exv4w2






Exhibit 4.2




EXECUTION VERSION




      




$600,000,000




CREDIT AGREEMENT



among



GARTNER, INC.,



as Borrower,



The Several Lenders from Time to Time Parties Hereto,



WELLS FARGO BANK, NATIONAL ASSOCIATION and RBS CITIZENS, N.A.,



as Co-Syndication Agents,



and



JPMORGAN CHASE BANK, N.A.,



as Administrative Agent



Dated as of December 22, 2010



      




J.P. MORGAN SECURITIES LLC, WELLS FARGO SECURITIES, LLC, and RBS CITIZENS, N.A.,




as Joint Lead Arrangers



and



J.P. MORGAN SECURITIES LLC, WELLS FARGO SECURITIES, LLC and RBS CITIZENS, N.A., as



Joint Bookrunners









 



 


TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	SECTION 1. DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	1.1 Defined Terms
	 	 	1	 
	1.2 Other Definitional Provisions
	 	 	18	 
	 
	 	 	 	 
	SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
	 	 	19	 
	 
	 	 	 	 
	2.1 Term Commitments
	 	 	19	 
	2.2 Procedure for Term Loan Borrowin
	 	 	20	 
	2.3 Repayment of Term Loans
	 	 	20	 
	2.4 Revolving Commitments
	 	 	21	 
	2.5 Procedure for Revolving Loan Borrowing
	 	 	22	 
	2.6 Commitment Fees, etc
	 	 	23	 
	2.7 Termination or Reduction of Revolving Commitments
	 	 	23	 
	2.8 Optional Prepayments
	 	 	23	 
	2.9 Mandatory Prepayments and Commitment Reductions
	 	 	23	 
	2.10 Conversion and Continuation Options
	 	 	24	 
	2.11 Limitations on Eurodollar Tranches
	 	 	24	 
	2.12 Interest Rates and Payment Dates
	 	 	24	 
	2.13 Computation of Interest and Fees
	 	 	25	 
	2.14 Inability to Determine Interest Rate
	 	 	25	 
	2.15 Pro Rata Treatment and Payments
	 	 	25	 
	2.16 Requirements of Law
	 	 	27	 
	2.17 Taxes
	 	 	28	 
	2.18 Indemnity
	 	 	30	 
	2.19 Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	31	 
	2.20 Mitigation Obligations; Replacement of Lenders
	 	 	31	 
	2.21 Defaulting Lenders
	 	 	32	 
	 
	 	 	 	 
	SECTION 3. LETTERS OF CREDIT
	 	 	33	 
	 
	 	 	 	 
	3.1 L/C Commitment
	 	 	33	 
	3.2 Procedure for Issuance of Letter of Credit
	 	 	33	 
	3.3 Fees and Other Charges
	 	 	34	 
	3.4 L/C Participations
	 	 	34	 
	3.5 Reimbursement Obligation of the Borrower
	 	 	35	 
	3.6 Obligations Absolute
	 	 	36	 
	3.7 Letter of Credit Payments
	 	 	36	 
	3.8 Applications
	 	 	36	 
	 
	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES
	 	 	36	 
	 
	 	 	 	 
	4.1 Financial Condition
	 	 	36	 
	4.2 No Change
	 	 	37	 
	4.3 Existence; Compliance with Law
	 	 	37	 
	4.4 Power; Authorization; Enforceable Obligations
	 	 	37	 
	4.5 No Legal Bar
	 	 	37	 












 



 


	 	 	 	 	 
	 	 	Page	 
	4.6 Litigation
	 	 	38	 
	4.7 No Default
	 	 	38	 
	4.8 Ownership of Property; Liens
	 	 	38	 
	4.9 Intellectual Property
	 	 	38	 
	4.10 Taxes
	 	 	38	 
	4.11 Federal Regulations
	 	 	38	 
	4.12 Labor Matters
	 	 	39	 
	4.13 ERISA
	 	 	39	 
	4.14 Investment Company Act; Other Regulations
	 	 	39	 
	4.15 Subsidiaries
	 	 	39	 
	4.16 Use of Proceeds
	 	 	39	 
	4.17 Environmental Matters
	 	 	39	 
	4.18 Accuracy of Information, etc
	 	 	40	 
	4.19 Solvency
	 	 	40	 
	 
	 	 	 	 
	SECTION 5. CONDITIONS PRECEDENT
	 	 	40	 
	 
	 	 	 	 
	5.1 Conditions to Initial Extension of Credit
	 	 	40	 
	5.2 Conditions to Each Extension of Credit
	 	 	41	 
	 
	 	 	 	 
	SECTION 6. AFFIRMATIVE COVENANTS
	 	 	42	 
	 
	 	 	 	 
	6.1 Financial Statements
	 	 	42	 
	6.2 Certificates; Other Information
	 	 	43	 
	6.3 Payment of Obligations
	 	 	44	 
	6.4 Maintenance of Existence; Compliance
	 	 	44	 
	6.5 Maintenance of Property; Insurance
	 	 	44	 
	6.6 Inspection of Property; Books and Records; Discussions
	 	 	44	 
	6.7 Notices
	 	 	44	 
	6.8 Environmental Laws
	 	 	45	 
	6.9 Additional Subsidiaries
	 	 	45	 
	 
	 	 	 	 
	SECTION 7. NEGATIVE COVENANTS
	 	 	45	 
	 
	 	 	 	 
	7.1 Financial Condition Covenants
	 	 	46	 
	7.2 Indebtedness
	 	 	46	 
	7.3 Liens
	 	 	47	 
	7.4 Fundamental Changes
	 	 	49	 
	7.5 Disposition of Property
	 	 	50	 
	7.6 Restricted Payments
	 	 	51	 
	7.7 Reserved
	 	 	52	 
	7.8 Investments
	 	 	52	 
	7.9 Transactions with Affiliates
	 	 	54	 
	7.10 Sales and Leasebacks
	 	 	54	 
	7.11 Swap Agreements
	 	 	54	 
	7.12 Changes in Fiscal Periods
	 	 	54	 
	7.13 Negative Pledge Clauses
	 	 	54	 
	7.14 Clauses Restricting Subsidiary Distributions
	 	 	55	 
	7.15 Lines of Business
	 	 	55	 












 



 


	 	 	 	 	 
	 	 	Page	 
	SECTION 8. EVENTS OF DEFAULT
	 	 	55	 
	 
	 	 	 	 
	8.1 Events of Default
	 	 	55	 
	 
	 	 	 	 
	SECTION 9. THE AGENTS
	 	 	58	 
	 
	 	 	 	 
	9.1 Appointment
	 	 	58	 
	9.2 Delegation of Duties
	 	 	58	 
	9.3 Exculpatory Provisions
	 	 	58	 
	9.4 Reliance by Administrative Agent
	 	 	58	 
	9.5 Notice of Default
	 	 	59	 
	9.6 Non-Reliance on Agents and Other Lenders
	 	 	59	 
	9.7 Indemnification
	 	 	59	 
	9.8 Agent in Its Individual Capacity
	 	 	60	 
	9.9 Successor Administrative Agent
	 	 	60	 
	9.10 Co-Syndication Agents
	 	 	60	 
	 
	 	 	 	 
	SECTION 10. MISCELLANEOUS
	 	 	60	 
	 
	 	 	 	 
	10.1 Amendments and Waivers
	 	 	60	 
	10.2 Notices
	 	 	62	 
	10.3 No Waiver; Cumulative Remedies
	 	 	63	 
	10.4 Survival of Representations and Warranties
	 	 	63	 
	10.5 Payment of Expenses and Taxes
	 	 	63	 
	10.6 Successors and Assigns; Participations and Assignments
	 	 	64	 
	10.7 Adjustments; Set-off
	 	 	66	 
	10.8 Counterparts
	 	 	67	 
	10.9 Severability
	 	 	67	 
	10.10 Integration
	 	 	67	 
	10.11 GOVERNING LAW
	 	 	67	 
	10.12 Submission To Jurisdiction; Waivers
	 	 	67	 
	10.13 Acknowledgements
	 	 	68	 
	10.14 Releases of Guarantees
	 	 	68	 
	10.15 Confidentiality
	 	 	69	 
	10.16 WAIVERS OF JURY TRIAL
	 	 	69	 
	10.17 USA PATRIOT Act
	 	 	69	 












 



 


	 	 	 

	SCHEDULES:
	 
	 	 
	1.1A

	 	Commitments
	4.6

	 	Litigation
	4.9

	 	Intellectual Property
	4.10

	 	Tax Claims
	4.15

	 	Subsidiaries
	7.2(d)

	 	Existing Indebtedness
	7.3(f)

	 	Existing Liens
	7.8(e)

	 	Existing Investments
	 
	 	 
	EXHIBITS:
 
	A

	 	Form of Guarantee
	B

	 	Form of Compliance Certificate
	C

	 	Form of Closing Certificate
	D

	 	Form of Assignment and Assumption
	E

	 	Form of Legal Opinion of Sullivan & Cromwell LLP
	F

	 	Form of Exemption Certificate
	G

	 	Form of Increasing Lender Supplement
	H

	 	Form of Augmenting Lender Supplement












 



 


     CREDIT AGREEMENT (this “Agreement”), dated as of December 22, 2010 among GARTNER,
INC., a Delaware corporation (the “Borrower”), the several banks and other financial
institutions or entities from time to time parties to this Agreement (the “Lender”), WELLS
FARGO BANK, NATIONAL ASSOCIATION and RBS CITIZENS, N.A., as co-syndication agents (in such
capacity, the “Co-Syndication Agents”), and JPMORGAN CHASE BANK, N.A., as administrative
agent (the “Administrative Agent”).



     The parties hereto hereby agree as follows:



SECTION 1. DEFINITIONS




     1.1 Defined Terms. As used in this Agreement, the terms listed in this Section 1.1 shall have the respective
meanings set forth in this Section 1.1.



     “ABR”: for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1% and (c) the Eurodollar Rate that would be
calculated as of such day (or, if such day is not a Business Day, as of the next preceding Business
Day) in respect of a proposed Eurodollar Loan with a one-month Interest Period plus 1.0%.
Any change in the ABR due to a change in the Prime Rate, the Federal Funds Effective Rate or such
Eurodollar Rate shall be effective as of the opening of business on the day of such change in the
Prime Rate, the Federal Funds Effective Rate or such Eurodollar Rate, respectively.



     “ABR Loans”: Loans the rate of interest applicable to which is based upon the ABR.



     “Adjustment Date”: as defined in the definition of Applicable Margin.



     “Administrative Agent”: JPMorgan Chase Bank, together with its affiliates, as the
arranger of the Commitments and as the administrative agent for the Lenders under this Agreement
and the other Loan Documents, together with any of its successors.



     “Affiliate”: as to any Person, any other Person that, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person. For purposes of this
definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 20%
or more of the securities having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.



     “Agents”: the collective reference to the Co-Syndication Agents and the
Administrative Agent.



     “Aggregate Exposure”: with respect to any Lender at any time, an amount equal to (a)
until the Closing Date, the aggregate amount of such Lender’s Commitments at such time and (b)
thereafter, the sum of (i) the aggregate then unpaid principal amount of such Lender’s Term Loans
and (ii) the amount of such Lender’s Revolving Commitment then in effect or, if the Revolving
Commitments have been terminated, the amount of such Lender’s Revolving Extensions of Credit then
outstanding.



     “Aggregate Exposure Percentage”: with respect to any Lender at any time, the ratio
(expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate
Exposure of all
Lenders at such time; provided, that in the case of Section 2.21 when a
Defaulting Lender shall exist, “Aggregate Exposure Percentage” shall mean the percentage of the
Aggregate Exposure of all









 



 


 2



Lenders (disregarding any Defaulting Lender’s Aggregate Exposure)
represented by such Lender’s Aggregate Exposure. If the Commitments have terminated or expired, the
Aggregate Exposure Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments and to any Lender’s status as a Defaulting Lender at the
time of determination.




     “Agreement”: as defined in the preamble hereto.



     “Applicable Margin”: for each Type of Loan or the Commitment Fee Rate, the rate per
annum set forth under the relevant column heading below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Consolidated	 	Applicable Margin	 	Applicable Margin	 	Commitment Fee
	Level	 	 	 	 	 	Leverage Ratio	 	for Eurodollar Loans	 	for ABR Loans	 	Rate
	I
	 	 	 	 	 	> 2.50 to 1.00	 	 	2.25	%	 	 	1.25	%	 	 	0.40	%
	 
	 	 	 	 	 	> 1.75 to 1.00 <	 	 	 	 	 	 	 	 	 	 	 	 
	II
	 	 	 	 	 	 	2.50 to 1.00	 	 	 	2.00	%	 	 	1.00	%	 	 	0.35	%
	 
	 	 	 	 	 	> 1.00 to 1.00 <	 	 	 	 	 	 	 	 	 	 	 	 
	III
	 	 	 	 	 	 	1.75 to 1.00	 	 	 	1.75	%	 	 	0.75	%	 	 	0.30	%
	IV
	 	 	 	 	 	< 1.00 to 1.00	 	 	1.50	%	 	 	0.50	%	 	 	0.25	%






The Applicable Margin on the Closing Date and through the first two full fiscal quarters of the
Borrower completed after the Closing Date shall be no less than the rate per annum set forth in
Level II above. Changes in the Applicable Margin resulting from changes in the Consolidated
Leverage Ratio shall become effective on the date (the “Adjustment Date”) that is three
Business Days after the date on which financial statements are delivered to the Lenders pursuant to
Section 6.1 and shall remain in effect until the next change to be effected pursuant to this
paragraph. If any financial statements referred to above are not delivered within the time periods
specified in Section 6.1, then, until the date that is three Business Days after the date on which
such financial statements are delivered, the highest Applicable Margin shall apply. Each
determination of the Consolidated Leverage Ratio pursuant hereto shall be made in a manner
consistent with the determination thereof pursuant to Section 7.1(a).




     “Application”: an application, in such form as the Issuing Lender may specify from
time to time, requesting the Issuing Lender to open a Letter of Credit.



     “Approved Fund”: as defined in Section 10.6(b).



     “Asset Sale”: any Disposition of property or series of related Dispositions of
property (excluding any such Disposition permitted by clause (a), (b), (c), (d), (e) or (g) of
Section 7.5) that yields gross proceeds to any Group Member (valued at the initial principal amount
thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at
fair market value in the case of other non-cash proceeds) in excess of $50,000,000.



     “Assignee”: as defined in Section 10.6(b).



     “Assignment and Assumption”: an Assignment and Assumption, substantially in the form
of Exhibit D.



     “Augmenting Revolving Lender”: as defined in Section 2.4(b).









 



3


     “Augmenting Term Lender”: as defined in Section 2.1(b).



     “Available Revolving Commitment”: as to any Revolving Lender at any time, an amount
equal to the excess, if any, of (a) such Lender’s Revolving Commitment then in effect over
(b) such Lender’s Revolving Extensions of Credit then outstanding.



     “Bankruptcy Event”: with respect to any Person, such Person becomes the subject of a
bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator,
custodian, assignee for the benefit of creditors or similar Person charged with the reorganization
or liquidation of its business appointed for it, or in the good faith determination of the
Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment, provided that a
Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of
any ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such
Person with immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such Person (or such
Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts
or agreements made by such Person.



     “Benefitted Lender”: as defined in Section 10.7(a).



     “Board”: the Board of Governors of the Federal Reserve System of the United States
(or any successor).



     “Borrower”: as defined in the preamble hereto.



     “Borrowing Date”: any Business Day specified by the Borrower as a date on which the
Borrower requests the relevant Lenders to make Loans hereunder.



     “Business Day”: a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close, provided, that with
respect to notices and determinations in connection with, and payments of principal and interest
on, Eurodollar Loans, such day is also a day for trading by and between banks in Dollar deposits in
the interbank eurodollar market.



     “Capital Lease Obligations”: as to any Person, the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes
of this Agreement, the amount of such obligations at any time shall be the capitalized amount
thereof at such time determined in accordance with GAAP.



     “Capital Stock”: any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants, rights or options to purchase any
of the foregoing.



     “Cash Equivalents”: (a) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States Government or issued by any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within one year from the date of
acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank
deposits having maturities of six months or less from the date of acquisition issued by any Lender
(or any Affiliate or









 



4

Subsidiary thereof) or by any commercial bank organized under the laws of the United States or
any state thereof having combined capital and surplus of not less than $500,000,000; (c) commercial
paper of an issuer rated at least A-1 by Standard & Poor’s Ratings Services (“S&P”) or P-1
by Moody’s Investors Service, Inc. (“Moody’s”), or carrying an equivalent rating by a
nationally recognized rating agency, if both of the two named rating agencies cease publishing
ratings of commercial paper issuers generally (or any Affiliate or Subsidiary thereof), and
maturing within six months from the date of acquisition; (d) repurchase obligations of any Lender
or of any commercial bank satisfying the requirements of clause (b) of this definition, having a
term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by
the United States government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory of the United
States, by any political subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state, commonwealth, territory,
political subdivision, taxing authority or foreign government (as the case may be) are rated at
least A by S&P or A by Moody’s; (f) securities with maturities of six months or less from the date
of acquisition backed by standby letters of credit issued by any Lender (or any Affiliate or
Subsidiary thereof) or any commercial bank satisfying the requirements of clause (b) of this
definition; (g) money market mutual or similar funds that invest primarily in assets satisfying the
requirements of clauses (a) through (f) of this definition; or (h) money market funds that (i)
comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as
amended, (ii) are rated A by S&P and A1 by Moody’s and (iii) have portfolio assets of at least
$5,000,000,000.




     “Closing Date”: the date on which the conditions precedent set forth in Section 5.1
shall have been satisfied.



     “Co-Syndication Agent”: as defined in the preamble hereto.



     “Code”: the Internal Revenue Code of 1986, as amended from time to time.



     “Commitment”: as to any Lender, the sum of the Term Commitment and the Revolving
Commitment of such Lender.



     “Commitment Fee Rate”: at any date, the rate set forth under the heading “Commitment
Fee Rate” in the definition of Applicable Margin.



     “Commonly Controlled Entity”: an entity, whether or not incorporated, that is under
common control with the Borrower within the meaning of Section 4001 of ERISA or is part of a group
that includes the Borrower and that is treated as a single employer under Section 414 of the Code.



     “Compliance Certificate”: a certificate duly executed by a Responsible Officer
substantially in the form of Exhibit B.



     “Conduit Lender”: any special purpose corporation organized and administered by any
Lender for the purpose of making Loans otherwise required to be made by such Lender and designated
by such Lender in a written instrument; provided, that the designation by any Lender of a
Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan
under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the
designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to
deliver all consents and waivers required or requested under this Agreement with respect to its
Conduit Lender, and provided, further, that no Conduit Lender shall (a) be entitled
to receive any greater amount pursuant to Section 2.16, 2.17, 2.18 or 10.5 than the designating
Lender would have been entitled to receive in respect of the extensions of credit made by such
Conduit Lender or (b) be deemed to have any Commitment.









 



5


     “Confidential Information Memorandum”: the Confidential Information Memorandum dated
November 2010 and furnished to certain Lenders.



     “Consolidated EBITDA”: for any period, Consolidated Net Income for such period
plus, without duplication and to the extent reflected as a charge in the statement of such
Consolidated Net Income for such period, the sum of (a) income tax expense, (b) interest expense,
amortization or writeoff of debt discount and debt issuance costs and commissions, discounts and
other fees and charges associated with Indebtedness (including the Loans), (c) depreciation,
accretion and amortization expense, (d) amortization of intangibles (including, but not limited to,
goodwill) and organization costs, (e) any extraordinary, unusual or non-recurring expenses or
losses not to exceed 12.50% of Consolidated EBITDA for any fiscal year (calculated on a Pro Forma
Basis) and any extraordinary non-cash or non-recurring non-cash expenses or losses (each including,
in any event, (i) compensation charges or other expenses or charges arising from the grant of or
issuance of stock, stock options, other equity-based awards, stock appreciation rights or
restricted stock units to the directors, officers and employees of the Borrower and its
Subsidiaries, (ii) loss on investments excluding marketable securities, (iii) writeoffs of fixed
assets not included in depreciation, and (iv) writeoffs or impairment of any goodwill or intangible
assets), (f) costs and expenses incurred in connection with Permitted Acquisitions (as defined in
Section 7.4), Material Dispositions, and debt issuances or equity financings, including
restructuring and integration expenses (to the extent not consummated, not to exceed $25,000,000),
(g) non-cash charges related to the application of purchase accounting for Permitted Acquisitions,
(h) non-cash losses relating to hedging activities, (i) charges taken related to stock repurchases,
and (j) any other non-cash charges and minus, (a) to the extent included in the statement
of such Consolidated Net Income for such period, the sum of (i) interest income, (ii) any
extraordinary non-cash or non-recurring non-cash income or gains (including, whether or not
otherwise includable as a separate item in the statement of such Consolidated Net Income for such
period) in the ordinary course of business), (iii) income tax credits (to the extent not netted
from income tax expense), and (iv) any other non-cash income (other than accruals of revenue by the
Borrower and its Subsidiaries in the ordinary course of business) and (b) any cash payments made
during such period in respect of items described in clauses (e)(i) and (j) above subsequent to the
fiscal quarter in which the relevant non-cash expenses or losses were reflected as a charge in the
statement of Consolidated Net Income, all as determined on a consolidated basis.



     “Consolidated Interest Expense”: for any period, total cash interest expense
(including that attributable to Capital Lease Obligations) of the Borrower and its Subsidiaries for
such period with respect to all outstanding Indebtedness of the Borrower and its Subsidiaries
(including all commissions, discounts and other fees and charges owed with respect to letters of
credit and bankers’ acceptance financing and net payments made (less net payments, if any,
received) under Swap Agreements in respect of interest rates to the extent such net payments are
allocable to such period in accordance with GAAP) minus, to the extent included in cash interest
expense, any payments required in connection with the termination of any Swap Agreements and all
premiums paid, gains/losses incurred, charges and fees paid, in each case by the Borrower and its
Subsidiaries in connection with the redemption, repurchase or retirement of Indebtedness.



     “Consolidated Interest Expense Ratio”: for any period, the ratio of (a) Consolidated
EBITDA for such period to (b) Consolidated Interest Expense for such period.



     “Consolidated Leverage Ratio”: as at the last day of any period, the ratio of (a)
Consolidated Total Debt on such day to (b) Consolidated EBITDA for such period.



