exv10w2



 





Exhibit 10.2





EXECUTION COPY


 




LETTER OF CREDIT FACILITY AGREEMENT



dated as of August 3, 2006


among


BRISTOW GROUP INC.

as Borrower



THE LENDERS FROM TIME TO TIME PARTY HERETO




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

as Syndication Agent and as Issuing Bank



WELLS FARGO BANK, NATIONAL ASSOCIATION

as Documentation Agent



and




SUNTRUST BANK

as Administrative Agent




 





SUNTRUST CAPITAL MARKETS, INC.,

as Arranger and Book Manager








 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	ARTICLE I DEFINITIONS; CONSTRUCTION	 	 	1	 
	 
	 	 	 	 	 	 
	ARTICLE I DEFINITIONS; CONSTRUCTION	 	 	1	 
	Section 1.1.
	 	Definitions	 	 	1	 
	Section 1.2.
	 	Accounting Terms and Determination	 	 	24	 
	Section 1.3.
	 	Terms Generally	 	 	24	 
	 
	 	 	 	 	 	 
	ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS	 	 	25	 
	 
	 	 	 	 	 	 
	ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS	 	 	25	 
	Section 2.1.
	 	General Description of Facilities	 	 	25	 
	Section 2.2.
	 	Optional Reduction and Termination of LC Commitments	 	 	25	 
	Section 2.3.
	 	Mandatory Prepayments	 	 	25	 
	Section 2.4.
	 	Fees	 	 	26	 
	Section 2.5.
	 	Computation of Interest and Fees	 	 	26	 
	Section 2.6.
	 	Illegality	 	 	27	 
	Section 2.7.
	 	Increased Costs	 	 	27	 
	Section 2.8.
	 	Taxes	 	 	28	 
	Section 2.9.
	 	Payments Generally; Pro Rata Treatment; Sharing of Set-offs	 	 	30	 
	Section 2.10.
	 	Letters of Credit	 	 	31	 
	Section 2.11.
	 	Mitigation of Obligations	 	 	36	 
	Section 2.12.
	 	Replacement of Lenders	 	 	36	 
	Section 2.13.
	 	Alternate Currency Provisions	 	 	37	 
	Section 2.14.
	 	European Economic and Monetary Union	 	 	39	 
	Section 2.15.
	 	Release of Collateral	 	 	41	 
	 
	 	 	 	 	 	 
	ARTICLE III CONDITIONS PRECEDENT TO EFFECTIVENESS	 	 	41	 
	 
	 	 	 	 	 	 
	ARTICLE III CONDITIONS PRECEDENT TO EFFECTIVENESS	 	 	41	 
	Section 3.1.
	 	Conditions To Effectiveness	 	 	41	 
	Section 3.2.
	 	Each Issuance of Letters of Credit	 	 	44	 
	Section 3.3.
	 	Delivery of Documents	 	 	44	 
	 
	 	 	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES	 	 	45	 
	 
	 	 	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES	 	 	45	 
	Section 4.1.
	 	Existence; Power	 	 	45	 
	Section 4.2.
	 	Organizational Power; Authorization	 	 	45	 
	Section 4.3.
	 	Governmental Approvals; No Conflicts	 	 	45	 
	Section 4.4.
	 	Financial Statements	 	 	45	 
	Section 4.5.
	 	Litigation and Environmental Matters	 	 	46	 
	Section 4.6.
	 	Compliance with Laws and Agreements	 	 	46	 
	Section 4.7.
	 	Investment Company Act, Etc.	 	 	46	 
	Section 4.8.
	 	Taxes; Fees	 	 	46	 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 4.9.
	 	Margin Regulations	 	 	46	 
	Section 4.10.
	 	ERISA	 	 	47	 
	Section 4.11.
	 	Ownership of Property	 	 	47	 
	Section 4.12.
	 	Disclosure	 	 	47	 
	Section 4.13.
	 	Labor Relations	 	 	48	 
	Section 4.14.
	 	Subsidiaries	 	 	48	 
	Section 4.15.
	 	Insolvency	 	 	48	 
	Section 4.16.
	 	OFAC	 	 	48	 
	Section 4.17.
	 	Compliance with Patriot Act and Other Laws	 	 	48	 
	Section 4.18.
	 	Security Documents	 	 	49	 
	Section 4.19.
	 	Existing Indebtedness	 	 	49	 
	 
	 	 	 	 	 	 
	ARTICLE V AFFIRMATIVE COVENANTS	 	 	49	 
	 
	 	 	 	 	 	 
	ARTICLE V AFFIRMATIVE COVENANTS	 	 	49	 
	Section 5.1.
	 	Financial Statements and Other Information	 	 	49	 
	Section 5.2.
	 	Notices of Material Events	 	 	51	 
	Section 5.3.
	 	Existence; Conduct of Business	 	 	51	 
	Section 5.4.
	 	Compliance with Laws, Etc.	 	 	51	 
	Section 5.5.
	 	Payment of Obligations	 	 	51	 
	Section 5.6.
	 	Books and Records	 	 	52	 
	Section 5.7.
	 	Visitation, Inspection, Etc.	 	 	52	 
	Section 5.8.
	 	Maintenance of Properties; Insurance	 	 	52	 
	Section 5.9.
	 	Use of Letters of Credit	 	 	52	 
	Section 5.10.
	 	[Intentionally Omitted]	 	 	53	 
	Section 5.11.
	 	Additional Subsidiaries	 	 	53	 
	Section 5.12.
	 	Further Assurances	 	 	54	 
	Section 5.13.
	 	Post Closing Covenant	 	 	54	 
	 
	 	 	 	 	 	 
	ARTICLE VI FINANCIAL COVENANTS	 	 	55	 
	 
	 	 	 	 	 	 
	ARTICLE VI FINANCIAL COVENANTS	 	 	55	 
	Section 6.1.
	 	Leverage Ratio	 	 	55	 
	Section 6.2.
	 	Interest Coverage Ratio	 	 	55	 
	Section 6.3.
	 	Consolidated Net Worth	 	 	55	 
	Section 6.4.
	 	Collateral Asset Value	 	 	55	 
	 
