exv10w36






Exhibit 10.36




 



 





Published CUSIP Number: _____________




AMENDED AND RESTATED

CREDIT AGREEMENT




Dated as of February 10, 2011



among



WRIGHT MEDICAL GROUP, INC.,

as the Borrower,



THE DOMESTIC SUBSIDIARIES OF THE BORROWER,

as the Guarantors,



BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and L/C Issuer,



SUNTRUST BANK

and

WELLS FARGO BANK, N.A.,

as Co-Syndication Agents,



US BANK NATIONAL ASSOCIATION,

as Documentation Agent



and



THE OTHER LENDERS PARTY HERETO



MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

and

SUNTRUST ROBINSON HUMPHREY, INC.,

as Joint Lead Arrangers and Joint Book Managers




 



 














 





TABLE OF CONTENTS




	 	 	 	 	 

	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	28	 
	1.03 Accounting Terms
	 	 	28	 
	1.04 Exchange Rates; Currency Equivalents
	 	 	29	 
	1.05 Change of Currency
	 	 	29	 
	1.06
Additional Alternative Currencies
	 	 	29	 
	1.07 Rounding
	 	 	30	 
	1.08 Times of Day
	 	 	30	 
	1.09 Letter of Credit Amounts
	 	 	30	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	30	 
	2.01 Loans
	 	 	30	 
	2.02 Borrowings, Conversions and Continuations of Loans
	 	 	31	 
	2.03 Letters of Credit
	 	 	34	 
	2.04 Swing Line Loans
	 	 	42	 
	2.05 Prepayments
	 	 	44	 
	2.06 Termination or Reduction of Commitments
	 	 	46	 
	2.07 Repayment of Loans
	 	 	47	 
	2.08 Interest
	 	 	48	 
	2.09 Fees
	 	 	48	 
	2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
	 	 	50	 
	2.11 Evidence of Debt
	 	 	50	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	51	 
	2.13 Sharing of Payments by Lenders
	 	 	52	 
	2.14 Cash Collateral
	 	 	53	 
	2.15 Defaulting Lenders
	 	 	54	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	55	 
	3.01 Taxes
	 	 	55	 
	3.02 Illegality
	 	 	57	 
	3.03 Inability to Determine Rates
	 	 	58	 
	3.04 Increased Costs
	 	 	58	 
	3.05 Compensation for Losses
	 	 	60	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	60	 
	3.07 Survival
	 	 	61	 
	ARTICLE IV GUARANTY
	 	 	61	 
	4.01 The Guaranty
	 	 	61	 
	4.02 Obligations Unconditional
	 	 	61	 
	4.03 Reinstatement
	 	 	62	 
	4.04 Certain Additional Waivers
	 	 	62	 
	4.05 Remedies
	 	 	62	 
	4.06 Rights of Contribution
	 	 	63	 
	4.07 Guarantee of Payment; Continuing Guarantee
	 	 	63	 
	ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	63	 
	5.01 Conditions of Initial Credit Extension
	 	 	63	 
	5.02 Conditions to all Credit Extensions
	 	 	65	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	66	 
	6.01 Existence, Qualification and Power
	 	 	66	 
	6.02 Authorization; No Contravention
	 	 	66	 






i









 






	 	 	 	 	 

	6.03 Governmental Authorization; Other Consents
	 	 	66	 
	6.04 Binding Effect
	 	 	66	 
	6.05 Financial Statements; No Material Adverse Effect
	 	 	66	 
	6.06 Litigation
	 	 	67	 
	6.07 No Default
	 	 	67	 
	6.08 Ownership of Property; Liens
	 	 	67	 
	6.09 Environmental Compliance
	 	 	68	 
	6.10 Insurance
	 	 	68	 
	6.11 Taxes
	 	 	68	 
	6.12 ERISA Compliance
	 	 	69	 
	6.13 Subsidiaries
	 	 	69	 
	6.14 Margin Regulations; Investment Company Act
	 	 	70	 
	6.15 Disclosure
	 	 	70	 
	6.16 Compliance with Laws
	 	 	70	 
	6.17 Intellectual Property; Licenses, Etc.
	 	 	70	 
	6.18 Solvency
	 	 	71	 
	6.19 Perfection of Security Interests in the Collateral
	 	 	71	 
	6.20 Information
	 	 	71	 
	6.21 Labor Matters
	 	 	71	 
	6.22 OFAC
	 	 	71	 
	6.23 Patriot Act
	 	 	71	 
	ARTICLE VII AFFIRMATIVE COVENANTS
	 	 	72	 
	7.01 Financial Statements
	 	 	72	 
	7.02 Certificates; Other Information
	 	 	72	 
	7.03 Notices
	 	 	74	 
	7.04 Payment of Taxes
	 	 	75	 
	7.05 Preservation of Existence, Etc.
	 	 	75	 
	7.06 Maintenance of Properties
	 	 	75	 
	7.07 Maintenance of Insurance
	 	 	76	 
	7.08 Compliance with Laws
	 	 	76	 
	7.09 Books and Records
	 	 	76	 
	7.10 Inspection Rights
	 	 	76	 
	7.11 Use of Proceeds
	 	 	77	 
	7.12 Additional Subsidiaries
	 	 	77	 
	7.13 ERISA Compliance
	 	 	77	 
	7.14 Pledged Assets
	 	 	77	 
	ARTICLE VIII NEGATIVE COVENANTS
	 	 	78	 
	8.01 Liens
	 	 	78	 
	8.02 Investments
	 	 	80	 
	8.03 Indebtedness
	 	 	80	 
	8.04 Fundamental Changes
	 	 	81	 
	8.05 Dispositions
	 	 	82	 
	8.06 Restricted Payments
	 	 	82	 
	8.07 Change in Nature of Business
	 	 	83	 
	8.08 Transactions with Affiliates and Insiders
	 	 	83	 
	8.09 Burdensome Agreements
	 	 	83	 
	8.10 Use of Proceeds
	 	 	84	 
	8.11 Financial Covenants
	 	 	84	 
	8.12 Prepayment of Indebtedness
	 	 	84	 
	8.13 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of
Entity
	 	 	85	 






ii









 






	 	 	 	 	 

	8.14 Ownership of Subsidiaries
	 	 	85	 
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES
	 	 	85	 
	9.01 Events of Default
	 	 	85	 
	9.02 Remedies Upon Event of Default
	 	 	87	 
	9.03 Application of Funds
	 	 	88	 
	ARTICLE X ADMINISTRATIVE AGENT
	 	 	89	 
	10.01 Appointment and Authority
	 	 	89	 
	10.02 Rights as a Lender
	 	 	89	 
	10.03 Exculpatory Provisions
	 	 	89	 
	10.04 Reliance by Administrative Agent
	 	 	90	 
	10.05 Delegation of Duties
	 	 	90	 
	10.06 Resignation of Administrative Agent
	 	 	90	 
	10.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	91	 
	10.08 No Other Duties; Etc.
	 	 	91	 
	10.09 Administrative Agent May File Proofs of Claim
	 	 	92	 
	10.10 Collateral and Guaranty Matters
	 	 	92	 
	ARTICLE XI MISCELLANEOUS
	 	 	93	 
	11.01 Amendments, Etc.
	 	 	93	 
	11.02 Notices and Other Communications; Facsimile Copies
	 	 	95	 
	11.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	97	 
	11.04 Expenses; Indemnity; and Damage Waiver
	 	 	97	 
	11.05 Payments Set Aside
	 	 	99	 
	11.06 Successors and Assigns
	 	 	99	 
	11.07 Treatment of Certain Information; Confidentiality
	 	 	103	 
	11.08 Set-off
	 	 	104	 
	11.09 Interest Rate Limitation
	 	 	104	 
	11.10 Counterparts; Integration; Effectiveness
	 	 	104	 
	11.11 Survival of Representations and Warranties
	 	 	105	 
	11.12 Severability
	 	 	105	 
	11.13 Replacement of Lenders
	 	 	105	 
	11.14 Governing Law; Jurisdiction; Etc.
	 	 	106	 
	11.15 Waiver of Right to Trial by Jury
	 	 	107	 
	11.16 USA PATRIOT Act Notice
	 	 	107	 
	11.17 No
Advisory of Fiduciary Relationship
	 	 	107	 
	11.18 Electronic Execution of Assignments and Certain Other Documents
	 	 	108	 
	11.19 Waiver of Notice of Termination
	 	 	108	 






iii









 






	 	 	 

	SCHEDULES
	 	 
	 
	 	 
	1.01(a)
	 	Department of Justice Investigation
	1.01(b)
	 	Responsible Officers
	2.01
	 	Commitments and Applicable Percentages
	6.13
	 	Subsidiaries
	6.20(a)
	 	Taxpayer Identification Numbers and Organizational Identification Numbers
	6.20(b)
	 	Changes in Legal Name, State of Formation and Structure
	8.01
	 	Liens Existing on the Closing Date
	8.02
	 	Investments Existing on the Closing Date
	8.03
	 	Indebtedness Existing on the Closing Date
	8.14
	 	Non-Wholly Owned Subsidiaries
	11.02
	 	Certain Addresses for Notices
	 
	 	 
	EXHIBITS
	 	 
	 
	 	 
	2.02(a)
	 	Form of Loan Notice
	2.02(f)
	 	Form of Incremental Term Loan Joinder Agreement
	2.04
	 	Form of Swing Line Loan Notice
	2.11(a)(i)
	 	Form of Revolving Note
	2.11(a)(ii)
	 	Form of Swing Line Note
	2.11(a)(iii)
	 	Form of Delayed Draw Term Note
	2.11(a)(iv)
	 	Form of Incremental Term Note
	7.02
	 	Form of Compliance Certificate
	7.12
	 	Form of Joinder Agreement
	11.06
	 	Form of Assignment and Assumption







iv











 





AMENDED AND RESTATED CREDIT AGREEMENT




     This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of February 10, 2011 among
WRIGHT MEDICAL GROUP, INC., a Delaware corporation (the “Borrower”), the Guarantors
(defined herein), the Lenders (defined herein) and BANK OF AMERICA, N.A., as Administrative Agent,
Swing Line Lender and L/C Issuer and amends and restates that certain Credit Agreement dated as of
June 30, 2010 (as amended or otherwise modified from time to time prior to the date hereof, the
“Existing Credit Agreement”), among the Borrower, each guarantor from time to time party
thereto, each lender from time to time party thereto and Bank of America, N.A., as administrative
agent.



     The Borrower has requested and the Administrative Agent and the Lenders have agreed to amend
and restate the Existing Credit Agreement, upon and subject to the terms and conditions set forth
herein.



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



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS


1.01 Defined Terms.




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



     “Accepting Lenders” has the meaning specified in Section 11.01(b).



     “Acquisition”, by any Person, means the acquisition by such Person, in a single
transaction or in a series of related transactions, of all or any substantial portion of the
property of another Person or at least a majority of the Voting Stock of another Person, in each
case whether or not involving a merger or consolidation with such other Person and whether for
cash, property, services, assumption of Indebtedness, securities or otherwise.



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



     “Administrative Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.02 or such other address or account as the
Administrative Agent may from time to time notify to the Borrower and the Lenders.



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



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



     “Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders.
The aggregate principal amount of the Aggregate Revolving Commitments in effect on the Closing Date
is TWO HUNDRED MILLION DOLLARS ($200,000,000).



1









 





     “Agreement” means this Credit Agreement.



     “Alternative Currency” means each of Euro, Canadian Dollars, Sterling, Yen and each
other currency (other than Dollars) that is approved in accordance with Section 1.06.



     “Alternative Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as
determined by the L/C Issuer at such time on the basis of the Spot Rate (determined in respect of
the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.



     “Applicable Percentage” means with respect to any Lender at any time, (a) with respect
to such Lender’s Revolving Commitments at any time, the percentage of the Aggregate Revolving
Commitments represented by such Lender’s Revolving Commitment at such time, subject to adjustment
as provided in Section 2.15; provided that if the commitment of each Lender to make
Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been
terminated pursuant to Section 9.02 or if the Aggregate Revolving Commitments have expired,
then the Applicable Percentage of each Lender shall be determined based on the Applicable
Percentage of such Lender most recently in effect, giving effect to any subsequent assignments, (b)
with respect to such Lender’s Delayed Draw Term Loan Commitment at any time during the Availability
Period, the percentage of the aggregate Delayed Draw Term Loan Commitments represented by such
Lender’s Delayed Draw Term Loan Commitment at such time; provided that if the commitment of each
Lender to make Delayed Draw Term Loans has been terminated pursuant to Section 9.02 or if
the Delayed Draw Term Loan Commitments have expired, then the Applicable Percentage of each Lender
shall be determined based on the Applicable Percentage of such Lender most recently in effect,
giving effect to any subsequent assignments, (c) with respect to such Lender’s portion of the
outstanding Delayed Draw Term Loan at any time, the percentage of the outstanding principal amount
of the Delayed Draw Term Loan held by such Lender at such time and (d) with respect to such
Lender’s portion of the outstanding Incremental Term Loan at any time, the percentage of the
outstanding principal amount of the Incremental Term Loan held by such Lender at such time. 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.



     “Applicable Rate” means (a) with respect to the Incremental Term Loan, the
percentage(s) per annum set forth in the Incremental Term Loan Joinder Agreement, and (b) with
respect to Revolving Loans, the Delayed Draw Term Loan, Swing Line Loans, Letters of Credit, the
Revolving Commitment Fee and the Delayed Draw Commitment Fee, the following percentages per annum,
based upon the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate
received by the Administrative Agent pursuant to Section 7.02(b):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pricing	 	Consolidated	 	Revolving	 	Delayed Draw	 	Letter of	 	Eurodollar	 	Base Rate
	Tier	 	Leverage Ratio	 	Commitment Fee	 	Commitment Fee	 	Credit Fee	 	Loans	 	Loans
	1

	 	> 2.50:1.0
	 	 	0.50	%	 	 	0.50	%	 	 	2.75	%	 	 	2.75	%	 	 	1.75	%
	2

	 	> 2.00:1.0 but

£
 2.50:1.0
	 	 	0.45	%	 	 	0.45	%	 	 	2.25	%	 	 	2.25	%	 	 	1.25	%
	3

	 	> 1.50:1.0 but

£ 2.00:1.0
	 	 	0.35	%	 	 	0.35	%	 	 	1.75	%	 	 	1.75	%	 	 	0.75	%
	4

	 	> 1.00:1.0 but

£ 1.50:1.0
	 	 	0.30	%	 	 	0.30	%	 	 	1.50	%	 	 	1.50	%	 	 	0.50	%
	5

	 	> 0.50:1.0 but

£ 1.00:1.0
	 	 	0.25	%	 	 	0.25	%	 	 	1.25	%	 	 	1.25	%	 	 	0.25	%
	6

	 	£ 0.50:1.0
	 	 	0.20	%	 	 	0.20	%	 	 	1.00	%	 	 	1.00	%	 	 	0.00	%






2









 





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 required to be delivered pursuant to Section 7.02(b);
provided, however, that if a Compliance Certificate is not delivered when due in
accordance with such Section, then, upon the request of the Required Lenders, Pricing Tier 1 shall
apply as of the first Business Day after the date on which such Compliance Certificate was required
to have been delivered and shall continue to apply until the first Business Day immediately
following the date a Compliance Certificate is delivered in accordance with Section
7.02(b), whereupon the Applicable Rate shall be adjusted based upon the calculation of the
Consolidated Leverage Ratio contained in such Compliance Certificate. The Applicable Rate in
effect from the Closing Date through the first Business Day immediately following the date a
Compliance Certificate is required to be delivered pursuant to Section 7.02(b) for the
fiscal quarter ending March 31, 2011 shall be determined based upon Pricing Tier 3.




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



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



     “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 11.06(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit 11.06 or any other form approved by the Administrative Agent.



     “Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease, the
capitalized amount of the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a Capital Lease and (c) in respect of any Securitization Transaction of any
Person, the outstanding principal amount of such financing, after taking into account reserve
accounts and making appropriate adjustments, determined by the Administrative Agent in its
reasonable judgment.



     “Audited Financial Statements” means the audited consolidated and consolidating
balance sheet of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2009, and
the related consolidated and consolidating statements of income or operations, shareholders’ equity
and cash flows for such fiscal year of the Borrower and its Subsidiaries, including the notes
thereto.



     “Availability Period” means, (a) with respect to the Revolving Commitments, the period
from and including the Closing Date to the earliest of (i) the Maturity Date, (ii) the date of
termination of the Aggregate Revolving Commitments pursuant to Section 2.06, and (iii) the
date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C
Issuer to make L/C Credit



3









 




Extensions pursuant to Section 9.02 and (b) with respect to the Delayed Draw Term Loan
Commitments, the period from the Closing Date to the earliest of
(i) August 10,1 2011,
(ii) the date of termination of the Delayed Draw Term Loan Commitments pursuant to Section
2.06, and (iii) the date of termination of the commitment of each Lender to make Loans pursuant
to Section 9.02 or pursuant to any other term or provision of this Agreement or any other
Loan Document.




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



     “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate” and (c) the Eurodollar Rate
plus 1.00%. 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 the “prime rate” announced by Bank of America shall take
effect at the opening of business on the day specified in the public announcement of such change.



     “Base Rate Loan” means a 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 7.02.



     “Borrowing” means a borrowing consisting of simultaneous 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.



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate
Loan or any Base Rate Loan bearing interest at a rate based on the Eurodollar Rate, means any such
day that is also a London Banking Day.



     “Businesses” means, at any time, a collective reference to the businesses operated by
the Borrower and its Subsidiaries at such time.



     “Capital Lease” means, as applied to any Person, any lease of any property by that
Person as lessee which, in accordance with GAAP, is required to be accounted for as a capital lease
on the balance sheet of that Person.



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





 




			
	1	 	To be 6 months after the Closing Date.




4









 









Collateral” shall have a meaning correlative to the foregoing and shall include the
proceeds of such cash collateral and other credit support.




     “Cash Equivalents” means, as at any date, (a) securities with maturities of three
years or less from the date of acquisition issued or fully guaranteed or insured by the United
States or any agency thereof, (b) corporate notes issued by domestic corporations that are rated at
least A by S&P or A by Moody’s with maturities of three years or less from the date of acquisition
and overnight bank deposits of any Lender, investment bank, or of any commercial bank having
capital and surplus in excess of $500,000,000, (c) repurchase obligations, certificates of deposit,
time deposits, and banker acceptances of any Lender or of any commercial bank satisfying the
requirements of clause (b) of this definition, having a term of not more than 180 days with respect
to securities issued or fully guaranteed or insured by the United States, (d) commercial paper of a
domestic issuer rated at least A-1 by S&P or P-1 by Moody’s, (e) securities with maturities of
three years or less from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by a political subdivision or taxing authority of
any such state, commonwealth or territory or by any foreign government, the securities of which
state, commonwealth, territory, political subdivision, taxing authority or foreign government (as
the case may be) are rated at least A by S&P or A by Moody’s, (f) securities with maturities of
three years 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, (g)
money market preferred or similar funds having at such date of acquisition a rating of AA or better
by S&P or Aa or better by Moody’s, or (h) shares of money market mutual or similar funds registered
under 2(a)7 or 3(c)7 of the Investment Company Act of 1940.



     “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; provided,
that, notwithstanding anything herein to the contrary, the Dodd-Frank Wall Street Reform and
Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in
connection therewith shall be deemed to be a “Change in Law”, regardless of the date enacted,
adopted or issued.



     “Change of Control” means the occurrence of any of the following events:




     (a) (i) 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 (such right, an “option right”), whether
such right is exercisable immediately or only after the passage of time), directly or
indirectly, of 30% 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);




     (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



5









 






or nomination to that board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body
(excluding, in the case of both clause (ii) and clause (iii), any individual whose initial
nomination for, or assumption of office as, a member of that board or equivalent governing
body occurs as a result of an actual or threatened solicitation of proxies or consents for
the election or removal of one or more directors by any person or group other than a
solicitation for the election of one or more directors by or on behalf of the board of
directors);




     (c) the occurrence of any change in control or similar event (however denominated)
with respect to the Borrower or any of its Subsidiaries under and as defined in any
indenture or agreement in respect of any Subordinated Indebtedness; or




     (d) the occurrence of a “Fundamental Change” (or any comparable term) under and as
defined in the Convertible Notes Documents.



     “Class” (a) when used with respect to Lenders, refers to whether such Lenders have
Revolving Commitments, Delayed Draw Term Loan Commitments or Incremental Term Loan Commitments, (b)
when used with respect to Commitments, refers to whether such Commitments are Revolving
Commitments, Delayed Draw Term Loan Commitments or Incremental Term Loan Commitment and (c) when
used with respect to Loans or a Borrowing, refers to whether such Loans, or the Loans comprising
such Borrowing, are Revolving Loans, Swing Line Loans, Delayed Draw Term Loans or Incremental Term
Loans.



     “Closing Date” means the date hereof.



     “Collateral” means a collective reference to all the Equity Interests and Pledged Debt
with respect to which Liens in favor of the Administrative Agent, for the benefit of the Lenders,
are purported to be granted pursuant to and in accordance with the terms of the Collateral
Documents.



     “Collateral Documents” means a collective reference to the Pledge Agreement, and other
security documents as may be executed and delivered by the Loan Parties pursuant to the terms of
Section 7.14.



     “Commitment” means, as to each Lender, the Revolving Commitment of such Lender, the
Delayed Draw Term Loan Commitment of such Lender and/or the Incremental Term Loan Commitment of
such Lender.



     “Compliance Certificate” means a certificate substantially in the form of Exhibit
7.02.



     “Consolidated Adjusted EBITDA” means, for any period, for the Borrower and its
Subsidiaries, on a consolidated basis, an amount equal to the sum of (i) Consolidated EBITDA for
such period plus rent and lease expense for such period minus (ii) Consolidated Maintenance Capital
Expenditures for such period, all as determined in accordance with GAAP.



     “Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, an amount equal to Consolidated Net Income for such period plus the
following, without duplication, to the extent deducted in calculating such Consolidated Net Income:
(a) Consolidated Interest Charges for such period, (b) the provision for federal, state, local and
foreign income taxes payable by the Borrower and its Subsidiaries for such period, (c) the amount
of depreciation and amortization expense for such period, (d) non-cash stock based compensation
expense for such period, (e)(i) all non-cash, non-recurring expenses, charges and losses for such
period (excluding those expenses,



6









 




charges and losses related to accounts receivable) and (ii) all non-cash restructuring charges
for such period, provided that in each case such expenses, charges and losses (x) were not
a cash item in the four fiscal quarter period immediately prior to such period and (y) are not
expected to be paid in cash at any time in the future, (f) legal settlement costs, attorney’s fees
and consulting and monitoring expenses incurred in connection with the U.S. Department of Justice
investigation, provided that such legal settlement costs, attorney’s fees and consulting
and monitoring expenses may only be added back to Consolidated Net Income for the four fiscal
quarter periods identified on Schedule 1.01(a) attached hereto and such legal settlement
costs, attorney’s fees and consulting and monitoring expenses shall not exceed in the aggregate for
any applicable period the amount set forth opposite such period on Schedule 1.01(a)
attached hereto, (g) fees, costs and expenses payable by the Borrower during such period in
connection with capital transactions, including, without limitation for the issuance of debt or
equity (whether or not such transactions are consummated), (h) restructuring and integration costs
incurred during such period in connection with any Permitted Acquisition, (i) any costs,
restructuring reserves, adjustments to acquired contingent liabilities and assets, adjustments made
for earn-outs and other forms of contingent consideration and adjustments made to deferred tax
asset and income tax reserves in connection with any Permitted Acquisition which are expensed in
computing Consolidated Net Income for such period to the extent the same would have been
capitalized prior to the adoption of Statement of Financial Accounting Standards No. 141R, Business
Combinations and (j) any charges associated with the abandonment of in-process research and
development assets received in connection with a Permitted Acquisition, all as determined in
accordance with GAAP.




     Notwithstanding the foregoing, the amount of add backs made pursuant to clauses (e)(i),
(e)(ii), (g) and (h) above for purposes of calculating Consolidated EBITDA for any four fiscal
quarter period shall not exceed 10% of Consolidated EBITDA for such period.



     “Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated Adjusted EBITDA for the period of the four fiscal quarters most recently
ended to (b) Consolidated Fixed Charges for the period of the four fiscal quarters most recently
ended.



     “Consolidated Fixed Charges” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (i) Consolidated Interest
Charges for such period plus (ii) Consolidated Scheduled Funded Debt Payments for such
period plus (iii) rent and lease expense for such period, all as determined in accordance
with GAAP.



     “Consolidated Funded Indebtedness” means Funded Indebtedness of the Borrower and its
Subsidiaries on a consolidated basis determined in accordance with GAAP.



     “Consolidated Interest Charges” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (i) 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, plus (ii) the portion
of rent expense with respect to such period under Capital Leases that is treated as interest in
accordance with GAAP plus (iii) the implied interest component of Synthetic Leases with
respect to such 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 for the period of the
four fiscal quarters most recently ended.



7









 





     “Consolidated Maintenance Capital Expenditures” means, for any period, for the
Borrower and its Subsidiaries, on a consolidated basis, an amount equal to 10% of the amount of
depreciation expense for such period, as determined in accordance with GAAP.



     “Consolidated Net Income” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, the net income of the Borrower and its Subsidiaries (excluding
extraordinary gains and extraordinary losses) for that period, as determined in accordance with
GAAP.



     “Consolidated Scheduled Funded Debt Payments” means for any period for the Borrower
and its Subsidiaries on a consolidated basis, the sum of all scheduled payments of principal on
Consolidated Funded Indebtedness, as determined in accordance with GAAP. For purposes of this
definition, “scheduled payments of principal” (a) shall be determined without giving effect to any
reduction of such scheduled payments resulting from the application of any voluntary or mandatory
prepayments made during the applicable period, (b) shall be deemed to include the Attributable
Indebtedness in respect of Capital Leases, Securitization Transactions and Synthetic Leases and (c)
shall not include any voluntary prepayments or mandatory prepayments required pursuant to
Section 2.05.



     “Consolidated Tangible Assets” means, at any time, the consolidated tangible assets of
the Borrower and its Subsidiaries, as determined in accordance with GAAP.



     “Consolidated Total Assets” means, at any time, the consolidated assets of the
Borrower and its Subsidiaries, as determined in accordance with GAAP.



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



     “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto. Without limiting the generality of the foregoing, a Person
shall be deemed to be Controlled by another Person if such other Person possesses, directly or
indirectly, power to vote 10% or more of the securities having ordinary voting power for the
election of directors, managing general partners or the equivalent.



     “Convertible Indenture” means that certain Indenture, dated as of November 26, 2007,
among the Borrower, as issuer, and The Bank of New York Mellon, as trustee.



     “Convertible Notes” means those certain unsecured convertible senior notes due 2014
issued by the Borrower pursuant to the Convertible Indenture.



     “Convertible Notes Documents” means the Convertible Notes, the Convertible Indenture
and all other documents executed and delivered in respect of the Convertible Notes and the
Convertible Indenture.



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



     “Debt Issuance” means the issuance by any Loan Party or any Subsidiary of any
Indebtedness other than Indebtedness permitted under Section 8.03.



8









 





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



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



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



     “Defaulting Lender” means, subject to Section 2.15(b), any Lender, as
determined by the Administrative Agent, (a) has failed to perform any of its funding obligations
hereunder, including in respect of its Loans or participations in respect of Letters of Credit or
Swing Line Loans, within three (3) Business Days of the date required to be funded by it hereunder,
(b) has notified the Borrower or the Administrative Agent that it does not intend to comply with
its funding obligations or has made a public statement to that effect with respect to its funding
obligations hereunder or under other agreements in which it commits to extend credit or (c) has, or
has a direct or indirect parent company that has, (i) become the subject of a proceeding under any
Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the
benefit of creditors or similar Person charged with reorganization or liquidation of its business
or a custodian appointed for it or (iii) taken any action in furtherance of, or indicated its
consent to, approval of or acquiescence in any such proceeding or appointment; provided, that, a
Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any
Equity Interests in that Lender or any direct or indirect parent company thereof by a Governmental
Authority.



     “Delayed Draw Term Loan” has the meaning specified in Section 2.01(b).



     “Delayed Draw Commitment Fee” has the meaning specified in Section 2.09(a).



     “Delayed Draw Term Loan Commitments” means, as to each Lender, its obligation to make
a portion of the Delayed Draw Term Loan to the Borrower pursuant to Section 2.01(b), in the
principal amount set forth opposite such Lender’s name on Schedule 2.01, as such amounts
may be adjusted from time to time in accordance with this Agreement. The aggregate principal
amount of the Delayed Draw Term Loan Commitments of all of the Lenders in effect on the Closing
Date is ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000).