     “Consolidated Net Income”: for any period, the consolidated net income (or loss) of
the Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded (a) the income (or deficit) of any Person accrued
prior to the date it becomes a









 



6

Subsidiary of the Borrower or, other than an existing Subsidiary, is merged into or
consolidated with the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any
Person (other than a Subsidiary of the Borrower) in which the Borrower or any of its Subsidiaries
has an ownership interest, except to the extent that any such income is actually received by the
Borrower or such Subsidiary in the form of dividends or similar distributions, (c) the
undistributed earnings of any Subsidiary of the Borrower to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary to the Borrower or another
Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than
under any Loan Document) or Requirement of Law applicable to such Subsidiary, (d) any gain (or
loss) realized upon the sale or other disposition of any assets of the Borrower or any Subsidiary
(including pursuant to any sale and leaseback arrangement) which is not sold or otherwise disposed
of in the ordinary course of business, (e) any net after-tax gain (loss) attributable to the early
repurchase, extinguishment or conversion of Indebtedness, hedging obligations or other derivative
instruments, (f) any unrealized foreign currency gains or losses in respect of Indebtedness of any
Person denominated in a currency other than the functional currency of such Person, and (g) any
income or loss from discontinued operations.




     “Consolidated Total Debt”: at any date, the aggregate principal amount of all
Indebtedness of the Borrower and its Subsidiaries at such date, determined on a consolidated basis
in accordance with GAAP.



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



     “Credit Party”: the Administrative Agent, the Issuing Lender or any other Lender.



     “Default”: any of the events specified in Section 8, whether or not any requirement
for the giving of notice, the lapse of time, or both, has been satisfied.



     “Defaulting Lender”: any Lender that (a) has failed, within two Business Days of the
date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of
its participations in Letters of Credit or (iii) pay over to any Credit Party any other amount
required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies
the Administrative Agent in writing that such failure is the result of such Lender’s good faith
determination that a condition precedent to funding (specifically identified and including the
particular default, if any) has not been satisfied, (b) has notified the Borrower or any Credit
Party in writing, or has made a public statement to the effect, that it does not intend or expect
to comply with any of its funding obligations under this Agreement (unless such writing or public
statement indicates that such position is based on such Lender’s good faith determination that a
condition precedent (specifically identified and including the particular default, if any) to
funding a loan under this Agreement cannot be satisfied) or generally under other agreements in
which it commits to extend credit, (c) has failed, within three Business Days after request by a
Credit Party, acting in good faith, to provide a certification in writing from an authorized
officer of such Lender that it will comply with its obligations (and is financially able to meet
such obligations) to fund prospective Loans and participations in then outstanding Letters of
Credit under this Agreement, provided that such Lender shall cease to be a Defaulting Lender
pursuant to this clause (c) upon such Credit Party’s receipt of such certification in form and
substance satisfactory to it and the Administrative Agent, or (d) has become the subject of a
Bankruptcy Event.



     “Designated Foreign Currencies”: Australian dollars, Canadian dollars, Euros, Hong
Kong dollars, New Zealand dollars, Singapore dollars, Sterling, Swiss francs, Indian rupees, Korean
won, Mexican pesos and Yen.









 



7


     “Disposition”: with respect to any property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof. The terms “Dispose” and
“Disposed of” shall have correlative meanings.



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



     “Dollar Equivalent”: with respect to any amount in respect of any Letter of Credit
denominated in any Designated Foreign Currency, at any date of determination thereof, an amount in
Dollars equivalent to such amount calculated on the basis of the Spot Rate of Exchange.



     “Domestic Subsidiary”: any Subsidiary of the Borrower organized under the laws of any
jurisdiction within the United States.



     “Environmental Laws”: any and all applicable foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of
any Governmental Authority or other Requirements of Law (including common law) regulating, relating
to or imposing liability or standards of conduct concerning protection of human health as it
relates to any Materials of Environmental Concern, or the protection of the environment, as now or
may at any time hereafter be in effect.



     “ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to
time.



     “Eurocurrency Reserve Requirements”: for any day as applied to a Eurodollar Loan, the
aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve
requirements in effect on such day (including basic, supplemental, marginal and emergency reserves)
under any regulations of the Board or other Governmental Authority having jurisdiction with respect
thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred
to as “Eurocurrency Liabilities” in Regulation D of the Board) maintained by a member bank of the
Federal Reserve System.



     “Eurodollar Base Rate”: with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, the rate per annum determined on the basis of the rate for
deposits in Dollars for a period equal to such Interest Period commencing on the first day of such
Interest Period appearing on the Reuters Screen LIBOR01 Page as of 11:00 A.M., London time, two
Business Days prior to the beginning of such Interest Period. In the event that such rate does not
appear on such page (or otherwise on such screen), the “Eurodollar Base Rate” shall be
determined by reference to such other comparable publicly available service for displaying
eurodollar rates as may be selected by the Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Administrative Agent is offered Dollar deposits
at or about 11:00 A.M., New York City time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the first day of such Interest Period
for the number of days comprised therein.



     “Eurodollar Loans”: Loans the rate of interest applicable to which is based upon the
Eurodollar Rate.



     “Eurodollar Rate”: with respect to each day during each Interest Period pertaining to
a Eurodollar Loan, a rate per annum determined for such day in accordance with the following
formula (rounded upward to the nearest 1/100,000th of 1%):









 



8


	 	 	 

	Eurodollar Base Rate
	 	 
	 

1.00 — Eurocurrency Reserve Requirements

	 	 






     “Eurodollar Tranche”: the collective reference to Eurodollar Loans under a particular
Facility the then current Interest Periods with respect to all of which begin on the same date and
end on the same later date (whether or not such Loans shall originally have been made on the same
day).



     “Event of Default”: any of the events specified in Section 8, provided that
any requirement for the giving of notice, the lapse of time, or both, has been satisfied.



     “Exchange Act”: as defined in Section 8.1(j).



     “Existing Credit Agreement”: the credit agreement dated as of January 31, 2007, among
the Borrower, the several lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as
the administrative agent, and the other agents party thereto, as amended.



     “Facility”: each of (a) the Term Commitments and the Term Loans made thereunder (the
“Term Facility”) and (b) the Revolving Commitments and the extensions of credit made
thereunder (the “Revolving Facility”).



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



     “Federal Funds Effective Rate”: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day, the average of the
quotations for the day of such transactions received by JPMorgan Chase Bank from three federal
funds brokers of recognized standing selected by it.



     “Fee Payment Date”: (a) the third Business Day following the last day of each March,
June, September and December and (b) the last day of the Revolving Commitment Period.



     “Foreign Subsidiary”: any Subsidiary of the Borrower that is not a Domestic
Subsidiary.



     “Funding Office”: the office of the Administrative Agent specified in Section 10.2 or
such other office as may be specified from time to time by the Administrative Agent as its funding
office by written notice to the Borrower and the Lenders.



     “GAAP”: generally accepted accounting principles in the United States as in effect
from time to time, except that for purposes of Section 7.1, GAAP shall be determined on the basis
of such principles in effect on the date hereof and consistent with those used in the preparation
of the most recent audited financial statements referred to in Section 4.1. In the event that any
“Accounting Change” (as defined below) shall occur and such change results in a change in the
method of calculation of financial covenants, standards or terms in this Agreement, then the
Borrower and the Administrative Agent agree to enter into negotiations in order to amend such
provisions of this Agreement so as to reflect equitably such Accounting Changes with the desired
result that the criteria for evaluating the Borrower’s financial condition shall be the same after
such Accounting Changes as if such Accounting Changes had not been made. Until such time as such
an amendment shall have been executed and delivered by the Borrower, the Administrative Agent and
the Required Lenders, all financial covenants, standards and terms in this Agreement shall continue
to be calculated or construed as if such Accounting Changes had not occurred.









 



9

“Accounting Changes” refers to changes in accounting principles required by (x) the
promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants or, if applicable, the
SEC, or (y) the adoption by the Borrower of International Financial Reporting Standards.




     “Governmental Authority”: any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
functions of or pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).



     “Group Members”: the collective reference to the Borrower and its respective
Subsidiaries.



     “Guarantee”: the Guarantee to be executed and delivered by each Subsidiary Guarantor,
substantially in the form of Exhibit A.



     “Guarantee Obligation”: as to any Person (the “guaranteeing person”), any
obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing
person that guarantees or in effect guarantees, or which is given to induce the creation of a
separate obligation by another Person (including any bank under any letter of credit) that
guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the
“primary obligations”) of any other third Person (the “primary obligor”) in any
manner, whether directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability
in respect thereof as determined by the Borrower in good faith.



     “Increasing Revolving Lender”: as defined in Section 2.4(b).



     “Increasing Term Lender”: as defined in section 2.1(b).



     “Incremental Amendment”: as defined in Section 2.1(b).



     “Incremental Extensions of Credit”: as defined in Section 2.1(b).



     “Incremental Facility Closing Date”: as defined in Section 2.1(b).



     “Incremental Term Loans”: as defined in Section 2.1(b).









 



10


     “Incremental Yield”: as defined in Section 2.1(b).



     “Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price or deferred consideration or similar arrangements in respect of property or services (other
than current trade payables incurred in the ordinary course of such Person’s business), (c) all
obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d)
all indebtedness created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even though the rights and remedies of the seller
or lender under such agreement in the event of default are limited to repossession or sale of such
property), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person,
contingent or otherwise, as an account party or applicant under or in respect of acceptances,
letters of credit, surety bonds or similar arrangements, (g) all Guarantee Obligations of such
Person in respect of obligations of the kind referred to in clauses (a) through (f) above, (h) all
obligations of the kind referred to in clauses (a) through (g) above secured by (or for which the
holder of such obligation has an existing right, contingent or otherwise, to be secured by) any
Lien on property (including accounts and contract rights) owned by such Person, whether or not such
Person has assumed or become liable for the payment of such obligation, and (i) for the purposes of
Section 8.1(e) only, all obligations of such Person in respect of Swap Agreements. For the
avoidance of doubt, neither deferred compensation nor any pension obligations or liabilities shall
be deemed to constitute ‘Indebtedness.” The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such Person’s ownership
interest in or other relationship with such entity, except to the extent the terms of such
Indebtedness expressly provide that such Person is not liable therefor.



     “Insolvency”: with respect to any Multiemployer Plan, the condition that such Plan is
insolvent within the meaning of Section 4245 of ERISA.



     “Insolvent”: pertaining to a condition of Insolvency.



     “Intellectual Property”: the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including, without limitation, copyrights, copyright licenses, patents,
patent licenses, domain names, trademarks, trademark licenses, technology, know-how and processes,
and all rights to sue at law or in equity for any infringement or other impairment thereof,
including the right to receive all proceeds and damages therefrom.



     “Interest Payment Date”: (a) as to any ABR Loan, the last day of each March, June,
September and December to occur while such Loan is outstanding and the final maturity date of such
Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or less, the last day
of such Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer than three
months, each day that is three months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period, and (d) as to any Loan (other than any
Revolving Loan that is an ABR Loan), the date of any repayment or prepayment made in respect
thereof.



     “Interest Period”: as to any Eurodollar Loan, (a) initially, the period commencing on
the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with respect thereto; and (b)
thereafter, each period commencing on the last day of the next preceding Interest Period applicable
to such Eurodollar Loan and ending one, two, three or six months thereafter, as selected by the
Borrower by irrevocable notice to the Administrative Agent not later than 11:00 A.M., New York City
time, on the date that is three Business Days prior to the




 











 




11




last day of the then current Interest Period with respect thereto; provided that, all
of the foregoing provisions relating to Interest Periods are subject to the following:





     (i) if any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately preceding Business Day;




     (ii) the Borrower may not select an Interest Period under a particular Facility that
would extend beyond the Revolving Termination Date or beyond the date final payment is due
on the Term Loans, as the case may be;




     (iii) 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 a calendar month; and




     (iv) the Borrower shall select Interest Periods so as not to require a payment or
prepayment of any Eurodollar Loan during an Interest Period for such Loan.



          “Investments”: as defined in Section 7.8.




          “Issuing Lender”: JPMorgan Chase Bank or any affiliate thereof, in its capacity as
issuer of any Letter of Credit.




          “JPMorgan Chase Bank”: JPMorgan Chase Bank, N.A.




          “L/C Commitment”: $40,000,000.




          “L/C Obligations”: at any time, an amount equal to the sum of (a) the aggregate then
undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount
of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.5.
The L/C Obligations in respect of any Letter of Credit in a Designated Foreign Currency shall be
deemed for the purposes of calculating the Available Revolving Commitments and similar amounts from
time to time and commitment fees and Letter of Credit and fronting fees to be equal to the Dollar
Equivalent of the amount of such Designated Foreign Currency as at the date of issuance thereof,
and such Dollar Equivalent shall be thereafter re-calculated by the Issuing Lender from time to
time in its discretion (but no less often than quarterly); any such determination by the Issuing
Lender of any such Dollar Equivalent amount shall be conclusive and binding on the other parties
hereto in the absence of manifest error.




          “L/C Participants”: the collective reference to all the Revolving Lenders other than
the Issuing Lender.




          “Lenders”: as defined in the preamble hereto; provided, that unless the
context otherwise requires, each reference herein to the Lenders shall be deemed to include any
Conduit Lender.




          “Letters of Credit”: as defined in Section 3.1(a).




          “Lien”: any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement of any kind or nature whatsoever
(including any










 



12

conditional sale or other title retention agreement and any capital lease having substantially
the same economic effect as any of the foregoing).




          “Loan”: any loan made by any Lender pursuant to this Agreement.




          “Loan Documents”: this Agreement, the Guarantee, the Notes and any amendment, waiver,
supplement or other modification to any of the foregoing.




          “Loan Parties”: each Group Member that is a party to a Loan Document.




          “Majority Facility Lenders”: with respect to any Facility, the holders of more than
50% of the aggregate unpaid principal amount of the Term Loans or the Total Revolving Extensions of
Credit, as the case may be, outstanding under such Facility (or, in the case of the Revolving
Facility, prior to any termination of the Revolving Commitments, the holders of more than 50% of
the Total Revolving Commitments).




          “Margin Stock”: “margin stock” as defined in Regulation U.




          “Material Acquisition”: any acquisition of assets or series of related acquisitions of
property that (a) constitutes assets comprising all or substantially all of an operating unit of a
business or constitutes all or substantially all of the common stock of a Person and (b) involves
the payment of consideration by the Borrower and its Subsidiaries in excess of $1,000,000.




          “Material Adverse Effect”: a material adverse effect on (a) the business, property,
operations, or financial condition of the Borrower and its Subsidiaries taken as a whole or (b) the
validity or enforceability of any of the material provisions of this Agreement or any of the other
Loan Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.




          “Material Disposition”: any Disposition of property or series of related Dispositions
of property that yields gross proceeds to the Borrower or any of its Subsidiaries in excess of
$1,000,000.




          “Material Subsidiary”: any Subsidiary of the Borrower that either (i) holds assets
having a total book value of greater than two percent (2%) of the total assets held by the Borrower
and its Subsidiaries taken as a whole (as determined as of the end of the fiscal quarter
immediately preceding the date of determination) or (ii) has revenues representing greater than
five percent (5%) of total revenues of the Borrower and its Subsidiaries taken as a whole (for the
period of four consecutive fiscal quarters most recently ended at or prior to such time and for
which financial statements are available); provided, that (x) any Subsidiary that directly
or indirectly owns a Material Subsidiary shall itself be a Material Subsidiary and (y) in the event
Subsidiaries that would otherwise not be Material Subsidiaries shall in the aggregate account for a
percentage in excess of 10% of the total assets attributable to the Borrower and its Subsidiaries
taken as a whole (as determined as of the end of the fiscal quarter immediately preceding the date
of determination) or 30% of the revenue of the Borrower and its Subsidiaries taken as a whole (for
the period of four consecutive fiscal quarters most recently ended at or prior to such time and for
which financial statements are available) then, in each case, one or more of such Subsidiaries
designated by the Borrower (or, if the Borrower shall make no designation, one or more of such
Subsidiaries in descending order based on their respective contributions to the total assets held
by the Borrower and its Subsidiaries taken as a whole), shall be included as Material Subsidiaries
to the extent necessary to eliminate such excess.




          “Materials of Environmental Concern”: any gasoline or petroleum (including crude oil
or any fraction thereof) or petroleum products, asbestos, polychlorinated biphenyls and
urea-formaldehyde










 



13

insulation and any other substances, materials or wastes, defined or regulated as “hazardous”
or “toxic”, under, or that could give rise to liability pursuant to, any Environmental Law.




          “Multiemployer Plan”: a Plan that is a multiemployer plan as defined in Section
4001(a)(3) of ERISA.




          “Net Cash Proceeds”: (a) in connection with any Asset Sale or any Recovery Event, the
proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by
way of deferred payment of principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received), net of attorneys’ fees,
accountants’ fees, investment banking fees, amounts required to be applied to the repayment of
Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject of
such Asset Sale or Recovery Event and other customary fees and expenses actually incurred in
connection therewith and net of taxes paid or reasonably estimated to be payable as a result
thereof (after taking into account any available tax credits or deductions and any tax sharing
arrangements) and (b) in connection with any issuance or sale of Capital Stock or any incurrence of
Indebtedness, the cash proceeds received from such issuance or incurrence, net of attorneys’ fees,
investment banking fees, accountants’ fees, underwriting discounts and commissions and other
customary fees and expenses actually incurred in connection therewith.




          “Non-Excluded Taxes”: as defined in Section 2.17(a).




          “Non-U.S. Lender”: as defined in Section 2.17(d).




          “Notes”: the collective reference to any promissory note evidencing Loans.




          “Obligations”: the unpaid principal of and interest on (including interest accruing
after the maturity of the Loans and Reimbursement Obligations and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the
Borrower to the Administrative Agent or to any Lender (or, in the case of Specified Swap
Agreements, any affiliate of any Lender), whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, any other Loan Document, the Letters of Credit, any Specified Swap
Agreement or any other document made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including all fees, charges and disbursements of counsel to the Administrative Agent or
to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise.




          “Other Taxes”: any and 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 from
the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document, including any interest, additions to tax or penalties applicable thereto.




          “Parent”: with respect to any Lender, any Person as to which such Lender is, directly
or indirectly, a subsidiary.




          “Participant”: as defined in Section 10.6(c).




          “Participant Register”: as defined in Section 10.6(c)(i).










 



14


          “PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A
of Title IV of ERISA (or any successor).




          “Permitted Acquisitions”: as defined in Section 7.4.




          “Permitted Preferred Stock”: preferred stock issued by the Borrower that (a) does not
require any repurchase or redemption (other than conversion or exchange into the common stock of
the Borrower), whether contingent or not, prior to the date that is eight months after the
Revolving Termination Date and (b) is in the Borrower’s good faith opinion on terms and conditions
customary in the relevant capital markets for preferred stock issued by issuers similar to the
Borrower.




          “Permitted Senior Unsecured Debt”: senior unsecured Indebtedness of the Borrower that
(a) requires no scheduled cash payments of principal and no mandatory repurchase or redemption
obligations prior to the date that is six months after the Revolving Termination Date, other than
in connection with a change of control of Borrower or similar event or an asset disposition and (b)
does not impose financial “maintenance” (as distinct from “incurrence”) covenants on the Borrower
or any of the Subsidiaries that are more restrictive than the maintenance covenants herein.




          “Permitted Subordinated Debt”: subordinated, unsecured Indebtedness of the Borrower
that (a) requires no scheduled cash payments of principal and no mandatory repurchase or redemption
obligations prior to the date that is six months after the Revolving Termination Date, other than
in connection with a change of control of Borrower or similar event or an asset disposition, (b)
does not impose financial “maintenance” (as distinct from “incurrence”) covenants on the Borrower
or any of the Subsidiaries that are more restrictive than the maintenance covenants herein, and (c)
contains customary subordination terms that are reasonably acceptable to the Administrative Agent.




          “Person”: an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.




          “Plan”: at a particular time, any employee benefit plan that is covered by ERISA and
in respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.




          “Prime Rate”: the rate of interest per annum publicly announced from time to time by
JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City (the
Prime Rate not being intended to be the lowest rate of interest charged by JPMorgan Chase Bank,
N.A. in connection with extensions of credit to debtors).




          “Pro Forma Basis”: with respect to any calculation made at any time that is, at any
date or for any period, after taking into account (a) any Material Acquisition or Material
Disposition and (b) any redemption, repurchase, retirement, defeasance, discharge or incurrence of
Indebtedness that has occurred by such time as though such Material Acquisition, Material
Disposition, redemption, repurchase, retirement, discharge or incurrence had occurred at or prior
to such date or on the first day of such period, as the case may be.




          “Projections”: as defined in Section 6.2(c).




          “Properties”: as defined in Section 4.17(a).










 



15


          “Recovery Event”: any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding relating to any asset of any Group Member.




          “Register”: as defined in Section 10.6(b).




          “Regulation U”: Regulation U of the Board as in effect from time to time.




          “Reimbursement Obligation”: the obligation of the Borrower to reimburse the Issuing
Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit.




          “Reimbursement Percentage”: as defined in Section 3.5.




          “Reinvestment Deferred Amount”: with respect to any Reinvestment Event, the aggregate
Net Cash Proceeds received by any Group Member in connection therewith that are not applied to
prepay the Term Loans pursuant to Section 2.9(c) as a result of the delivery of a Reinvestment
Notice.




          “Reinvestment Event”: any Asset Sale or Recovery Event in respect of which the
Borrower has delivered a Reinvestment Notice.




          “Reinvestment Notice”: a written notice executed by a Responsible Officer stating
that no Event of Default has occurred and is continuing and that the Borrower (directly or
indirectly through a Subsidiary) intends and expects to use all or a specified portion of the Net
Cash Proceeds of an Asset Sale or Recovery Event to acquire or repair assets useful in its
business.




          “Reinvestment Prepayment Amount”: with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant
Reinvestment Prepayment Date to acquire or repair assets useful in the Borrower’s business.




          “Reinvestment Prepayment Date”: with respect to any Reinvestment Event, the earlier
of (a) the date occurring twelve months after such Reinvestment Event and (b) the date on which the
Borrower shall have determined not to, or shall have otherwise ceased to, acquire or repair assets
useful in the Borrower’s business with all or any portion of the relevant Reinvestment Deferred
Amount.




          “Reorganization”: with respect to any Multiemployer Plan, the condition that such
plan is in reorganization within the meaning of Section 4241 of ERISA.




          “Reportable Event”: any of the events set forth in Section 4043(c) of ERISA, other
than those events as to which the thirty day notice period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg. § 4043.




          “Required Lenders”: at any time, the holders of more than 50% of (a) until the
Closing Date, the Commitments then in effect and (b) thereafter, the sum of (i) the aggregate
unpaid principal amount of the Term Loans then outstanding and (ii) the Total Revolving Commitments
then in effect or, if the Revolving Commitments have been terminated, the Total Revolving
Extensions of Credit then outstanding.




          “Requirement of Law”: as to any Person, the Certificate of Incorporation and By-Laws
or other organizational or governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.










 



16


          “Responsible Officer”: the chief executive officer, president, chief financial
officer, treasurer or assistant treasurer of the Borrower, but in any event, with respect to
financial matters, the chief financial officer, treasurer or assistant treasurer of the Borrower.




