exv10w1






Exhibit 10.1




Execution Copy




[Published CUSIP Number: ____]




CREDIT AGREEMENT




Dated as of February 15, 2011




among




BASIC ENERGY SERVICES, INC.,

as the Borrower,



BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and



L/C Issuer,



CAPITAL ONE, NATIONAL ASSOCIATION,

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



WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Documentation Agent,



and



The Other Lenders Party Hereto



MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

and

CAPITAL ONE, NATIONAL ASSOCIATION,

as Joint Lead Arrangers and Joint Book Managers







 









 





TABLE OF CONTENTS








	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	1.01
	 	ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

1	 	 	 	 
	1.01
	 	Defined Terms	 	 	1	 
	1.02
	 	Other Interpretive Provisions	 	 	27	 
	1.03
	 	Accounting Terms	 	 	28	 
	1.04
	 	Rounding	 	 	29	 
	1.05
	 	Times of Day	 	 	29	 
	1.06
	 	Letter of Credit Amounts	 	 	29	 
	1.07
	 	Currency Equivalents Generally	 	 	29	 






ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS

30




	 	 	 	 	 	 	 

	2.01
	 	The Loans	 	 	30	 
	2.02
	 	Borrowings, Conversions and Continuations of Loans	 	 	30	 
	2.03
	 	Letters of Credit	 	 	31	 
	2.04
	 	Swing Line Loans	 	 	39	 
	2.05
	 	Prepayments	 	 	42	 
	2.06
	 	Termination or Reduction of Commitments	 	 	43	 
	2.07
	 	Repayment of Revolving Credit Loans	 	 	43	 
	2.08
	 	Interest	 	 	43	 
	2.09
	 	Fees	 	 	44	 
	2.10
	 	Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate	 	 	45	 
	2.11
	 	Evidence of Debt	 	 	45	 
	2.12
	 	Payments Generally; Administrative Agent’s Clawback	 	 	46	 
	2.13
	 	Sharing of Payments by Lenders	 	 	48	 
	2.14
	 	Increase in Commitments	 	 	49	 
	2.15
	 	Cash Collateral	 	 	50	 
	2.16
	 	Defaulting Lenders	 	 	51	 






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TABLE OF CONTENTS

(continued)







	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY

53
	 
	3.01
	 	Taxes	 	 	53	 
	3.02
	 	Illegality	 	 	56	 
	3.03
	 	Inability to Determine Rates	 	 	57	 
	3.04
	 	Increased Costs; Reserves on Eurodollar Rate Loans	 	 	57	 
	3.05
	 	Compensation for Losses	 	 	59	 
	3.06
	 	Mitigation Obligations; Replacement of Lenders	 	 	59	 
	3.07
	 	Survival	 	 	60	 






ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

60




	 	 	 	 	 	 	 

	4.01
	 	Conditions of Initial Credit Extension	 	 	60	 
	4.02
	 	Conditions to all Credit Extensions	 	 	63	 






ARTICLE V

REPRESENTATIONS AND WARRANTIES

64




	 	 	 	 	 	 	 

	5.01
	 	Existence, Qualification and Power	 	 	64	 
	5.02
	 	Authorization; No Contravention	 	 	64	 
	5.03
	 	Governmental Authorization; Other Consents	 	 	65	 
	5.04
	 	Binding Effect	 	 	65	 
	5.05
	 	Financial Statements; No Material Adverse Effect	 	 	65	 
	5.06
	 	Litigation	 	 	66	 
	5.07
	 	No Default	 	 	66	 
	5.08
	 	Ownership of Property; Liens; Investments	 	 	66	 
	5.09
	 	Environmental Compliance	 	 	66	 
	5.10
	 	Insurance	 	 	67	 
	5.11
	 	Taxes	 	 	67	 
	5.12
	 	ERISA Compliance	 	 	67	 
	5.13
	 	Subsidiaries; Equity Interests; Loan Parties	 	 	68	 
	5.14
	 	Margin Regulations; Investment Company Act	 	 	68	 
	5.15
	 	Disclosure	 	 	69	 
	5.16
	 	Compliance with Laws	 	 	69	 











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TABLE OF CONTENTS

(continued)





	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	5.17
	 	Intellectual Property; Licenses, Etc.	 	 	69	 
	5.18
	 	Solvency	 	 	69	 
	5.19
	 	Casualty, Etc.	 	 	69	 
	5.20
	 	Labor Matters	 	 	70	 
	5.21
	 	Collateral Documents	 	 	70	 






ARTICLE VI

AFFIRMATIVE COVENANTS

70




	 	 	 	 	 	 	 

	6.01
	 	Financial Statements	 	 	70	 
	6.02
	 	Certificates; Other Information	 	 	71	 
	6.03
	 	Notices	 	 	73	 
	6.04
	 	Payment of Obligations	 	 	74	 
	6.05
	 	Preservation of Existence, Etc.	 	 	74	 
	6.06
	 	Maintenance of Properties	 	 	74	 
	6.07
	 	Maintenance of Insurance	 	 	74	 
	6.08
	 	Compliance with Laws	 	 	75	 
	6.09
	 	Books and Records	 	 	75	 
	6.10
	 	Inspection Rights	 	 	75	 
	6.11
	 	Use of Proceeds	 	 	75	 
	6.12
	 	Covenant to Guarantee Obligations and Give Security	 	 	75	 
	6.13
	 	Compliance with Environmental Laws	 	 	78	 
	6.14
	 	Preparation of Environmental Reports	 	 	78	 
	6.15
	 	Further Assurances	 	 	79	 
	6.16
	 	Compliance with Terms of Leaseholds	 	 	79	 
	6.17
	 	Material Contracts	 	 	79	 
	6.18
	 	Post-Closing	 	 	79	 






ARTICLE VII

NEGATIVE COVENANTS

80




	 	 	 	 	 	 	 

	7.01
	 	Liens	 	 	80	 
	7.02
	 	Indebtedness	 	 	82	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	7.03
	 	Investments	 	 	84	 
	7.04
	 	Fundamental Changes	 	 	85	 
	7.05
	 	Dispositions	 	 	85	 
	7.06
	 	Restricted Payments	 	 	86	 
	7.07
	 	Change in Nature of Business	 	 	87	 
	7.08
	 	Transactions with Affiliates	 	 	87	 
	7.09
	 	Burdensome Agreements	 	 	88	 
	7.10
	 	Use of Proceeds	 	 	88	 
	7.11
	 	Financial Covenants	 	 	88	 
	7.12
	 	Capital Expenditures	 	 	88	 
	7.13
	 	Amendments of Organization Documents	 	 	89	 
	7.14
	 	Accounting Changes	 	 	89	 
	7.15
	 	Prepayments, Etc.	 	 	89	 
	7.16
	 	Amendment, Etc.	 	 	89	 






ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES

90




	 	 	 	 	 	 	 

	8.01
	 	Events of Default	 	 	90	 
	8.02
	 	Remedies upon Event of Default	 	 	92	 
	8.03
	 	Application of Funds	 	 	92	 






ARTICLE IX

ADMINISTRATIVE AGENT

94




	 	 	 	 	 	 	 

	9.01
	 	Appointment and Authority	 	 	94	 
	9.02
	 	Rights as a Lender	 	 	94	 
	9.03
	 	Exculpatory Provisions	 	 	94	 
	9.04
	 	Reliance by Administrative Agent	 	 	95	 
	9.05
	 	Delegation of Duties	 	 	96	 
	9.06
	 	Resignation of Administrative Agent	 	 	96	 
	9.07
	 	Non-Reliance on Administrative Agent and Other Lenders	 	 	97	 
	9.08
	 	No Other Duties, Etc.	 	 	97	 






-iv-









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	9.09
	 	Administrative Agent May File Proofs of Claim	 	 	97	 
	9.10
	 	Collateral and Guaranty Matters	 	 	98	 
	9.11
	 	Secured Cash Management Agreements and Secured Hedge Agreements	 	 	98	 






ARTICLE X

MISCELLANEOUS

99




	 	 	 	 	 	 	 

	10.01
	 	Amendments, Etc.	 	 	99	 
	10.02
	 	Notices; Effectiveness; Electronic Communications	 	 	100	 
	10.03
	 	No Waiver; Cumulative Remedies; Enforcement	 	 	102	 
	10.04
	 	Expenses; Indemnity; Damage Waiver	 	 	103	 
	10.05
	 	Payments Set Aside	 	 	105	 
	10.06
	 	Successors and Assigns	 	 	105	 
	10.07
	 	Treatment of Certain Information; Confidentiality	 	 	110	 
	10.08
	 	Right of Setoff	 	 	110	 
	10.09
	 	Interest Rate Limitation	 	 	111	 
	10.10
	 	Counterparts; Integration; Effectiveness	 	 	111	 
	10.11
	 	Survival of Representations and Warranties	 	 	112	 
	10.12
	 	Severability	 	 	112	 
	10.13
	 	Replacement of Lenders	 	 	112	 
	10.14
	 	Governing Law; Jurisdiction; Etc.	 	 	113	 
	10.15
	 	Waiver of Jury Trial	 	 	114	 
	10.16
	 	No Advisory or Fiduciary Responsibility	 	 	114	 
	10.17
	 	Electronic Execution of Assignments and Certain Other Documents	 	 	114	 
	10.18
	 	USA PATRIOT Act	 	 	115	 
	10.19
	 	ENTIRE AGREEMENT	 	 	115	 











-v-









 








SCHEDULES




	 	 	 

	1.01
	 	Commitments and Applicable Percentages
	1.01(a)
	 	Existing Letters of Credit
	5.13
	 	Subsidiaries and Other Equity Investments; Loan Parties
	6.12
	 	Guarantors
	7.01
	 	Existing Liens
	7.02
	 	Existing Indebtedness
	7.03
	 	Investments
	7.09
	 	Burdensome Agreements
	10.02
	 	Administrative Agent’s Office, Certain Addresses for Notices






EXHIBITS




	 	 	 

	Form of
	 	 
	A
	 	Revolving Credit Loan Notice
	B
	 	Swing Line Loan Notice
	C
	 	Note
	D
	 	Compliance Certificate
	E-1
	 	Assignment and Assumption
	E-2
	 	Administrative Questionnaire







-vi-











 





CREDIT AGREEMENT



This CREDIT AGREEMENT (“Agreement”) is entered into as of February 15, 2011 among Basic
Energy Services, Inc., a Delaware corporation (the “Borrower”), each lender from time to
time party hereto (collectively, the “Lenders” and individually, a “Lender”), and
BANK OF AMERICA, N.A., as Administrative Agent, a Swing Line Lender and L/C Issuer.




PRELIMINARY STATEMENTS:



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



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




ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




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



     “2016 Senior Notes” means the 7.125% senior unsecured notes of the Borrower due 2016
in an aggregate principal amount of $225,000,000 issued and sold pursuant to the 2016 Senior Notes
Documents.



     “2016 Senior Notes Documents” means (a) the Indenture for the 2016 Senior Notes dated
as of April 12, 2006, (b) the 2016 Senior Notes and (c) all other agreements, instruments and other
documents pursuant to which the 2016 Senior Notes have been issued or otherwise setting forth the
terms of the 2016 Senior Notes.



     “2019 Senior Notes” means the 7-3/4% senior unsecured notes of the Borrower due 2019
in an aggregate principal amount of $250,000,000 issued and sold on the Closing Date pursuant to
the 2019 Senior Notes Documents.



     “2019 Senior Notes Documents” means (a) the Indenture for the 2019 Senior Notes dated
as of February 15, 2011, (b) the 2019 Senior Notes and (c) all other agreements, instruments and
other documents pursuant to which the 2019 Senior Notes have been issued or otherwise setting forth
the terms of the 2019 Senior Notes.



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



     “Acquisition Consideration” means, in connection with any Acquisition, the total cash
and noncash consideration (including the fair market value of all Equity Interests issued or



 









 




transferred to the sellers thereof, all indemnities, earnouts and other contingent payment
obligations to, and the aggregate amounts paid or to be paid under noncompete, consulting and other
affiliated agreements with, the sellers thereof, all write-downs of property and reserves for
liabilities with respect thereto and all assumptions of debt, liabilities and other obligations in
connection therewith) paid by or on behalf of the Borrower and its Subsidiaries for such
Acquisition.




     “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 10.02, 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 substantially
the form of Exhibit E-2 or any other form approved 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 Commitments” means the Commitments of all the Lenders. As of the Closing
Date, the Aggregate Commitments are $165,000,000.



     “Agreement” means this Credit Agreement.



     “Applicable Fee Rate” means, at any time, 0.50% per annum.



     “Applicable Percentage” means, with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time, subject to adjustment as provided in Section 2.16. If the
commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.02, or if the Commitments have
expired, then the Applicable Percentage of each Lender in respect of the Aggregate Commitments
shall be determined based on the Applicable Percentage of such Lender in respect of the Aggregate
Commitments most recently in effect, giving effect to any subsequent assignments. The initial
Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule
1.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable.



     “Applicable Rate” means (i) from the Closing Date to the date on which the
Administrative Agent receives a Compliance Certificate pursuant to Section 6.02(b) for the
fiscal quarter ending March 31, 2011, 2.00% per annum for Base Rate Loans and 3.00% per annum for
Eurodollar Rate Loans and Letter of Credit Fees and (ii) thereafter, the applicable percentage per
annum set forth below determined by reference to the Consolidated Leverage Ratio as set forth in
the most recent Compliance Certificate received by the Administrative Agent pursuant to Section
6.02(b):



-2-









 





	 	 	 	 	 	 	 
	Applicable Rate
	 	 	Consolidated	 	Eurodollar Rate	 	 
	Pricing Level	 	Leverage Ratio	 	(Letters of Credit)	 	Base Rate
	1
	 	< 1.50x
	 	2.50%
	 	1.50%
	2
	 	3 1.50x but < 2.50x
	 	2.75%
	 	1.75%
	3
	 	3 2.50x but < 3.50x
	 	3.00%
	 	2.00%
	4
	 	3 3.50x
	 	3.25%
	 	2.25%





Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 6.02(b); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with such
Section, then Pricing Level 4 shall apply as of the first Business Day after the date on which such
Compliance Certificate was required to have been delivered and in each case shall remain in effect
until the date on which such Compliance Certificate is delivered.



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




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



     “Arrangers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated and Capital One,
National Association, each in its capacity as joint lead arranger and joint book manager.



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



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit E-1 or any other form approved by the Administrative Agent.



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



-3-









 





     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended December 31, 2009, and the related
consolidated 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 the period from and including the Closing Date to the
earliest of (i) the Maturity Date, (ii) the date of termination of the Commitments pursuant to
Section 2.06, and (iii) the date of termination of the commitment of each Lender to make
Revolving Credit Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions
pursuant to Section 8.02.



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



     “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate plus 1/2 of 1%, (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 such prime rate announced by Bank of America
shall take effect at the opening of business on the day specified in the public announcement of
such change.



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



     “BESI” means Basic Energy Services International, LLC, a Delaware limited liability
company.



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



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



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



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



     “CapEx Pull-Forward Amount” has the meaning set forth in Section 7.12.



     “CapEx Rollover Amount” has the meaning set forth in Section 7.12.



     “Capital Expenditures” means, with respect to any Person for any period, any
expenditure in respect of the purchase or other acquisition of any fixed or capital asset
(excluding normal replacements and maintenance which are properly charged to current operations);
provided that



-4-









 




Capital Expenditures shall not include expenditures for Capitalized Leases, purchase money
obligations or Synthetic Lease Obligations, in each case, permitted pursuant to Section
7.02(f) or Permitted Acquisitions permitted pursuant to Section 7.03(g). For purposes
of this definition, the purchase price of equipment that is purchased simultaneously with the
trade-in of existing equipment or with insurance proceeds shall be included in Capital Expenditures
only to the extent of the amount by which such purchase price exceeds the credit granted by the
seller of such equipment for the equipment being traded in at such time or the amount of such
insurance proceeds, as the case may be.




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



     “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 the Swing Line Lenders (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 Lenders
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 Lenders (as applicable). “Cash Collateral” shall
have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral
and other credit support.



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



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



     (b) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any
commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States of
America, any state thereof or the District of Columbia or is the principal banking subsidiary of a
bank holding company organized under the laws of the United States of America, any state thereof or
the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent
of which issues) commercial paper rated as described in clause (c) of this definition and (iii) has
combined capital and surplus of at least $1,000,000,000, in each case with maturities of not more
than 180 days from the date of acquisition thereof;



     (c) commercial paper issued by any Person organized under the laws of any state of the United
States of America and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or
at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not
more than 180 days from the date of acquisition thereof; and



-5-









 





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



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



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



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



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



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



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



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



-6-









 





     (b) during any period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Borrower cease to be composed of individuals
(i) who were members of that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of such election or nomination
at least a majority of that board or equivalent governing body or (iii) whose election or
nomination to that board or other equivalent governing body was approved by individuals referred to
in clauses (i) and (ii) above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and
clause (iii), any individual whose initial nomination for, or assumption of office as, a member of
that board or equivalent governing body occurs as a result of an actual or threatened solicitation
of proxies or consents for the election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by or on behalf of the board of
directors); or



     (c) the passage of thirty days from the date upon which any Person or two or more Persons
acting in concert (other than any Permitted Holder) shall have acquired by contract or otherwise,
or shall have entered into a contract or arrangement that, upon consummation thereof, will result
in its or their acquisition of the power to exercise, directly or indirectly, a controlling
influence over the management or policies of the Borrower, or control over the equity securities of
the Borrower entitled to vote for members of the board of directors or equivalent governing body of
the Borrower on a fully-diluted basis (and taking into account all such securities that such Person
or Persons have the right to acquire pursuant to any option right) representing 35% or more of the
combined voting power of such securities; or



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



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



     “Code” means the Internal Revenue Code of 1986.



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



     “Collateral Documents” means, collectively, the Security Agreement, the Vessel
Mortgages, the Intellectual Property Security Agreement, each of the mortgages, collateral
assignments, Security Agreement Supplements, IP Security Agreement Supplements, security
agreements, pledge agreements or other similar agreements delivered to the Administrative Agent
pursuant to Section 6.12, and each of the other agreements, instruments or documents that
creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the
Secured Parties.



     “Commitment” means, as to each Lender, its obligation to (a) make Revolving Credit
Loans to the Borrower pursuant to Section 2.01, (b) purchase participations in L/C
Obligations,



-7-









 




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
1.01 under the caption “Commitment” or opposite such caption in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may
be adjusted from time to time in accordance with this Agreement.