     “Delayed Draw Term Note” has the meaning specified in Section 2.11(a).



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any Sale and Leaseback Transaction) of any property by any Loan Party or any
Subsidiary (including the Equity Interests of any Subsidiary), 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, but excluding (a) the sale, lease, license, transfer or
other disposition of inventory in the ordinary course of business; (b) the sale, lease, license,
transfer or other disposition in the ordinary course of business of machinery and equipment no
longer used or useful in the conduct of business of any Loan Party and its



9









 




Subsidiaries; (c) any sale, lease, license, transfer or other disposition of property to any
Loan Party or any Subsidiary; provided, that if the transferor of such property is a Loan
Party (i) the transferee thereof must be a Loan Party or (ii) to the extent such transaction
constitutes an Investment, such transaction is permitted under Section 8.02; (d) any
Involuntary Disposition; (e) any license, sublicense, lease or sublease granted to others not
interfering in any material respect with the business of the Loan Parties and their Subsidiaries;
and (f) any sale, transfer or other disposition by a Foreign Subsidiary of its accounts receivable
pursuant to a factoring program entered into by such Foreign Subsidiary.




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



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



     “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
state of the United States or the District of Columbia.



     “Eligible Assets” means property that is used or useful in the same or a similar line
of business as the Borrower and its Subsidiaries were engaged in on the Closing Date (or any
reasonable extension or expansions thereof).



     “Eligible Assignee” means any Person that meets the requirements to be an assignee
under Section 11.06(b)(iii) and (v) (subject to such consents, if any, as may be
required under Section 11.06(b)(iii)).



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



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



     “Environmental Laws” means any and all federal, state, local, foreign and other
applicable 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.



     “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



10









 




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.




     “Equity Issuance” means any issuance by any Loan Party or any Subsidiary to any Person
of its Equity Interests, other than (a) any issuance of its Equity Interests pursuant to the
exercise of options or warrants, (b) any issuance of its Equity Interests pursuant to the
conversion of any debt securities to equity or the conversion of any class equity securities to any
other class of equity securities, (c) any issuance of options or warrants relating to its Equity
Interests, (d) any issuance by the Borrower of its Equity Interests as consideration for a
Permitted Acquisition and (e) any issuance by the Borrower of its Equity Interests pursuant to any
employee stock ownership plan. The term “Equity Issuance” shall not be deemed to include any
Disposition.



     “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 Internal
Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions
relating to Section 412 of the Internal Revenue Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the
withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which such entity 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 Pension Plan amendment as a termination
under Sections 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate
a Pension Plan; (f) any 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; (g) the
determination that any Pension Plan is considered an at-risk plan or a plan in endangered or
critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304
and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.



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



     “Eurodollar Base Rate” means:




     (a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum
equal to (i) the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published
by Reuters (or such other commercially available source providing quotations of BBA LIBOR as
may be designated by the Administrative Agent from time to time) at approximately 11:00
a.m., London time, two London Banking Days prior to the commencement of such Interest
Period, for deposits in Dollars (for delivery on the first day of such Interest Period) with
a term equivalent to such Interest Period or (ii) if such rate is not available at such time
for any reason, the rate per



11









 






annum determined by the Administrative Agent to be the rate at which deposits in
Dollars for delivery on the first day of such Interest Period in Same Day Funds in the
approximate amount of the Eurodollar Rate Loan being made, continued or converted 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 or other offshore interbank market for Dollars at their request
at approximately 11:00 a.m. (London time) two London Banking Days prior to the commencement
of such Interest Period; and




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



     “Eurodollar Rate” means (a) for any Interest Period with respect to any Eurodollar
Rate Loan, a rate per annum determined by the Administrative Agent to be equal to the quotient
obtained by dividing (i) the Eurodollar Base Rate for such Eurodollar Rate Loan for such Interest
Period by (ii) one minus the Eurodollar Reserve Percentage for such Eurodollar Rate Loan
for such Interest Period and (b) for any day with respect to any Base Rate Loan bearing interest at
a rate based on the Eurodollar Rate, a rate per annum determined by the Administrative Agent to be
equal to the quotient obtained by dividing (i) the Eurodollar Base Rate for such Base Rate Loan for
such day by (ii) one minus the Eurodollar Reserve Percentage for such Base Rate Loan for
such day.



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



     “Eurodollar Reserve Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such
day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB
for determining the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurodollar funding (currently referred to as
“Eurodollar liabilities”). The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be
adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.



     “Event of Default” has the meaning specified in Section 9.01.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which the Borrower is located, (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section
11.13), 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



12









 




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) and (d) any
United States withholding tax that is imposed as a result of such Lender’s failure to comply with
the requirements of Sections 1471 through 1474 of the Internal Revenue Code and any regulations
promulgated thereunder to establish an exemption from withholding thereunder.




     “Existing Credit Agreement” has the meaning specified in the introductory paragraph
hereto.



     “Facilities” means, at any time, a collective reference to the facilities and real
properties owned, leased or operated by any Loan Party or any Subsidiary.



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



     “Fee Letter” means the letter agreement, dated December 1, 2010 among the Borrower,
Bank of America and MLPFS.



     “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.



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



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



     “Funded 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 for borrowed money, whether current or long-term (including the
Obligations) and all obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;



13









 






     (b) all purchase money Indebtedness;




     (c) the principal portion of all obligations under conditional sale or other title
retention agreements relating to property purchased by the Borrower or any Subsidiary (other
than customary reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business);




     (d) all obligations arising under letters of credit (including standby and
commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;




     (e) all obligations in respect of the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business);




     (f) the Attributable Indebtedness of Capital Leases, Securitization Transactions
and Synthetic Leases;




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




     (h) all Funded Indebtedness of others secured by (or for which the holder of such
Funded Indebtedness has an existing right, contingent or otherwise, to be secured by) any
Lien on, or payable out of the proceeds of production from, property owned or acquired by
such Person, whether or not the obligations secured thereby have been assumed;




     (i) all Guarantees with respect to Funded Indebtedness of the types specified in
clauses (a) through (i) above of another Person; and




     (j) all Funded Indebtedness of the types referred to in clauses (a) through (i)
above 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 joint
venturer, except to the extent that Funded Indebtedness is expressly made non-recourse to
such Person.




For purposes hereof, the amount of any direct obligation arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and
similar instruments shall be the maximum amount available to be drawn thereunder.



     “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, consistently applied and as in effect from time to time. At any time after the
Closing Date, the Borrower may elect to apply International Financial Reporting Standards
(“IFRS”) accounting principles in lieu of GAAP and, upon any such election, references
herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided in this
Agreement); provided that any calculation or determination in this Agreement that requires
the application of GAAP for periods that include fiscal quarters ended prior to the Borrower’s
election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP.
The Borrower shall give prompt notice of any such election made in accordance with this definition
to the Administrative Agent and the Lenders.



14









 





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



     “Guarantors” means each Material Domestic Subsidiary of the Borrower identified as a
“Guarantor” on the signature pages hereto and each other Person that joins as a Guarantor pursuant
to Section 7.12, together with their successors and permitted assigns.



     “Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative
Agent and the Lenders pursuant to Article IV.



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



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



     “IDB” means the Industrial Development Board of each city or county in which any PILOT
Program Property is located.



     “Immaterial Domestic Subsidiary” means, as of any date of determination, any Domestic
Subsidiary of the Borrower that (a) does not have assets with a book value in excess of $250,000,
(b) for the twelve month period most recently ended does not have revenues in excess of $250,000
for such period, (c) together with any other Domestic Subsidiaries of the Borrower that have not
provided a Guaranty hereunder, does not have assets with a book value in excess of $1,500,000 or
(d) together with any other Domestic Subsidiaries of the Borrower that have not provided a Guaranty
hereunder, for the twelve month period most recently ended does not have revenues in excess of
$1,500,000 for such period.




15










 





     “Incremental Term Loan Lender” means each of the Persons identified as an
“Incremental Term Loan Lender” in the Incremental Term Loan Joinder Agreement, together with their
respective successors and assigns.



     “Incremental Term Loan Joinder Agreement” means a joinder agreement, substantially in
the form of Exhibit 2.02(f), executed and delivered in accordance with the provisions of
Section 2.02(f)(ii).



     “Incremental Term Loan” shall have the meaning provided in Section 2.01(c).



     “Incremental Term Loan Commitment” means, as to each Incremental Term Loan Lender, the
commitment of such Incremental Term Loan Lender to make the Incremental Term Loan hereunder
pursuant to the Incremental Term Loan Joinder Agreement; provided that, at any time after
the funding of the Incremental Term Loan, determination of “Required Lenders” shall include the
Outstanding Amount of the Incremental Term Loan.



     “Incremental Term Loan Maturity Date” shall be as set forth in the Incremental Term
Loan Joinder Agreement.



     “Incremental Term Note” has the meaning specified in Section 2.11(a).



     “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 Funded Indebtedness;




     (b) the Swap Termination Value of any Swap Contract;




     (c) all Guarantees with respect to outstanding Indebtedness of the types specified
in clauses (a) and (b) above of any other Person; and




     (d) all Indebtedness of the types referred to in clauses (a) through (c) 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 such Indebtedness is expressly made non-recourse to the Borrower or
such Subsidiary.



     “Indemnified Taxes” means Taxes (other than Excluded Taxes) 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.



     “Indemnitees” has the meaning specified in Section 11.04(b).



     “Information” has the meaning specified in Section 11.07.



     “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 (including a Swing Line Loan), the last Business
Day of each March, June, September and December and the Maturity Date.



16









 





     “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:




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




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




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



     “Interim Financial Statements” means the unaudited consolidated financial statements
of the Borrower and its Subsidiaries for the fiscal quarter ended September 30, 2010.



     “Internal Revenue Code” means the Internal Revenue Code of 1986.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of
another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other Person and any
arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) an
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.



     “Involuntary Disposition” means any loss of, damage to or destruction of, or any
condemnation or other taking for public use of, any property of any Loan Party or any of its
Subsidiaries.



     “IP Rights” has the meaning specified in Section 6.17.



     “IRS” means the United States Internal Revenue Service.



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



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



     “Joinder Agreement” means a joinder agreement substantially in the form of Exhibit
7.12 executed and delivered by a Domestic Subsidiary in accordance with the provisions of
Section 7.12.



     “Laws” means, collectively, all international, foreign, federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities,



17









 




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 Borrowing of
Revolving Loans.



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



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



     “L/C Obligations” means, as at any date of determination, the Dollar Equivalent of 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
Dollar Equivalent of 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 1.09. 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.



     “Lenders” means each of the Persons with a Revolving Commitment, and their successors
and assigns, each Delayed Draw Term Loan Lender and each Incremental Term Loan Lender and, as the
context requires, includes the Swing Line Lender. The initial Lenders are identified as a “Lender”
on the signature pages hereto.



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



     “Letter of Credit” means any standby letter of credit or bank guarantee issued
hereunder. Letters of Credit may be issued in Dollars or in an Alternative Currency.



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



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



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



     “Letter of Credit Sublimit” means an amount equal to the lesser of (a) the Aggregate
Revolving Commitments and (b) $25,000,000. The Letter of Credit Sublimit is part of, and not in
addition to, the Aggregate Revolving Commitments.



18









 





     “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 Loan, Delayed Draw Term Loan, Incremental Term Loan or Swing Line
Loan.



     “Loan Documents” means this Agreement, each Note, each Issuer Document, each Joinder
Agreement, the Incremental Term Loan Joinder Agreement, any agreement creating or perfecting rights
in Cash Collateral pursuant to the provisions of Section 2.14 of this Agreement, the
Collateral Documents and the Fee Letter.



     “Loan Modification Agreement” has the meaning specified in Section 11.01(b).



     “Loan Modification Offer” has the meaning specified in Section 11.01(b).



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



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



     “London Banking Day” means any day on which dealings in Dollar deposits are conducted
by and between banks in the London interbank eurodollar market.



     “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
financial condition of (i) the Loan Parties and their Subsidiaries taken as a whole or (ii) the
Borrower and its Subsidiaries taken as a whole; or (b) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan Document to which it
is a party.



     “Material Domestic Subsidiary” means any Domestic Subsidiary that is not an Immaterial
Domestic Subsidiary.



     “Material Foreign Subsidiary” means any Foreign Subsidiary with respect to which any
of the following criteria has been met: (a) the aggregate book value of the assets of such Foreign
Subsidiary and its Subsidiaries on a consolidated basis equals or exceeds an amount equal to five
percent (5%) of the then current book value of all of the assets of the Borrower and its
Subsidiaries or (b) as of the last day of the most recently ended fiscal quarter, for the four
fiscal quarter period ending on such date, the aggregate revenues attributable to such Foreign
Subsidiary and its Subsidiaries comprises five percent (5%) or more of the revenues of the Borrower
and its Subsidiaries for such period.



     “Material Subsidiary” means any Material Domestic Subsidiary or any Material Foreign
Subsidiary.



     “Maturity Date” means June 1, 2014; provided, however, if the
Convertible Notes are reduced to a principal amount less than $100,000,000 (the “Reduction
Event”) on or before June 1, 2014, the Maturity



19









 




Date shall be automatically extended to February 10, 2016 on the date of such Reduction Event
so long as no Default or Event of Default exists on the date of such Reduction Event.




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



     “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.



     “Multiple Employer Plan” means a Plan which has two or more contributing sponsors
(including the Borrower or any ERISA Affiliate) at least two of whom are not under common control,
as such a plan is described in Section 4064 of ERISA.



     “Net Cash Proceeds” means: (a) with respect to any Disposition by a Loan Party or any
of its Subsidiaries, the net amount equal to the aggregate amount received in cash or Cash
Equivalents in connection with such Disposition, less the sum of: (i) the principal amount, any
interest payable thereon and any premium associated with any Indebtedness (other than Indebtedness
under the Loan Documents) that is secured by such asset and that is required to be repaid in
connection with such Disposition, (ii) the reasonable fees (including, without limitation,
reasonable legal fees), commissions, premiums and other out-of-pocket expenses incurred by a Loan
Party or any of its Subsidiaries in connection therewith; (iii) federal, state, provincial, foreign
and local taxes reasonably estimated to be payable by a Loan Party or any of its Subsidiaries: (A)
as a result of any gain recognized in connection therewith; or (B) as a result of any repatriation
of proceeds; (iv) appropriate amounts that must be set aside as a reserve in accordance with GAAP
against any indemnities, associated with the Disposition including liabilities that are required to
be repaid as a result thereof, and (b) with respect to the incurrence or issuance of Indebtedness
by a Loan Party or any of its Subsidiaries (other than Indebtedness incurred or issued pursuant to
the Loan Documents), the amount of: (i) cash or Cash Equivalents received in connection with any
Debt Issuance, less (ii) the underwriting discounts and commissions or other similar payments
(including any placement fees, investment banking fees, legal fees, consulting fees and accounting
fees), and other out-of-pocket costs, fees, commissions, premiums and expenses incurred by a Loan
Party or any of its Subsidiaries in connection with such incurrence or issuance to the extent such
amounts were not deducted in determining the amount referred to in sub-paragraph (b)(i).



     “Note” or “Notes” means the Revolving Notes, the Delayed Draw Term Notes, the
Incremental Term Notes and/or the Swing Line Note, individually or collectively, as appropriate.



     “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. The foregoing
shall also include (a) all obligations under any Swap Contract between any Loan Party and any
Lender or Affiliate of a Lender and (b) all obligations under any Treasury Management Agreement
between any Loan Party and any Lender or Affiliate of a Lender.



20









 





     “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 (i) with respect to any Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or
repayments of any Loans occurring on such date; and (ii) 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.



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



     “Participant” has the meaning specified in Section 11.06(d).



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



     “PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.



     “Pension Act” means the Pension Protection Act of 2006.



     “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum
required contributions (including any installment payment thereof) to Pension Plans and set forth
in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412
of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter,
Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 3004 and 305 of ERISA.



     “Pension Plan” means any employee pension benefit plan (including a Multiple Employer
Plan or a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA
Affiliate and is either covered by Title IV of ERISA or is subject to minimum funding standards
under Section 412 of the Code.



     “Permitted Acquisitions” means Investments consisting of an Acquisition by any Loan
Party, provided that (i) no Default or Event of Default exists immediately prior to and
after giving effect to any



21









 




such Acquisition, (ii) the property acquired (or the property of the Person acquired) in such
Acquisition is used or useful in the same or a similar line of business as the Borrower and its
Subsidiaries were engaged in on the Closing Date (or any reasonable extensions or expansions
thereof), (iii) the Administrative Agent shall have received all items in respect of the Equity
Interests or property acquired in such Acquisition required to be delivered by the terms of
Section 7.12 and/or Section 7.14, (iv) in the case of an Acquisition of the Equity
Interests of another Person, the board of directors (or other comparable governing body) of such
other Person shall have duly approved such Acquisition, (v) if the total consideration (excluding
usual and customary working capital adjustments to purchase and, if applicable, including a good
faith estimate of the Borrower of any earn out consideration) paid by such Loan Party for such
Acquisition exceeds $35,000,000, the Borrower shall have delivered to the Administrative Agent a
Pro Forma Compliance Certificate demonstrating that, upon giving effect to such Acquisition on a
Pro Forma Basis, (x) the Loan Parties would be in compliance with the financial covenants set forth
in Section 8.11 as of the most recent fiscal quarter for which the Borrower was required to
deliver financial statements pursuant to Section 7.01(a) or (b) and (y) the
Consolidated Leverage Ratio would not be greater than 2.75 to 1.0, (vi) the representations and
warranties made by the Loan Parties in each Loan Document shall be true and correct in all material
respects at and as if made as of the date of such Acquisition (after giving effect thereto) except
to the extent such representations and warranties expressly relate to an earlier date, (vii) if
such transaction involves the purchase of an interest in a partnership between the Borrower (or a
Subsidiary) as a general partner and entities unaffiliated with the Borrower or such Subsidiary as
the other partners, such transaction shall be effected by having such equity interest acquired by a
corporate holding company directly or indirectly wholly-owned by the Borrower newly formed for the
sole purpose of effecting such transaction, and (viii) immediately after giving effect to such
Acquisition, the Borrower shall have at least $20,000,000 of unrestricted cash on its balance sheet
and/or availability existing under the Aggregate Revolving Commitments.




     “Permitted Amendments” has the meaning specified in Section 11.01(b).



     “Permitted Investments” means, at any time, Investments by any Loan Party or any of
its Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.02.



     “Permitted Liens” means, at any time, Liens in respect of property of any Loan Party
or any of its Subsidiaries permitted to exist at such time pursuant to the terms of Section
8.01.



     “Permitted Sale and Leaseback Transaction” means those sale and leaseback transactions
with respect to the corporate campus of the Borrower located in Arlington, Tennessee (which sale
and leaseback transaction(s) may be in the form of a Synthetic Lease) in an aggregate amount not to
exceed $35,000,000 during the term of this Agreement. For purposes of clarification, “Permitted
Sale and Leaseback Transaction” shall not include PILOT Transactions.



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



     “PILOT Program Property” means the real or personal property of the Borrower or any of
its Subsidiaries that is subject to a PILOT Transaction.



     “PILOT Transaction” means the payment-in-lieu-of-tax transactions under the statues
and laws of the State of Tennessee, providing for abatement of ad valorem real and/or personal
property taxes.



     “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA
(including a Pension Plan), maintained for employees of the Borrower or any ERISA Affiliate or any
such Plan to which the Borrower or any ERISA Affiliate is required to contribute on behalf of any
of its employees.



22









 





     “Platform” has the meaning specified in Section 7.02.



     “Pledge Agreement” means the pledge agreement dated as of the Closing Date executed in
favor of the Administrative Agent by each of the Loan Parties, as amended or modified from time to
time in accordance with the terms hereof.



     “Pledged Debt” has the meaning assigned to such term in the Pledge Agreement.



     “Pro Forma Basis” means, for purposes of calculating the financial covenants set forth
in Section 8.11 (including for purposes of determining the Applicable Rate), that any
Disposition, Involuntary Disposition, Acquisition or Restricted Payment shall be deemed to have
occurred as of the first day of the most recent four fiscal quarter period preceding the date of
such transaction for which the Borrower was required to deliver financial statements pursuant to
Section 7.01(a) or (b). In connection with the foregoing, (a) with respect to any
Disposition or Involuntary Disposition, income statement and cash flow statement items (whether
positive or negative) attributable to the property disposed of shall be excluded to the extent
relating to any period occurring prior to the date of such transaction and (b) with respect to any
Acquisition, income statement items attributable to the Person or property acquired shall be
included to the extent relating to any period applicable in such calculations to the extent (A)
such items are not otherwise included in such income statement items for the Borrower and its
Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in this
Section 1.01 and (B) such items are supported by financial statements or other information
reasonably satisfactory to the Administrative Agent and (ii) any Indebtedness incurred or assumed
by the Borrower or any Subsidiary (including the Person or property acquired) in connection with
such transaction (A) shall be deemed to have been incurred as of the first day of the applicable
period and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of
interest for the applicable period for purposes of this definition determined by utilizing the rate
which is or would be in effect with respect to such Indebtedness as at the relevant date of
determination.



     “Pro Forma Compliance Certificate” means a certificate of a Responsible Officer of the
Borrower containing reasonably detailed calculations of the financial covenants set forth in
Section 8.11 as of the most recent fiscal quarter end for which the Borrower was required
to deliver financial statements pursuant to Section 7.01(a) or (b) after giving
effect to the applicable transaction on a Pro Forma Basis.



     “Public Lender” has the meaning specified in Section 7.02.



     “Register” has the meaning specified in Section 11.06(c).



     “Registered Public Accounting Firm” has the meaning specified in the Securities Laws
and shall be independent of the Borrower as prescribed by the Securities Laws.



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



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



     “Request for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of 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.



23









 





     “Required Approval” has the meaning specified in Section 11.01(b).



     “Required Lenders” means, at any time, Lenders holding in the aggregate more than 50%
of (a) the unfunded Commitments and the outstanding Loans, L/C Obligations and participations
therein or (b) if the Commitments have been terminated, the outstanding Loans, L/C Obligations and
participations therein. The unfunded Commitments of, and the outstanding Loans 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, chief legal counsel, treasurer or secretary of a Loan Party or any other Person certified
by one of the foregoing officers to have been authorized by a Loan Party to act on behalf of such
Loan Party. Unless and until any Loan Party shall give notice pursuant to Section 11.02 of
a change in its Responsible Officers, each of the Persons identified on Schedule 1.01(b) as
a Responsible Officer of such Loan Party shall be a Responsible Officer of such Loan Party. Any
document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed
to have acted on behalf of such Loan Party.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests of any Loan Party or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such Equity Interests or on account of any return of capital to
the Borrower’s stockholders, partners or members (or the equivalent Person thereof), or any setting
apart of funds or property for any of the foregoing.



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



     “Revolving Commitment” means, as to each Lender, its obligation to (a) make Revolving
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 or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time in accordance with
this Agreement.



     “Revolving Commitment Fee” has the meaning specified in Section 2.09(a).



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



     “Revolving Note” has the meaning specified in Section 2.11(a).



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



     “Sale and Leaseback Transaction” means, with respect to any Loan Party or any
Subsidiary, any arrangement, directly or indirectly, with any Person whereby the Loan Party or such
Subsidiary shall sell or transfer any property used or useful in its business, whether now owned or
hereafter acquired, and



24









 




thereafter rent or lease such property or other property that it intends to use for
substantially the same purpose or purposes as the property being sold or transferred.




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



     “Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.



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



     “Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes-Oxley and the applicable accounting and auditing principles, rules, standards and
practices promulgated, approved or incorporated by the SEC or the Public Company Accounting
Oversight Board, as each of the foregoing may be amended and in effect on any applicable date
hereunder.



     “Securitization Transaction” means, with respect to any Person, any financing
transaction or series of financing transactions (including factoring arrangements) pursuant to
which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant
a security interest in, accounts, payments, receivables, rights to future lease payments or
residuals or similar rights to payment to a special purpose subsidiary or affiliate of such Person.



     “Solvent” or “Solvency” means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the ordinary course of business, (b) such
Person does not intend to, and does not believe that it will, incur debts or liabilities beyond
such Person’s ability to pay as such debts and liabilities mature in their ordinary course, (c)
such Person is not engaged in a business or a transaction, and is not about to engage in a business
or a transaction, for which such Person’s property would constitute unreasonably small capital
after giving due consideration to the prevailing practice in the industry in which such Person is
engaged or is to engage, (d) the fair value of the property of such Person is greater than the
total amount of liabilities, including, without limitation, contingent liabilities, of such Person
and (e) 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. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.



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



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



25









 





     “Subordinated Indebtedness” means any Indebtedness of the Borrower issued subsequent
to the Closing Date which (a) by its terms is expressly subordinated in right of payment to the
prior payment of the Obligations under this Agreement and the other Loan Documents containing terms
and conditions (including without limitation subordination provisions) customary for subordinated
Indebtedness of similar type and otherwise reasonably satisfactory to the Administrative Agent
(such consent of the Administrative Agent not to be unreasonably withheld) and (b) is not subject
to any mandatory payments, prepayments, redemptions or repurchases at any time prior to the date
180 days after the Maturity Date.



     “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 Voting Stock is at
the time beneficially owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary
or Subsidiaries of the Borrower.



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



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



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



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



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



     “Swing Line Note” has the meaning specified in Section 2.11(a).



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $10,000,000 and (b)
the Aggregate Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to,
the Aggregate Revolving Commitments.



26









 





     “Synthetic Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing arrangement whereby the arrangement
is considered borrowed money indebtedness for tax purposes but is classified as an operating lease
or does not otherwise appear on a balance sheet under GAAP.



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



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



     “Threshold Amount” means $15,000,000.



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



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



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



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



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



     “Voting Stock” means, with respect to any Person, Equity Interests issued by such
Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for
the election of directors (or persons performing similar functions) of such Person, even though the
right so to vote has been suspended by the happening of such a contingency.



     “Wholly Owned Subsidiary” means any Person 100% of whose Equity Interests are at the
time owned by the Borrower directly or indirectly through other Persons 100% of whose Equity
Interests are at the time owned, directly or indirectly, by the Borrower.



     “Wright Medical Europe Transaction” means the formation of and investment by the Loan
Parties of a nominal amount of capital (sufficient for the capitalization of a holding company) in
an entity which will be the direct Foreign Subsidiary of one or more Domestic Subsidiaries of the
Borrower and the direct parent of Wright Medical Europe C.V.



     “Yen” and “¥” mean the lawful currency of Japan.



27









 




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, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any
law shall include all statutory and regulatory provisions consolidating, amending, replacing
or interpreting such law and any reference to any law or regulation shall, unless otherwise
specified, refer to such law or regulation as amended, modified or supplemented from time to
time, and (vi) the words “asset” and “property” shall be construed to have
the same meaning and effect and to refer to any and all real and personal property and
tangible and intangible assets and properties, including cash, securities, accounts and
contract rights.




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




     (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. Except as otherwise specifically prescribed herein, 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; provided, however, that calculations of Attributable
Indebtedness under any Synthetic Lease or the implied interest component of any Synthetic Lease
shall be made by the Borrower in accordance with accepted financial practice and consistent with
the terms of such Synthetic Lease.



     (b) Changes in GAAP. The Borrower will provide a written summary of material
changes in GAAP and in the consistent application thereof with each annual and quarterly Compliance
Certificate delivered in accordance with Section 7.02(b). 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



28









 




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




     (c) Calculations. Notwithstanding the above, the parties hereto acknowledge and
agree that all calculations of the financial covenants in Section 8.11 (including for
purposes of determining the Applicable Rate) shall be made on a Pro Forma Basis.


1.04 Exchange Rates; Currency Equivalents.




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


1.05 Change of Currency.




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



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



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


1.06 Additional Alternative Currencies.




     (a) The Borrower may from time to time request that Letters of Credit be issued in a
currency other than those specifically listed in the definition of “Alternative Currency;”
provided that such requested currency is a lawful currency (other than Dollars) that is
readily available and freely



29









 




transferable and convertible into Dollars. In the case of any such request, such request
shall be subject to the approval of the Administrative Agent and the L/C Issuer.




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



     (c) Any failure by the L/C Issuer to respond to such request within the time period
specified in the preceding sentence shall be deemed to be a refusal by the L/C Issuer to permit
Letters of Credit to be issued in such requested currency. If the Administrative Agent and the L/C
Issuer consent to the issuance of Letters of Credit in such requested currency, the Administrative
Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes to
be an Alternative Currency hereunder for purposes of any Letter of Credit issuances. If the
Administrative Agent shall fail to obtain consent to any request for an additional currency under
this Section 1.06, the Administrative Agent shall promptly so notify the Borrower.


