Exhibit 10.1


 


[Execution Version]


 


CREDIT AGREEMENT


 


DATED AS OF NOVEMBER 29, 2007


 


AMONG


 


KEY ENERGY SERVICES, INC.,


 


AS THE BORROWER,


 


BANK OF AMERICA, N.A.,

AS PAYING AGENT, CO-ADMINISTRATIVE AGENT, SWING LINE LENDER AND

L/C ISSUER,


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,

AS CO-ADMINISTRATIVE AGENT, SWING LINE LENDER AND L/C ISSUER


 


FORTIS CAPITAL CORP AND

CAPITAL ONE, N.A., AS CO-DOCUMENTATION AGENTS


 


AND


 


THE OTHER LENDERS PARTY HERETO


 


BANC OF AMERICA SECURITIES LLC AND 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

AS JOINT LEAD ARRANGERS AND JOINT BOOK MANAGERS


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE I

  	
   

  
	
   

  	
  DEFINITIONS AND ACCOUNTING TERMS

  	
   

  
	
   

  	
  1

  	
   

  
	
   

  	
   

  	
   

  
	
  1.01

  	
  Defined Terms

  	
  1

  
	
  1.02

  	
  Other Interpretive
  Provisions

  	
  25

  
	
  1.03

  	
  Accounting Terms

  	
  26

  
	
  1.04

  	
  Rounding

  	
  26

  
	
  1.05

  	
  Times of Day

  	
  26

  
	
  1.06

  	
  Letter of Credit
  Amounts

  	
  27

  
	
  1.07

  	
  Currency Equivalents
  Generally

  	
  27

  
	
  1.08

  	
  Responsible Officers

  	
  27

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE II

  	
   

  
	
   

  	
  THE COMMITMENTS AND CREDIT EXTENSIONS

  	
   

  
	
   

  	
  27

  	
   

  
	
   

  	
   

  	
   

  
	
  2.01

  	
  The Loans

  	
  27

  
	
  2.02

  	
  Borrowings, Conversions
  and Continuations of Loans

  	
  28

  
	
  2.03

  	
  Letters of Credit

  	
  29

  
	
  2.04

  	
  Swing Line Loans

  	
  38

  
	
  2.05

  	
  Prepayments

  	
  42

  
	
  2.06

  	
  Termination or
  Reduction of Commitments

  	
  43

  
	
  2.07

  	
  Repayment of Loans

  	
  44

  
	
  2.08

  	
  Interest

  	
  44

  
	
  2.09

  	
  Fees

  	
  45

  
	
  2.10

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

  	
  45

  
	
  2.11

  	
  Evidence of Debt

  	
  46

  
	
  2.12

  	
  Payments Generally;
  Paying Agent’s Clawback

  	
  47

  
	
  2.13

  	
  Sharing of Payments by
  Lenders

  	
  49

  
	
  2.14

  	
  Increase in Revolving
  Credit Facility

  	
  49

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE III

  	
   

  
	
   

  	
  TAXES, YIELD PROTECTION AND ILLEGALITY

  	
   

  
	
   

  	
  51

  	
   

  
	
   

  	
   

  	
   

  
	
  3.01

  	
  Taxes

  	
  51

  
	
  3.02

  	
  Illegality

  	
  53

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  3.03

  	
  Inability to Determine
  Rates

  	
  53

  
	
  3.04

  	
  Increased Costs;
  Reserves on Eurodollar Rate Loans

  	
  53

  
	
  3.05

  	
  Compensation for Losses

  	
  55

  
	
  3.06

  	
  Mitigation Obligations;
  Replacement of Lenders

  	
  55

  
	
  3.07

  	
  Survival

  	
  56

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IV

  	
   

  
	
   

  	
  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  	
   

  
	
   

  	
  56

  	
   

  
	
   

  	
   

  	
   

  
	
  4.01

  	
  Conditions of Initial
  Credit Extension

  	
  56

  
	
  4.02

  	
  Conditions to all
  Credit Extensions

  	
  59

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE V

  	
   

  
	
   

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
  59

  	
   

  
	
   

  	
   

  	
   

  
	
  5.01

  	
  Existence,
  Qualification and Power

  	
  59

  
	
  5.02

  	
  Authorization; No
  Contravention

  	
  60

  
	
  5.03

  	
  Governmental
  Authorization; Other Consents

  	
  60

  
	
  5.04

  	
  Binding Effect

  	
  60

  
	
  5.05

  	
  Financial Statements;
  No Material Adverse Effect

  	
  60

  
	
  5.06

  	
  Litigation

  	
  61

  
	
  5.07

  	
  No Default

  	
  61

  
	
  5.08

  	
  Ownership of Property;
  Liens; Investments

  	
  61

  
	
  5.09

  	
  Environmental
  Compliance

  	
  61

  
	
  5.10

  	
  Insurance

  	
  62

  
	
  5.11

  	
  Taxes

  	
  62

  
	
  5.12

  	
  ERISA Compliance

  	
  62

  
	
  5.13

  	
  Subsidiaries; Equity
  Interests; Loan Parties

  	
  63

  
	
  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

  
	
  5.18

  	
  Solvency

  	
  65

  
	
  5.19

  	
  Security Documents

  	
  65

  



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VI

  	
   

  
	
   

  	
  AFFIRMATIVE COVENANTS

  	
   

  
	
   

  	
  66

  	
   

  
	
   

  	
   

  	
   

  
	
  6.01

  	
  Financial Statements

  	
  66

  
	
  6.02

  	
  Certificates; Other
  Information

  	
  67

  
	
  6.03

  	
  Notices

  	
  69

  
	
  6.04

  	
  Payment of Obligations

  	
  69

  
	
  6.05

  	
  Preservation of
  Existence, Etc.

  	
  70

  
	
  6.06

  	
  Maintenance of
  Properties

  	
  70

  
	
  6.07

  	
  Maintenance of
  Insurance

  	
  70

  
	
  6.08

  	
  Compliance with Laws

  	
  70

  
	
  6.09

  	
  Books and Records

  	
  70

  
	
  6.10

  	
  Inspection Rights

  	
  70

  
	
  6.11

  	
  Use of Proceeds

  	
  71

  
	
  6.12

  	
  Covenant to Guarantee
  Obligations and Give Security

  	
  71

  
	
  6.13

  	
  Compliance with
  Environmental Laws

  	
  75

  
	
  6.14

  	
  Further Assurances

  	
  75

  
	
  6.15

  	
  Compliance with Terms
  of Leaseholds

  	
  75

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VII

  	
   

  
	
   

  	
  NEGATIVE COVENANTS

  	
   

  
	
   

  	
  76

  	
   

  
	
   

  	
   

  	
   

  
	
  7.01

  	
  Liens

  	
  76

  
	
  7.02

  	
  Indebtedness

  	
  77

  
	
  7.03

  	
  Investments

  	
  79

  
	
  7.04

  	
  Fundamental Changes

  	
  81

  
	
  7.05

  	
  Dispositions

  	
  82

  
	
  7.06

  	
  Restricted Payments

  	
  83

  
	
  7.07

  	
  Change in Nature of
  Business

  	
  84

  
	
  7.08

  	
  Transactions with
  Affiliates

  	
  84

  
	
  7.09

  	
  Burdensome Agreements

  	
  85

  
	
  7.10

  	
  Use of Proceeds

  	
  85

  
	
  7.11

  	
  Financial Covenants

  	
  86

  



 


iii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  7.12

  	
  Capital Expenditures

  	
  86

  
	
  7.13

  	
  Amendments of
  Organization Documents

  	
  86

  
	
  7.14

  	
  Accounting Changes

  	
  86

  
	
  7.15

  	
  Prepayments, Etc. of
  Indebtedness

  	
  86

  
	
  7.16

  	
  Amendment, Etc. of
  Indebtedness

  	
  87

  
	
  7.17

  	
  Partnerships and Joint
  Ventures

  	
  87

  
	
  7.18

  	
  Assets Located Outside
  the United States

  	
  87

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VIII

  	
   

  
	
   

  	
  EVENTS OF DEFAULT AND REMEDIES

  	
   

  
	
   

  	
  87

  	
   

  
	
   

  	
   

  	
   

  
	
  8.01

  	
  Events of Default

  	
  87

  
	
  8.02

  	
  Remedies upon Event of
  Default

  	
  89

  
	
  8.03

  	
  Application of Funds

  	
  90

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IX

  	
   

  
	
   

  	
  PAYING AGENT AND CO-ADMINISTRATIVE AGENTS.

  	
   

  
	
   

  	
  91

  	
   

  
	
   

  	
   

  	
   

  
	
  9.01

  	
  Appointment and
  Authority

  	
  91

  
	
  9.02

  	
  Rights as a Lender

  	
  91

  
	
  9.03

  	
  Exculpatory Provisions

  	
  92

  
	
  9.04

  	
  Reliance by Agents

  	
  92

  
	
  9.05

  	
  Delegation of Duties

  	
  93

  
	
  9.06

  	
  Resignation of Agent

  	
  93

  
	
  9.07

  	
  Non-Reliance on Agents
  and Other Lenders

  	
  94

  
	
  9.08

  	
  No Other Duties, Etc.

  	
  94

  
	
  9.09

  	
  Paying Agent May File
  Proofs of Claim

  	
  94

  
	
  9.10

  	
  Collateral and Guaranty
  Matters

  	
  95

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE X

  	
   

  
	
   

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
  96

  	
   

  
	
   

  	
   

  	
   

  
	
  10.01

  	
  Amendments, Etc

  	
  96

  
	
  10.02

  	
  Notices; Effectiveness;
  Electronic Communications

  	
  97

  
	
  10.03

  	
  No Waiver; Cumulative
  Remedies

  	
  99

  
	
  10.04

  	
  Expenses; Indemnity;
  Damage Waiver

  	
  100

  



 


iv

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  10.05

  	
  Payments Set Aside

  	
  101

  
	
  10.06

  	
  Successors and Assigns

  	
  102

  
	
  10.07

  	
  Treatment of Certain
  Information; Confidentiality

  	
  106

  
	
  10.08

  	
  Right of Setoff

  	
  107

  
	
  10.09

  	
  Interest Rate
  Limitation

  	
  107

  
	
  10.10

  	
  Counterparts;
  Integration; Effectiveness

  	
  107

  
	
  10.11

  	
  Survival of
  Representations and Warranties

  	
  108

  
	
  10.12

  	
  Severability

  	
  108

  
	
  10.13

  	
  Replacement of Lenders

  	
  108

  
	
  10.14

  	
  Governing Law;
  Jurisdiction; Etc

  	
  109

  
	
  10.15

  	
  Waiver of Jury Trial

  	
  110

  
	
  10.16

  	
  No Advisory or Fiduciary
  Responsibility

  	
  110

  
	
  10.17

  	
  USA PATRIOT Act Notice

  	
  110

  
	
  10.18

  	
  ENTIRE AGREEMENT

  	
  111

  



 


v

















 


	
  SCHEDULES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.01

  	
  Existing
  Letters of Credit

  	
   

  
	
   

  	
  2.01

  	
  Commitments
  and Applicable Percentages

  	
   

  
	
   

  	
  5.13

  	
  Subsidiaries
  and Other Equity Investments; Loan Parties

  	
   

  
	
   

  	
  7.01

  	
  Existing
  Liens

  	
   

  
	
   

  	
  7.02

  	
  Existing
  Indebtedness

  	
   

  
	
   

  	
  7.03

  	
  Existing
  Investments

  	
   

  
	
   

  	
  7.05

  	
  Certain Asset Sales

  	
   

  
	
   

  	
  10.02

  	
  Paying Agent’s
  Office, Certain Addresses for Notices

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Form of

  	
   

  
	
   

  	
  A

  	
  Loan Notice

  	
   

  
	
   

  	
  B

  	
  Swing Line
  Loan Notice

  	
   

  
	
   

  	
  C

  	
  Revolving
  Credit Note

  	
   

  
	
   

  	
  D

  	
  Compliance
  Certificate

  	
   

  
	
   

  	
  E

  	
  Assignment
  and Assumption

  	
   

  



 


vi

















 


CREDIT AGREEMENT


 


This CREDIT AGREEMENT (“Agreement”) is entered into as of November 29,  2007, among KEY
ENERGY SERVICES, INC., a  Maryland
corporation (the “Borrower”), each lender from time to time party hereto
(collectively, the “Lenders” and individually, a “Lender”), BANK OF AMERICA, N.A., as
Paying Agent, Co-Administrative Agent, Swing Line Lender and L/C Issuer, and
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Co-Administrative Agent, Swing Line
Lender and L/C Issuer.


 


PRELIMINARY STATEMENTS:


 


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


 


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


 


ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS


 


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


 


“Acquisition” means the acquisition, directly or indirectly, by
any Person of (a) a majority of the Equity Interests of another Person, (b) all
or substantially all of the assets of another Person or (c) all or
substantially all of a line of business or division of another Person, in each
case (i) whether or not involving a merger or a consolidation with such
other Person and (ii) whether in one transaction or a series of
related transactions.


 


“Acquisition Consideration” means the consideration paid or
incurred by the Borrower or any of its Subsidiaries for an Acquisition,
including the sum of (without duplication) (a) the fair market value of
any cash, assets, Equity Interests or services given, plus (b) the amount
of any Indebtedness assumed, incurred or guaranteed (to the extent not otherwise
included) plus (c) the amount of transaction related contractual payments
such as amounts payable under noncompete, consulting, and similar agreements,
in each case, paid or incurred in connection with such Acquisition by the
Borrower or any of its Subsidiaries but only to the extent that the amount to
be paid under any such agreement exceeds the value of services rendered
thereunder, as reasonably determined by the Borrower.


 


“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied
by the Paying Agent.


 


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


 

















 


“Agents” means, collectively, the Paying Agent and the
Co-Administrative Agents, and “Agent” means any of them.


 


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


 


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


 


“Agreement”
means this Credit Agreement.


 


“Applicable Fee Rate” means, at any time (a) from the
Closing Date to the date on which the Paying Agent receives a Compliance
Certificate pursuant to Section 6.02(b) for the fiscal quarter
ending March 31, 2008 0.30% per annum and (b) thereafter, the
applicable percentage per annum set forth below determined by reference to the
Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Paying Agent pursuant to Section 6.02(b):


 




	
  Applicable Fee Rate

  
	
  Pricing

  Level

  	
   

  	
  Consolidated Leverage

  Ratio

  	
   

  	
  Commitment Fee

  
	
  1

  	
   

  	
  < 1.50:1

  	
   

  	
  0.30%

  
	
  2

  	
   

  	
  >
  1.50:1 but < 2.75:1

  	
   

  	
  0.375%

  
	
  3

  	
   

  	
  >
  2.75:1

  	
   

  	
  0.50%

  






 


Any increase or decrease in the Applicable Fee Rate resulting from a
change in the Consolidated Leverage 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 Pricing Level 3 shall apply as of the first Business
Day after the date on which such Compliance Certificate was required to have
been delivered.


 


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


 


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


 


2

















 


“Applicable Rate”
means (i) from the Closing Date to the date on which the Paying Agent
receives a Compliance Certificate pursuant to Section 6.02(b) for
the fiscal quarter ending March 31, 2008 0.50% per annum for Base Rate
Loans and 1.50% per annum for Eurodollar Rate Loans and Letter of Credit Fees
and (ii) thereafter, the applicable percentage per annum set forth below
determined by reference to the Consolidated Leverage Ratio as set forth in the
most recent Compliance Certificate received by the Paying Agent pursuant to Section 6.02(b):


 




	
  Applicable Rate

  
	
  Pricing

  Level

  	
   

  	
  Consolidated Leverage

  Ratio

  	
   

  	
  Eurodollar

  Rate/

  Letters of

  Credit

  	
   

  	
  Base Rate

  
	
  1

  	
   

  	
  < 1.50:1

  	
   

  	
  1.50%

  	
   

  	
  0.50%

  
	
  2

  	
   

  	
  >
  1.50:1 but < 2.75:1

  	
   

  	
  1.75%

  	
   

  	
  0.75%

  
	
  3

  	
   

  	
  >
  2.75:1

  	
   

  	
  2.00%

  	
   

  	
  1.00%

  






 


Any increase or decrease in the Applicable Rate resulting from a change
in the Consolidated Leverage 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 Pricing Level 3 shall apply as of the first Business Day
after the date on which such Compliance Certificate was required to have been
delivered.


 


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


 


“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.


 


“Arrangers”
means Banc of America Securities LLC and Wells Fargo, each in its capacity as
joint lead arranger and joint book manager.


 


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


 


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


 


“Attributable
Indebtedness” means, on any date, (a) in respect of any
Capitalized Lease of any Person, the capitalized amount thereof that would
appear on a balance sheet of such Person prepared as of such date in accordance
with GAAP, (b) in respect of any Synthetic Lease Obligation, the
capitalized amount of the remaining lease or similar payments under the
relevant lease or other applicable agreement or instrument that would appear on
a balance sheet of such 


 


3

















 


Person prepared as of such date in accordance
with GAAP if such lease or other agreement or instrument were accounted for as
a Capitalized Lease and (c) all Synthetic Debt of such Person.


 


“Audited
Financial Statements” means the audited consolidated balance sheet
of the Borrower and its
Subsidiaries for the fiscal year ended December 31,
2006 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.


 


“AutoBorrow Agreement” means any agreement providing for
automatic borrowing services between the Borrower and a Swing Line Lender.


 


“Availability
Period” means the period from and including the Closing Date to the
earliest of (i) the Maturity Date, (ii) the date of termination of
the Revolving Credit Commitments pursuant to Section 2.06, and (iii) the
date of termination of the commitment of each Lender to make Revolving Credit
Loans and of the obligation of each 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
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the
rate of interest in effect for such day as publicly announced from time to time
by Bank of America as its “prime rate.” 
The “prime rate” is a rate set by Bank of America based upon various
factors including Bank of America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate. Any
change in such rate announced by Bank of America shall take effect at the
opening of business on the day specified in the public announcement of such
change.


 


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


 


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


 


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


 


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


 


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


 


“Capital
Expenditures” means, with respect to any Person for any period, any
expenditure in respect of the purchase or other acquisition of any fixed or
capital asset (excluding normal replacements and maintenance which are properly
charged to current operations); provided that Capital Expenditures shall
not include (a) expenditures for Permitted Acquisitions or 


 


4

















 


(b) expenditures by any Person acquired
in a Permitted Acquisition prior to the date of such acquisition.


 


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


 


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


 


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


 


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


 


(b)                                 time deposits
(including eurodollar time deposits) with, or certificates of deposit or
bankers’ acceptances of, any commercial bank that (i) (A) is a Lender
or (B) is organized under the laws of the United States of America, any
state thereof or the District of Columbia or is the principal banking
subsidiary of a bank holding company organized under the laws of the United
States of America, any state thereof or the District of Columbia (including a
foreign bank which is a Subsidiary of a commercial bank or a holding company of
a commercial bank which is organized under such laws) and (ii) has
combined capital and surplus of at least $500,000,000, in each case with
maturities of not more than 180
days from the date of acquisition thereof;


 


(c)                                  commercial paper
issued by any Person organized under the laws of any state of the United States
of America and rated at least “Prime-2” (or the then equivalent grade) by
Moody’s or at least “A-2” (or the then equivalent grade) by S&P, in
each case with maturities of not more than 180 days from the date of
acquisition thereof;


 


(d)                                 repurchase obligations
of any Lender or of any commercial bank satisfying the requirements of clause (b) of
this definition, having a term of not more than 30 days with respect to
securities issued or fully guaranteed or insured by the United States
government;


 


(e)                                  securities with
maturities of six months or less from the date of acquisition backed by standby
letters of credit issued by any Lender or any commercial bank satisfying the
requirements of clause (b) of this definition; and


 


(f)                                    Investments,
classified in accordance with GAAP as current assets of the Borrower or any of
its Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, which are administered by financial
institutions that have the highest rating obtainable from either Moody’s or
S&P, and the portfolios of which are limited primarily to Investments of
the character, quality and maturity described in clauses (a) through (e) of
this definition.


 


5

















 


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


 


“Cash Management Bank” means (a) with respect to any Cash Management Agreement
existing on the Closing Date, Wells Fargo, any other Lender, or Affiliate of a
Lender party to such agreement, and (b) any Person that, at the time it
enters into a Cash Management Agreement, is a Lender or an Affiliate of a
Lender, in its capacity as a party to such Cash Management Agreement.