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



     “Consolidated EBITDA” means, at any date of determination, an amount equal to
Consolidated Net Income of the Borrower and its Subsidiaries on a consolidated basis for the most
recently completed Measurement Period plus (a) the following to the extent deducted in
calculating such Consolidated Net Income: (i) Consolidated Interest Charges, (ii) the provision for
Federal, state, local and foreign income taxes payable, (iii) depreciation and amortization
expense, (iv) other expenses reducing such Consolidated Net Income which do not represent a cash
item in such period or any future period, (v) stock-based compensation expenses which do not
represent a cash item in such period or any future period (in each case of or by the Borrower and
its Subsidiaries for such Measurement Period), (vi) the write-off of unamortized deferred
financing, legal and accounting costs in connection with the refinancing of the Existing Senior
Secured Notes, and (vii) tender premiums, redemption premiums, fees, and other amounts expensed in
connection with the tender for and/or redemption of the Existing Senior Secured Notes and
minus (b) the following to the extent included in calculating such Consolidated Net Income:
(i) Federal, state, local and foreign income tax credits and (ii) all non-cash items increasing
Consolidated Net Income (in each case of or by the Borrower and its Subsidiaries for such
Measurement Period). Consolidated EBITDA shall be calculated for each Measurement Period, on a Pro
Forma Basis, after giving effect to, without duplication, any Material Acquisition (as defined
below) and any Material Disposition (as defined below) and, at the Borrower’s election, any other
Acquisition or Disposition, in each case, made during each period commencing on the first day of
such period to and including the date of such transaction (the “Reference Period”) as if
such Acquisition or Disposition and any related incurrence or repayment of Indebtedness occurred on
the first day of the Reference Period. As used in this definition, “Material Acquisition” means
any Acquisition with Acquisition Consideration of $3,000,000 or more and “Material Disposition”
means any Disposition resulting in net sale proceeds of $10,000,000 or more.



     “Consolidated Funded Indebtedness” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under
letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety
bonds and similar instruments, (d) all obligations in respect of the deferred purchase price of
property or services (other than trade accounts payable in the ordinary course of business), (e)
all Attributable Indebtedness, (f) without duplication, all Guarantees with respect to outstanding
Indebtedness of the types specified in clauses (a) through (e) above of Persons other than the
Borrower or any Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a)
through (f) above of any partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which the Borrower or a



-8-









 




Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made
non-recourse to the Borrower or such Subsidiary.




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



     “Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA to (b) Consolidated Interest Charges (excluding, to the extent
included in calculating Consolidated Interest Charges, unamortized deferred financing, legal and
accounting costs expensed, and tender premiums and redemption premiums incurred, in connection with
the refinancing of the Existing Senior Secured Notes), in each case, of or by the Borrower and its
Subsidiaries on a consolidated basis for the most recently completed Measurement Period.



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA of the Borrower and its
Subsidiaries on a consolidated basis for the most recently completed Measurement Period.



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



     “Consolidated Senior Secured Indebtedness” means, at any time, Consolidated Funded
Indebtedness secured by a Lien on any assets or property of the Borrower or any of its
Subsidiaries.



-9-









 





     “Consolidated Senior Secured Leverage Ratio” means, as of any date of determination,
the ratio of (a) Consolidated Senior Secured Indebtedness as of such date to (b) Consolidated
EBITDA of the Borrower and its Subsidiaries on a consolidated basis for the most recently completed
Measurement Period.



     “Consolidated Tangible Assets” means, with respect to any Person as of any date, the
amount which, in accordance with GAAP, would be set forth under the caption “Total Assets”
(or any like caption) on a consolidated balance sheet of such Person and its consolidated
Subsidiaries, less all assets that are considered to be intangible assets under GAAP, including
customer lists, goodwill, computer software, copyrights, trade names, trademarks, patents,
franchises, licenses, unamortized deferred charges, unamortized debt discount and capitalized
research and development costs.



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



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



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



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



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



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



     “Defaulting Lender” means, subject to Section 2.16(b), any Lender that, as
determined by the Administrative Agent, (a) has failed to perform any of its funding obligations
hereunder, including in respect of its Loans or participations in respect of Letters of Credit or
Swing Line Loans, within three Business Days of the date required to be funded by it hereunder, (b)
has notified the Borrower, or the Administrative Agent or any Lender that it does not intend to
comply with its funding obligations or has made a public statement to that effect with respect to



-10-









 




its funding obligations hereunder or under other agreements in which it commits to extend
credit, (c) has failed, within three Business Days after request by the Administrative Agent, to
confirm in a manner satisfactory to the Administrative Agent that it will comply with its funding
obligations, or (d) has, or has a direct or indirect parent company that has, (i) become the
subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or a custodian appointed for it, or (iii) taken any action in
furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or
appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of
the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent
company thereof by a Governmental Authority.




     “Disqualified Capital Stock” shall mean any Equity Interest which, by its terms (or by
the terms of any security into which it is convertible or for which it is exchangeable), or upon
the happening of any event, (a) matures (excluding any maturity as the result of an optional
redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part,
(b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i)
debt securities or (ii) any Equity Interests referred to in (a) above, or (c) contains any
repurchase obligation.



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



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



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



     “Earn Out Obligation” means those contingent obligations of the Borrower incurred in
favor of a seller (or other third party entitled thereto) under or with respect to any Permitted
Acquisition.



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



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



-11-









 





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



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



     “Equity Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination (provided, however, that debt securities that are or by their terms may be
convertible or exchangeable into or for Equity Interests shall not constitute Equity Interests
prior to conversion or exchange thereof).



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



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



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) 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 Section 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.



-12-









 





     “Eurodollar 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 Dollar deposits (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 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 interbank eurodollar market 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 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 and with a term equal to one
month would be offered by Bank of America’s London Branch to major banks in the London interbank
Eurodollar market at their request at the date and time of determination.



     “Eurodollar Rate Loan” means a Revolving Credit Loan that bears interest at a rate
based on clause (a) of the definition of “Eurodollar Rate”.



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



     “Excluded Property” shall have the meaning set forth in the Security Agreement.



     “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 United
States, any State or the District of Columbia (or any political subdivision thereof) or 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) any backup
withholding tax that is required by the Code to be withheld from amounts payable to a Lender that
has failed to comply with clause (A) of Section 3.01(e)(ii), and (d) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section
10.13), any United States withholding tax that (i) is required to be imposed on amounts payable



-13-









 




to such Foreign Lender pursuant to the Laws in force at the time such Foreign Lender becomes a
party hereto (or designates a new Lending Office) or (ii) is attributable to such Foreign Lender’s
failure or inability (other than as a result of a Change in Law) to comply with clause (B) of
Section 3.01(e)(ii), except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax pursuant to Section
3.01(a).




     “Existing Credit Agreement” means the Credit Agreement dated as of September 28, 2010
among the Borrower, Capital One, National Association, as agent, and the lenders party thereto.



     “Existing Credit Agreement Secured Parties” means the “Secured Parties” as defined in
the Existing Credit Agreement.



     “Existing Letters of Credit” means those certain Letters of Credit that (a) were
issued pursuant to the Existing Credit Agreement, (b) are outstanding on the Closing Date and (c)
are listed on Schedule 1.01(a).



     “Existing Senior Secured Notes” means the 11.625% senior secured notes of the Borrower
due 2014 in an aggregate principal amount of $225,000,000 issued and sold pursuant to the Existing
Senior Secured Notes Documents.



     “Existing Senior Secured Notes Documents” means (a) the Indenture dated as of July 31,
2009 among the Borrower, the guarantors party thereto and The Bank of New York Mellon Trust
Company, N.A., as trustee, (b) the Existing Senior Secured Notes, (c) the Security Agreement dated
as of July 31, 2009 made by the Borrower and each guarantor party thereto in favor of The Bank of
New York Mellon Trust Company, N.A., as trustee and (d) all other agreements, instruments and other
documents pursuant to which the Existing Senior Secured Notes have been issued or otherwise setting
forth the terms of the Existing Senior Secured Notes.



     “Existing SSN Secured Parties” means The Bank of New York Mellon Trust Company, N.A.,
as trustee and the holders of the Existing Senior Secured Notes.



     “FASB ASC” means the Accounting Standards Codification of the Financial Accounting
Standards Board.



     “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.



-14-









 





     “Fee Letter” means the letter agreement, dated January 21, 2011, among the Borrower,
the Administrative Agent and the Arrangers.



     “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 (including such a Lender when
acting in the capacity of the L/C Issuer). For purposes of this definition, the United States,
each State thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.



     “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 Lenders, such Defaulting Lender’s Applicable
Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance
with the terms hereof.



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



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



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



     “Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of such Person, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for
the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the
payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level of income or



-15-









 




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, collectively, the Subsidiaries of the Borrower listed on
Schedule 6.12 and each other Subsidiary of the Borrower that shall be required to execute
and deliver a guaranty or guaranty supplement pursuant to Section 6.12.



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



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



     “Hedge Bank” means any Person that, at the time it enters into an interest rate Swap
Contract permitted under Article VII, is a Lender or an Affiliate of a Lender, in its
capacity as a party to such Swap Contract.



     “Immaterial Domestic Subsidiary” means shall mean any Domestic Subsidiary that (i)
does not own any Collateral, (ii) does not guaranty any obligations with respect to the Senior
Notes, and (iii) owns net assets that have an aggregate fair market value of less than 2.5% of
Consolidated Tangible Assets of the Borrower as of the end of the fiscal quarter most recently
ended.



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



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



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



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



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     (d) all obligations of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business and not past due for more
than 60 days after the date on which such trade account was created);



     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have been assumed by such
Person or is limited in recourse; provided that, if such indebtedness is limited in
recourse, then the amount of such indebtedness for purposes of this Agreement will not exceed the
fair market value of such property;



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



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



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


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




     “Indemnified Taxes” means Taxes other than Excluded Taxes.



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



     “Information” has the meaning specified in Section 10.07.



     “Intellectual Property Security Agreement” has the meaning specified in Section
4.01(a)(v).



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



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



-17-









 





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



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



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



     “Investment” means, as to any Person, any direct or indirect 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 interest in, another 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.



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



     “IP Security Agreement Supplement” means any Copyright Security Agreement Supplement,
Patent Security Agreement Supplement or Trademark Security Agreement Supplement, as such terms are
defined in Section 1.3 of the Security Agreement.



     “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 such Letter of
Credit.



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



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



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



     “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 and, in the case of the Existing
Letters of Credit, Capital One.



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



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



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



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



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



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



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



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



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



-19-









 





     “Liquidity” shall mean, as of any date of determination, the sum of (i) all
unrestricted cash balances and Cash Equivalents of Borrower and its consolidated Subsidiaries as of
such date and (ii) the amount by which the Aggregate Commitments exceeds the Total Outstandings as
of such date.



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



     “Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the
Guaranty, (d) the Collateral Documents, (e) the Fee Letter, (f) each Issuer Document, (g) any
arrangements entered into by the L/C Issuer and the Borrower pursuant to Section
2.03(a)(iii), (h) any agreement creating or perfecting rights in Cash Collateral pursuant to
the provisions of Section 2.15 of this Agreement, (i) each Secured Hedge Agreement and (j)
each Secured Cash Management Agreement; provided that for purposes of the definition of “Material
Adverse Effect” and Articles IV through X (other than Section 8.03,
Section 10.04, and Section 10.16), “Loan Documents” shall not include Secured Hedge
Agreements or Secured Cash Management Agreements.



     “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
condition (financial or otherwise) of the Borrower or the Borrower and its Subsidiaries taken as a
whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any
Lender under any Loan Document, or of the ability of any Loan Party to perform its obligations
under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan Document to which it
is a party.



     “Material Contract” means, with respect to any Person, any agreement or instrument to
which such Person is a party which is material to the business, condition (financial or otherwise),
operations, performance, or properties of such Person.



     “Material Loan Party “ shall mean (i) the Borrower and (ii) any Subsidiary that (A)
owns any Collateral or (B) owns net assets that have an aggregate Fair Market Value of 2.5% or more
of Consolidated Tangible Assets of the Borrower as of the end of the previous fiscal quarter.



     “Maturity Date” means January 15, 2016; provided, however, that if
such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.



     “Measurement Period” means, at any date of determination, the most recently completed
four fiscal quarters of the Borrower.



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



-20-









 





     “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.



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



     “NPL” means the National Priorities List under CERCLA.



     “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, Letter of Credit, Secured Cash Management Agreement or Secured Hedge Agreement, in each case
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.



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



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



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



-21-









 




Obligations as of such date, including as a result of any reimbursements by the Borrower of
Unreimbursed Amounts.




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



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “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, 304 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 the minimum funding standards
under Section 412 of the Code.



     “Permitted Acquisition” means, with respect to the Borrower or any Guarantor, (a) any
Acquisition by such Person for which the Acquisition Consideration does not exceed $20,000,000, (b)
any Acquisition by such Person for which the Acquisition Consideration consists solely of Qualified
Capital Stock of the Borrower, or (c) any other Acquisition by such Person, if, at the time of, and
after giving effect on a Pro Forma Basis to, such other Acquisition:




     (i) the pro forma Consolidated Leverage Ratio as of the end of the most recent
Measurement Period for which financial statements of the Borrower are available is less than
3.50 to 1.0 (assuming, for purposes of this clause (i), that such Acquisition, and all other
Acquisitions consummated since the first day of the relevant Measurement Period ending on or
prior to the date of such Acquisition, and all Indebtedness incurred, assumed or repaid in
connection therewith had occurred on the first day of such relevant Measurement Period);




     (ii) pro forma Liquidity is greater than $40,000,000; and




     (iii) the Borrower is in pro forma compliance with all covenants set forth in
Section 7.11 as of the end of the most recent Measurement Period for which financial
statements of the Borrower are available (assuming, for purposes of Section 7.11,
that such Acquisition, and all other Acquisitions consummated since the first day of the
relevant Measurement Period for each of the financial covenants set forth in Section
7.11 ending on or prior to the date of such Acquisition, and all Indebtedness incurred,
assumed or repaid in connection therewith had occurred on the first day of such relevant
Measurement Period).



     “Permitted Holders” means Credit Suisse AG and its Affiliates.



-22-









 





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



     “Plan” means any employee benefit plan 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.



     “Platform” has the meaning specified in Section 6.02.



     “Pledged Equity” has the meaning specified in Section 1.3 of the Security
Agreement.



     “Pro Forma Basis” shall mean on a basis in accordance with GAAP and Regulation S X and
otherwise reasonably satisfactory to the Administrative Agent.



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



     “Qualified Capital Stock” of any Person shall mean any capital stock of such person
that is not Disqualified Capital Stock; provided that such capital stock shall not be deemed
Qualified Capital Stock to the extent sold or owed to a Subsidiary of such person or financed,
directly or indirectly, using funds (1) borrowed from such person or any Subsidiary of such person
until and to the extent such borrowing is repaid or (2) contributed, extended, guaranteed or
advanced by such person or any Subsidiary of such person (including, without limitation, in respect
of any employee stock ownership or benefit plan). Unless otherwise specified, Qualified Capital
Stock refers to Qualified Capital Stock of Borrower.



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



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



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



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



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



-23-









 





     “Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or controller of a Loan Party, and solely for purposes of
the delivery of incumbency certificates pursuant to Section 4.01, the secretary or any
assistant secretary of a Loan Party and, solely for purposes of notices given pursuant to
Article II, any other officer of the applicable Loan Party so designated by any of the
foregoing officers in a notice to the Administrative Agent. Any document delivered hereunder that
is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the part of such Loan
Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such
Loan Party.



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



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



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



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



     “Robota” means Robota Energy Equipment, LLC, a Texas limited liability company.



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



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



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



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



     “Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C
Issuer, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the
Administrative Agent from time to time pursuant to Section 9.05, and the other Persons the



-24-









 




Obligations owing to which are or are purported to be secured by the Collateral under the
terms of the Collateral Documents.




     “Security Agreement” has the meaning specified in Section 4.01(a)(iii).



     “Security Agreement Supplement” means the form of supplement attached to the Security
Agreement as Annex I.



     “Senior Notes” means (a) the 2016 Senior Notes, (b) the 2019 Senior Notes and (c) any
notes, promissory notes or other instruments evidencing the issuance or incurrence of Indebtedness
permitted under Section 7.02(g).



     “Senior Notes Documents” means (a) the 2016 Senior Notes Documents, (b) the 2019
Senior Notes Documents and (c) any indentures, promissory notes, credit agreements and other
instruments pursuant to which Indebtedness permitted under Section 7.02(g) has been issued
or incurred.



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



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



     “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any



-25-









 




combination of any of the foregoing (including any options to enter into any of the
foregoing), whether or not any such transaction is governed by or subject to any master agreement,
and (b) any and all transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together with any related
schedules, a “Master Agreement”), including any such obligations or liabilities under any
Master Agreement.




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



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



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



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



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



     “Swing Line Sublimit” means, with respect to each Swing Line Lender, an amount equal
to the lesser of (a) $5,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimits are
part of, and not in addition to, the Aggregate Commitments.



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



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property (including sale and leaseback transactions), in each case, creating
obligations that do not appear on the balance sheet of such Person but which, upon the application
of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person
(without regard to accounting treatment).



-26-









 





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



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



     “Total Swing Line Sublimit” means an amount equal to the lesser of (a) $5,000,000 and
(b) the Aggregate Commitments. The Total Swing Line Sublimit is a part of, and not in addition to,
the Aggregate Commitments.



     “Transaction” means, collectively, (a) the issuance and sale of the 2019 Senior Notes,
(b) the entering into by the Loan Parties and their applicable Subsidiaries of the Loan Documents
and the 2019 Senior Notes Documents to which they are or are intended to be a party, (c)(i) the
retirement of the Existing Senior Secured Notes and (ii) the release of all Liens held by or on
behalf of the Existing SSN Secured Parties, (d)(i) the repayment in full of all obligations owing
under the Existing Credit Agreement and the related loan documents (other than the Existing Letters
of Credit and contingent indemnification obligations that survive the termination of the Existing
Credit Agreement), (ii) the termination of the Existing Credit Agreement (and the commitments
thereunder) and the related loan documents and (iii) the release of all Liens held by or on behalf
of the Existing Credit Agreement Secured Parties, and (d) the payment of the fees and expenses
incurred in connection with the consummation of the foregoing.



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



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



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



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



     “U.S. Loan Party” means any Loan Party that is organized under the laws of one of the
states of the United States of America and that is not a CFC.



     “Vessel Mortgages” means collectively, each of the vessel mortgages executed by the
Borrower or any Guarantor in favor of the Administrative Agent for the benefit of the Secured
Parties, in form and substance reasonably acceptable to the Administrative Agent.



     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:



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



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



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



     1.03 Accounting Terms. (a) Generally. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing the Audited Financial
Statements, except as otherwise specifically prescribed herein. Notwithstanding the
foregoing, for purposes of determining compliance with any covenant (including the computation of
any financial covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries shall
be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of
FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.



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



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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) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Borrower and its Subsidiaries or to the determination of
any amount for the Borrower and its Subsidiaries on a consolidated basis or any similar reference
shall, in each case, be deemed to include each variable interest entity that the Borrower is
required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a
Subsidiary as defined herein.