1.07 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).


1.08 Times of Day.




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


1.09 Letter of Credit Amounts.




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



ARTICLE II



THE COMMITMENTS AND CREDIT EXTENSIONS


2.01 Loans.




     (a) Subject to the terms and conditions set forth herein, each Lender severally
agrees to make loans (each such loan, a “Revolving Loan”) to the Borrower in Dollars from
time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time
outstanding the




30












 




amount of such Lender’s Revolving Commitment; provided, however, that after
giving effect to any Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not
exceed the Aggregate Revolving Commitments and (ii) the aggregate Outstanding Amount of the
Revolving 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 Commitment. Within the
limits of each Lender’s Revolving 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 Loans may be Base Rate Loans or Eurodollar
Rate Loans, as further provided herein, provided, however, all Borrowings made on the Closing Date
shall be made as Base Rate Loans.




     (b) Delayed Draw Term Loan. Subject to the terms and conditions set forth herein,
each Lender severally agrees to make its portion of a term loan (the “Delayed Draw Term
Loan”) to the Borrower in Dollars in up to four advances during the Availability Period in an
amount not to exceed such Lender’s Delayed Draw Term Loan Commitment. Amounts repaid on the
Delayed Draw Term Loan may not be reborrowed. The Delayed Draw Term Loan may consist of Base Rate
Loans or Eurodollar Rate Loans, or a combination thereof, as further provided herein.



     (c) Incremental Term Loan. Subject to Section 2.02(f), on the effective date
of the Incremental Term Loan Joinder Agreement, each Incremental Term Loan Lender severally agrees
to make its portion of a term loan (the “Incremental Term Loan”) in a single advance to the
Borrower in the amount of its respective Incremental Term Loan Commitment as set forth in the
Incremental Term Loan Joinder Agreement; provided, however, that after giving
effect to such advances, the Outstanding Amount of the Incremental Term Loan shall not exceed the
aggregate amount of the Incremental Term Loan Commitments of the Incremental Term Loan Lenders.
Amounts repaid on the Incremental Term Loan may not be reborrowed. The Incremental Term Loan may
consist of Base Rate Loans, Eurodollar Rate Loans, or a combination thereof, as the Borrower may
request.


2.02 Borrowings, Conversions and Continuations of Loans.




     (a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation
of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by the Administrative
Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of, Eurodollar Rate Loans or of any conversion of
Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base
Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must
be confirmed promptly by delivery to the Administrative Agent of a written 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 $1,000,000
or a whole multiple of $500,000 in excess thereof. Except as provided in Sections 2.03(c)
and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in a principal
amount of $500,000 or a whole multiple of $250,000 in excess thereof. Each Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a Borrowing, a
conversion of 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 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 a Loan in a Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable 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



31









 




the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to,
or continuation of Eurodollar Rate Loans in any Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month.




     (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Applicable Percentage of the applicable Loans, and if no timely notice
of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to Base Rate Loans as described in the
preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its Loan
available to the Administrative Agent in Same Day Funds at the Administrative 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 5.02 (and, if such Borrowing
is the initial Credit Extension, Section 5.01), the Administrative Agent shall make all
funds so received available to the Borrower in like funds as received by the Administrative Agent
either by (i) crediting the depository account of the Borrower on the books of Bank of America with
the amount of such funds or (ii) upon request in writing signed on behalf of the Borrower by its
chief executive officer and its chief financial officer, wire transfer of such funds, in each case
in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent
by the Borrower; provided, however, that if, on the date of a Borrowing of
Revolving Loans, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first,
shall be applied to the payment in full of any such L/C Borrowings and second, shall be
made available to the Borrower as provided above.



     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of the 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, and the Required Lenders may demand that any or all of the
then outstanding Eurodollar Rate Loans be converted immediately to Base Rate Loans on the last day
of the then current Interest Period with respect thereto.



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



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



     (f) The Borrower may at any time and from time to time, upon prior written notice by the
Borrower to the Administrative Agent, increase the Commitments (but not the Letter of Credit
Sublimit or the Swing Line Sublimit) by a maximum aggregate amount of up to ONE HUNDRED MILLION
DOLLARS ($100,000,000), as follows:




     (i) Increase in Aggregate Revolving Commitments. The Borrower may, at any time
and from time to time, upon prior written notice by the Borrower to the Administrative Agent
increase the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit or the
Swing Line Sublimit) with additional Revolving Commitments from any existing Lender with a
Revolving Commitment or new Revolving Commitments from any other Person selected by the
Borrower and approved by the Administrative Agent; provided that:



32









 






     (A) any such increase shall be in a minimum principal amount of $5,000,000 and
in integral multiples of $1,000,000 in excess thereof and the Borrower may make a
maximum of three requests;




     (B) no Default or Event of Default shall exist and be continuing at the time of
any such increase;




     (C) no existing Lender shall be under any obligation to increase its Commitment
and any such decision whether to increase its Commitment shall be in such Lender’s
sole and absolute discretion;




     (D) (1) any new Lender shall join this Agreement by executing such joinder
documents reasonably required by the Administrative Agent and/or (2) any existing
Lender electing to increase its Commitment shall have executed a commitment
agreement satisfactory to the Administrative Agent; and




     (E) as a condition precedent to such increase, the Borrower shall deliver to
the Administrative Agent a certificate dated as of the date of such increase signed
by a Responsible Officer of each Loan Party (1) certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to such increase or
the resultant increased amount, and (2) certifying that, before and after giving
effect to such increase, the representations and warranties contained in Article
VI and the other Loan Documents are true and correct in all material respects on
and as of the date of such increase, except to the extent that such representations
and warranties specifically refer to an earlier date, in which case they are true
and correct in all material respects as of such earlier date, and except that for
purposes of this Section 2.02(f)(i), the representations and warranties
contained in subsections (a) and (b) of Section 6.05 shall be deemed to
refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 7.01.




     (ii) Institution of Incremental Term Loan. The Borrower may, at any time, upon
prior written notice to the Administrative Agent, institute the Incremental Term Loan;
provided that




     (A) the Borrower (in consultation and coordination with the Administrative
Agent) shall obtain commitments for the amount of the increase from existing Lenders
or other Persons acceptable to the Administrative Agent, which Lenders shall join in
this Agreement as Incremental Term Loan Lenders by executing an Incremental Term
Loan Joinder Agreement or other agreement acceptable to the Administrative Agent;




     (B) any such institution of the Incremental Term Loan shall be in a minimum
aggregate principal amount of $10,000,000 and integral multiples of $1,000,000 in
excess thereof;




     (C) no existing Lender shall be under any obligation to provide an Incremental
Term Loan Commitment and any such decision whether to provide such Commitment shall
be in such Lender’s sole and absolute discretion;




     (D) no Default or Event of Default shall exist and be continuing at the time of
such institution;



33









 






     (E) the Applicable Rate of each Incremental Term Loan shall be as set forth in
the Incremental Term Loan Joinder Agreement, provided that the Applicable
Rate for the Incremental Term Loan shall not be more than the Applicable Rate of the
Delayed Draw Term Loan;




     (F) the Incremental Term Loan Maturity Date shall be as set forth in the
Incremental Term Loan Joinder Agreement, provided that such date shall not
be earlier than the Delayed Draw Term Loan Maturity Date;




     (G) the scheduled principal amortization payments under the Incremental Term
Loan shall be as set forth in the Incremental Term Loan Joinder Agreement;
provided that the weighted average life of the Incremental Term Loan shall
not be less than the weighted life to maturity of either of the Delayed Draw Term
Loan;




     (H) Schedule 2.01 shall be deemed revised to reflect the commitments
and commitment percentages of the Incremental Term Loan Lenders as set forth in the
Incremental Term Loan Joinder Agreement;




     (I) as a condition precedent to such institution of the Incremental Term Loan
and the effectiveness of the Incremental Term Loan Joinder Agreement, the Borrower
shall deliver to the Administrative Agent a certificate of each Loan Party dated as
of the date of such institution and effectiveness (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 the
Incremental Term Loan, and (II) in the case of the Borrower, certifying that, before
and after giving effect to the Incremental Term Loan, the representations and
warranties contained in Article VI and the other Loan Documents are true and
correct in all material respects on and as of the date of such increase, except to
the extent that such representations and warranties specifically refer to an earlier
date, in which case they are true and correct in all material respects as of such
earlier date, and except that for purposes of this Section 2.02(f)(ii), the
representations and warranties contained in subsections (a) and (b) of Section
6.05 shall be deemed to refer to the most recent statements furnished pursuant
to clauses (a) and (b), respectively, of Section 7.01.



2.03 Letters of Credit.




     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit in Dollars or Alternative Currencies for
the account of the Borrower or any of its Subsidiaries, and to amend or extend Letters of
Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor
drawings under 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, (w) the Total Revolving Outstandings shall not exceed
the Aggregate Revolving Commitments, (x) the aggregate Outstanding Amount of the Revolving
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



34









 






Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving
Commitment and (y) 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.




     (ii) The L/C Issuer shall not issue any Letter of Credit if the expiry date of such
requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless
all the Lenders have approved such expiry date; provided that the L/C Issuer may
issue Letters of Credit with an expiry date after the Letter of Credit Expiration Date (but
the L/C Issuer shall have no obligation to issue) so long as the Borrower Cash
Collateralizes such Letter of Credit in an amount equal to at least 103% of the face amount
of such Letter of Credit prior to the Letter of Credit Expiration Date in accordance with
the terms of this Agreement. The Borrower hereby agrees that on or before the Letter of
Credit Expiration Date it shall Cash Collateralize any Letter of Credit existing on the
Letter of Credit Expiration Date in an amount equal to at least 103% of the face amount of
such Letter of Credit. For the avoidance of doubt, the parties hereto agree that the
obligations of the Lenders hereunder to reimburse the L/C Issuer for any Unreimbursed Amount
with respect to any Letter of Credit shall terminate on the Maturity Date with respect to
drawings occurring after that date.




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




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




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




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




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




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



35









 






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




     (G) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has
entered into arrangements, including the delivery of Cash Collateral, satisfactory
to the L/C Issuer (in its sole discretion) with the Borrower or such Lender to
eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving
effect to Section 2.15(a)(iv)) with respect to the Defaulting Lender arising
from either the Letter of Credit then proposed to be issued or that Letter of Credit
and all other L/C Obligations as to which the L/C Issuer has actual or potential
Fronting Exposure, as it may elect in its sole discretion.




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




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




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



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




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Responsible Officer of the Borrower. Such Letter of Credit Application must be received
by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least five (5)
Business Days (or such later date and time as the Administrative Agent and the L/C Issuer
may agree in a particular instance in their sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof; (C)
the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case of any drawing
thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other
matters as the L/C Issuer may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the L/C Issuer may require. Additionally,
the Borrower shall



36









 






furnish to the L/C Issuer and the Administrative Agent such other documents and
information pertaining to such requested Letter of Credit issuance or amendment, including
any Issuer Documents, as the L/C Issuer or the Administrative Agent may require.




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




     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a day (the “Non-Extension Notice Date”) in each such twelve-month
period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise
directed by the L/C Issuer, the Borrower shall not be required to make a specific request to
the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been
issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer
to permit the extension of such Letter of Credit at any time to an expiry date not later
than the Letter of Credit Expiration Date; provided, however, that the L/C
Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it
would not be permitted, or would have no obligation, at such time to issue such Letter of
Credit in its revised form (as extended) under the terms hereof (by reason of the provisions
of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that is five Business
Days before the Non-Extension Notice Date (1) from the Administrative Agent that the
Required Lenders have elected not to permit such extension or (2) from the Administrative
Agent, any Lender or the Borrower that one or more of the applicable conditions specified in
Section 5.02 is not then satisfied, and in each case directing the 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 L/C
Issuer will also deliver to the Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of drawing
under such Letter of Credit, the L/C Issuer shall notify the Borrower and the Administrative
Agent thereof. In the case of a Letter of Credit denominated in an Alternative



37









 






Currency, the Borrower shall reimburse the L/C Issuer in such Alternative Currency, unless
(A) the L/C Issuer (at its option) shall have specified in such notice that it will require
reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in
Dollars, the Borrower shall have notified the L/C Issuer promptly following receipt of the
notice of drawing that the Borrower will reimburse the L/C Issuer in Dollars. In the case
of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in an
Alternative Currency, the L/C Issuer shall notify the Company of the Dollar Equivalent of
the amount of the drawing promptly following the determination thereof. Not later than
11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit to be
reimbursed in Dollars, or the Applicable Time on the date of any payment by the L/C Issuer
under a Letter of Credit to be reimbursed in an Alternative Currency (each such date, an
“Honor Date”), the Borrower shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing and in the applicable
currency. If the Borrower fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (expressed in Dollars in the amount of the Dollar Equivalent thereof in
the case of a Letter of Credit denominated in an Alternative Currency) (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 Borrowing of Base
Rate Loans (in the amount of the Dollar Equivalent of the amount of the Unreimbursed Amount)
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 conditions set forth in Section 5.02
(other than the delivery of a Loan Notice) and provided that, after giving effect to such
Borrowing, the Total Revolving Outstandings shall not exceed the Aggregate Revolving
Commitments. Any notice given by the L/C Issuer or the Administrative Agent pursuant to
this Section 2.03(c)(i) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice.




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




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing of Base Rate Loans because the conditions set forth in Section 5.02 cannot
be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the
L/C Issuer an L/C Borrowing in the amount of the Dollar Equivalent of the Unreimbursed
Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate. In such event, each
Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to
Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such
L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.




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



38









 






     (v) Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Revolving Loans
pursuant to this Section 2.03(c) is subject to the conditions set forth in
Section 5.02 (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 L/C Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.




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



     (d) Repayment of Participations.




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




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 11.05 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal to the applicable
Overnight Rate from time to time in effect. The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the termination of this
Agreement.



     (e) Obligations Absolute. The obligation of the Borrower to reimburse the L/C Issuer
for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute,



39









 




unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:





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




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




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




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




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




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



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



     (f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by such Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document
or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended to, and
shall not,



40









 




preclude the Borrower’s pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.03(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the
L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower
which the Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence or
the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by
the beneficiary of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit unless the L/C Issuer is prevented or prohibited from so paying as
a result of any order or directive of any court or other Governmental Authority. In furtherance
and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their
face to be in order, without responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.




     (g) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and the
Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of
Credit.



     (h) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the
“Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate
times the daily maximum amount available to be drawn under such Letter of Credit;
provided, however, any Letter of Credit Fees otherwise payable for the account of a
Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not
provided Cash Collateral satisfactory to the L/C Issuer pursuant to this Section 2.03 shall
be payable, to the maximum extent permitted by applicable Law, to the other Lenders in accordance
with the upward adjustments in their respective Applicable Percentages allocable to such Letter of
Credit pursuant to Section 2.15(a)(iv), with the balance of such fee, if any, payable to
the L/C Issuer for its own account. 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 1.09. Letter of Credit Fees shall be (i) computed on a quarterly
basis in arrears and (ii) due and payable on the first Business Day after the end of each March,
June, September and December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If there
is any change in the Applicable Rate during any quarter, the daily amount available to be drawn
under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything
to the contrary contained herein, while any Event of Default exists, all Letter of Credit Fees
shall accrue at the Default Rate.



     (i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the 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 Fee Letter, computed on the actual
daily maximum amount available to be drawn under such Letter of Credit (whether or not such maximum
amount is then in effect under such Letter of Credit) and 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 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



41









 




accordance with Section 1.09. In addition, the Borrower shall pay directly to the L/C
Issuer for its own account the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from
time to time in effect. Such customary fees and standard costs and charges are due and payable on
demand and are nonrefundable.




     (i) 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.



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


2.04 Swing Line Loans.




     (a) Swing Line Facility. Subject to the terms and conditions set forth herein, the
Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this
Section 2.04, may, in its sole discretion make loans (each such loan, a “Swing Line
Loan”) to the Borrower in Dollars from time to time on any Business Day during the Availability
Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line
Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable
Percentage of the Outstanding Amount of Revolving Loans and L/C Obligations of the Swing Line
Lender in its capacity as a Lender of Revolving Loans, may exceed the amount of such Lender’s
Revolving Commitment; provided, however, that after giving effect to any Swing Line
Loan, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments,
and (ii) the aggregate Outstanding Amount of the Revolving 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 Commitment, and provided, further, that the Borrower shall
not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within
the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow
under this Section 2.04, prepay under Section 2.05, and reborrow under this
Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making
of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an
amount equal to the product of such Lender’s Applicable Percentage times the amount of such
Swing Line Loan.



     (b) Borrowing Procedures. Each Borrowing of Swing Line Loans shall be made upon the
Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify
(i) the amount to be borrowed, which shall be a minimum principal amount of $100,000 and integral
multiples of $100,000 in excess thereof, and (ii) the requested borrowing date, which shall be a
Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line
Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed
and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the



42









 




Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date
of the proposed Borrowing of Swing Line Loans (A) directing the Swing Line Lender not to make such
Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of
Section 2.04(a), or (B) that one or more of the applicable conditions specified in
Article V is not then satisfied, then, subject to the terms and conditions hereof, the
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.




     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably requests and authorizes the 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 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 conditions set forth in Section
5.02 (other than the delivery of a Loan Notice) and provided that, after giving effect
to such Borrowing, the Total Revolving Outstandings shall not exceed the Aggregate Revolving
Commitments. The Swing Line Lender shall furnish the Borrower with a copy of the applicable
Loan Notice promptly after delivering such notice to the Administrative Agent. Each Lender
shall make an amount equal to its Applicable Percentage of the amount specified in such Loan
Notice available to the Administrative Agent in Same Day Funds (and the Administrative Agent
may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the
account of the Swing Line Lender at the Administrative Agent’s Office 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 Administrative Agent shall remit the
funds so received to the Swing Line Lender.




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




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




     (iv) Each Lender’s obligation to make Revolving 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,



43









 






counterclaim, recoupment, defense or other right that such Lender may have against the Swing
Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence
or continuance of a Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each Lender’s
obligation to make Revolving Loans pursuant to this Section 2.04(c) is subject to
the conditions set forth in Section 5.02. No such purchase or 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 Swing Line Lender receives any payment on account of such Swing Line
Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage of such
payment (appropriately adjusted, in the case of interest payments, to reflect the period of
time during which such Lender’s risk participation was funded) in the same funds as those
received by the Swing Line Lender.




     (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 11.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative
Agent will make such demand upon the request of the Swing Line Lender. The obligations of
the Lenders under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.



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



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



2.05 Prepayments.




     (a) Voluntary Prepayments.




     (i) Revolving Loans, Delayed Draw Term Loan and Incremental Term Loan. The
Borrower may, upon notice from the Borrower to the Administrative Agent, at any time or from
time to time voluntarily prepay Revolving Loans, the Delayed Draw Term Loan and/or the
Incremental Term Loan in whole or in part without premium or penalty; provided that
(A) such notice must be received by the Administrative Agent not later than 11:00 a.m. three
Business Days prior to any date of prepayment of Eurodollar Rate Loans; (B) any such
prepayment of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $500,000 in excess thereof (or, if less, the entire principal amount thereof
then outstanding); and (C) any prepayment of Base Rate Loans shall be in a principal amount
of $500,000 or a whole multiple of $250,000 in excess thereof (or, if less, the entire
principal amount thereof then outstanding). Each such notice shall specify the date and
amount of such prepayment, the



44









 






Type(s) of Loans to be prepaid and whether the Loans to be prepaid are the Revolving
Loans, the Delayed Draw Term Loan and/or the Incremental Term Loan. The Administrative
Agent will promptly notify each Lender of its receipt of each such notice, and of the amount
of such Lender’s Applicable Percentage of such prepayment. If such notice is given by the
Borrower, the Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein. Any prepayment of a
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. Subject to
Section 2.15, each such prepayment shall be applied to the Loans of the Lenders in
accordance with their respective Applicable Percentages. Each such prepayment of the
Delayed Draw Term Loan and the Incremental Term Loan shall be applied on a pro rata basis to
the Delayed Draw Term Loan and the Incremental Term Loan ratably to the remaining principal
amortization payments of the Delayed Draw Term Loan and the Incremental Term Loan until the
Delayed Draw Term Loan and the Incremental Term Loan have been paid in full.




     (ii) Swing Line Loans. The Borrower may, upon notice to the Swing Line Lender
(with a copy to the Administrative Agent), at any time or from time to time, voluntarily
prepay Swing Line Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall
be in a minimum principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof (or, if less, the entire principal thereof then outstanding). 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 Prepayments of Loans.




     (i) Revolving Commitments. If for any reason the Total Revolving Outstandings
at any time exceed the Aggregate Revolving Commitments then in effect, the Borrower shall
immediately prepay Revolving Loans and/or the Swing Line Loans and/or Cash Collateralize the
L/C Obligations in an aggregate amount equal to such excess; provided,
however, that the Borrower shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full
of the Revolving Loans and the Swing Line Loans the Total Revolving Outstandings exceed the
Aggregate Revolving Commitments then in effect.




     (ii) Dispositions and Involuntary Dispositions. The Borrower shall prepay the
Loans and/or Cash Collateralize the L/C Obligations as hereafter provided in an aggregate
amount equal to 100% of the Net Cash Proceeds of all Dispositions and Involuntary
Dispositions to the extent such Net Cash Proceeds are not reinvested in Eligible Assets
within 360 days of the date of such Disposition or Involuntary Disposition;
provided, however, the Borrower shall be permitted to retain Net Cash
Proceeds from Dispositions in an aggregate amount not to exceed $10,000,000 in any fiscal
year. Any prepayment pursuant to this clause (ii) shall be applied as set forth in clause
(iv) below.




     (iii) Debt Issuances. Immediately upon receipt by any Loan Party or any
Subsidiary of the Net Cash Proceeds of any Debt Issuance, the Borrower shall prepay the
Loans and/or Cash Collateralize the L/C Obligations as hereafter provided in an aggregate
amount equal to 100% of such Net Cash Proceeds (such prepayment to be applied as set forth
in clause (iv) below).



45









 






     (iv) Application of Mandatory Prepayments. All amounts required to be paid
pursuant to this Section 2.05(b) shall be applied as follows:




     (A) with respect to all amounts prepaid pursuant to Section 2.05(b)(i),
to Revolving Loans and Swing Line Loans and (after all Revolving Loans and Swing
Line Loans have been repaid) to Cash Collateralize L/C Obligations;




     (B) with respect to all amounts prepaid pursuant to Sections
2.05(b)(ii) and (iii), first pro rata to the Delayed Draw Term Loan and
the Incremental Term Loan (ratably to the remaining principal amortization payments
of each Loan), then (after the Delayed Draw Term Loan and the Incremental Term Loan
have been paid in full) to the Revolving Loans and then (after all Revolving Loans
have been repaid) to Cash Collateralize L/C Obligations (without a corresponding
permanent reduction in the Aggregate Revolving Commitments).




Within the parameters of the applications set forth above, prepayments shall be applied
first to Base Rate Loans and then to Eurodollar Rate Loans in direct order of Interest
Period maturities. All prepayments under this Section 2.05(b) shall be subject to
Section 3.05, but otherwise without premium or penalty, and shall be accompanied by
interest on the principal amount prepaid through the date of prepayment.


2.06 Termination or Reduction of Commitments.




     (a) Optional Reductions of the Aggregate Revolving Commitments. The Borrower may,
upon notice to the Administrative Agent, terminate the Aggregate Revolving Commitments, or from
time to time permanently reduce the Aggregate Revolving Commitments to an amount not less than the
Outstanding Amount of Revolving Loans, Swing Line Loans and L/C Obligations; provided that
(i) any such notice shall be received by the Administrative Agent not later than 12:00 noon five
(5) Business Days prior to the date of termination or reduction, (ii) any such partial reduction
shall be in an aggregate amount of $2,000,000 or any whole multiple of $1,000,000 in excess
thereof, or (iii) the Borrower shall not terminate or reduce (A) the Aggregate Revolving
Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total
Revolving Outstandings would exceed the Aggregate Revolving Commitments, (B) the Letter of Credit
Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations would exceed
the Letter of Credit Sublimit, (C) the Swing Line Sublimit if, after giving effect thereto and to
any concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans would exceed the
Swing Line Sublimit. The amount of any such Aggregate Commitment reduction shall not be applied to
the Letter of Credit Sublimit unless otherwise specified by the Borrower.



     (b) Mandatory Reductions. If after giving effect to any reduction or termination of
Revolving Commitments under this Section 2.06, the Letter of Credit Sublimit or the Swing
Line Sublimit exceed the Aggregate Revolving Commitments at such time, the Letter of Credit
Sublimit or the Swing Line Sublimit, as the case may be, shall be automatically reduced by the
amount of such excess. The Delayed Draw Term Loan Commitments will be automatically reduced by the
amount of any Borrowing of the Delayed Draw Term Loan pursuant to Section 2.01(b).



     (c) Optional Reductions of the Delayed Draw Term Loan Commitments. The Borrower may,
upon notice to the Administrative Agent, terminate or permanently reduce any Delayed Draw Term Loan
Commitments; provided, that (i) any such notice shall be received by the Administrative Agent not
later than 12:00 noon five (5) Business Days prior to the date of termination or reduction and (ii)
any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of
$10,000,000 in excess thereof.



46









 





     (d) Notice. The Administrative Agent will promptly notify the Lenders of any
termination or reduction of the Letter of Credit Sublimit, Swing Line Sublimit, the Aggregate
Revolving Commitments or the Delayed Draw Term Loan Commitments under this Section 2.06.
Upon any reduction of the Aggregate Revolving Commitments or the Delayed Draw Term Loan
Commitments, the Revolving Commitment or the Delayed Draw Term Loan Commitment, as the case may be,
of each Lender shall be reduced by such Lender’s Applicable Percentage of such reduction amount.
All fees in respect of the Aggregate Revolving Commitments and Delayed Draw Term Loan Commitments
accrued until the effective date of any termination of the Aggregate Revolving Commitments or
Delayed Draw Term Loan Commitments shall be paid on the effective date of such termination.


2.07 Repayment of Loans.




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



     (b) Swing Line Loans. The Borrower shall repay each Swing Line Loan on the earlier to
occur of (i) the date within one (1) Business Day of demand therefor by the Swing Line Lender and
(ii) the Maturity Date.



     (c) Delayed Draw Term Loan. The Borrower shall repay the outstanding principal amount
of the Delayed Draw Term Loan in installments on the dates and in the amounts set forth in the
table below (as such installments may hereafter be adjusted as a result of prepayments made
pursuant to Section 2.05, unless accelerated sooner pursuant to Section 9.02):



	 	 	 	 	 
	 	 	Principal Amortization	 
	 	 	Payment (% of the	 
	 	 	aggregate amount of	 
	 	 	Delayed Draw Term Loan	 
	Payment Dates	 	funded)	 
	June 30, 2011
	 	 	1.25	%
	September 30, 2011
	 	 	1.25	%
	December 31, 2011
	 	 	1.25	%
	March 31, 2012
	 	 	1.25	%
	June 30, 2012
	 	 	1.25	%
	September 30, 2012
	 	 	1.25	%
	December 31, 2012
	 	 	1.25	%
	March 31, 2013
	 	 	1.25	%
	June 30, 2013
	 	 	2.5	%
	September 30, 2013
	 	 	2.5	%
	December 31, 2013
	 	 	2.5	%
	March 31, 2014
	 	 	2.5	%
	June 30, 2014
	 	 	2.5	%
	September 30, 2014
	 	 	2.5	%
	December 31, 2014
	 	 	2.5	%
	March 31, 2015
	 	 	2.5	%
	June 30, 2015
	 	 	3.75	%
	September 30, 2015
	 	 	3.75	%
	December 31, 2015
	 	 	3.75	%
	Maturity Date
	 	Outstanding Principal Balance of Delayed Draw Term Loan






47









 






Notwithstanding the foregoing, the Borrower shall not be required to make any principal
amortization payment on the amount of any Delayed Draw Term Loan advance until the last day of the
first full fiscal quarter of the Borrower following any such advance.




     (d) Incremental Term Loan. The Borrower shall repay the outstanding principal amount
of the Incremental Term Loan in the installments on the dates and in the amounts set forth in the
Incremental Term Loan Joinder Agreement (as such installments may hereafter be adjusted as a result
of prepayments made pursuant to Section 2.05), unless accelerated sooner pursuant to
Section 9.02.