 


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


 


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


 


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


 


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


 


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


 


(a)                                  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) 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 securities that such person or group has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time (such right, an “option right”)), directly or indirectly,
of 50% or more of the equity securities 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 


 


6

















 


(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); or


 


(c)                                  any Person or two or
more Persons acting in concert shall have acquired by contract or otherwise, or
shall have entered into a contract or arrangement that, upon consummation
thereof, will result in its or their acquisition of the power to exercise,
directly or indirectly, a controlling influence over the management or policies
of the Borrower, or control over
the equity securities 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 Persons have the right to acquire pursuant to any option right)
representing 50% or more of the
combined voting power of such securities; or


 


(d)                                 a “change of control”
or any comparable term under, and as defined in, the Senior Notes Indenture
shall have occurred.


 


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


 


“Co-Administrative
Agents” means, collectively, Bank of America and Wells Fargo, each
in its capacity as a co-administrative agent under any of the Loan Documents,
or any successor to either such entity in such capacity. If at any time only
one Person is serving as a Co-Administrative Agent hereunder, such term shall
mean such Person.


 


“Code”
means the Internal Revenue Code of 1986.


 


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


 


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


 


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


 


“Consolidated Funded
Indebtedness” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the
outstanding principal 


 


7

















 


amount of all obligations, whether current or
long-term, for borrowed money (including Obligations hereunder) and all
obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all
direct obligations arising under letters of credit (including standby and
commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments, (d) all obligations in respect of the deferred purchase price
of property or services (other than trade accounts payable in the ordinary
course of business), (e) all Attributable Indebtedness, (f) without
duplication, all Guarantees with respect to outstanding Indebtedness of the
types specified in clauses (a) through (e) above of Persons other
than the Borrower or any Subsidiary, 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 the Borrower or a Subsidiary is a general
partner or joint venturer, unless (and to the extent) such Indebtedness is
expressly made non-recourse to the Borrower or such Subsidiary.


 


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


 


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


 


“Consolidated Interest
Coverage Ratio” means, as of any date of determination, the ratio of
(a) Consolidated EBITDA to
(b) Consolidated Interest Charges, in each case, of or by the Borrower and
its Subsidiaries on a consolidated basis for the most recently completed
Measurement Period.


 


“Consolidated Leverage
Ratio” means, as of any date of determination, the ratio of (a) Consolidated
Funded Indebtedness as of such date to  (b) Consolidated EBITDA of the Borrower and its
Subsidiaries on a consolidated basis for the most recently completed
Measurement Period. For purposes of calculating the Consolidated Leverage Ratio
as of any date, Consolidated EBITDA shall be calculated on a pro forma basis
(as certified by the Borrower to the Co-Administrative Agents and as reasonably
approved by the Co-Administrative Agents) assuming that (i) all
Acquisitions made, and any Indebtedness incurred or repaid in connection
therewith, during the most recently completed Measurement Period and (ii) all
Dispositions of any Subsidiary or of all or substantially all the assets of any
Subsidiary or of any line of business or division of the Borrower or any
Subsidiary completed, and any Indebtedness incurred or repaid in connection
therewith, during such Measurement Period have been made or incurred or repaid
on the first day of such Measurement Period (but without any adjustment to
Consolidated EBITDA for projected cost savings or other synergies other than
cost savings or synergies realized within, or to be realized within, 180 days
following the consummation of such 


 


8

















 


Acquisition or Disposition, as applicable, as
demonstrated to and as approved by the Co-Administrative Agents in their
reasonable discretion).


 


“Consolidated Net Income”
means, at any date of determination, the net income (or loss) of the Borrower
and its Subsidiaries on a consolidated basis for the most recently completed
Measurement Period; provided that Consolidated Net Income shall exclude (a) extraordinary
gains and extraordinary losses for such Measurement Period, (b) the net
income of any Subsidiary during such Measurement Period to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
of such income is not permitted by operation of the terms of its Organization
Documents or any agreement, instrument or Law applicable to such Subsidiary
during such Measurement Period, except that the Borrower’s equity in any net
loss of any such Subsidiary for such Measurement Period shall be included in determining
Consolidated Net Income, and (c) any income (or loss) for such Period of
any Person if such Person is not a Subsidiary, except that the Borrower’s
equity in the net income of any such Person for such Measurement Period shall
be included in Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Person during such Period to the Borrower or a
Subsidiary as a dividend or other distribution (and in the case of a dividend
or other distribution to a Subsidiary, such Subsidiary is not precluded from
further distributing such amount to the Borrower as described in clause (b) of
this proviso).


 


“Consolidated Net Worth” means, as of any date of determination,
for the Borrower and its Subsidiaries on a consolidated basis, Shareholders’
Equity of the Borrower and its Subsidiaries on that date.


 


“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 


 


9

















 


Eurodollar Rate Loan, the Default Rate shall
be an interest rate equal to the interest rate (including any Applicable Rate)
otherwise applicable to such Loan plus 2% per annum and (b) when
used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate
plus 2% per annum.


 


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


 


“Disposition”
or “Dispose”
means the sale, transfer, license, lease or other disposition (including any
sale and leaseback transaction) of any property by any Person (or the granting
of any option or other right to do any of the foregoing), 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.


 


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


 


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


 


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


 


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


 


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


 


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


 


10

















 


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


 


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


 


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


 


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


 


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


 


11

















 


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


 


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


 


“Excluded Property” has the meaning specified in the Security
Agreement.


 


“Excluded Taxes” means, with respect to any Agent, Lender, Swing
Line Lender, L/C Issuer or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) taxes imposed
on or measured by its overall net income (however denominated), and franchise
taxes imposed on it (in lieu of net income taxes), as a result of a present or
former connection between such Agent, Lender, Swing Line Lender, L/C Issuer or
other recipient and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from such Agent’s, Lender’s,
Swing Line Lender’s, L/C Issuer’s or other recipient’s having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Agreement or any other Loan Document), (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 and (c) 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”
means that certain Credit Agreement dated as of July 29, 2005, as amended,
among the Borrower, Lehman Brothers, Inc., as sole lead arranger and sole
bookrunner, Lehman Commercial Paper Inc., as syndication agent, Wells Fargo
Foothill, Inc., as revolving administrative agent, Lehman Commercial Paper
Inc., as administrative and collateral agent, and the lenders parties thereto.


 


“Existing Letters of Credit”
means the letters of credit issued under the Existing Credit Agreement and
outstanding on the Closing Date, as set forth on Schedule 1.01.


 


“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 Paying Agent.


 


12

















 


“Fee
Letters” means, collectively, the Joint Fee Letter and the Paying
Agency Fee Letter.


 


“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 that is not a Domestic
Subsidiary.


 


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


 


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


 


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


 


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


 


“Guarantee”
means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the “primary obligor”)
in any manner, whether directly or indirectly, and including any obligation of
such Person, direct or indirect, (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation, (ii) to purchase or lease property, securities or services for
the purpose of assuring the obligee in respect of such Indebtedness or other
obligation of the payment or performance of such Indebtedness or other
obligation, (iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, or (iv) entered into for the purpose of
assuring in any other manner the obligee in respect of such Indebtedness or
other obligation of the payment or performance thereof or to protect such
obligee against loss in respect thereof (in whole or in part), or (b) any
Lien on any assets of such Person securing any Indebtedness or other obligation
of the primary obligor, 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 


 


13

















 


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.


 


“Guarantors”
means, collectively, the Subsidiaries of the Borrower party to the Guaranty as of the date hereof, and each
other Subsidiary of the Borrower
that shall be required to execute and deliver a guaranty or guaranty supplement
pursuant to Section 6.12.


 


“Guaranty”
means, collectively, the Guaranty dated as of even date herewith made by the
Guarantors in favor of the Secured Parties, together with each other guaranty
and guaranty supplement delivered pursuant to Section 6.12.


 


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


 


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


 


“Immaterial Subsidiary” means (a) any Qualified Captive
Insurance Subsidiary, (b) any Domestic Subsidiary of the Borrower
designated as an “Immaterial Subsidiary” which has assets with a book
value of $1,000,000 or less and annual revenues of $1,000,000 or less; provided
that all Domestic Subsidiaries so designated as Immaterial Subsidiaries
(excluding all Qualified Captive Insurance Subsidiaries) may not have at
any time, in the aggregate, assets with a book value exceeding $5,000,000 or
annual revenues exceeding $5,000,000, and (c) any Foreign Subsidiary of
the Borrower designated as an “Immaterial Subsidiary” which has assets
with a book value of $5,000,000 or less and annual revenues of $5,000,000 or less.
All of the Immaterial Subsidiaries as of the Closing Date are listed on Schedule 5.13
and designated thereon as “Immaterial Subsidiaries”.


 


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


 


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


 


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


 


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


 


14
















 


(d)                                 all obligations of
such Person to pay the deferred purchase price of property or services (other
than trade accounts payable in the ordinary course of business and not past due
for more than 90 days or which are being contested in good faith and for which
adequate reserves have been established and reported 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;


 


(f)                                    all Attributable
Indebtedness in respect of Capitalized Leases and Synthetic Lease Obligations
of such Person and all Synthetic Debt of such Person;


 


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


 


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


 


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


 


“Indemnified Taxes”  means Taxes other
than Excluded Taxes.


 


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


 


“Information” has the meaning
specified in Section 10.07.


 


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


 


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


 


(a)                                  any Interest Period
that would otherwise end on a day that is not a Business Day shall be extended
to the next succeeding Business Day unless such Business Day 


 


15

















 


falls in another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;


 


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


 


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


 


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


 


“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 applicable L/C Issuer
and the Borrower (or any Subsidiary) or in favor of the applicable L/C Issuer
and relating to such Letter of Credit.


 


“Joint Fee Letter” means the letter
agreement, dated October 24, 2007, among the Borrower, the
Co-Administrative Agents and the Arrangers.


 


“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.


 


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


 


16

















 


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


 


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


 


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


 


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


 


“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 Paying Agent.


 


“Letter of Credit” means any standby
letter of credit issued hereunder and shall include the Existing Letters of
Credit. 


 


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


 


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


 


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


 


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


 


“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
Revolving Credit Loan or a Swing Line Loan.


 


17

















 


“Loan Documents” means, collectively, (a) this
Agreement, (b) the Revolving Credit Notes, (c) the Guaranty, (d) the
Security Documents, (e) the Fee Letters, (f) each Issuer Document, (g) any
AutoBorrow Agreement, (h) each Secured Hedge Agreement, and (i) each
Secured Cash Management Agreement; provided that for purposes of the
definition of “Material Adverse Effect” and Articles IV through IX,
“Loan Documents” shall not include Secured Hedge Agreements or Secured
Cash Management Agreements.


 


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


 


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


 


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


 


“Maturity Date” means November 29,
2012; provided, however, that, if such date is not a Business
Day, the Maturity Date shall be the next preceding Business Day.


 


“Measurement Period” means, at any
date of determination, the most recently completed four fiscal quarters of the
Borrower for which financial statements have been or are concurrently delivered
by the Borrower pursuant to Section 6.01(a) or (b), as
the case may be.


 


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


 


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


 


“Non-Recourse Indebtedness” means
Indebtedness as to which (a) no Loan Party (i)  provides credit
support of any kind (including any undertaking, agreement or instrument that
would constitute Indebtedness) or (ii) is directly or indirectly liable as
a guarantor or otherwise, (b) no default with respect thereto (including
any rights that the holders thereof may have to take enforcement action
against any Subsidiary which is not a Loan Party) would permit, upon notice,
lapse of time or both, any holder of any other Indebtedness (other than the
Indebtedness incurred hereunder) of the Borrower or any of its Subsidiaries to
declare a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity, and (c) the holders
thereof have been notified in writing that they will not have any recourse to
the stock or assets of the Loan Parties.


 


“NPL” means the National Priorities
List under CERCLA.


 


18

















 


“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 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.


 


“Oilfield Intellectual Property” means
(a) the services provided by the Loan Parties and/or their Subsidiaries,
including, but not limited to, well servicing, work-over, and drilling
services; (b) all data and/or other information generated or obtained by
or on behalf of the Loan Parties and/or their Subsidiaries in connection with
the provision of such services; (c) all measurement, acquisition,
manipulation, and display and all devices and systems used or useful in
measuring, acquiring, manipulating, displaying, and/or otherwise dealing with
such data or information; and (d) all U.S. and foreign patents and trademarks,
U.S. and foreign applications for patents and trademarks, trade secrets,
confidential business information, U.S. and foreign copyrights, and any other
intellectual property or intellectual property right associated with items
described in clauses (a) through (c) above.


 


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


 


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


 


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


 


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


 


19

















 


“Paying Agency Fee Letter” means the
letter agreement, dated October 24, 2007, between the Borrower and the
Paying Agent.


 


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


 


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


 


“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.


 


“Permitted Acquisition” has the
meaning set forth in Section 7.03(h).


 


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


 


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


 


“Platform” has the meaning specified in
Section 6.02.


 


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


 


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


 


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


 


“Qualified Captive Insurance Subsidiary”
means any Subsidiary of the Borrower which meets the following requirements:


 


(a)                                  such Subsidiary is
organized for the sole purpose of providing insurance coverage for the Loan
Parties and their Subsidiaries (the “Insurance Business”);


 


(b)                                 such Subsidiary has no
material assets other than assets related to the Insurance Business and
conducts no business other than the Insurance Business; and


 


(c)                                  the Loan Parties’
Investment in such Subsidiary meets the requirements under Section 7.03.


 


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


 


20

















 


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


 


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


 


“Request for Credit Extension” means (a) with
respect to a Borrowing, conversion or continuation of Revolving Credit Loans, a
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, or if an AutoBorrow Agreement is in effect with respect to
the applicable Swing Line Lender, any transfer of funds pursuant to such
AutoBorrow Agreement.


 


“Required Lenders” means, as of any
date of determination, Lenders holding more than 50% of the sum of the (a) Total
Outstandings (with the aggregate amount of each Lender’s risk participation and
funded participation in L/C Obligations and Swing Line Loans being deemed “held”
by such Lender for purposes of this definition) and (b) aggregate unused
Revolving Credit Commitments; provided that the unused Revolving Credit
Commitment of, and the portion of the Total Outstandings held or deemed held
by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.


 


“Responsible Officer” means the chief
executive officer, president, chief financial officer, treasurer, assistant
treasurer or controller of a Loan Party and any other officer of the applicable
Loan Party so designated by any of the foregoing officers in a notice to the
Paying Agent.   


 


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


 


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


 


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


 


21

















 


“Revolving Credit Facility” means, at
any time, the aggregate amount of the Lenders’ Revolving Credit Commitments at
such time. On the Closing Date, the amount of the Revolving Credit Facility is
$400,000,000.


 


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


 


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


 


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


 


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


 


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


 


“Secured Hedge Agreement” means any
interest rate or foreign exchange Swap Contract permitted under Article VII
that is entered into by and between the Borrower and any Hedge Bank.


 


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


 


“Security Agreement” means the
Security Agreement, dated as of even date herewith, among the Borrower, the
Guarantors, and the Paying Agent.


 


“Security Documents” means,
collectively, the Security Agreement, vessel mortgages, collateral assignments,
security agreement supplements, security agreements, pledge agreements or other
similar agreements delivered to the Paying Agent pursuant to Section 6.12,
and each of the other agreements, instruments or documents that creates or
purports to create a Lien in favor of the Paying Agent for the benefit of the
Secured Parties.


 


“Senior Notes” means the 8.375% Senior
Notes due 2014 issued by the Borrower pursuant to the Senior Notes Indenture.


 


“Senior Notes Indenture” means the
Indenture dated November 29, 2007, among the Borrower, the guarantors
named therein and The Bank of New York Trust Company, N.A., as trustee.


 


“Shareholders’ Equity” means, as of
any date of determination, consolidated shareholders’ equity of the Borrower
and its Subsidiaries as of that date determined in accordance with GAAP.


 


22

















 


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


 


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


 


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


 


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


 


23

















 


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


 


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


 


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


 


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


 


“Swing Line Sublimit” means, with
respect to each Swing Line Lender, an amount equal to the lesser of (a) $20,000,000
and (b) an amount equal to 50% of the Revolving Credit Facility. The
Swing Line Sublimits are part of, and not in addition to, the Revolving
Credit Facility.


 


“Synthetic Debt” means, with respect
to any Person as of any date of determination thereof, all obligations of such
Person in respect of transactions entered into by such Person that are intended
to function primarily as a borrowing of funds (including any minority interest
transactions that function primarily as a borrowing) but are not otherwise
included in the definition of “Indebtedness” or as a liability on the
consolidated balance sheet of such Person and its Subsidiaries in accordance
with GAAP.


 


“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 (including sale and leaseback transactions), in each
case, creating obligations that do not appear on the balance sheet of such
Person but which, upon the application of any Debtor Relief Laws to such
Person, would be characterized as the indebtedness of such Person (without
regard to accounting treatment).


 


“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.


 


“Threshold Amount” means $30,000,000.


 


“Total Capitalization” means, as of
any date of determination, the sum of Consolidated Funded Indebtedness as of
such date and Consolidated Net Worth as of such date.


 


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


 


“Total Swing Line Sublimit” means an
amount equal to the lesser of (a) $40,000,000 and (b) the Revolving
Credit Facility. The Total Swing Line Sublimit is part of, and not in
addition to, the Revolving Credit Facility.


 


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


 


24

















 


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


 


“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.


 


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


 


“Wells Fargo” means Wells Fargo Bank,
National Association and its successors.


 


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


 


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


 


25

















 


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


 


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


 


1.03                        Accounting Terms.


 


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


 


(b)                                 Changes in GAAP.
If at any time any change in GAAP would affect the computation of any financial
ratio or requirement set forth in any Loan Document, and either the Borrower or
the Required Lenders shall so request, the Paying 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 Paying 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)                                  Consolidation of
Variable Interest Entities. 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 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.


 


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


 


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


 


26

















 


1.06                        Letter of
Credit Amounts. Unless otherwise specified herein, the amount of a Letter
of Credit at any time shall be deemed to be the 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 maximum
stated amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect at such time.


 


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


 


1.08                        Responsible
Officers. 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.


 


ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS


 


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


 


27

















 


2.02                        Borrowings,
Conversions and Continuations of Loans.


 


(a)                                  Each Revolving Credit
Borrowing, each conversion of Revolving Credit Loans from one Type to the
other, and each continuation of Eurodollar Rate Loans shall be made upon the
Borrower’s irrevocable notice to the Paying Agent, which may be given by
telephone. Each such notice must be received by the Paying Agent not later than
10:00 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any
conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the
requested date of any Borrowing of Base Rate Loans. Each telephonic notice by
the Borrower pursuant to this Section 2.02(a) must be
confirmed promptly by delivery to the Paying Agent of a written Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower. Each
Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be
in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Except as provided in Sections 2.03(c) and 2.04(c),
each Borrowing of or conversion to Base Rate Loans shall be in a principal
amount of $1,000,000 or a whole multiple of $100,000 in excess thereof. Each
Loan Notice  (whether telephonic or
written) shall specify (i) whether the Borrower is requesting a Revolving
Credit Borrowing, a conversion of Revolving Credit Loans from one Type to the
other, or a continuation of Eurodollar Rate Loans, (ii) the requested date
of the Borrowing, conversion or continuation, as the case may be (which
shall be a Business Day), (iii) the principal amount of Loans to be
borrowed, converted or continued, (iv) the Type of Loans to be borrowed or
to which existing Revolving Credit Loans are to be converted, and (v) if
applicable, the duration of the Interest Period with respect thereto. If the
Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower
fails to give a timely notice requesting a conversion or continuation, then the
Revolving Credit Loans shall be made as, or converted to, Base Rate Loans. Any
such automatic conversion to Base Rate Loans shall be effective as of the last
day of the Interest Period then in effect with respect to the applicable
Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to,
or continuation of Eurodollar Rate Loans in any such Loan Notice, but fails to
specify an Interest Period, it will be deemed to have specified an Interest
Period of one month. Notwithstanding anything to the contrary herein, a Swing
Line Loan may not be converted to a Eurodollar Rate Loan.


 


(b)                                 Following receipt of a
Loan Notice, the Paying Agent shall promptly notify each Lender of the amount
of its Applicable Percentage of the Revolving Credit Loans, and if no timely
notice of a conversion or continuation is provided by the Borrower, the Paying
Agent shall notify each Lender of the details of any automatic conversion to
Base Rate Loans described in Section 2.02(a). Each Lender shall
make the amount of its Loan available to the Paying Agent in immediately
available funds at the Paying Agent’s Office not later than 1:00 p.m. on
the Business Day specified in the applicable 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
Paying Agent shall make all funds so received available to the Borrower in like
funds as received by the Paying 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 Paying Agent by the
Borrower; provided, however, that if, on the date a Loan Notice
with respect to a Revolving Credit Borrowing is given by the Borrower, there
are L/C Borrowings outstanding, then the proceeds of such Revolving Credit
Borrowing, first, shall be applied to the 


 


28

















 


payment in full of any such L/C Borrowings, and second, shall be
made available to the Borrower as provided above.