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



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



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



     1.07 Currency Equivalents Generally. Any amount specified in this Agreement (other than in
Articles II and IX) or any of the other Loan Documents to be in Dollars shall also
include the equivalent of such amount in any currency other than Dollars, such equivalent amount
thereof in the applicable currency to be determined by the Administrative Agent at such time on the
basis of the Spot Rate (as defined below) for the purchase of such currency with Dollars. For
purposes of this Section 1.07, the “Spot Rate” for a currency means the rate
determined by the Administrative Agent to be the rate quoted by the Person acting in such capacity
as the spot rate for the purchase by such Person of such currency with another currency through its
principal foreign exchange trading office at approximately 10:00 a.m. on the date two Business Days
prior to the date of such determination; provided that the Administrative Agent may obtain
such spot rate from another financial institution designated by the Administrative Agent if the
Person acting in such capacity does not have as of the date of determination a spot buying rate for
any such currency.



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ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS




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



     2.02 Borrowings, Conversions and Continuations of Loans. (a) Each Revolving Credit Borrowing,
each conversion of Revolving Credit Loans from one Type to the other, and each continuation of
Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the 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 Revolving Credit Loan
Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each
Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount
of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in
Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans
shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each
Revolving Credit Loan Notice (whether telephonic or written) shall specify (i) whether the
Borrower is requesting a Revolving Credit Borrowing, a conversion of Revolving Credit Loans from
one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii)
the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be
borrowed or to which existing Revolving Credit Loans are to be converted, and (v) if applicable,
the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type
of Loan in a Revolving Credit Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the Revolving Credit Loans shall be made as, or
converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective
as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar
Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar
Rate Loans in any such Revolving Credit Loan Notice, but fails to specify an Interest Period, it
will be deemed to have specified an Interest Period of one month. Notwithstanding anything to the
contrary herein, a Swing Line Loan may not be converted to a Eurodollar Rate Loan.



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     (b) Following receipt of a Revolving Credit Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Applicable Percentage of the Revolving Credit
Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic conversion to Base
Rate Loans described in Section 2.02(a). In the case of a Revolving Credit Borrowing, each
Lender shall make the amount of its Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent’s Office not later than 12:00 noon on the Business Day
specified in the applicable Revolving Credit Loan Notice. Upon satisfaction of the applicable
conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit
Extension, Section 4.01), the Administrative Agent shall make all funds so received
available to the Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrower on the books of Bank of America with the amount of such funds
or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Borrower; provided,
however, that if, on the date a Revolving Credit Loan Notice with respect to a Revolving
Credit Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds
of such Revolving Credit Borrowing, first, shall be applied to the payment in full of any
such L/C Borrowings, and second, shall be made available to the Borrower as provided above.



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



     (d) The 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 Revolving Credit Borrowings, all conversions of Revolving
Credit Loans from one Type to the other, and all continuations of Revolving Credit Loans as the
same Type, there shall not be more than five (5) Interest Periods in effect with respect to
Eurodollar Rate Loans.



     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 for the account of the Borrower or its Subsidiaries, and to amend or extend
Letters of Credit previously issued by it, in accordance with Section 2.03(b), and (2) to
honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in
Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings
thereunder; provided that after giving effect to any L/C Credit Extension with respect to
any Letter of Credit, (x) the Total Outstandings shall not exceed the Aggregate Commitments, (y)
the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such
Lender’s Applicable Percentage of



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the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and
(z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit.
Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to
be a representation by the Borrower that the L/C Credit Extension so requested complies with the
conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and
subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and
reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto,
and from and after the Closing Date shall be subject to and governed by the terms and conditions
hereof.





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




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




     (B) the expiry date of the requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the Lenders have approved such expiry
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 the
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 the Letter of Credit in
particular or shall impose upon the L/C Issuer with respect to the 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 the 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,
the Letter of Credit is in an initial stated amount less than $500,000;




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



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     (E) 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 2.16(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; or




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




     (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 the Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not
accept the proposed amendment to the 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
IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term “Administrative Agent”
as used in Article IX included the L/C Issuer with respect to such acts or
omissions, and (B) as additionally provided herein with respect to the L/C Issuer.



     (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit. (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in
the form of a Letter of Credit Application, appropriately completed and signed by a Responsible
Officer of the Borrower. Such Letter of Credit Application must be received by the L/C Issuer and
the Administrative Agent not later than 10:00 a.m. at least two Business Days (or such later date
and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their
sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In
the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail 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
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 reasonably 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



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





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




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



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     (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C
Issuer will also deliver to the Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.



     (c) Drawings and Reimbursements; Funding of Participations. (i) Upon receipt from the
beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C
Issuer shall notify the Borrower and the Administrative Agent thereof. Not later than 10:00 a.m.
on the date of any payment by the L/C Issuer under a Letter of Credit (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. 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 (the “Unreimbursed Amount”), and the amount of such
Lender’s Applicable Percentage thereof. In such event, the Borrower shall be deemed to have
requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an
amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Commitments and the conditions set forth in Section 4.02 (other
than the delivery of a Revolving Credit Loan Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an immediate confirmation
shall not affect the conclusiveness or binding effect of such notice.




     (ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available (and the Administrative Agent may apply Cash Collateral provided for this
purpose) for the account of the L/C Issuer at the Administrative Agent’s Office in an amount
equal to its Applicable Percentage of the Unreimbursed Amount not later than 12:00 noon 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
Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in
Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be
deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable
on demand (together with interest) and shall bear interest at the Default Rate. In such
event, each Lender’s payment to the Administrative Agent for the account of the L/C Issuer
pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in
satisfaction of its participation obligation under this Section 2.03.




     (iv) Until each Lender funds its Revolving Credit 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.



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     (v) Each Lender’s obligation to make Revolving Credit 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 Credit
Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in
Section 4.02 (other than delivery by the Borrower of a Revolving Credit 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 in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily charged by the
L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest
and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit
Loan included in the relevant Revolving Credit Borrowing or L/C Advance in respect of the
relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer submitted to
any Lender (through the Administrative Agent) with respect to any amounts owing under this
Section 2.03(c)(vi) shall be conclusive absent manifest error.



     (d) Repayment of Participations. (i) At any time after the 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 in the same funds as those received by
the Administrative Agent.




     (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.05 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned by such Lender, at a rate per annum equal to the
Federal Funds



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Rate from time to time in effect. The obligations of the Lenders under this clause
shall survive the payment in full of the Obligations and the termination of this Agreement.



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




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




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




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




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




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


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




     (f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant



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or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or
omitted in connection herewith at the request or with the approval of the Lenders or the Required
Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or
willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use
of any Letter of Credit; provided, however, that this assumption is not intended
to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable or responsible for any of the matters described in
clauses (i) through (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. 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 (including any such agreement applicable to an Existing
Letter of Credit), 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 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 2.16(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
1.06. Letter of Credit Fees shall be (i) due and payable on the first Business Day after the
end of each March, June, September and December, commencing with the first such date to occur after
the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable
Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall
be computed and multiplied by the Applicable Rate separately for each period during



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such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained
herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of
Credit Fees shall accrue at the Default Rate.




     (i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. 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 daily
amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such
fronting fee shall be due and payable on the tenth Business Day after the end of each March, June,
September and December in respect of the most recently-ended quarterly period (or portion thereof,
in the case of the first payment), commencing with the first such date to occur after the issuance
of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For
purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount
of such Letter of Credit shall be determined in accordance with Section 1.06. In addition,
the Borrower shall pay directly to the 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.



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



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



     2.04 Swing Line Loans. (a) The Swing Line. Subject to the terms and conditions set
forth herein, each Swing Line Lender may in its sole discretion, in reliance upon the agreements of
the other Lenders set forth in this Section 2.04, make loans (each such loan, a “Swing
Line Loan”) to the Borrower from time to time on any Business Day during the Availability
Period in an aggregate amount not to exceed at any time outstanding the amount of its Swing Line
Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable
Percentage of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender
acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment; provided,
however, that after giving effect to any Swing Line Loan, (i) the Total Outstandings shall
not exceed the Aggregate Commitments at such time, (ii) the aggregate Outstanding Amount of the
Revolving Credit Loans of any Lender at such time, plus such Lender’s Applicable Percentage
of the Outstanding Amount of all L/C Obligations at such time, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans at such time shall not
exceed such Lender’s Commitment, and (iii) the aggregate Outstanding Amount of all Swing Line Loans
at any time shall not exceed the Total Swing Line Sublimit 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



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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 bear interest only at a rate based on the Base Rate. Immediately upon the making of a
Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from the applicable Swing Line Lender a risk participation in such Swing Line Loan in
an amount equal to the product of such Lender’s Applicable Percentage times the amount of
such Swing Line Loan.




     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the applicable Swing Line Lender and the Administrative Agent, which may be
given by telephone. Each such notice must be received by the applicable Swing Line Lender and the
Administrative Agent not later than 12:00 noon on the requested borrowing date, and shall specify
(i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed
promptly by delivery to the applicable 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 applicable Swing Line Lender of any telephonic Swing Line
Loan Notice, the applicable 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 applicable Swing Line Lender will notify the Administrative Agent (by
telephone or in writing) of the contents thereof. Unless the applicable Swing Line Lender has
received notice (by telephone or in writing) from the Administrative Agent (including at the
request of any Lender) prior to 1:00 p.m. on the date of the proposed Swing Line Borrowing (A)
directing such Swing Line Lender not to make such Swing Line Loan as a result of the limitations
set forth in the first proviso to the first sentence of Section 2.04(a), or (B) that one or
more of the applicable conditions specified in Article IV is not then satisfied, then,
subject to the terms and conditions hereof, the applicable Swing Line Lender will, not later than
2:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its
Swing Line Loan available to the Borrower.



     (c) Refinancing of Swing Line Loans. (i) Each Swing Line Lender at any time in its
sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably
authorizes each Swing Line Lender to so request on its behalf), that each Lender make a Base Rate
Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans
then outstanding. Such request shall be made in writing (which written request shall be deemed to
be a Revolving Credit Loan Notice for purposes hereof) and in accordance with the requirements of
Section 2.02, without regard to the minimum and multiples specified therein for the
principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02. The applicable Swing Line Lender
shall furnish the Borrower with a copy of the applicable Revolving Credit 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 Revolving Credit Loan Notice available
to the Administrative Agent in immediately available funds (and the Administrative Agent may apply
Cash Collateral available with respect to the applicable Swing Line Loan) for the account of the
applicable Swing Line Lender at the Administrative Agent’s Office not later than 12:00 noon on the
day specified in such Revolving Credit Loan Notice, whereupon, subject to Section
2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a



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Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds
so received to the applicable Swing Line Lender.





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




     (iii) If any Lender fails to make available to the Administrative Agent for the account
of the applicable Swing Line Lender any amount required to be paid by such Lender pursuant
to the foregoing provisions of this Section 2.04(c) by the time specified in
Section 2.04(c)(i), the applicable Swing Line Lender shall be entitled to recover
from such Lender (acting through the 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 applicable Swing Line Lender at a rate per
annum equal to the greater of the Federal Funds Rate and a rate determined by the applicable
Swing Line Lender in accordance with banking industry rules on interbank compensation, plus
any administrative, processing or similar fees customarily charged by the applicable Swing
Line Lender in connection with the foregoing. If such Lender pays such amount (with
interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving
Credit Loan included in the relevant Revolving Credit Borrowing or funded participation in
the relevant Swing Line Loan, as the case may be. A certificate of the applicable Swing
Line Lender submitted to any Lender (through the 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 Credit Loans or to purchase and fund
risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against
the applicable Swing Line Lender, the Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing; provided,
however, that each Lender’s obligation to make Revolving Credit Loans pursuant to
this Section 2.04(c) is subject to the conditions set forth in Section 4.02.
No such funding of risk participations shall relieve or otherwise impair the obligation of
the Borrower to repay Swing Line Loans, together with interest as provided herein.



     (d) Repayment of Participations. (i) At any time after any Lender has purchased and
funded a risk participation in a Swing Line Loan, if the applicable Swing Line Lender receives any
payment on account of such Swing Line Loan, such Swing Line Lender will distribute to such Lender
its Applicable Percentage thereof in the same funds as those received by such Swing Line Lender.



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



     (e) Interest for Account of Swing Line Lender. Each Swing Line Lender shall be
responsible for invoicing the Borrower for interest on such Swing Line Lender’s Swing Line Loans
(provided that any failure of a Swing Line Lender to provide an invoice for interest on
Swing Line Loans shall not release the Borrower from its obligation to pay such interest). Until
each Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to
refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such
Applicable Percentage shall be solely for the account of the applicable Swing Line Lender.



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



     2.05 Prepayments. (a) Optional. (i) The Borrower may, upon notice to the
Administrative Agent, at any time or from time to time voluntarily prepay Revolving Credit Loans in
whole or in part without premium or penalty; provided that (A) such notice must be received
by the Administrative Agent not later than 10:00 a.m. (1) three Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of Base Rate Loans; (B) any
prepayment of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then outstanding. Each such notice shall specify the
date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate
Loans are to be prepaid, the Interest Period(s) of such Loans. The 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 2.16, each such prepayment shall be applied to
the Revolving Credit Loans of the Lenders in accordance with their respective Applicable
Percentages.




     (ii) The Borrower may, upon notice to the applicable 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 (A) such notice
must be received by the applicable Swing Line Lender and the Administrative



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Agent not later than 12:00 noon on the date of the prepayment, and (B) any such
prepayment shall be in a minimum principal amount of $100,000. Each such notice shall
specify the date and amount of such prepayment. If such notice is given by the Borrower,
the Borrower shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein.



     (b) Mandatory. If for any reason the Total Outstandings at any time exceed the
Aggregate Commitments at such time, the Borrower shall immediately prepay Revolving Credit Loans,
Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the
L/C Borrowings) in an aggregate amount equal to such excess.



     2.06 Termination or Reduction of Commitments. The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, the Letter of Credit Sublimit or the
Total Swing Line Sublimit, or from time to time permanently reduce the Aggregate Commitments, the
Letter of Credit Sublimit or the Total Swing Line Sublimit; provided that (i) any such
notice shall be received by the Administrative Agent not later than 10:00 a.m. five Business Days
prior to the date of termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the
Borrower shall not terminate or reduce (A) the Aggregate Commitments if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the
Aggregate Commitments, (B) the Letter of Credit Sublimit if, after giving effect thereto, the
Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the
Letter of Credit Sublimit, or (C) the Total Swing Line Sublimit if, after giving effect thereto and
to any concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans would exceed
the Total Swing Line Sublimit or the Outstanding Amount of Swing Line Loans owing to either Swing
Line Lender would exceed such Swing Line Lender’s Swing Line Sublimit. The Administrative Agent
will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit,
Swing Line Sublimit or the Aggregate Commitments under this Section 2.06. Upon any
reduction of the Aggregate Commitments, the Commitment of each Lender shall be reduced by such
Lender’s Applicable Percentage of such reduction amount. Upon any reduction of the Total Swing
Line Sublimit, each Swing Line Lender’s Swing Line Sublimit shall be an amount equal to such
reduction amount. All fees accrued until the effective date of any termination of the Aggregate
Commitments shall be paid on the effective date of such termination.



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



     (b) Swing Line Loans. The Borrower shall repay each Swing Line Loan on the earlier to
occur of (i) the date fifteen (15) Business Days after such Loan is made and (ii) the Maturity
Date.



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



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applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate
plus the Applicable Rate.




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




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




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




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



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



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



     (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, a commitment fee equal to the
Applicable Fee Rate times the actual daily amount by which the Aggregate Commitments exceed
the sum of (i) the Outstanding Amount of Revolving Credit Loans and (ii) the Outstanding Amount of
L/C Obligations, subject to adjustment as provided in Section 2.16. The commitment fee
shall accrue at all times during the Availability Period, including at any time during which one or
more of the conditions in Article IV is not met, and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December, commencing with the
first such date to occur after the Closing Date, and on the last day of the Availability Period.
The commitment fee shall be calculated quarterly in arrears, and if there is any change in the
Applicable Fee Rate during any quarter, the actual daily amount shall be computed and multiplied by
the Applicable Fee Rate separately for each period during such quarter that such Applicable Fee
Rate was in effect.




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     (b) Other Fees. (i) The Borrower shall pay to the Arrangers 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 not be refundable
for any reason whatsoever.




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



     2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate. (a) All
computations of interest for Base Rate Loans (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 or for any other reason, the Borrower or the Lenders determine that (i) the
Consolidated Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate
and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher
pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to
the Administrative Agent for the account of the applicable Lenders or the L/C Issuer, as the case
may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or
deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, automatically and without further action by the Administrative Agent, any Lender or
the L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have
been paid for such period over the amount of interest and fees actually paid for such period. This
paragraph shall not limit the rights of the Administrative Agent, any Lender or the L/C Issuer, as
the case may be, under Section 2.03(c)(iii), 2.03(h) or 2.08(b) or under
Article VIII. The Borrower’s obligations under this paragraph shall survive the
termination of the Aggregate Commitments and the repayment of all other Obligations hereunder.



     2.11 Evidence of Debt. (a) The Credit Extensions made by each Lender shall be evidenced by
one or more accounts or records maintained by such Lender and by the 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



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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 Note, which shall
evidence such Lender’s Loans in addition to such accounts or records. 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.




     (b) In addition to the accounts and records referred to in Section 2.11(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
immediately available funds not later than 1:00 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 1:00 p.m.
shall be deemed received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day, and such extension
of time shall be reflected on computing interest or fees, as the case may be.



     (b) (i) Funding by Lenders; Presumption by 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
11:00 a.m. 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 a Borrowing of Base Rate Loans, that such Lender has made such share available
in accordance with and at the time required by Section 2.02) and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith
on demand such corresponding amount in immediately available funds with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the Administrative Agent in connection with the
foregoing, and (B) in the case of a payment to be



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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 time at which
any payment is due to the Administrative Agent for the account of the Lenders or the L/C
Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case
may be, the amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such Lender or the
L/C Issuer, in immediately available funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of payment to
the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on interbank
compensation.


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




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



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



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



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Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.




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



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




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




     (ii) the provisions of this Section shall not be construed to apply to (A) any payment
made by or on behalf of the Borrower pursuant to and in accordance with the express terms of
this Agreement (including the application of funds arising from the existence of a
Defaulting Lender), (B) the application of Cash Collateral provided for in Section
2.15, or (C) 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 or Affiliate thereof (as to which the provisions of this Section shall apply).



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




     2.14 Increase in Commitments. (a) Request for Increase. Provided there exists no
Default, upon notice to the Administrative Agent (which shall promptly notify the Lenders), the
Borrower may from time to time, request an increase in the Aggregate Commitments by an amount (for
all such requests) not exceeding $100,000,000; provided that (i) any such request for an
increase shall be in a minimum amount of $15,000,000, and (ii) the Borrower may make a maximum of
four (4) such requests. At the time of sending such notice, the Borrower (in consultation with the
Administrative Agent) shall specify the time period within which each Lender is requested to
respond (which shall in no event be less than ten Business Days from the date of delivery of such
notice to the Lenders).



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



     (c) Notification by Administrative Agent; Additional Lenders. The Administrative
Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made
hereunder. To achieve the full amount of a requested increase, and subject to the approval of the
Administrative Agent, the L/C Issuer and the Swing Line Lenders (which approvals shall not be
unreasonably withheld), the Borrower may also invite additional Eligible Assignees to become
Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative
Agent and its counsel, which invitation may be made commensurately with the notice required by
Section 2.14(a) but shall be subject in all respects to each Lender’s right to approve or
decline the Borrower’s request to increase its Commitment in accordance with clauses (a) and (b)
above.