2.08 Interest.




     (a) Subject to the provisions of subsection (b) below, (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 sum of 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 sum of 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 sum of 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 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) While any Event of Default exists, the Borrower shall pay interest on the
principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent permitted by applicable
Laws.




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



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



2.09 Fees.




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



48









 





     (a) Commitment Fees.




     (i) The Borrower shall pay to the Administrative Agent, for the account of each
Lender in accordance with its Applicable Percentage, with respect to each Lender’s
Revolving Commitment, a commitment fee (the “Revolving Commitment Fee”)
equal to the product of (x) the Applicable Rate times (y) the actual daily
amount by which the Aggregate Revolving Commitments exceed the sum of (A) the
Outstanding Amount of Revolving Loans and (B) the Outstanding Amount of L/C
Obligations, subject to adjustment as provided in Section 2.15. The
Revolving 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
V is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with the first
such date to occur after the Closing Date, and on the Maturity Date;
provided, that (1) no Revolving Commitment Fee shall accrue on the
Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting
Lender and (2) any Revolving Commitment Fee accrued with respect to the Commitment
of a Defaulting Lender during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by the Borrower so
long as such Lender shall be a Defaulting Lender. The Revolving Commitment Fee
shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect. For purposes of clarification, Swing Line
Loans shall not be considered outstanding for purposes of determining the unused
portion of the Aggregate Revolving Commitments.




     (ii) The Borrower shall pay to the Administrative Agent, for the account of
each Lender in accordance with its Applicable Percentage, with respect to each
Lender’s Delayed Draw Commitment, a commitment fee (the “Delayed Draw Commitment
Fee”) equal to the product of (x) the Applicable Rate times (y) the
actual daily amount of the aggregate Delayed Draw Term Commitments. The Delayed
Draw 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
V is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with the first
such date to occur after the Closing Date, and on the Maturity Date;
provided, that (1) no Delayed Draw Commitment Fee shall accrue on the
Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting
Lender and (2) any Delayed Draw Commitment Fee accrued with respect to the
Commitment of a Defaulting Lender during the period prior to the time such Lender
became a Defaulting Lender and unpaid at such time shall not be payable by the
Borrower so long as such Lender shall be a Defaulting Lender. The Delayed Draw
Commitment Fees shall be calculated quarterly in arrears, and if there is any change
in the Applicable Rate during any quarter, the actual daily amount shall be computed
and multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect. For purposes of clarification, Swing Line
Loans shall not be considered outstanding for purposes of determining the unused
portion of the Aggregate Revolving Commitments.



49









 






     (b) Fee Letter. The Borrower shall pay to MLPFS and the Administrative Agent
for their own respective accounts fees in the amounts and at the times specified in the Fee
Letter. Such fees shall be fully earned when paid and shall be non-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 (including Base Rate Loans determined by
reference to the Eurodollar 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 repaid on the same day on which it is made shall, subject to Section 2.12(a), bear
interest for one day. Each determination by the Administrative Agent of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent manifest error.



     (b) If, as a result of any restatement of or other adjustment to the financial statements of
the Borrower, 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 Administrative Agent for
the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on demand by
the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for
relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically
and without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount
equal to the excess of the amount of interest and fees that should have been paid for such period
over the amount of interest and fees actually paid for such period. This paragraph shall not limit
the rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under
Section 2.03(c)(iii), 2.03(i) or 2.08(b) or under Article IX.



2.11 Evidence of Debt.




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



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



2.12 Payments Generally; Administrative Agent’s Clawback.




     (a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified
herein. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage
(or other applicable share as provided herein) of such payment in like funds as received by wire
transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after
2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest
or fee shall continue to accrue. Subject to the definition of “Interest Period”, if any payment to
be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on
the next following Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be.




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




     (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders or the L/C
Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may,
in



51









 






reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case
may be, the amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such Lender or the
L/C Issuer, in Same Day Funds with interest thereon, for each day from and including the
date such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the Overnight Rate.




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



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



     (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments
pursuant to Section 11.04(c) are several and not joint. The failure of any Lender to make
any Loan, to fund any such participation or to make any payment under Section 11.04(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 11.04(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.


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 any principal of or interest on any of the Loans made by it, or the
participations in L/C Obligations or in Swing Line Loans held by it (excluding any amounts applied
by the Swing Line Lender to outstanding Swing Line Loans) resulting in such Lender’s receiving
payment of a proportion of the aggregate amount of such Loans or participations and accrued
interest thereon greater than its pro rata share thereof as provided herein, then
the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such
fact, and (b) purchase (for cash at face value) participations in the 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 principal of and accrued interest on their respective
Loans and other amounts owing them, provided that:




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




     (ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by or on behalf of the Borrower pursuant to and in accordance with the express terms of
this Agreement (including the application of funds arising from the existence of a
Defaulting



52









 






Lender), (y) the application of Cash Collateral provided for in Section 2.14 or
(z) 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 an assignment to the Borrower or any
Subsidiary thereof (as to which the provisions of this Section shall apply).



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


2.14 Cash Collateral.




     (a) Certain Credit Support Events. Upon the request of the Administrative Agent or
the L/C Issuer (i) if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing or (ii) if, as of the Letter of
Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall,
in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.
At any time that there shall exist a Defaulting Lender, immediately upon the request of the
Administrative Agent, the L/C Issuer or the Swing Line Lender, the Borrower shall deliver to the
Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after
giving effect to Section 2.15(a)(iv) and any Cash Collateral provided by the Defaulting
Lender).



     (b) Grant of Security Interest. All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit
accounts at the Administrative Agent. The Borrower, and to the extent provided by any Lender, such
Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit
of the Administrative Agent, the L/C Issuer and the Lenders (including the Swing Line Lender) and
agrees to maintain, a first priority security interest in all such cash, deposit accounts and all
balances therein, and all other property so provided as collateral pursuant hereto, and in all
balances therein, and all other property so provided as collateral pursuant hereto, and in all
proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be
applied pursuant to Section 2.14(c). If at any time the Administrative Agent determines
that Cash Collateral is subject to any right or claim of any Person other than the Administrative
Agent as herein provided, or that the total amount of such Cash Collateral is less than the
applicable Fronting Exposure and other obligations secured thereby, the Borrower or the relevant
Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide to the
Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such
deficiency.



     (c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section 2.14 or Sections
2.03, 2.04, 2.05, 2.15 or 9.02 in respect of Letters of Credit
or Swing Line Loans shall be held and applied in satisfaction of the specific L/C Obligations,
Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral
provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for
which the Cash Collateral was so provided, prior to any other application of such property as may
be provided herein.



     (d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations shall be released promptly following (i) the elimination of
the applicable Fronting Exposure or other obligations giving rise thereto (including by the
termination of Defaulting Lender status of the applicable Lender) or (ii) the Administrative
Agent’s good faith determination that there exists excess Cash Collateral; provided,
however, (x) that Cash Collateral furnished by or on behalf



53









 




of a Loan Party shall not be released during the continuance of a Default or Event of Default
(and following application as provided in this Section 2.14 may be otherwise applied in
accordance with Section 9.03) and (y) the Person providing Cash Collateral and the L/C
Issuer or Swing Line Lender, as applicable, may agree that Cash Collateral shall not be released
but instead held to support future anticipated Fronting Exposure or other obligations.



2.15 Defaulting Lenders.




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




     (i) Waivers and Amendment. The Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 11.01.




     (ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amount received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise,
and including any amounts made available to the Administrative Agent by that Defaulting
Lender pursuant to Section 11.08), shall be applied at such time or times as may be
determined by the Administrative Agent as follows: first, to the payment of any
amounts owing by that Defaulting Lender to the Administrative Agent hereunder;
second, to the payment on a pro rata basis of any amounts owing by
that Defaulting Lender to the L/C Issuer or Swing Line Lender hereunder; third, if
so determined by the Administrative Agent or requested by the L/C Issuer or Swing Line
Lender, to be held as Cash Collateral for future funding obligations of that Defaulting
Lender of any participation in any Swing Line Loan or Letter of Credit; fourth, as
the Borrower may request (so long as no Default or Event of Default exists), to the funding
of any Loan in respect of which that Defaulting Lender has failed to fund its portion
thereof as required by this Agreement, as determined by the Administrative Agent;
fifth, if so determined by the Administrative Agent and the Borrower, to be held in
a non-interest bearing deposit account and released in order to satisfy obligations of that
Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any
amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a result of any
judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or
Swing Line Lender against that Defaulting Lender as a result of that Defaulting Lender’s
breach of its obligations under this Agreement; seventh, so long as no Default or
Event of Default exists, to the payment of any amounts owing to the Borrower as a result of
any judgment of a court of competent jurisdiction obtained by the Borrower against that
Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under
this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a
court of competent jurisdiction; provided, that, if (x) such payment is a
payment of the principal amount of any Loans or L/C Borrowings in respect of which that
Defaulting Lender has not fully funded its appropriate share and (y) such Loans or L/C
Borrowings were made at a time when the conditions set forth in Section 5.02 were
satisfied or waived, such payment shall be applied solely to the pay the Loans of, and L/C
Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to
being applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting
Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender
that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash
Collateral pursuant to this Section 2.15(a)(ii) shall be deemed paid to and
redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.



54









 






     (iii) Certain Fees. The Defaulting Lender (x) shall not be entitled to receive
any Revolving Commitment Fee or Delayed Draw Commitment Fee pursuant to Section
2.09(a) for any period during which such Lender is a Defaulting Lender (and the Borrower
shall not be required to pay any such fee that otherwise would have been required to have
been paid to such Defaulting Lender) and (y) shall be limited in its right to receive Letter
of Credit Fees as provided in Section 2.03(i).




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



     (b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, Swing Line
Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting Lender should
no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties
hereto, whereupon as of the effective date specified in such notice and subject to any conditions
set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender
will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or
take such other actions as the Administrative Agent may determined to be necessary to cause the
Revolving Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to
be held on a pro rata basis by the Lenders in accordance with their Applicable
Percentages (without giving effect to Section 2.15(a)(iv)), whereupon that Lender will
cease to be a Defaulting Lender; provided, that, no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while
that Lender was a Defaulting Lender; provided, further, that, except to the
extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting
Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising
from that Lender having been a Defaulting Lender.



ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY


3.01 Taxes.




     (a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the Loan Parties 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
any Loan Party shall be required by applicable law to deduct any Indemnified Taxes (including any
Other Taxes) from such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been made, (ii) such Loan
Party shall make such deductions and (iii) such Loan Party shall timely pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable law.



55









 





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



     (c) Indemnification by the Loan Parties. (i) The Loan Parties shall indemnify the
Administrative Agent, each Lender and the L/C Issuer, within 10 days after demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) paid by the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. The Loan Parties shall also indemnify the Administrative Agent, and shall
make payment in respect thereof within 10 days after demand therefor, for any amount which a Lender
or an L/C Issuer for any reason fails to pay indefeasibly to the Administrative Agent as required
by clause (ii) of this subsection. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent),
or by the Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall
be conclusive absent manifest error.




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



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



     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Borrower or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable the



56









 




Borrower or the Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements.




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




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




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




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




     (iv) any other form prescribed by applicable law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law to permit the Borrower to
determine the withholding or deduction required to be made.



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


3.02 Illegality.




     If any Lender determines that any Law has made it unlawful, or that any Governmental Authority
has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain
or fund Loans whose interest is determined by reference to the Eurodollar Rate, 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 applicable interbank market, then, on notice thereof by such Lender to the Borrower
through the Administrative



57









 




Agent, (i) 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 and (ii) if such notice asserts
the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is
determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on
which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by
the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in
each case until such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x)
the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay
or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the
interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality,
be determined by the Administrative Agent without reference to the Eurodollar Rate component of the
Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans and (y) if such notice asserts the
illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate,
the Administrative Agent shall during the period of such suspension compute the Base Rate
applicable to such Lender without reference to the Eurodollar Rate component thereof until the
Administrative Agent is advised in writing by such Lender that it is no longer illegal for such
Lender to determine or charge interest rates based upon the Eurodollar Rate. 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 applicable offshore interbank market for such currency 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 in connection with an existing or proposed Base 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 the Lenders of funding such
Loan, the Administrative Agent will promptly notify the Borrower and all Lenders. Thereafter, (x)
the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended and (y)
in the event of a determination described in the preceding sentence with respect to the Eurodollar
Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining
the Base Rate shall be suspended, in each case until the Administrative Agent revokes such notice.
Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing,
conversion 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.




     (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
reflected in the Eurodollar Rate);




     (ii) subject any Lender or the L/C Issuer to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or
any



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Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender or the L/C Issuer); or




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




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



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



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



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



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3.05 Compensation for Losses.




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




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




     (b) any failure by the Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on
the date or in the amount notified by the Borrower; 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
11.13;


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 used in determining 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 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. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such designation or assignment.



     (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrower
may replace such Lender in accordance with Section 11.13.



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3.07 Survival.




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



ARTICLE IV




GUARANTY


4.01 The Guaranty.




     Each of the Guarantors hereby jointly and severally guarantees to each Lender, each Affiliate
of a Lender that enters into a Swap Contract or a Treasury Management Agreement with a Loan Party,
and the Administrative Agent as hereinafter provided, as primary obligor and not as surety, the
prompt payment of the Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory Cash Collateralization or otherwise) strictly in
accordance with the terms thereof. The Guarantors hereby further agree that if any of the
Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment,
by acceleration, as a mandatory Cash Collateralization or otherwise), the Guarantors will, jointly
and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case
of any extension of time of payment or renewal of any of the Obligations, the same will be promptly
paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as
a mandatory Cash Collateralization or otherwise) in accordance with the terms of such extension or
renewal.



     Notwithstanding any provision to the contrary contained herein or in any other of the Loan
Documents, Swap Contracts or Treasury Management Agreements, the obligations of each Guarantor
under this Agreement and the other Loan Documents shall be limited to an aggregate amount equal to
the largest amount that would not render such obligations subject to avoidance under the Debtor
Relief Laws or any comparable provisions of any applicable state law.


4.02 Obligations Unconditional.




     The obligations of the Guarantors under Section 4.01 are joint and several, absolute
and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Loan Documents, Swap Contracts or Treasury Management Agreements, or any other
agreement or instrument referred to therein, or any substitution, release, impairment or exchange
of any other guarantee of or security for any of the Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being
the intent of this Section 4.02 that the obligations of the Guarantors hereunder shall be
absolute and unconditional under any and all circumstances. Each Guarantor agrees that such
Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against the
Borrower or any other Guarantor for amounts paid under this Article IV until such time as
the Obligations have been paid in full and the Commitments have expired or terminated. Without
limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by
law, the occurrence of any one or more of the following shall not alter or impair the liability of
any Guarantor hereunder, which shall remain absolute and unconditional as described above:




     (a) at any time or from time to time, without notice to any Guarantor, the time
for any performance of or compliance with any of the Obligations shall be extended, or such
performance or compliance shall be waived;




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     (b) any of the acts mentioned in any of the provisions of any of the Loan
Documents, any Swap Contract or Treasury Management Agreement between any Loan Party and any
Lender, or any Affiliate of a Lender, or any other agreement or instrument referred to in
the Loan Documents, such Swap Contracts or such Treasury Management Agreements shall be done
or omitted;




     (c) the maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any right under
any of the Loan Documents, any Swap Contract or Treasury Management Agreement between any
Loan Party and any Lender, or any Affiliate of a Lender, or any other agreement or
instrument referred to in the Loan Documents, such Swap Contracts or such Treasury
Management Agreements shall be waived or any other guarantee of any of the Obligations or
any security therefor shall be released, impaired or exchanged in whole or in part or
otherwise dealt with;




     (d) any Lien granted to, or in favor of, the Administrative Agent or any Lender or
Lenders as security for any of the Obligations shall fail to attach or be perfected; or




     (e) any of the Obligations shall be determined to be void or voidable (including,
without limitation, for the benefit of any creditor of any Guarantor) or shall be
subordinated to the claims of any Person (including, without limitation, any creditor of any
Guarantor).



     With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence,
presentment, demand of payment, protest and all notices whatsoever, and any requirement that the
Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Person
under any of the Loan Documents, any Swap Contract or any Treasury Management Agreement between any
Loan Party and any Lender, or any Affiliate of a Lender, or any other agreement or instrument
referred to in the Loan Documents, such Swap Contracts or such Treasury Management Agreements, or
against any other Person under any other guarantee of, or security for, any of the Obligations.


4.03 Reinstatement.




     The obligations of the Guarantors under this Article IV shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf of any Person in
respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the
Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise,
and each Guarantor agrees that it will indemnify the Administrative Agent and each Lender on demand
for all reasonable costs and expenses (including, without limitation, the fees, charges and
disbursements of counsel) incurred by the Administrative Agent or such Lender in connection with
such rescission or restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent transfer or similar
payment under any bankruptcy, insolvency or similar law.


4.04 Certain Additional Waivers.




     Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the
Obligations, except through the exercise of rights of subrogation pursuant to Section 4.02
and through the exercise of rights of contribution pursuant to Section 4.06.


4.05 Remedies.




     The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors,
on the one hand, and the Administrative Agent and the Lenders, on the other hand, the Obligations
may be declared to be forthwith due and payable as provided in Section 9.02 (and shall be
deemed to have become



62









 




automatically due and payable in the circumstances provided in said Section 9.02) for
purposes of Section 4.01 notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing the Obligations from becoming automatically due and
payable) as against any other Person and that, in the event of such declaration (or the Obligations
being deemed to have become automatically due and payable), the Obligations (whether or not due and
payable by any other Person) shall forthwith become due and payable by the Guarantors for purposes
of Section 4.01. The Guarantors acknowledge and agree that their obligations hereunder are
secured in accordance with the terms of the Collateral Documents and that the Lenders may exercise
their remedies thereunder in accordance with the terms thereof.



4.06 Rights of Contribution.




     The Guarantors agree among themselves that, in connection with payments made hereunder, each
Guarantor shall have contribution rights against the other Guarantors as permitted under applicable
law. Such contribution rights shall be subordinate and subject in right of payment to the
obligations of such Guarantors under the Loan Documents and no Guarantor shall exercise such rights
of contribution until all Obligations have been paid in full and the Commitments have terminated.


4.07 Guarantee of Payment; Continuing Guarantee.




     The guarantee in this Article IV is a guaranty of payment and not of collection, is a
continuing guarantee, and shall apply to all Obligations whenever arising.



ARTICLE V




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


5.01 Conditions of Initial Credit Extension.




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




     (a) Loan Documents. Receipt by the Administrative Agent of executed
counterparts of this Agreement and the other Loan Documents, each properly executed by a
Responsible Officer of the signing Loan Party and, in the case of this Agreement, by each
Lender.




     (b) Opinions of Counsel. Receipt by the Administrative Agent of favorable
opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and
each Lender, dated as of the Closing Date, and in form and substance satisfactory to the
Administrative Agent.




     (c) No Material Adverse Change. There shall not have occurred a material
adverse change since December 31, 2009 in the business, assets, properties, liabilities
(actual or contingent), operations or financial condition of the Borrower and its
Subsidiaries, taken as a whole.




     (d) Litigation. There shall not exist any action, suit, investigation or
proceeding pending or, to the knowledge of the Borrower, threatened in any court or before
an arbitrator or Governmental Authority that could reasonably be expected to have a Material
Adverse Effect.




     (e) Organization Documents, Resolutions, Etc. Receipt by the Administrative
Agent of the following, each of which shall be originals or facsimiles (followed promptly by
originals), in form and substance satisfactory to the Administrative Agent and its legal
counsel:



63









 






     (i) copies of the Organization Documents of each Loan Party certified to be
true and complete as of a recent date by the appropriate Governmental Authority of
the state or other jurisdiction of its incorporation or organization, where
applicable, and certified by a secretary or assistant secretary of such Loan Party
to be true and correct as of the Closing Date;




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




     (iii) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or formed, and
is validly existing, in good standing and qualified to engage in business in its
state of organization or formation.




     (f) Perfection and Priority of Liens. Receipt by the Administrative Agent of
the following:




     (i) searches of Uniform Commercial Code filings in the jurisdiction of
formation of each Loan Party, copies of the financing statements on file in such
jurisdictions and evidence that no Liens exist other than Permitted Liens;




     (ii) UCC financing statements for each appropriate jurisdiction as is
necessary, in the Administrative Agent’s sole discretion, to perfect the
Administrative Agent’s security interest in the Collateral;




     (iii) all certificates evidencing any certificated Equity Interests pledged to
the Administrative Agent pursuant to the Pledge Agreement, together with duly
executed in blank and undated stock powers attached thereto; and




     (iv) all promissory notes, if applicable, evidencing any intercompany loans
pledged to the Administrative Agent pursuant to the Pledge Agreement, together with
duly executed in blank and undated allonges attached thereto.




     (g) Closing Certificate. Receipt by the Administrative Agent of a certificate
signed by a Responsible Officer of the Borrower certifying that (i) the conditions specified
in Sections 5.01(c) and (d) and Sections 5.02(a) and (b)
have been satisfied, and (ii) the Borrower and its Subsidiaries are Solvent on a
consolidated basis.




     (h) Fees. Receipt by the Administrative Agent and the Lenders of any fees
required to be paid on or before the Closing Date.




     (i) Attorney Costs. Unless waived by the Administrative Agent, the Borrower
shall have paid all fees, charges and disbursements of counsel to the Administrative Agent
to the extent invoiced prior to 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



64









 






not thereafter preclude a final settling of accounts between the Borrower and the
Administrative Agent).




     (j) Other. Receipt by the Administrative Agent and the Lenders of such other
documents, instruments, agreements and information as reasonably requested by the
Administrative Agent or any Lender, including, but not limited to, information regarding
litigation, tax, accounting, labor, insurance, pension liabilities (actual or contingent),
real estate leases, material contracts, debt agreements, property ownership, environmental
matters, contingent liabilities and management of the Borrower and its Subsidiaries; such
information may include, if requested by the Administrative Agent, asset appraisal reports
and written audits of accounts receivable, inventory, payables, controls and systems.



     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
5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved
or accepted or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


5.02 Conditions to all Credit Extensions.




     The obligation of each Lender to honor any Request for Credit Extension is subject to the
following conditions precedent:




     (a) The representations and warranties of the Borrower and each other Loan Party
contained in Article VI or any other Loan Document, or which are contained in any
document furnished at any time under or in connection herewith or therewith, shall be true
and correct on and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they
shall be true and correct as of such earlier date, and except that for purposes of this
Section 5.02, the representations and warranties contained in subsections (a) and
(b) of Section 6.05 shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of Section 7.01.




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




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




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



     Each Request for Credit Extension submitted by the Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections 5.02(a) and
(b) have been satisfied on and as of the date of the applicable Credit Extension.



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ARTICLE VI




REPRESENTATIONS AND WARRANTIES



     The Loan Parties represent and warrant to the Administrative Agent and the Lenders that:


6.01 Existence, Qualification and Power.




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


6.02 Authorization; No Contravention.




     The execution, delivery and performance by each Loan Party of each Loan Document to which such
Person is party have been duly authorized by all necessary corporate or other organizational
action, and do not (a) contravene the terms of any of such Person’s Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of any Lien under, or
require any payment to be made under (i) any Contractual Obligation to which such Person is a party
or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any
order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such
Person or its property is subject; or (c) violate any Law (including, without limitation,
Regulation U or Regulation X issued by the FRB).


6.03 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
the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement
or any other Loan Document other than (i) those that have already been obtained and are in full
force and effect and (ii) filings to perfect the Liens created by the Collateral Documents.


6.04 Binding Effect.




     Each Loan Document has been duly executed and delivered by each Loan Party that is party
thereto. Each Loan Document constitutes a legal, valid and binding obligation of each Loan Party
that is party thereto, enforceable against each such Loan Party in accordance with its terms.


6.05 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, commitments and
Indebtedness.



66









 





     (b) The Interim 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, subject, in the case of clauses (i)
and (ii), to the absence of footnotes and to normal year-end audit adjustments; and (iii) show all
material indebtedness and other liabilities, direct or contingent, of the Borrower and its
Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and
Indebtedness.



     (c) From the date of the Audited Financial Statements to and including the Closing Date, there
has been no Disposition by the Borrower or any Subsidiary, or any Involuntary Disposition, of any
material part of the business or property of the Borrower and its Subsidiaries, taken as a whole,
and no purchase or other acquisition by any of them of any business or property (including any
Equity Interests of any other Person) material in relation to the consolidated financial condition
of the Borrower and its Subsidiaries, taken as a whole, in each case, which is not reflected in the
foregoing financial statements or in the notes thereto and has not otherwise been disclosed in
writing to the Lenders on or prior to the Closing Date.



     (d) The financial statements delivered pursuant to Section 7.01(a) and (b) have been
prepared in accordance with GAAP (except as may otherwise be permitted under Section
7.01(a) and (b)) and present fairly (on the basis disclosed in the footnotes to such
financial statements) the consolidated and consolidating, financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries as of the dates thereof and for the
periods covered thereby.



     (e) 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.


6.06 Litigation.




     There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of
the Loan Parties after due and diligent investigation, threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, by or against any Loan Party 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 any of the transactions contemplated
hereby or (b) as to which there is a reasonable possibility of an adverse determination and if
determined adversely, could reasonably be expected to have a Material Adverse Effect.


6.07 No Default.




     (a) Neither any Loan Party nor any Subsidiary is in default under or with respect to any
Contractual Obligation that could reasonably be expected to have a Material Adverse Effect.



     (b) No Default has occurred and is continuing.


6.08 Ownership of Property; Liens.




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



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6.09 Environmental Compliance.




     Except as could not reasonably be expected to have a Material Adverse Effect:




     (a) Each of the Facilities and all operations at the Facilities are in compliance with
all applicable Environmental Laws, and there is no violation of any Environmental Law with
respect to the Facilities or the Businesses, and there are no conditions relating to the
Facilities or the Businesses that could give rise to liability under any applicable
Environmental Laws.




     (b) None of the Facilities contains, or has previously contained, any Hazardous
Materials at, on or under the Facilities in amounts or concentrations that constitute or
constituted a violation of, or could give rise to liability under, Environmental Laws.




     (c) Neither any Loan Party nor any Subsidiary has received any written or verbal notice
of, or inquiry from any Governmental Authority regarding, any violation, alleged violation,
non-compliance, liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Facilities or the Businesses,
nor does any Responsible Officer of any Loan Party have knowledge or reason to believe that
any such notice will be received or is being threatened.




     (d) Hazardous Materials have not been transported or disposed of from the Facilities,
or generated, treated, stored or disposed of at, on or under any of the Facilities or any
other location, in each case by or on behalf any Loan Party or any Subsidiary in violation
of, or in a manner that would be reasonably likely to give rise to liability under, any
applicable Environmental Law.




     (e) No judicial proceeding or governmental or administrative action is pending or, to
the knowledge of the Loan Parties, threatened, under any Environmental Law to which any Loan
Party or any Subsidiary is or will be named as a party, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law with respect
to any Loan Party, any Subsidiary, the Facilities or the Businesses.




     (f) There has been no release or threat of release of Hazardous Materials at or from
the Facilities, or arising from or related to the operations (including, without limitation,
disposal) of any Loan Party or any Subsidiary in connection with the Facilities or otherwise
in connection with the Businesses, in violation of or in amounts or in a manner that could
give rise to liability under Environmental Laws.


6.10 Insurance.




     The properties of the Loan Parties and their Subsidiaries are insured with financially sound
and reputable insurance companies (or, to the extent permitted by Section 7.07,
self-insured), in such amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties in localities
where the applicable Loan Party or the applicable Subsidiary operates.


6.11 Taxes.




     The Loan Parties and their Subsidiaries have filed all federal income tax returns, state tax
returns and other tax returns and reports required to be filed, and have paid all federal income
taxes, state taxes



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and other taxes, assessments, fees and other governmental charges levied or imposed upon them
or their properties, income or assets otherwise due and payable, except (a) those which are being
contested in good faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP or (b) where the failure to make any such
filing or payment could not reasonably be expected to have a Material Adverse Effect. There is no
proposed tax assessment against any Loan Party or any Subsidiary that would, if made, have a
Material Adverse Effect.



6.12 ERISA Compliance.




     (a) Each Plan is in compliance in all respects with the applicable provisions of ERISA, except
to the extent the failure to do so could not reasonably be expected to have a Material Adverse
Effect. Each Pension Plan that is intended to be a qualified plan under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the IRS to the effect that
the form of such Plan is qualified under Section 401(a) of the Code and the trust related thereto
has been determined by the IRS to be exempt from federal income tax under Section 501(a) of the
Code or an application for such a letter is currently being processed by the IRS except to the
extent that the failure to do so could not reasonably be expected to have a Material Adverse
Effect. To the best knowledge of the Loan Parties, nothing has occurred that would prevent, or
cause the loss of, such tax-qualified status.