 


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


 


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


 


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


 


2.03                        Letters of Credit.


 


(a)                                  The Letter of
Credit Commitment.


 


(i)                                     Subject
to the terms and conditions set forth herein, (A) each 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 Commitment Expiration Date, to issue
Letters of Credit for the account of the Borrower or its Subsidiaries, and to
amend or extend Letters of Credit previously issued by it, in accordance with Section 2.03(b),
and (2) to honor drawings under the Letters of Credit; and (B) the
Lenders severally agree to participate in Letters of Credit issued for the
account of the Borrower 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 Revolving Credit
Facility, (y) the aggregate Outstanding Amount of the Revolving Credit Loans of
any Lender, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all L/C Obligations, plus such Lender’s Applicable Percentage
of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit. Each request by the
Borrower for the issuance or amendment of a Letter of Credit shall be deemed to
be a representation by the Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding sentence.
Within the foregoing limits, and subject to the terms and conditions hereof, the
Borrower’s ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Borrower may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed. All Existing Letters of Credit shall be deemed to have
been 


 


29

















 


issued pursuant hereto, and from and after
the Closing Date shall be subject to and governed by the terms and conditions
hereof.


 


(ii)                                  Neither
L/C Issuer shall issue any Letter of Credit if:


 


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


 


(B)                                the
expiry date of such requested Letter of Credit would occur more than twelve
months after the Letter of Credit Commitment Expiration Date, unless all the
Lenders have approved such expiry date. If the expiry date of any requested
Letter of Credit would occur after the Letter of Credit Commitment Expiration
Date, then on or before the Letter of Credit Commitment Expiration Date, the
Borrower shall Cash Collateralize such Letter of Credit.


 


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


 


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


 


(C)                                except
as otherwise agreed by the Paying Agent and such L/C Issuer, such Letter of
Credit is in an initial stated amount less than $500,000;


 


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


 


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


 


30

















 


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


 


(iv)                              The
applicable L/C Issuer shall not amend any Letter of Credit if such 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)                                 Neither
L/C Issuer shall be under an obligation to amend any Letter of Credit if (A) such
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)                              Each
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, and each L/C Issuer
shall have all of the benefits and immunities (A) provided to the Paying
Agent in Article IX with respect to any acts taken or omissions
suffered by such 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 “Paying Agent” as used in Article IX
included such L/C Issuer with respect to such acts or omissions, and (B) as
additionally provided herein with respect to each such L/C Issuer.


 


(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 applicable L/C Issuer (with a copy to
the Paying 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 applicable L/C Issuer and
the Paying Agent not later than 10:00 a.m. at least two Business Days (or
such later date and time as the Paying Agent and the applicable L/C Issuer may agree
in a particular instance in their sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of a
request for an initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the
applicable L/C Issuer:  (A) the
proposed issuance date of the requested Letter of Credit (which shall be a Business
Day); (B) the amount thereof; (C) the expiry date thereof; (D) the
name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case of any
drawing thereunder; (G) the purpose and nature of the requested Letter of
Credit; and (H) such other matters as the applicable L/C Issuer may require.
In the case of a request for an amendment 


 


31

















 


of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory
to the applicable L/C Issuer (1) the Letter of Credit to be amended; (2) the
proposed date of amendment thereof (which shall be a Business Day); (3) the
nature of the proposed amendment; and (4) such other matters as the
applicable L/C Issuer may require. Additionally, the Borrower shall
furnish to the applicable L/C Issuer and the Paying Agent such other documents
and information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the applicable L/C Issuer or the
Paying Agent may require.


 


(ii)                                  Promptly
after receipt of any Letter of Credit Application, the applicable L/C Issuer
will confirm with the Paying Agent (by telephone or in writing) that the Paying
Agent has received a copy of such Letter of Credit Application from the
Borrower and, if not, the applicable L/C Issuer will provide the Paying Agent
with a copy thereof. Unless the applicable L/C Issuer has received written
notice from any Lender, the Paying 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 applicable 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 applicable 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 applicable 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
applicable 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 applicable 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 applicable L/C Issuer, the Borrower
shall not be required to make a specific request to the applicable 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 applicable L/C Issuer to permit the extension of such Letter of
Credit at any time to an expiry date not later than twelve months after the
Letter of Credit Commitment Expiration Date (subject to the Cash
Collateralization requirements of Section 2.03(a)(ii)); provided,
however, that the applicable L/C Issuer shall not permit any such
extension if (A) such L/C Issuer has determined that it would not be
permitted, or would have no 


 


32

















 


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 from the Paying 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 applicable L/C
Issuer not to permit such extension.


 


(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 applicable L/C Issuer will also deliver to the Borrower and the Paying
Agent a true and complete copy of such Letter of Credit or amendment.


 


(c)                                  Drawings and
Reimbursements; Funding of Participations.


 


(i)                                     Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the applicable L/C Issuer shall notify the
Borrower and the Paying Agent thereof. Not later than 10:00 a.m. on the
date of any payment by the applicable L/C Issuer under a Letter of Credit (each
such date, an “Honor Date”), the Borrower shall reimburse the applicable
L/C Issuer through the Paying Agent in an amount equal to the amount of such
drawing. If the Borrower fails to so reimburse the applicable L/C Issuer by
such time, the Paying Agent shall promptly notify each Lender of the Honor
Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”),
and the amount of such Lender’s Applicable Percentage thereof. In such event,
the Borrower shall be deemed to have requested a Revolving Credit Borrowing of
Base Rate Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02
for the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Revolving Credit Commitments and the conditions set
forth in Section 4.02 (other than the delivery of a Loan Notice). Any
notice given by the applicable L/C Issuer or the Paying 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 to the Paying Agent for the account of the applicable L/C
Issuer at the Paying Agent’s Office in an amount equal to its Applicable
Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the
Business Day specified in such notice by the Paying 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 Loan to the
Borrower in such amount. The Paying Agent shall remit the funds so received to
the applicable L/C Issuer.


 


33
















 


(iii)                               With
respect to any Unreimbursed Amount that is not fully refinanced by a Revolving
Credit Borrowing of Base Rate Loans because the conditions set forth in Section 4.02
cannot be satisfied or for any other reason, the Borrower shall be deemed to
have incurred from the applicable 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 Paying Agent for
the account of the applicable 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 Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(c) to
reimburse the applicable 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 applicable L/C Issuer.


 


(v)                                 Each
Lender’s obligation to make Revolving Credit Loans or L/C Advances to reimburse
the applicable 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 applicable L/C Issuer, the Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make
Revolving Credit Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 4.02 (other than
delivery by the Borrower of a Loan Notice). No such making of an L/C Advance
shall relieve or otherwise impair the obligation of the Borrower to reimburse
the applicable L/C Issuer for the amount of any payment made by such L/C Issuer
under any Letter of Credit, together with interest as provided herein.


 


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


 


34

















 


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


 


(d)                                 Repayment of
Participations.


 


(i)                                     At
any time after the applicable 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 Paying
Agent receives for the account of the applicable 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 Paying Agent), the Paying Agent will distribute to such
Lender its Applicable Percentage thereof in the same funds as those received by
the Paying Agent.


 


(ii)                                  If
any payment received by the Paying Agent for the account of the applicable 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 applicable L/C Issuer
in its discretion), each Lender shall pay to the Paying Agent for the account
of the applicable L/C Issuer its Applicable Percentage thereof on demand of the
Paying Agent, plus interest thereon from the date of such demand to the
date such amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Lenders
under this clause shall survive the payment in full of the Obligations and the termination
of this Agreement.


 


(e)                                  Obligations
Absolute. The obligation of the Borrower to reimburse the applicable 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 applicable 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 


 


35

















 


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 applicable 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 applicable L/C
Issuer under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law; or


 


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


 


The Borrower shall promptly examine a copy of
each Letter of Credit and each amendment thereto that is delivered to it and,
in the event of any claim of noncompliance with the Borrower’s instructions or
other irregularity, the Borrower will immediately notify the applicable L/C
Issuer. The Borrower shall be conclusively deemed to have waived any such claim
against the applicable 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 applicable 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 applicable
L/C Issuer, the Paying Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the applicable 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 applicable L/C
Issuer, the Paying Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the applicable L/C Issuer shall be
liable or responsible for any of the matters described in clauses (i) through
(v) of Section 2.03(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrower may have
a claim against the applicable L/C Issuer, and the applicable 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 applicable 


 


36

















 


L/C Issuer’s willful misconduct or gross negligence or the applicable
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 applicable 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 applicable 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.


 


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


 


(h)                                 Applicability of
ISP. Unless otherwise expressly agreed by the applicable L/C Issuer and the
Borrower when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), the rules of the ISP shall
apply to each standby Letter of Credit.


 


(i)                                     Letter of
Credit Fees. The Borrower shall pay to the Paying Agent for the account of
each Lender in accordance with its Applicable Percentage a Letter of Credit fee
(the “Letter of Credit Fee”) for each Letter of Credit equal to the
Applicable Rate with respect to Letters of Credit times the daily amount
available to be drawn under such Letter of Credit. For purposes of computing
the daily amount available to be drawn under any Letter of Credit, the 


 


37

















 


amount of such Letter of Credit shall be determined in accordance with Section 1.06.
Letter of Credit Fees shall be (i) due and payable on the first Business
Day after the end of each 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 Commitment Expiration Date and thereafter on demand and
(ii) computed on a quarterly basis in arrears. If there is any change in
the Applicable Rate during any quarter, the daily amount available to be drawn
under each Letter of Credit shall be computed and multiplied by the Applicable
Rate with respect to Letters of Credit separately for each period during such
quarter that such Applicable Rate was in effect. Notwithstanding anything to
the contrary contained herein, upon the request of the Required Lenders, while
any Event of Default exists, all Letter of Credit Fees shall accrue at the
Default Rate.


 


(j)                                     Fronting Fee
and Documentary and Processing Charges Payable to L/C Issuer. The Borrower
shall pay directly to the applicable L/C Issuer for its own account a fronting
fee with respect to each Letter of Credit, at the rate per annum specified in
the Joint Fee Letter, computed on the daily amount available to be drawn under
such Letter of Credit on a quarterly basis in arrears. Such fronting fee 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 Commitment Expiration Date and thereafter on
demand. For purposes of computing the daily amount available to be drawn under
any Letter of Credit, the amount of such Letter of Credit shall be determined
in accordance with Section 1.06. In addition, the Borrower shall
pay directly to the applicable L/C Issuer for its own account the customary
issuance, presentation, amendment and other processing fees, and other standard
costs and charges, of the applicable L/C Issuer relating to letters of credit
as from time to time in effect. Such customary fees and standard costs and
charges are due and payable on demand and are nonrefundable.


 


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


 


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


 


2.04                        Swing Line
Loans.


 


(a)                                  The Swing Line.
Subject to the terms and conditions set forth herein, and if an AutoBorrow
Agreement is in effect with respect to any Swing Line Lender, subject to the
terms and conditions of such AutoBorrow Agreement, each Swing Line Lender
agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04,
to make loans (each such loan, a “Swing Line Loan”) to the Borrower from
time to time on any Business Day during the Availability Period in an aggregate
amount not to exceed at any time outstanding the 


 


38

















 


amount of its Swing Line Sublimit, notwithstanding the fact that such
Swing Line Loans, when aggregated with the Applicable Percentage of the
Outstanding Amount of Revolving Credit Loans and L/C Obligations of either
Lender acting as Swing Line Lender, may exceed the amount of such Lender’s
Revolving Credit Commitment; provided, however, that after giving
effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed
the Revolving Credit Facility at such time, and (ii) the aggregate
Outstanding Amount of the Revolving Credit Loans of any Lender at such time, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations at such time, plus such Lender’s Applicable Percentage of
the Outstanding Amount of all Swing Line Loans at such time shall not exceed
such Lender’s Revolving Credit Commitment, and provided  further
that the Borrower shall not use the proceeds of any Swing Line Loan to
refinance any outstanding Swing Line Loan. Within the foregoing limits, and
subject to the other terms and conditions hereof, and if an AutoBorrow
Agreement is in effect with respect to any Swing Line Lender, subject to the
terms and conditions of such AutoBorrow Agreement, the Borrower may borrow
under this Section 2.04, prepay under Section 2.05, and
reborrow under this Section 2.04. No Lender shall have any rights
or obligations under any AutoBorrow Agreement, but each Lender shall have the
obligation to purchase and fund risk participations in the Swing Line Loans and
to refinance Swing Line Loans as provided below. Each Swing Line Loan shall
bear interest only at a rate based on the Base Rate. Immediately upon the
making of a Swing Line Loan, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the applicable 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.


 


(i)                                     If
an AutoBorrow Agreement is in effect with respect to any Swing Line Lender,
each Swing Line Borrowing from such Swing Line Lender, and each prepayment
thereof, shall be made as provided in such AutoBorrow Agreement.


 


(ii)                                  In
all other cases, each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the applicable Swing Line Lender and the Paying Agent,
which may be given by telephone. Each such notice must be received by the
applicable Swing Line Lender and the Paying Agent not later than 12:00 noon on
the requested borrowing date, and shall specify (x) the amount to be borrowed,
which shall be a minimum of $100,000, and (y) the requested borrowing date,
which shall be a Business Day. Each such telephonic notice must be confirmed
promptly by delivery to the applicable Swing Line Lender and the Paying Agent
of a written Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of the Borrower. Promptly after receipt by the applicable
Swing Line Lender of any telephonic Swing Line Loan Notice, the applicable
Swing Line Lender will confirm with the Paying Agent (by telephone or in
writing) that the Paying Agent has also received such Swing Line Loan Notice
and, if not, the applicable Swing Line Lender will notify the Paying Agent (by
telephone or in writing) of the contents thereof. Unless the applicable Swing
Line Lender has received notice (by telephone or in writing) from the Paying
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 such Swing Line
Lender not to 


 


39

















 


make such Swing Line Loan as a result of the
limitations set forth in the first proviso to the first sentence of Section 2.04(a),
or (B) that one or more of the applicable conditions specified in Article IV
is not then satisfied, then, subject to the terms and conditions hereof, the
applicable Swing Line Lender will, not later than 3:00 p.m. on the
borrowing date specified in such Swing Line Loan Notice, make the amount of its
Swing Line Loan available to the Borrower at its office by crediting the
account of the Borrower on the books of the applicable Swing Line Lender in
immediately available funds.


 


(c)                                  Refinancing of
Swing Line Loans.


 


(i)                                     Each
Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably authorizes each Swing Line
Lender to so request on its behalf), that each Lender make a Base Rate Loan in
an amount equal to such Lender’s Applicable Percentage of the amount of such
Swing Line Lender’s Swing Line Loans then outstanding. Such request shall be
made in writing (which written request shall be deemed to be a Loan Notice for
purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the
Revolving Credit Facility and the conditions set forth in Section 4.02.
The applicable Swing Line Lender shall furnish the Borrower with a copy of the
applicable Loan Notice promptly after delivering such notice to the Paying
Agent. Each Lender shall make an amount equal to its Applicable Percentage of
the amount specified in such Loan Notice available to the Paying Agent in
immediately available funds for the account of the applicable Swing Line Lender
at the Paying Agent’s Office not later than 1:00 p.m. on the day specified
in such 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
Loan to the Borrower in such amount. The Paying Agent shall remit the funds so
received to the applicable Swing Line Lender.


 


(ii)                                  If
for any reason any Swing Line Loan cannot be refinanced by such a Revolving
Credit Borrowing in accordance with Section 2.04(c)(i), the request
for Base Rate Loans submitted by the applicable Swing Line Lender as set forth
herein shall be deemed to be a request by such Swing Line Lender that each of
the Lenders fund its risk participation in the relevant Swing Line Loan and
each Lender’s payment to the Paying Agent for the account of the applicable
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 Paying Agent for the account of the
applicable 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 applicable Swing Line
Lender shall be entitled to recover from such Lender (acting through the Paying
Agent), on demand, such amount with interest thereon for the period from the
date such 


 


40

















 


payment is required to the date on which such
payment is immediately available to the applicable Swing Line Lender at a rate
per annum equal to the greater of the Federal Funds Rate and a rate determined
by the applicable Swing Line Lender in accordance with banking industry rules on
interbank compensation, plus any administrative, processing or similar fees
customarily charged by the applicable Swing Line Lender in connection with the
foregoing. If such Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lender’s Loan included in
the relevant Borrowing or funded participation in the relevant Swing Line Loan,
as the case may be. A certificate of the applicable Swing Line Lender
submitted to any Lender (through the Paying Agent) with respect to any amounts
owing under this clause (iii) shall be conclusive absent manifest error.


 


(iv)                              Each
Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall
be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the applicable 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 Revolving Credit Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 4.02. No such
funding of risk participations shall relieve or otherwise impair the obligation
of the Borrower to repay Swing Line Loans, together with interest as provided
herein.


 


(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 applicable Swing Line Lender receives any payment on
account of such Swing Line Loan, such Swing Line Lender will distribute to such
Lender its Applicable Percentage thereof in the same funds as those received by
such Swing Line Lender.


 


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


 


41

















 


(e)                                  Interest for
Account of Swing Line Lenders. Each Swing Line Lender shall be responsible
for invoicing the Borrower for interest on such Swing Line Lender’s Swing Line
Loans (provided that any failure of a Swing Line Lender to provide an
invoice for interest on Swing Line Loans shall not release the Borrower from
its obligation to pay such interest). Until each Lender funds its Base Rate
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
applicable Swing Line Lender.


 


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


 


(g)                                 Termination of
Swing Line Sublimit. Each Swing Line Lender may terminate and/or
suspend its Swing Line Sublimit in accordance with any applicable AutoBorrow Agreement.



 


2.05                        Prepayments.


 


(a)                                  Optional.


 


(i)                                     Subject
to the last sentence of this Section 2.05(a)(i), the Borrower may,
upon notice to the Paying Agent, at any time or from time to time voluntarily
prepay Revolving Credit Loans in whole or in part without premium or
penalty; provided that (A) such notice must be received by the
Paying Agent not later than 10:00 a.m. (1) three Business Days prior
to any date of prepayment of Eurodollar Rate Loans and (2) on the date of
prepayment of Base Rate Loans; (B) any prepayment of Eurodollar Rate Loans
shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000
in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $100,000 in excess
thereof or, in each case, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans
are to be prepaid, the Interest Period(s) of such Loans. The Paying Agent will
promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender’s ratable portion of such prepayment. If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all
accrued interest on the amount prepaid, together with any additional amounts
required pursuant to Section 3.05. Each prepayment shall be paid to
the Lenders in accordance with their respective Applicable Percentages. 


 


(ii)                                  The
Borrower may, upon notice to the Swing Line Lender (with a copy to the Paying
Agent), at any time or from time to time, voluntarily prepay Swing Line Loans
in whole or in part without premium or penalty; provided that (A) such
notice must be received by the Swing Line Lender and the Paying Agent not later
than 12:00 noon on the date of the prepayment, and (B) any such prepayment
shall be in a minimum 


 


42

















 


principal amount of $100,000. Each such
notice shall specify the date and amount of such prepayment. If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein.


 


(b)                                 Mandatory. If
for any reason the Total Outstandings at any time exceed the Revolving Credit
Facility at such time, the Borrower shall immediately prepay Revolving Credit
Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C
Obligations (other than the L/C Borrowings) in an aggregate amount equal to
such excess. Prepayments of the Revolving Credit Facility made pursuant to this
Section 2.05(b), first, shall be applied ratably to the L/C
Borrowings and the Swing Line Loans, second, shall be applied ratably to
the outstanding Revolving Credit Loans, and, third, shall be used to
Cash Collateralize the remaining L/C Obligations. Upon the drawing of any
Letter of Credit that has been Cash Collateralized, the funds held as Cash
Collateral shall be applied (without any further action by or notice to or from
the Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or
the Lenders, as applicable.


 


2.06                        Termination
or Reduction of Commitments.


 


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


 


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


 


(c)                                  Application of
Commitment Reductions; Payment of Fees. The Paying Agent will promptly
notify the Lenders of any termination or reduction of the Letter of Credit
Sublimit, the Total Swing Line Sublimit or the Revolving Credit Commitment
under this Section 2.06. Upon any reduction of the Revolving Credit
Commitments, the Revolving Credit Commitment of each Lender shall be reduced by
such Lender’s Applicable Percentage of such reduction amount. Upon any
reduction of the Total Swing Line Sublimit, each Swing Line 


 


43

















 


Lender’s Swing Line Sublimit shall be reduced by 50% of such reduction
amount. All fees in respect of the Revolving Credit Facility accrued until the
effective date of any termination of the Revolving Credit Facility shall be
paid on the effective date of such termination.