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



     (e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, (i) the Borrower shall deliver to the Administrative Agent a certificate of each Loan
Party dated as of the Revolving Credit Increase Effective Date (in sufficient copies for each
Lender) signed by a Responsible Officer of such Loan Party (x) certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to such increase, and (y) in the
case of the Borrower, certifying that, before and after giving effect to such increase, (A) the
representations and warranties contained in Article V and the other Loan Documents are true
and correct on and as of the Revolving Credit Increase Effective Date, except to the extent that
such representations and warranties specifically refer to an earlier date, in which case they are
true and



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correct as of such earlier date, and except that for purposes of this Section 2.14,
the representations and warranties contained in subsections (a) and (b) of Section 5.05
shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01, (B) at the time of and after giving effect on a Pro Forma
Basis to such increase in the Aggregate Commitments and any borrowings made on the Revolving Credit
Increase Effective Date, the Borrower is in compliance with all covenants set forth in Section
7.11 as of the end of the most recent Measurement Period for which financial statements of the
Borrower are available and (C) no Default exists. The Borrower shall prepay any Revolving Credit
Loans outstanding on the Revolving Credit Increase Effective Date (and pay any additional amounts
required pursuant to Section 3.05) to the extent necessary to keep the outstanding
Revolving Credit Loans ratable with any revised Applicable Percentages arising from any nonratable
increase in the Commitments under this Section and Borrower may use advances from Lenders having
new or increased Commitments for such prepayment.




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



     2.15 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 Lenders, the Borrower shall deliver to the
Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after
giving effect to Section 2.16(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 deposit accounts at Bank of
America which, in the case of Cash Collateral provided by any Loan Party, shall be interest bearing
deposit accounts. 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 Lenders), and agrees
to maintain, a first priority security interest in all such cash, deposit accounts and all balances
therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of
the foregoing, all as security for the obligations to which such Cash Collateral may be applied
pursuant to Section 2.15(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.



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     (c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section 2.15 or Sections
2.03, 2.04, 2.05, 2.06, 2.16 or 8.02 in respect of
Letters of Credit or Swing Line Loans shall be held and applied to the satisfaction of the specific
L/C Obligations, Swing Line Loans, obligations to fund participations therein (including, as to
Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other
obligations for which the Cash Collateral was so provided, prior to any other application of such
property as may be provided for herein.



     (d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations shall be released promptly following (i) the elimination of
the applicable Fronting Exposure or other obligations giving rise thereto (including by the
termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee
following compliance with Section 10.06(b)(vi))) or (ii) the Administrative Agent’s good
faith determination that there exists excess Cash Collateral; provided, however, (x) that
Cash Collateral furnished by or on behalf of a Loan Party shall not be released during the
continuance of a Default or Event of Default (and following application as provided in this
Section 2.15 may be otherwise applied in accordance with Section 8.03), and (y) the
Person providing Cash Collateral and the L/C Issuer or Swing Line Lenders, as applicable, may agree
that Cash Collateral shall not be released but instead held to support future anticipated Fronting
Exposure or other obligations.



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




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




     (ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise,
and including any amounts made available to the Administrative Agent by that Defaulting
Lender pursuant to Section 10.08), shall be applied at such time or times as may be
determined by the Administrative Agent as follows: first, to the payment of any amounts
owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the
payment on a pro rata basis of any amounts owing by that Defaulting Lender to the L/C Issuer
or Swing Line Lenders hereunder; third, if so determined by the Administrative Agent or
requested by the L/C Issuer or Swing Line Lenders, 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,



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the L/C Issuer or Swing Line Lenders as a result of any judgment of a court of
competent jurisdiction obtained by any Lender, the L/C Issuer or Swing Line Lenders 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 4.02 were satisfied or waived, such payment shall be
applied solely to pay the Loans of, and L/C Borrowings owed to, all non-Defaulting Lenders
on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings
owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid or payable
to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender
or to post Cash Collateral pursuant to this Section 2.16(a)(ii) shall be deemed paid
to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.




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




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



     (b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, Swing Line
Lenders and the L/C Issuer agree in writing in their sole discretion that a Defaulting Lender
should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the
parties hereto, whereupon as of the effective date specified in such notice and subject to any
conditions set forth therein (which may include arrangements with respect to any Cash Collateral),
that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other
Lenders or take such other actions as the Administrative Agent may determine to be necessary to
cause the Revolving Credit Loans and funded and unfunded participations in Letters



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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 2.16(a)(iv)), whereupon
that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while
that Lender was a Defaulting Lender; and provided, further, that except to the
extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting
Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising
from that Lender’s having been a Defaulting Lender.




ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes. (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of
Taxes. (i) Any and all payments by or on account of any obligation of the Borrower hereunder
or under any other Loan Document shall to the extent permitted by applicable Laws be made free and
clear of and without reduction or withholding for any Taxes. If, however, applicable Laws require
the Borrower or the Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld
or deducted in accordance with such Laws as determined by the Borrower or the Administrative Agent,
as the case may be, upon the basis of the information and documentation to be delivered pursuant to
subsection (e) below.




     (ii) If the Borrower or the Administrative Agent shall be required by the Code to
withhold or deduct any Taxes, including both United States Federal backup withholding and
withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or
make such deductions as are determined by the Administrative Agent to be required based upon
the information and documentation it has received pursuant to subsection (e) below, (B) the
Administrative Agent shall timely pay the full amount withheld or deducted to the relevant
Governmental Authority in accordance with the Code, and (C) to the extent that the
withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum
payable by the Borrower shall be increased as necessary so that after any required
withholding or the making of 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
withholding or deduction been made.



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



     (c) Tax Indemnifications. (i) Without limiting the provisions of subsection (a) or
(b) above, the Borrower shall, and does hereby, indemnify the Administrative Agent, each Lender and
the L/C Issuer, and shall make payment in respect thereof 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) withheld or deducted
by the Borrower or the Administrative Agent or paid by the Administrative Agent, such Lender or the
L/C Issuer, as the case may be, and any penalties,



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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 Borrower shall also, and does hereby, indemnify the Administrative
Agent, and shall make payment in respect thereof within 10 days after demand therefor, for any
amount which a Lender or the 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 any 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
the L/C Issuer shall, and does hereby, indemnify the Borrower 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 Borrower or
the Administrative Agent) incurred by or asserted against the Borrower or the Administrative
Agent by any Governmental Authority as a result of the failure by such Lender or the 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 the L/C Issuer,
as the case may be, to the Borrower or the Administrative Agent pursuant to subsection (e).
Each Lender and the 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 the 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 Commitments and the repayment, satisfaction or discharge of all other Obligations.



     (d) Evidence of Payments. Upon request by the Borrower or the Administrative Agent,
as the case may be, after any payment of Taxes by the Borrower or the Administrative Agent to a
Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the
Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be,
the original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of any return required by Laws to report such payment or other evidence of such
payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.



     (e) Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to the
Borrower and to the Administrative Agent, at the time or times prescribed by applicable Laws or
when reasonably requested by the Borrower or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable Laws or by the taxing authorities of any
jurisdiction and such other reasonably requested information as will permit the Borrower or the
Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder
or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lender’s entitlement to



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any available exemption from, or reduction of, applicable Taxes in respect of all payments to
be made to such Lender by the Borrower pursuant to this Agreement or otherwise to establish such
Lender’s status for withholding tax purposes in the applicable jurisdiction.





     (ii) Without limiting the generality of the foregoing, if the Borrower is resident for
tax purposes in the United States,




     (A) any Lender that is a “United States person” within the meaning of
Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative
Agent executed originals of Internal Revenue Service Form W-9 or such other
documentation or information prescribed by applicable Laws or reasonably requested
by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent, as the case may be, to determine whether or not such Lender is
subject to backup withholding or information reporting requirements; and




     (B) each Foreign Lender that is entitled under the Code or any applicable
treaty to an exemption from or reduction of withholding tax with respect to payments
hereunder or under any other Loan Document 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:




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




     (2) executed originals of Internal Revenue Service Form W-8ECI,




     (3) executed originals of Internal Revenue Service Form W-8IMY and all
required supporting documentation,




     (4) 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)
executed originals of Internal Revenue Service Form W-8BEN, or




     (5) executed originals of any other form prescribed by applicable Laws
as a basis for claiming exemption from or a reduction in United States
Federal withholding tax together with such supplementary documentation as
may be prescribed by applicable Laws to permit the



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Borrower or the Administrative Agent to determine the withholding or
deduction required to be made.




     (iii) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent
of any change in circumstances which would modify or render invalid any claimed exemption or
reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable Laws of any
jurisdiction that the Borrower or the Administrative Agent make any withholding or deduction
for taxes from amounts payable to such Lender.



     (f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund
of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as
the case may be. If the Administrative Agent, any Lender or the L/C Issuer determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section, it shall pay to the Borrower an amount equal to such refund (but only to
the extent of indemnity payments made, or additional amounts paid, by the Borrower under this
Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses incurred by the Administrative Agent, such Lender or the L/C Issuer, as the
case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrower, upon the request of the
Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Borrower or any other Person.



     3.02 Illegality. If any Lender 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 London interbank market, then, on notice thereof by such Lender
to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or
continue 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



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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 London interbank eurodollar market
for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan or 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 such Lenders of funding
such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender.
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 (upon
the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Revolving Credit Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such
request into a request for a Revolving Credit Borrowing of Base Rate Loans in the amount specified
therein.



     3.04 Increased Costs; Reserves on Eurodollar Rate Loans. (a) Increased Costs
Generally. If any Change in Law shall:




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




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



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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 180 days 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



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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 180-day
period referred to above shall be extended to include the period of retroactive effect thereof).




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



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



     (a) any continuation, conversion, payment or prepayment of any Eurodollar 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 Eurodollar Rate Loan on the date or in the amount
notified by the Borrower; or



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


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



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




     3.06 Mitigation Obligations; Replacement of Lenders. (a) Designation of a Different
Lending Office. If any Lender requests compensation under Section 3.04, or the
Borrower is required to pay any additional amount to any Lender, the L/C Issuer, or any
Governmental Authority for the account of any Lender or the L/C Issuer pursuant to Section
3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender or the
L/C Issuer shall, as applicable, use reasonable efforts to designate a different Lending Office for
funding or



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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 or the L/C Issuer, 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 or the L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender or the L/C Issuer 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 10.13.



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



ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




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



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




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




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




     (iii) a pledge and security agreement (together with each other pledge and security
agreement and pledge and security agreement supplement delivered pursuant to Section
6.12, in each case as amended, the “Security Agreement”), duly executed by each
Loan Party, together with:




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



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     (B) proper Financing Statements in form appropriate for filing under the
Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem
necessary or desirable in order to perfect the Liens created under the Security
Agreement, covering the Collateral described in the Security Agreement,




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




     (D) evidence of the completion of all other actions, recordings and filings of
or with respect to the Security Agreement that the Administrative Agent may deem
necessary or desirable in order to perfect the Liens created thereby including the
delivery of the certificates of title for applicable equipment as required by the
Security Agreement,




     (E) the Account Control Agreements and the Securities Account Control
Agreement, in each case as referred to in the Security Agreement and duly executed
by the appropriate parties, and




     (F) evidence that all other action that the Administrative Agent may deem
necessary or desirable in order to perfect the Liens created under the Security
Agreement has been taken (including receipt of duly executed payoff letters, UCC-3
termination statements and landlords’ and bailees’ waiver and consent agreements);




     (iv) an intellectual property security agreement (together with each other intellectual
property security agreement and intellectual property security agreement supplement
delivered pursuant to Section 6.12, in each case as amended, the “Intellectual
Property Security Agreement”), duly executed by each Loan Party, together with evidence
that all action that the Administrative Agent may deem necessary or desirable in order to
perfect the Liens created under the Intellectual Property Security Agreement has been taken;




     (v) 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 or is to be a party;




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



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     (vii) a favorable opinion of Andrews Kurth LLP, counsel to the Loan Parties, addressed
to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties
and the Loan Documents as the Required Lenders may reasonably request;




     (viii) a certificate signed by a Responsible Officer of the Borrower certifying (A)
that the conditions specified in Sections 4.02(a) and (b) have been
satisfied, and (B) that there has been no event or circumstance since the date of the
Audited Financial Statements that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect;




     (ix) a financial forecast of the Borrower and its Subsidiaries on a consolidated basis
prepared by management of the Borrower, including consolidated balance sheets and statements
of income or operations and cash flows of the Borrower and its Subsidiaries on an annual
basis for each of the Borrower’s fiscal years 2011 through and including 2015;




     (x) certificates attesting to the Solvency of each Material Loan Party before and after
giving effect to the Transaction, from its chief financial officer;




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




     (xii) evidence that the Existing Credit Agreement and the related loan documents have
been, or concurrently with the Closing Date are being, terminated and all Liens held by or
on behalf of the Existing Credit Agreement Secured Parties have been, or concurrently with
the Closing Date are being, released;




     (xiii) evidence that the following transactions shall have been (or shall concurrently
be) consummated, in each case on terms and conditions reasonably satisfactory to the
Lenders:




     (A) the repayment of the portion of the Existing Senior Secured Notes tendered
on or prior to the Closing Date pursuant to the Borrower’s tender offer from the
proceeds of the 2019 Senior Notes;




     (B) the Borrower shall have delivered evidence satisfactory to the
Administrative Agent and each Lender that the portion of the Existing Senior Secured
Notes not so tendered have been called for redemption and the funds required for
such redemption have been deposited with the trustee for the Existing Senior Secured
Notes in satisfaction and discharge thereof;




     (C) the Borrower shall have received at least $225 million of gross cash
proceeds from the issuance of the 2019 Senior Notes; and



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     (D) all Liens held by or on behalf of the Existing SSN Secured Parties have
been, or concurrently with the Closing Date are being, released;




     (xiv) Vessel Mortgages with respect to each vessel owned by a Loan Party duly executed
by each such Loan Party, together with assignments of insurance and earnings and evidence
that all action that the Administrative Agent may reasonably deem necessary in order to
perfect the Liens created under the Vessel Mortgages has been, or will concurrently be,
taken; and




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



     (b) (i) All fees required to be paid to the Administrative Agent and the Joint Lead Arrangers
on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the
Lenders on or before the Closing Date shall have been paid.



     (c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges
and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by
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 not thereafter preclude a final
settling of accounts between the Borrower and the Administrative Agent).



     (d) All consents, licenses, approvals, waivers, acknowledgements and other agreements required
in connection with the consummation by any Loan Party of the Transaction and the execution,
delivery and performance by such Loan Party, and the validity against such Loan Party, of the Loan
Documents to which it is a party shall be in full force and effect.


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




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



     (a) The representations and warranties of the Borrower and each other Loan Party contained in
Article V or any other Loan Document, or which are contained in any document furnished at
any time under or in connection herewith or therewith, shall be true and correct 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



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such earlier date, and except that for purposes of this Section 4.02, the
representations and warranties contained in Sections 5.05(a) and (b) shall be
deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and
(b), respectively.




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



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


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




ARTICLE V

REPRESENTATIONS AND WARRANTIES



The Borrower represents and warrants to the Administrative Agent and the Lenders that:




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



     5.02 Authorization; No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which such Person is or is to be a party have been duly authorized
by all necessary corporate or other organizational action, and do not and will not (a) contravene
the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach
or contravention of under, or require any payment to be made under 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, except for conflicts, breaches or contraventions that could not reasonably be
expected to result in a Material Adverse Effect, (c) violate any Law or any order, injunction, writ
or decree of any Governmental Authority or any arbitral award to which such Person or its property
is subject; or (d) result in the creation or imposition of any Lien on any property of the Borrower
or any Subsidiary except Liens created under the Loan Documents.



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     5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with (a) the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, or for the
consummation of the Transaction, (b) the grant by any Loan Party of the Liens granted by it
pursuant to the Collateral Documents, (c) the perfection or continuance of the Liens created under
the Collateral Documents (including the first priority nature thereof) or (d) the exercise by the
Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in
respect of the Collateral pursuant to the Collateral Documents, except for the authorizations,
approvals, actions, notices and filings which (i) have been duly obtained, taken, given or made and
are in full force and effect, (ii) are required by the Loan Documents or (iii) in the case of any
authorization, approval, action, notice or filing from or with a Person other than a Governmental
Authority, the failure to have could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. All applicable waiting periods in connection with the
Transaction have expired without any action having been taken by any Governmental Authority
restraining, preventing or imposing materially adverse conditions upon the Transaction or the
rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to
create any Lien on, any properties now owned or hereafter acquired by any of them.



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



     5.05 Financial Statements; No Material Adverse Effect. (a) The Audited Financial Statements
(i) were prepared in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; (ii) fairly present in all material respects
the financial condition of the Borrower and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show
or describe all material indebtedness and other liabilities, direct or contingent, of the Borrower
and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments
and Indebtedness.



     (b) 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.



     (c) The consolidated forecasted balance sheet, statements of income and cash flows of the
Borrower and its Subsidiaries delivered pursuant to Section 4.01 or Section 6.01(c)
were prepared in good faith on the basis of the assumptions stated therein, which assumptions were
fair in light of the conditions existing at the time of delivery of such forecasts, and
represented, at the time of delivery, the Borrower’s best estimate of its future financial
condition and performance, recognizing that there are industry-wide risks normally associated with
the types of



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business conducted by the Borrower and its Subsidiaries and that the Borrower does not warrant
that such forecasts and estimates will ultimately prove to have been accurate..




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



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



     5.08 Ownership of Property; Liens; Investments. Each Loan Party and each of its Subsidiaries
has good title to, or valid leasehold interests in, all of their respective property necessary or
used in the ordinary conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.



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



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



     (c) Neither any Loan Party nor any of its Subsidiaries is undertaking, and has not completed,
either individually or together with other potentially responsible parties, any investigation or
assessment or remedial or response action relating to any actual or threatened



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release, discharge or disposal of Hazardous Materials at any site, location or operation,
either voluntarily or pursuant to the order of any Governmental Authority or the requirements of
any Environmental Law except for any investigations, assessments or remedial or response actions
not reasonably expected to result in any material liability to any Loan Party or any of its
Subsidiaries. All Hazardous Materials generated, used, treated, handled or stored at, or
transported to or from, any property currently or formerly owned or operated by any Loan Party or
any of its Subsidiaries have been disposed of in accordance with the requirements of all
Environmental Laws in all material respects and in a manner not reasonably expected to result in
material liability to any Loan Party or any of its Subsidiaries.