          “Restricted Payments”: as defined in Section 7.6.




          “Revolving Commitment”: as to any Lender, the obligation of such Lender, if any, to
make Revolving Loans and participate in Letters of Credit in an aggregate principal and/or face
amount not to exceed the amount set forth under the heading “Revolving Commitment” opposite such
Lender’s name on Schedule 1.1A or in the Assignment and Assumption pursuant to which such Lender
became a party hereto, as the same may be changed from time to time pursuant to the terms hereof.
The original amount of the Total Revolving Commitments is $400,000,000.




          “Revolving Commitment Period”: the period from and including the Closing Date to the
Revolving Termination Date.




          “Revolving Commitment Increase”: as defined in Section 2.4.




          “Revolving Extensions of Credit”: as to any Revolving Lender at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Revolving Loans held by such Lender
then outstanding and (b) such Lender’s Revolving Percentage of the L/C Obligations then
outstanding.




          “Revolving Facility”: as defined in the definition of Facility.




          “Revolving Lender”: each Lender that has a Revolving Commitment or that holds
Revolving Loans.




          “Revolving Loans”: as defined in Section 2.4(a).




          “Revolving Percentage”: as to any Revolving Lender at any time, the percentage which
such Lender’s Revolving Commitment then constitutes of the Total Revolving Commitments or, at any
time after the Revolving Commitments shall have expired or terminated, the percentage which the
aggregate principal amount of such Lender’s Revolving Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Loans then outstanding, provided, that, in the
event that the Revolving Loans are paid in full prior to the reduction to zero of the Total
Revolving Extensions of Credit, the Revolving Percentages shall be determined in a manner designed
to ensure that the other outstanding Revolving Extensions of Credit shall be held by the Revolving
Lenders on a comparable basis.




          “Revolving Termination Date”: December 22, 2015.




          “SEC”: the Securities and Exchange Commission, any successor thereto and any
analogous Governmental Authority.




          “Single Employer Plan”: any Plan that is covered by Title IV of ERISA, but that is
not a Multiemployer Plan.




          “Solvent”: when used with respect to any Person, means that, as of any date of
determination, (a) the amount of the “present fair saleable value” of the assets of such Person
will, as of such date, exceed the amount of all “liabilities of such Person, contingent or
otherwise”, as of such date, as such quoted terms are determined in accordance with applicable
federal and state laws governing










 



17

determinations of the insolvency of debtors, (b) the present fair saleable value of the assets
of such Person will, as of such date, be greater than the amount that will be required to pay the
liability of such Person on its debts as such debts become absolute and matured, (c) such Person
will not have, as of such date, an unreasonably small amount of capital with which to conduct its
business, and (d) such Person will be able to pay its debts as they mature. The amount of
contingent liabilities at any time shall be computed as the amount that, in light of all the facts
and circumstances existing at the time, represents the amount that would reasonably be expected to
become an actual or matured liability.




          “Specified Swap Agreement”: any Swap Agreement entered into by the Borrower and any
Lender or affiliate thereof at the time of entering into such Swap Agreement in respect of interest
rates, currency exchange rates or commodity prices.




          “Spot Rate of Exchange”: with respect to any Designated Foreign Currency, at any date
of determination thereof, the spot rate of exchange in London that appears on the display page
applicable to such Designated Foreign Currency on the Telerate System (or such other page as may
replace such page for the purpose of displaying the spot rate of exchange in London); provided that
if there shall at any time no longer exist such a page, the spot rate of exchange shall be
determined by reference to another similar rate publishing service selected by the Administrative
Agent and, if no such similar rate publishing service is available, by reference to the published
rate of the Administrative Agent in effect at such date for similar commercial transactions.




          “Subsidiary”: as to any Person, a corporation, partnership, limited liability company
or other entity of which shares of stock or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.




          “Subsidiary Guarantor”: each Domestic Subsidiary of the Borrower that is a Material
Subsidiary.




          “Swap Agreement”: any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or any of its Subsidiaries
shall be a “Swap Agreement”.




          “Term Commitment”: as to any Lender, the obligation of such Lender, if any, to make a
Term Loan to the Borrower in a principal amount not to exceed the amount set forth under the
heading “Term Commitment” opposite such Lender’s name on Schedule 1.1A. The original aggregate
amount of the Term Commitments is $200,000,000.




          “Term Commitment Increase”: as defined in Section 2.1.




          “Term Facility”: as defined in the definition of Facility.




          “Term Lender”: each Lender that has a Term Commitment or that holds a Term Loan.










 



18


          “Term Loan”: as defined in Section 2.1.




          “Term Percentage”: as to any Term Lender at any time, the percentage which such
Lender’s Term Commitment then constitutes of the aggregate Term Commitments (or, at any time after
the Closing Date, the percentage which the aggregate principal amount of such Lender’s Term Loans
then outstanding constitutes of the aggregate principal amount of the Term Loans then outstanding).




          “Total Revolving Commitments”: at any time, the aggregate amount of the Revolving
Commitments then in effect.




          “Total Revolving Extensions of Credit”: at any time, the aggregate amount of the
Revolving Extensions of Credit of the Revolving Lenders outstanding at such time.




          “Transferee”: any Assignee or Participant.




          “Type”: as to any Loan, its nature as an ABR Loan or a Eurodollar Loan.




          “United States”: the United States of America.




          “Weighted Average Life to Maturity”: when applied to any Indebtedness at any date,
the number of years obtained by dividing:





     (a) the sum of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect of the Indebtedness, by (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment; by




     (b) the then outstanding principal amount of such Indebtedness.



          “Wholly Owned Subsidiary”: as to any Person, any other Person all of the Capital
Stock of which (other than directors’ qualifying shares or similar third party share agreements
required by law) is owned by such Person directly and/or through other Wholly Owned Subsidiaries.




          “Wholly Owned Subsidiary Guarantor”: any Subsidiary Guarantor that is a Wholly Owned
Subsidiary of the Borrower.




          “Withholding Agent”: any Loan Party and the Administrative Agent.




          1.2 Other Definitional Provisions. (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the
defined meanings when used in the other Loan Documents or any certificate or other document made or
delivered pursuant hereto or thereto.




          (b) As used herein and in the other Loan Documents, and any certificate or other document made
or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group Member not
defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP (provided that,
notwithstanding anything to the contrary herein, all accounting or financial terms used herein
shall be construed, and all financial computations pursuant hereto shall be made, without giving
effect to any election under Statement of Financial Accounting Standards 159 (or any other
Financial Accounting Standard having a similar effect) to value any Indebtedness or other liabilities of any Group Member at “fair
value”, as defined therein), (ii) the words “include”, “includes” and “including” shall be deemed
to be followed by










 



19

the phrase “without limitation”, (iii) the word “incur” shall be construed to
mean incur, create, issue, assume, become liable in respect of or suffer to exist (and the words
“incurred” and “incurrence” shall have correlative meanings), (iv) 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, Capital Stock, securities, revenues, accounts,
leasehold interests and contract rights, and (v) references to agreements or other Contractual
Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual
Obligations as amended, supplemented, restated or otherwise modified from time to time.




          (c) The words “hereof”, “herein” and “hereunder” and words of similar import, when used in
this Agreement, shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.




          (d) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.




SECTION 2. AMOUNT AND TERMS OF COMMITMENTS




          2.1 Term Commitments. (a) Subject to the terms and conditions hereof, each Term Lender severally agrees to make a
term loan (a “Term Loan”) to the Borrower in Dollars on the Closing Date in an amount not
to exceed the amount of the Term Commitment of such Lender. The Term Loans may from time to time
be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Administrative
Agent in accordance with Sections 2.2 and 2.10.




          (b) (i) The Borrower may at any time or from time to time after the Closing Date, by notice to
the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each
of the Lenders), request one or more additional tranches of term loans (the “Incremental Term
Loans” and such borrowing, an “Incremental Extension of Credit”); provided that
both at the time of any such request and upon the effectiveness of any Incremental Amendment
referred to below, no Default or Event of Default shall exist. Each Incremental Extension of
Credit shall be in an aggregate principal amount that is not less than $5,000,000. Notwithstanding
anything to the contrary herein, the aggregate amount of any Incremental Extension of Credit, when
taken together with all other Incremental Extensions of Credit and all Revolving Commitment
Increases, shall not exceed $150,000,000. The Incremental Term Loans shall rank pari passu in right
of payment and of security with the Term Loans. The Incremental Term Loans (i) shall not mature
earlier than the Revolving Termination Date and shall have a Weighted Average Life to Maturity no
shorter than the Weighted Average Life to Maturity of the Term Loans (except by virtue of
amortization of or prepayment of the Term Loans and prepayments of scheduled amortization prior to
such date of determination) and (i) except as set forth above and below, shall be treated
substantially the same as the Term Loans (in each case, including with respect to mandatory and
voluntary prepayments); provided that (x) the interest rates (subject to clause (y) below)
and amortization schedule (subject to clause (i) above) applicable to the Incremental Term Loans
shall be determined by the Borrower and the lenders thereof, (y) in the event that the yield on any
Incremental Term Loans (taking into account interest margins, minimum Eurodollar Base Rate, minimum
ABR, upfront fees and OID on such term loans with upfront fees and OID equated to interest margins
based on an assumed four year life to maturity, but excluding upfront fees, ticking fees, arranging
fees and any other fees not paid to the market generally) (the “Incremental Yield”) exceeds
the yield on the Term Facility by more than 0.50%, then the interest margins for the Term Loans shall automatically
be increased to a level such that the yield on the Term Loans shall be 0.50% below the Incremental
Yield and (z) to the extent such terms applicable to the Incremental Term Loans are not consistent
with the then










 



20

existing Term Loans (except as permitted by the immediately preceding clause (x))
such terms shall be mutually agreed to by the Borrower and the Administrative Agent.




          (ii) Each notice from the Borrower pursuant to this Section shall set forth the requested
amount and proposed terms of the relevant Incremental Extension of Credit. The Borrower may arrange
for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase
in its Term Commitment, an “Increasing Term Lender”), or by one or more new banks,
financial institutions or other entities (each such new bank, financial institution or other
entity, an “Augmenting Term Lender”); provided that (i) each Augmenting Term
Lender, shall be subject to the approval of the Borrower and the Administrative Agent (such
approval by the Administrative Agent not to be unreasonably withheld) and (ii) (x) in the case of
an Increasing Term Lender, the Borrower and such Increasing Term Lender execute an agreement
substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Term Lender,
the Borrower and such Augmenting Term Lender execute an agreement substantially in the form of
Exhibit H hereto.




          (iii) Commitments in respect of Incremental Term Loans shall become Commitments under this
Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as
appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide
such Commitment, if any, each Incremental Term Lender, if any, each Augmenting Term Lender, if any,
and the Administrative Agent. The Incremental Amendment may, without the consent of any other
Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary
or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect
the provisions of this Section; provided that any amendments included in any Incremental
Amendment meant to effect changes not relating to this Section 2.1(b) shall require the vote of the
Lenders as described in Section 10.1 hereof. The making of any loans pursuant to any Incremental
Amendment shall not be effective unless on the date thereof (each, an “Incremental Facility
Closing Date”), after giving effect to such Incremental Extension of Credit (i) the conditions
set forth in Section 5.2 are satisfied, (ii) the Borrower shall be in compliance with Section 7.1,
(iii) the Administrative Agent shall have received documents consistent with those delivered on the
Closing Date under Section 5.1(f) as to the corporate power and authority of the Borrower to borrow
hereunder after giving effect to such increase, and (iv) such other conditions as the parties
thereto shall agree. The Borrower will use the proceeds of the Incremental Term Loans for any
purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental
Term Loans unless it so agrees.




          2.2 Procedure for Term Loan Borrowing. The Borrower shall give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 10:00 A.M., New York City time, one Business Day
prior to the anticipated Closing Date) requesting that the Term Lenders make the Term Loans on the
Closing Date and specifying the amount to be borrowed. The Term Loans made on the Closing Date
shall initially be ABR Loans. Upon receipt of such notice the Administrative Agent shall promptly
notify each Term Lender thereof. Not later than 12:00 Noon, New York City time, on the Closing
Date each Term Lender shall make available to the Administrative Agent at the Funding Office an
amount in immediately available funds equal to the Term Loan or Term Loans to be made by such
Lender. The Administrative Agent shall credit the account of the Borrower on the books of such
office of the Administrative Agent with the aggregate of the amounts made available to the
Administrative Agent by the Term Lenders in immediately available funds.




          2.3 Repayment of Term Loans. The Term Loan of each Lender shall mature in 19 consecutive quarterly installments, each of
which shall be in an amount equal to such Lender’s Term Percentage multiplied by the amount set
forth below opposite such installment:











 



21




	 	 	 	 	 
	Installment	 	Principal Amount
	March 31, 2011
	 	$	5,000,000	 
	June 30, 2011
	 	$	5,000,000	 
	September 30, 2011
	 	$	5,000,000	 
	December 31, 2011
	 	$	5,000,000	 
	March 31, 2012
	 	$	7,500,000	 
	June 30, 2012
	 	$	7,500,000	 
	September 30, 2012
	 	$	7,500,000	 
	December 31, 2012
	 	$	7,500,000	 
	March 31, 2013
	 	$	10,000,000	 
	June 30, 2013
	 	$	10,000,000	 
	September 30, 2013
	 	$	10,000,000	 
	December 31, 2013
	 	$	10,000,000	 
	March 31, 2014
	 	$	12,500,000	 
	June 30, 2014
	 	$	12,500,000	 
	September 30, 2014
	 	$	12,500,000	 
	December 31, 2014
	 	$	12,500,000	 
	March 31, 2015
	 	$	15,000,000	 
	June 30, 2015
	 	$	15,000,000	 
	September 30, 2015
	 	$	15,000,000	 
	Revolving Termination Date
	 	$	15,000,000	 






          2.4 Revolving Commitments. (a) Subject to the terms and conditions hereof, each Revolving Lender severally agrees to
make revolving credit loans (“Revolving Loans”) to the Borrower in Dollars from time to
time during the Revolving Commitment Period in an aggregate principal amount at any one time
outstanding which, when added to such Lender’s Revolving Percentage of the L/C Obligations then
outstanding does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving
Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the
Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Revolving Loans may from time to time be Eurodollar Loans or ABR Loans, as
determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.5
and 2.10.




          (b) The Borrower may from time to time elect to increase the Revolving Commitments (a
“Revolving Commitment Increase”) in a minimum amount of $5,000,000 so long as, after giving
effect thereto, the aggregate amount of the Term Commitment Increases and Revolving Commitment
Increases does not exceed $150,000,000. The Borrower may arrange for any such increase to be
provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving
Commitment, an “Increasing Revolving Lender”), or by one or more new banks, financial institutions
or other entities (each such new bank, financial institution or other entity, an “Augmenting
Revolving Lender”), to increase their existing Revolving Commitments, or extend Revolving
Commitments, as the case may be, provided that (i) each Augmenting Revolving Lender, shall be
subject to the approval of the Borrower and the Administrative Agent (such approval by the
Administrative Agent not to be unreasonably withheld) and (ii) (x) in the case of an Increasing
Revolving Lender, the Borrower and such Increasing Revolving Lender execute an agreement substantially in the form of Exhibit G
hereto, and (y) in the case of an Augmenting Revolving Lender, the Borrower and such Augmenting
Revolving Lender execute an agreement substantially in the form of Exhibit H hereto. Increases and
new Revolving Commitments created pursuant to this clause shall become effective on the date agreed
by the Borrower, the Administrative Agent (such approval by the Administrative Agent not to be
unreasonably withheld) and the relevant Increasing Revolving Lenders or Augmenting Revolving
Lenders and the Administrative Agent shall notify each Revolving Lender thereof. Notwithstanding
the foregoing, no increase in the










 



22



Revolving Commitments (or in the Revolving Commitment of any
Lender), shall become effective under this paragraph unless, (i) on the proposed date of the
effectiveness of such increase, the conditions set forth in paragraphs (a) and (b) of Section 5.2
shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have
received a certificate to that effect dated such date and executed by a Responsible Officer of the
Borrower, (ii) after giving effect to such Revolving Commitment Increase, the Borrower shall be in
compliance with Section 7.1, and (iii) the Administrative Agent shall have received documents
consistent with those delivered on the Closing Date under Section 5.1(f) as to the corporate power
and authority of the Borrower to borrow hereunder after giving effect to such increase. On the
effective date of any increase in the Revolving Commitments, (i) each relevant Increasing Revolving
Lender and Augmenting Revolving Lender shall make available to the Administrative Agent such
amounts in immediately available funds as the Administrative Agent shall determine, for the benefit
of the other Revolving Lenders, as being required in order to cause, after giving effect to such
increase and the use of such amounts to make payments to such other Revolving Lenders, each
Revolving Lender’s portion of the outstanding Revolving Loans of all the Revolving Lenders to equal
its Revolving Percentage of such outstanding Revolving Loans, and (ii) the Borrower shall be deemed
to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in the
Revolving Commitments (with such reborrowing to consist of the Types of Revolving Loans, with
related Interest Periods if applicable, specified in a notice delivered by the Borrower in
accordance with the requirements of Section 2.5). The deemed payments made pursuant to clause (ii)
of the immediately preceding sentence in respect of each Eurodollar Loan shall be subject to
indemnification by the Borrower pursuant to the provisions of Section 2.18 if the deemed payment
occurs other than on the last day of the related Interest Periods.




          (c) The Borrower shall repay all outstanding Revolving Loans on the Revolving Termination
Date.




          2.5 Procedure for Revolving Loan Borrowing. The Borrower may borrow under the Revolving Commitments during the Revolving Commitment
Period on any Business Day, provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent prior to 12:00 Noon,
New York City time, (a) three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing Date, in the case of ABR
Loans) (provided that any such notice of a borrowing of ABR Loans under the Revolving Facility to
finance payments required by Section 3.5 may be given not later than 10:00 A.M., New York City
time, on the date of the proposed borrowing), specifying (i) the amount and Type of Revolving Loans
to be borrowed, (ii) the requested Borrowing Date and (iii) in the case of Eurodollar Loans, the
respective amounts of each such Type of Loan and the respective lengths of the initial Interest
Period therefor. Any Revolving Loans made on the Closing Date shall initially be ABR Loans. Each
borrowing under the Revolving Commitments shall be in an amount equal to (x) in the case of ABR
Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate Available Revolving
Commitments are less than $1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of any such notice
from the Borrower, the Administrative Agent shall promptly notify each Revolving Lender thereof.
Each Revolving Lender will make the amount of its pro rata share of each borrowing available to the Administrative Agent for the
account of the Borrower at the Funding Office prior to 12:00 Noon, New York City time, on the
Borrowing Date requested by the Borrower in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower by the Administrative Agent
crediting the account of the Borrower on the books of such office with the aggregate of the amounts
made available to the Administrative Agent by the Revolving Lenders and in like funds as received
by the Administrative Agent.











 



23




          2.6 Commitment Fees, etc. (a) The Borrower agrees to pay to the Administrative Agent for the account of each
Revolving Lender a commitment fee for the period from and including the date hereof to the last day
of the Revolving Commitment Period, computed at the Commitment Fee Rate on the average daily amount
of the Available Revolving Commitment of such Lender during the period for which payment is made,
payable quarterly in arrears on each Fee Payment Date, commencing on the first such date to occur
after the date hereof.




          (b) The Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the
dates as set forth in any fee agreements with the Administrative Agent and to perform any other
obligations contained therein.




          2.7 Termination or Reduction of Revolving Commitments. The Borrower shall have the right, upon not less than three Business Days’ notice to the
Administrative Agent, to terminate the Revolving Commitments or, from time to time, to reduce the
amount of the Revolving Commitments; provided that no such termination or reduction of Revolving
Commitments shall be permitted to the extent that, after giving effect thereto and to any
prepayments of the Revolving Loans made on the effective date thereof, the Total Revolving
Extensions of Credit would exceed the Total Revolving Commitments. Any such reduction shall be in
an amount equal to $5,000,000, or a whole multiple thereof, and shall reduce permanently the
Revolving Commitments then in effect.




          2.8 Optional Prepayments. The Borrower may at any time and from time to time prepay the Loans, in whole or in part,
without premium or penalty, upon irrevocable notice delivered to the Administrative Agent no later
than 11:00 A.M., New York City time, three Business Days prior thereto, in the case of Eurodollar
Loans, and no later than 11:00 A.M., New York City time, one Business Day prior thereto, in the
case of ABR Loans, which notice shall specify the date and amount of prepayment and whether the
prepayment is of Eurodollar Loans or ABR Loans; provided, that if a Eurodollar Loan is prepaid on
any day other than the last day of the Interest Period applicable thereto, the Borrower shall also
pay any amounts owing pursuant to Section 2.18. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein, together with
(except in the case of Revolving Loans that are ABR Loans) accrued interest to such date on the
amount prepaid. Partial prepayments of Term Loans and Revolving Loans shall be in an aggregate
principal amount of $1,000,000 or a whole multiple thereof.




          2.9 Mandatory Prepayments and Commitment Reductions. (a) If on any date any Group Member shall receive Net Cash Proceeds from any Asset
Sale or Recovery Event, and the Consolidated Leverage Ratio of the Borrower for the most
recently ended four fiscal quarters is greater than 2.00 to 1.00, then, unless a Reinvestment
Notice shall be delivered in respect thereof, an amount equal to 50% of such Net Cash Proceeds
shall be applied on such date toward the prepayment of the Term Loans as set forth in Section
2.9(b); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment
Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section
2.9(b).




          (b) Amounts to be applied in connection with prepayments made pursuant to Section 2.9 shall be
applied to the prepayment of the Term Loans in accordance with Section 2.15(b). The application of
any prepayment pursuant to Section 2.9 shall be made, first, to ABR Loans and,
second, to Eurodollar Loans. Each prepayment of the Loans under Section 2.9 shall be
accompanied by accrued interest to the date of such prepayment on the amount prepaid.











 



24




          2.10 Conversion and Continuation Options. (a) The Borrower may elect from time to time to convert Eurodollar Loans to ABR Loans by
giving the Administrative Agent prior irrevocable notice of such election no later than 11:00 A.M.,
New York City time, on the Business Day preceding the proposed conversion date, provided that any
such conversion of Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto. The Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans
by giving the Administrative Agent prior irrevocable notice of such election no later than 11:00
A.M., New York City time, on the third Business Day preceding the proposed conversion date (which
notice shall specify the length of the initial Interest Period therefor), provided that no ABR Loan
under a particular Facility may be converted into a Eurodollar Loan when any Event of Default has
occurred and is continuing and the Administrative Agent or the Majority Facility Lenders in respect
of such Facility have determined in its or their sole discretion not to permit such conversions.
Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender
thereof.