     (b) There are no pending or, to the best knowledge of the Loan Parties, threatened claims,
actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could
be 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) No ERISA Event has occurred and neither the Borrower nor any ERISA Affiliate is aware of
any fact, event or circumstance that could reasonably be expected to constitute or result in an
ERISA Event with respect to any Pension Plan; (ii) the Borrower and each ERISA Affiliate has met
all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no
waiver of the minimum funding standards under the Pension Funding Rules has been applied for or
obtained; (iii) neither the Borrower nor any ERISA Affiliate has incurred any liability to the PBGC
other than for the payment of premiums, and there are no premium payments which have become due
that are unpaid; (iv) neither the Borrower nor any ERISA Affiliate has engaged in a transaction
that could be subject to Section 4069 or Section 4212(c) of ERISA; and (v) no Pension Plan has been
terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has
occurred or exists that could reasonably be expected to cause the PGBC to institute proceedings
under Title IV of ERISA to terminate any Pension Plan.


6.13 Subsidiaries.




     Set forth on Schedule 6.13 is a complete and accurate list as of the Closing Date of
each Subsidiary of any Loan Party, together with (i) jurisdiction of formation, (ii) number of
shares of each class of Equity Interests outstanding, (iii) number and percentage of outstanding
shares of each class owned (directly or indirectly) by any Loan Party or any Subsidiary and (iv)
number and effect, if exercised, of all outstanding options, warrants, rights of conversion or
purchase and all other similar rights with respect thereto. The outstanding Equity Interests of
each Subsidiary of any Loan Party is validly issued, fully paid and non-assessable (except as such
rights may arise under mandatory provisions of applicable statutory law that may not be waived or
otherwise agreed and not as a result of any rights contained in any organizational document).



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6.14 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 (either of the Borrower only or of
the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of Section
8.01 or Section 8.05 or subject to any restriction 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 9.01(e) will be margin stock.



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


6.15 Disclosure.




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


6.16 Compliance with Laws.




     Each Loan Party and each Subsidiary is in compliance 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 could not reasonably be expected to have a Material Adverse Effect.


6.17 Intellectual Property; Licenses, Etc.




     Each Loan Party and its Subsidiaries own, or possess the legal right to use, all of the
trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses
and other intellectual property rights (collectively, “IP Rights”), except for any failure
that could not reasonably be expected to have a Material Adverse Effect. Except for such claims
and infringements that could not reasonably be expected to have a Material Adverse Effect, no claim
has been asserted and is pending by any Person challenging or questioning the use of any IP Rights
or the validity or effectiveness of any IP Rights, nor does any Loan Party know of any such claim,
and, to the knowledge of the Loan Parties, the use of any IP Rights by any Loan Party or any of its
Subsidiaries or the granting of a right or a license in respect of any IP Rights from any Loan
Party or any of its Subsidiaries does not infringe on the rights of any Person.



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6.18 Solvency.




     The Loan Parties are Solvent on a consolidated basis.


6.19 Perfection of Security Interests in the Collateral.




     The Collateral Documents create valid security interests in, and Liens on, the Collateral
purported to be covered thereby, which security interests and Liens are currently perfected
security interests and Liens, prior to all other Liens other than Permitted Liens.


6.20 Information.




     Set forth on Schedule 6.20(a) is the tax payer identification number and
organizational identification number of each Loan Party as of the Closing Date. The exact legal
name and state of organization of each Loan Party as of the Closing Date is as set forth on the
signature pages hereto. Except as set forth on Schedule 6.20(b), no Loan Party has during
the five years preceding the Closing Date (i) changed its legal name, (ii) changed its state of
formation, or (iii) been party to a merger, consolidation or other change in structure.


6.21 Labor Matters.




     There are no collective bargaining agreements or Multiemployer Plans covering the employees of
any Loan Party or any Subsidiary as of the Closing Date and neither any Loan Party nor any
Subsidiary has suffered any strikes, walkouts, work stoppages or other material labor difficulty
within the last five years the result is reasonably expected to cause a Material Adverse Effect.


6.22 OFAC.




     No Loan Party (i) is a person whose property or interest in property is blocked or subject to
blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed.
Reg. 49079 (2001)), (ii) engages in any dealings or transactions prohibited by Section 2 of such
executive order, or is otherwise associated with any such person in any manner violative of Section
2, except where such conduct or transactions could not reasonably be expected to expose the
Administrative Agent, or any Lenders or L/C Issuer or any Related Parties of such Persons to any
material liability or material detriment (which for the avoidance of doubt, would include
reputational harm) (it being understood that should any such harm result therefrom, the indemnity
provisions of Section 11.04 shall apply in respect thereof in accordance with the terms and
provisions of such Section), or (iii) is a person on the list of Specially Designated Nationals and
Blocked Persons or subject to asset blocking or other trade or financial sanctions under any other
U.S. Department of Treasury’s Office of Foreign Assets Control regulation or executive order.


6.23 Patriot Act.




     Each Loan Party is in compliance, in all material respects, with (i) the Trading with the
Enemy Act, as amended, and each of the foreign assets control regulations of the United States
Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation
or executive order relating thereto, and (ii) any provisions of the Uniting And Strengthening
America By Providing Appropriate Tools Required To Intercept And Obstruct Terrorism (USA Patriot
Act of 2001) which, if violated by any Loan Party could be reasonably expected to cause material
liability to the Administrative Agent, Lenders, the L/C Issuer or any Related Parties of such
Persons. No part of the proceeds of the



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Loans will be used, directly or indirectly, for any payments to any governmental official or
employee, political party, official of a political party, candidate for political office, or anyone
else acting in an official capacity, in order to obtain, retain or direct business or obtain any
improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as
amended, except where such use could not reasonably be expected to expose the Administrative Agent,
or any Lenders or L/C Issuer or any Related Parties of such Persons to any material liability or
material detriment (which for the avoidance of doubt, would include reputational harm) (it being
understood that should any such harm result therefrom, the indemnity provisions of Section
11.04 shall apply in respect thereof in accordance with the terms and provisions of such
Section).




ARTICLE VII




AFFIRMATIVE COVENANTS



     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Loan Parties shall and shall cause each Subsidiary to:


7.01 Financial Statements.




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




     (a) upon the earlier of the date that is ninety days after the end of each fiscal year
of the Borrower or the date such information is filed with the SEC, 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, shareholders’ 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 a Registered 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 applicable
Securities Laws and shall not be subject to any “going concern” or like qualification or
exception or any qualification or exception as to the scope of such audit; and




     (b) upon the earlier of the date that is forty-five days after the end of each of the
first three fiscal quarters of each fiscal year of the Borrower or the date such information
is filed with the SEC, 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, shareholders’ equity 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 and certified by
a Responsible Officer of the Borrower as fairly presenting the financial condition, results
of operations, shareholders’ equity 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.


7.02 Certificates; Other Information.




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



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     (a) concurrently with the delivery of the financial statements referred to in
Section 7.01(a), a certificate of its independent certified public accountants
certifying such financial statements and stating 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 of such event;




     (b) concurrently with the delivery of the financial statements referred to in
Sections 7.01(a) and (b), a duly completed Compliance Certificate signed by
a Responsible Officer of the Borrower;




     (c) at least 60 days after the end of each fiscal year of the Borrower, beginning with
the fiscal year ending December 31, 2010, an annual business plan and budget of the Borrower
and its Subsidiaries containing, among other things, pro forma financial statements for each
quarter of the next fiscal year (it being understood that such budget may not include any
stock-based expenses of the Borrower and its Subsidiaries);




     (d) promptly after any request by the Administrative Agent or any Lender, copies of
each annual report, proxy or financial statement or other report or communication sent to
the equityholders of any Loan Party, and copies of all annual, regular, periodic and special
reports and registration statements which a Loan Party may file or be required to file with
the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise
required to be delivered to the Administrative Agent pursuant hereto;




     (e) concurrently with the delivery of the financial statements referred to in
Sections 7.01(a) and (b), a certificate of a Responsible Officer of the
Borrower containing information regarding the amount of all Dispositions, Involuntary
Dispositions, Debt Issuances, Equity Issuances and Acquisitions, in any one instance
exceeding the Threshold Amount, that occurred during the period covered by such financial
statements;




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




     (g) promptly after the furnishing thereof, copies of any statement or report furnished
to any holder of debt securities of any Loan Party or any Subsidiary thereof pursuant to the
terms of any indenture, loan or credit or similar agreement and not otherwise required to be
furnished to the Lenders pursuant to Section 7.01 or any other clause of this
Section 7.02;




     (h) 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 by such agency regarding financial or other operational results of any Loan
Party or any Subsidiary thereof;




     (i) promptly upon the consummation of any PILOT Transaction, copies of the
documentation governing such PILOT Transaction; and



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



     Documents required to be delivered pursuant to Section 7.01(a) or (b) or
Section 7.02 (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 11.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or
any Lender upon its request to the Borrower to deliver such paper copies until a written request to
cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the
Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail)
of the posting of any such documents other than any documents filed with the SEC that are publicly
available on the SEC’s Internet website. The Administrative Agent shall have no obligation to
request the delivery or to maintain paper copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with any such request for
delivery by a Lender, and each Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.



     The Borrower hereby acknowledges that (a) the Administrative Agent and/or MLPFS will make
available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf
of the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”) and (b)
certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to the Borrower or its Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Person’s securities. The Borrower hereby agrees
that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly
and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the
Borrower shall be deemed to have authorized the Administrative Agent, MLPFS and the Lenders to
treat such Borrower Materials as not containing any material non-public information with respect to
the Borrower or its securities for purposes of United States federal and state securities laws
(provided, however, that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 11.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform
designated as “Public Side Information;” and (z) the Administrative Agent and MLPFS shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for
posting on a portion of the Platform that is not designated as “Public Side Information.”
Notwithstanding the foregoing, the Borrower shall be under no Obligation to mark any borrower
Materials “PUBLIC”.


7.03 Notices.




     (a) Promptly (and in any event, within two Business Days) notify the Administrative Agent and
each Lender of the occurrence of any Default.



     (b) Promptly notify the Administrative Agent and each Lender of any matter that has resulted
or could reasonably be expected to result in a Material Adverse Effect, including (i) breach or



74









 




non-performance of, or any default under, a Contractual Obligation of any Loan Party or any
Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between any Loan
Party or any Subsidiary and any Governmental Authority; or (iii) the commencement of, or any
material development in, any litigation or proceeding affecting any Loan Party or any Subsidiary,
including pursuant to any applicable Environmental Laws.




     (c) Promptly notify the Administrative Agent and each Lender of the occurrence of any ERISA
Event.



     (d) Promptly notify the Administrative Agent and each Lender of any material change in
accounting policies or financial reporting practices by the Borrower or any Subsidiary.



     Each notice pursuant to this Section 7.03(a) through (d) 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 applicable Loan Party has taken and proposes to
take with respect thereto. Each notice pursuant to Section 7.03(a) shall describe with
particularity any and all provisions of this Agreement and any other Loan Document that have been
breached.


7.04 Payment of Taxes.




     Pay and discharge, as the same shall become due and payable, all tax liabilities, assessments
and governmental charges or levies upon it or its properties or assets, unless (a) 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 Loan Party or such Subsidiary or (b) the
failure to pay or discharge such liabilities, assessments, charges or levies could not reasonably
be expected to have a Material Adverse Effect.


7.05 Preservation of Existence, Etc.




     (a) Preserve, renew and maintain in full force and effect its legal existence under the Laws
of the jurisdiction of its organization except in a transaction permitted by Section 8.04
or 8.05.



     (b) Preserve, renew and maintain in full force and effect its good standing under the Laws of
the jurisdiction of its organization, except to the extent the failure to do so could not
reasonably be expected to have a Material Adverse Effect.



     (c) 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
the failure to do so could not reasonably be expected to have a Material Adverse Effect.



     (d) Preserve or renew all of its registered patents, copyrights, trademarks, trade names and
service marks, the non-preservation of which could reasonably be expected to have a Material
Adverse Effect.


7.06 Maintenance of Properties.




     (a) Maintain, preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order and condition, ordinary wear and tear excepted.



     (b) Make all necessary repairs thereto and renewals and replacements thereof, except to the
extent that the failure to do so could not reasonably be expected to have a Material Adverse
Effect.



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     (c) Use the standard of care typical in the industry in the operation and maintenance of its
facilities, except to the extent that the failure to do so could not reasonably be expected to have
a Material Adverse Effect.


7.07 Maintenance of Insurance.




     (a) At all times maintain in full force and effect, with financially sound and reputable
insurance companies, products liability insurance and insurance on all property owned, occupied or
controlled by it in at least such amounts (including deductibles) and against at least such risks
insured against in the same general area by companies engaged in the same or a similar business and
such other insurance as may be required by law; provided that the Borrower and its
Subsidiaries may reduce the amount of insurance required to be maintained above to the extent the
Borrower determines that it is prudent and appropriate to maintain self-insurance coverage in lieu
of such insurance.



     (b) Furnish to the Administrative Agent, upon written request of the Administrative Agent, a
summary of the insurance carried together with certificates of insurance and other evidence of such
insurance.


7.08 Compliance with Laws.




     Comply 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.


7.09 Books and Records.




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



     (b) Maintain such books of record and account in conformity with all applicable requirements
of any Governmental Authority having regulatory jurisdiction over such Loan Party or such
Subsidiary, as the case may be, except to the extent that the failure to do so could not reasonably
be expected to have a Material Adverse Effect.


7.10 Inspection Rights.




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



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7.11 Use of Proceeds.




     Use the proceeds of the Credit Extensions (a) to refinance the Existing Credit Agreement and
to repurchase the Convertible Notes (including through tender offer, open market purchases and
redemption), (b) to finance working capital, capital expenditures, Permitted Acquisitions, and
stock repurchases permitted by Section 8.06 and (c) for other general corporate purposes,
provided that the proceeds of the Delayed Draw Term Loan shall only be used to repurchase,
redeem or otherwise acquire (including through tender offer, open market purchases and redemption)
the Convertible Notes and to pay any associated fees and expenses; provided,
further, that in no event shall the proceeds of the Credit Extensions be used in
contravention of any Law or of any Loan Document.


7.12 Additional Subsidiaries.




     Within thirty (30) days after the acquisition or formation of any Subsidiary:




     (a) notify the Administrative Agent thereof in writing, together with the (i)
jurisdiction of formation, (ii) number of shares of each class of Equity Interests
outstanding, (iii) number and percentage of outstanding shares of each class owned (directly
or indirectly) by the Borrower or any Subsidiary and (iv) number and effect, if exercised,
of all outstanding options, warrants, rights of conversion or purchase and all other similar
rights with respect thereto; and




     (b) if such Subsidiary is a Material Domestic Subsidiary, cause such Person to (i)
become a Guarantor by executing and delivering to the Administrative Agent a Joinder
Agreement or such other documents as the Administrative Agent shall deem appropriate for
such purpose, and (ii) deliver to the Administrative Agent documents of the types referred
to in Sections 5.01(f) and (g) and favorable opinions of counsel to such
Person (which shall cover, among other things, the legality, validity, binding effect and
enforceability of the documentation referred to in clause (a)), all in form, content and
scope reasonably satisfactory to the Administrative Agent.


7.13 ERISA Compliance.




     Do, and cause each of its ERISA Affiliates to do, each of the following: (a) maintain each
Plan in compliance in all material respects with the applicable provisions of ERISA, the Internal
Revenue Code and other federal or state law; (b) cause each Plan that is qualified under Section
401(a) of the Internal Revenue Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Internal Revenue Code.


7.14 Pledged Assets.




     (a) Equity Interests. Cause (a) 100% of the issued and outstanding Equity Interests
of each Domestic Subsidiary directly owned by a Loan Party and (b) 65% of the issued and
outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote (within
the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Material Foreign Subsidiary directly
owned by a Loan Party to be subject at all times to a first priority, perfected Lien in favor of
the Administrative Agent pursuant to the terms and conditions of the Collateral Documents, together
with opinions of counsel and any filings and deliveries reasonably necessary in connection
therewith to perfect the security interests therein, all in form and substance reasonably
satisfactory to the Administrative Agent.



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     (b) Intercompany Debt. Cause all of the outstanding intercompany promissory notes
evidencing Indebtedness (other than working capital advances) owing from a direct Subsidiary of a
Loan Party which is not a Guarantor to the Borrower or any Guarantor to be promptly delivered to
the Administrative Agent, together with duly executed in blank and undated allonges attached
thereto such that at all times the Administrative Agent shall maintain a first priority, perfected
Lien pursuant to the terms and conditions of the Collateral Documents, and any filings and
deliveries reasonably necessary in connection therewith to perfect the security interests therein,
all in form and substance reasonably satisfactory to the Administrative Agent.



ARTICLE VIII




NEGATIVE COVENANTS



     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, no
Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly:


8.01 Liens.




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




     (a) Liens pursuant to any Loan Document;




     (b) Liens existing on the date hereof and listed on Schedule 8.01 and any
renewals or extensions thereof, provided that (i) the property covered thereby is
not changed, (ii) the amount secured or benefited thereby is not increased, (iii) the direct
or any contingent obligor with respect thereto is not changed, and (iv) any renewal or
extension of the obligations secured or benefited thereby is permitted by Section
8.03(b);




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




     (d) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and suppliers and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary course of business,
provided that such Liens secure only amounts not yet due and payable or, if due and
payable, are unfiled and no other action has been taken to enforce the same or are being
contested in good faith by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established;




     (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
Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;



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     (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;




     (h) Liens securing judgments for the payment of money (or appeal or other surety bonds
relating to such judgments) not constituting an Event of Default under Section
9.01(i);




     (i) Liens securing Indebtedness permitted under Section 8.03(e);
provided that (i) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness, (ii) the Indebtedness secured thereby does not
exceed the cost or fair market value, whichever is lower, of the property being acquired on
the date of acquisition and (iii) such Liens attach to such property concurrently with or
within ninety days after the acquisition thereof;




     (j) leases or subleases granted to others not interfering in any material respect with
the business of any Loan Party or any of its Subsidiaries;




     (k) any interest of title of a lessor under, and Liens arising from UCC financing
statements (or equivalent filings, registrations or agreements in foreign jurisdictions)
relating to, leases (including operating leases) permitted by this Agreement;




     (l) Liens deemed to exist in connection with Investments in repurchase agreements
permitted under Section 8.02;




     (m) normal and customary rights of setoff upon deposits of cash in favor of banks or
other depository institutions;




     (n) Liens of a collection bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection;




     (o) Liens of sellers of goods to the Borrower and any of its Subsidiaries arising under
Article 2 of the Uniform Commercial Code or similar provisions of applicable law in the
ordinary course of business, covering only the goods sold and securing only the unpaid
purchase price for such goods and related expenses;




     (p) Liens on certain accounts receivable of a Foreign Subsidiary which are subject to a
factoring program entered into by such Foreign Subsidiary in accordance with the terms of
Section 8.03(g);




     (q) Liens in favor of the applicable IDB with respect to any PILOT Program Property;




     (r) Liens, if any, in favor of the Administrative Agent on Cash Collateral delivered
pursuant to Section 2.15(a); and




     (s) Liens on cash in favor of a seller of any property to be acquired pursuant to an
Acquisition permitted by Section 8.02(i) to be applied against the purchase price
for such Acquisition.



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8.02 Investments.




     Make any Investments, except:




     (a) Investments held by the Borrower or such Subsidiary in the form of cash or Cash
Equivalents; provided that aggregate value of Cash Equivalents of the Borrower and
its Subsidiaries with maturities exceeding 18 months shall not exceed fifty percent (50%) of
the aggregate value of all Cash Equivalents of the Borrower and its Subsidiaries;




     (b) Investments existing as of the Closing Date and set forth in Schedule 8.02;




     (c) Investments in any Person that is a Loan Party prior to giving effect to such
Investment;




     (d) Investments by any Foreign Subsidiary of the Borrower in any other Foreign
Subsidiary of the Borrower;




     (e) Investments (including loans and advances) by any Loan Party in any Foreign
Subsidiary; provided that the aggregate principal amount of all such Investments (excluding
any Investments permitted under Section 8.02(b)) shall not exceed an amount equal to
the lesser of (i) 10% of Consolidated Tangible Assets and (ii) $65,000,000 at any one time
outstanding, it being understood that an Investment in a Domestic Subsidiary who owns a
Foreign Subsidiary shall be tested on the basis of whether such Investment in such Domestic
Subsidiary is permitted hereunder and shall not be deemed to reduce the amount of
Investments available to be invested pursuant to this clause (e);




     (f) 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;




     (g) Guarantees permitted by Section 8.03;




     (h) advances or loans (excluding travel expenses) to officers of the Borrower or any
Subsidiary in an aggregate principal amount not to exceed (x) $500,000 in any fiscal year
and (y) $1,000,000 during the term of this Agreement;




     (i) Permitted Acquisitions;




     (j) other Investments not otherwise permitted pursuant to this Section 8.02 in
an aggregate principal amount not to exceed an amount equal to 7.5% of Consolidated Total
Assets at any one time outstanding; and




     (k) the Wright Medical Europe Transaction.


8.03 Indebtedness.




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




     (a) Indebtedness under the Loan Documents;



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     (b) Indebtedness of the Borrower and its Subsidiaries set forth in Schedule 8.03;




     (c) intercompany Indebtedness permitted under Section 8.02;




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




     (e) purchase money Indebtedness (including obligations in respect of Capital Leases or
Synthetic Leases) of the Borrower or any of its Subsidiaries (whether incurred before or
after the Closing Date) to finance the purchase and/or construction of fixed assets, and
renewals, refinancings and extensions thereof, provided that (i) the total of all
such Indebtedness (including all refinanced Indebtedness incurred in accordance with clause
(iii) below) for all such Persons taken together shall not exceed an aggregate principal
amount of $55,000,000 at any one time outstanding; (ii) such Indebtedness when incurred
shall not exceed the purchase price or construction cost of the asset(s) financed; and (iii)
no such Indebtedness shall be refinanced for a principal amount in excess of the greater of
(x) the principal balance outstanding thereon at the time of such refinancing or (y) the
fair market value of such asset(s) financed;




     (f) unsecured Subordinated Indebtedness;




     (g) Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed
20,000,000 Euros pursuant to a factoring program entered into by such Foreign Subsidiaries;




     (h) other unsecured Indebtedness of the Borrower and its Subsidiaries in an aggregate
principal amount not to exceed $5,000,000 at any one time outstanding; and




     (i) unsecured Indebtedness of the Borrower under the Convertible Notes Documents in an
aggregate principal amount not to exceed $200,000,000.


8.04 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; provided that, notwithstanding the
foregoing provisions of this Section 8.04 but subject to the terms of Sections 7.12
and 7.14, (a) the Borrower may merge or consolidate with any of its Subsidiaries provided
that the Borrower shall be the continuing or surviving corporation, (b) any Loan Party other than
the Borrower may merge or consolidate with any other Loan Party other than the Borrower, (c) any
Foreign Subsidiary may be merged or consolidated with or into any Loan Party provided that such
Loan Party shall be the continuing or surviving corporation, (d) any Foreign Subsidiary may be
merged or consolidated with or into any other Foreign Subsidiary, (e) any Foreign Subsidiary may
make a Disposition or any other sale of assets or property to any other Foreign Subsidiary, (f) any
Foreign Subsidiary may dissolve, liquidate or wind up its affairs at any time, (g) any Domestic
Subsidiary (other than a Material Subsidiary) may dissolve, liquidate or wind up its affairs at any
time provided that the assets of such Domestic Subsidiary shall be transferred to a Loan
Party prior to such



81









 




dissolution, liquidation or winding up and (h) any Foreign Subsidiary which is not a Material
Foreign Subsidiary may sell all or substantially all of its assets (i) to any Loan Party or its
Subsidiary, or (ii) to any other party, provided that the Net Cash Proceeds of any sale pursuant to
this clause (ii) shall be subject to Section 2.05(b)(ii).



8.05 Dispositions.




     Make any Disposition unless (i) the consideration paid in connection therewith shall be cash
or Cash Equivalents with maturities not exceeding 12 months paid contemporaneous with consummation
of the transaction and shall be in an amount not less than the fair market value of the property
disposed of, (ii) such transaction does not involve the sale or other disposition of a minority
equity interest in any Subsidiary, (iii) such transaction does not involve a sale or other
disposition of receivables other than receivables owned by or attributable to other property
concurrently being disposed of in a transaction otherwise permitted under this Section
8.05, and (iv) after giving effect to such Disposition, the aggregate net book value of all of
the assets sold or otherwise disposed of by the Borrower and its Subsidiaries pursuant to this
Section 8.05 in any fiscal year shall not exceed an aggregate amount equal to the greater
of (A) $20,000,000 and (B) three percent (3%) of Consolidated Tangible Assets. Notwithstanding the
foregoing, in addition to the Dispositions permitted to be made pursuant to the preceding sentence,
the Borrower shall be permitted to enter into (a) one or more Permitted Sale and Leaseback
Transactions and (b) the PILOT Transactions.


8.06 Restricted Payments.




     Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except that:




     (a) each Subsidiary may make Restricted Payments to the Borrower or any Guarantor;




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




     (c) in addition to the Borrower’s right to repurchase the Convertible Notes in
accordance with Section 8.12(d), the Borrower may purchase, redeem or otherwise
acquire Equity Interests of the Borrower; provided that the aggregate amount of the payments
made by the Borrower for such purchases, redemptions or acquisitions during the term of this
Agreement shall not exceed $50,000,000 in the aggregate;




     (d) the Borrower may make interest payments on the Indebtedness permitted by
Section 8.03(i) in accordance with the terms of the Convertible Notes Documents
prior to the conversion of such Indebtedness to common stock of the Borrower; and




     (e) so long as no Default exists before or after giving effect thereto, the Borrower
may declare and make dividend payments or other distributions; provided, that the aggregate
amount of such dividends, distributions and voluntary prepayments of Subordinated
Indebtedness made pursuant to Section 8.12(b) shall not exceed $5,000,000 in an
aggregate amount in any fiscal year (less the amount of Investments made during such fiscal
year in Subsidiaries that are not Wholly Owned Subsidiaries pursuant to Section
8.02(j)).



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8.07 Change in Nature of Business.




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


8.08 Transactions with Affiliates and Insiders.




     Enter into or permit to exist any transaction or series of transactions with any officer,
director or Affiliate of such Person other than (a) advances of working capital to any Loan Party,
(b) transfers of cash and assets (i) to any Loan Party or (ii) among Foreign Subsidiaries, (c)
intercompany transactions expressly permitted by Section 8.02, Section 8.03,
Section 8.04, Section 8.05 or Section 8.06, (d) normal and reasonable
compensation and reimbursement of expenses of officers and directors in the ordinary course of
business and (e) except as otherwise specifically limited in this Agreement, other transactions
which are entered into in the ordinary course of such Person’s business on terms and conditions
substantially as favorable to such Person as would be obtainable by it in a comparable arms-length
transaction with a Person other than an officer, director or Affiliate.


8.09 Burdensome Agreements.




     (a) Enter into, or permit to exist, any Contractual Obligation that encumbers or restricts on
the ability of any such Person to (i) pay dividends or make any other distributions to any Loan
Party on its Equity Interests or with respect to any other interest or participation in, or
measured by, its profits, (ii) pay any Indebtedness or other obligation owed to any Loan Party,
(iii) make loans or advances to any Loan Party, (iv) sell, lease or transfer any of its property to
any Loan Party, (v) pledge its property pursuant to the Loan Documents or any renewals,
refinancings, exchanges, refundings or extension thereof or (vi) act as a Loan Party pursuant to
the Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof,
except (in respect of any of the matters referred to in clauses (i)-(v) above) for (1) this
Agreement and the other Loan Documents, (2) any document or instrument governing Indebtedness
incurred pursuant to Section 8.03(e), provided that any such restriction contained
therein relates only to the asset or assets constructed or acquired in connection therewith, (3)
any Permitted Lien or any document or instrument governing any Permitted Lien, provided
that any such restriction contained therein relates only to the asset or assets subject to such
Permitted Lien or (4) customary restrictions and conditions contained in any agreement relating to
the sale of any property permitted under Section 8.05 pending the consummation of such
sale.