     (d) The Borrower and each of its Subsidiaries have obtained all Environmental Permits
necessary for the ownership and operation of its properties and assets and the conduct of its
business except where the failure to do so could, either individually or in the aggregate,
reasonably be expected to result in material liability to any Loan Party or any of its
Subsidiaries. Except where the failure to do so could not, either individually or in the
aggregate, reasonably be expected to cause a Material Adverse Effect, the Borrower and each of it
Subsidiaries have been and are in compliance with all terms and conditions of such Environmental
Permits. There are no pending or, to the knowledge of the Borrower, threatened, claims against the
Borrower or any Subsidiary under any Environmental Laws and neither the Borrower nor any Subsidiary
has received any written notice of alleged non-compliance with applicable Environmental Laws or
Environmental Permits which could, in each case, either individually or in the aggregate,
reasonably be expected to (i) cause a Material Adverse Effect or (ii) result in material liability
to any Loan Party or any of its Subsidiaries.



     5.10 Insurance. The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts
(after giving effect to any self-insurance compatible with the following standards), with such
deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Borrower or the applicable
Subsidiary operates.



     5.11 Taxes. The Borrower and its Subsidiaries have filed all Federal, state and other
material tax returns and reports required to be filed, and have paid all Federal, state and other
material taxes, assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax assessment against
the Borrower or any Subsidiary that would, if made, have a Material Adverse Effect. Neither any
Loan Party nor any Subsidiary thereof is party to any tax sharing agreement.



     5.12 ERISA Compliance. (a) The Borrower, its Subsidiaries and each ERISA Affiliate have
maintained each Plan (other than a Multiemployer Plan) in compliance in all material respects with
the applicable provisions of ERISA, the Code and other Federal or state laws.



     (b) There are no pending or, to the best knowledge of the Borrower, threatened claims, actions
or lawsuits, or action by any Governmental Authority, with respect to any Plan



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that could reasonably be expected to have a Material Adverse Effect. There has been no
prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan
that has resulted or could reasonably be expected to result in a Material Adverse Effect.




     (c) Except as could not, either individually or in the aggregate, reasonably be expected to
cause a Material Adverse Effect: (i) 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) as of the most recent valuation date for any Pension Plan,
the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or
higher and neither the Borrower nor any ERISA Affiliate knows of any facts or circumstances that
could reasonably be expected to cause the funding target attainment percentage for any such plan to
drop below 60% as of the most recent valuation date; (iv) 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; (v) 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 (vi) 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 PBGC to institute proceedings under Title IV of ERISA to terminate any
Pension Plan.



     5.13 Subsidiaries; Equity Interests; Loan Parties. As of the Closing Date, no Loan Party has
any Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13, and
all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully
paid and non-assessable and are owned by a Loan Party in the amounts specified on Part (a) of
Schedule 5.13 free and clear of all Liens except those created under the Collateral
Documents. As of the Closing Date, no Loan Party has any equity investments in any other
corporation or entity other than those specifically disclosed in Part (b) of Schedule 5.13.
Set forth on Part (c) of Schedule 5.13 is a complete and accurate list of all Loan
Parties, showing as of the Closing Date (as to each Loan Party) the jurisdiction of its
incorporation, the address of its principal place of business and its U.S. taxpayer identification
number or, in the case of any non-U.S. Loan Party that does not have a U.S. taxpayer identification
number, its unique identification number issued to it by the jurisdiction of its incorporation. As
of the Closing Date, each of Robota and BESI is an Immaterial Domestic Subsidiary.



     5.14 Margin Regulations; Investment Company Act. (a) The Borrower is not engaged and will not
engage, principally or as one of its important activities, in the business of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit
for the purpose of purchasing or carrying margin stock. Following the application of the proceeds
of each Borrowing or drawing under each Letter of Credit, not more than 25% of the value of the
assets (either of the Borrower only or of the Borrower and its Subsidiaries on a consolidated
basis) subject to the provisions of Section 7.01 or Section 7.05 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 8.01(e)
will be margin stock.



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



     5.15 Disclosure. The Borrower has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries
or any other Loan Party 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 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 information, the Borrower represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the time, recognizing
that there are industry-wide risks normally associated with the types of business conducted by the
Borrower and its Subsidiaries and that the Borrower does not warrant that such projections and
estimates will ultimately prove to have been accurate.



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



     5.17 Intellectual Property; Licenses, Etc. The Borrower and each of its Subsidiaries own, or
possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents,
patent rights, franchises, licenses and other intellectual property rights (collectively, “IP
Rights”) that are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person. To the best knowledge of the Borrower, no
slogan or other advertising device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by the Borrower or any of its Subsidiaries infringes
upon any rights held by any other Person. No claim or litigation regarding any of the foregoing is
pending or, to the best knowledge of the Borrower, threatened, which, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.



     5.18 Solvency. Each Material Loan Party is, individually and together with its Subsidiaries
on a consolidated basis, Solvent.



     5.19 Casualty, Etc. Neither the businesses nor the properties of any Loan Party or any of its
Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute,
drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other



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casualty (whether or not covered by insurance) that, either individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.




     5.20 Labor Matters. There are no collective bargaining agreements or Multiemployer Plans
covering the employees of the Borrower or any of its Subsidiaries as of the Closing Date and
neither the Borrower nor any Subsidiary has suffered any strikes, walkouts, work stoppages or other
material labor difficulty within the last five years.



     5.21 Collateral Documents. The provisions of the Collateral Documents are effective to create
in favor of the Administrative Agent for the benefit of the Secured Parties a legal, valid and
enforceable first priority Lien (subject to Liens permitted by Section 7.01) on all right,
title and interest of the respective Loan Parties in the Collateral described therein. Except for
filings completed prior to the Closing Date and as contemplated hereby and by the Collateral
Documents and for such other action completed on or prior to the Closing Date, no filing or other
action will be necessary to perfect or protect such Liens.



ARTICLE VI

AFFIRMATIVE COVENANTS



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




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



     (a) as soon as available, but in any event within 90 days after the end of each fiscal year of
the Borrower (or, if earlier, 15 days after the date required to be filed with the SEC (without
giving effect to any extension permitted by the SEC)) (commencing with the fiscal year ended
December 31, 2010), 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, changes in
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 an independent certified
public accountant of nationally recognized standing, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be subject to any “going
concern” or like qualification or exception or any qualification or exception as to the scope
of such audit;



     (b) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower (or, if earlier, 5 days after the date
required to be filed with the SEC (without giving effect to any extension permitted by the SEC))
(commencing with the fiscal quarter ended March 31, 2011), a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated
statements of income or operations, changes in 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



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case in comparative form the figures for the corresponding fiscal quarter of the previous
fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail,
certified by the chief executive officer, chief financial officer, treasurer or controller of the
Borrower as fairly presenting in all material respects 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;




     (c) as soon as available, but in any event not later than 90 days after the end of each fiscal
year of the Borrower, a financial forecast of the Borrower and its Subsidiaries on a consolidated
basis prepared by management of the Borrower, in form satisfactory to the Administrative Agent and
the Required Lenders, including consolidated balance sheets and statements of income or operations
and cash flows of the Borrower and its Subsidiaries on a quarterly basis for the immediately
following fiscal year (including the fiscal year in which the Maturity Date occurs).


As to any information contained in materials furnished pursuant to Section 6.02(c), the
Borrower shall not be separately required to furnish such information under Section 6.01(a)
or (b) above, but the foregoing shall not be in derogation of the obligation of the
Borrower to furnish the information and materials described in Sections 6.01(a) and
(b) above at the times specified therein.




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



     (a) concurrently with the delivery of the financial statements referred to in Section
6.01(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 under the financial covenants set forth herein 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
6.01(a) and (b), a duly completed Compliance Certificate signed by the chief executive
officer, chief financial officer, treasurer or controller of the Borrower (which delivery may,
unless the Administrative Agent, or a Lender requests executed originals, be by electronic
communication including fax or email and shall be deemed to be an original authentic counterpart
thereof for all purposes);



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



     (d) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the Borrower, and copies of
all annual, regular, periodic and special reports and registration statements which the Borrower
may file or be required to file with the SEC under Section 13 or 15(d) of the



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Securities Exchange Act of 1934, or with any national securities exchange, and in any case not
otherwise required to be delivered to the Administrative Agent pursuant hereto;




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



     (f) as soon as available, but in any event within 30 days after the end of each fiscal year of
the Borrower, a report summarizing the insurance coverage (specifying type, amount and carrier) in
effect for each Loan Party and its Subsidiaries and containing such additional information as the
Administrative Agent, or any Lender through the Administrative Agent, may reasonably specify;



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



     (h) not later than five Business Days after receipt thereof by any Loan Party or any
Subsidiary thereof, copies of all material notices, requests and other documents (including
amendments, waivers and other modifications) received under or pursuant to any instrument,
indenture, loan or credit or similar agreement and, from time to time upon request by the
Administrative Agent, such information and reports regarding such instruments, indentures and loan
and credit and similar agreements as the Administrative Agent may reasonably request;



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



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


Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on
the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the 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






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paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify
the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any
such documents and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. The Administrative Agent shall have no obligation
to request the delivery of or to maintain paper copies of the documents referred to above, and in
any event shall have no responsibility to monitor compliance by the Borrower with any such request
by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it
or maintaining its copies of such documents.



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




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



     (a) of the occurrence of any Default;



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



     (c) the commencement of, or any material development in, any investigation, litigation or
proceeding affecting the Borrower or any Subsidiary pursuant to any applicable



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Environmental Laws which could, either individually or in the aggregate, reasonably be
expected to result in material liability to any Loan Party or any of its Subsidiaries




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



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


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




     6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all
its material obligations and liabilities, including (a) all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such Subsidiary; (b) all lawful claims
which, if unpaid, would by law become a Lien upon its property; and (c) all Indebtedness, as and
when due and payable, but subject to any subordination provisions contained in any instrument or
agreement evidencing such Indebtedness.



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



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



     6.07 Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of the Borrower, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons engaged in the same or
similar business, of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons and providing for not less than 30 days’ prior notice to the
Administrative Agent of termination, lapse or cancellation of such insurance.



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



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



     6.10 Inspection Rights. 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 directors, officers, and independent public
accountants, all 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.



     6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for general corporate
purposes not in contravention of any Law or of any Loan Document.



     6.12 Covenant to Guarantee Obligations and Give Security. (a) With respect to (x) any Person
that becomes a direct or indirect Subsidiary after the Closing Date (other than a CFC, a Subsidiary
that is held directly or indirectly by a CFC or any Immaterial Domestic Subsidiary created or
acquired after the Closing Date) and (y) any Immaterial Domestic Subsidiary (including Robota and
BESI) that ceases to be an Immaterial Domestic Subsidiary, then the Borrower shall, at the
Borrower’s expense:




     (i) within 30 days after such formation or acquisition or ceasing to be an Immaterial
Domestic Subsidiary (or such longer period as may be agreed by the Administrative Agent in
its sole discretion), cause such Subsidiary, and cause each direct and indirect parent of
such Subsidiary (if it has not already done so), to duly execute and deliver to the
Administrative Agent a guaranty or guaranty supplement, in form and substance satisfactory
to the Administrative Agent, guaranteeing the other Loan Parties’ obligations under the Loan
Documents,




     (ii) within 30 days after such formation or acquisition or ceasing to be an Immaterial
Domestic Subsidiary (or such longer period as may be agreed by the Administrative Agent in
its sole discretion), furnish to the Administrative Agent a description of the real and
personal properties of such Subsidiary, in detail satisfactory to the Administrative Agent,



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     (iii) within 30 days after such formation or acquisition or ceasing to be an Immaterial
Domestic Subsidiary (or such longer period as may be agreed by the Administrative Agent in
its sole discretion), cause such Subsidiary and each direct and indirect parent of such
Subsidiary (if it has not already done so) to duly execute and deliver to the Administrative
Agent deeds of trust, trust deeds, deeds to secure debt, mortgages, vessel mortgages,
leasehold mortgages, leasehold deeds of trust, Security Agreement Supplements, IP Security
Agreement Supplements and other security and pledge agreements, as specified by and in form
and substance satisfactory to the Administrative Agent (including delivery of all Pledged
Interests in and of such Subsidiary, and other instruments of the type specified in
Section 4.01(a)(iii)), securing payment of all the Obligations of such Subsidiary or
such parent, as the case may be, under the Loan Documents and constituting Liens on all such
real and personal properties (other than Excluded Properties),




     (iv) within 30 days after such formation or acquisition or ceasing to be an Immaterial
Domestic Subsidiary (or such longer period as may be agreed by the Administrative Agent in
its sole discretion), cause such Subsidiary and each direct and indirect parent of such
Subsidiary (if it has not already done so) to take whatever action (including the recording
of mortgages, vessel mortgages, the filing of Uniform Commercial Code financing statements,
the giving of notices and the endorsement of notices on title documents) may be necessary or
advisable in the opinion of the Administrative Agent to vest in the Administrative Agent (or
in any representative of the Administrative Agent designated by it) valid and subsisting
Liens on the properties purported to be subject to the deeds of trust, trust deeds, deeds to
secure debt, mortgages, vessel mortgages, leasehold mortgages, leasehold deeds of trust,
Security Agreement Supplements, IP Security Agreement Supplements and security and pledge
agreements delivered pursuant to this Section 6.12, enforceable against all third
parties in accordance with their terms,




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




     (vi) as promptly as practicable after such formation or acquisition or ceasing to be an
Immaterial Domestic Subsidiary, deliver, upon the request of the Administrative Agent in its
reasonable discretion, to the Administrative Agent with respect to each parcel of real
property owned or held by the entity that is the subject of such formation or acquisition
title reports, surveys and engineering, soils and other reports, and environmental
assessment reports, each in scope, form and substance reasonably satisfactory to the
Administrative Agent, provided, however, that to the extent that any Loan
Party or any of its Subsidiaries shall have otherwise received any of the foregoing



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items with respect to such real property, such items shall, promptly after the receipt
thereof, be delivered to the Administrative Agent.



     (b) Upon the acquisition of any property by any Loan Party, if such property, in the judgment
of the Administrative Agent, shall not already be subject to a perfected first priority security
interest in favor of the Administrative Agent for the benefit of the Secured Parties, then the
Borrower shall, at the Borrower’s expense:




     (i) within 30 days after such acquisition (or such longer period as may be agreed by
the Administrative Agent in its sole discretion), furnish to the Administrative Agent a
description of the property so acquired in detail satisfactory to the Administrative Agent,




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




     (iii) within 30 days after such acquisition (or such longer period as may be agreed by
the Administrative Agent in its sole discretion), cause the applicable Loan Party to take
whatever action (including the recording of mortgages, vessel mortgages, the filing of
Uniform Commercial Code financing statements, the giving of notices and the endorsement of
notices on title documents) may be necessary or advisable in the opinion of the
Administrative Agent to vest in the Administrative Agent (or in any representative of the
Administrative Agent designated by it) valid and subsisting Liens on such property,
enforceable against all third parties,




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




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




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



     (d) Notwithstanding the foregoing, (i) so long as no Event of Default exists, the Loan Parties
shall not be required to provide a deed of trust, mortgage or the items listed in Section
6.12(a)(iii) or 6.12(b)(v) with respect to any real property with a fair market value
of less than $5,000,000, (ii) if, as of the end of any fiscal quarter, the Immaterial Domestic
Subsidiaries collectively own net assets that have an aggregate fair market value equal to or
greater than 2.5% of Consolidated Tangible Assets of the Borrower, then the Borrower shall cause
one or more of such Immaterial Domestic Subsidiaries to execute a joinder agreement (or agreements)
such that after giving effect thereto, the total net assets owned by all such remaining Immaterial
Domestic Subsidiaries that are not Guarantors will have an aggregate fair market value of less than
2.5% of the Consolidated Tangible Assets of the Borrower.



     (e) Upon Robota, BESI or any other Immaterial Domestic Subsidiary becoming a guarantor of any
of the Senior Notes, such Person shall be deemed to be a “Guarantor” for purposes of this Agreement
and the Borrower shall promptly cause such Person to duly execute and deliver to the Administrative
Agent a guaranty or guaranty supplement, in form and substance satisfactory to the Administrative
Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents and to deliver
such other Loan Documents and take such other actions specified in clause (a) above within the time
frames specified therein.



     6.13 Compliance with Environmental Laws. Comply, and cause all lessees and other Persons
operating or occupying its properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits necessary
for its operations and properties; and conduct any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the requirements of all
Environmental Laws in all material respects; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to undertake any such cleanup, removal,
remedial or other action to the extent that its obligation to do so is being contested in good
faith and by proper proceedings and appropriate reserves are being maintained with respect to such
circumstances in accordance with GAAP.



     6.14 Preparation of Environmental Reports. At the request of the Required Lenders during the
existence of any Default, provide to the Lenders within 60 days (or such longer period as the
Administrative Agent may agree in its sole discretion) after such request, at the expense of the
Borrower, an environmental site assessment report for any of its properties described in such
request, prepared by an environmental consulting firm acceptable to the Administrative Agent,
indicating the presence or absence of Hazardous Materials and the estimated cost of any compliance,
removal or remedial action in connection with any Hazardous Materials on such properties. Without
limiting the generality of the foregoing, if the Administrative Agent



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determines at any time that a material risk exists that any such report will not be provided
within the time referred to above, the Administrative Agent may retain an environmental consulting
firm to prepare such report at the expense of the Borrower, and the Borrower hereby grants and
agrees to cause any Subsidiary that owns any property described in such request to grant at the
time of such request to the Administrative Agent, the Lenders, such firm and any agents or
representatives thereof an irrevocable non-exclusive license, subject to the rights of tenants, to
enter onto their respective properties to undertake such an assessment.




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



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



     6.17 Material Contracts. Perform and observe all the terms and provisions of each Material
Contract to be performed or observed by it, maintain each such Material Contract in full force and
effect, enforce each such Material Contract in accordance with its terms, take all such action to
such end as may be from time to time requested by the Administrative Agent and, upon request of the
Administrative Agent, make to each other party to each such Material Contract such demands and
requests for information and reports or for action as any Loan Party or any of its Subsidiaries is
entitled to make under such Material Contract, and cause each of its Subsidiaries to do so, except,
in any case, where the failure to do so, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.



     6.18 Post-Closing. (a) Within 30 days of the Closing Date (or such later date as the
Administrative Agent may agree in it sole discretion), use all commercially reasonable efforts to



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deliver or cause to be delivered, a landlord’s agreement with respect to each of the following
locations, each such agreement in form and substance reasonably satisfactory to the Administrative
Agent and fully executed:





	 	(i)	 	Location — Levelland, TX
 Landlord — Tony Malouf

Address: 2045 W State Rd #300, Levelland, TX 79336, Hockley County, TX;
	 
	 	(ii)	 	Location — Midland Rigs, TX
 Landlord — EDDR Joint Venture

Address: 2700 E I-20, Midland, TX 79706, Midland County, TX;
	 
	 	(iii)	 	Location — Alice, TX
 Landlord — A & A Enterprises, LLC

Address: 6089 E Hwy 44, Alice, TX 78332, Jim Wells County, TX;
	 
	 	(iv)	 	Location — Katy, TX 
 Landlord — CG 7600 LP

Address: 27520 Katy Brookshire Hwy, Katy, TX 77418, Waller County, TX; and
	 
	 	(v)	 	Location — Midland Drilling Yard, TX
 Landlord — Sledge Ranches, Ltd.