          (b) Any Eurodollar Loan may be continued as such upon the expiration of the then current
Interest Period with respect thereto by the Borrower giving irrevocable notice to the
Administrative Agent, in accordance with the applicable provisions of the term “Interest
Period” set forth in Section 1.1, of the length of the next Interest Period to be applicable to
such Loans, provided that no Eurodollar Loan under a particular Facility may be continued
as such when any Event of Default has occurred and is continuing and the Administrative Agent has
or the Majority Facility Lenders in respect of such Facility have determined in its or their sole
discretion not to permit such continuations, and provided, further, that if the
Borrower shall fail to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans shall be automatically
converted to ABR Loans on the last day of such then expiring Interest Period. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender thereof.




          2.11 Limitations on Eurodollar Tranches. Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions and
continuations of Eurodollar Loans and all selections of Interest Periods shall be in such amounts
and be made pursuant to such elections so that, (a) after giving effect thereto, the aggregate
principal amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no more than ten Eurodollar
Tranches shall be outstanding at any one time.




          2.12 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall bear interest for each day during each Interest Period with
respect thereto at a rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.




          (b) Each ABR Loan shall bear interest at a rate per annum equal to the ABR plus the Applicable
Margin.




          (c) (i) If all or a portion of the principal amount of any Loan or Reimbursement Obligation
shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), all
outstanding Loans and Reimbursement Obligations (whether or not overdue) shall bear interest at a
rate per annum equal to (x) in the case of the Loans, the rate that would otherwise be applicable
thereto pursuant to the foregoing provisions of this Section plus 2% or (y) in the case of
Reimbursement Obligations, the rate applicable to ABR Loans under the Revolving Facility
plus 2%, and (ii) if all or a portion of any interest payable on any Loan or Reimbursement
Obligation or any commitment fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate then applicable to ABR Loans under the relevant
Facility plus 2% (or, in the case of any such other amounts that do not relate to a
particular Facility, the rate then applicable to ABR Loans under the













 



25


Revolving Facility
plus 2%), in each case, with respect to clauses (i) and (ii) above, from the date of such
non-payment until such amount is paid in full (as well after as before judgment).




          (d) Interest shall be payable in arrears on each Interest Payment Date, provided that
interest accruing pursuant to paragraph (c) of this Section shall be payable from time to time on
demand.




          2.13 Computation of Interest and Fees. (a) Interest and fees payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to ABR Loans the rate of
interest on which is calculated on the basis of the Prime Rate, the interest thereon shall be
calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the ABR or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of
the effective date and the amount of each such change in interest rate.




          (b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver
to the Borrower a statement showing the quotations used by the Administrative Agent in determining
any interest rate pursuant to Section 2.12(a).




          2.14 Inability to Determine Interest Rate. If prior to the first day of any Interest Period:




          (a) the Administrative Agent shall have determined (which determination shall be conclusive
and binding upon the Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or




          (b) the Administrative Agent shall have received notice from the Majority Facility Lenders in
respect of the relevant Facility that the Eurodollar Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected Loans during such Interest
Period,



the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the
relevant Lenders as soon as practicable thereafter. If such notice is given (x) any Eurodollar
Loans under the relevant Facility requested to be made on the first day of such Interest Period
shall be made as ABR Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be continued as ABR
Loans and (z) any outstanding Eurodollar Loans under the relevant Facility shall be converted, on
the last day of the then-current Interest Period, to ABR Loans. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar Loans under the relevant Facility
shall be made or continued as such, nor shall the Borrower have the right to convert Loans under
the relevant Facility to Eurodollar Loans.




          2.15 Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the Lenders hereunder, each payment by the
Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall
be made pro rata according to the respective Term Percentages or Revolving Percentages, as the case
may be, of the relevant Lenders.











 



26




          (b) Each payment (including each prepayment) by the Borrower on account of principal of and
interest on the Term Loans shall be made pro rata according to the respective
outstanding principal amounts of the Term Loans then held by the Term Lenders. The amount of each
principal prepayment of the Term Loans shall be applied to reduce the then remaining installments
of the Term Loans pro rata based upon the then remaining principal amounts thereof.
Amounts prepaid on account of the Term Loans may not be reborrowed.




          (c) Each payment (including each prepayment) by the Borrower on account of principal of and
interest on the Revolving Loans shall be made pro rata according to the respective
outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders.




          (d) All payments (including prepayments) to be made by the Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and
shall be made prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such payments to the
Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than
payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan
becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended
to the next succeeding Business Day unless the result of such extension would be to extend such
payment into another calendar month, in which event such payment shall be made on the immediately
preceding Business Day. In the case of any extension of any payment of principal pursuant to the
preceding two sentences, interest thereon shall be payable at the then applicable rate during such
extension.




          (e) Unless the Administrative Agent shall have been notified in writing by any Lender prior to
a borrowing that such Lender will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent, the Administrative Agent may assume that such
Lender is making such amount available to the Administrative Agent, and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If
such amount is not made available to the Administrative Agent by the required time on the Borrowing
Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a
rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation, for the period until such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest
error. If such Lender’s share of such borrowing is not made available to the Administrative Agent
by such Lender within three Business Days after such Borrowing Date, the Administrative Agent shall
also be entitled to recover such amount with interest thereon at the rate per annum applicable to
ABR Loans under the relevant Facility, on demand, from the Borrower.




          (f) Unless the Administrative Agent shall have been notified in writing by the Borrower prior
to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make
such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is
making such payment, and the Administrative Agent may, but shall not be required to, in reliance
upon such assumption, make available to the Lenders their respective pro rata
shares of a corresponding amount. If such payment is not made to the Administrative Agent by the
Borrower within three Business Days after such due date, the Administrative Agent shall be entitled
to recover, on demand, from each Lender to which any amount which was made available pursuant to
the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily
average Federal










 



27



Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the
Administrative Agent or any Lender against the Borrower.




          2.16 Requirements of Law. (a) If the adoption of or any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Lender with any request or directive (whether or not
having the force of law) from any central bank or other Governmental Authority made subsequent to
the date hereof:





          (i) shall subject any Lender to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit, any Application or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof (except for in
each case Non-Excluded Taxes and Other Taxes, which are covered by Section 2.17, changes in
the rate or basis of imposition of tax imposed on or measured by the net income of such
Lender, franchise taxes in lieu of such net income taxes and branch profits taxes);




          (ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory
loan or similar requirement against assets held by, deposits or other liabilities in or for
the account of, advances, loans or other extensions of credit by, or any other acquisition
of funds by, any office of such Lender that is not otherwise included in the determination
of the Eurodollar Rate; or




          (iii) shall impose on such Lender any other condition affecting this Agreement;


and the result of any of the foregoing is to increase the cost to such Lender, by an amount that
such Lender reasonably deems to be material, of making, converting into, continuing or maintaining
Eurodollar Loans or issuing or participating in Letters of Credit, or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay
such Lender, upon its demand, any additional amounts necessary to compensate such Lender for such
increased cost or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this paragraph, it shall promptly notify the Borrower in writing
(with a copy to the Administrative Agent) of the event by reason of which it has become so
entitled.




          (b) If any Lender shall have determined that the adoption of or any change in any Requirement
of Law regarding capital adequacy or in the interpretation or application thereof or compliance by
such Lender or any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental Authority made
subsequent to the date hereof shall have the effect of reducing the rate of return on such Lender’s
or such corporation’s capital as a consequence of its obligations hereunder or under or in respect
of any Letter of Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration such Lender’s or
such corporation’s policies with respect to capital adequacy) by an amount reasonably deemed by
such Lender to be material, then from time to time, after submission by such Lender to the Borrower
(with a copy to the Administrative Agent) of a written request therefor, the Borrower shall pay to
such Lender such additional amount or amounts as will compensate such Lender or such corporation
for such reduction; provided, that the Borrower shall not be required to pay additional
amounts to compensate any Lender for (i) any Non-Excluded Taxes or Other Taxes, which are covered
by Section 2.17 or (ii) any change in the rate or basis of imposition of applicable taxes imposed
on or measured by net income, franchise taxes in lieu of such net income taxes and branch profits
taxes.











 



28




          (c) Notwithstanding anything herein to the contrary, the issuance of any rules, regulations or
directions under the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,
rules, guidelines or directives thereunder or issued in connection therewith after the date of this
Agreement shall be deemed to be a change in a Requirement of Law; provided that the
protection of this Section 2.16(c) shall be available to each Lender and Issuing Lender regardless
of any possible contention of the invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occurred or been imposed, so long as it
shall be customary for Lenders or Issuing Lenders affected thereby to comply therewith. No Lender
or Issuing Lender shall be entitled to compensation under this Section 2.16(c) with respect to any
date unless it shall have notified the Borrower that it will demand compensation pursuant to this
Section 2.16(c) not more than 90 days after the date on which it shall have become aware of such
incurred costs or reductions. Notwithstanding any other provision herein, no Lender or Issuing
Lender shall demand compensation pursuant to this Section 2.16(c) if it shall not at the time be
the general policy or practice of such Lender or Issuing Lender (as the case may be) to demand such
compensation in similar circumstances under comparable provisions of other credit agreements, if
any.




          (d) A certificate as to any additional amounts payable pursuant to this Section submitted by
any Lender to the Borrower (with a copy to the Administrative Agent) shall set forth in reasonable
detail the calculation of such amounts and shall be conclusive in the absence of manifest error.
Notwithstanding anything to the contrary in this Section, the Borrower shall not be required to
compensate a Lender pursuant to this Section for any amounts incurred more than nine months prior
to the date that such Lender notifies the Borrower of such Lender’s intention to claim compensation
therefor; provided that, if the circumstances giving rise to such claim have a retroactive
effect, then such nine-month period shall be extended to include the period of such retroactive
effect. The obligations of
the Borrower pursuant to this Section shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.




          2.17 Taxes . (a) All payments made by or on behalf of any Loan Party under this Agreement or any other
Loan Document shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes, branch profits taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent or any Lender by the jurisdiction under the
laws of which the Administrative Agent or such Lender is organized or as a result of a present or
former connection between the Administrative Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing authority thereof
or therein (other than any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document) (such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, the “Non-Excluded Taxes”);
provided that, if any Non-Excluded Taxes or Other Taxes are required to be withheld from
any amounts payable to the Administrative Agent or any Lender, as determined in good faith by the
applicable Withholding Agent, (i) such amounts shall be paid to the relevant Governmental Authority
in accordance with applicable law and (ii) the amounts so payable by the applicable Loan Party to
the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Non-Excluded Taxes and Other Taxes
including any such taxes imposed on amounts payable under this Section) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this Agreement as if such
withholding or deduction had not been made, provided further, however, that
the Borrower shall not be required to increase any such amounts payable to the Administrative Agent
or any Lender with respect to any Non-Excluded Taxes (i) that are attributable to such Lender’s
failure to comply with the requirements of paragraph (d), (e) or (f) of this Section or (ii) that
are United States withholding taxes resulting from












 



29



any Requirement of Law in effect (including
FATCA) on the date the Administrative Agent or such Lender becomes a party to this Agreement or
designates a new lending office, except to the extent that the Administrative Agent or such Lender
(or its assignor (if any)) was entitled, immediately prior to such designation of a new lending
office or at the time of assignment, as applicable, to receive additional amounts from the Borrower
with respect to such Non-Excluded Taxes pursuant to this paragraph.




          (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.




          (c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly as
possible thereafter the Borrower shall send to the Administrative Agent for its own account or for
the account of the relevant Lender, as the case may be, a certified copy of an original official
receipt received by the Borrower showing payment thereof. If (i) the Borrower fails to pay any
Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority, (ii) the Borrower
fails to remit to the Administrative Agent the required receipts or other required documentary
evidence or (iii) any Non-Excluded Taxes or Other Taxes are imposed directly upon the
Administrative Agent or any Lender, the Borrower shall indemnify the Administrative Agent and the
Lenders for such amounts and any incremental taxes, interest or penalties that may become payable
by the Administrative Agent or any Lender as a result of any such failure, in the case of (i) and
(ii), or any such direct imposition, in the case of (iii).




          (d) Each Lender (or Transferee) that is not a “United States Person” as defined in Section
7701(a)(30) of the Code (a “Non-U.S. Lender”) shall deliver to the Borrower and the
Administrative Agent (or, in the case of a Participant, to the Lender from which the related
participation shall have been purchased) (i) two copies of U.S. Internal Revenue Service (“IRS”)
Form W-8BEN, Form W-8ECI or Form W-8IMY (together with any applicable underlying IRS forms), (ii)
in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, a statement
substantially in the form of Exhibit F and the applicable IRS Form W-8, or any subsequent versions
thereof or successors thereto, properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from, or a reduced rate of, U.S. federal withholding tax on all
payments by the Borrower under this Agreement and the other Loan Documents, or (iii) any other form
prescribed by applicable requirements of U.S. federal income tax law as a basis for claiming
exemption from or a reduction in U.S. federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable Requirements of Law to permit the
Borrower and the Administrative Agent to determine the withholding or deduction required to be
made. Such forms shall be delivered by each Non-U.S. Lender on or before the date it becomes a
party to this Agreement (or, in the case of any Participant, on or before the date such Participant
purchases the related participation) and from time to time thereafter upon the request of the
Borrower or the Administrative Agent. In addition, each Non-U.S. Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower and the Administrative Agent at
any time it determines that it is no longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). Notwithstanding any other provision of this Section, a Non-U.S.
Lender shall not be required to deliver any form pursuant to this Section that such Non-U.S. Lender
is not legally able to deliver.




          (e) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Borrower or the Administrative Agent, such properly completed
and executed











 



30



documentation prescribed by applicable law as will permit such payments to be made
without withholding or at a reduced rate, provided that such Lender is legally entitled to
complete, execute and deliver such documentation and in such Lender’s judgment such completion,
execution or submission would not materially prejudice the legal or commercial position of such
Lender.




          (f) The Administrative Agent and each Lender, in each case that is organized under the laws of
the United States or a state thereof, shall, on or before the date of any payment by the Borrower
under this Agreement or any other Loan Document to, or for the account of, such Administrative
Agent or Lender, deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been purchased), two
duly completed copies of Internal Revenue Service Form W-9, or successor form, certifying that such
Administrative Agent or Lender is a “United States Person” (as defined in Section 7701(a)(30) of
the Code) and that such Administrative Agent or Lender is entitled to a complete exemption from
United States backup withholding tax.




          (g) If the Administrative Agent or any Lender determines, in its sole discretion, that it has
received a refund of any Non-Excluded Taxes or Other Taxes as to which it has been indemnified by a
Loan Party or with respect to which a Loan Party has paid additional amounts pursuant to this
Section 2.17, it shall pay over such refund to such Loan Party (but only to the extent of indemnity
payments made, or additional amounts paid, by such Loan Party under this Section 2.17 with respect
to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of
the Administrative Agent or such Lender and without interest (other than any interest paid by
the relevant Governmental Authority with respect to such refund); provided, that such Loan
Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid
over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative
Agent or such Lender is required to repay such refund to such Governmental Authority. This
paragraph shall not be construed to require the Administrative Agent or any Lender to make
available its tax returns (or any other information relating to its taxes which it deems
confidential) to any Loan Party or any other Person.




          (h) Each Lender shall indemnify the Administrative Agent for the full amount of any taxes,
levies, imposts, duties, charges, fees, deductions, withholdings or similar charges imposed by any
Governmental Authority that are attributable to such Lender and that are payable or paid by the
Administrative Agent, together with all interest, penalties, reasonable costs and expenses arising
therefrom or with respect thereto, as determined by the Administrative Agent in good faith. A
certificate as to the amount of such payment or liability delivered to any Lender by the
Administrative Agent shall be conclusive absent manifest error; provided that if it is
demonstrated to the reasonable satisfaction of the Administrative Agent that any Lender has
overpaid in respect of any such amounts due, the Administrative Agent shall reimburse such Lender
for such overpaid amount.




          (i) The agreements in this Section shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.




          2.18 Indemnity . The Borrower agrees to indemnify each Lender for, and to hold each Lender harmless from,
any loss or expense that such Lender may sustain or incur as a consequence of (a) default by the
Borrower in making a borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment of or conversion from Eurodollar
Loans after the Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of Eurodollar Loans on a day that is not the last day
of an Interest Period with respect thereto. Such indemnification may include an amount equal to
the excess, if any, of










 



31



(i) the amount of interest that would have accrued on the amount so prepaid,
or not so borrowed, converted or continued, for the period from the date of such prepayment or of
such failure to borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any) over (ii) the
amount of interest (as reasonably determined by such Lender) that would have accrued to such Lender
on such amount by placing such amount on deposit for a comparable period with leading banks in the
interbank eurodollar market. A certificate setting forth the calculation in reasonable detail as
to any amounts payable pursuant to this Section submitted to the Borrower by any Lender shall be
conclusive in the absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.




          2.19 Payments Generally; Pro Rata Treatment; Sharing of Set-offs . If any Lender shall fail to make any payment required to be made by it pursuant to Sections
2.15(e), 2.15(f), 3.4, 3.5 or 9.7, then the Administrative Agent may, in its discretion and
notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the
Administrative Agent for the account of such Lender for the benefit of the Administrative Agent or
the Issuing Lender to satisfy such Lender’s obligations to it under such Section until all such
unsatisfied
obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash
collateral for, and application to, any future funding obligations of such Lender under any such
Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the
Administrative Agent in its discretion.




          2.20 Mitigation Obligations; Replacement of Lenders . (a) If any Lender requests compensation under Section 2.16, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of
such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.16 or 2.17, as the case may be, in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.




          (b) If any Lender requests compensation under Section 2.16, or does not consent to any
proposed amendment, supplement, modification, consent, or waiver of this Agreement or any other
Loan Document requested by the Borrower which requires the consent of all the Lenders (including
such Lender’s consent) and which has been consented to by 662⁄3% of the Lenders, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.17, or if any Lender becomes a Defaulting Lender, then
the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 10.6), all its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) such assignment does not
conflict with any Requirement of Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such assignment, (ii) the Borrower shall be liable to the assigning
Lender under Section 2.18 if any Eurodollar Loan owing to such assigning Lender shall be purchased
other than on the last day of the Interest Period relating thereto, (iii) until such time as such
assignment shall be consummated, the Borrower shall pay all additional amounts (if any) required
pursuant to Section 2.16 or 2.17(a), as the case may be, (iv) if the assignee is not already a
Lender, the Borrower shall have received the prior written consent of the Administrative Agent (and
if a Revolving Commitment is being assigned, the Issuing Lender), which consent shall not
unreasonably be










 



32



withheld, (v) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in Letters of Credit, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, 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), (vi) in the case of any such assignment resulting from a claim for compensation
under Section 2.16 or payments required to be made pursuant to Section 2.17, such assignment will
result in a reduction in such compensation or payments and (vii) any such assignment shall not be
deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender
shall have against the replaced Lender. A Lender shall not be required to make any such assignment
and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation cease to apply.




          2.21 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as such Lender is a
Defaulting Lender:




          (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting
Lender pursuant to Section 2.6;




          (b) the Commitments of such Defaulting Lender shall not be included in determining whether the
Required Lenders have taken or may take any action hereunder (including any consent to any
amendment, waiver or other modification pursuant to Section 10.1); provided, that this clause (b)
shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other
modification requiring the consent of such Lender or each Lender affected thereby; 




          (c) if any L/C Obligations exist at the time such Lender becomes a Defaulting Lender then:





          (i) all or any part of the L/C Obligations of such Defaulting Lender shall be
reallocated among the non-Defaulting Lenders in accordance with their respective Aggregate
Exposure Percentages but only to the extent the sum of all non-Defaulting Lenders’ Aggregate
Exposure Percentages plus such Defaulting Lender’s L/C Obligations does not exceed the total
of all non-Defaulting Lenders’ Commitments;




          (ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, the Borrower shall within one Business Day following notice by the
Administrative Agent cash collateralize for the benefit of the Issuing Lender only the
Borrower’s obligations corresponding to such Defaulting Lender’s L/C Obligations (after
giving effect to any partial reallocation pursuant to clause (i) above) in accordance with
the procedures set forth in Section 8.1 for so long as such L/C Obligations are outstanding;




          (iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s L/C
Obligations pursuant to clause (ii) above, the Borrower shall not be required to pay any
fees to such Defaulting Lender pursuant to Section 3.3 with respect to such Defaulting
Lender’s L/C Obligations during the period such Defaulting Lender’s L/C Obligations are cash
collateralized;




          (iv) if the L/C Obligations of the non-Defaulting Lenders is reallocated pursuant to
clause (i) above, then the fees payable to the Lenders pursuant to Section 2.6 and Section
3.3 shall be adjusted in accordance with such non-Defaulting Lenders’ Aggregate Exposure
Percentages; and









 



33



          (v) if all or any portion of such Defaulting Lender’s L/C Obligations is neither
reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without
prejudice to any rights or remedies of the Issuing Lender or any other Lender hereunder, all
Letter of Credit fees payable under Section 3.3 with respect to such Defaulting Lender’s L/C
Obligations shall be payable to the Issuing Lender until and to the extent that such L/C
Obligations are reallocated and/or cash collateralized; and



          (d) so long as such Lender is a Defaulting Lender, the Issuing Lender shall not be required to
issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure and
the Defaulting Lender’s then outstanding L/C Obligations will be 100% covered by the Commitments of
the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance
with
Section 2.21(c), and participating interests in any newly issued or increased Letter of Credit
shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.21(c)(i) (and
such Defaulting Lender shall not participate therein).




          If (i) a Bankruptcy Event with respect to a Parent of any Lender shall occur following the
date hereof and for so long as such event shall continue or (ii) the Issuing Lender has a good
faith belief that any Lender has defaulted in fulfilling its obligations under one or more other
agreements in which such Lender commits to extend credit, the Issuing Lender shall not be required
to issue, amend or increase any Letter of Credit, unless the Issuing Lender, shall have entered
into arrangements with the Borrower or such Lender, satisfactory to the Issuing Lender, to defease
any risk to it in respect of such Lender hereunder.




          In the event that the Administrative Agent, the Borrower and the Issuing Lender each agrees
that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a
Defaulting Lender, then the L/C Obligations of the Lenders shall be readjusted to reflect the
inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of
the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in
order for such Lender to hold such Loans in accordance with its Aggregate Exposure Percentage.




SECTION 3. LETTERS OF CREDIT




          3.1 L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender, in reliance on the
agreements of the other Revolving Lenders set forth in Section 3.4(a), agrees to issue letters of
credit (“Letters of Credit”) for the account of the Borrower and its Subsidiaries and with
the Borrower as the applicant on any Business Day during the Revolving Commitment Period in such
form as may be approved from time to time by the Issuing Lender; provided that the Issuing Lender
shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance,
(i) the L/C Obligations would exceed the L/C Commitment or (ii) the aggregate amount of the
Available Revolving Commitments would be less than zero. Each Letter of Credit shall (i) be
denominated in Dollars or in any Designated Foreign Currency and (ii) expire no later than the
earlier of (x) the first anniversary of its date of issuance and (y) the date that is five Business
Days prior to the Revolving Termination Date, provided that any Letter of Credit with a one-year
term may provide for the renewal thereof for additional one-year periods (which shall in no event
extend beyond the date referred to in clause (y) above).