 


2.07                        Repayment
of Loans.


 


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


 


(b)                                 Swing Line Loans.
If an AutoBorrow Agreement is in effect with respect to any Swing Line Lender,
the Borrower shall repay each Swing Line Loan of such Swing Line Lender on the
earlier to occur of (i) the date required by such AutoBorrow Agreement, (ii) demand
therefor by such Swing Line Lender and (iii) the Maturity Date. In all
other cases, the Borrower shall repay each Swing Line Loan on the earlier to
occur of (i) three (3) Business Days after demand therefor if no
Default exists, and otherwise upon demand therefor, by the applicable Swing
Line Lender and (ii) the Maturity Date.


 


2.08                        Interest.


 


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


 


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


 


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


 


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


 


44

















 


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


 


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


 


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


 


(a)                                  Commitment Fee.
The Borrower shall pay to the Paying Agent for the account of each Lender in
accordance with its Applicable Percentage, a commitment fee equal to the
Applicable Fee Rate times the actual daily amount by which the Revolving
Credit Facility exceeds the sum of (i) the Outstanding Amount of Revolving
Credit Loans and (ii) the Outstanding Amount of L/C Obligations. The
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 last day of the
Availability Period. The commitment fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Fee Rate during any
quarter, the actual daily amount shall be computed and multiplied by the
Applicable Fee Rate separately for each period during such quarter that such
Applicable Fee Rate was in effect.


 


(b)                                 Other Fees.


 


(i)                                     The
Borrower shall pay to the Arrangers and the Paying Agent for their own
respective accounts fees in the amounts and at the times specified in the Fee
Letters. 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.


 


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


 


(a)                                  All computations of
interest for Base Rate Loans and other Obligations that bear interest at the
Base Rate when, in any such case, the Base Rate is determined by Bank of
America’s “prime 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). 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 


 


45

















 


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 Paying 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 Leverage Ratio as calculated by the Borrower as of any applicable
date was inaccurate and (ii) a proper calculation of the Consolidated
Leverage Ratio would have resulted in higher pricing for such period, the
Borrower shall immediately and retroactively be obligated to pay to the Paying
Agent for the account of the applicable Lenders, promptly on demand by the
Paying 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 Paying Agent or any
Lender, Swing Line Lender or 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 Paying Agent, or any Lender, Swing Line Lender or
L/C Issuer, as the case may be, under Section 2.03(c)(iii), 2.03(i) or
2.08(b) or under Article VIII. The Borrower’s
obligations under this paragraph shall survive the termination of the Aggregate
Commitments and the repayment of all other Obligations hereunder.


 


2.11                        Evidence
of Debt.


 


(a)                                  The Credit Extensions
made by each Lender shall be evidenced by one or more accounts or records
maintained by such Lender and by the Paying Agent in the ordinary course of
business. The accounts or records maintained by the Paying 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 Paying Agent in respect of such matters, the accounts and
records of the Paying Agent shall control in the absence of manifest error. Upon
the request of any Lender made through the Paying Agent, the Borrower shall
execute and deliver to such Lender (through the Paying Agent) a Revolving
Credit Note, which shall evidence such Lender’s Loans in addition to such
accounts or records. Each Lender may attach schedules to its Revolving
Credit Note and endorse thereon the date, Type (if applicable), amount and
maturity of its Loans and payments with respect thereto.


 


(b)                                 In addition to the
accounts and records referred to in Section 2.11(a), each Lender
and the Paying 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 Paying Agent and
the accounts and records of any Lender in respect of such matters, the accounts
and records of the Paying Agent shall control in the absence of manifest error.


 


46

















 


2.12                        Payments
Generally; Paying Agent’s Clawback.


 


(a)                                  General. All
payments to be made by the Borrower shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by the Borrower hereunder
shall be made to the Paying Agent, for the account of the respective Lenders to
which such payment is owed, at the Paying Agent’s Office in Dollars and in
immediately available funds not later than 2:00 p.m. on the date specified
herein. The Paying 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 Paying Agent after 2:00 p.m. shall be deemed
received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue. If any payment to be made by the Borrower shall come
due on a day other than a Business Day, payment shall be made on the next
following Business Day, and such extension of time shall be reflected on
computing interest or fees, as the case may be.


 


(b)                                 (i)                                     Funding by
Lenders; Presumption by Paying Agent. Unless the Paying Agent shall have
received notice from a Lender prior to the proposed date of any Borrowing of
Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans,
prior to 11:00 a.m. on the date of such Borrowing) that such Lender will
not make available to the Paying Agent such Lender’s share of such Borrowing,
the Paying Agent may assume that such Lender has made such share available
on such date in accordance with Section 2.02 (or, in the case of a
Borrowing of Base Rate Loans, that such Lender has made such share available in
accordance with and at the time required by Section 2.02) and may,
in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Paying Agent, then the applicable
Lender and the Borrower severally agree to pay to the Paying Agent forthwith on
demand such corresponding amount in immediately available funds with interest
thereon, for each day from and including the date such amount is made available
to the Borrower to but excluding the date of payment to the Paying Agent, at (A) in
the case of a payment to be made by such Lender, the greater of the Federal
Funds Rate and a rate determined by the Paying Agent in accordance with banking
industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the Paying Agent in
connection with the foregoing, and (B) in the case of a payment to be made
by the Borrower, the interest rate applicable to Base Rate Loans. If the
Borrower and such Lender shall pay such interest to the Paying Agent for the
same or an overlapping period, the Paying Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable Borrowing to the Paying Agent,
then the amount so paid shall constitute such Lender’s Loan included in such
Borrowing. Any payment by the Borrower shall be without prejudice to any claim
the Borrower may have against a Lender that shall have failed to make such
payment to the Paying Agent.


 


(ii)                                  Payments
by Borrower; Presumptions by Paying Agent. Unless the Paying Agent shall
have received notice from the Borrower prior to the time at which any payment
is due to the Paying Agent for the account of the Lenders or any Swing Line
Lender or L/C Issuer hereunder that the Borrower will not make such payment,
the Paying Agent may assume that the Borrower has made such 


 


47

















 


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


 


A notice of the Paying Agent to any Lender,
Swing Line Lender, L/C Issuer 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 Paying 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 Paying 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 Paying Agent shall
promptly return such funds (in like funds as received from such Lender) to such
Lender, without interest.


 


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


 


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


 


(f)                                    Insufficient
Funds. If at any time insufficient funds are received by and available to
the Paying 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.


 


48

















 


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


 


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


 


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


 


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


 


2.14                        Increase
in Revolving Credit Facility.


 


(a)                                  Request for
Increase. Provided there exists no Default, upon notice to the Paying Agent
(which shall promptly notify the Lenders), the Borrower may from time to
time, request an increase in the Revolving Credit Facility by an amount (for
all such requests) not exceeding $100,000,000; provided that (i) any
such request for an increase shall be in a 


 


49

















 


minimum amount of $25,000,000, and (ii) the Borrower may make
a maximum of three such requests. At the time of sending such notice, the
Borrower (in consultation with the Paying 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 Paying Agent within such time period
whether or not it agrees to increase its Revolving Credit Commitment and, if
so, whether by an amount equal to, greater than, or less than its Applicable
Percentage of such requested increase. Any Lender not responding within such
time period shall be deemed to have declined to increase its Revolving Credit
Commitment.


 


(c)                                  Notification by
Paying Agent; Additional Lenders. The Paying Agent shall notify the
Borrower, the Co-Administrative Agents 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 Paying Agent, the L/C
Issuers and the Swing Line Lenders (which approvals shall not be unreasonably
withheld), the Borrower may also invite additional Eligible Assignees to
become Lenders pursuant to a joinder agreement in form and substance
satisfactory to the Paying Agent and its counsel.


 


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


 


(e)                                  Conditions to
Effectiveness of Increase. As a condition precedent to such increase, the
Borrower shall deliver to the Paying Agent a certificate of each Loan Party
dated as of the Revolving Credit Increase Effective Date (in sufficient copies
for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying
and attaching the resolutions adopted by such Loan Party approving or
consenting to such increase, and (ii) in the case of the Borrower,
certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article V and the other
Loan Documents are true and correct on and as of the Revolving Credit Increase
Effective Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
as of such earlier date, and except that for purposes of this Section 2.14,
the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01,
and (B) no Default exists. The Borrower shall prepay any Revolving Credit
Loans outstanding on the Revolving Credit Increase Effective Date (and pay any
additional amounts required pursuant to Section 3.05) to the extent
necessary to keep the outstanding Revolving Credit Loans ratable with any
revised Applicable Percentages arising from any nonratable increase in the
Revolving Credit Commitments under this Section.


 


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


 


50

















 


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 Paying Agent, any 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 to the relevant Governmental
Authority in accordance with applicable law.


 


(c)                                  Indemnification by
the Borrower. The Borrower shall indemnify the Paying Agent, each Lender
and 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 Paying Agent, such Lender or 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 L/C Issuer (with a copy to the Paying Agent), or by the
Paying Agent on its own behalf or on behalf of a Lender or an L/C Issuer, shall
be conclusive absent manifest error.


 


(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 Paying 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 Paying 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 Paying Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower or the
Paying 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 Paying Agent, shall deliver such other documentation prescribed
by applicable 


 


51

















 


law or reasonably requested by the Borrower or the Paying Agent as will
enable the Borrower or the Paying Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements.


 


Without limiting the generality of the foregoing, if the Borrower is
resident for tax purposes in the United States, any Foreign Lender shall
deliver to the Borrower and the Paying 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 Paying 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, (A) a
certificate to the effect that such Foreign Lender is not (1) a “bank”
within the meaning of section 881(c)(3)(A) of the Code, (2) a “10
percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of
the Code, or (3) a “controlled foreign corporation” described in section 881(c)(3)(C) of
the Code and (B) 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.


 


(f)                                    Treatment of
Certain Refunds. If the Paying Agent, any Lender or any L/C Issuer
determines, in its sole discretion, that it has received a refund of any Taxes
or Other Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this
Section, it shall pay to the Borrower an amount equal to such refund (but only
to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the Paying
Agent, such Lender or 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 Paying Agent, such Lender or 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 Paying Agent, such
Lender or L/C Issuer if the Paying Agent, such Lender or L/C Issuer is required
to repay such refund to such Governmental Authority. This subsection shall
not be construed to require the Paying Agent, any Lender or 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.


 


52

















 


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


 


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


 


3.04                        Increased
Costs; Reserves on Eurodollar Rate Loans.


 


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


 


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


 


(ii)                                  subject
any Lender, Swing Line Lender or L/C Issuer to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any participation in a
Letter of Credit or any Eurodollar Rate Loan made by it, or change the basis of
taxation of payments to such Lender, Swing Line Lender or L/C Issuer in respect
thereof (except for Indemnified Taxes or Other Taxes 


 


53

















 


covered by Section 3.01 and the
imposition of, or any change in the rate of, any Excluded Tax payable by such
Lender, Swing Line Lender or L/C Issuer); or


 


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


 


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


 


(b)                                 Capital
Requirements. If any Lender or L/C Issuer determines that any Change in Law
affecting such Lender or L/C Issuer or any Lending Office of such Lender or
such Lender’s or 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 L/C Issuer’s capital or on the capital of such Lender’s, Swing
Line Lender’s or L/C Issuer’s holding company, if any, as a consequence of this
Agreement, the Revolving Credit Commitment 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 such L/C Issuer, to a level below that which such Lender or
L/C Issuer or such Lender’s or L/C Issuer’s holding company could have achieved
but for such Change in Law (taking into consideration such Lender’s or L/C
Issuer’s policies and the policies of such Lender’s or L/C Issuer’s holding
company with respect to capital adequacy), then from time to time the Borrower
will pay to such Lender or L/C Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender or L/C Issuer or such Lender’s
or L/C Issuer’s holding company for any such reduction suffered.


 


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


 


(d)                                 Delay in Requests.
Failure or delay on the part of any Lender or L/C Issuer to demand
compensation pursuant to the foregoing provisions of this Section shall
not constitute a waiver of such Lender’s or L/C Issuer’s right to demand such
compensation, provided that the Borrower shall not be required to
compensate a Lender or L/C Issuer pursuant to the foregoing provisions of this Section for
any increased costs incurred or reductions suffered more than nine months prior
to the date that such Lender or 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 


 


54

















 


Lender’s or L/C Issuer’s intention to claim compensation therefor
(except that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the nine-month period referred to above shall
be extended to include the period of retroactive effect thereof).


 


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


 


3.05                        Compensation
for Losses. Upon demand of any Lender (with a copy to the Paying 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; or


 


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


 


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


 


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


 


3.06                        Mitigation
Obligations; Replacement of Lenders.


 


(a)                                  Designation of a
Different Lending Office. If any Lender requests compensation under Section 3.04,
or the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to


 


55
















 


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
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.


 


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


 


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


 


ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


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


 


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


 


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


 


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


 


(iii)                               the
Security Documents duly executed by each Loan Party, together with:


 


(A)                              certificates
representing the Pledged Equity referred to therein accompanied by undated
stock powers executed in blank and instruments evidencing the Pledged Debt
indorsed in blank,


 


(B)                                proper
Financing Statements in form appropriate for filing under the Uniform Commercial
Code of all jurisdictions that the Paying Agent may deem necessary or
desirable in order to perfect the Liens 


 


56

















 


created under the Security Documents,
covering the Collateral described in the Security Documents,


 


(C)                                completed
requests for information, dated on or before the date of the initial Credit
Extension, listing all effective financing statements filed in the
jurisdictions referred to in clause (B) above that name any Loan
Party as debtor, together with copies of such other financing statements,


 


(D)                               evidence
that all other action that the Paying Agent may deem necessary or
desirable in order to permit the Paying Agent to promptly perfect the Liens
created under the Security Documents has been taken (including the endorsement
of notices on title documents and receipt of duly executed payoff letters and
UCC-3 termination statements);


 


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


 


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


 


(vi)                              a
favorable opinion of (A) Porter and Hedges, LLP, counsel to the Loan
Parties, (B) Wilmer Cutler Pickering Hale and Dorr, LLP, Maryland counsel
to the Borrower, and (C) Liskow and Lewis, Louisiana and maritime counsel
to the Loan Parties, each addressed to the Paying Agent, the Co-Administrative
Agents and each Lender (and for the benefit of their respective successors and
permitted assigns), as to the matters concerning the Loan Parties and the Loan
Documents as the Required Lenders may reasonably request;


 


(vii)                           a certificate
of a Responsible Officer of each Loan Party either (A) attaching copies of
all consents, licenses and approvals required in connection with the execution,
delivery and performance by such Loan Party and the validity against such Loan
Party of the Loan Documents to which it is a party, and such consents, licenses
and approvals shall be in full force and effect, or (B) stating that no
such consents, licenses or approvals are so required;


 


(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, and (B) that there has been no event or circumstance since
the date of 


 


57

















 


the Audited Financial Statements that has had
or could be reasonably expected to have, either individually or in the
aggregate, a Material Adverse Effect;


 


(ix)                                a
business plan and budget of the Borrower and its Subsidiaries on a consolidated
basis, including 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 an annual basis for each of the
Borrower’s fiscal years 2008 through and including 2012;


 


(x)                                   certificates
attesting to the Solvency of the Loan Parties, taken as a whole (after giving
effect to the repayment of existing Indebtedness to be repaid on the Closing
Date and the Indebtedness to be incurred on such date) from its chief financial
officer;


 


(xi)                                the
Borrower’s environmental watch list report as of September 30, 2007, in form and
substance reasonably satisfactory to the Agents;


 


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


 


(xiii)                          evidence
that the Existing Credit Agreement has been, or concurrently with the Closing
Date is being, terminated and all Liens securing obligations under the Existing
Credit Agreement have been, or concurrently with the Closing Date are being,
released; and


 


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


 


(b)                                 (i) All fees
required to be paid to the Paying Agent and the Arrangers on or before the
Closing Date shall have been paid and (ii) all fees required to be paid to
the Lenders on or before the Closing Date and for which notices have been
provided shall have been paid.


 


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


 


(d)                                 The Borrower shall
have received not less than $300,000,000 of net cash proceeds from the issuance
of the Senior Notes.


 


58

















 


(e)                                  The Closing Date
shall have occurred on or before December 31, 2007.


 


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 Paying Agent shall have received notice from such Lender
prior to the proposed Closing Date specifying its objection thereto.


 


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


 


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


 


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


 


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


 


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


 


ARTICLE V

REPRESENTATIONS AND WARRANTIES


 


The Borrower represents and warrants to the
Paying Agent, the Co-Administrative Agents and the Lenders that:


 


5.01                        Existence,
Qualification and Power. Each Loan Party and each of its Subsidiaries (a) is
duly organized or formed, validly existing and, as applicable, in good standing
under the Laws of the jurisdiction of its incorporation or organization, (b) has
all requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own or lease its assets and
carry on its business and (ii) execute, deliver and perform its 


 


59

















 


obligations under the Loan Documents, and (c) is duly qualified
and is licensed and, as applicable, in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license; except in each
case referred to in clause (b)(i) or (c), to the extent that failure to do
so could not reasonably be expected to have a Material Adverse Effect.


 


5.02                        Authorization;
No Contravention. The execution, delivery and performance by each Loan Party
of each Loan Document to which such Person is or is to be a party have been
duly authorized by all necessary corporate or other organizational action, and
do not and will not (a) contravene the terms of any of such Person’s
Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to
be made under (i) any Contractual Obligation to which such Person is a
party or affecting such Person or the properties of such Person or any of its
Subsidiaries (other than the Existing Credit Agreement and other documents
executed pursuant thereto to be terminated as contemplated by Section 4.01(a)(xiii)),
or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is
subject; or (c) violate any Law.


 


5.03                        Governmental
Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in
connection with (a) the execution, delivery or performance by, or
enforcement against, any Loan Party of this Agreement or any other Loan
Document, (b) the grant by any Loan Party of the Liens granted by it
pursuant to the Security Documents, (c) the perfection or maintenance of
the Liens created under the Security Documents (including the first priority
nature thereof) or (d) the exercise by the Paying Agent or any Lender of
its rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Security Documents, except for the authorizations,
approvals, actions, notices and filings which have been duly obtained, taken,
given or made and are in full force and effect and the filing of financing
statements, ship mortgages and other documents to be filed in order to perfect
the interest of the Paying Agent in the Collateral, and the payment of
customary filing fees with respect thereto.


 


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


 


5.05                        Financial
Statements; No Material Adverse Effect.


 


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


 


60

















 


commitments and Indebtedness that, in accordance with GAAP, would have
been required to have been included in a balance sheet (including the notes
thereto) as of the date thereof.


 


(b)                                 The unaudited
consolidated balance sheet of the Borrower and its Subsidiaries dated September 30,
2007, 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 the financial condition of the Borrower and its Subsidiaries as of the
date thereof and their results of operations for the period covered thereby,
subject, in the case of clauses (i) and (ii), to the absence of footnotes
and to normal year-end audit adjustments.


 


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


 


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


 


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


 


5.08                        Ownership
of Property; Liens; Investments. Each Loan Party and each of its
Subsidiaries has good and indefeasible 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.


 


5.09                        Environmental
Compliance.


 


(a)                                  There (i) are no
pending or, to the knowledge of the executive management of the Borrower,
threatened, claims against the Borrower or any Subsidiary under any
Environmental Laws, and, (ii) neither the Borrower nor any Subsidiary has
received any notice of alleged non-compliance with applicable Environmental
Laws or Environmental Permits which, in each case, could, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.


 


(b)                                 The Borrower and its
Subsidiaries hold all Environmental Permits (each of which is in full force and
effect) necessary for the operation of its business and for the use of any
property owned, leased, or otherwise operated by them, except for such
Environmental Permits 


 


61

















 


the failure to hold which could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


(c)                                  Except to the extent
the same could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, (i) none of the properties currently or
formerly owned or operated by any Loan Party or any of its Subsidiaries is
listed or proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list or is adjacent to any such property; (ii) there
are no and never have been any underground or above-ground storage tanks or any
surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous
Materials are being or have been treated, stored or disposed on any property
currently owned or operated by any Loan Party or any of its Subsidiaries or, to
the best of the knowledge of the Loan Parties, on any property formerly owned
or operated by any Loan Party or any of its Subsidiaries; (iii) there is
no asbestos or asbestos-containing material on any property currently owned or
operated by any Loan Party or any of its Subsidiaries; and (iv) Hazardous
Materials have not been released, discharged or disposed of on any property
currently or formerly owned or operated by any Loan Party or any of its
Subsidiaries.