Address: 1602 S Midkiff, Midland, TX 79701, Midland County, TX.





     (b) Within 14 days of the Closing Date (or such later date as the Administrative Agent may
agree in it sole discretion), endorse and deliver or cause to be endorsed and delivered,
certificates of title for all Rigs owned by all Debtors as of the Closing Date and registered in
the States of Wyoming, Oklahoma or Utah.



ARTICLE VII

NEGATIVE COVENANTS



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




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



     (a) Liens pursuant to any Loan Document;



     (b) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or
extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the
amount



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secured or benefited thereby is not increased except as contemplated by Section
7.02(d), (iii) the direct or any contingent obligor with respect thereto is not changed, and
(iv) any renewal or extension of the obligations secured or benefited thereby is permitted by
Section 7.02(d);




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



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



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



     (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;



     (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 not constituting an Event of Default
under Section 8.01(h);



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



     (j) Leases with respect to the assets or properties of any of the Borrower or any Subsidiary,
in each case entered into in the ordinary course of such Person’s business so long as such leases
are subordinate in all respects to the Liens granted and evidenced by the Collateral Documents and
do not, individually or in the aggregate, (i) interfere in any material respect with the ordinary
conduct of the business of the Borrower or any Subsidiary or (ii) materially impair the use (for
its intended purposes) or the value of the property subject thereto;



     (k) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Borrower or any Subsidiary in the ordinary
course of business in accordance with the past practices of such Person;



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     (l) Liens represented by the escrow of the net proceeds of the 2019 Senior Notes to finance
the redemption in full of the remaining portion of the Existing Senior Secured Notes (after giving
effect to the repayment of the Existing Senior Secured Notes tendered on or before the Closing
Date);



     (m) Liens on property of a Person existing at the time such Person is acquired or merged into
or consolidated with the Borrower or any Guarantor or becomes a Subsidiary of the Borrower;
provided that such Liens were not created in contemplation of such merger, consolidation or
Investment and do not extend to any assets other than those of the Person merged into or
consolidated with the Borrower or such Guarantor or acquired by the Borrower or such Guarantor, and
the applicable Indebtedness secured by such Lien is permitted under Section 7.02(k); and



     (n) other Liens securing Indebtedness outstanding in an aggregate principal amount not to
exceed $15,000,000, provided that no such Lien shall extend to or cover any Collateral.



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



     (a) obligations (contingent or otherwise) existing or arising under any interest rate Swap
Contract, provided that (i) such obligations are (or were) entered into by such Person for
the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign
exchange rates 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;



     (b) Indebtedness among the Borrower and its wholly owned Subsidiaries, which Indebtedness
shall (i) in the case of Indebtedness owed to a Loan Party, constitute “Pledged Debt” under
the Security Agreement, (ii) be on terms (including subordination terms) acceptable to the
Administrative Agent and (iii) be otherwise permitted under the provisions of Section 7.03;



     (c) Indebtedness under the Loan Documents;



     (d) Indebtedness outstanding on the date hereof and listed on Schedule 7.02, including
Indebtedness under the 2016 Senior Notes and 2019 Senior Notes, and any refinancings, renewals or
extensions, in whole or in part, of any of the foregoing; provided that (x) the amount of
such Indebtedness is not increased at the time of such refinancing, refunding, renewal, or
extension except by (i) an amount equal to a reasonable premium or other reasonable amount paid,
and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal,
or extension or (ii) the amount of any Indebtedness incurred pursuant to Section 7.02(g) in
connection therewith and (y) the terms of such refinancing, refunding, renewing or extending
Indebtedness satisfy the requirements of the first proviso of Section 7.02(g); and
provided further, that the Indebtedness listed on Schedule 7.02 relating to the
Existing Senior Secured Notes, as satisfied and discharged as of the Closing Date, shall not be
permitted to remain in existence after March 30, 2011 and such Indebtedness may not be refinanced,
renewed or extended;



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     (e) Guarantees of the Borrower or any Subsidiary in respect of Indebtedness otherwise
permitted hereunder of the Borrower or any Guarantor;



     (f) Indebtedness in respect of Capitalized Leases, Synthetic Lease Obligations and purchase
money obligations for fixed or capital assets within the limitations set forth in Section
7.01(i); provided, however, that the aggregate amount of all such Indebtedness
at any one time outstanding (including any such Indebtedness outstanding on the date hereof) shall
not exceed the greater of (i) $50,000,000 and (ii) 15% of Consolidated Tangible Assets of the
Borrower as of the end of the fiscal quarter most recently ended;



     (g) unsecured Indebtedness in an aggregate principal amount not to exceed $150,000,000 issued
by the Borrower or any of its Subsidiaries; provided that (i) immediately prior to and
after giving effect to the issuance of such Indebtedness, there would be no Default under this
Agreement, (ii) such Indebtedness’ scheduled maturity is no earlier than twelve (12) months after
the Maturity Date, (iii) such Indebtedness does not require any scheduled repayments, defeasance or
redemption (or sinking fund therefor) of any principal amount thereof prior to maturity, and (iv)
no indenture or other agreement governing such Indebtedness contains (A) maintenance financial
covenants or (B) covenants or events of default that are more restrictive in any material respect
on the Borrower or any of its Subsidiaries than then applicable market terms and conditions for
comparable issuers and issuances, and any refinancings, refundings, renewals or extensions thereof;
provided that (x) the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal, or extension except by an amount equal to a reasonable premium or
other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such
refinancing, refunding, renewal, or extension and (y) the terms of such refinancing, refunding,
renewing, or extending Indebtedness satisfy the requirements of this Section 7.02(g);



     (h) Indebtedness in respect of workers’ compensation claims, self insurance obligations,
performance bonds, surety appeal or similar bonds and completion guarantees provided by the
Borrower or a Subsidiary in the ordinary course of its business;



     (i) Indebtedness in respect of (i) self-insurance obligations or completion, bid, performance,
appeal or surety bonds issued for the account of the Borrower or any wholly-owned Subsidiary in the
ordinary course of business, including guarantees or obligations of the Borrower or any
wholly-owned Subsidiary with respect to letters of credit supporting such self-insurance,
completion, bid, performance, appeal or surety obligations (in each case other than for an
obligation for money borrowed) or (ii) obligations represented by letters of credit for the account
of the Borrower or any wholly-owned Subsidiary, as the case may be, in order to provide security
for workers’ compensation claims;



     (j) indemnification, adjustment of purchase price, earn-out or similar obligations (including
without limitation any Earn Out Obligations), in each case, incurred or assumed in connection with
any Permitted Acquisition or disposition of any business or assets of the Borrower or any
wholly-owned Subsidiary or Equity Interests of a wholly-owned Subsidiary, other than guarantees of
Indebtedness incurred by any person acquiring all or any portion of such business, assets or Equity
Interests for the purpose of financing or in contemplation of any such Permitted Acquisition;
provided that (i) any amount of such obligations included on the face of



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the balance sheet of the Borrower or any wholly-owned Subsidiary shall not be permitted under
this clause (j) and (ii) in the case of a disposition, the maximum aggregate liability in
respect of all such obligations outstanding under this clause (j) shall at no time exceed
the gross proceeds actually received by the Borrower and the wholly-owned Subsidiaries in
connection with such disposition;




     (k) Indebtedness incurred as a result of a Permitted Acquisition in an aggregate principal
amount not to exceed $20,000,000 at any time outstanding; and



     (l) unsecured Indebtedness in an aggregate principal amount not to exceed $40,000,000 at any
time outstanding.



     7.03 Investments. Make or hold any Investments, except:



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



     (b) advances to officers, directors and employees of the Borrower and Subsidiaries in an
aggregate amount not to exceed $250,000 at any time outstanding, for travel, entertainment,
relocation and analogous ordinary business purposes;



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



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



     (e) Guarantees permitted by Section 7.02;



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



     (g) the Borrower and the Guarantors may (by purchase or merger) consummate Permitted
Acquisitions provided that, with respect to each Permitted Acquisition made pursuant to
this Section 7.03(g):




     (i) no Default exists and the Permitted Acquisition could not reasonably be expected to
cause a Default;




     (ii) the Permitted Acquisition is not hostile;



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     (iii) the lines of business of the Person to be (or the property of which is to be) so
purchased or otherwise acquired shall be substantially the same lines of business as one or
more of the principal businesses of the Borrower and its Subsidiaries in the ordinary
course;




     (iv) the requirements of Section 6.12 are satisfied; and




     (v) the Borrower shall have delivered to the Administrative Agent and each Lender, at
least five Business Days prior to the date on which any such Permitted Acquisition is to be
consummated, a certificate of a Responsible Officer, in form and substance reasonably
satisfactory to the Administrative Agent and the Required Lenders, certifying that all of
the requirements set forth in this Section 7.03(g) have been satisfied or will be
satisfied on or prior to the date on which such Permitted Acquisition is consummated;



     (h) the Borrower may make loans to senior management of Borrower and the Guarantors for
purposes of purchasing the capital stock of Borrower in an aggregate principal amount not to exceed
$2.5 million at any one time outstanding;



     (i) scheduled payments of Earn Out Obligations; and



     (j) other Investments not exceeding $5,000,000 in the aggregate in any fiscal year of the
Borrower.



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



     (a) (i) the Borrower may merge with one or more of its Subsidiaries, provided that the
Borrower shall be the continuing or surviving Person, and (ii) any of its Subsidiaries may merge
with any of its other Subsidiaries provided that if any of such Subsidiaries is a Guarantor, a
Guarantor shall be the surviving Person;



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



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



     (d) the Borrower or any Guarantor may merge or consolidate with any Person in accordance with
Section 7.03(g); and



     (e) the sale described in Section 7.05(h).



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



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



     (b) Dispositions of inventory in the ordinary course of business;



     (c) Dispositions of equipment to the extent that (i) such equipment is exchanged for credit
against the purchase price of similar replacement equipment or (ii) the proceeds of such
Disposition are (x) paid solely in cash, (y) reinvested in replacement equipment within 30 days of
receipt and (z) if the equipment subject to such Disposition was Collateral, such replacement
equipment is or becomes Collateral subject to a perfected Lien in favor of the Administrative Agent
for the benefit of the Secured Parties substantially contemporaneously with the consummation of
such replacement;



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



     (e) Dispositions permitted by Section 7.04;



     (f) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this
Section 7.05; provided that (i) at the time of such Disposition, no Default shall
exist or would result from such Disposition, (ii) the aggregate book value of all property Disposed
of in reliance on this clause (f) in any fiscal year shall not exceed $5,000,000 and (iii) the
purchase price for such asset shall be paid to the Borrower or such Subsidiary solely in cash;



     (g) sales or non-exclusive grants of licenses or sublicenses to use the patents, trade
secrets, know-how and other intellectual property, and licenses, leases or subleases of other
assets, of the Borrower or any wholly-owned Subsidiary to the extent not materially interfering
with the business of the Borrower or any Subsidiary;



     (h) the sale of assets of Permian Plaza LLC pursuant to the Earnest Money Contract of Sale
between Permian Plaza LLC and CO6 Realty, LLC dated December 20, 2010; and



     (i) so long as no Default shall occur and be continuing, the grant of any option or other
right to purchase any asset in a transaction that would be permitted under the provisions of
Section 7.05(f).


provided, however, that any Disposition pursuant to Section 7.05(a) through Section 7.05(f)
(other than Dispositions to a Loan Party) shall be for fair market value.




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



     (a) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the
Borrower that are Guarantors and any other Person that owns a direct Equity Interest in



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such Subsidiary, ratably according to their respective holdings of the type of Equity Interest
in respect of which such Restricted Payment is being made;




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



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



     (d) the Borrower may (i) declare or pay cash dividends to its stockholders and (ii) purchase,
redeem or otherwise acquire for cash Equity Interests issued by it solely out of 25% of
Consolidated Net Income of the Borrower and its Subsidiaries arising after December 31, 2011 and
computed on a cumulative consolidated basis with other such transactions by the Borrower since such
date;



     (e) the redemption, repurchase or other acquisition or retirement for value of Equity
Interests of the Borrower held by officers, directors or employees or former officers, directors or
employees (or their transferees, estates or beneficiaries under their estates), either (i) upon any
such individual’s death, disability, retirement, severance or termination of employment or service
or (ii) pursuant to any equity subscription agreement, stock option agreement, stockholders’
agreement or similar agreement; provided, in any case, that the aggregate cash consideration paid
for all such redemptions, repurchases or other acquisitions or retirements shall not exceed
$5,000,000 during any calendar year (with unused amounts in any calendar year being carried forward
to the next succeeding calendar year);



     (f) (i) repurchases, redemptions or other acquisitions or retirements for value of Equity
Interests deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity
Interests or other convertible securities to the extent such Equity Interests represent a portion
of the exercise or exchange price thereof and (ii) any repurchases, redemptions or other
acquisitions or retirements for value of Equity Interests made in lieu of withholding taxes in
connection with any exercise or exchange of stock options, warrants or other similar rights;



     (g) the payment of cash in lieu of fractional Equity Interests; and



     (h) payments or distributions to dissenting stockholders pursuant to applicable Law in
connection with a merger, consolidation or transfer of assets that complies with the provisions of
Section 7.04.



     7.07 Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by the Borrower and its Subsidiaries on the date
hereof or any business substantially related or incidental thereto.



     7.08 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate
of the Borrower, whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to the Borrower or such Subsidiary as would be
obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s length



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




     7.09 Burdensome Agreements. Enter into or permit to exist any Contractual Obligation (other
than this Agreement or any other Loan Document) that (a) limits the ability (i) of any Subsidiary
to make Restricted Payments to the Borrower or any Guarantor or to otherwise transfer property to
or invest in the Borrower or any Guarantor, except for any agreement in effect (A) on the date
hereof and set forth on Schedule 7.09 or (B) at the time any Subsidiary becomes a
Subsidiary of the Borrower, so long as such agreement was not entered into solely in contemplation
of such Person becoming a Subsidiary of the Borrower, (ii) of any Subsidiary to Guarantee the
Indebtedness of the Borrower or (iii) of the Borrower or any Subsidiary to create, incur, assume or
suffer to exist Liens on property of such Person; provided, however, that this
clause (iii) shall not prohibit any negative pledge incurred or provided in favor of any holder of
Indebtedness permitted under Section 7.02(f) solely to the extent any such negative pledge
relates to the property financed by or the subject of such Indebtedness; or (b) requires the grant
of a Lien to secure an obligation of such Person if a Lien is granted to secure the Obligations.



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



     7.11 Financial Covenants. (a) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio as of the end of any fiscal quarter of the Borrower to be less
than 2.50 to 1:00.



     (b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio at any time
during any period of four fiscal quarters of the Borrower set forth below to be greater than the
ratio set forth below opposite such period:



	 	 	 
	 	 	Maximum
	 	 	Consolidated
	Four Fiscal Quarters Ending	 	Leverage Ratio
	Closing Date through March 31, 2011
	 	4.25:1.00
	June 30, 2011 and each fiscal quarter thereafter
	 	4.00:1.00






     (c) Consolidated Senior Secured Leverage Ratio. Permit the Consolidated Senior
Secured Leverage Ratio as of the end of any fiscal quarter of the Borrower to be greater than 2.00
to 1:00.



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



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	Fiscal Year	 	Amount
	 
	2011
	 	$110,000,000
	2012
	 	$120,000,000
	2013
	 	$120,000,000
	2014
	 	$120,000,000
	2015
	 	$120,000,000





; provided, however, that so long as no Default has occurred and is continuing or
would result from such expenditure, (a) up to 50% of any unused amount set forth above, if not
expended in the fiscal year for which it is permitted above, may be carried over for expenditure in
the next following fiscal year (such amount, the “CapEx Rollover Amount”); and
provided, further, if a CapEx Rollover Amount is so carried over, it will be deemed
used in the immediately succeeding fiscal year before the amount set forth opposite for such fiscal
year above and (b) for any fiscal year, the amount of Capital Expenditures that would otherwise be
permitted in such fiscal year pursuant to this Section 7.12 (including as a result of the
application of any CapEx Rollover Amount) may be increased by an amount not to exceed $20,000,000
of the scheduled amount permitted for the immediately succeeding fiscal year (the “CapEx
Pull-Forward Amount”), provided that the actual CapEx Pull-Forward Amount in respect of
any such fiscal year shall reduce, on a dollar-for-dollar basis, the amount of Capital Expenditures
that are permitted to be made in the immediately succeeding fiscal year.




     7.13 Amendments of Organization Documents. Amend any of its Organization Documents in a
manner which could materially and adversely affect the interests of the Administrative Agent or the
Lenders.



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



     7.15 Prepayments, Etc. of Indebtedness. Prepay, redeem, purchase, defease or otherwise
satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of
any subordination terms of, any Indebtedness, except (a) the prepayment of the Credit Extensions in
accordance with the terms of this Agreement, (b) regularly scheduled payments of Indebtedness set
forth on Schedule 7.02, (c) refinancings, refundings, extensions or renewals of
Indebtedness to the extent such refinancing, refunding, extension or renewal is permitted by
Sections 7.02(d) or 7.02(g) and (d) the conversion to or exchange for Equity
Interests of convertible or exchangeable debt securities permitted under Sections 7.02(d)
and 7.02(g) and customary payments in cash in lieu of fractional shares in connection
therewith.



     7.16 Amendment, Etc. of Indebtedness. Amend, modify or change in any manner any term or
condition of the Senior Notes, the Senior Notes Documents or any Indebtedness set forth on
Schedule 7.02, except for (a) any refinancing, refunding, renewal or extension thereof
permitted by Sections 7.02(d) or 7.02(g), as applicable and (b) with respect to the
Senior Notes and the Senior Notes Documents, any amendments or modifications made to (i) cure any
ambiguity, defect or inconsistency, (ii) evidence or provide for the acceptance of appointment by a
successor trustee or effect any similar immaterial administrative modifications or (iii)
supplemental indentures to the Senior Notes Documents made solely to add guarantors.



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ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES




     8.01 Events of Default. Any of the following shall constitute an Event of Default:



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



     (b) Specific Covenants. (i) The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.01, 6.02(a), 6.02(b),
6.03(a), 6.03(b), 6.05, 6.07, 6.10, 6.11,
6.12, 6.14, or Article VII or (ii) the Borrower fails to perform or observe
any term, covenant or agreement contained in Section 6.02 (other than Section
6.02(a) and 6.02(b)) or Section 6.03 (other than Section 6.03(a) and
6.03(b)) and such failure continues for 5 days; or



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



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



     (e) Cross-Default. (i) Any Loan Party or any Subsidiary thereof (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than $15,000,000, 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, in
each case the effect of which default or other event is to cause, or to permit the holder or
holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there
occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which a Loan Party or any
Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which a Loan Party or any
Subsidiary thereof is an



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Affected Party (as so defined) and, in either event, the Swap Termination Value owed by such
Loan Party or such Subsidiary as a result thereof is greater than $15,000,000; or




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



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



     (h) Judgments. There is entered against any Loan Party or any Subsidiary thereof (i)
one or more final judgments or orders for the payment of money in an aggregate amount (as to all
such judgments and orders) exceeding $5,000,000 (to the extent not covered by independent
third-party insurance as to which the insurer is rated at least “A” by A.M. Best Company,
has been notified of the potential claim and does not dispute coverage), or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are
commenced by any creditor upon such judgment or order, or (B) there is a period of 10 consecutive
days during which a stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect; or



     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in a Material Adverse Effect or
the imposition of a Lien on the assets of a Loan Party, 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 and
such failure to pay has resulted or could reasonably be expected to result in a Material Adverse
Effect or the imposition of a Lien on the assets of a Loan Party; or



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



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



     (l) Collateral Documents. Any Collateral Document after delivery thereof pursuant to
Section 4.01 or 6.12 shall for any reason (other than pursuant to the terms
thereof) cease to create a valid and perfected first priority Lien (subject to Liens permitted by
Section 7.01) on Collateral having a fair market value in excess of $5,000,000 that is
purported to be covered thereby unless such occurrence results solely from action of the
Administrative Agent or any Lender and involves no Default by the Borrower or any Guarantor
hereunder or under any Collateral Document.