          (b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if
such issuance would conflict with, or cause the Issuing Lender or any L/C Participant to exceed any
limits imposed by, any applicable Requirement of Law.




          3.2 Procedure for Issuance of Letter of Credit. The Borrower may from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender at its address











 



34



for notices specified herein an Application
therefor, completed to the satisfaction of the Issuing Lender, and such other certificates,
documents and other papers and information as the Issuing Lender may request. Upon receipt of any
Application, the Issuing Lender will process such Application and the certificates, documents and
other papers and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested thereby (but in no
event shall the Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such other certificates,
documents and other papers and information relating thereto) by issuing the
original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to
by the Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such Letter of
Credit to the Borrower promptly following the issuance thereof. The Issuing Lender shall promptly
furnish to the Administrative Agent, which shall in turn promptly furnish to the Lenders, notice of
the issuance of each Letter of Credit (including the amount thereof).




          3.3 Fees and Other Charges. (a) The Borrower will pay a fee on all outstanding Letters of Credit at a per annum rate
equal to the Applicable Margin then in effect with respect to Eurodollar Loans under the Revolving
Facility, shared ratably among the Revolving Lenders and payable quarterly in arrears on each Fee
Payment Date after the issuance date. In addition, the Borrower shall pay to the Issuing Lender
for its own account a fronting fee of 0.25% per annum on the undrawn and unexpired amount of each
Letter of Credit, payable quarterly in arrears on each Fee Payment Date after the issuance date.
Such fees shall be payable in Dollars.




          (b) In addition to the foregoing fees, the Borrower shall pay or reimburse the Issuing Lender
for such normal and customary costs and expenses as are incurred or charged by the Issuing Lender
in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of
Credit.




          3.4 L/C Participations. (a) The Issuing Lender irrevocably agrees to grant and hereby grants to each L/C
Participant, and, to induce the Issuing Lender to issue Letters of Credit, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender,
on the terms and conditions set forth below, for such L/C Participant’s own account and risk an
undivided interest equal to such L/C Participant’s Revolving Percentage in the Issuing Lender’s
obligations and rights under and in respect of each Letter of Credit and the amount of each draft
paid by the Issuing Lender thereunder. Each L/C Participant agrees with the Issuing Lender that,
if a draft is paid under any Letter of Credit for which the Issuing Lender is not reimbursed in
full by the Borrower in accordance with the terms of this Agreement (or in the event that any
reimbursement received by the Issuing Lender shall be required to be returned by it at any time),
such L/C Participant shall pay to the Issuing Lender upon demand (which demand, in the case of any
demand made in respect of any draft under a Letter of Credit denominated in any Designated Foreign
Currency, shall not be made prior to the date that the amount of such draft shall be converted into
Dollars in accordance with Section 3.5) at the Issuing Lender’s address for notices specified
herein an amount equal to such L/C Participant’s Revolving Percentage of the amount of such draft,
or any part thereof, that is not so reimbursed (or is so returned). Each L/C Participant’s
obligation to pay such amount shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such
L/C Participant may have against the Issuing Lender, the Borrower or any other Person for any
reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default or the
failure to satisfy any of the other conditions specified in Section 5, (iii) any adverse change in
the condition (financial or otherwise) of the Borrower, (iv) any breach of this Agreement or any
other Loan Document by the Borrower, any other Loan Party or any other L/C Participant or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.











 



35




          (b) If any amount required to be paid by any L/C Participant to the Issuing Lender pursuant to
Section 3.4(a) in respect of any unreimbursed portion of any payment made by the Issuing Lender
under any Letter of Credit is paid to the Issuing Lender within three Business Days after the date
such payment is due, such L/C Participant shall pay to the Issuing Lender on demand an amount equal
to the product of (i) such amount, times (ii) the daily average Federal Funds Effective Rate
during the period from and including the date such payment is required to the date on which such
payment is immediately available to the Issuing Lender, times (iii) a fraction the numerator of
which is the number of days that elapse during such period and the denominator of which is 360. If
any such amount required to be paid by any L/C Participant pursuant to Section 3.4(a) is not made
available to the Issuing Lender by such L/C Participant within three Business Days after the date
such payment is due, the Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the rate per annum
applicable to ABR Loans under the Revolving Facility. A certificate of the Issuing Lender
submitted to any L/C Participant with respect to any amounts owing under this Section shall be
conclusive in the absence of manifest error.




          (c) Whenever, at any time after the Issuing Lender has made payment under any Letter of Credit
and has received from any L/C Participant its pro rata share of such payment in
accordance with Section 3.4(a), the Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the Borrower or otherwise, including proceeds of collateral applied
thereto by the Issuing Lender), or any payment of interest on account thereof, the Issuing Lender
will distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by the Issuing
Lender shall be required to be returned by the Issuing Lender, such L/C Participant shall return to
the Issuing Lender the portion thereof previously distributed by the Issuing Lender to it.




          3.5 Reimbursement Obligation of the Borrower. If any draft is paid under any Letter of Credit, the Borrower shall reimburse the Issuing
Lender for the amount of (a) the draft so paid and (b) any taxes, fees, charges or other costs or
expenses incurred by the Issuing Lender in connection with such payment, not later than 12:00 Noon,
New York City time, on (i) the Business Day that the Borrower receives notice of such draft, if
such notice is received on such day prior to 10:00 A.M., New York City time, or (ii) if clause (i)
above does not apply, the Business Day immediately following the day that the Borrower receives
such notice. Each such payment shall be made to the Issuing Lender at its address for notices
referred to herein in the currency in which such Letter of Credit is denominated (except that, in
the case of any Letter of Credit denominated in any Designated Foreign Currency, upon notice by the
Issuing Lender to the Borrower, such payment shall be made in Dollars from and after the date on
which the amount of such payment shall have been converted into Dollars at the Spot Rate of
Exchange on such date of conversion, which date of conversion may be any Business Day after the
Business Day on which such payment is due) and in immediately available funds. Any conversion by
the Issuing Lender of any payment to be made in respect of any Letter of Credit denominated in any
Designated Foreign Currency into Dollars in accordance with this Section 3.5 shall be conclusive
and binding upon the other parties hereto in the absence of manifest error; provided that
upon the request of the Borrower, the Issuing Lender shall provide to the Borrower a certificate
including reasonably detailed information as to the calculation of such conversion. Interest shall
be payable on any such amounts from the date on which the relevant draft is paid until payment in
full at the rate set forth in (x) until the Business Day next succeeding the date of the relevant
notice, Section 2.12(b) and (y) thereafter, Section 2.12(c); provided that if any such
amount is denominated in a Designated Foreign Currency for any period, such interest shall be
payable at the rate charged by the Issuing Lender for reimbursement of overdue obligations in such
Designated Foreign Currency owing by account parties with similar credit profiles to that of the
Borrower; and provided, further, that if any reimbursement is required to be paid
in respect of a Letter of Credit denominated in Dollars, and such reimbursement is not made in
accordance with this Section 3.5, the Borrower shall be deemed to have requested a Revolving
Extension of Credit in an equivalent amount










 



36



of such owed reimbursement (provided such request would
not result in the Total Revolving Extensions of Credit at such time exceeding Total Revolving
Commitments) and to the extent so financed, the Borrower’s obligation to
make such payment shall be discharged and replaced by the resulting Revolving Loan. If the
Borrower fails to make such reimbursement when due, the Administrative Agent shall notify each
Revolving Lender of the applicable disbursement, the payment then due from the Borrower in respect
thereof and such Lender’s share thereof based on the Revolving Percentages (the “Reimbursement
Percentage”). Promptly following receipt of such notice, each Revolving Lender shall pay to
the Administrative Agent its Reimbursement Percentage of the payment then due from the Borrower, in
the same manner as provided in Section 2.5 hereof with respect to Loans made by such Lender (and
Section 2.5 shall apply, mutatis mutandis, to the payment obligations of the
relevant Revolving Lenders), and the Administrative Agent shall promptly pay to the applicable
Issuing Lender the amounts so received by it from such Lenders.




          3.6 Obligations Absolute. The Borrower’s obligations under this Section 3 shall be absolute and unconditional under
any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that
the Borrower may have or have had against the Issuing Lender, any beneficiary of a Letter of Credit
or any other Person. The Borrower also agrees with the Issuing Lender that the Issuing Lender
shall not be responsible for, and the Borrower’s Reimbursement Obligations under Section 3.5 shall
not be affected by, among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or
forged, or any dispute between or among the Borrower and any beneficiary of any Letter of Credit or
any other party to which such Letter of Credit may be transferred or any claims whatsoever of the
Borrower against any beneficiary of such Letter of Credit or any such transferee. The Issuing
Lender shall not be liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with any Letter of Credit,
except for errors or omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of the Issuing
Lender. The Borrower agrees that any action taken or omitted by the Issuing Lender under or in
connection with any Letter of Credit or the related drafts or documents, if done in the absence of
gross negligence or willful misconduct, shall be binding on the Borrower and shall not result in
any liability of the Issuing Lender to the Borrower.




          3.7 Letter of Credit Payments. If any draft shall be presented for payment under any Letter of Credit, the Issuing Lender
shall promptly notify the Borrower of the date and amount thereof. The responsibility of the
Issuing Lender to the Borrower in connection with any draft presented for payment under any Letter
of Credit shall, in addition to any payment obligation expressly provided for in such Letter of
Credit, be limited to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are substantially in conformity with such
Letter of Credit.




          3.8 Applications. To the extent that any provision of any Application related to any Letter of Credit is
inconsistent with the provisions of this Section 3, the provisions of this Section 3 shall apply.




SECTION 4. REPRESENTATIONS AND WARRANTIES




          To induce the Administrative Agent and the Lenders to enter into this Agreement and to make
the Loans and issue or participate in the Letters of Credit, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:




          4.1 Financial Condition. The audited consolidated balance sheets of the Borrower and its consolidated Subsidiaries
as at December 31, 2007, December 31, 2008 and December 31, 2009,









 



37

and the related consolidated
statements of operations and of cash flows for the year ended December 31, 2007, the year ended
December 31, 2008, and the year ended December 31, 2009, reported on by and accompanied by an
unqualified report from KPMG LLP, present fairly, in all material respects, the consolidated
financial condition of the Borrower and its consolidated Subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the respective fiscal
periods then ended. The unaudited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at September 30, 2010, and the related unaudited consolidated statements of
operations and cash flows for the nine-month period ended on such date, present fairly, in all
material respects, the consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of its operations and its consolidated
cash flows for the nine-month period then ended (subject to normal year-end audit adjustments and
absence of footnote disclosure). All such financial statements, including the related schedules
and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by the aforementioned firm of accountants and disclosed
therein). No Group Member has any material Guarantee Obligations, contingent liabilities and
liabilities for taxes, or any long-term leases or unusual forward or long-term commitments,
including any interest rate or foreign currency swap or exchange transaction or other obligation in
respect of derivatives, that are not reflected in the most recent financial statements referred to
in this paragraph. During the period from December 31, 2009 to and including the date hereof there
has been no Disposition by any Group Member of any material part of its business or property.




          4.2 No Change. Since December 31, 2009, there has been no development or event that has had or could
reasonably be expected to have a Material Adverse Effect.




          4.3 Existence; Compliance with Law. Each Group Member (a) is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, (b) has the power and authority, and the legal right,
to own and operate its property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign corporation or other
organization and in good standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification and (d) is in
compliance with all Requirements of Law; except, in each case except clause (a) (only with respect
to the Borrower and the Subsidiary Guarantors), to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.




          4.4 Power; Authorization; Enforceable Obligations. Each Loan Party has the power and authority, and the legal right, to make, deliver and
perform the Loan Documents to which it is a party and, in the case of the Borrower, to obtain
extensions of credit hereunder. Each Loan Party has taken all necessary organizational action to
authorize the execution, delivery and performance of the Loan Documents to which it is a party and,
in the case of the Borrower, to authorize the extensions of credit on the terms and conditions of
this Agreement. No consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in connection with the
extensions of credit hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any of the Loan
Documents. Each Loan Document has been duly executed and delivered on behalf of each Loan
Party party thereto. This Agreement constitutes, and each other Loan Document upon execution will
constitute, a legal, valid and binding obligation of each Loan Party party thereto, enforceable
against each such Loan Party in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and by general equitable principles (whether enforcement
is sought by proceedings in equity or at law).




          4.5 No Legal Bar. The execution, delivery and performance of this Agreement and the other Loan Documents, the
issuance of Letters of Credit, the borrowings hereunder and the use of the











 



38



proceeds thereof will
not violate any Requirement of Law or any material Contractual Obligation (only to the extent the
violation of such material Contractual Obligation could reasonably be expected to have a Material
Adverse Effect) of any Group Member and will not result in, or require, the creation or imposition
of any Lien on any of their respective properties or revenues pursuant to any Requirement of Law or
any such material Contractual Obligation. No Requirement of Law applicable to the Borrower or any
of its Subsidiaries could reasonably be expected to have a Material Adverse Effect.




          4.6 Litigation. Except as disclosed on Schedule 4.6 hereto, no litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Borrower,
threatened in writing by or against any Group Member or against any of their respective properties
or revenues (a) with respect to any of the Loan Documents or any of the transactions contemplated
hereby or thereby, or (b) that could reasonably be expected to have a Material Adverse Effect.




          4.7 No Default. No Group Member is in default under or with respect to any of its Contractual Obligations
in any respect that could reasonably be expected to have a Material Adverse Effect. No Default or
Event of Default has occurred and is continuing.




          4.8 Ownership of Property; Liens. Each Group Member has title in fee simple to, or a valid leasehold interest in, all its
real property, and good title to, or a valid leasehold interest in, all its other property, and
none of such property is subject to any Lien except as permitted by Section 7.3, except as could
not reasonably be expected to have a Material Adverse Effect.




          4.9 Intellectual Property. Each Group Member owns, or is licensed to use, all Intellectual Property necessary for the
conduct of its business as currently conducted. Except as disclosed on Schedule 4.9 hereto, no
material claim has been asserted and is pending by any Person challenging any Intellectual Property
owned by any Group Member, nor does any Group Member know of any valid basis for any such claim.
The conduct of the business by each Group Member does not infringe the rights of any Person in any
material respect, and to its knowledge, each Group Member’s Intellectual Property is not being
infringed by any Person in any material respect.




          4.10 Taxes. Each Group Member has filed or caused to be filed all Federal, state, and other material
tax returns that are required to be filed and has paid all taxes shown to be due and payable on
said returns or on any assessments made against it or any of its property and all other taxes, fees
or other charges imposed on it or any of its property by any Governmental Authority (other than any
the amount or validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been provided on the
books of the relevant Group Member); no tax Lien has been filed (other than for taxes not yet due
and payable or being contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the relevant Group Member),
and, to the knowledge of the Borrower, other than as disclosed on Schedule 4.10, no material claim
is being asserted, with respect to any such tax, fee or other charge.




          4.11 Federal Regulations. No part of the proceeds of any Loans, and no other extensions of credit hereunder, will be
used (a) for “buying” or “carrying” any “margin stock” within the respective meanings of each of
the quoted terms under Regulation U as now and from time to time hereafter in effect for any
purpose that violates the provisions of the Regulations of the Board or (b) for any purpose that
violates the provisions of the Regulations of the Board. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form G-3 or FR Form
U-1, as applicable, referred to in Regulation U.












 



39




          4.12 Labor Matters. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse
Effect: (a) there are no strikes or other labor disputes against any Group Member pending or, to
the knowledge of the Borrower, threatened; (b) hours worked by and payment made to employees of
each Group Member have not been in violation of the Fair Labor Standards Act or any other
applicable Requirement of Law dealing with such matters; and (c) all payments due from any Group
Member on account of employee health and welfare insurance have been paid or accrued as a liability
on the books of the relevant Group Member.




          4.13 ERISA. Neither the Borrower nor any Commonly Controlled Entity has (a) any Single Employer Plan
that is in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of
ERISA), (b) failed to make a material contribution or material payment to any Single Employer Plan,
or made any amendment to any Single Employer Plan, which has resulted in the imposition of a Lien
or the posting of a bond or other security under Section 303(k) of ERISA or Section 401(a)(29) of
the Code, or (c) incurred, or is reasonably likely to incur, any material liability under Title IV
of ERISA.




          4.14 Investment Company Act; Other Regulations. No Loan Party is required to register as an “investment company”, or a company “controlled”
by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than Regulation X of the
Board) that limits its ability to incur Indebtedness.




          4.15 Subsidiaries. Except as disclosed to the Administrative Agent by the Borrower in writing from time to
time after the Closing Date, (a) Schedule 4.15 sets forth the name and jurisdiction of
incorporation of each Subsidiary and, as to each such Subsidiary, the percentage of each class of
Capital Stock owned by any Loan Party and (b) there are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments (other than stock options, stock
appreciation rights or restricted stock units granted to employees, officers, consultants or
directors or stock issued pursuant to the Borrower’s stock purchase plans to employees, officers,
consultants or directors and directors’ qualifying shares) of any nature relating to any Capital
Stock of any Subsidiary, except as created by the Loan Documents.




          4.16 Use of Proceeds. The proceeds of the Term Loans and Revolving Loans shall be used to repay amounts
outstanding under the Existing Credit Agreement, to pay related fees and expenses and for working
capital or general corporate purposes. The Letters of Credit shall be used for general corporate
purposes.




          4.17 Environmental Matters. Except as, in the aggregate, could not reasonably be expected to have a Material Adverse
Effect:




          (a) each Group Member is, and within the period of all applicable statutes of limitation has
been, in compliance with all applicable Environmental Laws;




          (b) Materials of Environmental Concern have not been released and are not present under
circumstances that could be expected to result in a release at, on, under, in, or about any real
property now or formerly owned, leased or operated by the Borrower or at any other location
(including, to the knowledge of the Borrower, any location to which Materials of Environmental
Concern have been sent for re-use or recycling or for treatment, storage, or disposal) which could
reasonably be expected to give rise to liability of any Group Member under any applicable
Environmental Law;




          (c) there is no judicial, administrative, or arbitral proceeding (including any notice of
violation or alleged violation) under or relating to any Environmental Law to which any Group
Member











 



40



is, or to the knowledge of the Borrower will be, named as a party that is pending or, to the
knowledge of the Borrower, threatened;




          (d) no Group Member has received any written request for information, or been notified that
it is a potentially responsible party under or relating to the federal Comprehensive Environmental
Response, Compensation, and Liability Act or any similar Environmental Law, or with respect to any
Materials of Environmental Concern;




          (e) no Group Member has entered into or agreed to any consent decree, order, or settlement or
other agreement, nor is subject to any judgment, decree, or order or other agreement, in any
judicial, administrative, arbitral, or other forum, relating to compliance with or liability under
any Environmental Law; and




          (f) no Group Member has entered into any agreement assuming any liabilities of any other
Person under or related to any Environmental Law.




          4.18 Accuracy of Information, etc. No statement or information contained in this Agreement, any other Loan Document, the
Confidential Information Memorandum or any other document, certificate or written statement
furnished by or on behalf of any Loan Party to the Administrative Agent or the Lenders, or any of
them, for use in connection with the transactions contemplated by this Agreement or the other Loan
Documents, taken as a whole, contained as of the date such statement, information, document or
certificate was so furnished (or, in the case of the Confidential Information Memorandum, as of the
date of this Agreement), any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements contained herein or therein not misleading. The projections
and pro forma financial information contained in the materials referenced above are based upon good
faith estimates and assumptions believed by management of the Borrower to be reasonable at the time
made, it being recognized by the Lenders that such financial information as it relates to future
events is not to be viewed as fact and that actual results during the period or periods covered by
such financial information may differ from the projected results set forth therein by a material
amount. There is no fact known to any Loan Party that could reasonably be expected to have a
Material Adverse Effect that has not been expressly disclosed herein (including the Schedules
hereto), in the other Loan Documents, in the Confidential Information Memorandum or in any other
documents, certificates and statements furnished to the Administrative Agent and the Lenders for
use in connection with the transactions contemplated hereby and by the other Loan Documents.




          4.19 Solvency. Each Loan Party is, and after giving effect to the transactions contemplated hereby and the
incurrence of all Indebtedness and obligations being incurred in connection herewith and therewith
will be and will continue to be, Solvent.




SECTION 5. CONDITIONS PRECEDENT




          5.1 Conditions to Initial Extension of Credit. The agreement of each Lender to make the initial extension of credit requested to be made
by it is subject to the satisfaction, prior to or concurrently with the making of such extension of
credit on the Closing Date, of the following conditions precedent:




          (a) Credit Agreement; Guarantee. The Administrative Agent shall have received (i)
this Agreement, executed and delivered by the Administrative Agent, the Borrower and each Person
listed on Schedule 1.1A and (ii) the Guarantee, executed and delivered by each Subsidiary
Guarantor.











 



41




          (b) Financial Statements. The Lenders shall have received (i) audited consolidated
financial statements of the Borrower and its consolidated Subsidiaries for the 2007, 2008 and 2009
fiscal years and (ii) unaudited interim consolidated financial statements for each fiscal quarter
ended after the date of the latest applicable financial statements delivered pursuant to clause (i)
of this paragraph as to which such financial statements are available, and such financial
statements shall not, in the reasonable judgment of the Lenders, reflect any material adverse
change in the consolidated financial condition of the Borrower and its consolidated Subsidiaries,
as reflected in the financial statements or projections contained in the Confidential Information
Memorandum.




          (c) Approvals. All governmental and third party approvals necessary or, in the
reasonable discretion of the Administrative Agent, advisable in connection with the continuing
operations of the Group Members and the transactions contemplated hereby shall have been obtained
and be in full force and effect, and all applicable waiting periods shall have expired without any
action being taken or
threatened by any competent authority that would restrain, prevent or otherwise impose adverse
conditions on the financing contemplated hereby.




          (d) Fees. The Lenders, the Administrative Agent and the Arrangers shall have received
all fees required to be paid, and all expenses for which invoices have been presented (including
the reasonable fees and expenses of legal counsel), on or before the Closing Date. All such
amounts will be paid with proceeds of Loans made on the Closing Date and will be reflected in the
funding instructions given by the Borrower to the Administrative Agent on or before the Closing
Date.