	 	 	 	 	 	 
	ARTICLE VII NEGATIVE COVENANTS	 	 	56	 
	 
	 	 	 	 	 	 
	ARTICLE VII NEGATIVE COVENANTS	 	 	56	 
	Section 7.1.
	 	Indebtedness.	 	 	56	 
	Section 7.2.
	 	Negative Pledge	 	 	57	 
	Section 7.3.
	 	Fundamental Changes	 	 	57	 
	Section 7.4.
	 	Loans and Other Investments, Etc.	 	 	57	 
	Section 7.5.
	 	Restricted Payments	 	 	58	 
	Section 7.6.
	 	Sale of Assets	 	 	58	 
	Section 7.7.
	 	Transactions with Affiliates	 	 	59	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	Section 7.8.
	 	Restrictive Agreements	 	 	59	 
	Section 7.9.
	 	Hedging Transactions	 	 	59	 
	Section 7.10.
	 	Amendment to Material Documents	 	 	60	 
	Section 7.11.
	 	Accounting Changes	 	 	60	 
	 
	 	 	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT	 	 	60	 
	 
	 	 	 	 	 	 
	ARTICLE VIII EVENTS OF DEFAULT	 	 	60	 
	Section 8.1.
	 	Events of Default	 	 	60	 
	Section 8.2.
	 	Application of Proceeds from Collateral	 	 	62	 
	 
	 	 	 	 	 	 
	ARTICLE IX THE ADMINISTRATIVE AGENT	 	 	62	 
	 
	 	 	 	 	 	 
	ARTICLE IX THE ADMINISTRATIVE AGENT	 	 	62	 
	Section 9.1.
	 	Appointment of Administrative Agent	 	 	62	 
	Section 9.2.
	 	Nature of Duties of Administrative Agent	 	 	63	 
	Section 9.3.
	 	Lack of Reliance on the Administrative Agent	 	 	64	 
	Section 9.4.
	 	Certain Rights of the Administrative Agent	 	 	64	 
	Section 9.5.
	 	Reliance by Administrative Agent	 	 	64	 
	Section 9.6.
	 	The Administrative Agent in its Individual Capacity	 	 	64	 
	Section 9.7.
	 	Successor Administrative Agent	 	 	65	 
	Section 9.8.
	 	Authorization to Execute other Loan Documents	 	 	65	 
	Section 9.9.
	 	Documentation Agent; Syndication Agent.	 	 	65	 
	 
	 	 	 	 	 	 
	ARTICLE X MISCELLANEOUS	 	 	66	 
	 
	 	 	 	 	 	 
	ARTICLE X MISCELLANEOUS	 	 	66	 
	Section 10.1.
	 	Notices	 	 	66	 
	Section 10.2.
	 	Waiver; Amendments	 	 	68	 
	Section 10.3.
	 	Expenses; Indemnification	 	 	69	 
	Section 10.4.
	 	Successors and Assigns	 	 	71	 
	Section 10.5.
	 	GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS	 	 	75	 
	Section 10.6.
	 	WAIVER OF JURY TRIAL	 	 	76	 
	Section 10.7.
	 	Right of Setoff	 	 	76	 
	Section 10.8.
	 	Counterparts; Integration	 	 	76	 
	Section 10.9.
	 	Survival	 	 	76	 
	Section 10.10.
	 	Severability	 	 	77	 
	Section 10.11.
	 	Confidentiality	 	 	77	 
	Section 10.12.
	 	Interest Rate Limitation	 	 	77	 
	Section 10.12.
	 	Interest Rate Limitation TC	 	 	78	 
	Section 10.13.
	 	Waiver of Effect of Corporate Seal	 	 	78	 
	Section 10.14.
	 	Patriot Act	 	 	78	 
	Section 10.15.
	 	Officer’s Certificates	 	 	78	 
	Section 10.16.
	 	Effect of Inclusion of Exceptions	 	 	78	 







iii









 








Schedules




	 	 	 	 	 
	Schedule I

	 	-
	 	Applicable Margin
	Schedule II

	 	-
	 	LC Commitment Amounts
	Schedule 2.10

	 	-
	 	Existing Letters of Credit
	Schedule 4.14

	 	-
	 	Subsidiaries
	Schedule 7.1

	 	-
	 	Existing Indebtedness
	Schedule 7.2

	 	-
	 	Existing Liens
	Schedule 7.4

	 	-
	 	Existing Investments






Exhibits




	 	 	 	 	 
	Exhibit A

	 	-
	 	Form of Assignment and Acceptance
	Exhibit 5.1(c)

	 	-
	 	Form of Compliance Certificate







iv









 








LETTER OF CREDIT FACILITY AGREEMENT




          THIS LETTER OF CREDIT FACILITY AGREEMENT (this “Agreement”) is made and entered into
as of August 3, 2006, by and among BRISTOW GROUP INC., a Delaware corporation (the
“Borrower”), the several banks and other financial institutions and lenders from time to
time party hereto (the “Lenders”), SUNTRUST BANK, in its capacity as administrative agent
for the Lenders (the “Administrative Agent”), and JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as issuing bank (the “Original Issuing Bank”) and as Syndication Agent (the
“Syndication Agent”), each other issuing bank hereunder and WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Documentation Agent (the “Documentation Agent”).