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



     (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, the Lenders and the L/C Issuer all rights and remedies
available to it, the Lenders and the L/C Issuer 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 Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Administrative Agent or any
Lender.




     8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), any amounts received on account of the Obligations shall, subject to the
provisions of Sections 2.15 and 2.16, 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



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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 arising under the Loan Documents and amounts payable under Article III,
ratably among them in proportion to the respective amounts described in this clause Second
payable to them;



     Third, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations arising under
the Loan Documents, ratably among the Lenders and the L/C Issuer in proportion to the respective
amounts described in this clause Third payable to them;



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



     Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections
2.03 and 2.15; 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 2.15, amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on
deposit as Cash Collateral after all 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.



Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements and
Secured Hedge Agreements shall be excluded from the application described above if the
Administrative Agent has not received written notice thereof, together with such supporting
documentation as the Administrative Agent may request, from the applicable Cash Management Bank or
Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to the Credit
Agreement that has given the notice contemplated by the preceding sentence shall, by such notice,
be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to
the terms of Article IX hereof for itself and its Affiliates as if a “Lender” party
hereto.







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ARTICLE IX

ADMINISTRATIVE AGENT




     9.01 Appointment and Authority. (a) 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 the Borrower shall not have rights as a third party beneficiary of any of such
provisions.



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



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



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



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



     (b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in



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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
the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as
the Administrative Agent or any of its Affiliates in any capacity.



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



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



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



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any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.




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



     9.06 Resignation of Administrative Agent. The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt of any
such notice of resignation, the Required Lenders shall have the right, 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 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 (a) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and (b) 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 10.04 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as
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 a Swing Line Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (i) such successor shall succeed to




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and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
a Swing Line Lender, (ii) the retiring L/C Issuer and Swing Line Lender shall be discharged from
all of their respective duties and obligations hereunder or under the other Loan Documents,
and (iii) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of
Credit, 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.




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



     9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Book
Managers, Arrangers, Syndication Agent or Documentation Agent listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or a L/C
Issuer hereunder.



     9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding
under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan or 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 that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the claims of
the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other amounts due the Lenders,
the L/C Issuer and the Administrative Agent under Sections 2.03(h) and (i),
2.09 and 10.04) allowed in such judicial proceeding; and



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


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, if the Administrative Agent shall consent to the




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making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any
amount due for the reasonable compensation, expenses, disbursements and advances
of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.



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




     9.10 Collateral and Guaranty Matters. Each of the Lenders (including in its capacities as a
potential Cash Management Bank and a potential Hedge Bank) and the L/C Issuer irrevocably authorize
the Administrative Agent, at its option and in its discretion,



     (a) to release any Lien on any property granted to or held by the Administrative Agent under
any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all
Obligations (other than (A) contingent indemnification obligations and (B) obligations and
liabilities under Secured Cash Management Agreements and Secured Hedge Agreements as to which
arrangements satisfactory to the applicable Cash Management Bank of Hedge Bank shall have been
made) and the expiration or termination of all Letters of Credit (other than Letters of Credit as
to which other arrangements satisfactory to the Administrative Agent and the L/C Issuer shall have
been made), (ii) that is sold or to be sold as part of or in connection with any sale permitted
hereunder or under any other Loan Document, or (iii) if approved, authorized or ratified in
writing in accordance with Section 10.01;



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



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


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




     9.11 Secured Cash Management Agreements and Secured Hedge Agreements. No Cash Management Bank
or Hedge Bank that obtains the benefits of Section 8.03, any Guaranty or any Collateral by
virtue of the provisions hereof or of any Guaranty or any Collateral



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Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any
other Loan Document or otherwise in respect of the Collateral
(including the release or impairment of any Collateral) other than in its capacity as a Lender
and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding
any other provision of this Article IX to the contrary, the Administrative Agent shall not
be required to verify the payment of, or that other satisfactory arrangements have been made with
respect to, Obligations arising under Secured Cash Management Agreements and Secured Hedge
Agreements unless the Administrative Agent has received written notice of such Obligations,
together with such supporting documentation as the Administrative Agent may request, from the
applicable Cash Management Bank or Hedge Bank, as the case may be.




ARTICLE X

MISCELLANEOUS




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



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



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



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



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



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



     (f) change (i) any provision of this Section 10.01 or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage of Lenders required



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to amend, waive or otherwise modify any rights hereunder or make any determination or grant any
consent hereunder without the written consent of each Lender;




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



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


and provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights
or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Lenders in addition to the Lenders required above, affect the rights
or duties of the Swing Line Lenders under this Agreement; (iii) no amendment, waiver or consent
shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required
above, affect the rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived,
in a writing executed only by the parties thereto. Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or
consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of
all Lenders or each affected Lender may be effected with the consent of the applicable Lenders
other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be
increased or extended without the consent of such Lender and (y) any waiver, amendment or
modification requiring the consent of all Lenders or each affected Lender that by its terms affects
any Defaulting Lender more adversely than other affected Lenders shall require the consent of such
Defaulting Lender.



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




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



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




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


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




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


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




     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS
OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-



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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 each 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
Lenders. 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 Revolving Credit Loan Notices and Swing Line Loan Notices) purportedly given by or on
behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice specified herein, or (ii)
the terms thereof, as understood by the recipient, varied from any confirmation thereof. The
Borrower shall indemnify the 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 the Borrower. All
telephonic notices to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby consents to such
recording.



     10.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, the L/C Issuer
or the Administrative Agent to exercise, and no delay by any such Person in



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exercising, any right,
remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided, and provided under each other Loan Document, are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.



Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the
Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and
the L/C Issuer; provided, however, that the foregoing shall not prohibit (a) the
Administrative Agent from exercising on its own behalf the rights and remedies that inure to its
benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan
Documents, (b) the L/C Issuer or the Swing Line Lenders from exercising the rights and remedies
that inure to their respective benefit (solely in their respective capacities as L/C Issuer or
Swing Line Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender
from exercising setoff rights in accordance with Section 10.08 (subject to the terms of
Section 2.13), 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 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of
the preceding proviso and subject to Section 2.13, 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.




     10.04 Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses. The Borrower shall
pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates (including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit facilities provided for
herein, the preparation, negotiation, execution, 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), in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with Loans made or Letters of Credit issued hereunder, including all
such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.



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     (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of
the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold
each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the fees, charges and disbursements of any counsel for 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 the Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third party or by the
Borrower or any other Loan Party or any of the Borrower’s or such Loan Party’s directors,
shareholders or creditors, and regardless of whether any Indemnitee is a party thereto, IN ALL
CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE,
CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or
related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y)
result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for
breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if
the Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on
such claim as determined by a court of competent jurisdiction.



     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to the 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).



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



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



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



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



     10.06 Successors and Assigns. (a) Successors and Assigns Generally. The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
the 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
Section 10.06(b), (ii) by way of participation in accordance with the provisions of
Section 10.06(d), or (iii) by way of pledge or assignment of a security interest subject to
the restrictions



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of Section 10.06(f) (and any other attempted assignment or transfer by any
party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section
and, to the extent expressly contemplated hereby, the Related Parties of each of the 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 (including all or a
portion of its Commitment(s) and the Loans (including for purposes of this Section
10.06(b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it);
provided that any such assignment shall be subject to the following conditions:




     (i) Minimum Amounts.




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




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




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




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



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     (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 if such assignment is to a
Person that is not a Lender, an Affiliate of a Lender or an Approved Fund with
respect to a Lender;




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




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




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




     (v) 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.




     (vi) Certain Additional Payments. In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be effective
unless and until, in addition to the other conditions thereto set forth herein, the parties
to the assignment shall make such additional payments to the Administrative Agent in an
aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright
payment, purchases by the assignee of participations or subparticipations, or other
compensating actions, including funding, with the consent of the Borrower and the
Administrative Agent, the applicable pro rata share of Loans previously requested but not
funded by the Defaulting Lender, to each of which the applicable assignee and assignor
hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then
owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and
interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share
of all Loans and participations in Letters of Credit



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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 10.04
with respect to facts and circumstances occurring prior to the effective date of such assignment.
Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with Section
10.06(d).




     (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, 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, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries)
(each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations
under this Agreement (including all or a portion of its Commitment and/or the Loans (including such
Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue to
deal solely and directly with such Lender in connection with such Lender’s rights and



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




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



     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its 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 Revolving Credit Loans pursuant to Section 10.06(b), Bank of America may,
(i) upon 30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30
days’ notice to the Borrower, resign as a Swing Line Lender. In the event of any such resignation
as L/C Issuer or a 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 a 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 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 a Swing Line Lender, it shall
retain all the rights of a 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



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and/or Swing Line Lender, (a) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case
may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make other arrangements
satisfactory to Bank of America to effectively assume the obligations of Bank of America with
respect to such Letters of Credit.




     10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent,
the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents, trustees, advisors and
representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee
invited to be a Lender pursuant to Section 2.14(c) or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and
its obligations, (g) with the consent of the Borrower or (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or (ii) becomes
available to 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 the Borrower or any Subsidiary
relating to the Borrower or any Subsidiary or any of their respective businesses, other than any
such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by the Borrower or any Subsidiary, provided that, in the
case of information received from the Borrower 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 United States Federal and state securities Laws.




     10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any



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time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final, in whatever currency) at
any time held and other obligations (in whatever currency) at any time owing by such Lender, the
L/C Issuer or any such Affiliate to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or hereafter existing
under this Agreement or any other Loan Document to such Lender or the L/C Issuer, irrespective of
whether or not such Lender or the L/C Issuer shall have made any demand under this Agreement or any
other Loan Document and although such obligations of the Borrower may be contingent or unmatured or
are owed to a branch or office of such Lender or the L/C Issuer different from the branch or office
holding such deposit or obligated on such indebtedness; provided, that in the event that any
Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid
over immediately to the Administrative Agent for further application in accordance with the
provisions of Section 2.16 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.




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



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



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imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.




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



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



     10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04,
or if the Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, or if any Lender is a
Defaulting Lender or if any other circumstance exists hereunder that gives the Borrower the right
to replace a Lender as a party hereto, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained in, and consents
required by, Section 10.06), all of its interests, rights and obligations under this
Agreement and the related Loan Documents to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment), provided that:



     (a) such Lender shall have received payment of an amount equal to 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);



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



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


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




     10.14 Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.



     (b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS,
FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK SITTING IN NEW YORK CITY 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 ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.



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



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



-113-









 





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



     10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent and the Arrangers are arm’s-length
commercial transactions between the Borrower and its Affiliates, on the one hand, and the
Administrative Agent and the Arrangers, on the other hand, (B) the Borrower has consulted its own
legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the
Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of
the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative
Agent and the Arrangers, each is and has been acting solely as a principal and, except as expressly
agreed in writing by the relevant parties, has not been, is not, and will not be acting as an
advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any other Person and (B)
neither the Administrative Agent nor the Arrangers have any obligation to the Borrower or any of
its Affiliates with respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent and
the Arrangers and their respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrower and its Affiliates, and neither the
Administrative Agent nor the Arrangers has any obligation to disclose any of such interests to the
Borrower or its Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and
releases any claims that it may have against the Administrative Agent and the Arrangers with
respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect
of any transaction contemplated hereby.



     10.17 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



-114-









 




National Commerce Act, the New York State Electronic Signatures and Records Act, or any
other similar state laws based on the Uniform Electronic Transactions Act.




     10.18 USA PATRIOT Act. 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 each Loan Party, which information includes the name and address of each Loan Party
and other information that will allow such Lender or the Administrative Agent, as applicable, to
identify each Loan Party 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” an anti-money laundering rules and
regulations, including the Act.



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



-115-









 




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




	 	 	 	 	 
	 	BASIC ENERGY SERVICES, INC.

 	 
	 	By:  	/s/ Kenneth V. Huseman
 	 
	 	 	Kenneth V. Huseman 	 
	 	 	President and Chief Executive Officer 	 



Signature Page to Credit Agreement







 









 








	 	 	 	 	 
	 	
BANK OF AMERICA, N.A., as

Administrative Agent

 	 
	 	By:  	/s/ Alan Tapley
 	 
	 	 	Name:  	Alan Tapley 	 
	 	 	Title:  	Assistant Vice President 	 



Signature Page to Credit Agreement








 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as a Lender,

L/C Issuer and a Swing Line Lender

 	 
	 	By:  	/s/ David A Batson
 	 
	 	 	David A. Batson 	 
	 	 	Senior Vice President 	 



Signature Page to Credit Agreement







 









 








	 	 	 	 	 
	 	CAPITAL ONE, NATIONAL ASSOCIATION, as a Lender,

L/C Issuer and a Swing Line Lender

 
	 	By:  	/s/ Bobby Hamilton
 	 
	 	 	Bobby Hamilton 	 
	 	 	Assistant Vice President 	 



Signature Page to Credit Agreement







 









 








	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ Donald W. Herrick, Jr.
 	 
	 	 	Name:  	Donald W. Herrick, Jr. 	 
	 	 	Title:  	Director 	 



Signature Page to Credit Agreement







 









 








	 	 	 	 	 
	 	AMEGY BANK, N.A. 

 	 
	 	By:  	/s/ G. Scott Collins
 	 
	 	 	Name:  	G. Scott Collins 	 
	 	 	Title:  	Vice President 	 



Signature Page to Credit Agreement







 









 








	 	 	 	 	 
	 	COMERICA BANK 

 	 
	 	By:  	/s/ Gary Culbertson
 	 
	 	 	Name:  	Gary Culbertson 	 
	 	 	Title:  	Vice President 	 



Signature Page to Credit Agreement





 











 





EXHIBIT A




FORM OF REVOLVING CREDIT LOAN NOTICE




Date: ___________, _____



To: Bank of America, N.A., as Administrative Agent



Ladies and Gentlemen:




          Reference is made to that certain Credit Agreement, dated as of February 15, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Basic
Energy Services, Inc., a Delaware corporation (the “Borrower”), the Lenders from time to
time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and a Swing Line
Lender.




          The undersigned hereby requests (select one):




          o A Revolving Credit Borrowing




                    1. On                                          (a Business Day).



                    2. In the amount of $                     



           
         3. Comprised of        
                   
                   
                   
                



                                                                 [Type of Loan requested]




                    4. For Eurodollar Rate Loans: with an Interest Period of _____ months.



          o A conversion or continuation of Revolving Credit Loans




               A. Revolving Credit Loan(s) to be converted or continued:




                    1. On                                          (a Business Day).



                    2. In the amount of $                     



          
          3. Comprised of      
                  
                  
                   



                                                                 [Type of Loan]




                    4. For Eurodollar Rate Loans: with an Interest Period of _____ months.



Exhibit A to Credit Agreement



-1-









 





          B. Revolving Credit Loan(s) to be converted or continued as:




                    1. On                                          (a Business Day).



                    2. In the amount of $                     



       
             3. Comprised of  
             
               
        
       
        
            
        
         
           
        



                                                                 [Type of Loan requested]




                    4. For Eurodollar Rate Loans: with an Interest Period of _____ months.



          The Revolving Credit Borrowing requested herein complies with the proviso to the first
sentence of Section 2.01 of the Agreement.




Exhibit A to Credit Agreement



-2-









 





          The Borrower hereby represents and warrants that the conditions specified in Sections
4.02(a) and (b) shall be satisfied on and as of the date of the applicable Credit Extension.




	 	 	 	 	 
	 	BASIC ENERGY SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Exhibit A to Credit Agreement



-3-









 





EXHIBIT B




FORM OF SWING LINE LOAN NOTICE




Date: ___________, _____




To: [Bank of America, N.A.][Capital One, National Association], as Swing Line Lender, and

Bank of America, N.A., as Administrative Agent



Ladies and Gentlemen:




          Reference is made to that certain Credit Agreement, dated as of February 15, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Basic
Energy Services, Inc., a Delaware corporation (the “Borrower”), the Lenders from time to
time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and a Swing Line
Lender.




          The undersigned hereby requests a Swing Line Loan:





        
       1. On  
           
          
           
          
            
      (a Business Day).



               2. In the amount of $                                        .



          The Swing Line Borrowing requested herein complies with the requirements of the provisos to
the first sentence of Section 2.04(a) of the Agreement.




          The Borrower hereby represents and warrants that the conditions specified in Sections
4.02(a) and (b) shall be satisfied on and as of the date of the applicable Credit Extension.





	 	 	 	 	 
	 	BASIC ENERGY SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





Exhibit B to Credit Agreement




-1-











 





EXHIBIT C




FORM OF 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 Agreement (as hereinafter defined), the principal amount of each Revolving Credit
Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement,
dated as of February 15, 2011 (as amended, restated, extended, supplemented or otherwise modified
in writing from time to time, the “Agreement;” the terms defined therein being used herein
as therein defined), among the Borrower, the Lenders from time to time party thereto, and Bank of
America, N.A., as Administrative Agent, L/C Issuer and a Swing Line Lender.




          The Borrower promises to pay interest on the unpaid principal amount of each Revolving Credit
Loan from the date of such Loan until such principal amount is paid in full, at such interest rates
and at such times as provided in the Agreement. All payments of principal and interest shall be
made to the Administrative Agent for the account of the Lender in Dollars in immediately available
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 Agreement.




          This Note is one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and conditions provided
therein. This Note is also entitled to the benefits of the Guaranty and is secured by the
Collateral. Upon the occurrence and continuation of one or more of the Events of Default specified
in the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared
to be, immediately due and payable all as provided in the Agreement. Revolving Credit 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 Note and endorse
thereon the date, amount and maturity of its Revolving Credit 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 non-payment of this Note.




Exhibit C to Credit Agreement







-1-









 








          THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.