     (b) Enter into, or permit to exist, any Contractual Obligation that prohibits or otherwise
restricts the existence of any Lien upon any of its property in favor of the Administrative Agent
(for the benefit of the Lenders) for the purpose of securing the Obligations, whether now owned or
hereafter acquired, or requiring the grant of any security for any obligation if such property is
given as security for the Obligations, except (i) any document or instrument governing Indebtedness
incurred pursuant to Section 8.03(e), provided that any such restriction contained
therein relates only to the asset or assets constructed or acquired in connection therewith, (ii)
in connection with any Permitted Lien or any document or instrument governing any Permitted Lien,
provided that any such restriction contained therein relates only to the asset or assets
subject to such Permitted Lien, and (iii) pursuant to customary restrictions and conditions
contained in any agreement relating to the sale of any property permitted under Section
8.05, pending the consummation of such sale.



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8.10 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.


8.11 Financial Covenants.




     (a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end
of any fiscal quarter of the Borrower to be greater than 3.25 to 1.0.



     (b) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge
Coverage Ratio as of the end of any fiscal quarter of the Borrower to be less than 1.50 to 1.0.


8.12 Prepayment of Indebtedness.




     (a) Amend or modify any of the terms of any Subordinated Indebtedness if such amendment or
modification would add or change any terms in a manner materially adverse to the Borrower or any
Subsidiary or the Lenders, or shorten the final maturity or average life to maturity or require any
payment to be made sooner than originally scheduled or increase the interest rate applicable
thereto.



     (b) Make (or give any notice with respect thereto) any voluntary or optional payment or
prepayment or redemption or acquisition for value of (including without limitation, by way of
depositing money or securities with the trustee with respect thereto before due for the purpose of
paying when due), refund, refinance or exchange of any Subordinated Indebtedness of any Loan Party
or any Subsidiary; provided, that, the Borrower may make voluntary or optional prepayments of
Subordinated Indebtedness so long as (i) no Default exists before or after giving effect thereto
and (ii) the aggregate amount of such voluntary or optional prepayments of Subordinated
Indebtedness plus the aggregate amount of dividends or distributions made by the Borrower pursuant
to Section 8.06(e) shall not exceed $5,000,000 in the aggregate in any fiscal year.



     (c) Amend or modify any of the terms of any Convertible Notes Documents if such amendment or
modification would add or change any terms in a manner materially adverse to the Borrower or any
Subsidiary or the Lenders, or shorten the final maturity or average life to maturity or require any
payment to be made sooner than originally scheduled or increase the interest rate applicable
thereto.



     (d) Make (or give any notice with respect thereto) any voluntary or optional payment or
prepayment or redemption or acquisition for value of (including without limitation, by way of
depositing money or securities with the trustee with respect thereto before due for the purpose of
paying when due), refund, refinance or exchange of any Indebtedness under the Convertible Notes;
provided, that, the Borrower may make voluntary prepayments of the Convertible Notes so
long as (i) after giving effect to any such prepayment, the Borrower has Sufficient Liquidity (as
defined below) and (ii) before and after giving effect to any such prepayment, no Default or Event
of Default shall have occurred and be continuing.



     For purposes hereof, “Sufficient Liquidity” means unrestricted cash and Cash Equivalents with
maturities of less than 365 days of the Borrower and availability under the Aggregate Revolving
Commitments in an aggregate amount of not less than $50,000,000.



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8.13 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of
Entity.




     (a) Amend, modify or change its Organization Documents in a manner adverse to the Lenders.



     (b) Change its fiscal year.



     (c) Without providing ten (10) days prior written notice to the Administrative Agent, change
its name, state of formation or form of organization.


8.14 Ownership of Subsidiaries.




     Except as set forth on Schedule 8.14, notwithstanding any other provisions of this
Agreement to the contrary, (i) permit any Person (other than any Loan Party or any Wholly Owned
Subsidiary of the Borrower) to own any Equity Interests of any Subsidiary of any Loan Party, except
(a) to qualify directors where required by applicable law or to satisfy other requirements of
applicable law with respect to the ownership of Equity Interests of Foreign Subsidiaries or (b) for
any Subsidiary whose Equity Interests were purchased by a Loan Party in accordance with Section
8.02(i) or (j), (ii) permit any Loan Party or any Subsidiary of any Loan Party to issue
or have outstanding any shares of preferred Equity Interests, except for (a) the 8,080,938
preferred shares issued by Wright Medical Technology Canada Ltd. to Wright Medical Technology, Inc.
as consideration for the settlement and extinguishment of Indebtedness owing to Wright Medical
Technology, Inc. in the amount of $8,080,938 and (b) any preferred Equity Interests issued by the
Borrower pursuant to its shareholder rights plan provided that any such preferred Equity Interests
does not contain any mandatory redemption, sinking fund or like prepayment prior to the Maturity
Date or (iii) create, incur, assume or suffer to exist any Lien on any Equity Interests of any
Subsidiary of any Loan Party, except for Permitted Liens.



ARTICLE IX




EVENTS OF DEFAULT AND REMEDIES


9.01 Events of Default.




     Any of the following shall constitute an Event of Default:




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




     (b) Specific Covenants. Any Loan Party fails to perform or observe any term,
covenant or agreement contained in any of Section 7.03, 7.05(a),
7.10, 7.11 or Article VIII; or




     (c) Information Covenants. Any Loan Party fails to perform or observe any
term, covenant or agreement contained in any of Section 7.01 or Section 7.02
and such failure continues for three (3) days; or




     (d) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a), (b) or (c) above) contained in any
Loan Document on its part to be performed or observed and such failure continues for thirty
days after the earlier of the date on which (i) a Responsible Officer of a Loan Party
becomes aware of such failure or



85









 






(ii) notice thereof shall have been given to the Borrower by the Administrative Agent
or any Lender; or




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




     (f) Cross-Default. (i) Any Loan Party or any Material Subsidiary (A) fails to
make any payment when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness
hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing to all
creditors under any combined or syndicated credit arrangement) of more than the Threshold
Amount, or (B) fails to observe or perform any other agreement or condition relating to any
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 the
Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B)
any Termination Event (as so defined) under such Swap Contract as to which the Borrower or
any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater
than the Threshold Amount; or




     (g) Insolvency Proceedings, Etc. Any Loan Party or any of its Material
Subsidiaries 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 sixty 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 sixty calendar
days, or an order for relief is entered in any such proceeding; or




     (h) Inability to Pay Debts; Attachment. (i) Any Loan Party or any of its
Material Subsidiaries 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 thirty days after its
issue or levy; or




     (i) Judgments. There is entered against any Loan Party or any Material
Subsidiary (i) one or more final judgments or orders for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent not paid and not covered by
independent third-



86









 






party insurance as to which the insurer does not dispute coverage), or (ii) any one or
more non-monetary final judgments that have, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect and, in either case, there is a
period of thirty (30) consecutive days during which such judgment is not vacated, satisfied
or discharged or a stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect; or




     (j) 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 any Loan Party 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




     (k) Invalidity of Loan Documents. 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 Loan Document; or any Loan Party denies that it has any or further
liability or obligation under any Loan Document, or purports to revoke, terminate or rescind
any Loan Document; or




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






     (m) Convertible Notes. There shall occur an “Event of Default” (or any
comparable term) under, and as defined in, the Convertible Notes Documents.


9.02 Remedies Upon Event of Default.




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




     (a) declare the commitment of each Lender to make Loans and any obligation of the L/C
Issuer to make L/C Credit Extensions to be terminated, whereupon such 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 and the Lenders all rights and remedies available to
it and the Lenders under the Loan Documents;


provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the
obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and
all interest and other amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash






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Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case
without further act of the Administrative Agent or any Lender.



9.03 Application of Funds.




     After the exercise of remedies provided for in Section 9.02 (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 9.02), any
amounts received on account of the Obligations shall be applied by the Administrative Agent in the
following order:




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




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




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




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




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



     Subject to Section 2.03(c) and Section 2.15, amounts used to Cash
Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fourth
above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully
drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the
order set forth above.



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ARTICLE X




ADMINISTRATIVE AGENT


10.01 Appointment and Authority.




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


10.02 Rights as a Lender.




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


10.03 Exculpatory Provisions.




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




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




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




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



     The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the



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circumstances as provided in Sections 11.01 and 9.02) or (ii) in the absence
of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to
have knowledge of any Default unless and until notice describing such Default is given to the
Administrative Agent by the Borrower, a Lender or the L/C Issuer.




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


10.04 Reliance by Administrative Agent.




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


10.05 Delegation of Duties.




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


10.06 Resignation of Administrative Agent.




     The Administrative Agent may at any time give notice of its resignation to the Lenders, the
L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a
bank with an office in the United States, or an Affiliate of any such bank with an office in the
United States. If no such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then



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the retiring Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a
successor Administrative Agent meeting the qualifications set forth above; provided that if
the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent shall instead be made
by or to each Lender and the L/C Issuer directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this Section. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its
duties and obligations hereunder or under the other Loan Documents (if not already discharged
therefrom as provided above in this Section). The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the retiring Administrative Agent’s resignation
hereunder and under the other Loan Documents, the provisions of this Article and Section
11.04 shall continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.




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


10.07 Non-Reliance on Administrative Agent and Other Lenders.




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


10.08 No Other Duties; Etc.




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



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10.09 Administrative Agent May File Proofs of Claim.




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




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations (other than
obligations under Swap Contracts or Treasury Management Agreements to which the
Administrative Agent is not a party) that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of the Lenders, the
L/C Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other amounts due the
Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(i) and
(j), 2.10 and 11.04) allowed in such judicial proceeding; and




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


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.10 and 11.04.




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


10.10 Collateral and Guaranty Matters.




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




     (a) to release any Lien on any Collateral granted to or held by the Administrative
Agent under any Loan Document (i) upon termination of the Aggregate Revolving Commitments
and payment in full of all Obligations (other than contingent indemnification obligations)
and the expiration or termination of all Letters of Credit, (ii) that is transferred or to
be transferred as part of or in connection with any Disposition permitted hereunder or under
any other Loan Document or any Involuntary Disposition, or (iii) as approved in accordance
with Section 11.01; and




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



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Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release its interest in particular types or
items of property, or to release any Guarantor from its obligations under the Guaranty,
pursuant to this Section 10.10.



ARTICLE XI




MISCELLANEOUS


11.01 Amendments, Etc.




     (a) 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 a copy of which has been delivered to the Administrative Agent, and each such
waiver or consent shall be effective only in the specific instance and for the specific purpose for
which given; provided, further, that




     (i) no such amendment, waiver or consent shall:




     (A) extend or increase the Commitment of a Lender (or reinstate any Commitment
terminated pursuant to Section 9.02) without the written consent of such
Lender whose Commitment is being extended or increased (it being understood and
agreed that a waiver of any condition precedent set forth in Section 5.02 or
of any Default or a mandatory reduction in Commitments is not considered an
extension or increase in Commitments of any Lender);




     (B) postpone any date fixed by this Agreement or any other Loan Document for
any payment of principal, interest, fees or other amounts due to the Lenders (or any
of them) or any scheduled or mandatory reduction of the Commitments hereunder or
under any other Loan Document without the written consent of each Lender entitled to
receive such payment or whose Commitments are to be reduced;




     (C) reduce the principal of, or the rate of interest specified herein on, any
Loan or L/C Borrowing, or (subject to clause (i) of the final proviso to this
Section 11.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender entitled to receive
such payment of principal, interest, fees or other amounts; provided,
however, that only the consent of the Required Lenders shall be necessary 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;




     (D) change Section 9.03 in a manner that would alter the pro rata
sharing of payments required thereby without the written consent of each Lender
directly affected thereby;




     (E) change any provision of this Section 11.01(a) or the definition of
“Required Lenders” without the written consent of each Lender directly affected
thereby;




     (F) except in connection with a Disposition permitted under Section
8.05, release all or substantially all of the Collateral without the written
consent of each Lender directly affected thereby; or



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     (G) release the Borrower or, except in connection with a merger or
consolidation permitted under Section 8.04 or a Disposition permitted under
Section 8.05, all or substantially all of the Guarantors without the written
consent of each Lender directly affected thereby.




     (ii) unless also signed by the L/C Issuer, no amendment, waiver or consent shall affect
the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating
to any Letter of Credit issued or to be issued by it;




     (iii) unless also signed by the Swing Line Lender, no amendment, waiver or consent
shall affect the rights or duties of the Swing Line Lender under this Agreement; and




     (iv) unless also signed by the Administrative Agent, no amendment, waiver or consent
shall affect the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document;




provided, however, that notwithstanding anything to the contrary herein, (i)
the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto, (ii) no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver
or consent which by its terms requires the consent of all Lenders or each affected Lender
may be effected with the consent of the applicable Lenders other than Defaulting Lenders),
except that (x) the Commitment of any Defaulting Lender may not be increased or extended
without the consent of such Lender and (y) any waiver, amendment or modification requiring
the consent of all Lenders or each affected Lender that by its terms affects any Defaulting
Lender more adversely than other affected Lenders shall require the consent of such
Defaulting Lender, (iii) each Lender is entitled to vote as such Lender sees fit on any
bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the
provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the
unanimous consent provisions set forth herein and (iv) the Required Lenders shall determine
whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy
or insolvency proceeding and such determination shall be binding on all of the Lenders.



     (b) In addition, notwithstanding the foregoing, the Borrower may, by written notice to the
Administrative Agent from time to time, make one or more offers (each, a “Loan Modification
Offer”) to all the Lenders of any Class to make one or more amendments or modifications to (A)
allow the maturity and scheduled amortization of the Loans of the accepting Lenders to be extended
and (B) increase the Applicable Rate and/or fees payable with respect to the Loans and Commitments
of the accepting Lenders (“Permitted Amendments”) pursuant to procedures reasonably
specified by the Administrative Agent and reasonably acceptable to the Borrower. Such notice shall
set forth (i) the terms and conditions of the requested Permitted Amendment and (ii) the date on
which such Permitted Amendment is requested to become effective. The Permitted Amendments shall
not become effective unless consented to by the Required Lenders and those Accepting Lenders, as
applicable (the “Required Approval”). If the Required Approval is received, (i) such
Permitted Amendments shall become effective only with respect to the Loans and/or Commitments of
the Lenders that accept the applicable Loan Modification Offer (such Lenders, the “Accepting
Lenders”) and, in the case of any Accepting Lender, only with respect to such Lender’s Loans
and/or Commitments as to which such Lender’s acceptance has been made and (ii) the Borrower, each
Loan Party, the Required Lenders and each Accepting Lender shall execute and deliver to the
Administrative Agent a loan modification agreement (the “Loan Modification Agreement”) and
such other documentation as the Administrative Agent shall reasonably specify to evidence the
acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative
Agent shall



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promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each
of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification
Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary
to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with
respect to the Loans and Commitments of the Accepting Lenders as to which such Lenders’ acceptance
has been made.



11.02 Notices and Other Communications; Facsimile Copies.




     (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 or any other Loan Party, the Administrative Agent, the L/C
Issuer or the Swing Line Lender, to the address, telecopier number, electronic mail address
or telephone number specified for such Person on Schedule 11.02; and




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



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



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




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



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



     (e) Reliance by Administrative Agent, L/C Issuer and Lenders. The Administrative
Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of any Loan
Party 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 Loan Parties shall
indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of
them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on
each notice purportedly given by or on behalf of a Loan Party. All telephonic notices to and other
telephonic communications with the Administrative Agent may be recorded by the Administrative
Agent, and each of the parties hereto hereby consents to such recording.



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11.03 No Waiver; Cumulative Remedies; Enforcement.




     No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay
by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder 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 are
cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.



     Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 10.01 for the benefit of all the Lenders
and the L/C Issuer; provided, however, that the foregoing shall not prohibit (a)
the Administrative Agent from exercising on its own behalf the rights and remedies that inure to
its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan
Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights and remedies that
inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may
be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in
accordance with Section 11.08 (subject to the terms of Section 2.13), or (d) any
Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the
pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and
provided, further, that if at any time there is no Person acting as Administrative
Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the
rights otherwise ascribed to the Administrative Agent pursuant to Section 10.01 and (ii) in
addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject
to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any
rights and remedies available to it and as authorized by the Required Lenders.


11.04 Expenses; Indemnity; and Damage Waiver.




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



     (b) Indemnification by the Loan Parties. The Loan Parties shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related
Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses



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(including the fees, charges and disbursements of any counsel for any Indemnitee), and shall
indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for
attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against
any Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any
sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other
Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not strictly comply with the
terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by a Loan Party or any of its Subsidiaries, or
any Environmental Liability related in any way to a Loan Party or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third party or
by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party
thereto, 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 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 Loan Parties for any reason fail
to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by
them to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of
any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such,
or against any Related Party of any of the foregoing acting for the Administrative Agent (or any
such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders
under this subsection (c) are subject to the provisions of Section 2.12(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no Loan Party shall assert, and each Loan Party hereby waives, any claim against
any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the
proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any
damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby.



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



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


11.05 Payments Set Aside.




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


11.06 Successors and Assigns.




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



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




     (i) Notice. So long as no Default or Event of Default has occurred and is
continuing, any Lender planning to assign any portion of its rights and obligations under
this Agreement and the other Loan Documents shall provide the Borrower and the
Administrative



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Agent with ten Business Days’ prior written notice and during such ten Business Day period
the Borrower shall be permitted to find a replacement Lender to purchase the commitment of
such selling Lender at par provided such assignment does not cause any additional costs for
such selling Lender.




     (ii) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender, 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)(ii)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $5,000,000 in the case of an assignment of Revolving Loans and $1,000,000 in
the case of an assignment of Delayed Draw Term Loans and Incremental Term Loans
unless each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consents (each such consent not
to be unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent assignments
from members of an Assignee Group to a single assignee (or to an assignee and
members of its Assignee Group) will be treated as a single assignment for purposes
of determining whether such minimum amount has been met;




(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(ii)(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; provided, that, the Borrower
shall be deemed to have consented to any such assignment unless it shall object
thereto by written notice to the Administrative Agent within five (5) Business Days
after having received notice thereof;




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
(i) any Delayed Draw Term Loan Commitment, Incremental Term Loan Commitment or
Revolving Commitment if such assignment is to a Person that is not a Lender with a
Commitment in respect of the Commitment subject to such assignment, an Affiliate of
such Lender or an Approved Fund with respect to such Lender or (ii) Delayed Draw
Term Loan or Incremental Term Loan to a Person that is not a Lender, an Affiliate of
a Lender or an Approved Fund;




     (C) the consent of the L/C Issuer (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment that increases the obligation of



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the assignee to participate in exposure under one or more Letters of Credit (whether
or not then outstanding); and




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




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




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


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04
with respect to facts and circumstances occurring prior to the effective date of such assignment).
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with subsection (d) of
this Section.




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower (and such agency being solely for tax purposes), shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. In addition,



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the Administrative Agent shall maintain on the Register information regarding the designation, and
revocation of designation, of any Lender as a Defaulting Lender. The Register shall be available
for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.




     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower, Defaulting Lender or any of the Borrower’s Affiliates or Subsidiaries)
(each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations
under this Agreement (including all or a portion of its Commitment and/or the Loans (including such
Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent, the other Lenders and the L/C Issuer shall
continue to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, waiver or other modification described in
clauses (i) through (vii) of the Section 11.01(a) that affects such Participant. Subject
to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this
Section. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 11.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.13 as though it were a Lender.



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



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



     (g) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i) upon thirty days’
notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon thirty days’ notice
to the Borrower, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer
or Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders a successor
L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by
the Borrower to appoint any such successor shall affect the resignation of Bank of America as L/C
Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it
shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect
to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and
all L/C Obligations with respect thereto (including the right to require the



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Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant
to Section 2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retain all
the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by
it and outstanding as of the effective date of such resignation, including the right to require the
Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans
pursuant to Section 2.04(c).Upon the appointment of a successor L/C Issuer and/or Swing
Line Lender, (1) 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 (2)
the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit,
if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank
of America to effectively assume the obligations of Bank of America with respect to such Letters of
Credit.



11.07 Treatment of Certain Information; Confidentiality.




     Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a)
to its Affiliates and to its and its Affiliates’ respective partners, directors, officers,
employees, agents, trustees, advisors and representatives and to any direct or indirect contractual
counterparty (or such contractual counterparty’s professional advisor) under any Swap Contract
relating to Loans outstanding under this Agreement (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 (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to a Loan Party and its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their
respective Affiliates on a nonconfidential basis from a source other than the Borrower.



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



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



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11.08 Set-off.




     If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and
each of their respective Affiliates is hereby authorized at any time and from time to time, after
obtaining the prior written consent of the Administrative Agent, to the fullest extent permitted by
applicable law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the
credit or the account of the Borrower or any other Loan Party against any and all of the
obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement or
any other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such
Lender or the L/C Issuer shall have made any demand under this Agreement or any other Loan Document
and although such obligations of the Borrower or such Loan Party may be contingent or unmatured or
are owed to a branch or office of such Lender or the L/C Issuer different from the branch or office
holding such deposit or obligated on such indebtedness; provided, that, in the event that
any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be
paid over immediately to the Administrative Agent for further application in accordance with the
provisions of Section 2.15 and, pending such payment, shall be segregated by such
Defaulting Lender from its other funds and deemed held in trust for the benefit of the
Administrative Agent and the Lenders and (y) the Defaulting Lender shall provide promptly to the
Administrative Agent a statement describing in reasonable detail the Obligations owing to such
Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the
L/C Issuer and their respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective
Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and application.


11.09 Interest Rate Limitation.




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


11.10 Counterparts; Integration; Effectiveness.




     This Agreement may be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and the other Loan Documents constitute the
entire contract among the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject matter hereof.
Except as provided in Section 5.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of each of the other
parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by
telecopy or other electronic imaging means shall be effective as delivery of a manually executed
counterpart of this Agreement.



104









 




11.11 Survival of Representations and Warranties.




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


11.12 Severability.




     If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid
or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Without limiting the foregoing provisions of this Section 11.12, if and to the extent that
the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be
limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, the L/C
Issuer or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in
effect only to the extent not so limited.


11.13 Replacement of Lenders.




     If (i) any Lender requests compensation under Section 3.04, (ii) 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, (iii) a Lender (a “Non-Consenting Lender”)
does not consent to a proposed change, waiver, discharge or termination with respect to any Loan
Document that has been approved by the Required Lenders as provided in Section 11.01 but
requires unanimous consent of all Lenders or all Lenders directly affected thereby (as applicable)
or (iv) any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 11.06), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment), provided that:




     (a) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 11.06(b);




     (b) such Lender shall have received payment of an amount equal to one hundred percent
(100%) of 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);



105









 






     (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;




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




     (e) in the case of any such assignment resulting from a Non-Consenting Lender’s failure
to consent to a proposed change, waiver, discharge or termination with respect to any Loan
Document, the applicable replacement bank, financial institution or Fund consents to the
proposed change, waiver, discharge or termination; provided that the failure by such
Non-Consenting Lender to execute and deliver an Assignment and Assumption shall not impair
the validity of the removal of such Non-Consenting Lender and the mandatory assignment of
such Non-Consenting Lender’s Commitments and outstanding Loans and participations in L/C
Obligations and Swing Line Loans pursuant to this Section 11.13 shall nevertheless
be effective without the execution by such Non-Consenting Lender of an Assignment and
Assumption.


11.14 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 (INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK) WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD
REQUIRE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.



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



     (c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY 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



106









 




PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE
OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.




     (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.


11.15 Waiver of Right to Trial by Jury.




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


11.16 USA PATRIOT Act Notice.




     Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Act. The Borrower shall, promptly following a request by the Administrative
Agent or any Lender, provide all documentation and other information that the Administrative Agent
or such Lender requests in order to comply with its ongoing obligations under applicable “know your
customer” and anti-money laundering rules and regulations, including the Act.


11.17 No Advisory of Fiduciary Relationship.




     In connection with all aspects of each transaction contemplated hereby, the Borrower
acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) the credit
facility provided for hereunder and any related arranging or other services in connection therewith
(including in connection with any amendment, waiver or other modification hereof or of any other
Loan Document) are an arm’s-length commercial transaction between the Borrower and its Affiliates,
on the one hand, and the Administrative Agent and MLPFS, on the other hand, and the Borrower is
capable of evaluating and understanding and understands and accepts the terms, risks and conditions
of the transactions contemplated hereby and by the other Loan Documents (including any amendment,
waiver or other modification hereof or thereof); (ii) in connection with the process leading to
such transaction, the Administrative Agent and MLPFS each is and has been acting solely as a
principal and is not the financial advisor, agent or fiduciary, for the Borrower or any of
Affiliates, stockholders, creditors or employees or



107









 




any other Person; (iii) neither the Administrative Agent nor MLPFS has assumed or will assume
an advisory, agency or fiduciary responsibility in favor of the Borrower with respect to any of the
transactions contemplated hereby or the process leading thereto, including with respect to any
amendment, waiver or other modification hereof or of any other Loan Document (irrespective of
whether the Administrative Agent or MLPFS has advised or is currently advising the Borrower or any
of its Affiliates on other matters) and neither the Administrative Agent nor MLPFS 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; (iv)
the Administrative Agent and MLPFS and their respective Affiliates may be engaged in a broad range
of transactions that involve interests that differ from those of the Borrower and its Affiliates,
and neither the Administrative Agent nor MLPFS has any obligation to disclose any of such interests
by virtue of any advisory, agency or fiduciary relationship; and (v) the Administrative Agent and
MLPFS have not provided and will not provide any legal, accounting, regulatory or tax advice with
respect to any of the transactions contemplated hereby (including any amendment, waiver or other
modification hereof or of any other Loan Document) and the Borrower has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate. The Borrower
hereby waives and releases, to the fullest extent permitted by law, any claims that it may have
against the Administrative Agent or MLPFS with respect to any breach or alleged breach of agency or
fiduciary duty.



11.18 Electronic Execution of Assignments and Certain Other Documents.




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


11.19 Waiver of Notice of Termination.




     Those Lenders party hereto which are also party to the Existing Credit Agreement hereby waive
any prior notice requirement under the Existing Credit Agreement with respect to the termination of
commitments thereunder and the making of any prepayments thereunder.



[SIGNATURE PAGES FOLLOW]



108









 








     Each of the parties hereto has caused a counterpart of this Agreement to be duly executed and
delivered as of the date first above written.