W I T N E S S E T H:




          WHEREAS, the Borrower has requested that the Lenders establish in its favor a letter of credit
facility in the aggregate principal amount of U.S. $25,000,000, pursuant to which letters of credit
would be issued for the account of, the Borrower;




          WHEREAS, the Borrower has further requested that a portion of such letters of credit be made
available for funding and issuance in certain currencies other than U.S. dollars in an aggregate
principal amount up to the Dollar Equivalent of $25,000,000;




          WHEREAS, the Borrower has entered into that certain Revolving Credit Agreement dated as of the
date hereof, by and among SunTrust Bank as administrative agent, issuing bank, and swingline
lender, and the Lenders (as the same may be amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”); and




          WHEREAS, subject to the terms and conditions of this Agreement, the Lenders and the Issuing
Bank, to the extent of their respective LC Commitments as defined herein, are willing severally to
establish the requested letter of credit facility in favor of the Borrower;




          NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
the Borrower, the Lenders, the Administrative Agent, and the Issuing Bank agree as follows:




ARTICLE I




DEFINITIONS; CONSTRUCTION




          Section 1.1. Definitions. In addition to the other terms defined herein, the
following terms used herein shall have the meanings herein specified (to be equally applicable to
both the singular and plural forms of the terms defined):




          “Accounts” shall mean, for any Person, all “accounts” as defined in the Uniform
Commercial Code, now or hereafter owned or acquired by such Person or in which such Person now or
hereafter has or acquires any rights and, in any event, shall mean and include, without
limitation, (a) all accounts receivable, contract rights, book debts, notes, drafts and other
obligations or indebtedness owing to such Person arising from the sale or lease of goods or other

 









 








property by it or the performance of services by it (including, without limitation, any such
obligation which might be characterized as an account, contract right or general intangible under
the Uniform Commercial Code in effect in any jurisdiction), (b) all of such Person’s rights in, to
and under all sales orders for goods, services or other property, and all of such Person’s rights
to any goods, services or other property represented by any of the foregoing (including returned or
repossessed goods and unpaid sellers’ rights of rescission, replevin, reclamation and rights to
stoppage in transit), (c) all monies due to or to become due to such Person under all contracts for
the sale, lease or exchange of goods or other property or the performance of services by it
(whether or not yet earned by performance on the part of such Person), and (d) all collateral
security and guarantees of any kind given to such Person with respect to any of the foregoing.




          “Additional Permitted Investments” shall have the meaning given to such term in
Section 7.4(d).




          “Administrative Agent” shall have the meaning assigned to such term in the opening
paragraph hereof.




          “Administrative Questionnaire” shall mean, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent and submitted to the
Administrative Agent duly completed by such Lender.




          “Affiliate” shall mean, as to any Person, any other Person that directly, or
indirectly through one or more intermediaries, Controls, is Controlled by, or is under common
Control with, such Person. For the purposes of this definition, “Control” shall mean the power,
directly or indirectly, either to (i) vote 10% or more of the securities having ordinary voting
power for the election of directors (or persons performing similar functions) of a Person or (ii)
direct or cause the direction of the management and policies of a Person, whether through the
ability to exercise voting power, by control or otherwise. The terms “Controlling”, “Controlled
by”, and “under common Control with” have the meanings correlative thereto.




          “Aggregate LC Commitment Amount” shall mean the aggregate principal amount of the
Aggregate LC Commitments from time to time. On the Closing Date, the Aggregate LC Commitment
Amount is the Dollar Equivalent of $25,000,000.




          “Aggregate LC Commitments” shall mean, collectively, all LC Commitments of all Lenders
at any time outstanding.




          “Agreement” shall have the meaning assigned to such term in the opening paragraph
hereof.




          “Alternate Currency” shall mean Euros, Pounds and any other freely convertible,
transferable foreign Currency readily available to all Lenders through customizing sources.




          “Alternate Currency Letter of Credit” shall mean any letter of credit issued in an
Alternate Currency by the Issuing Bank for the account of the Borrower pursuant to Section
2.10.




2









 








          “Applicable Lending Office” means, with respect to each Lender, such Lender’s Domestic
Lending Office and such Lender’s Eurocurrency Lending Office.




          “Applicable Margin” shall mean, as of any date at such times as a debt rating (either
express or implied) by S&P or Moody’s (or in the event that both cease the issuance of debt ratings
generally, such other ratings agencies agreed to by the Borrower and the Administrative Agent) in
respect of the Borrower or the Borrower’s non-credit enhanced senior unsecured long term debt, with
respect to all Letters of Credit outstanding on any date, the percentage per annum determined by
reference to the applicable rating category from time to time in effect as set forth on
Schedule I. If the ratings issued by S&P and Moody’s differ (i) by one rating, the higher
rating shall apply to determine the Applicable Margin, (ii) by two ratings, the rating which falls
between them shall apply to determine the Applicable Margin, or (iii) by more than two ratings, the
rating immediately above the lower of the two ratings shall apply to determine the Applicable
Margin. The Borrower shall give written notice to the Administrative Agent of any changes to such
ratings, within three (3) Business Days thereof, and any change to the Applicable Margin shall be
effective on the date of the relevant change. The rating in effect on any date is that in effect
at the close of business on such date. Notwithstanding the foregoing, if the Borrower shall at any
time fail to have in effect such a debt rating on the Borrower or the Borrower’s non-credit
enhanced senior unsecured long term debt, the Borrower shall seek and obtain (if not already in
effect), within thirty (30) days after such debt rating first ceases to be in effect, a corporate
credit rating or a bank loan rating from Moody’s or S&P, or both, and the Applicable Margin shall
thereafter be based on such ratings in the same manner as provided herein with respect to the
Borrower or the Borrower’s non-credit enhanced senior unsecured long term debt (with the Applicable
Margin in effect prior to the issuance of such corporate credit rating or bank loan rating being
the same as the Applicable Margin in effect at the time the rating with respect to the Borrower or
the Borrower’s non-credit enhanced senior unsecured long term debt ceased to be in effect). If the
rating system of Moody’s or S&P shall change, or if either rating agency shall cease to be in the
business of rating corporate debt obligations, the Borrower, the Lenders and the Administrative
Agent shall negotiate in good faith to amend Schedule I to reflect such changed rating
system or the unavailability of ratings from such rating agency and, pending the effectiveness of
any such amendment, the Applicable Margin shall be determined by reference to the rating most
recently in effect prior to any such change or cessation. If after a reasonable time the parties
cannot agree to a mutually acceptable amendment, the Applicable Margin shall be determined by
reference to Level VI.