	 	 	 	 	 
	 	BASIC ENERGY SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Exhibit C to Credit Agreement







-2-









 








LOANS AND PAYMENTS WITH RESPECT THERETO




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Amount of	 	Outstanding	 	 
	 	 	 	 	 	 	End of	 	Principal or	 	Principal	 	 
	 	 	Type of	 	Amount of	 	Interest	 	Interest Paid	 	Balance This	 	Notation
	Date	 	Loan Made	 	Loan Made	 	Period	 	This Date	 	Date	 	Made By
	 
	 	 
	 	 
	 	 
	 	 
	 	 
	 	 





Exhibit C to Credit Agreement







-3-









 








EXHIBIT D




FORM OF COMPLIANCE CERTIFICATE




Financial Statement Date: ________, ____



To: Bank of America, N.A., as Administrative Agent



Ladies and Gentlemen:




          Reference is made to that certain Credit Agreement, dated as of February 15, 2011 (as amended,
restated, extended, supplemented or otherwise modified in writing from time to time, the
“Agreement;” the terms defined therein being used herein as therein defined), among Basic
Energy Services, Inc., a Delaware corporation (the “Borrower”), the Lenders from time to
time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and a Swing Line
Lender.




          The undersigned1 hereby certifies as of the date hereof that he/she is the
_________________________ of the Borrower, and that, as such, he/she is authorized to execute and
deliver this Certificate to the Administrative Agent on the behalf of the Borrower, and that:




          [Use following paragraph 1 for fiscal year-end financial statements]




          1. The Borrower has delivered the year-end audited financial statements required by
Section 6.01(a) of the 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.




[Use following paragraph 1 for fiscal quarter-end financial statements]




          1. The Borrower has delivered the unaudited financial statements required by Section
6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the above date.
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 Agreement and has made,
or has caused to be made under his/her supervision, a detailed review of the transactions and
condition (financial or otherwise) of the Borrower during the accounting period covered by such
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






 




			
	1	 	This certificate should be from the chief
executive officer, chief financial officer, treasurer or controller of the
Borrower.





Exhibit D to Credit Agreement








-1-









 







such fiscal period the Borrower performed and observed all its Obligations under the Loan
Documents, and




[select one:]




          [to the best knowledge of the undersigned, during such fiscal period 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—




          [to the best knowledge of the undersigned, 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 Borrower and each other Loan Party contained in
Article V of the Agreement or any other Loan Document, or which are contained in any
document furnished at any time under or in connection with the Loan Documents, 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 Sections 5.05(a) and (b) of the Agreement shall be deemed
to refer to the most recent statements furnished pursuant to Sections 6.01(a) and
(b) of the Agreement, respectively.




          5. The financial covenant analyses and information set forth on Schedules 1 and 
2 attached hereto are true and accurate on and as of the date of this Certificate.




          IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of                                                             ,                    
..




	 	 	 	 	 
	 	BASIC ENERGY SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





Exhibit D to Credit Agreement







-2-









 








For the Quarter/Year ended ___________________, ____ (“Statement Date”)




SCHEDULE 1

to the Compliance Certificate

($ in 000’s)




	 	 	 	 	 	 	 	 	 

	 	I.	 	 	Section 7.11 (a) — Consolidated Interest Coverage Ratio.
	 	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	A. Consolidated EBITDA for Measurement Period ending on above date
(“Subject Period”) as per Schedule 2:
	 	$	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	B. Consolidated Interest Charges for Subject Period:
	 	$	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	C. Consolidated Interest Coverage Ratio (Line I.A.  ̧ Line I.B):
	 	 	       
to 1	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	Minimum required:
	 	 	2.50 to 1	 
	 	 	 	 	 
	 	 	 	 
	II.	 	Section 7.11 (b) — Consolidated Leverage Ratio.
	 	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	A. Consolidated Funded Indebtedness at Statement Date
	 	$	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	B. Consolidated EBITDA for Subject Period (Line I.A. above):
	 	$	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	C. Consolidated Leverage Ratio (Line II.A  ̧ Line II.B):
	 	 	       
to 1	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	Maximum permitted:
	 	 	 	 






	 	 	 	 	 
	 	 	Maximum Consolidated	 
	Four Fiscal Quarters Ending	 	Leverage Ratio	 
	Closing Date through March 31, 2011
	 	 	4.25 to 1	 
	June 30, 2011 and each fiscal quarter thereafter
	 	 	4.00 to 1	 






	 	 	 	 	 	 	 	 	 

	III.	 	Section 7.11(c) — Consolidated Senior Secured Leverage Ratio
	 	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	A. Consolidated Senior Secured Indebtedness at Statement Date:
	 	$	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	B. Consolidated EBITDA for Subject Period (Line I.A. above):
	 	$	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	C. Consolidated Senior Secured Leverage Ratio (Line III.A  ̧ Line III.B):
	 	$	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	Maximum permitted:
	 	 	2.00 to 1	 






Exhibit D to Credit Agreement






-3-









 









	 	 	 	 	 	 	 	 	 

	IV.	 	Section 7.12 — Capital Expenditures.
	 	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	A. Capital Expenditures made during fiscal year to date:
	 	$	_________	 
	 	 	 	 	 
	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	B. Maximum permitted Capital Expenditures for such fiscal year:
	 	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	1. 2011
	 	$	110,000,000	 
	 	 	 	 	2. 2012
	 	$	120,000,000	 
	 	 	 	 	3. 2013
	 	$	120,000,000	 
	 	 	 	 	4. 2014
	 	$	120,000,000	 
	 	 	 	 	5. 2015
	 	$	120,000,000	 
	 
	 	 	 	 	C. Amount rolled over from prior year2:
	 	$	_________	 
	 	 	 	 	 
	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	D. Amount pulled back from succeeding year3
	 	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	E. Amount pulled back from such fiscal year to preceding year
	 	$	_________	 
	 	 	 	 	 
	 	 	 
	 	 	 	 	 
	 	 	 	 
	 	 	 	 	F. Excess (deficit) for covenant compliance


 ((Line IV.B + IV.C + IV.D — IV.E.) — IV.A.):
	 	$	_________	 
	 	 	 	 	 
	 	 	 







 




			
	2	 	CapEx Rollover Amount cannot exceed 50% of
unused amount from prior year.
	 
	3	 	CapEx Pull-Forward Amount cannot exceed
$20,000,000.





Exhibit D to Credit Agreement






-4-









 








For the Quarter/Year ended __________________(“Statement Date”)




SCHEDULE 2

to the Compliance Certificate

($ in 000’s)




Consolidated EBITDA

(in accordance with the definition of Consolidated EBITDA

as set forth in the Agreement)




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Twelve	 
	Consolidated	 	Quarter	 	 	Quarter	 	 	Quarter	 	 	Quarter	 	 	Months	 
	EBITDA	 	Ended	 	 	Ended	 	 	Ended	 	 	Ended	 	 	Ended	 
	Consolidated
Net Income
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ Consolidated Interest Charges
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ income taxes
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ depreciation expense
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ amortization expense
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ non-cash expenses
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ non-cash stock-based compensation expenses
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ costs of refinancing Existing Senior Secured Notes
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	+ Amount expensed in connection with tender for /
redemption of Existing Senior Secured Notes
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	- income tax credits
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	- non-cash income
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	= Consolidated EBITDA
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






Exhibit D to Credit Agreement





-1-











 





EXHIBIT E-1




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
[the][each]4 Assignor identified in item 1 below ([the][each, an]
“Assignor”) and [the][each]5 Assignee identified in item 2 below
([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations
of [the Assignors][the Assignees]6 hereunder are several and not joint.]7
Capitalized terms used but not defined herein shall have the meanings given to them in the Credit
Agreement identified below (the “Credit Agreement”), 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][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], 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][the respective Assignors’]
rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] 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][the respective Assignors] under the respective facilities
identified below (including, without limitation, the Letters of Credit and the Swing Line Loans
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)][the respective Assignors (in their respective capacities as Lenders)] 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 by [the][any] Assignor to [the][any] Assignee pursuant to clauses
(i) and (ii) above being referred to herein collectively as [the][an] “Assigned
Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and,
except as expressly provided in this Assignment and Assumption, without representation or warranty
by [the][any] Assignor.






 




			
	4	 	For bracketed language here and
elsewhere in this form relating to the Assignor(s), if the assignment is from a
single Assignor, choose the first bracketed language. If the assignment is
from multiple Assignors, choose the second bracketed language.
	 
	5	 	For bracketed language here and
elsewhere in this form relating to the Assignee(s), if the assignment is to a
single Assignee, choose the first bracketed language. If the assignment is to
multiple Assignees, choose the second bracketed language.
	 
	6	 	Select as appropriate.
	 
	7	 	Include bracketed language if there are
either multiple Assignors or multiple Assignees.





Exhibit E-1 to Credit Agreement



-1-









 





	 	 	 	 	 

	1.

	 	Assignor[s]:
	 	                                        
	 
	 	 	 	 
	 

	 	 	 	                                        
	 
	 	 	 	 
	2.

	 	Assignee[s]:
	 	                                        
	 
	 	 	 	 
	 

	 	 	 	                                        
	 	 	[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]
	 
	 	 	 	 
	3.

	 	Borrower(s):
	 	                                        
	 
	 	 	 	 
	4.	 	Administrative Agent: Bank of America, N.A., as the administrative agent under the
Credit Agreement
	 
	 	 	 	 
	5.	 	Credit Agreement: Credit Agreement, dated as of February 15, 2011, among Basic Energy
Services, Inc., as Borrower, the Lenders from time to time party thereto, and Bank of America,
N.A., as Administrative Agent, L/C Issuer, and a Swing Line Lender
	 
	 	 	 	 
	6.	 	Assigned Interest:






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Aggregate	 	 	 	 	 	 	Percentage	 	 
	 	 	 	 	 	 	 	 	 	 	Amount of	 	 	Amount of	 	 	Assigned of	 	 	 	 
	 	 	 	 	 	 	Facility	 	 	Commitment/Loans	 	 	Commitment/Loans	 	 	Commitment/	 	 	CUSIP 	 
	Assignor[s]8	 	Assignee[s]9	 	 	Assigned	 	 	for all Lenders10	 	 	Assigned	 	 	Loans11	 	 	Number	 
	 
	 	 	 	  	 	 	 	 	 	$	  	 	 	$	 	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	$	 	 	 	$	 	 	 	 	 	%	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 




[7. Trade Date: __________________]12



Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]




     The terms set forth in this Assignment and Assumption are hereby agreed to:



	 	 	 	 	 
	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 





 




			
	8	 	List each Assignor, as appropriate.
	 
	9	 	List each Assignee, as appropriate.
	 
	10	 	Amounts in this column and in the
column immediately to the right to be adjusted by the counterparties to take
into account any payments or prepayments made between the Trade Date and the
Effective Date.
	 
	11	 	Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.
	 
	12	 	To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date.



Exhibit E-1 to Credit Agreement





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	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 


Consented to and Accepted:



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




	 	 	 	 	 
	By:  	 	 
	 	Title: 	 
	 


Consented to:




	 	 	 	 	 
	By:  	 	 
	 	Title: 	 
	 



Exhibit E-1 to Credit Agreement




-3-









 







ANNEX 1 TO ASSIGNMENT AND ASSUMPTION




STANDARD TERMS AND CONDITIONS FOR




ASSIGNMENT AND ASSUMPTION




          1. Representations and Warranties.




          1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] 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][Each] 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
10.06(b)(iii), (v) [and (vi)] of the Credit Agreement (subject to such
consents, if any, as may be required under Section 10.06(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][the relevant] 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][such] Assigned Interest and either it, or the
Person exercising discretion in making its decision to acquire [the][such] Assigned 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 __ 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][such] 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][such] 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][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the
Administrative Agent, [the][any] 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



Exhibit E-1 to Credit Agreement




-4-









 






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][each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to
but excluding the Effective Date and to [the][the relevant] 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.



Exhibit E-1 to Credit Agreement




-5-









 







EXHIBIT E-2




FORM OF ADMINISTRATIVE QUESTIONNAIRE




See attached.




Exhibit E-2 to Credit Agreement





-1-











 





ADMINISTRATIVE DETAILS REPLY FORM — US DOLLAR ONLY

CONFIDENTIAL



FAX ALONG WITH COMMITMENT LETTER TO: Joel Soltman




Fax:          212.548.8596 or Email: joel.m.soltman@baml.com                                 

Please cc: michelle.diggs@baml.com                                 





			
	I. Borrower Name:	 	Basic Energy Services, Inc

$175 Million Revolving Credit Facility




II. Legal Name of Lender of Record for Signature Page:




	 	 	 	 	 	 	 	 	 

	•

	 	Signing Credit Agreement
	 	o  YES
	 	o  NO
	 	 
	•

	 	Coming in via Assignment 
	 	o  YES
	 	o  NO	 	 






	 	 	 

	III. Type of Lender: 
	 	 
	 

	 	 





(Bank, Asset Manager, Broker/Dealer, CLO/CDO, Finance Company, Hedge Fund, Insurance, Mutual Fund,
Pension Fund, Other Regulated Investment Fund, Special Purpose Vehicle, Other — please specify)




	 	 	 

	IV. Domestic Address:

	 	V. Eurodollar Address:
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 




IV. Contact Information:

Syndicate level information (which may contain material non-public information about the Borrower
and its related parties or their respective securities will be made available to the Credit
Contact(s). The Credit Contacts identified must be able to receive such information in accordance
with his/her institution’s compliance procedures and applicable laws, including Federal and State
securities laws.




	 	 	 	 	 	 	 
	 	 	 	 	Primary	 	Secondary
	 	 	Credit Contact	 	Operations Contact	 	Operations Contact
	Name:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	Title:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	Address:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	Telephone:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	Facsimile:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	E Mail Address:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 
	IntraLinks E Mail Address:
	 	 	 	 	 	 
	 

	 	 
	 	 
	 	 





Does
Secondary Operations Contact need copy of notices?
o  YES o  NO










1









 








ADMINISTRATIVE DETAILS REPLY FORM — US DOLLAR ONLY

CONFIDENTIAL




	 	 	 	 	 	 	 
	 	 	Letter of Credit	 	Draft Documentation	 	 
	 	 	Contact	 	Contact	 	Legal Counsel
	Name:
	 	 	 	 	 	 
	 
	 

	 	 
	 	 
	 	 
	Title:
	 	 	 	 	 	 
	 
	 

	 	 
	 	 
	 	 
	Address:
	 	 	 	 	 	 
	 
	 

	 	 
	 	 
	 	 
	 
	 	 	 	 	 	 
	 
	 

	 	 
	 	 
	 	 
	Telephone:
	 	 	 	 	 	 
	 
	 

	 	 
	 	 
	 	 
	Facsimile:
	 	 	 	 	 	 
	 
	 

	 	 
	 	 
	 	 
	E Mail Address:
	 	 	 	 	 	 
	 
	 

	 	 
	 	 
	 	 





VII. Lender’s Standby Letter of Credit, Commercial Letter of Credit, and Bankers’ Acceptance Fed
Wire Payment Instructions (if applicable):




	 	 	 	 	 

	Pay to:
	 	 	 	 
	 
	 	 	 	 
	 

	 	 

(Bank Name)
	 	 
	 
	 	 	 	 
	 
	 

	 	 

(ABA #)
	 	 
	 
	 	 	 	 
	 
	 

	 	 

(Account #)
	 	 
	 
	 	 	 	 
	 
	 

	 	 

(Attention)
	 	 






VIII. Lender’s Fed Wire Payment Instructions:




	 	 	 	 	 

	Pay to:
	 	 	 	 
	 
	 	 	 	 
	 

	 	 

(Bank Name)
	 	 
	 
	 	 	 	 
	 
	 

	 	 

(ABA #)
	 	 
	 
	 	 	 	 
	 
	 

	 	 

(Account #)
	 	 
	 
	 	 	 	 
	 
	 

	 	 

(Attention)
	 	 











2









 








ADMINISTRATIVE DETAILS REPLY FORM — US DOLLAR ONLY

CONFIDENTIAL




IX. Organizational Structure and Tax Status



Please refer to the enclosed withholding tax instructions below and then complete this section
accordingly:



 




			
	Lender Taxpayer Identification Number (TIN):
	 	___ ___-___ ___ ___ ___ ___ ___





Tax Withholding Form Delivered to Bank of America*:




	 	 	 

	 


	 	W-9 
	 
	 	 
	 


	 	W-8BEN 
	 
	 	 
	 


	 	W-8ECI 
	 
	 	 
	 


	 	W-8EXP 
	 
	 	 
	 


	 	W-8IMY 






	 	 	 	 	 
	 	 	Tax Contact	 	 
	Name:
	 	 	 	 
	 
	 

	 	 

	 	 
	Title:
	 	 	 	 
	 
	 

	 	 	 	 
	Address:
	 	 	 	 
	 
	 

	 	 	 	 
	 
	 	 	 	 
	 
	 

	 	 	 	 
	Telephone:
	 	 	 	 
	 
	 

	 	 	 	 
	Facsimile:
	 	 	 	 
	 
	 

	 	 	 	 
	E Mail Address:
	 	 	 	 
	 
	 

	 	 	 	 




NON—U.S. LENDER INSTITUTIONS



1. Corporations:



If your institution is incorporated outside of the United States for U.S. federal income tax
purposes, and is the beneficial owner of the interest and other income it receives, you must
complete one of the following three tax forms, as applicable to your institution: a.) Form W-8BEN
(Certificate of Foreign Status of Beneficial Owner), b.) Form W-8ECI (Income Effectively Connected
to a U.S. Trade or Business), or c.) Form W-8EXP (Certificate of Foreign Government or Governmental
Agency).



A U.S. taxpayer identification number is required for any institution submitting a Form W-8 ECI.
It is also required on Form W-8BEN for certain institutions claiming the benefits of a tax treaty
with the U.S. Please refer to the instructions when completing the form applicable to your
institution. In addition, please be advised that U.S. tax regulations do not permit the acceptance
of faxed forms. An original tax form must be submitted.









3









 








ADMINISTRATIVE DETAILS REPLY FORM — US DOLLAR ONLY

CONFIDENTIAL



2. Flow-Through Entities



If your institution is organized outside the U.S., and is classified for U.S. federal income tax
purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-U.S.
flow-through entity, an original Form W-8IMY (Certificate of Foreign Intermediary, Foreign
Flow-Through Entity, or Certain U.S. branches for United States Tax Withholding) must be completed
by the intermediary together with a withholding statement. Flow-through entities other than
Qualified Intermediaries are required to include tax forms for each of the underlying beneficial
owners.



Please refer to the instructions when completing this form. In addition, please be advised that
U.S. tax regulations do not permit the acceptance of faxed forms. Original tax form(s) must be
submitted.



U.S. LENDER INSTITUTIONS:



If your institution is incorporated or organized within the United States, you must complete and
return Form W-9 (Request for Taxpayer Identification Number and Certification). Please be advised
that we require an original form W-9.



Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax
form for your institution must be completed and returned on or prior to the date on which your
institution becomes a lender under this Credit Agreement. Failure to provide the proper tax form
when requested will subject your institution to U.S. tax withholding.






 




			
	* Additional guidance and instructions as to where to submit this documentation can be found at this
link:










Pay To:




Bank of America, N.A.

ABA# 026009593

Bank of America New York, NY

Account # 1292000883

Account Name: Credit Services

Ref: Basic Energy








4