	 	 	 	 	 
	BORROWER: 	 WRIGHT MEDICAL GROUP, INC.,

a Delaware corporation

 	 
	 	By:  	/s/
Gary D. Henley 	 
	 	 	Name:  	Gary D. Henley 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	GUARANTORS: 	 WRIGHT MEDICAL TECHNOLOGY, INC.,

a Delaware corporation

 	 
	 	By:  	/s/
Gary D. Henley 	 
	 	 	Name:  	Gary D. Henley 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	 	WRIGHT MEDICAL CAPITAL, INC.,

a Delaware corporation

 	 
	 	By:  	/s/
Gary D. Henley 	 
	 	 	Name:  	Gary D. Henley 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	 	WRIGHT INTERNATIONAL, INC.,

a Delaware corporation

 	 
	 	By:  	/s/
Gary D. Henley 	 
	 	 	Name:  	Gary D. Henley 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	 	INBONE TECHNOLOGIES, INC.,

a Delaware corporation

 	 
	 	By:  	/s/
Gary D. Henley 	 
	 	 	Name:  	Gary D. Henley 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	 	WHITE BOX ORTHOPEDICS, LLC,

a Delaware limited liability company

 	 
	 	By:  	/s/
Gary D. Henley 	 
	 	 	Name:  	Gary D. Henley 	 
	 	 	Title:  	Chief Executive Officer 	 
	 
	 	KHC-WDM LLC,

a Delaware limited liability company

 	 
	 	By:  	/s/
Gary D. Henley 	 
	 	 	Name:  	Gary D. Henley 	 
	 	 	Title:  	Chief Executive Officer 	 



109











 






	 	 	 	 	 
	ADMINISTRATIVE AGENT: 	BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	/s/
Roberto Salazar 	 
	 	 	Name:  	Roberto Salazar 	 
	 	 	Title:  	Vice President 	 
	 
	LENDERS: 	 BANK OF AMERICA, N.A.,

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

 	 
	 	By:  	/s/
E. Mark Hardison 	 
	 	 	Name:  	E. Mark Hardison 	 
	 	 	Title:  	Vice President 	 
	 
	 	SUNTRUST BANK,

as a Lender

 	 
	 	By:  	/s/
Elizabeth Greene 	 
	 	 	Name:  	Elizabeth Greene 	 
	 	 	Title:  	Director 	 
	 
	 	WELLS FARGO BANK, N.A.,

as a Lender

 	 
	 	By:  	/s/
Barry Booker 	 
	 	 	Name:  	Barry Booker 	 
	 	 	Title:  	Vice President 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/
John M. Langenderfer 	 
	 	 	Name:  	John M. Langenderfer 	 
	 	 	Title:  	Senior Vice President 	 



110









 






	 	 	 	 	 
	 	REGIONS BANK,

as a Lender

 	 
	 	By:  	/s/
Gregory M. Ratliff 	 
	 	 	Name:  	Gregory M. Ratliff 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	 FIRST TENNESSEE BANK
NATIONAL
ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/
James H. Moore, Jr. 	 
	 	 	Name:  	James H. Moore, Jr. 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	PNC BANK, N.A.,

as a Lender

 	 
	 	By:  	/s/
John Thurman 	 
	 	 	Name:  	John Thurman 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	RBS CITIZENS, N.A.,

as a Lender

 	 
	 	By:  	/s/
Cheryl Carangelo 	 
	 	 	Name:  	Cheryl Carangelo 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	JPMORGAN CHASE BANK, N.A.,

as a Lender

 	 
	 	By:  	/s/
Sean J. Lynch 	 
	 	 	Name:  	Sean J. Lynch 	 
	 	 	Title:  	Senior Vice President 	 



111









 





CREDIT AGREEMENT SCHEDULES



1.01(a): Department of Justice Investigation



1.01(b): Responsible Officers



2.01: Commitments and Applicable Percentages



6.13: Subsidiaries



6.20(a): Taxpayer Identification Numbers and Organizational Identification Numbers



6.20(b): Changes in Legal Name, State of Formation and Structure



8.01: Liens Existing on the Closing Date



8.02: Investments Existing on the Closing Date



8.03: Indebtedness Existing on the Closing Date



8.14: Non-Wholly Owned Subsidiaries



11.02: Certain Addresses for Notices






 









 








SCHEDULE 1.01(a)




Department of Justice Investigation



	 	 	 	 	 
	Four Fiscal Quarter Period Ending	 	Amount of Permitted Add back	 
	December 31, 2010
	 	$	11,000,000	 
	March 31, 2011
	 	$	15,000,000	 
	June 30, 2011
	 	$	16,300,000	 
	September 30, 2011
	 	$	17,900,000	 
	December 31, 2011
	 	$	7,500,000	 
	March 31, 2012
	 	$	5,600,000	 
	June 30, 2012
	 	$	3,700,000	 
	September 30, 2012
	 	$	1,800,000	 






 









 






SCHEDULE 1.01(b)




RESPONSIBLE OFFICERS



	 	 	 
	Loan Party	 	Responsible Officers
	Wright Medical Group, Inc.

	 	Gary D. Henley—President and CEO 


Lance A. Berry—Senior Vice President and CFO 


Raymond C. Kolls—Secretary 


Thomas L. McAllister—Assistant Secretary
	 
	 	 
	Wright Medical Technology, Inc.

	 	Gary D. Henley—President and CEO 


Lance A. Berry—Senior Vice President and CFO 


Raymond C. Kolls—Senior Vice President and Secretary


Thomas L. McAllister — Assistant Secretary 


Joyce B. Jones—Vice-President and Treasurer
	 
	 	 
	Wright Medical Capital, Inc.

	 	Gary D. Henley—President and CEO 


Lance A. Berry—Senior Vice President and CFO 


Joyce B. Jones—Vice-President and Treasurer


Thomas L. McAllister — Secretary 


Raymond C. Kolls—Assistant Secretary






 









 






	 	 	 
	Loan Party	 	Responsible Officers
	Wright International, Inc.

	 	Gary D. Henley—President and CEO 


Lance A. Berry—Senior Vice President and CFO 


Joyce B. Jones—Vice-President and Treasurer


Thomas L. McAllister — Secretary 


Raymond C. Kolls—Assistant Secretary
	 
	 	 
	INBONE Technologies, Inc.

	 	Gary D. Henley—President and CEO 


Lance A. Berry—Senior Vice President and CFO 


Joyce B. Jones—Vice-President and Treasurer 


Thomas L. McAllister — Secretary 


Raymond C. Kolls—Assistant Secretary
	 
	 	 
	White Box Orthopedics, LLC.

	 	Gary D. Henley—President and CEO 


Lance A. Berry—Senior Vice President and CFO 


Thomas L. McAllister — Secretary 


Raymond C. Kolls—Assistant Secretary
	 
	 	 
	KHC-WDM, LLC

	 	Gary D. Henley—President and CEO 


Lance A. Berry—Senior Vice President and CFO 


Thomas L. McAllister — Secretary 


Raymond C. Kolls—Assistant Secretary










 









 








SCHEDULE 2.01




COMMITMENTS AND APPLICABLE PERCENTAGES



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Delayed Draw	 	 	 	 
	 	 	Revolving	 	 	Applicable	 	 	Term Loan	 	 	Applicable	 
	Lender	 	Commitment	 	 	Percentage	 	 	Commitment	 	 	Percentage	 
	Bank of America, N.A.
	 	$	34,285,714.29	 	 	 	17.142857145	%	 	$	25,714,285.71	 	 	 	17.142857140	%
	SunTrust Bank
	 	$	31,428,571.43	 	 	 	15.714285715	%	 	$	23,571,428.57	 	 	 	15.714285713	%
	Wells Fargo Bank, National Association
	 	$	31,428,571.43	 	 	 	15.714285715	%	 	$	23,571,428.57	 	 	 	15.714285713	%
	U.S. Bank National Association
	 	$	28,571,428.57	 	 	 	14.285714285	%	 	$	21,428,571.43	 	 	 	14.285714287	%
	Regions Bank
	 	$	20,000,000.00	 	 	 	10.000000000	%	 	$	15,000,000.00	 	 	 	10.000000000	%
	First Tennessee Bank National Association
	 	$	17,142,857.14	 	 	 	8.571428570	%	 	$	12,857,142.86	 	 	 	8.571428573	%
	PNC Bank, N.A.
	 	$	17,142,857.14	 	 	 	8.571428570	%	 	$	12,857,142.86	 	 	 	8.571428573	%
	RBS Citizens, N.A.
	 	$	14,285,714.29	 	 	 	7.142857145	%	 	$	10,714,285.71	 	 	 	7.142857140	%
	JPMorgan Chase Bank, N.A.
	 	$	5,714,285.71	 	 	 	2.857142855	%	 	$	4,285,714.29	 	 	 	2.857142860	%
	Total
	 	$	200,000,000.00	 	 	 	100.000000000	%	 	$	150,000,000.00	 	 	 	100.000000000	%






 









 






SCHEDULE 6.13




SUBSIDIARIES



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	# and Effect if Exercised
	 	 	 	 	# of Shares of Each	 	# and % of Shares Owned by	 	of outstanding warrants,
	 	 	Jurisdiction of	 	Equity Class	 	Each Loan Party or Any	 	options, rights of
	Subsidiary	 	Formation	 	Outstanding	 	Subsidiary	 	conversion or purchase
	Wright Medical Technology, Inc. (WMT)

	 	U.S. (Delaware)
	 	10 (common)
	 	10 shares (100%) owned by Wright Medical Group, Inc.
	 	N/A
	 
	 	 	 	 	 	 	 	 
	Wright Medical Technology Canada Ltd.

	 	Canada (Ontario)
	 	1000 (common)
	 	1000 shares (100%) owned by WMT
	 	N/A
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	8,080,938 (Class A preferred)
	 	8,080,938 shares (100%) owned by WMT
	 	Wright Medical
Technology Canada Ltd
may at its option redeem
all or from time to time
any of the outstanding
Class A preferred shares
on payment to WMT of the
aggregate Redemption
Price, which with
respect to the Class A
preferred shares is
defined to mean
$8,080,938 divided by






 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	# and Effect if Exercised
	 	 	 	 	# of Shares of Each	 	# and % of Shares Owned by	 	of outstanding warrants,
	 	 	Jurisdiction of	 	Equity Class	 	Each Loan Party or Any	 	options, rights of
	Subsidiary	 	Formation	 	Outstanding	 	Subsidiary	 	conversion or purchase
	 

	 	 	 	 	 	 	 	8,080,938, as may be
adjusted. If less than
all of the outstanding
Class A shares are to be
redeemed, they shall be
selected by lot or
(disregarding fractions)
pro rata to the number
of Class A shares
registered in the name
of each shareholder or
in such other manner as
the directors may
determine with the
written consent of WMT,
being the holder of
record of all of the
Class A shares.
	 
	 	 	 	 	 	 	 	 
	2Hip Holdings SAS (2Hip)

	 	France
	 	2,533,067 (common)
	 	2,533,067 shares (100%) owned by WME
	 	N/A
	 
	 	 	 	 	 	 	 	 
	Wright Medical Capital, Inc.

	 	U.S. (Delaware)
	 	1,000 (common)
	 	1,000 shares (100%) owned by WMT
	 	N/A
	 
	 	 	 	 	 	 	 	 
	INBONE Technologies, Inc.

	 	U.S. (Delaware)
	 	100 (common)
	 	100% owned by WMT
	 	N/A
	 
	 	 	 	 	 	 	 	 
	Wright Medical Japan, K.K.

	 	Japan (Tokyo)
	 	200 (common)
	 	200 shares (100%) owned by WMT
	 	N/A
	 
	 	 	 	 	 	 	 	 
	White Box Orthopedics, LLC

	 	Delaware
	 	1 (Interest)
	 	Sole Member is WMT
	 	N/A






 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	# and Effect if Exercised
	 	 	 	 	# of Shares of Each	 	# and % of Shares Owned by	 	of outstanding warrants,
	 	 	Jurisdiction of	 	Equity Class	 	Each Loan Party or Any	 	options, rights of
	Subsidiary	 	Formation	 	Outstanding	 	Subsidiary	 	conversion or purchase
	Wright Medical Costa Rica, SA

	 	Costa Rica (San Jose)
	 	50,000 (common)
	 	50,000 shares (100%) owned by WMT
	 	N/A
	 
	 	 	 	 	 	 	 	 
	Wright Medical Australia Pty, Limited

	 	Australia
	 	1 (common)
	 	1 share (100%) owned by WMT
	 	N/A
	 
	 	 	 	 	 	 	 	 
	KHC-WDM, LLC

	 	Delaware
	 	1 (Interest)
	 	Sole Member is WMT	 	 
	 
	 	 	 	 	 	 	 	 
	Wright International, Inc. (WI)

	 	U.S. (Delaware)
	 	1,000 (common)
	 	1,000 shares (100%) owned by WMT
	 	N/A
	 
	 	 	 	 	 	 	 	 
	Wright Medical Europe SAS (WME)

	 	France
	 	1,657,887 (common)
	 	1,657,887 shares (99.9%) owned by 2Hip; 1 share (<0.01%) owned by Lance Berry; 1 share (<0.01%) owned by Gary D. Henley; 1 share (<0.01%) owned by Thomas L. McAllister; 1 share (<0.01%) owned by Joyce B. Jones; and 1 share (<0.01%) owned by Aurelio Sahagun
	 	N/A
	 
	 	 	 	 	 	 	 	 
	Wright Medical Europe Trading SNC

	 	France
	 	15,000 (common)
	 	1,500 shares (10%) owned by 2Hip; 13,500 shares (90%) owned by WME
	 	N/A
	 
	 	 	 	 	 	 	 	 
	Wright Medical Europe C.V. (WMECV)

	 	Netherlands (Amsterdam)
	 	Limited Partnership (1) Limited Partner (WMT)
	 	99% owned by WMT; 1% owned by WI
	 	N/A
	 
	 	 	 	 	 	 	 	 
	Wright Medical EMEA, B.V. (WMEBV)

	 	Netherlands (Amsterdam)
	 	180 (common)
	 	180 shares (100%) owned by WMECV
	 	N/A






 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	# and Effect if Exercised
	 	 	 	 	# of Shares of Each	 	# and % of Shares Owned by	 	of outstanding warrants,
	 	 	Jurisdiction of	 	Equity Class	 	Each Loan Party or Any	 	options, rights of
	Subsidiary	 	Formation	 	Outstanding	 	Subsidiary	 	conversion or purchase
	Wright Medical Netherlands, B.V.

	 	Netherlands (Amsterdam)
	 	18,000 (common)
	 	18,000 shares (100%) owned by WMEBV
	 	N/A
	 
	 	 	 	 	 	 	 	 
	Wright Instruments, B.V.

	 	Netherlands (Amsterdam)
	 	180 (common)
	 	180 shares (100%) owned by WMEBV
	 	N/A
	 
	 	 	 	 	 	 	 	 
	Wright Medical Europe Manufacturing SA

	 	France (Toulon)
	 	585,117 (common)
	 	585,100 (99.9%) shares owned by WME; 1 share (<0.01%) owned by Lance Berry; 1 share (<0.01%) owned by Gary D. Henley; 1 share (<0.01%) owned by Thomas L. McAllister; 13 shares (<0.01%) owned by Alain Vinzant; 1 share (<0.01%) owned by Aurelio Sahagun [All
shares except those held by A. Vinzant are owned by WME and held in trust by the individuals.]
	 	N/A
	 
	 	 	 	 	 	 	 	 
	Wright Medical Italy Srl

	 	Italy (Milan)
	 	11,000,000 (common)
	 	11,000,000 shares (100%) owned by WME
	 	N/A
	 
	 	 	 	 	 	 	 	 
	Wright Medical France SAS

	 	France (Creteil)
	 	7,868 (common)
	 	2,990 shares (38%) owned by WME; 4,878 shares (62%) owned by Wright Medical Europe Manufacturing SA
	 	N/A
	 
	 	 	 	 	 	 	 	 
	Wright Medical UK Limited

	 	England and Wales (Cardiff)
	 	541,430 (common)
	 	541,430 shares (100%) owned by WME
	 	N/A
	 
	 	 	 	 	 	 	 	 
	Wright Medical Deutschland GmbH

	 	Germany (Rosenheim)
	 	50,000 (common)
	 	25,000 shares (100%) owned by WME
	 	N/A
	 
	 	 	 	 	 	 	 	 
	Wright Medical Belgium NV

	 	Belgium (Brussels)
	 	25,000 (common)
	 	24,999 shares (99.9%) owned by WME; 1 share (<0.01%) by WMT
	 	N/A







 











 





SCHEDULE 6.20(a)




TAXPAYER IDENTIFICATION NUMBERS AND ORGANIZATIONAL IDENTIFICATION NUMBERS



	 	 	 	 	 
	 	 	Organizational	 	 
	Loan Party	 	ID Number	 	Tax Payer ID Number
	Wright Medical Group, Inc.

	 	DE-3130568
	 	13-4088127
	 
	 	 	 	 
	Wright Medical Technology, Inc.

	 	DE-2309713
	 	62-1532765
	 
	 	 	 	 
	Wright Medical Capital, Inc.

	 	DE-3776676
	 	86-1099975
	 
	 	 	 	 
	Wright International, Inc.

	 	DE-4257825
	 	20-5997404
	 
	 	 	 	 
	INBONE Technologies, Inc.

	 	DE-3862792
	 	20-2430200
	 
	 	 	 	 
	White Box Orthopedics, LLC

	 	DE-4804524
	 	30-0620400
	 
	 	 	 	 
	KHC-WDM, LLC

	 	DE-4888610
	 	27-3940387






 









 






SCHEDULE 6.20(b)




CHANGES IN LEGAL NAME, STATE OF FORMATION OR STRUCTURE


INBONE TECHNOLOGIES, INC.




     On May 22, 2007, Reiley Orthopedic, Inc. changed its name to INBONE Technologies, Inc.



     On April 2, 2008, LAB Acquisition Corp. merged with and into INBONE Technologies, Inc.



 









 





SCHEDULE 8.01




LIENS EXISTING ON THE CLOSING DATE



None






 









 








Schedule 8.02




Investments Existing on the Closing Date



INTERCOMPANY INVESTMENTS



	 	 	 	 	 	 	 
	Entity Relationship	 	Local Currency	 	 	Currency
	Wright Medical Group, Inc. Investment in Wright Medical Technology, Inc.
	 	 	271,399,969	 	 	USD
	 
	 	 	 	 	 	 
	Wright Medical Technology, Inc. Investment in Wright Medical Capital, Inc.
	 	 	178,184,140	 	 	USD
	 
	 	 	 	 	 	 
	Wright Medical Technology, Inc. Investment in Wright International, Inc.
	 	 	3,000	 	 	USD
	 
	 	 	 	 	 	 
	Wright Medical Technology, Inc. Investment in Wright Medical Japan, K.K.
	 	 	3,674,917	 	 	USD
	 
	 	 	 	 	 	 
	Wright Medical Technology, Inc. Investment in Wright Medical Technology Canada Ltd.
	 	 	5,327,762	 	 	USD
	 
	 	 	 	 	 	 
	Wright Medical Technology, Inc. Investment in Wright Medical Costa Rica, SA
	 	 	84	 	 	USD
	 
	 	 	 	 	 	 
	Wright Medical Technology, Inc. Investment in Wright Medical Europe C.V.
	 	 	60,305,213	 	 	USD
	 
	 	 	 	 	 	 
	2HIP Holdings SAS Investment in Wright Medical Europe SAS
	 	 	35,495,380	 	 	EUR
	 
	 	 	 	 	 	 
	2HIP Holdings SAS Investment in Wright Medical Europe Trading SNC
	 	 	7,713,497	 	 	EUR
	 
	 	 	 	 	 	 
	Wright Medical Europe SAS Investment in Wright Medical Deutschland GmbH
	 	 	4,202,602	 	 	EUR
	 
	 	 	 	 	 	 
	Wright Medical Europe SAS Investment in Wright Medical Italy Srl
	 	 	14,343,488	 	 	EUR
	 
	 	 	 	 	 	 
	Wright Medical Europe SAS Investment in Wright Medical France SAS
	 	 	8,763,682	 	 	EUR
	 
	 	 	 	 	 	 
	Wright Medical Europe SAS Investment in Wright Medical Europe Manufacturing SA
	 	 	1,000	 	 	EUR
	 
	 	 	 	 	 	 
	Wright Medical Europe SAS Investment in Wright Medical UK Limited
	 	 	5,265,255	 	 	EUR
	 
	 	 	 	 	 	 
	Wright Medical Europe SAS Investment in Wright Medical Belgium NV
	 	 	792,012	 	 	EUR
	 
	 	 	 	 	 	 
	Wright Medical Europe Manufacturing SA Investment in Wright Medical France SAS
	 	 	2,545,902	 	 	EUR
	 
	 	 	 	 	 	 
	Wright Medical Europe C.V. Investment in 2HIP Holdings SAS
	 	 	41,382,497	 	 	EUR
	 
	 	 	 	 	 	 
	Wright Medical Europe C.V. Investment in Wright Medical EMEA B.V.
	 	 	36,500	 	 	EUR
	 
	 	 	 	 	 	 
	Wright Medical EMEA B.V. Investment in Wright Medical Netherlands B.V.
	 	 	18,500	 	 	EUR
	 
	 	 	 	 	 	 
	Wright Medical EMEA B.V. Investment in Wright Instruments B.V.
	 	 	18,000	 	 	EUR






INTERCOMPANY LOANS




	 	 	 	 	 	 	 
	Entity Relationship	 	Local Currency	 	 	Currency
	Wright Medical Capital, Inc. Loans to Wright Medical Japan, K.K.
	 	 	1,230,340,231	 	 	JPY
	 
	 	 	 	 	 	 
	Wright Medical Technology, Inc. Loan to Wright Medical Australia, Pty Limited
	 	 	2,276,636	 	 	AUD
	 
	 	 	 	 	 	 
	Wright Medical Technology, Inc. Loan to Wright Medical Europe C.V.
	 	 	25,261,980	 	 	USD
	 
	 	 	 	 	 	 
	2HIP Holdings SAS Loan to Wright Medical Europe SAS
	 	 	1,769,687	 	 	EUR
	 
	 	 	 	 	 	 
	Wright Medical Europe SAS Loan to Wright Medical France SAS
	 	 	72,430	 	 	EUR
	 
	 	 	 	 	 	 
	Wright Medical Europe C.V. Loan to 2HIP Holdings SAS
	 	 	29,911,912	 	 	EUR






OTHER INVESTMENTS




	 	 	 	 	 	 	 
	Entity Relationship	 	Local Currency	 	 	Currency
	Wright Medical Technology, Inc. Investment in Cascade Medical Enterprises, LLC
	 	 	250,000	 	 	USD
	 
	 	 	 	 	 	 
	Wright Medical Technology, Inc. Investment in SI-Bone, Inc.
	 	 	—	 	 	USD






 









 






SCHEDULE 8.03




INDEBTEDNESS EXISTING ON THE CLOSING DATE



	 	 	 	 	 
	 	 	Amount (USD)	 
	Capital leases of Wright Medical Technology, Inc.
	 	 	2,395,883	 
	 
	 	 	 	 
	- Company Car, Equipment for Distribution Center
	 	 	 	 
	 
	 	 	 	 
	Capital leases of Wright Medical Japan, K.K.
	 	 	158,303	 
	 
	 	 	 	 
	- Copiers, Company Cars
	 	 	 	 
	 
	 	 	 	 
	Capital leases of Wright Medical Netherlands B.V.
	 	 	257,190	 
	 
	 	 	 	 
	- Computer Servers
	 	 	 	 
	 
	 	 	 	 
	Wright Medical Group, Inc. — Total
	 	 	2,811,375	 
	 
	 	 	 





 









 






Schedule 8.14




8.14: Non-wholly Owned Subsidiaries



	 	 	 	 	 	 	 	 	 

	Wright Medical 

Europe SAS (WME)

	 	France
	 	1,657,887(common)
	 	1,657,887 shares
(99.9%) owned by
2Hip; 1 share
(<0.01%) owned
by Lance Berry; 1
share (<0.01%)
owned by Gary D.
Henley; 1 share
(<0.01%) owned
by Thomas L.
McAllister; 1 share
(<0.01%) owned
by Joyce B. Jones;
and 1 share
(<0.01%) owned
by Aurelio Sahagun
	 	N/A
	 
	 	 	 	 	 	 	 	 
	Wright Medical 

Europe 

Manufacturing SA

	 	France (Toulon)
	 	585,117 (common)
	 	585,100 (99.9%)
shares owned by
WME; 1 share
(<0.01%) owned
by Lance Berry; 1
share (<0.01%)
owned by Gary D.
Henley; 1 share
(<0.01%) owned
by Thomas L.
McAllister; 13
shares (<0.01%)
owned by Alain
Vinzant; 1 share
(<0.01%) owned
by Aurelio Sahagun
[All shares except
those held by A.
Vinzant are owned
by WME and held in
trust by the
individuals.]
	 	N/A






 









 






SCHEDULE 11.02




CERTAIN ADDRESSES FOR NOTICES


1. Address for Loan Parties:



Borrower:



Wright Medical Group, Inc.



5677 Airline Road



Arlington, Tennessee 38002



Attention: General Counsel



Telephone: (901) 867-4743



Facsimile: (901) 867-4393



E-mail: raymond.kolls@wmt.com.



With copies to:



Wright Medical Group, Inc.



5677 Airline Road



Arlington, Tennessee 38002



Attention: Treasurer



Telephone: (901) 867-4656



Facsimile: (901) 867-4320



E-mail: Joyce.Jones@wmt.com









 









 







and



Willkie Farr & Gallagher LLP



787 Seventh Avenue



New York, NY 10019



Attention: Bill Hiller



Telephone: (212) 728 -8228



Facsimile: (212) 728 -9228



E-mail: whiller@willkie.com



2. Addresses for Administrative Agent, Swing Line Lender and L/C Issuer:



Agent’s Office:



(for payments and requests)



Bank of America, N.A.



101 N. Tryon Street



Charlotte, North Carolina 28255



Mail Code: NC1-001-04-39



Attention: Charles Hensley



Telephone: (980) 388-3225



Facsimile: (704) 719-5362



E-mail: Charles.hensley@baml.com



Wiring instructions:








 









 







Bank of America, N.A.



New York, New York



ABA #: 026009593



Acct #:
xxx-xxx-xxx-xxxx


Attention: Credit Services



Ref: Wright Medical



Other Notices to Administrative Agent:



Bank of America, N.A.



Agency Management



135 South LaSalle Street



Chicago, IL 60603



Mail Code: IL4-135-05-41



Primary



Attention: Felicia Brinson



Telephone: 312-828-7299



Telecopier: 877-206-8412



Electronic Mail: felicia.brinson@baml.com



Secondary



Attention: Laura Call, Agency Officer



Telephone: 312-828-3559



Telecopier: 877-207-2883




Electronic Mail: laura.call@baml.com






 









 








For Notices as L/C Issuer:



Bank of America, N.A.



1000 W. Temple Street



Los Angeles, California 90012



Mail Code:CA9-705-07-05



Attention: Tai Lu



Telephone: (213) 481-7840



Facsimile: (213) 580-8442



E-mail: tai_anh.lu@bankofamerica.com



For Notices as Swing Line Lender:



(daily borrowing/repaying activity)



Bank of America, N.A.



101 N. Tryon Street



Charlotte, North Carolina 28255



Mail Code:NC1-001-04-39



Attention: Charles Hensley



Telephone: (980) 388-3225



Facsimile: (704) 719-5362



E-mail: Charles.hensley@baml.com









 









 







Wiring Instructions:



Bank of America, N.A.



New York, New York



ABA #: 026009593



Acct #: xxx-xxx-xxx-xxxx



Attention: Credit Services



Ref: Wright Medical





 











 





Exhibit 2.02(a)




FORM OF LOAN NOTICE


Date: __________, 20___




	 	 	 

	To:

	 	Bank of America, N.A., as Administrative Agent
	 
	 	 
	Re:

	 	Amended and Restated Credit Agreement dated as of February 10, 2011
(as amended, modified, supplemented or extended from time to time, the “Credit
Agreement”) among Wright Medical Group, Inc., a Delaware corporation (the
“Borrower”), the Guarantors from time to time party thereto, the Lenders from
time to time party thereto and Bank of America, N.A., as Administrative Agent,
Swing Line Lender and L/C Issuer. Capitalized terms used but not otherwise
defined herein have the meanings provided in the Credit Agreement.





Ladies and Gentlemen:



The undersigned hereby requests (select one):



o A Borrowing of [Revolving][Delayed Draw Term] Loans



o A conversion or continuation of [Revolving][Delayed Draw Term] Loans





	1.	 	On _______________, 20___ (which is a Business Day).
	 
	2.	 	In the amount of $_________.
	 
	3.	 	Comprised of ______________ (Type of Loan requested).
	 
	4.	 	For Eurocurrency Rate Loans: with an Interest Period of __________ months.




The Borrower hereby represents and warrants that (a) the Borrowing requested herein complies with
Section 2.02 of the Credit Agreement and (b) each of the conditions set forth in
Section 5.02 of the Credit Agreement has been satisfied on and as of the date of such
Borrowing, conversion or continuation.




	 	 	 	 	 
	 	WRIGHT MEDICAL GROUP, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



Exhibit 2.02(f)




FORM OF INCREMENTAL TERM LOAN JOINDER AGREEMENT




     THIS INCREMENTAL TERM LOAN LENDER JOINDER AGREEMENT dated as of __________, 20__ (this
“Agreement”) is by and among each of the Persons identified as “Incremental Term Loan
Lenders” on the signature pages hereto (each, an “Incremental Term Loan Lender”), Wright
Medical Group, Inc., a Delaware corporation (the “Borrower”), the Guarantors, and Bank of
America, N.A., as Administrative Agent. Capitalized terms used but not otherwise defined herein
have the meanings provided in the Credit Agreement.



W I T N E S S E T H




     WHEREAS, pursuant to that certain Amended and Restated Credit Agreement dated as of February
10, 2011 (as amended, modified, supplemented, increased or extended from time to time, the
“Credit Agreement”) among the Borrower, the Guarantors, the Lenders and the Administrative
Agent, the Lenders have agreed to provide the Borrower with a revolving credit and term loan
facility;



     WHEREAS, pursuant to Section 2.01(c) of the Credit Agreement, the Borrower has
requested that each Incremental Term Loan Lender provide a portion of the Incremental Term Loan
under the Credit Agreement; and



     WHEREAS, each Incremental Term Loan Lender has agreed to provide a portion of the Incremental
Term Loan on the terms and conditions set forth herein and to become an “Incremental Term Loan
Lender” under the Credit Agreement in connection therewith;



     NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



     1. Each Incremental Term Loan Lender severally agrees to make its portion of the Incremental
Term Loan in a single advance to the Borrower on the date hereof in the amount of its respective
Incremental Term Loan Commitment; provided that, after giving effect to such advances, the
Outstanding Amount of the Incremental Term Loan shall not exceed [________________ MILLION DOLLARS
($____________)]. The Incremental Term Loan Commitment and Applicable Percentage for each of the
Incremental Term Loan Lenders shall be as set forth on Schedule 2.01 attached hereto. The
existing Schedule 2.01 to the Credit Agreement shall be deemed to be amended to include the
information set forth on Schedule 2.01 attached hereto.