          “Applicable Percentage” shall mean, as of any date, at such times as a debt rating
(either express or implied) by S&P or Moody’s (or in the event that both cease the issuance of debt
ratings generally, such other ratings agency agreed to by the Borrower and the Administrative
Agent) in respect of the Borrower or the Borrower’s non-credit enhanced senior unsecured long term
debt, with respect to the commitment fee as of any date, the percentage per annum determined by
reference to the applicable rating category as set forth on Schedule I. If the ratings
issued by S&P and Moody’s differ (i) by one rating, the higher rating shall apply to determine the
Applicable Percentage, (ii) by two ratings, the rating which falls between them shall apply to
determine the Applicable Percentage, or (iii) by more than two ratings, the rating immediately
above the lower of the two ratings shall apply to determine the Applicable Percentage. The
Borrower shall give written notice to the Administrative Agent of any changes to such ratings,
within three (3) Business Days thereof, and any change to the Applicable

3









 








Percentage shall be effective on the date of the relevant change. The rating in effect on any
date is that in effect at the close of business on such date. Notwithstanding the foregoing, if
the Borrower shall at any time fail to have in effect such a debt rating on the Borrower or the
Borrower’s non-credit enhanced senior unsecured long term debt, the Borrower shall seek and obtain
(if not already in effect), within thirty (30) days after such debt rating first ceases to be in
effect, a corporate credit rating or a bank loan rating from Moody’s or S&P, or both, and the
Applicable Percentage shall thereafter be based on such ratings in the same manner as provided
herein with respect to the Borrower or the Borrower’s non-credit enhanced senior unsecured long
term debt (with the Applicable Percentage in effect prior to the issuance of such corporate credit
rating or bank loan rating being the same as the Applicable Percentage in effect at the time the
rating with respect to the Borrower or the Borrower’s non-credit enhanced senior unsecured long
term debt ceased to be in effect). If the rating system of Moody’s or S&P shall change, or if
either rating agency shall cease to be in the business of rating corporate debt obligations, the
Borrower, the Lenders and the Administrative Agent shall negotiate in good faith to amend
Schedule I to reflect such changed rating system or the unavailability of ratings from such
rating agency and, pending the effectiveness of any such amendment, the Applicable Percentage shall
be determined by reference to the rating most recently in effect prior to any such change or
cessation. If after a reasonable time the parties cannot agree to a mutually acceptable amendment,
the Applicable Percentage shall be determined by reference to Level VI.




          “Approved Fund” shall mean any Person (other than a natural Person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business and that is administered or managed by
(i) a Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.




          “Assignment and Acceptance” shall mean an assignment and acceptance entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section
10.4(b)) and accepted by the Administrative Agent, in the form of Exhibit A attached
hereto or any other form approved by the Administrative Agent.




          “Availability Period” shall mean the period from the Closing Date to but excluding the
LC Commitment Termination Date.




          “Base Rate” shall mean the higher of (i) the per annum rate which the Administrative
Agent publicly announces from time to time to be its prime lending rate, as in effect from time to
time, and (ii) the Federal Funds Rate, as in effect from time to time, plus one half of one percent
(0.50%) per annum. The Administrative Agent’s prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The Administrative Agent may
make commercial loans or other loans at rates of interest at, above or below the Administrative
Agent’s prime lending rate. Each change in the Administrative Agent’s prime lending rate shall be
effective from and including the date such change is publicly announced as being effective.




          “Borrower” shall have the meaning in the introductory paragraph hereof.




4









 








          “Business Day” means any day other than a Saturday or Sunday on which banks are not
authorized or required to close in Atlanta, Georgia or New York, New York and, if the applicable
Business Day relates to the issuance or payment on a Letter of Credit (i) in an Alternate Currency
payable in an amount other than Euros, on which banks are dealing in Currency deposits, as
applicable, in the applicable interbank eurocurrency market in London, England, and in the country
of issue of such Currency of such Letter of Credit, and (ii) payable in Euros, on which the TARGET
payment system is open for the settlement of payments in Euros.




          “Capital Lease Obligations” of any Person shall mean all obligations of such Person to
pay rent or other amounts under any lease (or other arrangement conveying the right to use) of 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 the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.




          “Capital Stock” shall mean any capital stock (or in the case of a partnership or
limited liability company, the partners’ or members’ equivalent equity interest) of the Borrower or
any of its Subsidiaries (to the extent issued to a Person other than the Borrower), whether common
or preferred.




          “Change in Control” shall mean the occurrence of one or more of the following events:
(i) any sale, lease, exchange or other transfer (in a single transaction or a series of related
transactions) of all or substantially all of the assets of the Borrower to any Person or “group”
(within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder in effect on the date hereof), (ii) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or “group” (within the meaning of
the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission
thereunder as in effect on the date hereof) of 50% or more of the outstanding shares of the voting
stock of the Borrower, or (iii) occupation of a majority of the seats (other than vacant seats) on
the board of directors of the Borrower by Persons who were neither (a) nominated by the current
board of directors nor (b) appointed by directors so nominated.




          “Change in Law” shall mean (i) the adoption of any applicable law, rule or regulation
after the date of this Agreement, (ii) any change in any applicable law, rule or regulation, or any
change in the interpretation or application thereof, by any Governmental Authority after the date
of this Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office) or the
Issuing Bank (or for purposes of Section 2.7(b), by such Lender’s or the Issuing Bank’s
parent corporation, if applicable) with any request, guideline or directive (whether or not having
the force of law) of any Governmental Authority made or issued after the date of this Agreement.




          “Closing Date” shall mean the date on which the conditions precedent set forth in
Section 3.1 and Section 3.2 have been satisfied or waived in accordance with
Section 10.2.




          “Code” shall mean the Internal Revenue Code of 1986, as amended and in effect from
time to time.




5









 








          “Collateral” shall mean all tangible and intangible property, real and personal, of
any Loan Party that is the subject of a Lien granted pursuant to a Loan Document to the Collateral
Agent for the benefit of the Facilities Lenders to secure the whole or any part of the Obligations
or any Guarantee thereof and the obligations under the Credit Agreement and any Guarantee thereof,
and shall include, without limitation, all casualty insurance proceeds and condemnation awards with
respect to any of the foregoing.