 


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


 


5.10                        Insurance.
The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the
Borrower (other than a Qualified Captive Insurance Subsidiary), in such amounts,
with such deductibles and covering such risks as are prudent and customary in
the businesses in which the Borrower and its Subsidiaries are engaged.


 


5.11                        Taxes. The
Borrower and its Subsidiaries have filed all Federal, state and other material
tax returns and reports required to be filed, and have paid all Federal, state
and other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due
and payable, except those which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves
have been provided in accordance with GAAP. There is no proposed tax assessment
against the Borrower or any Subsidiary that would, if made, have a Material
Adverse Effect.


 


5.12                        ERISA
Compliance.


 


(a)                                  Except to the extent
the failure to do so could not reasonably be expected to have a Material
Adverse Effect, (i) each Plan is in compliance in all material respects
with the 


 


62

















 


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


 


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


 


(c)                                  Except for matters
that could not reasonably be expected to have a Material Adverse Effect, (i) no
ERISA Event has occurred or is reasonably expected to occur; (ii) 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); (iii) 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 Section 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (iv) neither
the Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Section 4069 or 4212(c) of ERISA.


 


(d)                                 The aggregate
actuarial present value of accumulated plan benefit liabilities of each Pension
Plan (determined utilizing the assumptions specified for funding purposes in
the most recent actuarial valuation for each such Pension Plan) did not, as of
the end of the most recent plan year, exceed the aggregate fair market value of
the assets of such Pension Plan by an amount that is material to the Borrower
and its Subsidiaries, taken as a whole. The aggregate actuarial present value
of all accumulated post-retirement benefit obligations of the Borrower and its
ERISA Affiliates (determined utilizing the assumptions used for purposes of
Statement of Financial Accounting Standards No. 106) under Plans which are
welfare benefit plans (as defined in Section 3(1) of ERISA), as of
the most recent valuation dates reflected in the Borrower’s annual financial
statements contained in the Borrower’s most recent Form 10-K, are
reflected on such financial statements in accordance with the Statement of Financial
Accounting Standards No. 106.


 


5.13                        Subsidiaries;
Equity Interests; Loan Parties. 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 non-assessable and are owned by a Loan Party in the amounts
specified on Part (a) of Schedule 5.13 free and clear of
all Liens except those created under the Security Documents or pursuant to the
Existing Credit Agreement and to be released as contemplated by Section 4.01(a)(xiii).
No Loan Party has any  equity
investments in any other corporation or entity other than those specifically
disclosed in Part (b) of Schedule 5.13. Set forth on Part (c) of



 


63

















 


Schedule 5.13
is a complete and accurate list of all Loan Parties, showing as of the Closing
Date (as to each Loan Party) the jurisdiction of its incorporation, the address
of its principal place of business and its U.S. taxpayer identification number.
Part (d) of Schedule 5.13 is a complete and accurate
list, as of the Closing Date, of the following information:  (i) the amount of all Guarantees of the
Borrower or any Subsidiary in respect of obligations of Foreign Subsidiaries, (ii) the
amount of all Indebtedness of Foreign Subsidiaries owed to the Borrower or any
other Subsidiary of the Borrower (other than a Foreign Subsidiary), and (iii) the
amount of all Investments by Loan Parties in any foreign Subsidiary or joint
venture formed to operate or provide services in a jurisdiction outside of the
United States.


 


5.14                        Margin
Regulations; Investment Company Act.


 


(a)                                  The Borrower is not
engaged and will not engage, principally or as one of its important activities,
in the business of 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. Following the application of the proceeds
of each Borrowing or drawing under each Letter of Credit, not more than 25% of
the value of the assets of the Loan Parties, taken as a whole, subject to the
provisions of Section 7.01 or Section 7.05 or subject
to any negative pledge or restriction upon transfer contained in any agreement
or instrument between the Borrower and any Lender or any Affiliate of any
Lender relating to Indebtedness and within the scope of Section 8.01(e) will
be margin stock.


 


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


 


5.15                        Disclosure.
The Borrower has disclosed to the Agents and the Lenders (including
disclosures made by way of the Borrower’s filings pursuant to The Securities
Exchange Act of 1934), all agreements, instruments and corporate or other
restrictions to which it or any of its Subsidiaries is subject, and all other
matters known to it, that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. Except as noted in the
following paragraph, no report, financial statement, certificate or other
written information furnished by or on behalf of any Loan Party to any Agent or
any Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder or under any other Loan
Document (in each case as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that,
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time and with respect to industry or market
information obtained from third parties, the Borrower represents only that the
Borrower has no reason to believe such information is not reliable.


 


The filing of the Borrower’s Annual Reports
on Form 10-K and Quarterly Reports on Form 10-Q with the SEC was
delayed due to the Borrower’s restatement and financial reporting process for
periods ending December 31, 2003, which began in March 2004. That
process was completed on October 19, 2006. The Borrower’s 2003 Financial
and Informational Report on 


 


64

















 


Form 8-K/A, filed with the SEC on October 26, 2006, included an
audited 2003 consolidated balance sheet which presented its financial condition
as of December 31, 2003 in accordance with GAAP. The Borrower did not
present other consolidated financial statements in accordance with GAAP as it
was unable to determine with sufficient certainty the appropriate period(s) in
2003 or before in which to record certain write-offs and write-downs that were
identified in its restatement process. The Borrower’s former registered public
accounting firm expressed an unqualified opinion that the 2003 balance sheet
fairly presented its financial condition as of December 31, 2003. The firm
also audited the other financial statements presented in the 2003 Financial and
Informational Report. It opined that the financial statements other than the
2003 balance sheet did not fairly present the Borrower’s financial condition or
results of operations or cash flows for the periods covered, in accordance with
GAAP. The 2003 Financial and Informational Report contains a full description
of the restatement and financial reporting process for periods prior to 2004. Lenders should not rely on any of the financial
statements contained in the 2003 Financial and Informational Report, other than
the 2003 balance sheet, as fairly presenting, for the periods covered, the
Borrower’s financial condition or results of operations or cash flows, in
accordance with GAAP. Any information set forth in the 2003 Financial
Information Report that incorporates or discusses information contained in the
financial statements is subject to the same caution. Agents and
Lenders should not rely on any of the Borrower’s previously filed annual
reports on Form 10-K or quarterly reports on Form 10-Q for the
periods that ended prior to and including September 30, 2003.


 


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


 


5.17                        Intellectual
Property; Licenses, Etc. Except where failure to do so could not reasonably
be expected to have a Material Adverse Effect, (i) 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 that are reasonably necessary for the
operation of their respective businesses, without conflict with the rights of
any other Person and (ii) to the best knowledge of the Borrower, no slogan
or other advertising device, product, process, method, substance, part or
other material now employed, or now contemplated to be employed, by the
Borrower or any of its Subsidiaries infringes upon any rights held by any other
Person. No claim or litigation regarding any of the foregoing is pending or, to
the best knowledge of the Borrower, threatened, which, either individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.


 


5.18                        Solvency. The
Borrower is, individually, and the Borrower and the other Loan Parties are, on
a consolidated basis, Solvent.


 


5.19                        Security
Documents. Subject to the
actions required by the second sentence of this Section 5.19, the
provisions of the Security Documents are effective to create in favor of the 


 


65

















 


Paying Agent for the benefit of the Secured Parties a legal, valid and
enforceable first priority Lien (subject to Liens permitted by Section 7.01
and to the limitations on perfection set forth in Section 5 of the
Security Agreement) on all right, title and interest of the respective Loan
Parties in the Collateral described therein. Except for filings to be completed
in connection with the closing of the transactions contemplated hereby and as
contemplated hereby and by the Security Documents, the possession of collateral
as to which a Lien may only be perfected by possession, the notation of
the interest of the Paying Agent on certificates of title with respect to
vehicles included in the Collateral and the filing of continuation statements
from time to time, no filing or other action will be necessary to perfect such
Liens.


 


ARTICLE VI

AFFIRMATIVE COVENANTS


 


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


 


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


 


(a)                                  as soon as available,
but in any event within 90 days after the end of each fiscal year of the
Borrower (commencing with the fiscal year ended December 31, 2007), 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, audited
and accompanied by a report and opinion of Grant Thornton LLP, or another
independent public accounting firm of nationally recognized standing reasonably
acceptable to the Required Lenders, 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;


 


(b)                                 as soon as available,
but in any event within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower (commencing with the fiscal
quarter ended March 31, 2008), 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, certified by the
chief executive officer, chief financial officer, treasurer or controller of
the Borrower as fairly presenting the financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries in accordance
with GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes; and


 


(c)                                  as soon as available,
but in any event at least before the end of each fiscal year of the Borrower,
an annual business plan and budget of the Borrower and its Subsidiaries on 


 


66

















 


a consolidated basis, including 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
the immediately following fiscal year.


 


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


 


(a)                                  concurrently with the
delivery of the financial statements referred to in Section 6.01(a) (commencing
with the delivery of the financial statements for the fiscal year ended December 31,
2007), a statement of the independent public accounting firm whose report and
opinion accompanies such financial statements to the effect that, in making the
examination necessary therefor, no knowledge was obtained of any Default or, if
any such Default shall exist, stating the nature and status thereof;


 


(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 the chief
executive officer, chief financial officer, treasurer or controller of the
Borrower;


 


(c)                                  promptly after any
request by the Paying Agent or any Lender, copies of any detailed audit
reports, management letters or recommendations submitted to the board of
directors (or the audit committee of the board of directors) of any Loan Party
by its independent public accounting firm in connection with the accounts or
books of any Loan Party or any of its Subsidiaries, 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 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, or
with any national securities exchange, and in any case not otherwise required
to be delivered to the Paying Agent pursuant hereto;


 


(e)                                  promptly after the
furnishing thereof, copies of any material statement or report furnished to any
holder of debt securities of any Loan Party or of any of its Subsidiaries
pursuant to the terms of any indenture, loan or credit or similar agreement
with respect to which Indebtedness in excess of the Threshold Amount is then
outstanding 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)                                    Intentionally
Omitted;


 


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


 


(h)                                 not later than five
Business Days after receipt thereof by any Loan Party or any Subsidiary thereof,
copies of any notice of default given pursuant to the Senior Notes Indenture or
with respect to any Indebtedness in excess of the Threshold Amount, and, from
time 


 


67

















 


to time upon request by the Paying Agent, such information and reports
regarding such notice as the Paying Agent may reasonably request;


 


(i)                                     promptly after the
assertion or occurrence thereof, notice of any action or proceeding against or
of any noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could reasonably be expected to
have a Material Adverse Effect;


 


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


 


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


 


Documents required to be delivered pursuant
to Section 6.01(a) or (b) or Section 6.02(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 Paying Agent have access
(whether a commercial, third-party website or whether sponsored by the Paying
Agent); provided that:  (i) the
Borrower shall deliver paper copies of such documents to the Paying 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 Paying Agent
or such Lender and (ii) the Borrower shall notify the Paying Agent and
each Lender (by telecopier or electronic mail) of the posting of any such
documents and provide to the Paying Agent by electronic mail electronic
versions (i.e., soft copies) of such documents. Notwithstanding anything
contained herein, in every instance the Borrower shall be required to provide
paper copies of the Compliance Certificates required by Section 6.02(b) to
the Paying Agent. Except for such Compliance Certificates, the Paying Agent
shall have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility to
monitor compliance by the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.


 


The Borrower hereby acknowledges that (a) the
Agents and/or the Arrangers will make available to the Lenders, the L/C Issuers
and the Swing Line Lenders 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 


 


68

















 


investment and other market-related activities with respect to such
Persons’ securities. The Borrower hereby agrees that it will use commercially
reasonable efforts to identify that portion of the Borrower Materials that may be
distributed to the Public Lenders and that (w) all such Borrower Materials
shall be clearly and conspicuously marked “PUBLIC” which, at a minimum,
shall mean that the word “PUBLIC” shall appear prominently on the first page thereof;
(x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed
to have authorized the Agents, the Arrangers, the L/C Issuers, the Swing Line
Lenders and the Lenders to treat such Borrower Materials as not containing any
material non-public information (although it may be sensitive and
proprietary) with respect to the Borrower or its securities for purposes of
United States Federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall
be treated as set forth in Section 10.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a
portion of the Platform designated “Public Investor;” and (z) the
Agents and the Arrangers shall be entitled to treat any Borrower Materials that
are not marked “PUBLIC” as being suitable only for posting on a portion
of the Platform not designated “Public Investor”.


 


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


 


(a)                                  of the occurrence of
any Default;


 


(b)                                 of any matter that has
resulted or could reasonably be expected to result in a Material Adverse
Effect, including (i) material breach or non-performance of, or any
default under, a Contractual Obligation of the Borrower or any Subsidiary; (ii) any
material dispute, litigation, investigation, proceeding or suspension between
the Borrower or any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or any material development in, any material litigation or
proceeding affecting the Borrower or any Subsidiary, including pursuant to any
applicable Environmental Laws;


 


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


 


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


 


Each notice pursuant to Section 6.03
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 material obligations and liabilities, including (a) all material
tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such Subsidiary; (b) all
lawful material claims which, if unpaid, would by law become a Lien upon its
property; and (c) all material Indebtedness, as and when due and payable,
but subject to any 


 


69

















 


subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.


 


6.05                        Preservation
of Existence, Etc. (a)  Preserve, renew and maintain in full
force and effect its legal existence and good standing under the Laws of the
jurisdiction of its organization except in a transaction permitted by Section 7.04
or 7.05; (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, except where
failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (b) make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect;  and
(c) use the standard of care typical in the industry in the operation and
maintenance of its facilities.


 


6.07                        Maintenance
of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of the Borrower (other than a Qualified Captive
Insurance Subsidiary), 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 as
are customarily carried under similar circumstances by such other Persons and
providing for not less than 30 days’ prior notice to the Paying Agent of
termination, lapse or cancellation of such insurance.


 


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. Maintain proper books of record and account, in which full, true
and correct entries in conformity with GAAP consistently applied shall be made
of all financial transactions and matters involving the assets and business of
the Borrower or such Subsidiary, as the case may be.


 


6.10                        Inspection
Rights. Permit representatives and independent contractors of each Agent
and each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss its affairs, finances and accounts with its
officers and independent public accountants, all at the expense of such Agent
or Lender, as the case may be, and at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Borrower; provided, however, that when an
Event of Default exists any Agent or 


 


70

















 


any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the Borrower at
any time during normal business hours and without advance notice.


 


6.11                        Use of
Proceeds. Use the proceeds of the Credit Extensions for general corporate
purposes not in contravention of any Law or of any Loan Document, including
without limitation, (a) for Permitted Acquisitions and Capital
Expenditures, (b) to retire outstanding Indebtedness of the Borrower on
the Closing Date, and (c) to finance the Borrower’s share repurchase
program.


 


6.12                        Covenant
to Guarantee Obligations and Give Security.


 


(a)                                  Upon the formation or
acquisition of any new direct or indirect Subsidiary (other than any Foreign
Subsidiary) by any Loan Party, or upon any Domestic Subsidiary ceasing to be an
Immaterial Subsidiary, the Borrower shall, at the Borrower’s expense:


 


(i)                                     within
30 days (or such longer period as may be agreed to by the Paying
Agent in its sole discretion) after such formation or acquisition, cause such
Subsidiary (other than any Subsidiary which is an Immaterial Subsidiary) to
duly execute and deliver to the Paying Agent a guaranty or guaranty supplement,
in form and substance satisfactory to the Paying Agent, guaranteeing the
other Loan Parties’ obligations under the Loan Documents,


 


(ii)                                  within
20 days (or such longer period as may be agreed to by the Paying Agent in
its sole discretion) after such formation or acquisition, furnish to the Paying
Agent a description of the personal properties of such Subsidiary (other than
any Subsidiary which is an Immaterial Subsidiary), in detail reasonably
satisfactory to the Paying Agent,


 


(iii)                               within
30 days (or such longer period as may be agreed to by the Paying Agent in
its sole discretion) after such formation or acquisition, cause (A) such
Subsidiary (other than any Subsidiary which is an Immaterial Subsidiary) to
duly execute and deliver to the Paying Agent such security agreement
supplements and other security agreements, pledge agreements, and vessel
mortgages as specified by and in form and substance satisfactory to the
Paying Agent (including delivery of all Pledged Equity of such Subsidiary, and other
instruments of the type specified in Section 4.01(a)(iii)),
securing payment of all the Obligations of such Subsidiary under the Loan
Documents and constituting Liens on all such personal properties, and (B) each
direct parent of such Subsidiary (including each direct parent of any
Immaterial Subsidiary)(if it has not already done so) to execute and deliver to
the Paying Agent such security agreement supplements and other security and
pledge agreements, as specified by and in form and substance satisfactory
to the Paying Agent (including delivery of all Pledged Equity in such
Subsidiary (including any Immaterial Subsidiary) and undated stock powers
executed in blank), securing payment of all the Obligations of such parent
under the Loan Documents and constituting Liens on all such Pledged Equity,


 


71

















 


(iv)                              within
45 days (or such longer period as may be agreed to by the Paying Agent in
its sole discretion) after such formation or acquisition, cause such Subsidiary
and each direct and indirect parent of such Subsidiary (if it has not already
done so) to take whatever action (including the recording of vessel mortgages,
the filing of Uniform Commercial Code financing statements, the giving of
notices and the endorsement of notices on title documents) may be
necessary or advisable in the opinion of the Paying Agent to vest in the Paying
Agent (or in any representative of the Paying Agent designated by it) valid,
subsisting and perfected first priority (subject to Liens permitted by Section 7.01)
Liens on the properties purported to be subject to the security agreement
supplements and security and pledge agreements delivered pursuant to this Section 6.12,
enforceable against all third parties in accordance with their terms, and


 


(v)                                 within
60 days (or such longer period as may be agreed to by the Paying Agent in
its sole discretion) after such formation or acquisition, deliver to the Paying
Agent, upon the request of the Paying Agent in its sole discretion, a signed
copy of a favorable opinion, addressed to the Agents and the other Secured
Parties, of counsel for the Loan Parties acceptable to the Paying Agent as to
the matters contained in clauses (i), (iii) and (iv) above, and
as to such other matters as the Paying Agent may reasonably request.


 


(b)                                 Upon the formation or
acquisition of any new direct, first-tier Foreign Subsidiary (other than an
Immaterial Subsidiary) by any Loan Party, then the Borrower shall, at the
Borrower’s expense:


 


(i)                                     within
60 days (or such longer period as may be agreed to by the Paying Agent in
its sole discretion) after such formation or acquisition, cause each direct and
indirect parent of such Subsidiary (if it has not already done so) to duly
execute and deliver to the Paying Agent such security agreement supplements and
other security and pledge agreements, as specified by and in form and
substance satisfactory to the Paying Agent (including delivery of any Pledged
Equity in and of such Subsidiary), securing payment of all the Obligations of
such parent under the Loan Documents; provided, however, that no
more than 66% of the Equity Interests of any such direct, first-tier Foreign
Subsidiary shall at any time be required to be pledged; provided, further,
that no Loan Party shall be required to perfect such interests under the laws
of any jurisdiction other than the United States or a political subdivision
thereof;


 


(ii)                                  within
60 days (or such longer period as may be agreed to by the Paying Agent in
its sole discretion) after such formation or acquisition, deliver to the Paying
Agent, upon the request of the Paying Agent in its sole discretion, a signed
copy of a favorable opinion, addressed to the Agents and the other Secured
Parties, of counsel for the Loan Parties acceptable to the Paying Agent as to
the matters contained in clause (i) above, and as to such other
matters as the Paying Agent may reasonably request (but not with respect
to the Laws of any jurisdiction other than the United States or a political
subdivision thereof).