          (e) Closing Certificate; Certified Certificate of Incorporation; Good Standing
Certificates. The Administrative Agent shall have received (i) a certificate of each Loan
Party, dated the Closing Date, substantially in the form of Exhibit C, with appropriate insertions
and attachments, including the certificate of incorporation of each Loan Party that is a
corporation certified by the relevant authority of the jurisdiction of organization of such Loan
Party, and (ii) a long form good standing certificate for each Loan Party from its jurisdiction of
organization.




          (f) Legal Opinions. The Administrative Agent shall have received the legal opinion of
Sullivan & Cromwell LLP, counsel to the Borrower and its Subsidiaries, substantially in the form of
Exhibit E.




          (g) Existing Credit Agreement. The Administrative Agent shall have received
satisfactory evidence that amounts owing by the Borrower under the Existing Credit Agreement shall
have been paid in full.




          (h) Projections. The Lenders shall have received satisfactory projections for the
2015 fiscal year to supplement the projections through the 2010 fiscal year previously delivered
pursuant to the Existing Credit Agreement.




          5.2
 Conditions to Each Extension of Credit. The agreement of each Lender to make any extension of credit requested to be made by it on
any date (including its initial extension of credit) is subject to the satisfaction of the
following conditions precedent:




          (a) Representations and Warranties. Each of the representations and warranties made
by any Loan Party in or pursuant to the Loan Documents shall be true and correct on and as of such
date as if made on and as of such date unless such representation relates solely to an earlier
date, in which case such representation shall be true and correct as of such date.





 











 





 42




          (b) No Default. No Default or Event of Default shall have occurred and be
continuing on such date or after giving effect to the extensions of credit requested to be made on
such date.



Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower hereunder shall
constitute a representation and warranty by the Borrower as of the date of such extension of credit
that the conditions contained in this Section 5.2 have been satisfied.




SECTION 6. AFFIRMATIVE COVENANTS




          The Borrower hereby agrees that, so long as the Commitments remain in effect, any Letter of
Credit remains outstanding or any Loan or other amount is owing to any Lender or the Administrative
Agent hereunder, the Borrower shall and shall cause each of its Subsidiaries to:




          6.1 Financial Statements. Furnish to the Administrative Agent and each Lender:




          (a) as soon as available, but in any event (i) within 90 days after the end of each fiscal
year of the Borrower or (ii) if the Borrower has been granted an extension by the Securities and
Exchange Commission permitting the late filing by the Borrower of any annual report on form 10-K
the earlier of (x) 120 days after the end of each fiscal year of the Borrower or (y) the last day
of any such extension, a copy of the audited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such year and the related audited consolidated
statements of operations and of cash flows for such year, setting forth in each case in comparative
form the figures for the previous year, reported on without a “going concern” or like qualification
or exception, or qualification arising out of the scope of the audit, by KPMG LLP or other
independent certified public accountants of nationally recognized standing; and




          (b) as soon as available, but in any event (i) not later than 45 days after the end of each of
the first three fiscal quarters of each fiscal year of the Borrower or (ii) if the Borrower has
been granted an extension by the Securities and Exchange Commission permitting the late filing by
the Borrower of any quarterly report on form 10-Q the earlier of (x) 60 days after the end of the
relevant fiscal quarter or (y) the last day of any such extension, the unaudited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such quarter and
the related unaudited consolidated condensed statements of operations and of cash flows for such
quarter and the portion of the fiscal year through the end of such quarter, setting forth in each
case in comparative form the figures for the corresponding fiscal quarter of the previous year,
certified by a Responsible Officer as being fairly stated in all material respects (subject to
normal year-end audit adjustments).



All such financial statements shall be complete and correct in all material respects and shall be
prepared in reasonable detail and in accordance with GAAP applied (except as approved by such
accountants or officer, as the case may be, and disclosed in reasonable detail therein and except,
in the case of unaudited financials, for the absence of footnotes) consistently throughout the
periods reflected therein and with prior periods. Reports or financial information required to be
delivered pursuant to this Section 6.1 (to the extent any such financial statements, reports, proxy
statements or other materials are included in materials otherwise filed with the SEC) may be
delivered electronically and if so, shall be deemed to have been delivered on the date on which the
Borrower gives notice to the Administrative Agent (who shall then give notice to the Lenders) that
the Borrower has filed such report or financial information through the SEC’s Electronic Data
Gathering, Analysis and Retrieval System or posted such report or financial information or provides
a link thereto on the Borrower’s website on the internet. Notwithstanding the foregoing, the
Borrower shall deliver paper copies of any report or financial statement referred to in this










 



43



Section 6.1 to any Lender if the Administrative Agent, on behalf and upon the reasonable request of
such Lender, requests the Borrower to furnish such paper copies.




          6.2 Certificates; Other Information. Furnish to the Administrative Agent and each Lender
(or, in the case of clause (f), to the relevant Lender):




          (a) concurrently with the delivery of the financial statements referred to in Section 6.1(a),
a certificate of the independent certified public accountants reporting on such financial
statements stating that in making the examination necessary therefor no knowledge was obtained of
any Default or Event of Default, except as specified in such certificate (it being understood that
such certificate shall be limited to the items that independent certified public accountants are
permitted to cover in such certificates pursuant to their professional standards and customs of the
profession);




          (b) concurrently with the delivery of any financial statements pursuant to Section 6.1, (i) a
certificate of a Responsible Officer stating that, to the best of such Responsible Officer’s
knowledge, no Default or Event of Default has occurred and is continuing, except as specified in
such certificate and (ii) a Compliance Certificate containing all information and calculations
necessary for determining compliance by each Group Member with the provisions of this Agreement
referred to therein as of the last day of the fiscal quarter or fiscal year of the Borrower, as the
case may be;




          (c) as soon as available, and in any event no later than 60 days after the end of each fiscal
year of the Borrower, a projected consolidated balance sheet of the Borrower and its Subsidiaries
as of the end of the following fiscal year, the related consolidated statements of projected cash
flow, projected changes in financial position and projected income and a description of the
underlying assumptions applicable thereto), and, as soon as available, significant revisions, if
any, of projections with respect to such fiscal year (collectively, the “Projections”),
which Projections shall in each case be accompanied by a certificate of a Responsible Officer
stating that such Projections are based on reasonable estimates, information and assumptions and
that such Responsible Officer has no reason to believe that such Projections are incorrect or
misleading in any material respect;




          (d) within 45 days after the end of each fiscal quarter of the Borrower other than the last
fiscal quarter of the Borrower’s fiscal year, and 90 days after the end of the Borrower’s fiscal
year, a narrative discussion and analysis of the financial condition and results of operations of
the Borrower and its Subsidiaries for such fiscal quarter and for the period from the beginning of
the then current fiscal year to the end of such fiscal quarter, as compared to the portion of the
Projections covering such periods and to the comparable periods of the previous year; provided,
that this requirement shall be deemed satisfied on delivery of the Borrower’s 10 -Q or 10 -K, as
applicable, which is in compliance with the Securities Exchange Act of 1934, as amended, and
Regulation S -X (which may be delivered in the same manner provided for in Section 6.1);




          (e) within five days after the same are sent, copies of all financial statements and reports
that the Borrower sends to the holders of any class of its debt securities or public equity
securities, within five days after the same are received, copies of all correspondence received by
the Borrower from the SEC, and, within five days after the same are filed, copies of all financial
statements and reports that the Borrower may make to, or file with, the SEC (which may be delivered
in the same manner provided for in Section 6.1); and




          (f) promptly, such additional financial and other information as any Lender may from time to
time reasonably request.











 



44




          6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, all its material obligations (including taxes)
of whatever nature, except where the amount or validity thereof is currently being contested in
good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto
have been provided on the books of the relevant Group Member.




          6.4 Maintenance of Existence; Compliance. (a)(i) Preserve, renew and keep in full force
and effect its organizational existence and (ii) take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its business, except, in
each case, as otherwise permitted by Section 7.4 and except, in the case of clause (ii) above, to
the extent that failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (b) comply with all Contractual Obligations and Requirements of Law except to the
extent that failure to comply therewith could not, in the aggregate, reasonably be expected to have
a Material Adverse Effect.




          6.5 Maintenance of Property; Insurance. (a) Keep all material property necessary in the
operation of its business in good working order and condition, ordinary wear and tear and casualty
excepted, except where the failure to do so could not reasonably be expected to result in a
Material Adverse Effect and (b) maintain with reputable insurance companies that are financially
sound at the time such insurance is purchased insurance on all its property in at least such
amounts and against at least such risks as are customarily insured against in the same general area
by companies engaged in the same or a similar business.




          6.6 Inspection of Property; Books and Records; Discussions. (a) Keep proper books of
records and accounts in which true and correct entries in conformity with GAAP and all Requirements
of Law shall be made of all dealings and transactions in relation to its business and activities
from which financial statements in conformity with GAAP can be prepared and (b) following
reasonable advance notice, permit representatives of the Administrative Agent and any Lender to
visit and inspect any of its properties and examine and make abstracts from any of its books and
records at any reasonable time and as often as may reasonably be desired and to discuss the
business, operations, properties and financial and other condition of the Group Members with
officers and employees of the Group Members and with their independent certified public
accountants.




          6.7 Notices. Promptly give notice to the Administrative Agent and each Lender of:




          (a) the occurrence of any Default or Event of Default;




          (b) any (i) default under any material Contractual Obligation of any Group Member or (ii)
litigation, investigation or proceeding that may exist at any time between any Group Member and any
Governmental Authority, that in either case, if not cured or if adversely determined, as the case
may be, would reasonably be expected to have a Material Adverse Effect;




          (c) any litigation or proceeding affecting any Group Member (i) in which the amount involved
is $10,000,000 or more and not covered by insurance, (ii) in which injunctive or similar relief is
sought or (iii) which relates to any Loan Document;




          (d) the following events, as soon as possible and in any event within 30 days after the
Borrower knows or has reason to know thereof: (i) the occurrence of any Reportable Event with
respect to any Plan; a failure to make any required contribution to a Plan, a determination that
any Single Employer Plan is in “at risk” status, or a determination that any Multiemployer Plan is
in “endangered” or “critical” status, and in each case that could reasonably be expected to result
in a Material Adverse Effect, the creation of any Lien in favor of the PBGC or a Plan; or any
withdrawal from, or the termination,












 



45



Reorganization or Insolvency of, any Multiemployer Plan, or (ii) the institution of
proceedings or the taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan that is subject to Title IV of ERISA; and




          (e) any development or event that has had or would reasonably be expected to have a Material
Adverse Effect.



Each notice pursuant to this Section 6.7 shall be accompanied by a statement of a Responsible
Officer setting forth details of the occurrence referred to therein and stating what action the
relevant Group Member proposes to take with respect thereto.




          6.8 Environmental Laws. (a) Comply with, and ensure compliance by all tenants and
subtenants, if any, with, all applicable Environmental Laws, and obtain and comply with and
maintain, and ensure that all tenants and subtenants obtain and comply with and maintain, any and
all licenses, approvals, notifications, registrations or permits required by applicable
Environmental Laws. For purposes of this Section 6.8(a), noncompliance by the Borrower with any
applicable Environmental Law shall be deemed not to constitute a breach of this covenant
provided that, upon learning of any actual or suspected noncompliance, the Borrower shall
promptly undertake all reasonable efforts to achieve compliance, and provided
further that, in any case, such non -compliance, and any other noncompliance with
Environmental Law, individually or in the aggregate, could not reasonably be expected to give rise
to a Material Adverse Effect.




          (b) Conduct and complete all investigations, studies, sampling and testing, and all remedial,
removal and other actions required by a Governmental Authority to be conducted by a Group Member
under Environmental Laws or any other Requirement of Law and promptly comply with all orders and
directives of all Governmental Authorities regarding Environmental Laws, other than such orders and
directives as to which an appeal has been timely and properly taken in good faith, and
provided that the pendency of any and all such appeals could not reasonably be expected to
give rise to a Material Adverse Effect.




          6.9 Additional Subsidiaries. With respect to any new Material Subsidiary (other than a
Foreign Subsidiary) created or acquired after the Closing Date by any Group Member (which, for the
purposes of this Section 6.10, shall include any existing Material Subsidiary that ceases to be a
Foreign Subsidiary), within 30 days (or such longer period agreed to by the Administrative Agent in
its sole discretion, but in no event longer than 90 days) (i) cause such new Material Subsidiary
(A) to become a party to the Guarantee and (B) to deliver to the Administrative Agent a certificate
of such Material Subsidiary, substantially in the form of Exhibit C, with appropriate insertions
and attachments, and (ii) if requested by the Administrative Agent, deliver to the Administrative
Agent legal opinions relating to the matters described above, which opinions shall be in form and
substance, reasonably satisfactory to the Administrative Agent.




SECTION 7. NEGATIVE COVENANTS




          The Borrower hereby agrees that, so long as the Commitments remain in effect, any Letter of
Credit remains outstanding or any Loan or other amount is owing to any Lender or the Administrative
Agent hereunder, the Borrower shall not, and shall not permit any of its Subsidiaries to, directly
or indirectly:











 



46




          7.1 Financial Condition Covenants. (a) Consolidated Leverage Ratio. Permit the
Consolidated Leverage Ratio, calculated as at the end of any fiscal quarter for the period of four
consecutive fiscal quarters of the Borrower then ended, to exceed 3.00 to 1.00; or




          (b) Consolidated Interest Expense Ratio. Permit the Consolidated Interest Expense
Ratio, calculated as at the end of such fiscal quarter for the period of four consecutive fiscal
quarters of the Borrower then ended, to be less than 3.50 to 1.00.




          Each of the Consolidated Leverage Ratio and Consolidated Interest Expense Ratio shall be
calculated for purposes of this Section 7.1 on a Pro Forma Basis.




          7.2 Indebtedness. Create, issue, incur, assume, become liable in respect of or suffer to
exist any Indebtedness, except:




          (a) Indebtedness of any Loan Party pursuant to any Loan Document;




          (b) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or
any other Subsidiary; provided that Indebtedness of any Subsidiary that is not a Wholly
Owned Subsidiary Guarantor to the Borrower or any Wholly Owned Subsidiary Guarantor shall be
subject to Section 7.8(g);




          (c) Guarantee Obligations (i) incurred in the ordinary course of business by the Borrower or
any of its Subsidiaries of obligations of the Borrower or any Subsidiary, (ii) incurred in the
ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees,
lessors and licensees, and (iii) otherwise constituting an Investment permitted by Section 7.8;




          (d) Indebtedness outstanding on the date hereof and listed on Schedule 7.2(d) and any
refinancings, refundings, renewals or extensions thereof (including any associated fees, expenses
and accrued but unpaid interest);




          (e) Indebtedness (including, without limitation, Capital Lease Obligations, industrial
development or similar bonds, or tax-advantaged governmental or quasi-governmental financings) and
purchase money obligations (including obligations in respect of mortgage or other similar
financings) to finance the purchase, repair or improvement of fixed or capital assets secured by
Liens permitted by Section 7.3(g) in an aggregate principal amount not to exceed, as at the date of
any incurrence thereof, 5.0% of the total assets of the Borrower and its Subsidiaries as at the end
of the fiscal quarter most recently ended at or prior to such time and for which financial
statements are available, calculated on a Pro Forma Basis;




          (f) Indebtedness of the Borrower or any Subsidiary in respect of (i) standby or performance
letters of credit, surety bonds, security deposits or other performance guarantees;
provided that the aggregate amount of Indebtedness permitted by this clause (i) shall not
at any time exceed, at the time of any incurrence thereof, the greater of (A) $50,000,000 and (B)
25.0% of Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended
at or prior to such time and for which financial statements are available, calculated on a Pro
Forma Basis; and (ii) trade letters of credit;




          (g) Indebtedness of any Person that becomes a Subsidiary after the date hereof and any
refinancing thereof; provided that such Indebtedness exists at the time such Person becomes
a Subsidiary and is not created in contemplation of or in connection with such Person becoming a
Subsidiary;













 



47




          (h) additional Indebtedness of the Borrower or any of its Subsidiaries in an aggregate
principal amount (for the Borrower and all Subsidiaries) not to exceed at any one time outstanding
the greater of (A) $50,000,000 and (B) 40.0% of Consolidated EBITDA for the period of four
consecutive fiscal quarters most recently ended at or prior to such time and for which financial
statements are available, calculated on a Pro Forma Basis;




          (i) Indebtedness incurred by the Borrower or any of its Subsidiaries in respect of bank
guarantees issued in the ordinary course of business consistent with past practice, including in
respect of workers compensation claims, health, disability or other employee benefits or property,
casualty or liability insurance or self insurance, or other Indebtedness with respect to
reimbursement type obligations regarding workers compensation claims; provided that any
reimbursement obligations in respect thereof are reimbursed within 30 days following the due date
thereof;




          (j) (i) Indebtedness in respect of netting services, overdraft protections, automatic
clearinghouse arrangements and similar arrangements in each case in connection with deposit
accounts and (ii) Indebtedness arising from the honoring of a bank or other financial institution
of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of
business; provided that any such Indebtedness is extinguished within 30 days of its incurrence;




          (k) Indebtedness consisting of promissory notes issued by any Loan Party to current or former
officers, directors and employees, their respective estates, spouses or former spouses to finance
the purchase or redemption of equity interests of the Borrower permitted by Section 7.6;




          (l) Indebtedness in respect of hedging obligations to the extent constituting Indebtedness)
incurred in the ordinary course of business and not for speculative purposes;




          (m) Indebtedness consisting of obligations of the Borrower or its Subsidiaries under deferred
consideration or other similar arrangements incurred by such Person in connection with Permitted
Acquisitions and any other Investments permitted hereunder;




          (n) Permitted Subordinated Debt and Permitted Senior Unsecured Debt; provided that the
Borrower shall be in pro forma compliance with the covenants set forth in Section 7.1 after giving
effect to the incurrence of any such Permitted Subordinated Debt or such Permitted Senior Unsecured
Debt and any refinancings or repayment of Indebtedness;




          (o) Indebtedness of Foreign Subsidiaries (and renewals, refinancing and extensions thereof) in
an aggregate amount at any time outstanding not to exceed $10,000,000; and




          (p) For the purposes of determining compliance with, and the outstanding principal amount of
Indebtedness incurred pursuant to and in compliance with, this Section 7.2, in the event that
Indebtedness meets the criteria of more than one of the types of Indebtedness described in this
Section 7.2, the Borrower, in its sole discretion, shall classify, and may from time to time
reclassify, such item of Indebtedness and only be required to include the amount and type of such
Indebtedness in one of the clauses of this Section 7.2.




          7.3 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property,
whether now owned or hereafter acquired, except:




          (a) Liens for taxes, assessments or governmental charges not yet due or that are being
contested in good faith by appropriate proceedings, provided that adequate reserves (in the
good












 



48



faith judgment of the management of the Borrower) with respect thereto are maintained on the
books of the Borrower or its Subsidiaries, as the case may be, in conformity with GAAP;




          (b) statutory or common law Liens of landlords, carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business that are
not overdue for a period of more than 60 days or that are being contested in good faith by
appropriate proceedings;




          (c) pledges or deposits in the ordinary course of business (i) in connection with workers’
compensation, unemployment insurance and other social security legislation and (ii) securing
liability for reimbursement or indemnification obligations of (including obligations in respect of
bank guarantees issued for the account of Foreign Subsidiaries) insurance carriers providing
property, casualty or liability insurance to the Borrower or any of its Subsidiaries;




          (d) deposits to secure the performance of bids, trade contracts, governmental contracts (other
than for borrowed money), leases, statutory obligations, surety, customs and appeal bonds,
performance bonds and other obligations of a like nature (including those required or requested by
any Governmental Authority) incurred in the ordinary course of business, and earnest money deposits
to secure obligations under purchase agreements;




          (e) leases, subleases, easements, rights-of-way, restrictions (including zoning restrictions)
and other similar encumbrances and minor title defects incurred in the ordinary course of business
that do not in any case materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;




          (f) Liens in existence on the date hereof listed on Schedule 7.3(f), securing Indebtedness
permitted by Section 7.2(d), or the renewal, modification, replacement, refinancing, extension or
refunding of such Indebtedness, provided that (i) no such Lien is spread to cover any
additional property after the Closing Date other than (A) after-acquired property that is affixed
or incorporated into the property covered by such Lien or financed by Indebtedness permitted under
Section 7.2(d), and (B) proceeds and products thereof and (ii) the renewal, modification,
replacement, refinancing, extension or refunding of the obligations secured or benefited by such
Liens, to the extent constituting Indebtedness, is permitted by Section 7.2(d);




          (g) Liens securing Indebtedness of the Borrower or any other Subsidiary incurred pursuant to
Section 7.2(e) to finance the acquisition of fixed or capital assets, provided that (i)
such Liens shall be created within 90 days after the acquisition, repair, replacement or
improvement of such fixed or capital assets, (ii) such Liens (other than in the case of Liens
securing industrial development or similar bonds, or tax-advantaged governmental or
quasi-governmental financings, in which case Liens may encumber such property as may be permitted
under the terms of such financings) do not at any time encumber any property other than the
property financed by such Indebtedness, replacements, additions and accessions thereto and the
proceeds thereof and (iii) the amount of Indebtedness secured thereby is not increased;




          (h) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Borrower or any Subsidiary and (iii) such Lien shall
secure only those obligations which it secures on the date of such acquisition or the date such
Person becomes a Subsidiary, as the case may be, and refinancings,












 



49



extensions, renewals and replacements thereof not to exceed the outstanding principal amount
thereof together with associated fees, expenses and premium and accrued but unpaid interest;




          (i) any judgment Lien not constituting an Event of Default under Section 8.1(h);




          (j) any interest or title of a licensor or sublicensor of Intellectual Property under any
license or sublicense agreement (including software and other technology licenses) entered into by
the Borrower or any other Subsidiary in the ordinary course of its business;




          (k) Liens not otherwise permitted by this Section so long as the aggregate outstanding
principal amount of the obligations secured thereby does not exceed $25,000,000 at any one time;




          (l) Liens granted by a Foreign Subsidiary (i) to the Borrower or any other Subsidiary to
secure Indebtedness owed by such Foreign Subsidiary to the Borrower or such other Subsidiary and
(ii) in respect of Indebtedness that was incurred in connection with the acquisition of such
Foreign Subsidiary pursuant to a Permitted Acquisition in an aggregate principal amount not to
exceed $40,000,000 at any one time outstanding, and renewals, refinancings and extensions thereof;




          (m) Liens arising from precautionary UCC (or other similar recording or notice statutes)
financing statement filings regarding operating leases permitted pursuant to this Agreement;




          (n) Liens in favor of a banking or other financial institution arising as a matter of law or
under customary general terms and conditions encumbering deposits (including the right of set-off)
and which are within the general parameters customary in the banking industry or arising pursuant
to such banking institutions’ general terms and conditions;




          (o) Liens (i) on cash advances in favor of the seller of any property to be acquired in an
Investment permitted pursuant to Section 7.8, or (ii) consisting of an agreement to Dispose of any
property in a Disposition permitted by Section 7.5, in each case, solely to the extent such
Investment or Disposition, as the case may be, would have been permitted on the date of the
creation of such Lien;




          (p) Liens on property of any Foreign Subsidiary securing Indebtedness of such Foreign
Subsidiary to the extent such Indebtedness is permitted hereunder; and




          (q) Liens on cash or Cash Equivalents securing reimbursement obligations of Borrower under
letters of credit in an aggregate amount of all such cash and Cash Equivalents not to exceed
$40,000,000.