          “Collateral Agency Agreement” shall mean that certain Collateral Agency Agreement,
dated as of the Closing Date, among the Borrower, the Collateral Agent, the Facilities Lenders and
the Issuing Bank.




          “Collateral Agent” shall mean SunTrust Bank, in its capacity as collateral agent for
the Lenders, Administrative Agent, the Issuing Bank and the Facilities Lenders.




          “Collateral Asset Value” shall mean, for the Borrower and the Guarantors, for any
period, determined on a consolidated basis in accordance with GAAP, the sum of the book value of
the Borrower’s and the Guarantors’ accounts receivable, inventory, equipment, deposit accounts,
investment property (other than the Capital Stock of any Subsidiary of the Borrower owned by the
Borrower or such Guarantor) and cash that are subject to a perfected first priority lien (subject
to Liens set forth in paragraphs (i), (iii), (v), paragraphs (viii) through (xiii) and paragraph
(xv) of the definition of “Permitted Liens”) in favor of the Collateral Agent, as reflected on the
most recently delivered financial statements of the Borrower and its Subsidiaries




          “Compliance Certificate” shall mean a certificate from the chief financial officer
treasurer or controller of the Borrower in the form of, and containing the certifications set forth
in, the certificate attached hereto as Exhibit 5.1(c).




          “Consolidated Current Liabilities” shall mean, for the Borrower and its Subsidiaries
for any period the total liabilities (including tax and other proper accruals) of the Borrower and
its Subsidiaries on a consolidated basis at such date which may properly be classified as current
liabilities in accordance with GAAP, after eliminating all current maturities of long-term
Indebtedness.




          “Consolidated EBITDA” shall mean, for the Borrower and its Subsidiaries for any
period, and without duplication an amount equal to the sum of (a) Consolidated Net Income for such
period plus (b) to the extent deducted in determining Consolidated Net Income for such period, (i)
Consolidated Interest Expense, (ii) income tax expense, (iii) depreciation and amortization and
(iv) without duplication, cash dividends received from unconsolidated affiliates that are accounted
for by the equity accounting method, but excluding, in the case of the foregoing clauses (a) and
(b), any net income or net loss and expenses and charges of any SPVs, in all cases determined on a
consolidated basis in accordance with GAAP in each case for such period.




          “Consolidated Interest Expense” shall mean, for the Borrower and its Subsidiaries for
any period determined on a consolidated basis in accordance with GAAP, and without duplication, the
sum of (i) total interest expense, including without limitation the interest component of any
payments in respect of Capital Lease Obligations capitalized or expensed

6









 








during such period (whether or not actually paid during such period) plus (ii) the net amount
payable (or minus the net amount receivable) with respect to any interest rate Hedging Transactions
during such period (whether or not actually paid or received during such period) plus (iii)
Consolidated Lease Expense (whether or not actually paid during such period).




          “Consolidated Lease Expense” shall mean, for the Borrower and its Subsidiaries for any
period, the aggregate amount of rental expense payable by such Persons on leases of real and
personal property (excluding Capital Lease Obligations) associated with Indebtedness determined on
a consolidated basis in accordance with GAAP for such period.




          “Consolidated Net Income” shall mean, for the Borrower and its Subsidiaries for any
period, the net income (or loss) of the Borrower and its Subsidiaries for such period determined on
a consolidated basis in accordance with GAAP, but excluding therefrom (to the extent otherwise
included therein) (i) any extraordinary or non-recurring gains or losses, (ii) any gains or losses
attributable to write-ups or write-downs of assets, (iii) any equity interest of the Borrower or
any Subsidiary of the Borrower in the unremitted earnings of any Person that is not a Subsidiary,
(iv) any unremitted earnings of any Subsidiary that is subject to restrictions as to the payment of
dividends or distributions and (v) any income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary or is merged into or consolidated with the Borrower or any Subsidiary on the
date that such Person’s assets are acquired by the Borrower or any Subsidiary.




          “Consolidated Net Tangible Assets” of any Person shall mean, as of any date,
Consolidated Tangible Assets of such Person at such date, minus all Consolidated Current
Liabilities of such person at such date.




          “Consolidated Net Worth” shall mean, as of any date, the total shareholders equity of
the Borrower and its Subsidiaries that would be reflected on the Borrower’s consolidated balance
sheet as of such date prepared in accordance with GAAP, after excluding (x) all amounts
attributable to minority interests, if any, in Subsidiaries, (y) accumulated other comprehensive
income or loss, and (z) the amount of any write-up or write-down in the book value of any assets
resulting from a revaluation thereof or any write-up or write-down in excess of the cost of such
assets acquired reflected on the consolidated balance sheet of the Borrower as of such date
prepared in accordance with GAAP.




          “Consolidated Tangible Assets” shall mean for the Borrower and its Subsidiaries for
any period, the consolidated assets of the Borrower and its Subsidiaries (other than SPVs) at such
date, minus the sum of (1) the net book value of all assets that would be classified as intangible
under GAAP (including, without limitation, goodwill, organizational expenses, trademarks, trade
names, copyrights, patents, licenses and any rights in any thereof) and (2) any prepaid expenses,
deferred charges and unamortized debt discount and expense, in each case as determined in
accordance with GAAP.




          “Consolidated Total Assets” shall mean as of any date of determination, the aggregate
book value of the assets of the Borrower and its Subsidiaries determined on a consolidated basis in
accordance with GAAP as of such date.




7









 








          “Consolidated Total Debt” shall mean, as of any date, all Indebtedness of the Borrower
and its Subsidiaries measured on a consolidated basis as of such date, but excluding Indebtedness
of the type described in subsection (xi) of the definition thereto.




          “Contractual Currency” shall have the meaning given to such term in Section
2.13.




          “Contractual Obligation” of any Person shall mean any provision of any security issued
by such Person or of any agreement, instrument or undertaking under which such Person is obligated
or by which it or any of the property in which it has an interest is bound.