 


72

















 


(c)                                  Upon the acquisition
of any property by any Loan Party (other than Excluded Property), if such
property, in the judgment of the Paying Agent, shall not already be subject to
a perfected first priority security interest (subject to Liens permitted by Section 7.01)
in favor of the Paying Agent for the benefit of the Secured Parties, then the
Borrower shall, at the Borrower’s expense:


 


(i)                                     within
20 days (or such longer period as may be agreed to by the Paying Agent in
its sole discretion) after request by the Paying Agent, furnish to the Paying
Agent a description of the property so acquired in detail reasonably
satisfactory to the Paying Agent,


 


(ii)                                  within
30 days (or such longer period as may be agreed to by the Paying Agent in
its sole discretion) after such acquisition, cause the applicable Loan Party to
duly execute and deliver to the Paying Agent such security agreement
supplements and other security agreements, pledge agreements, and vessel
mortgages as specified by and in form and substance satisfactory to the
Paying Agent, securing payment of all the Obligations of the applicable Loan
Party under the Loan Documents and constituting Liens on all such properties,


 


(iii)                               within
45 days (or such longer period as may be agreed to by the Paying Agent in
its sole discretion) after such acquisition, cause the applicable Loan Party to
take whatever action (including the recording of vessel mortgages, the filing
of Uniform Commercial Code financing statements, the giving of notices and
the endorsement of notices on title documents) may be necessary or
advisable in the opinion of the Paying Agent to vest in the Paying Agent (or in
any representative of the Paying Agent designated by it) valid and perfected
first priority (subject to Liens permitted by Section 7.01) Liens
on such property, and


 


(iv)                              within
60 days (or such longer period as may be agreed to by the Paying Agent in
its sole discretion) after such acquisition, deliver to the Paying Agent, upon
the request of the Paying Agent in its sole discretion, a signed copy of a
favorable opinion, addressed to the Agents and the other Secured Parties, of
counsel for the Loan Parties acceptable to the Paying Agent as to the matters
contained in clauses (ii) and (iii) above and as to such other
matters as the Paying Agent may reasonably request.


 


(d)                                 Upon the request of
the Paying Agent following the occurrence and during the continuance of an
Event of Default, the Borrower shall, at the Borrower’s expense:


 


(i)                                     within
20 days after such request, furnish to the Paying Agent a description of the
real and personal properties of the Loan Parties and their respective
Subsidiaries in detail satisfactory to the Paying Agent,


 


(ii)                                  within
30 days after such request, duly execute and deliver, and cause each Subsidiary
(other than any CFC or a Subsidiary that is held directly or indirectly by a
CFC) of the Borrower (if it has not already done so) to duly execute and
deliver, to the Paying Agent such deeds of trust, trust deeds, deeds to 


 


73

















 


secure debt, vessel mortgages, mortgages,
leasehold mortgages, leasehold deeds of trust, security agreement supplements
and other security and pledge agreements, as specified by and in form and
substance satisfactory to the Paying Agent (including delivery of all Pledged
Equity and Pledged Debt in and of such Subsidiary, and other instruments of the
type specified in Section 4.01(a)(iii)), securing payment of all
the Obligations of such Subsidiary under the Loan Documents and constituting
Liens on all such properties,


 


(iii)                               within
45 days after such request, take, and cause each Subsidiary (other than any CFC
or a Subsidiary that is held directly or indirectly by a CFC) of the Borrower
to take, whatever action (including the recording of mortgages and vessel
mortgages, the filing of Uniform Commercial Code financing statements, the
giving of notices and the endorsement of notices on title documents) may be
necessary or advisable in the opinion of the Paying Agent to vest in the Paying
Agent (or in any representative of the Paying Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to the deeds of
trust, trust deeds, deeds to secure debt, vessel mortgages, mortgages,
leasehold mortgages, leasehold deeds of trust, security agreement supplements
and security and pledge agreements delivered pursuant to this Section 6.12,
enforceable against all third parties in accordance with their terms,


 


(iv)                              within
60 days after such request, deliver to the Paying Agent, upon the request of
the Paying Agent in its sole discretion, a signed copy of a favorable opinion,
addressed to the Agents and the other Secured Parties, of counsel for the Loan
Parties acceptable to the Paying Agent as to the matters contained in
clauses (ii) and (iii) above, and as to such other matters as
the Paying Agent may reasonably request, and


 


(v)                                 as
promptly as practicable after such request, deliver, upon the request of the
Paying Agent in its sole discretion, to the Paying Agent with respect to each
parcel of real property owned or held by the Borrower and its Subsidiaries,
title reports, surveys and engineering, soils and other reports, and
environmental assessment reports, each in scope, form and substance
satisfactory to the Paying Agent, provided, however, that to the
extent that any Loan Party or any of its Subsidiaries shall have otherwise
received any of the foregoing items with respect to such real property, such
items shall, promptly after the receipt thereof, be delivered to the Paying
Agent.


 


(e)                                  At any time upon
request of the Paying Agent, promptly execute and deliver any and all further
instruments and documents and take all such other action as the Paying Agent may deem
necessary or desirable in obtaining the full benefits of, or (as applicable) in
perfecting and preserving the Liens of, such guaranties, deeds of trust, trust
deeds, deeds to secure debt, mortgages, leasehold mortgages, leasehold deeds of
trust, security agreement supplements and other security and pledge agreements.


 


(f)                                    Notwithstanding
anything to the contrary contained herein, the Loan Parties and their
Subsidiaries shall not be required to grant or perfect a Lien in any asset to
the 


 


74

















 


extent the burden or cost of obtaining or perfecting a security
interest therein outweighs the benefit of the security afforded thereby as
reasonably determined by the Paying Agent.


 


6.13                        Compliance
with Environmental Laws. Except where failure to do so would not reasonably
be expected to cause, either individually or in the aggregate, a Material
Adverse Effect, comply, and use reasonable commercial efforts to cause all
lessees and other Persons operating or occupying its properties to comply, in
all material respects, with all applicable Environmental Laws and Environmental
Permits; obtain and renew all Environmental Permits necessary for its
operations and properties; and conduct any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action necessary
to remove and clean up all Hazardous Materials from any of its properties, in
accordance with the requirements of all Environmental Laws; provided, however,
that neither the Borrower nor any of its Subsidiaries shall be required to
undertake any such cleanup, removal, remedial or other action to the extent
that its obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect to such
circumstances in accordance with GAAP.


 


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


 


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


 


75
















 


ARTICLE VII

NEGATIVE COVENANTS


 


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


 


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


 


(a)                                  Liens pursuant to any
Loan Document;


 


(b)                                 Liens existing on the
date hereof and listed on Schedule 7.01 and any renewals or
extensions thereof, provided that (i) the property covered thereby
is not changed except to the extent that it is decreased, (ii) the
Indebtedness secured thereby is not increased except as contemplated by Section 7.02(d),
(iii) the direct or any contingent obligor with respect thereto is not
changed, and (iv) any renewal or extension of the obligations secured
thereby is permitted by Section 7.02(d);


 


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


 


(d)                                 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 90
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;


 


(f)                                    deposits to secure
the performance of bids, trade contracts and leases (other than Capitalized
Leases or other financing leases (which, for the avoidance of doubt, shall not
include leases properly classified as operating leases in accordance with
GAAP)), statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of business;


 


(g)                                 easements,
rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do
not in any case materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business of
the applicable Person;


 


76

















 


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


 


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


 


(j)                                     Liens on property
of a Person existing at the time such Person is merged into or consolidated
with the Borrower or any Subsidiary of the Borrower or 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, and the
applicable Indebtedness secured by such Lien is permitted under Section 7.02(g);
and


 


(k)                                  other Liens securing
Indebtedness outstanding in an aggregate principal amount  not to exceed $30,000,000, provided
that no such Lien shall extend to or cover any Collateral;


 


(l)                                     any interest or
title of a lessor under any lease entered into by the Borrower or any of its
Subsidiaries in the ordinary course of its business and covering only the
assets so leased;


 


(m)                               Liens on the assets of
any Foreign Subsidiary (other than intercompany notes payable to a Loan Party)
which secure Indebtedness permitted pursuant to Section 7.02(i);


 


(n)                                 Liens consistent with
those arising by operation of law consisting of customary and ordinary course
rights of setoff upon deposits of cash in favor of banks or other depository
institutions in the ordinary course of business;


 


(o)                                 Liens on unearned
premiums in respect of insurance policies securing insurance premium financing
permitted under Section 7.02(h);


 


(p)                                 Licenses of Oilfield
Intellectual Property in the ordinary course of business; and


 


(q)                                 Liens not otherwise
permitted by this Section 7.01 so long as neither (i) the
aggregate outstanding principal amount of the obligations secured thereby nor (ii) the
aggregate book value (determined, in the case of each such Lien, as of the date
such Lien is incurred) of the assets subject thereto exceeds (as to the
Borrower and all Subsidiaries) $10,000,000 at any one time.


 


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


 


(a)                                  obligations
(contingent or otherwise) existing or arising under any Swap Contract, provided
that (i) such obligations are (or were) entered into by such Person in the
ordinary course of business for the purpose of directly mitigating risks
associated with 


 


77

















 


fluctuations in interest rates or foreign exchange rates and (ii) such
obligations shall not be permitted under this subsection (a) to
the extent such Swap Contract contains provisions exonerating the counterparty
from its obligation to make payments to the Borrower or a Subsidiary on
transactions pursuant to such Swap Contract;


 


(b)                                 Indebtedness of a
Subsidiary of the Borrower owed to the Borrower or a wholly-owned Subsidiary of
the Borrower, which Indebtedness shall (i) in the case of Indebtedness
owed to a Loan Party, constitute “Pledged Debt” under the Security
Agreement, (ii) be on terms, including subordination terms as set forth on
Annex I to Schedule 7.03, or on other terms reasonably
acceptable to the Paying Agent and (iii) be otherwise permitted under the
provisions of Section 7.03;


 


(c)                                  Indebtedness under
the Loan Documents;


 


(d)                                 Indebtedness
outstanding on the date hereof and listed on Schedule 7.02,
including the Senior Notes, 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 and the direct or any contingent obligor with respect thereto is not
changed, as a result of or in connection with such refinancing, refunding,
renewal or extension; and provided, further, that 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
refinancing, refunding, renewing or extending Indebtedness, and of any
agreement entered into and of any instrument issued in connection therewith,
are no less favorable in any material respect to the Loan Parties or the
Lenders than the terms of any agreement or instrument governing the
Indebtedness being refinanced, refunded, renewed or extended;


 


(e)                                  Guarantees of the
Borrower or any Subsidiary in respect of obligations otherwise permitted
hereunder of (i) the Borrower or any other Guarantor and (ii) any Foreign
Subsidiary, but in the case of this clause (ii), solely to the extent and in an
aggregate amount not to exceed, together with the amount of any Indebtedness of
Foreign Subsidiaries permitted under Section 7.02(i), and
Investments in Foreign Subsidiaries made pursuant to Section 7.03(k),
$50,000,000 per fiscal year or $200,000,000 in the aggregate for the term
hereof;


 


(f)                                    Indebtedness in
respect of Capitalized Leases, Synthetic Lease Obligations and purchase money
obligations for fixed or capital assets within the limitations set forth in Section 7.01(i);
provided, however, that the aggregate amount of all such
Indebtedness at any one time outstanding shall not exceed $75,000,000;


 


(g)                                 Indebtedness of any
Person that becomes a Subsidiary of the Borrower after the date hereof in
accordance with the terms of Section 7.03(i), which Indebtedness is
existing at the time such Person becomes a Subsidiary of the Borrower (other
than Indebtedness incurred solely in contemplation of such Person’s becoming a
Subsidiary of the Borrower);


 


78

















 


(h)                                 Indebtedness issued to
insurance companies, or their affiliates, to finance insurance premiums payable
to such insurance companies in connection with insurance policies purchased by
a Loan Party in the ordinary course of business;


 


(i)                                     Indebtedness of
Foreign Subsidiaries; provided that any such Indebtedness owed to  the Borrower or any other Subsidiary of the
Borrower (other than another Foreign Subsidiary) shall not exceed in an
aggregate amount, together with the aggregate amount of any obligations in
respect of Guarantees with respect to Foreign Subsidiaries permitted under Section 7.02(e),
and Investments made in Foreign Subsidiaries pursuant to Section 7.03(k),
$50,000,000 per fiscal year or $200,000,000 in the aggregate for the term
hereof;


 


(j)                                     unsecured
Indebtedness of the Borrower and its Subsidiaries in an aggregate principal
amount not to exceed $25,000,000 at any time outstanding; and


 


(k)                                  unsecured
Indebtedness that (A) has no maturity earlier than twelve months after the
Maturity Date, (B) does not require any scheduled repayment, defeasance,
or redemption of any principal amount thereof prior to maturity, and (C) is
subject to covenants, terms, and conditions which are no more restrictive than
the covenants, terms, and conditions of this Agreement.


 


7.03                        Investments.
Make or hold any Investments, except:


 


(a)                                  Investments held by
the Borrower and its Subsidiaries in the form of Cash Equivalents;


 


(b)                                 advances to officers,
directors and employees of the Borrower and Subsidiaries in an aggregate amount
not to exceed $7,500,000 at any time outstanding, for travel, entertainment,
relocation and analogous ordinary business purposes;


 


(c)                                  (i) Investments
by the Borrower and its Subsidiaries in their respective Subsidiaries
outstanding on the date hereof, (ii) additional Investments by the
Borrower and its Subsidiaries in Loan Parties, (iii) additional
Investments by Subsidiaries of the Borrower that are not Loan Parties in other
Subsidiaries that are not Loan Parties and (iv) so long as no Default has
occurred and is continuing or would result from such Investment, additional
Investments by the Loan Parties in Domestic Subsidiaries (other than Qualified
Captive Insurance Subsidiaries) that are not Loan Parties in an aggregate
amount invested from the date hereof not to exceed $5,000,000;


 


(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)                                  Guarantees permitted
by Section 7.02;


 


(f)                                    Investments
existing on the date hereof other than those referred to in Section 7.03(c)(i) and
set forth on Schedule 7.03;


 


79

















 


(g)                                 Investments by the
Borrower in Swap Contracts permitted under Section 7.02(a);


 


(h)                                 any Acquisition, if
the following conditions would be satisfied after giving effect thereto (such
Acquisition being a “Permitted Acquisition”):


 


(i)                                     any
such newly-created or acquired Subsidiary shall comply with the requirements of
Section 6.12;


 


(ii)                                  the
Person to be (or the property of which is to be) so purchased or otherwise
acquired shall be engaged in substantially the same lines of business as one or
more of the businesses of the Borrower and its Subsidiaries or in a business or
businesses reasonably related thereto;


 


(iii)                               (A) immediately
before giving effect to such Acquisition, no Event of Default shall have
occurred and be continuing and (B) immediately after giving effect to such
Acquisition, on a pro forma basis, (w) no Default shall have occurred and be
continuing, (x) the aggregate amount of the unused Revolving Credit Commitments
shall be at least $25,000,000, (y) the pro forma Consolidated Leverage
Ratio shall not be greater than 2.75 to 1.00, and (z) the Borrower shall be in
pro forma compliance with the provisions of Section 7.11(a); the
determinations to be made pursuant to clauses (y) and (z) shall be made on a
pro forma basis with respect to the most recently completed Measurement Period
and assuming that such Acquisition (and all other Acquisitions which, in
accordance with the provisions of the definition of the term “Consolidated
Leverage Ratio,” are to be given pro forma effect or which have been made since
the last day of such Measurement Period and prior to the date of
determination), and any Indebtedness incurred or repaid in connection
therewith, had been made, incurred or repaid on the first day of such
Measurement Period (but without any adjustment for projected cost savings or
synergies other than cost savings and synergies realized within, or to be
realized within, 180 days following the consummation of such Acquisition, as
demonstrated to and as approved by the Co-Administrative Agents in their
reasonable discretion); and


 


(iv)                              with
respect to any Acquisition for which the Acquisition Consideration equals or
exceeds $50,000,000, the Borrower shall have delivered to the Paying Agent and
each Lender, at least five Business Days prior to the date on which such
Acquisition is to be consummated, a certificate of a Responsible Officer, in form and
substance reasonably satisfactory to the Paying Agent, certifying that all of
the requirements set forth in this paragraph (h) have been satisfied or
will be satisfied on or prior to the consummation of such Acquisition;


 


(i)                                     Investments (other
than Investments in Qualified Captive Insurance Subsidiaries) by the Borrower
and its Subsidiaries not otherwise permitted under this Section 7.03
in an aggregate amount invested from the Closing Date not to exceed $25,000,000  (any determination of the amount of such
Investment shall include all consideration of the type that would constitute
Acquisition Consideration);


 


80

















 


(j)                                     any repurchases of
Equity Interests permitted under Section 7.06 and any purchases of
Indebtedness not restricted by Section 7.15;


 


(k)                                  Investments by the
Loan Parties in any Foreign Subsidiary or any joint venture (regardless of the
type of entity used to form such joint venture) formed to operate or provide
services in a jurisdiction outside of the United States; provided that
the aggregate amount of such Investments after the date hereof, together with
the aggregate amount of obligations in respect of Guarantees with respect to
Foreign Subsidiaries permitted by Section 7.02(e), and Indebtedness
of Foreign Subsidiaries permitted by Section 7.02(i), shall not at
any time exceed $50,000,000 per fiscal year or $200,000,000 in the aggregate
for the term hereof;


 


(l)                                     Investments by
Foreign Subsidiaries;


 


(m)                               any Investments received
in consideration for an asset sale permitted by Section 7.05; provided
that such transfer or sale shall be on terms reasonably satisfactory to the
Paying Agent and that the Loan Parties shall take appropriate steps to grant a
first priority security interest in such Investments in favor of the Paying
Agent, for the benefit of the Secured Parties;


 


(n)                                 Investments (including
Indebtedness and other obligations) received in connection with the bankruptcy
or reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers in the
ordinary course of business;


 


(o)                                 Investments in the
Qualified Captive Insurance Subsidiaries not to exceed $50,000,000  (plus the amount of any cash dividends,
repayments or other cash distributions received by the Loan Parties in respect
of such Investments) in the aggregate; and


 


(p)                                 Investments permitted
by Section 7.15.


 


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


 


(a)                                  any Subsidiary may merge
with (i) the Borrower, provided that the Borrower shall be the
continuing or surviving Person, or (ii) any one or more other
Subsidiaries, provided that when any wholly-owned Subsidiary is merging
with another Subsidiary, such wholly-owned Subsidiary shall be the continuing
or surviving Person and when any Guarantor is merging with a Subsidiary that is
not a Guarantor, such Guarantor shall be the continuing or surviving Person;


 


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


 


(c)                                  any Subsidiary that
is not a Loan Party may dispose of all or substantially all its assets
(including any Disposition that is in the nature of a liquidation) to (i) another
Subsidiary that is not a Loan Party or (ii) to a Loan Party;


 


81

















 


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


 


(e)                                  any Immaterial
Subsidiary (i) may be merged on consolidated with or into any other
Immaterial Subsidiary and (ii) may Dispose of any or all of its
assets (upon voluntary liquidation or otherwise) pro rata to its equity
holders;


 


(f)                                    any Foreign
Subsidiary (i) may be merged on consolidated with or into any other
Foreign Subsidiary and (ii) may Dispose of any or all of its assets
(upon voluntary liquidation or otherwise) pro rata to its equity holders; and


 


(g)                                 Dispositions permitted
by Section 7.05.


 


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;


 


(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 any Subsidiary to the Borrower or to a wholly-owned Subsidiary; provided
that if the transferor of such property is a Guarantor, the transferee thereof
must either be the Borrower or a Guarantor;


 


(e)                                  Dispositions
permitted by Section 7.04;


 


(f)                                    the sale of the
Borrower’s treasury stock and the sale or issuance of any Subsidiary’s Capital
Stock to the Borrower or any Guarantor;


 


(g)                                 the Disposition of
light vehicles (i.e. cars and pick-up trucks but not heavy trucks or rigs) in
the ordinary course of business;


 


(h)                                 an exchange or “swap”
of fixed, tangible assets of a Loan Party for the assets of a Person other than
another Loan Party in the ordinary course of business, provided that (i) the
assets received by such Loan Party will be used or useful in such Loan Party’s
business and (ii) such Loan Party received reasonable equivalent value for
such assets, such equipment value to be demonstrated to the reasonable
satisfaction of the Paying Agent; provided  further that the fair
market value of all such assets of the Loan Parties exchanged or “swapped” in
any fiscal year of the Borrower does not exceed $50,000,000 per fiscal year;


 


82

















 


(i)                                     Dispositions
described on Schedule 7.05;


 


(j)                                     the Disposition of
any assets (other than Equity Interests of Guarantors unless 100% of such
Equity Interests are Disposed of); provided that (i) 75% of the
total consideration received in respect of such Disposition is comprised of
cash, (ii) within one year of such Disposition, the cash proceeds received
are used to acquire assets used in any Loan Party’s business, reinvested in
Subsidiaries of the Borrower, or reinvested in any joint venture permitted
under Section 7.17 (provided that the Loan Parties shall
take appropriate steps to grant a perfected first priority security interest
(subject only to Liens permitted under Section 7.01) in any such
assets in favor of the Paying Agent, for the benefit of the Secured Parties, to
the extent required by Section 6.12), and (iii) the aggregate
book value of all assets Disposed of in all Dispositions permitted pursuant to
this clause (j) on a cumulative basis since the Closing Date shall not exceed
15% of the total book value of all assets of the Borrower and its Subsidiaries
(determined as of any date of determination as of the end of the fiscal quarter
of the Borrower most recently ended as of such date); provided that, for
purposes of calculating compliance with the foregoing limitation, the amount of
the aggregate book value of all assets Disposed of in such Dispositions shall
be deemed to be reduced dollar-for-dollar by the book value of any assets
acquired by reinvestment of such proceeds to the extent that the Loan Parties
have granted in favor of the Paying Agent, for the benefit of the Secured
Parties, a first priority security interest (subject only to Liens permitted
under Section 7.01) and have taken such actions in connection with
the granting and perfection thereof as may be required under Section 6.12;


 


(k)                                  Dispositions of
property constituting Investments permitted under Section 7.03 and
Dispositions of property constituting Restricted Payments permitted by Section 7.06;


 


(l)                                     licenses of
Oilfield Intellectual Property;


 


(m)                               Dispositions of drill
pipe or down hole equipment lost, abandoned or destroyed in the ordinary course
of business;


 


(n)                                 the sale of past due
accounts receivable in the ordinary course of business; and


 


(o)                                 any settlement of or
payment in respect of, or series of settlements or payments in respect of,
any property or casualty insurance claim or any condemnation proceeding relating
to any asset of the Borrower or any of its Subsidiaries.