          7.4 Fundamental Changes. Enter into any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or Dispose of all
or substantially all of its property or business, except that the following are permitted
(collectively, “Permitted Acquisitions”):




          (a) any Person may be merged, amalgamated or consolidated with or into the Borrower
(provided that the Borrower shall be the continuing or surviving corporation) or with or
into any Wholly Owned Subsidiary Guarantor (provided that the Wholly Owned Subsidiary
Guarantor shall be the continuing or surviving corporation or the surviving Person shall expressly
assume the obligations of the Wholly Owned Subsidiary Guarantor pursuant to documents reasonably
acceptable to the Administrative Agent); provided that any such merger involving a Person
that is not a Subsidiary immediately prior to such merger shall not be permitted unless also
permitted by Section 7.8(i); provided












 



50



further, that prior to consummating any merger pursuant to this clause (a) involving a
Person that is not a Subsidiary, the Borrower will deliver to the Administrative Agent a
certificate of a Responsible Officer demonstrating compliance immediately following such merger, on
a pro forma basis giving effect to such merger, with Section 7.1;




          (b) subject to Section 7.4(a) hereof, any Subsidiary may be merged or consolidated with or
into any other Subsidiary;




          (c) (i) any Subsidiary may liquidate or dissolve or any Subsidiary may change its legal form
if the Borrower determines in good faith that such action is in the best interests of the Borrower
and its Subsidiaries and is not materially disadvantageous to the Lenders, and (ii) any Subsidiary
may liquidate or dissolve if all or substantially all of its assets are transferred to the Borrower
or a Subsidiary, it being understood that in the case of any dissolution of a Subsidiary that is a
Subsidiary Guarantor, such Subsidiary shall at or before the time of such dissolution transfer its
assets to another Subsidiary that is a Subsidiary Guarantor unless such Disposition of assets is
permitted hereunder; and in the case of any change in legal form, a Subsidiary that is a Subsidiary
Guarantor will remain a Subsidiary Guarantor unless such Subsidiary Guarantor is otherwise
permitted to cease being a Subsidiary Guarantor hereunder;




          (d) (i) any Subsidiary of the Borrower may Dispose of any or all of its assets to the Borrower
or another Subsidiary (upon voluntary liquidation or otherwise), provided that if the transferor in
such a transaction is a Subsidiary Guarantor, then (A) the transferee must either be the Borrower
or a Subsidiary Guarantor and (B) to the extent constituting an Investment, such Investment must be
a permitted Investment in accordance with Section 7.8, and (ii) the Borrower or any Subsidiary of
the Borrower may Dispose of any or all of its assets pursuant to a Disposition permitted by Section
7.5; and




          (e) the Borrower or any Subsidiary may make any Investment expressly permitted by Section 7.8
structured as a merger, consolidation or amalgamation.




          7.5 Disposition of Property. Dispose of any of its property, whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such
Subsidiary’s Capital Stock to any Person, except:




          (a) Dispositions of obsolete, surplus or worn out property, whether now owned or hereafter
acquired, in the ordinary course of business and Dispositions of property no longer used or useful
in the conduct of the business of the Borrower and its Subsidiaries (including the abandonment or
other Disposition of Intellectual Property that is, in the reasonable business judgment of the
Borrower and its Subsidiaries, no longer material to the conduct of the business of the Loan
Parties taken as a whole);




          (b) the sale, transfer or lease of any assets in the ordinary course of business;




          (c) Dispositions permitted by Section 7.4;




          (d) the sale, contribution or issuance of any Subsidiary’s Capital Stock to the Borrower or
any Subsidiary;




          (e) Dispositions by the Borrower to any Subsidiary and by any Subsidiary to the Borrower or
any other Subsidiary on reasonable terms;




          (f) Dispositions constituting the making or liquidating of Investments permitted by Section
7.8;













 



51




          (g) Dispositions constituting the making of a Restricted Payment permitted by Section 7.6;




          (h) Dispositions of assets to the extent that (i) such assets are exchanged for credit against
the purchase price of similar replacement assets or (ii) the proceeds of such Dispositions are
promptly applied to the purchase price of such replacement assets;




          (i) Dispositions of accounts receivable in connection with the collection or compromise
thereof;




          (j) leases, subleases, licenses or sublicenses of property (including Intellectual Property)
on customary terms in the ordinary course of business and which do not materially interfere with
the business of the Borrower and its Subsidiaries; and




          (k) the Disposition of other property having a fair market value not to exceed 7.5% of the
total assets in the aggregate for any fiscal year of the Borrower, calculated on a Pro Forma Basis.




          7.6 Restricted Payments. Declare or pay any dividend (other than dividends payable solely
in common stock or similar equity interests or options or other rights to acquire such equity
interests of the Person making such dividend) on, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement
or other acquisition of, any Capital Stock of any Group Member, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of any Group Member (collectively, “Restricted
Payments”), except that:




          (a) the payment of dividends and distributions within sixty days after the date of declaration
thereof, if at the date of declaration of such payment, such payment would have complied with other
provisions of Section 7.6;




          (b) any Subsidiary may make Restricted Payments to the Borrower other Subsidiary (and, in the
case of a Restricted Payment by a non-Wholly Owned Subsidiary, to the Borrower and any Subsidiary
and to each other owner of equity interests of such Subsidiary based on their relative ownership
interests);




          (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option
plans or other benefit plans for management, employees consultants or directors of the Borrower and
its Subsidiaries and stock purchase plans with employees, officers, consultants or directors;




          (d) the Borrower may pay cash dividends to holders of Permitted Preferred Stock;
provided that, in the case of any Restricted Payment made pursuant to this clause (d), (x)
no Default or Event of Default shall have occurred or be continuing after giving effect to any such
Restricted Payment and (y) the Borrower shall be in pro forma compliance with the covenants set
forth in Section 7.1 after giving effect to any such Restricted Payment and the incurrence of any
Indebtedness in connection therewith;




          (e) repurchases of equity interests of the Borrower deemed to occur upon the non-cash exercise
of stock options, warrants, stock appreciation rights and restricted stock units;




          (f) the Borrower may make Restricted Payments with any cash proceeds contributed to its common
equity and from the Net Cash Proceeds of any permitted equity issuance, so long as, with












 



52



respect to any such Restricted Payments, no Event of Default shall have occurred or be
continuing after giving effect to any such Restricted Payment;




          (g) the Borrower may repurchase, retire or otherwise acquire stock appreciation rights and
restricted stock units from directors, officers or employees of the Borrower or any Subsidiary
Guarantor (or their estate, family members, spouse and/or former spouse);




          (h) the Borrower or any Subsidiary Guarantor may honor any conversion request by a holder of
convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any
such conversion and may make payments on convertible Indebtedness in accordance with its terms; and




          (i) the Borrower may make other Restricted Payments not otherwise permitted by this Section so
long as (x) no Default or Event of Default shall have occurred or be continuing after giving effect
to any such Restricted Payment and (y) the Borrower shall be in pro forma compliance with the
covenants set forth in Section 7.1 (provided that the Borrower’s Consolidated Leverage
Ratio shall be at least 0.25 less than the applicable level set forth in Section 7.1(a)) after
giving effect to any such Restricted Payment and the incurrence of any Indebtedness in connection
therewith.




          7.7 Reserved.




          7.8 Investments. Make any advance, loan, extension of credit (by way of guaranty or
otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or
other debt securities of, or any assets constituting a business unit of, or make any other
investment in, any Person (all of the foregoing, “Investments”), except:




          (a) extensions of trade credit in the ordinary course of business (including advances made to
distributors consistent with past practice), Investments received in satisfaction or partial
satisfaction thereof from financially troubled account debtors, and Investments consisting of
prepayments to suppliers in the ordinary course of business and consistent with past practice;




          (b) investments in cash and Cash Equivalents or that were Cash Equivalents when made;




          (c) Guarantee Obligations permitted by Section 7.2;




          (d) loans and advances to officers, directors and employees of any Group Member in the
ordinary course of business (including for travel, entertainment and relocation expenses) and (ii)
in connection with such Person’s purchase of equity interests of the Borrower, in an aggregate
amount not to exceed $10,000,000 at any one time outstanding;




          (e) Investments in existence on the date hereof listed on Schedule 7.8(e) and any
modification, replacement, renewal or extension thereof;




          (f) intercompany Investments by any Group Member in the Borrower or any Person that, prior to,
or after giving effect to, such investment, is a Wholly Owned Subsidiary Guarantor;




          (g) intercompany Investments by any Group Member in a Subsidiary that is not a Wholly Owned
Subsidiary Guarantor; provided that the aggregate amount of such Investments (excluding all
such Investments otherwise permitted pursuant to this Section 7.8), less any cash return on
Investments received after the date hereof, shall not at the time of the making of any such
Investment












 



53



exceed the greater of (i) $100,000,000 and (ii) 45.0% of Consolidated EBITDA for the period of
four consecutive fiscal quarters most recently ended on or prior to such time for which financial
statements are available, calculated on a Pro Forma Basis;




          (h) investments consisting of deposit or securities accounts maintained in the ordinary course
of business;




          (i) any acquisition of any assets or capital stock of another Person (including as a result of
merger or otherwise); provided that (i) the Borrower shall be in pro forma compliance with
the covenants in Section 7.1 after giving effect to such acquisition for which financial statements
are available as if such acquisition occurred immediately prior to the first day of the period of
four consecutive fiscal quarters most recently ended prior to such acquisition; and (ii) if such
acquisition would require the Borrower to provide pro forma financial information regarding such
acquisition in a current report on Form 8-K, quarterly report on Form 10-Q, or annual report on
Form 10-K filed with the SEC, the Borrower shall have delivered a certificate of a Responsible
Officer certifying the Borrower’s pro forma compliance described in clause (i) above and containing
all information and calculations necessary for determining such compliance;




          (j) investments (including debt obligations and equity interests) received in connection with
the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;




          (k) investments in exchange for, or made with the proceeds (within 180 days of receipt) of,
existing investments which are of at least equivalent market value (as reasonably determined by the
Borrower’s chief financial officer, chief executive officer, corporate controller or president as
at the time of exchange or disposition) as such existing investments and are of the same type and
nature as such existing investment;




          (l) Investments by the Borrower or any Domestic Subsidiary in any Foreign Subsidiary in
connection with any Permitted Acquisition or Investment permitted by this Section 7.8;
provided that the proceeds of such Investments shall be used directly or indirectly through
one or more Subsidiaries solely for the purpose of paying the consideration and transaction costs
related to such Permitted Acquisition or Investment permitted by this Section 7.8;




          (m) Investments in the ordinary course of business consisting of (i) endorsements for
collection or deposit and (ii) customary trade arrangements with customers consistent with past
practices;




          (n) the licensing, sublicensing or contribution of Intellectual Property rights with Persons
other than the Borrower and its Subsidiaries in the ordinary course of business on customary terms;




          (o) Investments of a Subsidiary that is acquired after the Closing Date or of a company merged
or amalgamated or consolidated into the Borrower or merged, amalgamated or consolidated with a
Subsidiary, in each case in accordance with Section 7.4, after the Closing Date to the extent that
such Investments were not made in contemplation of or in connection with such acquisition, merger,
amalgamation or consolidation, and that do not constitute a material portion of the assets acquired
by the Borrower and its Subsidiaries in such transaction and were in existence or committed to be
made on the date of such acquisition, merger or consolidation;




          (p) advances of payroll payments to employees in the ordinary course of business and
Investments made pursuant to employment and severance arrangements of officers and employees in












 



54



the ordinary course of business and transactions pursuant to stock option plans and employee
benefit plans and arrangements in the ordinary course of business




          (q) Investments consisting of purchases and acquisitions of supplies, materials and equipment;




          (r) Investments by any Foreign Subsidiary in any other Foreign Subsidiary; and




          (s) in addition to Investments otherwise expressly permitted by this Section, Investments by
the Borrower or any of its Subsidiaries in an aggregate amount (valued at cost) not to exceed
$25,000,000 in any fiscal year.




          7.9 Transactions with Affiliates. Enter into any transaction, including any purchase,
sale, lease or exchange of property, the rendering of any service or the payment of any management,
advisory or similar fees, with any Affiliate (other than the Borrower or any Subsidiary) unless
such transaction is (a) otherwise permitted under this Agreement, (b) upon fair and reasonable
terms and conditions substantially as favorable to the Borrower or such Subsidiary as it would
obtain in a comparable arm’s length transaction with a Person that is not an Affiliate, and (c) in
the ordinary course of business of the relevant subsidiary.




          7.10 Sales and Leasebacks. Enter into any arrangement with any Person providing for the
leasing by any Group Member of real or personal property that has been or is to be sold or
transferred by such Group Member to such Person or to any other Person to whom funds have been or
are to be advanced by such Person on the security of such property or rental obligations of such
Group Member unless such arrangement is permitted under Section 7.2(e).




          7.11 Swap Agreements. Enter into any Swap Agreement, except (a) Swap Agreements entered
into, or guaranteed, to hedge or mitigate risks, including currency risks, or potential Capital
Stock dilution to which the Borrower or any Subsidiary has actual exposure and (b) Swap Agreements
entered into, or guaranteed, in order to effectively fix, cap, collar or exchange interest rates
(from fixed to floating rates, from one floating rate to another floating rate or otherwise) with
respect to any interest-bearing liability, currency liability, Capital Stock values or investment
of the Borrower or any Subsidiary.




          7.12 Changes in Fiscal Periods. Permit the fiscal year of the Borrower to end on a day
other than December 31 or change the Borrower’s method of determining fiscal quarters, provided,
however, that the Borrower may, upon written notice to the Administrative Agent, change its fiscal
year to any other fiscal year reasonably acceptable to the Administrative Agent, in which case, the
Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make any
adjustments to this Agreement that are necessary to reflect such change in fiscal year.




          7.13 Negative Pledge Clauses. Enter into or suffer to exist or become effective any
agreement that prohibits or limits the ability of any Group Member to create, incur, assume or
suffer to exist any Lien securing the Obligations upon any of its property or revenues, whether now
owned or hereafter acquired, other than:




          (a) this Agreement and the other Loan Documents;




          (b) any restrictions imposed by any agreements governing any secured Indebtedness (including
any purchase money Liens or Capital Lease Obligations) otherwise permitted hereby (in which case,
any prohibition or limitation shall only be effective against the assets financed thereby);





 












 





55





          (c) any restrictions imposed by agreements governing a Disposition permitted under
Section 7.5, provided that such prohibition or limitation relates solely to property to be disposed
of;




          (d) customary restrictions in leases, subleases, licenses or asset sale agreements otherwise
permitted hereby so long as such restrictions may relate to the assets subject thereto;




          (e) customary provisions restricting subletting or assignment of any lease governing a
leasehold interest;




          (f) customary provisions restricting assignment of any agreement entered into in the ordinary
course of business;




          (g) any restrictions imposed by Requirement of Law;




          (h) customary provisions in joint venture agreements or similar agreements or the
organizational documents of Subsidiaries that are not Wholly Owned Subsidiaries; and




          (i) any agreement in effect at the time a Person becomes a Subsidiary of the Borrower, so long
as such agreement was not entered into in contemplation of such Person becoming a Subsidiary.




          7.14 Clauses Restricting Subsidiary Distributions. Enter into or suffer to exist or become
effective any consensual encumbrance or restriction
on the ability of any Subsidiary of the Borrower to (a) make Restricted Payments in respect of any
Capital Stock of such Subsidiary held by, or pay any Indebtedness owed to, the Borrower or any
other Subsidiary of the Borrower, (b) make loans or advances to, or other Investments in, the
Borrower or any other Subsidiary of the Borrower or (c) transfer any of its assets to the Borrower
or any other Subsidiary of the Borrower, except for such encumbrances or restrictions existing
under or by reason of (i) applicable law, (ii) any restrictions existing under the Loan Documents,
(iii) any restrictions with respect to a Subsidiary imposed pursuant to an agreement that has been
entered into in connection with the Disposition of all or substantially all of the Capital Stock or
assets of such Subsidiary, (iv) any restrictions governing a Disposition permitted under Section
7.5, provided that such restriction relates solely to property to be disposed of, (v) any
restrictions in existence at the time of any acquisition consummated in accordance with Section
7.8(i), (vi) customary provisions restricting assignment of any agreement entered into in the
ordinary course of business, (vii) customary provisions in joint venture agreements or similar
agreements or the organizational documents of Subsidiaries that are not Wholly Owned Subsidiaries,
and (viii) any agreements governing purchase money Indebtedness or Capital Lease Obligations
permitted hereby.




          7.15 Lines of Business. Enter into any material line of business, either directly or through any Subsidiary,
substantially different from those lines of businesses in which the Borrower and its Subsidiaries
are engaged on the date of this Agreement or that are reasonably related, complementary,
synergistic, ancillary or incidental thereto or reasonable extensions thereof.




SECTION 8. EVENTS OF DEFAULT




          8.1 Events of Default. If any of the following events shall occur and be continuing:




          (a) the Borrower shall fail to pay any principal of any Loan or Reimbursement Obligation when
due in accordance with the terms hereof; or the Borrower shall fail to pay any interest on any Loan
or Reimbursement Obligation, or any other amount payable hereunder or under any other Loan










 



56



Document, within five days after any such interest or other amount becomes due in accordance with
the terms hereof; or




          (b) any representation or warranty made or deemed made by any Loan Party herein or in any
other Loan Document or that is contained in any certificate, document or financial or other written
statement furnished by it at any time under or in connection with this Agreement or any such other
Loan Document shall prove to have been inaccurate in any material respect on or as of the date made
or deemed made; or




          (c) any Loan Party shall default in the observance or performance of any agreement contained
in clause (i) or (ii) of Section 6.4(a) (with respect to the Borrower only), Section 6.7(a) or
Section 7 of this Agreement; or




          (d) any Loan Party shall default in the observance or performance of any other agreement
contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a)
through (c) of this Section), and such default shall continue unremedied for a period of 30 days
after notice to the Borrower from the Administrative Agent or the Required Lenders; or




          (e) (i) any Group Member shall (A) default in making any payment of any principal of any
Indebtedness (including any Guarantee Obligation, but excluding the Loans) on the scheduled or
original due date with respect thereto; or (B) default in making any payment of any interest on any
such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under
which such Indebtedness was created; or (ii) any party other than the Borrower to any Indebtedness
accelerates the maturity of any amount owing in respect thereof as a result of a default with
respect to such Indebtedness, other than secured Indebtedness permitted by Section 7.2 that becomes
due as a result of the voluntary sale or transfer of the property or assets securing such
Indebtedness; provided, that a default, event or condition described in clause (i) or (ii)
of this paragraph (e) shall not at any time constitute an Event of Default unless, at such time,
one or more defaults, events or conditions of the type described in clauses (i) or (ii) of this
paragraph (e) shall have occurred and be continuing with respect to Indebtedness the outstanding
principal amount of which exceeds in the aggregate $20,000,000; or




          (f) (i) the Borrower or any Material Subsidiary shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any substantial part of its
assets, or the Borrower or any Material Subsidiary shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the Borrower or any Material Subsidiary
any case, proceeding or other action of a nature referred to in clause (i) above that (A) results
in the entry of an order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced
against the Borrower or any Material Subsidiary any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for any such relief that shall
not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; or (iv) the
Borrower or any Material Subsidiary shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) any the Borrower or any Material Subsidiary shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they become due; or











 



57




          (g) (i) any Person shall engage in any “prohibited transaction” (as defined in Section 406 of
ERISA or Section 4975 of the Code, and not exempt under Section 408 of ERISA and the regulations
thereunder) involving any Plan, (ii) any failure to meet the minimum funding standards (as defined
in Section 412 of the Code and Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of any
Group Member or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is likely to result in the termination of such Plan for
purposes of Title IV of ERISA, or any Single Employer Plan shall terminate for purposes of Title IV
of ERISA, (iv) any Single Employer Plan shall be determined to be in “at risk” status (with the
meaning of Section 430 of the Code or Section 303 of ERISA), or (v) any Group Member or any
Commonly Controlled Entity shall incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan or determination that such Multiemployer Plan
is in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section
305 of ERISA); and in each case in clauses (i) through (v) above, such event or condition could
reasonably be expected to have a Material Adverse Effect; or




          (h) one or more judgments or decrees shall be entered against any Group Member involving in
the aggregate a liability (not paid or fully covered by insurance as to which the relevant
insurance company has acknowledged coverage) of $20,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days
from the entry thereof; or




          (i) the guarantee contained in Section 2 of the Guarantee shall cease, for any reason (other
than in accordance with Section 10.14 hereof), to be in full force and effect or any Loan Party or
any Affiliate of any Loan Party shall so assert; or




          (j) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)) shall become, or obtain
rights (whether by means or warrants, options or otherwise) to become, the “beneficial owner” (as
defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of more than
40% of the outstanding common stock of the Borrower;



then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or
(ii) of paragraph (f) above with respect to the Borrower, automatically the Commitments shall
immediately terminate and the Loans (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder) shall immediately become due and payable, and (B) if such event is
any other Event of Default, either or both of the following actions may be taken: (i) with the
consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower declare the Revolving
Commitments to be terminated forthwith, whereupon the Revolving Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower,
declare the Loans (with accrued interest thereon) and all other amounts owing under this Agreement
and the other Loan Documents (including all amounts
of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit
shall have presented the documents required thereunder) to be due and payable forthwith, whereupon
the same shall immediately become due and payable. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an acceleration
pursuant to this paragraph, the Borrower shall at such time deposit in a cash collateral account
opened by the Administrative Agent








 



58


 an amount equal to the aggregate then undrawn and unexpired
amount of such Letters of Credit and all such amounts deposited shall be applied to reduce the
outstanding L/C Obligations. Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused
portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if
any, shall be applied to repay other obligations of the Borrower hereunder and under the other Loan
Documents. After all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of the Borrower
hereunder and under the other Loan Documents shall have been paid in full, the balance, if any, in
such cash collateral account shall be returned to the Borrower (or such other Person as may be
lawfully entitled thereto). Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived by the Borrower.




SECTION 9. THE AGENTS




          9.1 Appointment. Each Lender hereby irrevocably designates and appoints the Administrative Agent as the
agent of such Lender under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its
behalf under the provisions of this Agreement and the other Loan Documents and to exercise such
powers and perform such duties as are expressly delegated to the Administrative Agent by the terms
of this Agreement and the other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement,
the Administrative Agent shall not have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other
Loan Document or otherwise exist against the Administrative Agent.