          “Control Account Agreements” shall mean each tri-party agreement by and among a Loan
Party, the Collateral Agent and a depository bank or securities intermediary at which such Loan
Party maintains any deposit accounts or investment accounts in the United States, granting
“control” over such deposit accounts and investment accounts to the Collateral Agent in a manner
that perfects the Lien of the Collateral Agent under the UCC.




          “Copyright” shall have the meaning assigned to such term in the Security Agreement.




          “Copyright Security Agreements” shall mean, collectively, the Copyright Security
Agreements executed in favor of the Collateral Agent, on behalf of itself and the Facilities
Lenders, by the Loan Parties owning Copyrights or licenses of Copyrights.




          “Currency” shall mean Dollars or any Alternate Currency.




          “Default” shall mean any condition or event that, with the giving of notice or the
lapse of time or both, would constitute an Event of Default.




          “Default Rate” shall mean a rate interest equal to the Base Rate plus the Applicable
Margin plus an additional 2% per annum.




          “Designated Asset Sales” shall mean sales of inventory or equipment which is worthless
or obsolete or no longer necessary or useful to the proper conduct of the Borrower’s or any of its
Subsidiaries’ business, so long as the aggregate consideration received in respect of all such
sales made in any Fiscal Year does not exceed $10,000,000.




          “Determination Date” shall mean:





     (a) in connection with any new Obligation relating to an Alternate Currency Letter of
Credit, the Business Day which is the date such credit is extended or the date the
Applicable Margin is set, as applicable; or




     (b) the date of any reduction of the LC Commitments pursuant to the terms of Article
II.



          “Disclosed Items” shall have the meaning given to such term in Section
3.1(b)(xviii).




8









 








          “Disqualified Stock” shall mean any Capital Stock that (i) matures or is mandatorily
redeemable pursuant to a sinking fund obligation or otherwise, (ii) is or may become redeemable or
repurchaseable by Borrower or such Subsidiary at the option of the holder thereof for Indebtedness
or cash, in whole or in part or (iii) is convertible or exchangeable at the option of the holder
thereof for Indebtedness, on or prior to, in the case of clause (i), (ii) or (iii), the first
anniversary of the LC Commitment Termination Date.




          “Dollar(s)” and the sign “$” shall mean lawful money of the United States of America.




          “Dollar Equivalent” means, on any date of determination, (i) with respect to any
amount in Dollars, such amount, and (ii) with respect to any amount in any Currency other than
Dollars, the equivalent in Dollars of such amount, determined by the Administrative Agent pursuant
to Section 2.13 using the applicable Exchange Rate with respect to such Currency at the
time in effect under the provisions of such Section.




          “Domestic Lending Office” means, with respect to any Lender, the office of such Lender
(or an Affiliate of such Lender) specified as its “Domestic Lending Office” in the Administrative
Questionnaire submitted by such Lender or such other office of such Lender (or an Affiliate of such
Lender) as such Lender may from time to time specify to the Borrower and the Administrative Agent.




          “Domestic Subsidiary” shall mean each Subsidiary that is not a Foreign Subsidiary.




          “EMU” shall mean economic and monetary union as contemplated in the Treaty on European
Union.




          “EMU Legislation” shall mean legislative measures of the European Union for the
introduction of change over to or operation of a single or unified European currency, as amended
from time to time.




          “Environmental Laws” shall mean all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by or with any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, Release or threatened Release of
any Hazardous Material or to health and safety matters.




          “Environmental Liability” shall mean any liability, contingent or otherwise (including
any liability for damages, costs of environmental investigation and remediation, costs of
administrative oversight, fines, natural resource damages, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly resulting from or based upon (i) any actual or
alleged violation of any Environmental Law, (ii) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (iii) any actual or alleged exposure to
any Hazardous Materials, or (iv) the Release or threatened Release of any Hazardous Materials.




          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time, and any successor statute.




9









 








          “ERISA Affiliate” shall mean any trade or business (whether or not incorporated),
which, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of
the Code or, solely for the purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.




          “ERISA Event” shall mean (i) any “reportable event”, as defined in Section 4043 of
ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which
the 30-day notice period is waived); (ii) the existence with respect to any Plan of an “accumulated
funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (iii) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any Plan; (iv) the
incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA
with respect to the termination of any Plan; (v) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator appointed by the PBGC of any notice relating to an intention
to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (vi) the incurrence
by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (vii) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the
meaning of Title IV of ERISA.




          “Euro” means the lawful currency of the European Union as constituted by the Treaty of
Rome which established the European Community, as such treaty may be amended from time to time and
as referred to in the EMU legislation.




          “Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D.




          “Eurocurrency Lending Office” means, with respect to any Lender, the office of such
Lender (or an Affiliate of such Lender) specified as its “Eurocurrency Lending Office” in the
Administrative Questionnaire submitted by such Lender or such other office of such Lender (or an
Affiliate of such Lender) as such Lender may from time to time specify to the Borrower and the
Administrative Agent.




          “Euro Unit” shall mean shall mean the unit of currency denominated in Euros.




          “Event of Default” shall have the meaning provided in Article VIII.




          “Exchange Rate” means on any day, with respect to any Alternate Currency, the offered
rate at which such Currency may be exchanged into Dollars, as set forth at approximately 11:00 a.m.
on such day on the Reuters NFX Page (or comparable page on the Telerate or Bloomberg Service) for
such Currency. In the event that such rate does not appear on the applicable page of any such
services, the Exchange Rate shall be determined by reference to such other publicly available
services for displaying exchange rates as may be agreed upon by the Administrative Agent and the
Borrower, or, in the absence of such agreement, such Exchange Rate shall instead be the offered
spot Exchange Rate of the Administrative Agent or, if the Administrative Agent shall so determine,
one of its banking affiliates or correspondents in the

10









 








market where its foreign currency exchange operations in respect of such Currency are then
being conducted, at or about 10:00 a.m., local time, on such date for the purchase of Dollars for
delivery two Business Days later; provided that if at the time of any such determination,
for any reason, no such spot rate is being quoted, the Administrative Agent, after consultation
with the Borrower, may use any reasonable method it deems appropriate to determine such rate, and
such determination shall be conclusive absent manifest error.