 


provided, however,
that any Disposition pursuant to Section 7.05(a) through (c),
(e) and (g) through (j) shall be for fair market
value.


 


7.06                        Restricted
Payments. Declare or make, directly or indirectly, any Restricted Payment,
or incur any obligation (contingent or otherwise) to do so, 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, any Subsidiaries of the Borrower that are
Guarantors and any other Person that owns a direct Equity 


 


83

















 


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 its common Equity
Interests with the proceeds received from the substantially concurrent issue of
new common Equity Interests;


 


(d)                                 (i) the Borrower may purchase,
redeem, or otherwise acquire its common Equity Interests and/or may pay
dividends upon its common Equity Interests in an aggregate amount not to
exceed $200,000,000, and (ii) the Borrower may purchase, redeem, or
otherwise acquire its common Equity Interests in an aggregate amount in excess
of $200,000,000 so long as, giving pro forma effect to any repurchase and
related incurrence of Indebtedness, the Borrower’s Consolidated Funded
Indebtedness would be less than 50% of Borrower’s Total Capitalization;


 


(e)                                  the Borrower may repurchase
its Equity Interests in connection with the administration of its equity-based
compensation plans from time to time in effect, including (i) in
connection with the cashless exercise of stock options, (ii) the
repurchase of restricted stock from employees, directors and other recipients
under such plans at nominal values and (iii) the repurchase of Equity
Interests from employees, directors and other such recipients to satisfy
federal, state or local tax withholding obligations of such employees,
directors and other recipients with respect to income deemed earned as the
result of options, stock grants or other awards made under such plans,
provided, that the amount of cash expended for purposes described in clauses (i) through
(ii) above shall not exceed $5,000,000 in any fiscal year; and


 


(f)                                    the Borrower may pay
cash dividends to the holders of its Equity Interests, so long as (i) no
Default or Event of Default shall exist and be continuing, (ii) the
Borrower’s Consolidated Leverage Ratio (based on the most recent twelve month
period for which financial statements are available) is not greater than 2.0 to
1.0 and (iii) as of the date of such cash dividend, the aggregate amount
of all Restricted Payments made pursuant to this Section 7.06(f) through
such date, pro forma to include such cash dividend, does not exceed 50% of the
aggregate amount of Consolidated Net Income of the Borrower and its
Subsidiaries from the first day of the fiscal quarter in which the Closing Date
occurs through such date.


 


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 date hereof or any business substantially related or
incidental thereto.


 


7.08                        Transactions
with Affiliates. 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 


 


84

















 


transaction with a Person other than an Affiliate; provided that
the foregoing restriction shall not apply to transactions between or among the
Loan Parties.


 


7.09                        Burdensome
Agreements. Enter into or permit to exist any Contractual Obligation (other
than this Agreement or any other Loan Document) that (a) limits the
ability (i) of any Subsidiary to make Restricted Payments to the Borrower
or any Guarantor or to otherwise transfer property to or invest in the Borrower
or any Guarantor, except for (A) any agreement in effect at the time any
Subsidiary becomes a Subsidiary of the Borrower, so long as such agreement was
not entered into solely in contemplation of such Person becoming a Subsidiary
of the Borrower, (B) any restriction set forth in the Senior Notes
Indenture (as in effect on the date hereof), or any agreement governing
Indebtedness which is permitted hereunder to refinance the Indebtedness
thereunder, to the extent such restrictions are no more restrictive than those
in the Senior Notes Indenture, (C) any restrictions with respect to a
Subsidiary imposed pursuant to an agreement that has been entered into in
connection with the Disposition of all or substantially all of the Equity
Interests or assets of such Subsidiary, (D) customary contracts with
customers which require that the Loan Parties or their Subsidiaries maintain a
given level of net worth so long as such net worth provisions would not
reasonably be expected to impair materially the ability of any such Loan Party
to meet its ongoing obligations under this Agreement or any of the other Loan
Documents and (E) any agreements governing any purchase money Liens or
obligations in respect of Capitalized Leases otherwise permitted hereby (in
which case, any prohibition or limitation shall only be effective against the
assets financed thereby and the proceeds thereof), and (F) customary
non-assignment provisions in leases, joint venture agreements and other
contracts entered into in the ordinary course of business, (ii) of any
Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of the
Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on
property of such Person; provided, however, that this clause (iii) shall
not prohibit any negative pledge (A) incurred or provided in favor of any
holder of Indebtedness permitted under Section 7.02(f) solely
to the extent any such negative pledge relates to the property financed by or
the subject of such Indebtedness (B) set forth in the Senior Notes
Indenture (as in effect on the date hereof), or any agreement governing Indebtedness
which is permitted hereunder to refinance the Indebtedness thereunder, to the
extent such restrictions are no more restrictive than those in the Senior Notes
Indenture, (C) customary non-assignment provisions in leases, joint
venture and other contracts entered into in the ordinary course of business,
and (D) any agreement entered into in connection with Indebtedness
permitted to be incurred hereunder by Foreign Subsidiaries relating to the
property, assets or revenues of the Foreign Subsidiaries (and not the Loan
Parties except for ownership interests of Foreign Subsidiaries, so long as no
portion thereof is part of, or intended in the future to be part of,
the Collateral); or (b) requires the grant of a Lien to secure an
obligation of such Person if a Lien is granted to the Paying Agent to secure
the Obligations.


 


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.


 


85

















 


7.11                        Financial
Covenants.


 


(a)                                  Consolidated
Interest Coverage Ratio. Permit the Consolidated Interest Coverage Ratio as
of the end of any fiscal quarter of the Borrower to be less than 3.0 to 1.0.


 


(b)                                 Consolidated
Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end of any
fiscal quarter of the Borrower to be greater than 3.50 to 1.0.


 


7.12                        Capital
Expenditures. Make or become legally obligated to make any Capital Expenditure,
except for Capital Expenditures in the ordinary course of business not exceeding,
in the aggregate for the Borrower and it Subsidiaries during each fiscal year
set forth below, the amount set forth opposite such fiscal year:


 




	
  Fiscal Year

  	
   

  	
  Amount

  	
   

  
	
  2008

  	
   

  	
  $

  	
  250,000,000

  	
   

  
	
  2009

  	
   

  	
  $

  	
  250,000,000

  	
   

  
	
  2010

  	
   

  	
  $

  	
  250,000,000

  	
   

  
	
  2011

  	
   

  	
  $

  	
  250,000,000

  	
   

  
	
  2012

  	
   

  	
  $

  	
  250,000,000

  	
   

  






 


; provided, however, that so long as no Default has
occurred and is continuing or would result from such expenditure, if any
portion of any amount set forth above is not expended in the fiscal year for
which it is permitted above, up to 50% of any such portion may be carried
over for expenditure in the next following fiscal year; and provided, further,
if any such amount is so carried over, it will be deemed used in the applicable
subsequent fiscal year before the amount set forth opposite such fiscal year
above.


 


7.13                        Amendments
of Organization Documents. Amend any of its Organization Documents except
for amendments that would not have a Material Adverse Effect.


 


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


 


7.15                        Prepayments,
Etc. of Indebtedness. Prepay, redeem, purchase, defease or otherwise
satisfy prior to the scheduled maturity thereof in any manner, the Senior Notes
or any Indebtedness incurred under Section 7.02(k) unless, after
giving pro forma effect to such prepayment, redemption, purchase, defeasance or
other satisfaction and any Revolving Credit Loans made or other Indebtedness
incurred in connection therewith (a) the pro forma Consolidated Leverage
Ratio is less than 2.5 to 1.00 and (b) at least $100,000,000 of
availability remains under the Revolving Credit Facility; provided that
in no event shall any prepayment, redemption, purchase, defeasance or other
satisfaction prior to the scheduled maturity thereof, or in violation of any
subordination terms thereof, be made with respect to any Indebtedness that is
subordinated in right of payment to the Obligations, the Senior Notes or any
Indebtedness incurred under Section 7.02(k).


 


86

















 


7.16                        Amendment,
Etc. of Indebtedness. Amend, modify or change in any manner any term or
condition of (a) any Indebtedness if any such amendment, modification or
change would, individually or in the aggregate with all other such amendments,
reasonably be expected to result in a Material Adverse Effect, or (b) the
Senior Notes or any Indebtedness incurred under Section 7.02(k) to the
extent that any such amendment, modification, or change would shorten the
maturity of such Indebtedness.


 


7.17                        Partnerships
and Joint Ventures. Become a
general partner in a partnership or joint venturer in any joint venture (other
than a joint venture that is a corporation or a joint venture in which the
venturers do not have personal liability for the obligation of the joint
venture as a result of this status as venturers), or permit any of its
Subsidiaries to do so, except to the extent that each other general or limited
partner or other joint venturer in such partnership or joint venture is a Loan
Party, other than any joint venture permitted by Sections 7.03(i), (k),
or (l); provided that any Indebtedness of such joint venture is
permitted by Section 7.02(i) or is Non-Recourse Indebtedness.


 


7.18                        Assets
Located Outside the United States. The book value of assets (other than
Equity Interests) of the Loan Parties located outside of the United States  shall not exceed $100,000,000  in the aggregate  at any time.


 


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


 


(b)                                 Specific Covenants.
(i) The Borrower fails to perform or observe any term, covenant or
agreement contained in any of Section 6.01, 6.02, 6.03,
6.05, 6.10, 6.11, 6.12, or Article VII,
(ii) any of the Guarantors fails to perform or observe any term,
covenant or agreement contained in Section 1 of the Guaranty or (iii) any
of the Loan Parties fails to perform or observe, and in each case, an such
failure continues beyond any applicable grace period, any term, covenant or
agreement contained in Section 4.2 or 4.8 of the Security
Agreement; or


 


(c)                                  Other Defaults.
Any Loan Party fails to perform or observe any other covenant or agreement
(not specified in Section 8.01(a) or (b) above)
contained in any Loan Document on its part to be performed or observed and
such failure continues for 30 days; 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 


 


87

















 


connection herewith or therewith shall be incorrect or misleading in
any material respect when made or deemed made; or


 


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


 


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


 


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


 


(h)                                 Judgments. There
is entered against any Loan Party or any Subsidiary thereof (i) one or
more final judgments or orders for the payment of money in an aggregate amount
(as to all such judgments and orders) exceeding the Threshold Amount (to the
extent not covered by independent third-party insurance as to which the insurer
is rated at least “A” by 


 


88

















 


A.M. Best Company, has been notified of the potential claim and does
not dispute coverage), or (ii) any one or more non-monetary final
judgments that have, or could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B) there
is a period of 10 consecutive days during which a stay of enforcement of such
judgment, by reason of a pending appeal or otherwise, is not in effect; or


 


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


 


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


 


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


 


(l)                                     Security
Documents. Any Security Document after delivery thereof pursuant to Section 4.01
or 6.12 shall for any reason (other than pursuant to the terms thereof)
cease to create a valid and perfected first priority Lien (subject to Liens
permitted by Section 7.01) on the Collateral purported to be
covered thereby; or


 


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


 


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


 


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


 


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


 


(d)                                 exercise on behalf of
itself, the Lenders and the L/C Issuers all rights and remedies available to
it, the Lenders and the L/C Issuers under the Loan Documents;


 


89

















 


provided, however,
that upon the occurrence of an Event of Default specified in Section 8.02(f) above
with respect to the Borrower, the obligation of each Lender to make Loans and
any obligation of any L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans
and all interest and other amounts as aforesaid shall automatically become due
and payable, and the obligation of the Borrower to Cash Collateralize the L/C
Obligations as aforesaid shall automatically become effective, in each case
without further act of any 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 by the Paying Agent in the
following order:


 


First,
to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of
counsel to the Paying Agent and amounts payable under Article III)
payable to the Paying 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 Issuers (including fees, charges and
disbursements of counsel to the respective Lenders and L/C Issuer (including
fees and time charges for attorneys who may be employees of any Lender or
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, L/C Borrowings and other
Obligations, ratably among the Lenders and the L/C Issuers in proportion to the
respective amounts described in this clause Third payable to them;


 


Fourth,
to payment of that portion of the Obligations constituting unpaid principal of
the Loans, L/C Borrowings and amounts owing under Secured Hedge Agreements and
Secured Cash Management Agreements, ratably among the Lenders, the L/C Issuers,
the Hedge Banks and the Cash Management Banks in proportion to the respective
amounts described in this clause Fourth held by them;


 


Fifth,
to the Paying Agent for the account of the L/C Issuers, to Cash Collateralize
that portion of L/C Obligations comprised of the aggregate undrawn amount of
Letters of Credit; and


 


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


 


Subject to Section 2.03(c), amounts used to Cash Collateralize
the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth
above shall be applied to satisfy drawings under such Letters of Credit as they
occur. If any amount remains on deposit as Cash Collateral after all 


 


90

















 


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.


 


ARTICLE IX

PAYING AGENT AND CO-ADMINISTRATIVE AGENTS.


 


9.01                        Appointment
and Authority.


 


(a)                                  Each of the Lenders
and the L/C Issuers hereby (i) irrevocably appoints Bank of America to act
on its behalf as the Paying Agent hereunder and under the other Loan Documents
and authorizes the Paying Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Paying Agent by the terms hereof
or thereof, together with such actions and powers as are reasonably incidental
thereto, and (ii) hereby irrevocably appoints each of Bank of America and
Wells Fargo to act on its behalf as a Co-Administrative Agent hereunder and
under the other Loan Documents and authorizes the Co-Administrative Agents to
take such actions on its behalf and to exercise such powers as are delegated to
the Co-Administrative Agents by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of this
Article are solely for the benefit of the Agents, the Lenders and the L/C
Issuers, and neither the Borrower nor any other Loan Party shall have rights as
a third party beneficiary of any of such provisions.


 


(b)                                 The Paying Agent shall
also act as the “collateral agent” under the Loan Documents, and each of
the Lenders (in its capacities as a Lender, Swing Line Lender (if applicable),
potential Hedge Bank and potential Cash Management Bank) and the L/C Issuers
hereby irrevocably appoints and authorizes the Paying Agent to act as the agent
of such Lender and L/C Issuer for purposes of acquiring, holding and enforcing
any and all Liens on Collateral granted by any of the Loan Parties to secure
any of the Obligations, together with such powers and discretion as are
reasonably incidental thereto. In this connection, the Paying Agent, as “collateral
agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the
Paying Agent pursuant to Section 9.05 for purposes of holding or
enforcing any Lien on the Collateral (or any portion thereof) granted under the
Security Documents, or for exercising any rights and remedies thereunder at the
direction of the Paying Agent), shall be entitled to the benefits of all
provisions of this Article IX and Article X (including Section 10.04(c),
as though such co-agents, sub-agents and attorneys-in-fact were the “collateral
agent” under the Loan Documents) as if set forth in full herein with
respect thereto.


 


9.02                        Rights as
a Lender. Each Person serving as the Paying Agent or as Co-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 Paying Agent or a Co-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 Paying Agent or as a
Co-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 Paying Agent or a Co-Administrative
Agent hereunder and without any duty to account therefor to the Lenders.


 


91

















 


9.03                        Exculpatory
Provisions. The Agents 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 Agents:


 


(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 and except that the Paying Agent shall be required to
exercise such powers and to take such actions as may be 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 Paying Agent shall not be required to take
any action that, in its opinion or the opinion of its counsel, may expose
the Paying Agent to liability or that is contrary to any Loan Document or
applicable law; and


 


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


 


No Agent shall 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 such 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. No
Agent shall be deemed to have knowledge of any Default unless and until notice
describing such Default is given to such Agent by the Borrower, another Agent,
a Lender or an L/C Issuer.


 


No Agent shall 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
Security Documents, (v) the value or the sufficiency of any Collateral, or
(v) the satisfaction of any condition set forth in Article IV
or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to such Agent under the terms of this Agreement.


 


9.04                        Reliance
by Agents. Each 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. Each 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 


 


92

















 


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 an L/C Issuer, each Agent may presume that
such condition is satisfactory to such Lender or L/C Issuer unless such Agent
shall have received notice to the contrary from such Lender or L/C Issuer prior
to the making of such Loan or the issuance of such Letter of Credit. Each 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. Each 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 such Agent. Each 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 any 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 an Agent.


 


9.06                        Resignation
of Agent. Each Agent may at any time give notice of its resignation as
Paying Agent or as a Co-Administrative Agent, as applicable, to the Lenders,
the other Agents, the L/C Issuers and the Borrower. Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor Paying Agent or
Co-Administrative Agent, as applicable, 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 Agent gives notice of its resignation, then the retiring
Agent may on behalf of the Lenders and the L/C Issuers, appoint a
successor Agent meeting the qualifications set forth above; provided
that if the Agent shall notify the Borrower and the Lenders that no qualifying
Person has accepted such appointment, then such resignation shall nonetheless
become effective in accordance with such notice and (a) the retiring Agent
shall be discharged from its duties and obligations hereunder as Paying Agent
or Co-Administrative Agent, as applicable, and under the other Loan Documents
(except that in the case of any collateral security held by the Paying Agent on
behalf of the Lenders or the L/C Issuers under any of the Loan Documents, the
retiring Paying Agent shall continue to hold such collateral security until
such time as a successor Paying Agent is appointed) and (b) if the
retiring Agent is the Paying Agent, all payments, communications and
determinations provided to be made by, to or through the Paying Agent shall
instead be made by or to each Lender and L/C Issuer directly, until such time
as the Required Lenders appoint a successor Paying Agent as provided for above
in this Section. Upon the acceptance of a successor’s appointment as the Paying
Agent or as a Co-Administrative Agent, as applicable, hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Paying Agent or Co-Administrative
Agent, as applicable, and the retiring 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 Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such successor.
After a retiring 


 


93

















 


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 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 Agent was acting an Agent.


 


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


 


9.07                        Non-Reliance
on Agents and Other Lenders. Each Lender and L/C Issuer acknowledges that
it has, independently and without reliance upon any of the Agents or any other
Lender, L/C Issuer 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 L/C Issuer also
acknowledges that it will, independently and without reliance upon any of the
Agents or any other Lender or any of their Related Parties and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement, any other Loan Document or any related agreement or
any document furnished hereunder or thereunder.


 


9.08                        No Other
Duties, Etc. Anything herein to the contrary notwithstanding, none of the
Co-Documentation Agents or the 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 an
Agent, a Lender or an L/C Issuer hereunder.


 


9.09                        Paying
Agent May File Proofs of Claim. In case of the pendency of any
proceeding under any Debtor Relief Law or any other judicial proceeding
relative to any Loan Party, the Paying 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 Paying
Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise


 


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


 


94

















 


(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 each L/C Issuer to make such payments to
the Paying Agent and, if the Paying Agent shall consent to the making of such
payments directly to the Lenders and the L/C Issuers, to pay to the Paying
Agent any amount due for the reasonable compensation, expenses, disbursements
and advances of the Paying Agent and its agents and counsel, and any other
amounts due the Paying Agent under Sections 2.09 and 10.04.