          9.2 Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement and the other
Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.




          9.3 Exculpatory Provisions. Neither any Agent nor any of their respective officers, directors, employees, agents,
advisors, attorneys-in-fact or affiliates shall be (i) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this Agreement or any other
Loan Document (except to the extent that any of the foregoing are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted from its or such
Person’s own gross negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by any Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received by the Agents under
or in connection with, this Agreement or any other Loan
Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Loan Document or for any failure of any Loan Party a party thereto
to perform its obligations hereunder or thereunder. The Agents shall not be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of any Loan Party.




          9.4 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any instrument, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, email message, statement, order or other document or conversation










 



59



believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including counsel to the Borrower), independent accountants
and other experts selected by the Administrative Agent. The Administrative Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent.
The Administrative Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such advice or concurrence
of the Required Lenders (or, if so specified by this Agreement, all Lenders) as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all
liability and expense that may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement and the other Loan Documents in accordance with a request of the
Required Lenders (or, if so specified by this Agreement, all Lenders), and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.




          9.5 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a “notice of default”. In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders); provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.




          9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, advisors, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by any Agent hereafter taken, including any
review of the affairs of a Loan Party or any affiliate of a Loan Party, shall be deemed to
constitute any representation or warranty by any Agent to any Lender. Each Lender represents to
the Agents that it has, independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates and made its own decision to make its
Loans hereunder and enter into this Agreement.
Each Lender also represents that it will, independently and without reliance upon any Agent or
any other Lender, and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such investigation as it
deems necessary to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Loan Parties and their affiliates. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by the Administrative
Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any
affiliate of a Loan Party that may come into the possession of the Administrative Agent or any of
its officers, directors, employees, agents, advisors, attorneys-in-fact or affiliates.




          9.7 Indemnification. The Lenders agree to indemnify each Agent in its capacity as such and its officers,
directors, employees, affiliates, agents, advisors, and controlling persons (each an “Agent
Indemnitee”) (to the extent not reimbursed by the Borrower and without limiting the obligation
of










 



60



the Borrower to do so), ratably according to their respective Aggregate Exposure Percentages in
effect on the date on which indemnification is sought under this Section (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the Loans shall have
been paid in full, ratably in accordance with such Aggregate Exposure Percentages immediately prior
to such date), from and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any
time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted
against such Agent Indemnitee in any way relating to or arising out of, the Commitments, this
Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein
or therein or the transactions contemplated hereby or thereby or any action taken or omitted by
such Agent Indemnitee under or in connection with any of the foregoing; provided that no Lender
shall be liable for the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements that are found by final and
nonappealable decision of a court of competent jurisdiction to have resulted from such Agent
Indemnitee’s gross negligence or willful misconduct. The agreements in this Section shall survive
the termination of the Agreement and payment of the Loans and all other amounts payable hereunder.




          9.8 Agent in Its Individual Capacity. Each Agent and its affiliates may make loans to, accept deposits from and generally engage
in any kind of business with any Loan Party as though such Agent were not an Agent. With respect
to its Loans made or renewed by it and with respect to any Letter of Credit issued or participated
in by it, each Agent shall have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not an Agent, and the terms
“Lender” and “Lenders” shall include each Agent in its individual capacity.




          9.9 Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 10 days’ notice to the
Lenders and the Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent shall (unless an Event of Default
under Section 8.1(a) or Section 8.1(f) with respect to the Borrower shall have occurred and be
continuing) be subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the rights, powers and duties
of the Administrative
Agent, and the term “Administrative Agent” shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent’s rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any holders of the
Loans. If no successor agent has accepted appointment as Administrative Agent by the date that is
10 days following a retiring Administrative Agent’s notice of resignation, the retiring
Administrative Agent’s resignation shall nevertheless thereupon become effective, and the Lenders
shall assume and perform all of the duties of the Administrative Agent hereunder until such time,
if any, as the Required Lenders appoint a successor agent as provided for above. After any
retiring Administrative Agent’s resignation as Administrative Agent, the provisions of this Section
9 and Section 10.5 shall continue to inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement and the other Loan Documents.




          9.10 Co-Syndication Agents. The Co-Syndication Agents shall have no duties or responsibilities hereunder their capacity
as such.




SECTION 10. MISCELLANEOUS




          10.1 Amendments and Waivers. Neither this Agreement, any other Loan Document, nor any terms hereof or thereof may be
amended, supplemented or modified except in accordance with









 



61


the provisions of this Section 10.1.
The Required Lenders and each Loan Party party to the relevant Loan Document may, or, with the
written consent of the Required Lenders, the Administrative Agent and each Loan Party party to the
relevant Loan Document may, from time to time, (a) enter into written amendments, supplements or
modifications hereto and to the other Loan Documents for the purpose of adding any provisions to
this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or
of the Loan Parties hereunder or thereunder or (b) waive, on such terms and conditions as the
Required Lenders or the Administrative Agent, as the case may be, may specify in such instrument,
any of the requirements of this Agreement or the other Loan Documents or any Default or Event of
Default and its consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) forgive the principal amount or extend the final scheduled
date of maturity of any Loan, extend the scheduled date of any amortization payment in respect of
any Term Loan, reduce the stated rate of any interest or fee payable hereunder (except (x) in
connection with the waiver of applicability of any post-default increase in interest rates (which
waiver shall be effective with the consent of the Majority Facility Lenders of each adversely
affected Facility) and (y) that any amendment or modification of defined terms used in the
financial covenants in this Agreement shall not constitute a reduction in the rate of interest or
fees for purposes of this clause (i)) or extend the scheduled date of any payment thereof, or
increase the amount or extend the expiration date of any Lender’s Revolving Commitment, in each
case without the written consent of each Lender directly affected thereby; (ii) eliminate or reduce
the voting rights of any Lender under this Section 10.1 without the written consent of such Lender;
(iii) reduce any percentage specified in the definition of Required Lenders, consent to the
assignment or transfer by the Borrower of any of its rights and obligations under this Agreement
and the other Loan Documents, release or limit any Subsidiary Guarantor that is a Material
Subsidiary from its obligations under the Guarantee (other than pursuant to Section 10.14 hereof),
in each case without the written consent of all Lenders; (iv) amend, modify or waive any provision
of Section 2.15 without the written consent of all Lenders under each Facility adversely affected
thereby; (v) reduce the amount of Net Cash Proceeds required to be applied to prepay Loans under
this Agreement without the written consent of the Majority Facility Lenders with respect to each
Facility; (vi) reduce the percentage specified in the definition of Majority Facility Lenders
with respect to any Facility without the written consent of all Lenders under such Facility;
(vii) amend, modify or waive any provision of Section 9 or any other provision of any Loan Document
that affects the Administrative Agent without the written consent of the Administrative Agent;
(viii) amend, modify or waive any provision of Section 3 without the written consent of the Issuing
Lender or (ix) amend, modify or waive any provision of Section 2.21 without the written consent of
the Issuing Lender and the Administrative Agent. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall be binding upon the
Loan Parties, the Lenders, the Administrative Agent and all future holders of the Loans. In the
case of any waiver, the Loan Parties, the Lenders and the Administrative Agent shall be restored to
their former position and rights hereunder and under the other Loan Documents, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall
extend to any subsequent or other Default or Event of Default, or impair any right consequent
thereon.




          Notwithstanding this Section 10.1, the Commitments of any Defaulting Lender shall be
disregarded for all purposes of any determination of whether the Required Lenders have taken or may
take any action hereunder (including any consent to any waiver, amendment, supplement or
modification pursuant to this Section 10.1); provided that any waiver, amendment,
supplement or modification of the type described in clause (i) of this Section 10.1 shall require
the consent of any Defaulting Lender.




          Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with
the written consent of the Required Lenders, the Administrative Agent and the Borrower (a) to add
one or more additional credit facilities to this Agreement and to permit the extensions of credit
from time to time outstanding thereunder and the accrued interest and fees in respect thereof to
share










 



62



ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans
and Revolving Extensions of Credit and the accrued interest and fees in respect thereof and (b) to
include appropriately the Lenders holding such credit facilities in any determination of the
Required Lenders and Majority Facility Lenders.




          10.2 Notices. All notices, requests and demands to or upon the respective parties hereto to be effective
shall be in writing (including by telecopy), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when received,
addressed as follows in the case of the Borrower and the Administrative Agent, and as set forth in
an administrative questionnaire delivered to the Administrative Agent in the case of the Lenders,
or to such other address as may be hereafter notified by the respective parties hereto:




	 	 	 

	Borrower:

	 	Gartner, Inc.
	 

	 	56 Top Gallant Road
	 

	 	Stamford, CT 06904
	 

	 	Attention: General Counsel
	 

	 	Facsimile: (203) 316-6245
	 

	 	Telephone: (203) 316-6311
	 
	 	 
	with a copy to:

	 	Gartner, Inc.
	 

	 	56 Top Gallant Road
	 

	 	Stamford, CT 06904
	 

	 	Attention: Chief Financial Officer
	 

	 	Facsimile: (866) 785-2981
	 

	 	Telephone: (203) 316-6876
	 
	 	 
	Administrative Agent:

	 	JPMorgan Chase Bank, N.A.
	 

	 	JPMorgan Loan Services
	 

	 	10 South Dearborn,
	 

	 	Chicago, IL 60603
	 

	 	Attention: Leonida Mischke
	 

	 	Facsimile: 888-266-8058
	 

	 	Telephone: 312-385-7055
	 
	 	 
	with a copy to:

	 	JPMorgan Chase Bank, N.A.
	 

	 	Two Corporate Drive, Suite 730
	 

	 	Shelton, CT 06484
	 

	 	Attention: Scott Farquhar
	 

	 	Facsimile: 203-944-8495





provided that any notice, request or demand to or upon the Administrative Agent or the
Lenders shall not be effective until received.




          Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Section 2 unless
otherwise agreed by the Administrative Agent and the applicable Lender. 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.











 



63




          10.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent
or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided
by law.




          10.4 Survival of Representations and Warranties. All representations and warranties made hereunder, in the other Loan Documents and in any
document, certificate or statement delivered pursuant hereto or in connection herewith shall
survive the execution and delivery of this Agreement and the making of the Loans and other
extensions of credit hereunder.




          10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or reimburse the Administrative Agent for all its
out-of-pocket costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and thereby, including the
reasonable fees and disbursements of counsel to the Administrative Agent and filing and recording
fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower
prior to the Closing Date (in the case of amounts
to be paid on the Closing Date) and from time to time thereafter on a quarterly basis or such
other periodic basis as the Administrative Agent shall deem appropriate, (b) to pay or reimburse
each Lender and the Administrative Agent for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including the fees and disbursements of counsel to each Lender and of
counsel to the Administrative Agent, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp, excise and other similar
taxes, if any, that may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents, and (d) to pay, indemnify, and
hold each Lender and the Administrative Agent and their respective officers, directors, employees,
affiliates, agents and controlling persons (each, an “Indemnitee”) harmless from and
against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this Agreement, the other Loan
Documents and any such other documents, including any of the foregoing relating to the use of
proceeds of the Loans or the violation of, noncompliance with or liability under, any Environmental
Law applicable to any Group Member including with respect to any property at any time owned,
leased, or used by any Group Member, or any orders, requirements or demands of Governmental
Authorities related thereto, and the reasonable fees and expenses of legal counsel in connection
with claims, actions or proceedings by any Indemnitee against any Loan Party under any Loan
Document (all the foregoing in this clause (d), collectively, the “Indemnified
Liabilities”), provided, that the Borrower shall have no obligation hereunder to any Indemnitee
with respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a
final and nonappealable decision of a court of competent jurisdiction to have resulted from the
gross negligence or willful misconduct of such Indemnitee. Without limiting the foregoing, and to
the extent permitted by applicable law, the Borrower agrees not to assert and to cause its
Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries to waive, all
rights for contribution or any other rights of recovery with respect to all claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature,
under or related to Environmental Laws, that any of them might have by statute or otherwise against
any










 



64



Indemnitee. All amounts due under this Section 10.5 shall be payable not later than 10 days
after written demand therefor. Statements payable by the Borrower pursuant to this Section 10.5
shall be submitted to the Borrower at the address set forth in Section 10.2, or to such other
Person or address as may be hereafter designated by the Borrower in a written notice to the
Administrative Agent. The agreements in this Section 10.5 shall survive repayment of the Loans and
all other amounts payable hereunder.




          10.6 Successors and Assigns; Participations and Assignments. (a) 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 (including any
Affiliate of the Issuing Lender that issues any Letter of Credit), except that (i) the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights
or obligations hereunder except in accordance with this Section.




          (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees (each, an “Assignee”) all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitments and the Loans at
the time owing to it) with the prior written consent of:





     (A) the Borrower (such consent not to be unreasonably withheld or delayed),
provided that no consent of the Borrower shall be required for an assignment to a
Lender, an Affiliate of a Lender, an Approved Fund (as defined below) or, if an Event of
Default under Section 8.1(a) or (f) has occurred and is continuing, any other Person;




     (B) the Administrative Agent (such consent not to be unreasonably withheld or delayed),
provided that no consent of the Administrative Agent shall be required for an
assignment of all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an
Approved Fund; and




     (C) the Issuing Lender (such consent not to be unreasonably withheld), provided
that no consent of the Issuing Lender shall be required for an assignment of all or any
portion of a Term Loan.




     (ii) Assignments shall be subject to the following additional conditions:




     (A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s
Commitments or Loans under any Facility, the amount of the Commitments or 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)
shall not be less than $5,000,000 (or, in the case of the Term Facility, $1,000,000) unless
each of the Borrower and the Administrative Agent otherwise consent, provided that
(1) no such consent of the Borrower shall be required if an Event of Default under Section
8.1(a) or (f) has occurred and is continuing and (2) such amounts shall be aggregated in
respect of each Lender and its Affiliates or Approved Funds, if any;




     (B) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of
$3,500; and









 



65



     (C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an administrative questionnaire.



          For the purposes of this Section 10.6, “Approved Fund” means any Person (other than a
natural person) that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and 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.




          (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below, from
and after the effective date specified in each Assignment and Assumption the Assignee thereunder
shall be a party hereto 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 2.16, 2.17, 2.18 and 10.5). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 10.6 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 paragraph (c) of this Section.




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




          (v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in this paragraph.




          (c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell
participations to one or more banks or other entities (a “Participant”) in all or a portion
of such Lender’s rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans owing to it); provided that (A) such Lender’s obligations under
this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the Borrower, the Administrative
Agent, the Issuing Lender and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this Agreement. Any
agreement 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 may provide that
such Lender will not, without the consent of the Participant, agree to










 



66



any amendment, modification
or waiver that (1) requires the consent of each Lender directly affected thereby pursuant to the
proviso to the second sentence of Section 10.1 and (2) directly affects such Participant. Subject
to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of, and subject to the limitations of, Sections 2.16, 2.17 and 2.18 to the same
extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b)
of this Section. To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.7(b) as though it were a Lender, provided such Participant shall be subject
to Section 10.7(a) as though it were a Lender. Each Lender that sells a participation, acting
solely for this purpose as an agent of the Borrower, shall maintain a register on which it enters
the name and address of each Participant and the principal amounts (and stated interest) of each
Participant’s interest in the Loans or other obligations under this Agreement (the “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any portion of
the Participant Register to any Person (including the identity of any Participant or any
information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or
its other obligations under this Agreement) except to the extent that such disclosure is necessary
to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form
under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the
Participant Register shall be conclusive, and such Lender, each Loan Party and the Administrative
Agent shall treat each person whose name is recorded in the Participant Register pursuant to the
terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding
notice to the contrary.




          (ii) A Participant shall not be entitled to receive any greater payment under Section 2.16 or
2.17 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. No Participant shall be entitled to the benefits
of Section 2.17 unless such Participant complies with Section 2.17(d), (e) and (f) as if it were a
Lender.




          (d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or Assignee for such Lender as a party hereto.




          (e) The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue
Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph
(d) above.




          (f) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it
may have funded hereunder to its designating Lender without the consent of the Borrower or the
Administrative Agent and without regard to the limitations set forth in Section 10.6(b). Each of
the Borrower, each Lender and the Administrative Agent hereby confirms that it will not institute
against a Conduit Lender or join any other Person in instituting against a Conduit Lender any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state
bankruptcy or similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender; provided, however, that each
Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other
party hereto for any loss, cost, damage or expense arising out of its inability to institute such a
proceeding against such Conduit Lender during such period of forbearance.




          10.7 Adjustments; Set-off. (a) Except to the extent that this Agreement expressly provides for payments to be
allocated to a particular Lender or to the Lenders under a particular Facility,











 



67



if any Lender (a
“Benefitted Lender”) shall, at any time after the Loans and other amounts payable hereunder
shall immediately become due and payable pursuant to Section 8, receive any payment of all or part
of the Obligations owing to it, or receive any collateral in respect thereof (whether voluntarily
or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in
Section 8.1(f), or otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of the Obligations owing to such other Lender,
such Benefitted Lender shall purchase for cash from the other Lenders a participating interest in
such portion of the Obligations owing to each such other Lender, or shall provide such other
Lenders with the benefits of any such collateral, as shall be necessary to cause such Benefitted
Lender to share the excess payment or benefits of such collateral ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.




          (b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without prior notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, upon the occurrence and during the Continuance
of an Event of Default, to set off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any currency, and any other
credits,
indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower, as the case may be. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and
application made by such Lender, provided that the failure to give such notice shall not
affect the validity of such setoff and application.




          10.8 Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any
number of separate counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed signature page of this Agreement
by facsimile transmission or via email attachment shall be effective as delivery of a manually
executed counterpart hereof. A set of the copies of this Agreement signed by all the parties shall
be lodged with the Borrower and the Administrative Agent.




          10.9 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.




          10.10 Integration. This Agreement and the other Loan Documents represent the entire agreement of the Borrower,
the Administrative Agent and the Lenders with respect to the subject matter hereof and thereof, and
there are no promises, undertakings, representations or warranties by the Administrative Agent or
any Lender relative to the subject matter hereof not expressly set forth or referred to herein or
in the other Loan Documents.




          10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.




          10.12 Submission To Jurisdiction; Waivers. The Borrower hereby irrevocably and unconditionally:










 



68




          (a) submits for itself and its property in any legal action or proceeding relating to this
Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States for the Southern District of New York, and
appellate courts from any thereof;




          (b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;




          (c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower, as the case may be at its address set forth in Section 10.2 or at such
other address of which the Administrative Agent shall have been notified pursuant thereto;




          (d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction; and




          (e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.




          10.13 Acknowledgements. The Borrower hereby acknowledges that:




          (a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;




          (b) neither the Administrative Agent nor any Lender has any fiduciary relationship with or
duty to the Borrower arising out of or in connection with this Agreement or any of the other Loan
Documents, and the relationship between Administrative Agent and Lenders, on one hand, and the
Borrower, on the other hand, in connection herewith or therewith is solely that of debtor and
creditor; and




          (c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Lenders or between the Borrower and the
Lenders.




          10.14 Releases of Guarantees. (a) Notwithstanding anything to the contrary contained herein or in any other Loan
Document, the Administrative Agent is hereby irrevocably authorized by each Lender (without
requirement of notice to or consent of any Lender except as expressly required by Section 10.1) to
take any action requested by the Borrower having the effect of releasing any guarantee obligations
(i) to the extent necessary to permit consummation of any transaction not prohibited by any Loan
Document or that has been consented to in accordance with Section 10.1 or (ii) under the
circumstances described in paragraph (b) below.




          (b) At such time as the Loans, the Reimbursement Obligations and the other obligations under
the Loan Documents (including obligations under or in respect of Specified Swap Agreements) shall
have been paid in full, the Commitments have been terminated and no Letters of Credit shall be
outstanding, the Guarantee and all obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Loan Party under the Guarantee shall terminate,
all without delivery of any instrument or performance of any act by any Person.










 



69




          10.15 Confidentiality. Each of the Administrative Agent and each Lender agrees to keep confidential all non-public
information provided to it by any Loan Party, the Administrative Agent or any Lender pursuant to or
in connection with this Agreement; provided that nothing herein shall prevent the Administrative
Agent or any Lender from disclosing any such information (a) to the Administrative Agent, any other
Lender or any affiliate thereof, (b) subject to an agreement to comply with the provisions of
this Section, to any actual or prospective Transferee or any direct or indirect counterparty to any
Swap Agreement (or any professional advisor to such counterparty), (c) to its employees, directors,
agents, attorneys, accountants and other professional advisors or those of any of its affiliates,
(d) upon the request or demand of any Governmental Authority, (e) in response to any order of any
court or other Governmental Authority or as may otherwise be required pursuant to any Requirement
of Law, (f) if requested or required to do so in connection with any litigation or similar
proceeding, (g) that has been publicly disclosed, (h) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating agency that requires
access to information about a Lender’s investment portfolio in connection with ratings issued with
respect to such Lender, or (i) in connection with the exercise of any remedy hereunder or under any
other Loan Document.




          Each Lender acknowledges that information furnished to it pursuant to this Agreement or the
other Loan Documents may include material non-public information concerning the Borrower and its
Affiliates and their related parties or their respective securities, and confirms that it has
developed compliance procedures regarding the use of material non-public information and that it
will handle such material non-public information in accordance with those procedures and applicable
law, including Federal and state securities laws.




          All information, including requests for waivers and amendments, furnished by the Borrower or
the Administrative Agent pursuant to, or in the course of administering, this Agreement or the
other Loan Documents will be syndicate-level information, which may contain material non-public
information about the Borrower and its Affiliates and their related parties or their respective
securities. Accordingly, each Lender represents to the Borrower and the Administrative Agent that
it has identified in its administrative questionnaire a credit contact who may receive information
that may contain material non-public information in accordance with its compliance procedures and
applicable law, including Federal and state securities laws.




          10.16 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.




          10.17 USA PATRIOT Act. Each Lender hereby notifies the Borrower that pursuant to the requirements of the USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information that will allow
such Lender to identify the Borrower in accordance with the Act.










 



 


          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the day and year first above written.




	 	 	 	 	 
	 	GARTNER, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	JPMORGAN CHASE BANK, N.A., as Administrative Agent
and as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Signature page to the Gartner, Inc. Credit Agreement











 



 

	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as

Co-Syndication Agent and as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




Signature page to the Gartner, Inc. Credit Agreement











 



 

	 	 	 	 	 
	 	RBS CITIZENS, N.A., as Co-Syndication Agent and as a

Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




Signature page to the Gartner, Inc. Credit Agreement











 



 

	 	 	 	 	 
	 	[Name of Lender], as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




Signature page to the Gartner, Inc. Credit Agreement