          “Excluded Taxes” shall mean with respect to the Collateral Agent, the Administrative
Agent, any Lender, the Issuing Bank or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise taxes imposed on (or
measured by) its net income by the United States of America, or by the jurisdiction under the laws
of which such recipient is organized or in which its principal office is located or, in the case of
any Lender, in which its Applicable Lending Office is located, (b) any branch profits taxes imposed
by the United States of America or any similar tax imposed by any other jurisdiction in which any
Lender is located and (c) in the case of a Foreign Lender, any withholding tax that (i) is imposed
on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement, (ii) is imposed on amounts payable to such Foreign Lender at any time that such Foreign
Lender designates a new lending office, other than taxes that have accrued prior to the designation
of such lending office that are otherwise not Excluded Taxes, or (iii) is attributable to such
Foreign Lender’s failure to comply with Section 2.7(e).




          “Existing Letters of Credit” means the letters of credit issued and outstanding as set
forth on Schedule 2.10.




          “Extended Claim Guarantees” shall have the meaning set forth in Section
2.10(k).




          “Extended Claim Letters of Credit” shall have the meaning set forth in Section
2.10(k).




          “Facilities Lenders” shall mean, collectively, the Lenders and the Revolving Lenders.




          “Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if
necessary, to the next 1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with member banks of the Federal Reserve System arranged by
Federal funds brokers, as published by the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th of 1% of the
quotations for such day on such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by the Administrative Agent.




          “Fee Letter” shall mean that certain fee letter, dated as of June 1, 2006, executed by
SunTrust Capital Markets, Inc. and SunTrust Bank and accepted by Borrower.




          “Fiscal Quarter” shall mean any fiscal quarter of the Borrower.




          “Fiscal Year” shall mean any Fiscal Year of the Borrower.




11









 








          “First-Tier Foreign Subsidiary” shall mean each Foreign Subsidiary, all of the Capital
Stock of which (other than directors’ qualifying Shares) is directly owned by the Borrower or any
Wholly Owned Domestic Subsidiary.




          “Foreign Lender” shall mean any Lender that is not a United States person under
Section 7701(a)(3) of the Code.




          “Foreign Subsidiary” shall mean any Subsidiary that is organized under the laws of a
jurisdiction other than one of the fifty states of the United States or the District of Columbia.




          “GAAP” shall mean generally accepted accounting principles in the United States
applied on a consistent basis and subject to the terms of Section 1.2.




          “Governmental Authority” shall mean the government of the United States of America,
any other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.




          “Guarantee” of or by any Person (the “guarantor”) shall mean any Contractual
Obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly and including any obligation, direct or indirect, of the guarantor
(i) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (ii) to purchase or lease property, securities or services for the purpose of
assuring the owner of such Indebtedness of the payment thereof, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness or (iv) as an account party in respect of
any letter of credit or letter of guaranty issued in support of such Indebtedness;
provided, that the term “Guarantee” shall not include endorsements for collection or
deposits in the ordinary course of business. The amount of any Guarantee shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith. The term “Guarantee” used as a verb has a corresponding meaning.




          “Guarantor” shall mean each Wholly Owned Domestic Subsidiary that is a Significant
Subsidiary and that is a party to the Subsidiary Guaranty Agreement as of the Closing Date, and
each other Wholly Owned Domestic Subsidiary that is a Significant Subsidiary and that executes a
joinder to the Subsidiary Guaranty Agreement, as contemplated by Section 5.11 until
released in accordance with the Subsidiary Guaranty Agreement or the other Loan Documents.




          “Hazardous Materials” shall have the meaning assigned to that term in the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended

12









 








by the Superfund Amendments and Reauthorization Acts of 1986, and shall also include
petroleum, including crude oil or any fraction thereof, or any other substance defined as
“hazardous” or “toxic” or words with similar meaning and effect under any Environmental Law
applicable to the Borrower or any of its Subsidiaries.




          “Hedging Obligations” of any Person shall mean any and all Net obligations of such
Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or
acquired under (i) any and all Hedging Transactions, and (ii) any and all renewals, extensions and
modifications of any Hedging Transactions and any and all substitutions for any Hedging
Transactions.




          “Hedging Transaction” of any Person shall mean any interest rate or foreign currency
transaction (including an agreement with respect thereto) now existing or hereafter entered into by
such Person that is a rate swap, basis swap, forward rate transaction, commodity swap, interest
rate option, foreign exchange transaction, cap transaction, floor transaction, collateral
transaction, forward transaction, currency swap transaction, cross-currency rate swap transaction,
currency option or any other similar transaction (including any option with respect to any of these
transactions) or any combination thereof, whether linked to one or more interest rates, foreign
currencies, commodity prices, equity prices or other financial measures.




          “Indebtedness” of any Person shall mean, without duplication (i) obligations of such
Person for borrowed money, (ii) obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (iii) obligations of such Person in respect of the deferred purchase
price of property or services (other than trade payables incurred in the ordinary course of
business on terms customary in the trade); (iv) obligations of such Person under any conditional
sale or other title retention agreement(s) relating to property acquired by such Person, (v) all
Capital Lease Obligations of such Person, (vi) all obligations, contingent or otherwise, of such
Person in respect of letters of credit, acceptances or similar extensions of credit, (vii)
Guarantees of such Person of the type of Indebtedness described in clauses (i) through (vi) above,
(viii) Indebtedness of a third party secured by any Lien on property owned by such Person, whether
or not such Indebtedness has been assumed by such Person, (ix) Disqualified Stock of such Person,
(x) Off-Balance Sheet Liabilities and (xi) all Hedging Obligations.




          “Indemnified Taxes” shall mean Taxes other than Excluded Taxes.




          “Indenture” shall mean the indenture, dated as of June 20, 2003 (as supplemented by
that certain Supplemental Indenture dated as of June 30, 2004 and that certain Supplemental
Indenture dated as of August 16, 2005), among the Borrower, the guarantors signatory thereto, and
U.S. Bank National Association, as trustee, pursuant to which the Borrower has issued its 6 1/8%
senior notes due 2013.