 


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


 


9.10                        Collateral
and Guaranty Matters. Each of the Lenders and the L/C Issuers irrevocably
authorize the Paying Agent, at its option and in its discretion,


 


(a)                                  to release any Lien
on any property granted to or held by the Paying 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 sold or to be sold as part of
or in connection with any sale permitted hereunder or under any other Loan
Document, or (iii)  if approved, authorized or ratified in writing in
accordance with Section 10.01;


 


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


 


(c)                                  to subordinate any
Lien on any property granted to or held by the Paying Agent under any Loan
Document to the holder of any Lien on such property that is permitted by Section 7.01(i).


 


Upon request by the Paying Agent at any time,
the Required Lenders will confirm in writing the Paying Agent’s authority to
release or subordinate its interest in particular types or items of property,
or to release any Guarantor from its obligations under the Guaranty pursuant to
this Section 9.10. In each case as specified in this Section 9.10,
the Paying Agent will, at the Borrower’s expense, execute and deliver to the
applicable Loan Party such documents as such Loan Party may reasonably
request to evidence the release of such item of Collateral from the assignment
and security interest granted under the Security Documents or to subordinate
its interest in such item, or to release such Guarantor from its obligations
under the Guaranty, in each case in accordance with the terms of the Loan
Documents and this Section 9.10.


 


95
















 


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 Paying Agent, and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such amendment, waiver or
consent shall:


 


(a)                                  waive any condition
set forth in Section 4.01 (other than Section 4.01(b)(i) or
(c)), or, in the case of the initial Credit Extension, Section 4.02,
without the written consent of each Lender;


 


(b)                                 without limiting the
generality of clause (a) above, waive any condition set forth in Section 4.02
as to any Credit Extension without the written consent of the Required Lenders;


 


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


 


(d)                                 postpone any date
fixed by this Agreement or any other Loan Document for any payment (excluding
mandatory prepayments) of principal, interest, fees or other amounts due to the
Lenders (or any of them) hereunder or under such other Loan Document without
the written consent of each Lender entitled to such payment;


 


(e)                                  reduce the principal
of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or
(subject to clause (iv) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Loan Document,
or change the manner of computation of any financial ratio (including any
change in any applicable defined term) used in determining the Applicable Rate
that would result in a reduction of any interest rate on any Loan or any fee
payable hereunder without the written consent of each Lender entitled to such
amount; 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;


 


(f)                                    change Section 2.13
or Section 8.03 in a manner that would alter the pro rata sharing
of payments required thereby without the written consent of each Lender;


 


(g)                                 change any provision
of this Section 10.01 or the definition of “Required Lenders”
or any other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender;


 


96

















 


(h)                                 release all or
substantially all of the Collateral in any transaction or series of
related transactions, without the written consent of each Lender;


 


(i)                                     release all or
substantially all of the value of the Guaranty, without the written consent of
each Lender, except to the extent the release of any Subsidiary from the
Guaranty is permitted pursuant to Section 9.10 (in which case such
release may be made by the Paying Agent acting alone); or


 


(j)                                     impose any greater
restriction on the ability of any Lender to assign any of its rights or
obligations hereunder without the written consent of the Required Lenders;


 


and provided, further, that (i) no amendment, waiver
or consent shall, unless in writing and signed by the L/C Issuers in addition
to the Lenders required above, affect the rights or duties of the L/C Issuers
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 Paying Agent in addition to the Lenders required
above, affect the rights or duties of the Paying 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, except that the Revolving Credit Commitment of such Lender may not
be increased or extended without the consent of such Lender.


 


If any Lender does not consent to a proposed
amendment, waiver, consent or release with respect to any Loan Document that
requires the consent of each Lender and that has been approved by the Required
Lenders, the Borrower may replace such non-consenting Lender in accordance
with Section 10.13; provided that such amendment, waiver,
consent or release can be effected as a result of the assignment contemplated
by such Section (together with all other such assignments required by the
Borrower to be made pursuant to this paragraph).


 


10.02                 Notices;
Effectiveness; Electronic Communications.


 


(a)                                  Notices Generally.
Except in the case of notices and other communications expressly permitted to
be given by telephone (and except as provided in subsection (b) below),
all notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopier as follows, 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, any Agent, L/C Issuer or Swing Line Lender, to the address,
telecopier number, electronic mail address or telephone number specified for
such Person on Schedule 10.02; and


 


97

















 


(ii)                                  if
to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.


 


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


 


(b)                                 Electronic
Communications. Notices and other communications to the Lenders and the L/C
Issuers hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Paying Agent, provided that the foregoing
shall not apply to notices to any Lender or L/C Issuer pursuant to Article II
if such Lender or L/C Issuer, as applicable, has notified the Paying Agent that
it is incapable of receiving notices under such Article by electronic
communication. The Paying 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 Paying 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 any Agent or any of its Related
Parties (collectively, the “Agent Parties”) have any liability to the
Borrower, any Lender, any 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 such 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 


 


98

















 


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, any L/C Issuer or any other Person for indirect, special, incidental,
consequential or punitive damages (as opposed to direct or actual damages).


 


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


 


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


 


10.03                 No Waiver;
Cumulative Remedies. No failure by any Lender, L/C Issuer or Agent to
exercise, and no delay by any such Person in exercising, any right, remedy,
power or privilege hereunder or under any other Loan Document shall operate as
a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges herein provided, and provided under
each other Loan Document, are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.


 


99

















 


10.04                 Expenses;
Indemnity; Damage Waiver.


 


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


 


(b)                                 Indemnification by
the Borrower. The Borrower shall indemnify the Paying Agent (and any
sub-agent thereof), each Lender and each L/C Issuer, and each Related Party of
any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee), and shall indemnify and hold
harmless each Indemnitee from all fees and time charges and disbursements for
attorneys who may be employees of any Indemnitee, incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by the
Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Paying 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 any L/C Issuer to honor
a demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower
or any of its Subsidiaries, or any Environmental Liability related in any way
to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower or any other Loan Party or any of
the Borrower’s or such Loan Party’s directors, shareholders or creditors, and
regardless of whether any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING,
IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF
THE INDEMNITEE; provided that such indemnity shall not, as to
any Indemnitee, be available to 


 


100

















 


the extent that such losses, claims, damages, liabilities or related
expenses (x) are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (y) result from a claim brought
by the Borrower or any other Loan Party against an Indemnitee for breach in bad
faith of such Indemnitee’s obligations hereunder or under any other Loan Document,
if the Borrower or such Loan Party has obtained a final and nonappealable
judgment in its favor on such claim as determined by a court of competent
jurisdiction.


 


(c)                                  Reimbursement by
Lenders. To the extent that the Borrower for any reason fails to indefeasibly
pay any amount required under subsection (a) or (b) of this
Section to be paid by it to the Paying Agent (or any sub-agent thereof),
the applicable L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Paying Agent (or any such sub-agent), the
applicable 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 Paying Agent (or any such sub-agent) or the applicable L/C Issuer in its
capacity as such, or against any Related Party of any of the foregoing acting
for the Paying Agent (or any such sub-agent) or the applicable L/C Issuer in
connection with such capacity. The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.12(d).


 


(d)                                 Waiver of
Consequential Damages, Etc. To the fullest extent permitted by applicable
law, the Borrower shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby, the transactions contemplated
hereby or thereby, any Loan or Letter of Credit or the use of the proceeds
thereof. No Indemnitee referred to in subsection (b) above shall be
liable for any damages arising from the use by unintended recipients of any
information or other materials distributed to such unintended recipients by
such Indemnitee through telecommunications, electronic or other information
transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby other than for
direct or actual damages resulting from the gross negligence or willful
misconduct of such Indemnitee as determined by a final and nonappealable
judgment of a court of competent jurisdiction.


 


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


 


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


 


10.05                 Payments Set
Aside. To the extent that any payment by or on behalf of the Borrower is
made to any Agent, any L/C Issuer, or any Lender, any 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 


 


101

















 


subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by
such Agent, such 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 each L/C Issuer severally agrees to pay to the Paying Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Paying Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to
the Federal Funds Rate from time to time in effect. The obligations of the
Lenders and the L/C Issuers under clause (b) of the preceding sentence
shall survive the payment in full of the Obligations and the termination of
this Agreement.


 


10.06                 Successors and
Assigns.


 


(a)                                  Successors and
Assigns Generally. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby, except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of the Paying Agent and each Lender and no Lender may assign
or otherwise transfer any of its rights or obligations hereunder except (i) to
an assignee in accordance with the provisions of Section 10.06(b), (ii) by
way of participation in accordance with the provisions of Section 10.06(d),
or (iii) by way of pledge or assignment of a security interest subject to
the restrictions of Section 10.06(f) (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of
this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Agents, the L/C Issuers and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.


 


(b)                                 Assignments by
Lenders. Any Lender may at any time assign to one or more assignees
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Revolving Credit Commitment(s) and the Loans (including
for purposes of this Section 10.06(b), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided
that any such assignment shall be subject to the following conditions:


 


(i)                                     Minimum
Amounts.


 


(A)                              in
the case of an assignment of the entire remaining amount of the assigning
Lender’s Revolving Credit Commitment and the 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 Revolving Credit Commitment (which for this purpose
includes Loans outstanding thereunder) or, if the 


 


102

















 


Revolving Credit 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 Paying 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 Paying Agent
and, so long as no Event of Default has occurred and is continuing, the
Borrower otherwise consents (each such consent not to be unreasonably withheld
or delayed); provided, however, that concurrent assignments to
members of an Assignee Group and concurrent assignments from members of an
Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and
members of its Assignee Group) will be treated as a single assignment for
purposes of determining whether such minimum amount has been met;


 


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


 


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


 


(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 Paying Agent (such consent not to be unreasonably withheld or
delayed) shall be required for assignments in respect of any Revolving Credit
Commitment if such assignment is to a Person that is not a Lender, an Affiliate
of a Lender or an Approved Fund with respect to a Lender;


 


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


 


(D)                               the
consent of each Swing Line Lender (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment.


 


103

















 


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


 


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


 


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


 


Subject to acceptance and recording thereof by the Paying 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 Revolving
Credit 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 Section 10.06(d).


 


(c)                                  Register. The
Paying Agent, acting solely for this purpose as an agent of the Borrower, shall
maintain at the Paying 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 Revolving Credit Commitments of, and principal amounts
of the Loans and L/C Obligations owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register
shall be conclusive, and the Borrower, the Paying Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the
Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.


 


(d)                                 Participations.
Any Lender may at any time, without the consent of, or notice to, the
Borrower or any 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
Revolving Credit 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 


 


104

















 


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 Agents,
Lenders and the L/C Issuers shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of
the Participant, agree to any amendment, waiver or other modification described
in the first proviso to Section 10.01 that affects such Participant.
Subject to subsection (e) of this Section, the Borrower agrees
that each Participant shall be entitled to the benefits of Sections 3.01,
3.04 and 3.05  to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to Section 10.06(b). To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 10.08  as though it were a Lender, provided
such Participant agrees to be subject to Section 2.13 as though it
were a Lender.


 


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


 


(f)                                    Certain Pledges.
Any Lender may at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement (including under its Revolving
Credit Note, 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)                                 Electronic
Execution of Assignments. The words “execution,” “signed,” “signature,”
and words of like import in any Assignment and Assumption shall be deemed to
include electronic signatures or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or enforceability as
a manually executed signature or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any applicable
law, including the Federal Electronic Signatures in Global and National
Commerce Act, the New York State Electronic Signatures and Records Act, or any
other similar state laws based on the Uniform Electronic Transactions Act.


 


(h)                                 Resignation as L/C
Issuer or Swing Line Lender after Assignment. Notwithstanding anything to
the contrary contained herein, if at any time either Bank of America or Wells
Fargo assigns all of its Revolving Credit Commitment and Revolving Credit Loans
pursuant to Section 10.06(b), Bank of America or Wells Fargo, as
applicable 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 


 


105

















 


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 or Wells Fargo, as applicable,
as L/C Issuer or Swing Line Lender, as the case may be. If Bank of America
or Wells Fargo resigns as L/C Issuer, it shall retain all the rights, powers,
privileges and duties of a 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 L/C Issuer and all L/C Obligations with respect thereto (including the right
to require the Lenders to make Base Rate Loans or fund risk participations in
Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of
America or Wells Fargo resigns as Swing Line Lender, it shall retain all the
rights of the Swing Line Lender provided for hereunder with respect to Swing
Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Base Rate Loans
or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c).
Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the
case may be, and (b) the successor L/C Issuer shall issue letters of
credit in substitution for the Letters of Credit, if any, issued by such
retiring L/C Issuer and outstanding at the time of such succession or make
other arrangements satisfactory to Bank of America or Wells Fargo, as
applicable, to effectively assume the obligations of Bank of America or Wells
Fargo, as applicable, with respect to such Letters of Credit.


 


10.07                 Treatment of
Certain Information; Confidentiality. Each of the Agents, Lenders and the
L/C Issuers 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, advisors and representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection
with the exercise of any remedies hereunder or under any other Loan Document or
any action or proceeding relating to this Agreement or any other Loan Document
or the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.14(c) 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 (i) becomes
publicly available other than as a result of a breach of this Section or (ii) becomes
available to any Agent, any Lender or any L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.


 


For purposes of this Section, “Information”
means all information received from any Loan Party or any Subsidiary thereof
relating to any Loan Party or any Subsidiary thereof or their respective
businesses, other than any such information that is available to any Agent, any



 


106

















 


Lender or any L/C Issuer on a nonconfidential basis prior to disclosure
by any Loan Party or any Subsidiary thereof, provided that, in the case
of information received from a Loan Party or any such Subsidiary after the date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.


 


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


 


10.08                 Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender, L/C Issuer and each of their
respective Affiliates is hereby authorized at any time and from time to time,
to the fullest extent permitted by applicable law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final, in
whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, 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 L/C Issuer, irrespective of whether
or not such Lender or 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 L/C Issuer different from the branch or office holding such deposit
or obligated on such indebtedness. The rights of each Lender, 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, L/C
Issuer or their respective Affiliates may have. Each Lender and L/C Issuer
agrees to notify the Borrower and the Paying Agent promptly after any such
setoff and application, provided that the failure to give such notice
shall not affect the validity of such setoff and application.


 


10.09                 Interest Rate
Limitation. Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall
not exceed the maximum rate of non-usurious interest permitted by applicable
Law (the “Maximum Rate”). If the Paying 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 Paying 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. 


 


107

















 


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
Paying Agent and when the Paying 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 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 Paying Agent and each Lender,
regardless of any investigation made by the Paying Agent or any Lender or on
their behalf and notwithstanding that the Paying Agent or any Lender may have
had notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.


 


10.12                 Severability. If
any provision of this Agreement or the other Loan Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties
shall endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.


 


10.13                 Replacement of
Lenders. If any Lender requests compensation under Section 3.04,
or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender is a Defaulting Lender or if any other circumstance exists
hereunder that gives the Borrower the right to replace a Lender as a party
hereto, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Paying 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:


 


(a)                                  the Borrower shall
have paid to the Paying Agent the assignment fee specified in Section 10.06(b);


 


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


 


108

















 


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


 


(d)                                 such assignment does
not conflict with applicable Laws.


 


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


 


10.14                 Governing Law;
Jurisdiction; Etc.


 


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


 


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


 


109

















 


(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.


 


10.16                 No Advisory or
Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment,
waiver or other modification hereof or of any other Loan Document), the
Borrower acknowledges and agrees,  and
acknowledges its Affiliates’ understanding, that: (i) (A) the
arranging and other services regarding this Agreement provided by the Agents
and the Arrangers are arm’s-length commercial transactions between the Borrower
and its Affiliates, on the one hand, and the Agents and the other Arrangers, on
the other hand, (B) the Borrower has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (C) the
Borrower is capable of evaluating, and understands and accepts, the terms,
risks and conditions of the transactions contemplated hereby and by the other
Loan Documents; (ii) (A) each of the Agents and the Arrangers is and
has been acting solely as a principal and, except as expressly agreed in writing
by the relevant parties, has not been, is not, and will not be acting as an
advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any
other Person and (B) none of the Agents nor the Arrangers has any
obligation to the Borrower or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth
herein and in the other Loan Documents; and (iii) the Agents and the other
Arrangers  and their respective
Affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Borrower and its Affiliates, and none
of the Agents nor the Arrangers has any obligation to disclose any of such
interests to the Borrower or its Affiliates. To the fullest extent permitted by
law, the Borrower hereby waives and releases any claims that it may have
against the Agents and the Arrangers with respect to any breach or alleged
breach of agency or fiduciary duty in connection with any aspect of any
transaction contemplated hereby.


 


10.17                 USA PATRIOT Act
Notice. Each Lender that is subject to the Act (as hereinafter defined) and
the Paying 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 


 


110

















 


Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies each
Loan Party, which information includes the name and address of each Loan Party
and other information that will allow such Lender or the Paying Agent, as
applicable, to identify each Loan Party in accordance with the Act.


 


10.18                 ENTIRE AGREEMENT.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.


 


111
















 


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


 


	
   

  	
  KEY ENERGY
  SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard
  J. Alario

  	
   

  
	
   

  	
   

  	
  Richard J.
  Alario

  
	
   

  	
   

  	
  Chairman,
  President and Chief Executive 

  
	
   

  	
   

  	
  Officer

  



 


 


Signature Page to Credit
Agreement


 

















 


	
   

  	
  BANK of
  AMERICA, N.A., as Paying Agent and 

  
	
   

  	
  as
  Co-Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Rosanne
  Parsill

  	
   

  
	
   

  	
   

  	
  Rosanne
  Parsill

  
	
   

  	
   

  	
  Assistant
  Vice President

  



 


 


Signature Page to Credit
Agreement


 

















 


	
   

  	
  WELLS FARGO
  BANK, NATIONAL 

  
	
   

  	
  ASSOCIATION,
  as Co-Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eric R.
  Hollingsworth

  	
   

  
	
   

  	
   

  	
  Eric R.
  Hollingsworth

  
	
   

  	
   

  	
  Senior Vice
  President

  



 


 


Signature Page to Credit
Agreement


 

















 


	
   

  	
  BANK OF
  AMERICA, N.A., as a Lender, L/C 

  
	
   

  	
  Issuer and
  Swing Line Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gary L.
  Mingle

  	
   

  
	
   

  	
   

  	
  Gary L.
  Mingle

  
	
   

  	
   

  	
  Senior Vice
  President

  



 


 


Signature Page to Credit
Agreement


 

















 


	
   

  	
  WELLS FARGO
  BANK, NATIONAL 

  
	
   

  	
  ASSOCIATION,
  as a Lender, L/C Issuer and Swing 

  
	
   

  	
  Line Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Eric R.
  Hollingsworth

  	
   

  
	
   

  	
   

  	
  Eric R.
  Hollingsworth

  
	
   

  	
   

  	
  Senior Vice
  President

  



 


 


Signature Page to Credit
Agreement


 

















 


	
   

  	
  MORGAN
  STANLEY BANK, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel
  Twenge

  	
   

  
	
   

  	
  Name: 

  	
  Daniel
  Twenge

  	
   

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  	
   

  
						



 


 


Signature Page to Credit
Agreement


 

















 


	
   

  	
  CAPITAL ONE,
  N.A., as a Lender and as Co-

  
	
   

  	
  Documentation
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David
  Reid

  	
   

  
	
   

  	
  Name: 

  	
  David Reid

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  	
   

  
						



 


 


Signature Page to Credit
Agreement


 

















 


	
   

  	
  FORTIS
  CAPITAL CORP, as a Lender and as Co-

  
	
   

  	
  Documentation
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alison
  B. Barber

  	
   

  
	
   

  	
  Name: 

  	
  Alison B.
  Barber

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joe
  Maxwell

  	
   

  
	
   

  	
  Name: 

  	
  Joe Maxwell

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
						



 


 


Signature Page to Credit
Agreement


 

















 


	
   

  	
  LEHMAN
  COMMERCIAL PAPER INC., as a 

  
	
   

  	
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Maria M.
  Lund

  	
   

  
	
   

  	
  Name: 

  	
  Maria M.
  Lund

  	
   

  
	
   

  	
  Title:

  	
  Authorized
  signatory

  	
   

  
						



 


 


Signature Page to Credit
Agreement


 

















 


	
   

  	
  NATIXIS, as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy
  L. Polvado

  	
   

  
	
   

  	
   

  	
  Timothy
  Polvado

  
	
   

  	
   

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Louis P.
  Laville, III

  	
   

  
	
   

  	
   

  	
  Louis P.
  Laville, III

  
	
   

  	
   

  	
  Managing
  Director

  



 


 


Signature Page to Credit
Agreement


 

















 


	
   

  	
  AMEGY BANK
  NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott
  Collins

  	
   

  
	
   

  	
  Name: 

  	
  Scott
  Collins

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
						



 


 


Signature Page to Credit
Agreement