     2. The Applicable Rate with respect to the Incremental Term Loan shall be (a) [_______%], with
respect to Eurodollar Rate Loans, and (b) [_______%], with respect to Base Rate Loans.



     3. The Incremental Term Loan Maturity Date shall be [      ].



 









 





     4. The Borrower shall repay to the Incremental Term Loan Lenders the principal amount of the
Incremental Term Loan in quarterly installments on the dates set forth below as follows:



	 	 	 	 	 	 	 
	 	 	Principal	 	 	 	Principal
	Date	 	Amortization Payment	 	Date	 	Amortization Payment
	 
	 
	 

	 	 	 	Incremental Term Loan 

Maturity Date
	 	Outstanding Amount
	 
	Total:
	 	 	 	 	 	 
	 





     5. Each Incremental Term Loan Lender (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Agreement and
to consummate the transactions contemplated hereby and to become a Incremental Term Loan Lender
under the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the Credit
Agreement (subject to receipt of such consents as may be required under the Credit Agreement),
(iii) from and after the date hereof, it shall be bound by the provisions of the Credit Agreement
as a Incremental Term Loan Lender thereunder and shall have the obligations of a Incremental Term
Loan Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies
of the most recent financial statements delivered pursuant to Section 7.01 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Agreement on the basis of which it has made such
analysis and decision independently and without reliance on the Administrative Agent or any other
Incremental Term Loan Lender, and (v) if it is a Foreign Lender, attached hereto is any
documentation required to be delivered by it pursuant to the terms of the Credit Agreement; and (b)
agrees that (i) it will, independently and without reliance on the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Loan Documents,
and (ii) it will perform in accordance with their terms all of the obligations which by the terms
of the Loan Documents are required to be performed by it as a Incremental Term Loan Lender.



     6. Each of the Administrative Agent, the Borrower, and the Guarantors agrees that, as of the
date hereof, each Incremental Term Loan Lender shall (a) be a party to the Credit Agreement and the
other Loan Documents, (b) be an “Incremental Term Loan Lender” for all purposes of the Credit
Agreement and the other Loan Documents and (c) have the rights and obligations of an Incremental
Term Loan Lender under the Credit Agreement and the other Loan Documents.



     7. The address of each Incremental Term Loan Lender for purposes of all notices and other
communications is as set forth on the Administrative Questionnaire delivered by such Incremental
Term Loan Lender to the Administrative Agent.



     8. This Agreement may be executed in any number of counterparts and by the various parties
hereto in separate counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one contract. Delivery of an executed counterpart
of this Agreement by telecopier or other secure electronic format (.pdf) shall be effective as
delivery of a manually executed counterpart of this Agreement.



     9. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.



 









 





     IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by a
duly authorized officer as of the date first above written.



	 	 	 	 	 
	 	 	 
	INCREMENTAL TERM LOAN LENDERS: 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	BORROWER: 	WRIGHT MEDICAL GROUP, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	GUARANTORS: 	[INSERT GUARANTORS]

 	 
	 	By:  	



 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	Accepted and Agreed:



BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	By:  	 	 
	 	Name:  	 	 
	 	Title:  	 	 



 









 






	 	 	 	 	 



Exhibit 2.04




FORM OF SWING LINE LOAN NOTICE


Date: __________, 20__




	 	 	 

	To:

	 	Bank of America, N.A., as Swing Line Lender
	 
	 	 
	Cc:

	 	Bank of America, N.A., as Administrative Agent
	 
	 	 
	Re:

	 	Amended and Restated Credit Agreement dated as of
February 10, 2011 (as amended, modified,
supplemented or extended from time to time, the
“Credit Agreement”) among Wright Medical Group,
Inc., a Delaware corporation (the “Borrower”), the
Guarantors from time to time party thereto, the
Lenders from time to time party thereto and Bank of
America, N.A., as Administrative Agent, Swing Line
Lender and L/C Issuer. Capitalized terms used but
not otherwise defined herein have the meanings
provided in the Credit Agreement.





Ladies and Gentlemen:



The undersigned hereby requests a Swing Line Loan:





	1.	 	On __________, 20__ (a Business Day).
	 
	2.	 	In the amount of $_________.




With respect to such Borrowing of Swing Line Loans, the Borrower hereby represents and warrants
that (a) the Borrowing requested herein complies with Section 2.02 of the Credit Agreement
and (b) each of the conditions set forth in Section 5.02 of the Credit Agreement have been
satisfied on and as of the date of such Borrowing of Swing Line Loans.




	 	 	 	 	 
	 	WRIGHT MEDICAL GROUP, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT 2.11(a)(i)




FORM OF REVOLVING NOTE



_________________



FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to
_____________________ or registered assigns (the “Lender”), in accordance with the
provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Revolving
Loan from time to time made by the Lender to the Borrower under that certain Amended and Restated
Credit Agreement dated as of February 10, 2011 (as amended, modified, supplemented or extended from
time to time, the “Credit Agreement”) among the Borrower, the Guarantors from time to time
party thereto, the Lenders from time to time party thereto and Bank of America, N.A., as
Administrative Agent, Swing Line and L/C Issuer. Capitalized terms used but not otherwise defined
herein have the meanings provided in the Credit Agreement.



The Borrower promises to pay interest on the unpaid principal amount of each Revolving Loan from
the date of such Revolving Loan until such principal amount is paid in full, at such interest rates
and at such times as provided in the Credit Agreement. All payments of principal and interest
shall be made to the Administrative Agent for the account of the Lender in Dollars in Same Day
Funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder,
such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the
date of actual payment (and before as well as after judgment) computed at the per annum rate set
forth in the Credit Agreement.



This Revolving Note is one of the Revolving Notes referred to in the Credit Agreement, is entitled
to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions
provided therein. Upon the occurrence and continuation of one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this Revolving Note shall
become, or may be declared to be, immediately due and payable all as provided in the Credit
Agreement. Revolving Loans made by the Lender shall be evidenced by one or more loan accounts or
records maintained by the Lender in the ordinary course of business. The Lender may also attach
schedules to this Revolving Note and endorse thereon the date, amount and maturity of its Revolving
Loans and payments with respect thereto.



The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest
and demand and notice of protest, demand, dishonor and nonpayment of this Revolving Note.



THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.




	 	 	 	 	 
	 	WRIGHT MEDICAL GROUP, INC.,

a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 











 





EXHIBIT 2.11(a)(ii)




FORM OF SWING LINE NOTE



_________________




FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to BANK OF
AMERICA, N.A. or registered assigns (the “Swing Line Lender”), in accordance with the
provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Swing
Line Loan from time to time made by the Swing Line Lender to the Borrower under that certain
Amended and Restated Credit Agreement dated as of February 10, 2011 (as amended, modified,
supplemented or extended from time to time, the “Credit Agreement”) among the Borrower, the
Guarantors from time to time party thereto, the Lenders from time to time party thereto and Bank of
America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer. Capitalized terms used
but not otherwise defined herein have the meanings provided in the Credit Agreement.




The Borrower promises to pay interest on the unpaid principal amount of each Swing Line Loan from
the date of such Swing Line Loan until such principal amount is paid in full, at such interest
rates and at such times as provided in the Credit Agreement. All payments of principal and
interest shall be made to the Administrative Agent for the account of the Swing Line Lender in
Dollars in Same Day Funds at the Administrative Agent’s Office. If any amount is not paid in full
when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due
date thereof until the date of actual payment (and before as well as after judgment) computed at
the per annum rate set forth in the Credit Agreement.




This Swing Line Note is the Swing Line Note referred to in the Credit Agreement, is entitled to the
benefits thereof and may be prepaid in whole or in part subject to the terms and conditions
provided therein. Upon the occurrence and continuation of one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this Swing Line Note shall
become, or may be declared to be, immediately due and payable all as provided in the Credit
Agreement. Swing Line Loans made by the Swing Line Lender shall be evidenced by one or more loan
accounts or records maintained by the Swing Line Lender in the ordinary course of business. The
Swing Line Lender may also attach schedules to this Swing Line Note and endorse thereon the date,
amount and maturity of its Swing Line Loans and payments with respect thereto.




The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest
and demand and notice of protest, demand, dishonor and nonpayment of this Swing Line Note.




THIS SWING LINE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.




	 	 	 	 	 
	 	WRIGHT MEDICAL GROUP, INC.,

a Delaware corporation

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT 2.11(a)(iii)




FORM OF DELAYED DRAW TERM NOTE



_________________




FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to
_______________ or registered assigns (the “Lender”), in accordance with the provisions of
the Credit Agreement (as hereinafter defined), the principal amount of each Delayed Draw Term Loan
from time to time made by the Lender to the Borrower under that certain Amended and Restated Credit
Agreement dated as of February 10, 2011 (as amended, modified, supplemented or extended from time
to time, the “Credit Agreement”) among the Borrower, the Guarantors from time to time party
thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer. Capitalized terms used but not otherwise defined herein
have the meanings provided in the Credit Agreement.




The Borrower promises to pay interest on the unpaid principal amount of each Delayed Draw Term Loan
from the date of such Delayed Draw Term Loan until such principal amount is paid in full, at such
interest rates and at such times as provided in the Credit Agreement. All payments of principal
and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in
Same Day Funds at the Administrative Agent’s Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date
thereof until the date of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Credit Agreement.




This Delayed Draw Term Note is one of the Delayed Draw Term Notes referred to in the Credit
Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to
the terms and conditions provided therein. Upon the occurrence and continuation of one or more of
the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this
Delayed Draw Term Note shall become, or may be declared to be, immediately due and payable all as
provided in the Credit Agreement. Delayed Draw Term Loans made by the Lender shall be evidenced by
one or more loan accounts or records maintained by the Lender in the ordinary course of business.
The Lender may also attach schedules to this Delayed Draw Term Note and endorse thereon the date,
amount and maturity of its Delayed Draw Term Loans and payments with respect thereto.




The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest
and demand and notice of protest, demand, dishonor and nonpayment of this Delayed Draw Note.




THIS DELAYED DRAW NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.




	 	 	 	 	 
	 	WRIGHT MEDICAL GROUP, INC.,

a Delaware corporation

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT 2.11(a)(iv)




FORM OF INCREMENTAL TERM NOTE



_________________




FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to
________________ or registered assigns (the “Lender”), in accordance with the provisions of
the Credit Agreement (as hereinafter defined), the principal amount of each Incremental Term Loan
from time to time made by the Lender to the Borrower under that certain Amended and Restated Credit
Agreement dated as of February 10, 2011 (as amended, modified, supplemented or extended from time
to time, the “Credit Agreement”) among the Borrower, the Guarantors from time to time party
thereto, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer. Capitalized terms used but not otherwise defined herein
have the meanings provided in the Credit Agreement.




The Borrower promises to pay interest on the unpaid principal amount of each Incremental Term Loan
from the date of such Incremental Term Loan until such principal amount is paid in full, at such
interest rates and at such times as provided in the Credit Agreement. All payments of principal
and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in
Same Day Funds at the Administrative Agent’s Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date
thereof until the date of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Credit Agreement.




This Incremental Term Note is one of the Incremental Term Notes referred to in the Credit
Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to
the terms and conditions provided therein. Upon the occurrence and continuation of one or more of
the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this
Incremental Term Note shall become, or may be declared to be, immediately due and payable all as
provided in the Credit Agreement. Incremental Term Loans made by the Lender shall be evidenced by
one or more loan accounts or records maintained by the Lender in the ordinary course of business.
The Lender may also attach schedules to this Incremental Term Note and endorse thereon the date,
amount and maturity of its Incremental Term Loans and payments with respect thereto.




The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest
and demand and notice of protest, demand, dishonor and nonpayment of this Incremental Term Note.




THIS INCREMENTAL TERM NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.




	 	 	 	 	 
	 	WRIGHT MEDICAL GROUP, INC.,

a Delaware corporation

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



Exhibit 7.02




FORM OF COMPLIANCE CERTIFICATE



Financial Statement Date: __________, 20___




	 	 	 

	To:

	 	Bank of America, N.A., as Administrative Agent
	 
	 	 
	Re:

	 	Amended and Restated Credit Agreement dated as of February 10, 2011
(as amended, modified, supplemented or extended from time to time, the
“Credit Agreement”) among Wright Medical Group, Inc., a Delaware
corporation (the “Borrower”), the Guarantors from time to time party
thereto, the Lenders from time to time party thereto and Bank of
America, N.A., as Administrative Agent, Swing Line Lender and L/C
Issuer. Capitalized terms used but not otherwise defined herein have
the meanings provided in the Credit Agreement.






Ladies and Gentlemen:




The undersigned Responsible Officer hereby certifies as of the date hereof that [he/she] is the
_______________ of the Borrower, and that, in [his/her] capacity as such, [he/she] is authorized to
execute and deliver this Compliance Certificate to the Administrative Agent on the behalf of the
Borrower, and that:




[Use following paragraph 1 for fiscal year-end financial statements:]




[1. [Attached hereto as Schedule 1 are the][The] year-end audited financial statements
required by Section 7.01(a) of the Credit Agreement for the fiscal year of the Borrower
ended as of the above date, together with the report and opinion of an independent certified public
accountant required by such section [have been electronically delivered to the Administrative Agent
pursuant to the terms of Section 7.02 of the Credit Agreement].]




[Use following paragraph 1 for fiscal quarter-end financial statements:]




[1. [Attached hereto as Schedule 1 are the][The] unaudited financial statements required by
Section 7.01(b) of the Credit Agreement for the fiscal quarter of the Borrower ended as of
the above date [have been electronically delivered to the Administrative Agent pursuant to the
terms of Section 7.02 of the Credit Agreement]. Such financial statements fairly present in all
material respects the financial condition, results of operations and cash flows of the Borrower and
its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to
normal year-end audit adjustments and the absence of footnotes.]




2. The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has
made, or has caused to be made, a detailed review of the transactions and condition (financial or
otherwise) of the Borrower during the accounting period covered by the attached financial
statements.




3. A review of the activities of the Borrower during such fiscal period has been made under the
supervision of the undersigned with a view to determining whether during such fiscal period the
Borrower performed and observed all its Obligations under the Loan Documents, and




[select one:]




 









 








[the Borrower performed and observed each covenant and condition of the Loan Documents applicable
to it, and no Default has occurred and is continuing.]




[or:]




[the following covenants or conditions have not been performed or observed and the following is a
list of each such Default and its nature and status:]




4. The representations and warranties of the Loan Parties contained in the Credit Agreement or any
other Loan Document, are true and correct on and as of the date hereof, 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 Compliance
Certificate, the representations and warranties contained in subsections (a) and (b) of Section
6.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished
pursuant to clauses (a) and (b), respectively, of Section 7.01 of the Credit Agreement,
including the statements in connection with which this Compliance Certificate is delivered.




5. The financial covenant analyses and calculation of Consolidated Leverage Ratio and Consolidated
Fixed Charge Coverage Ratio set forth on Schedule 2 attached hereto are true and accurate
on and as of the date of this Compliance Certificate.




     IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of __________,
20__.



	 	 	 	 	 
	 	WRIGHT MEDICAL GROUP, INC.,

a Delaware corporation

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 







Schedule 2

to the Compliance Certificate




	 	 	 	 	 	 	 	 	 	 

	1.	 	Consolidated Leverage Ratio	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 	 	(a)	 	Consolidated Funded Indebtedness	 	$	 
	 

	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 	 	(b)	 	Consolidated EBITDA	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(i)
	 	Consolidated Net Income
	 	$	 
	 

	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(ii)
	 	Consolidated Interest Charges
	 	$	 
	 

	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(iii)
	 	provision for federal, state, local and foreign
income taxes
	 	$	 
	 

	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(iv)
	 	depreciation and amortization expense
	 	$	 
	 

	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(v)
	 	non-cash stock based compensation expense
	 	$	 
	 

	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(vi)
	 	(1) all non-cash, non-recurring expenses, charges
and losses for such period (excluding those
expenses, charges and losses related to accounts
receivable) and (2) all non-cash restructuring
charges for such period, provided that in each
case such expenses, charges and losses (x) were
not a cash item in the four fiscal quarter period
immediately prior to such period and (y) are not
expected to be paid in cash at any time in
the future
	 	$	 
	 

	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(vii)
	 	legal settlement costs, attorney’s fees and
consulting and monitoring expenses incurred
in connection with the U.S. Department of
Justice investigation, provided that such legal
settlement costs, attorney’s fees and consulting
and monitoring expenses may only be added
back to Consolidated Net Income for the four
fiscal quarter periods identified on Schedule
1.01(a) to the Credit Agreement and such legal
settlement costs, attorney’s fees and consulting
and monitoring expenses shall not exceed in
the aggregate for any applicable period the
amount set forth opposite such period on
Schedule 1.01(a) to the Credit Agreement
	 	$	 
	 

	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(viii)
	 	fees, costs and expenses payable by the
Borrower during such period in connection
with capital transactions, including, without
limitation for the issuance of debt or
equity (whether or not such transactions are
consummated)
	 	$	 
	 

	 	 	 	 	 	 	 	 	 





 









 






	 	 	 	 	 	 	 	 	 	 

	 

	 	 	 	(ix)
	 	restructuring and integration costs incurred
during such period in connection with any
Permitted Acquisition
	 	$	 
	 

	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(x)
	 	any costs, restructuring reserves, adjustments
to acquired contingent liabilities and assets,
adjustments made for earn-outs and other
forms of contingent consideration and
adjustments made to deferred tax asset
and income tax reserves in connection with
any Permitted Acquisition which are expensed
in computing Consolidated Net Income for
such period to the extent the same would have
been capitalized prior to the adoption of
Statement of Financial Accounting
Standards No. 141R, Business Combinations
	 	$	 
	 

	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(xi)
	 	any charges associated with the abandonment of
in-process research and development assets
received in connection with a Permitted Acquisition
	 	$	 
	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(xii)
	 	Consolidated EBITDA1
[Sum of (i) + (ii) + (iii) + (iv) + (v) + (vi) + (vii)
+ (viii) + (ix) + (x) + (xi)]
	 	$	 
	 

	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 
	 	 	(c)	 	Consolidated Leverage Ratio
[(a) / (b)(xii)]	 	__________:1.0]








 




			
	1	 	The amount of add backs made pursuant to
clauses (vi), (vii), (viii) and (ix) above for purposes of calculating
Consolidated EBITDA for any four fiscal quarter period shall not exceed 10% of
Consolidated EBITDA for such period.




 









 










	 	 	 	 	 	 	 	 	 	 	 

	2.	 	Consolidated Fixed Charge Coverage Ratio	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(a)	 	Consolidated Adjusted EBITDA	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(i)
	 	Consolidated EBITDA
[[1(b)(xii)] above]
	 	$ 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(ii)
	 	rent and lease expense
	 	$ 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(iii)
	 	Consolidated Maintenance
Capital Expenditures
	 	$ 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(iv)
	 	Consolidated Adjusted EBITDA
[Sum of (a)(i) + (a)(ii) — (a)(iii)]
	 	$ 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(b)	 	Consolidated Fixed Charges	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(i)
	 	Consolidated Interest Charges
	 	$ 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(ii)
	 	Consolidated Scheduled Funded
Debt Payments
	 	$ 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(iii)
	 	rent and lease expense
	 	$ 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	(iv)
	 	Consolidated Fixed Charges
[Sum of (b)(i) + (b)(ii) + (b)(iii)]
	 	$ 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	(c)	 	Consolidated Fixed Charge Coverage Ratio
[(a)(iv) / (b)(iv)]	 	 	__________:1.0	 







 











 





Exhibit 7.12




FORM OF JOINDER AGREEMENT



     THIS JOINDER AGREEMENT (the “Agreement”) dated as of __________, 20___ is by and
between __________, a __________ (the “New Subsidiary”), and Bank of America, N.A., in its
capacity as Administrative Agent under that certain Amended and Restated Credit Agreement dated as
of February 10, 2011 (as amended, modified, supplemented or extended from time to time, the
“Credit Agreement”) among Wright Medical Group, Inc., a Delaware corporation (the
“Borrower”), the Guarantors from time to time party thereto, the Lenders from time to time
party thereto and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement.



     The Loan Parties are required by Section 7.12 of the Credit Agreement to cause the New
Subsidiary to become a “Guarantor” thereunder. Accordingly, the New Subsidiary hereby agrees as
follows with the Administrative Agent, for the benefit of the Lenders:



     1. The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this
Agreement, the New Subsidiary will be deemed to be a party to the Credit Agreement and a
“Guarantor” for all purposes of the Credit Agreement, and shall have all of the obligations of a
Guarantor thereunder as if it had executed the Credit Agreement. The New Subsidiary hereby
ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and
conditions applicable to the Guarantors contained in the Credit Agreement. Without limiting the
generality of the foregoing terms of this paragraph 1, the New Subsidiary hereby jointly and
severally together with the other Guarantors, guarantees to each Lender and the Administrative
Agent, as provided in Article IV of the Credit Agreement, the prompt payment and
performance of the Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration or otherwise) strictly in accordance with the terms thereof.



     2. The New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this
Agreement, the New Subsidiary will be deemed to be a party to the Pledge Agreement and a “Pledgor”
for all purposes of the Pledge Agreement, and shall have all the obligations of a Pledgor
thereunder as if it had executed the Pledge Agreement. The New Subsidiary hereby ratifies, as of
the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained
in the Pledge Agreement. Without limiting the generality of the foregoing terms of this paragraph
2, the New Subsidiary hereby grants, pledges and assigns to the Administrative Agent, for the
benefit of the holders of the Secured Obligations (as defined in the Pledge Agreement), a
continuing security interest in, and a right of set off against, any and all right, title and
interest of the New Subsidiary in and to the Equity Interests identified on Schedule 3
hereto and all other Pledged Collateral (as defined in the Pledge Agreement) of the New Subsidiary
to secure the prompt payment and performance in full when due, whether by lapse of time,
acceleration, mandatory prepayment or otherwise, of the Secured Obligations (as defined in the
Pledge Agreement).



     3. The New Subsidiary hereby represents and warrants to the Administrative Agent that:




     (a) The New Subsidiary’s exact legal name and state of formation are as set forth on
the signature pages hereto.




     (b) Set forth on Schedule 1 hereto is the tax payer identification number and
organizational identification number of the New Subsidiary.



 









 






     (c) Other than as set forth on Schedule 2 hereto, the New Subsidiary has not
changed its legal name, changed its state of formation, been party to a merger,
consolidation or other change in structure or used any tradename in the five years preceding
the date hereof.




     (d) Schedule 3 hereto includes each Subsidiary of the New Subsidiary, including
(i) jurisdiction of formation, (ii) number of shares of each class of Equity Interests
outstanding, (iii) the certificate number(s) of the certificates evidencing such Equity
Interests and number and percentage of outstanding shares of each class owned by the New
Subsidiary (directly or indirectly) of such Equity Interests and (iv) number and effect, if
exercised, of all outstanding options, warrants, rights of conversion or purchase and all
other similar rights with respect thereto.



     4. The address of the New Subsidiary for purposes of all notices and other communications is
the address designated for all Loan Parties on Schedule 11.02 to the Credit Agreement or
such other address as the New Subsidiary may from time to time notify the Administrative Agent in
writing.



     5. The New Subsidiary hereby waives acceptance by the Administrative Agent and the Lenders of
the guaranty by the New Subsidiary under Article IV of the Credit Agreement upon the
execution of this Agreement by the New Subsidiary.



     6. This Agreement may be executed in multiple counterparts, each of which shall constitute an
original but all of which when taken together shall constitute one contract.



     7. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.



 









 





     IN WITNESS WHEREOF, the New Subsidiary has caused this Joinder Agreement to be duly executed
by its authorized officer, and the Administrative Agent, for the benefit of the Lenders, has caused
the same to be accepted by its authorized officer, as of the day and year first above written.



	 	 	 	 	 
	 	[NEW SUBSIDIARY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	

Acknowledged and accepted:



BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



Schedule 1




Taxpayer Identification Number; Organizational Number



 









 





Schedule 2




Changes in Legal Name or State of Formation;

Mergers, Consolidations and other Changes in Structure; Tradenames



 









 





Schedule 3




Equity Interests



 









 





Exhibit 11.06




FORM OF ASSIGNMENT AND ASSUMPTION


This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein have the meanings provided in the Credit Agreement identified below, receipt
of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set
forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made
a part of this Assignment and Assumption as if set forth herein in full.



For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and
the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective
Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights
and obligations as a Lender under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage interest identified
below of all of such outstanding rights and obligations of the Assignor under the respective
facilities identified below (including, without limitation, the Letters of Credit and the
Guarantees included in such facilities) and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of the Assignor (in its
capacity as a Lender) against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of the foregoing,
including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations sold and assigned
pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i)
and (ii) above being referred to herein collectively as, the “Assigned Interest”). Such
sale and assignment is without recourse to the Assignor and, except as expressly provided in this
Assignment and Assumption, without representation or warranty by the Assignor.




	 	 	 	 	 

	1.

	 	Assignor:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	2.

	 	Assignee:	 	 
	 

	 	 	 	 
	 

	 	 	 	[and is an Affiliate/Approved Fund of [identify Lender]]
	 
	 	 	 	 
	3.

	 	Borrower:
	 	Wright Medical Group, Inc., a Delaware corporation
	 
	 	 	 	 
	4.

	 	Administrative Agent:
	 	Bank of America, N.A., as the administrative agent under the
Credit Agreement
	 
	 	 	 	 
	5.

	 	Credit Agreement:
	 	Amended and Restated Credit Agreement dated as of February 10, 2011 (as amended, modified,
supplemented or extended from time to time, the “Credit
Agreement”) among the Borrower, the
Guarantors from time to time party thereto, the Lenders from time to time party thereto and Bank
of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.






 









 






	 	 	 	 	 

	6.

	 	Assigned Interest:	 	 






	 	 	 	 	 	 	 

	Facility
Assigned2
	 	Aggregate Amount of

Revolving

Commitment/Loans

for all Lenders
	 	Amount of

Revolving

Commitment/Loans

Assigned3
	 	Percentage Assigned of

Revolving

Commitment/Loans4
	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 





	 	 	 	 	 

	7.

	 	Trade Date:
	 	__________________
	 
	8.

	 	Effective Date:
	 	__________________





The terms set forth in this Assignment and Assumption are hereby agreed to:




	 	 	 	 	 
	ASSIGNOR: 	[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	ASSIGNEE: 	[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	2	 	Insert applicable tranche (i.e. Revolving
Commitment, Delayed Draw Term Loan, etc.).
	 
	3	 	Amount to be adjusted by the counterparties to
take into account any payments or prepayments made between the Trade Date and
the Effective Date.
	 
	4	 	Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.




 









 










	 	 	 	 	 
	 	


[Consented to
and]5 Accepted:



BANK OF AMERICA, N.A.,

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	
Consented to:



WRIGHT MEDICAL GROUP, INC.

a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 	 	 
	 	
[Consented
to:] 6



BANK OF AMERICA, N.A.,

as L/C Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





 




			
	5	 	To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.
	 
	6	 	To be added only if the consent of the L/C
Issuer is required by the terms of the Credit Agreement.




 









 










Annex 1 to Assignment and Assumption




STANDARD TERMS AND CONDITIONS


1. Representations and Warranties.



1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.



1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 11.06(b)(iii)
and (iv) of the Credit Agreement (subject to such consents, if any, as may be required under
Section 11.06(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall
be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the
Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with
respect to decisions to acquire assets of the type represented by the Assigned Interest and either
it, or the Person exercising discretion in making its decision to acquire the Assignment Interest
is experienced in acquiring assets of such type, (v) it has received a copy of the Credit
Agreement, and has received or has been accorded the opportunity to receive copies of the most
recent financial statements delivered pursuant to Section 7.01 thereof, as applicable, and
such other documents and information as it deems appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase the Assigned Interest, (vi)
it has, independently and without reliance upon the Administrative Agent or any other Lender and
based on such documents and information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest,
and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered
by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee;
and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent,
the Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.



2. Payments. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of the Assigned Interest (including payments of principal, interest, fees and
other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date
and to the Assignee for amounts which have accrued from and after the Effective Date.



3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and assigns. This Assignment
and






 









 







Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of New York.