Agreement.




 


106











 





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



	 	 	 	 	 	 	 
	 	 	THE GREENBRIER COMPANIES, INC.,	 	 
	 	 	an Oregon corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Mark J. Rittenbaum
 

Name: Mark J. Rittenbaum
	 	 
	 

	 	 	 	Title: Executive Vice President	 	 





 


 









 





	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Tiffany Shin
 

Name: Tiffany Shin
	 	 
	 

	 	 	 	Title: Assistant Vice President	 	 





 


 









 





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

	 	By
	 	/s/ Chris Swindell
 

Name: Chris Swindell
	 	 
	 

	 	 	 	Title: SVP	 	 





 


 









 





	 	 	 	 	 	 	 
	 	 	UNION BANK, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Stephen Sloan
 

Name: Stephen Sloan
	 	 
	 

	 	 	 	Title: Vice President	 	 





 


 









 





	 	 	 	 	 	 	 
	 	 	FIFTH THIRD BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Robert W. Hart
 

Name: Robert W. Hart
	 	 
	 

	 	 	 	Title: Vice President and Managing Director	 	 





 


 









 





	 	 	 	 	 	 	 
	 	 	UMPQUA BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Jeffrey Seiler
 

Name: Jeffrey Seiler
	 	 
	 

	 	 	 	Title: Vice President	 	 





 


 









 





	 	 	 	 	 	 	 
	 	 	GOLDMAN SACHS LENDING PARTNERS, LLC, 

as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Mark Walton
 

Name: Mark Walton
	 	 
	 

	 	 	 	Title: Authorized Signatory	 	 





 


 









 





	 	 	 	 	 	 	 
	 	 	BANK OF THE WEST, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Brett German
 

Name: Brett German
	 	 
	 

	 	 	 	Title: Vice President	 	 





 


 









 





	 	 	 	 	 	 	 
	 	 	CREDIT INDUSTRIEL ET COMMERCIAL, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Alex Aupoix
 

Name: Alex Aupoix
	 	 
	 

	 	 	 	Title: Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Andrew McKuin
 

Name: Andrew McKuin
	 	 
	 

	 	 	 	Title: Vice President	 	 





 


 









 





	 	 	 	 	 	 	 
	 	 	COLUMBIA BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ William H. Barclay
 

Name: William H. Barclay
	 	 
	 

	 	 	 	Title: Senior Vice President