          “Information Memorandum” shall mean the Confidential Information Memorandum dated June
2006 relating to the Borrower and the transactions contemplated by this Agreement and the other
Loan Documents.




          “Interest Coverage Ratio” shall mean, as of any date, the ratio of (i) Consolidated
EBITDA for the four consecutive Fiscal Quarters ending on or immediately prior to such date to




13









 







(ii) Consolidated Interest Expense for the four consecutive Fiscal Quarters ending on or
immediately prior to such date.




          “Investment Grade Rating” shall mean, (i) a Moody’s rating of Baa3 or higher and an
S&P rating of at least BB+ or (ii) a Moody’s rating of Ba1 or higher and an S&P rating of at least
BBB-; provided, however, that if (a) either Moody’s or S&P changes its rating system, such
ratings will be the equivalent ratings after such changes or (b) if S&P or Moody’s or both shall
not make a rating of the senior unsecured non-credit enhanced long term debt of the Borrower, the
Notes or the Borrower publicly available, the references above to S&P or Moody’s or both, as the
case may be, shall be to a nationally recognized U.S. rating agency or agencies, as the case may
be, selected by the Borrower and the references to the ratings categories above shall be to the
corresponding rating categories of such rating agency or rating agencies, as the case may be.




          “Investment Grade Rating Event” means the first day on which the notes issued under
the Indenture are assigned an Investment Grade Rating.




          “Issuing Bank” shall mean the Original Issuing Bank or any other Lender approved by
the Administrative Agent and the Borrower, each in its capacity as an issuer of Letters of Credit
pursuant to Section 2.10.




          “LC Commitment” mean, with respect to each Lender, the commitment of such Lender to
acquire participations in Letters of Credit in an aggregate principal amount not exceeding the
amount set forth with respect to such Lender on Schedule II hereto, as such schedule may be
amended, or in the case of a Person becoming a Lender after the Closing Date, the amount of the
assigned “LC Commitment” as provided in the Assignment and Acceptance executed by such Person as an
assignee, or the joinder executed by such Person, in each case as such commitment may subsequently
be increased or decreased pursuant to terms hereof.




          “LC Commitment Termination Date” shall mean the earliest of (i) August 3, 2011, (ii)
the date on which the LC Commitments are terminated pursuant to Section 2.2 and (iii) the
date on which all amounts outstanding under this Agreement have been declared or have automatically
become due and payable (whether by acceleration or otherwise).




          “LC Disbursement” shall mean a payment made by the Issuing Bank pursuant to a Letter
of Credit.




          “LC Documents” shall mean the Letters of Credit and all applications, agreements and
instruments relating to the Letters of Credit.




          “LC Exposure” shall mean, at any time, the sum of (a) the aggregate undrawn amount of
all outstanding Letters of Credit denominated in Dollars at such time, plus (b) the Dollar
Equivalent of the aggregate undrawn amount of all outstanding Alternate Currency Letters of Credit,
plus (c) the aggregate amount of all LC Disbursements (including the Dollar Equivalent of any LC
Disbursements with respect to Alternate Currency Letters of Credit) that have not been reimbursed
by or on behalf of the Borrower at such time. The LC Exposure of any Lender shall be its Pro Rata
Share of the total LC Exposure at such time.




14









 








          “Lenders” shall have the meaning assigned to such term in the opening paragraph of
this Agreement.




          “Letter of Credit” shall mean any stand-by letter of credit issued pursuant to
Section 2.10 by the Issuing Bank for the account of the Borrower pursuant to the LC
Commitment.




          “Leverage Ratio” shall mean, as of any date, the ratio of (i) Consolidated Total Debt
as of such date to (ii) Consolidated EBITDA for the four consecutive Fiscal Quarters ending on or
immediately prior to such date.




          “Lien” shall mean any mortgage, pledge, security interest, lien (statutory or
otherwise), charge, encumbrance, hypothecation, assignment, deposit arrangement, or other
arrangement having the practical effect of the foregoing or any preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having the same economic
effect as any of the foregoing) intended to assure or support payment or performance of any
obligation.




          “Liquidation Currency” shall have the meaning given to such term in Section
2.13.




          “Loan Documents” shall mean, collectively, this Agreement, the LC Documents, the
Collateral Agency Agreement, the Fee Letter, the Subsidiary Guaranty Agreement, the Security
Documents, all Compliance Certificates, all landlord waivers and consents, bailee agreements and
any and all other instruments, and agreements, executed in connection with any of the foregoing.




          “Loan Party” shall mean, collectively or individually, the Borrower and the Guarantors
as the context requires.




          “Material Adverse Effect” shall mean, with respect to any event, act, condition or
occurrence of whatever nature (including any adverse determination in any litigation, arbitration,
or governmental investigation or proceeding), whether singularly or in conjunction with any other
event or events, act or acts, condition or conditions, occurrence or occurrences whether or not
related, (i) a material adverse change in, or a material adverse effect on the business, assets,
liabilities (actual or contingent), operations, or condition (financial or otherwise) of the
Borrower and its Subsidiaries, taken as a whole, or (ii) a material impairment on the ability of
the Borrower, or of the Guarantors taken as a whole, to perform their obligations under the Loan
Documents or consummate the transactions described herein.




          “Material Indebtedness” shall mean Indebtedness (other than the Letters of Credit) and
Hedging Obligations of the Borrower or any of its Subsidiaries, under which an aggregate principal
amount exceeding $10,000,000 is outstanding. For purposes of determining the amount of attributed
Indebtedness from Hedging Obligations, the “principal amount” of any Hedging Obligations at any
time shall be (i) if the Hedging Transactions giving rise to such Hedging Obligations have been
cancelled, expired or otherwise terminated, the actual amounts,

15









 








if any, owing by the Borrower and its Subsidiaries thereunder, and (ii) otherwise, the Net
Mark-to-Market Exposure of such Hedging Obligations.




          “Moody’s” shall mean Moody’s Investors Service, Inc.




          “Multiemployer Plan” shall have the meaning set forth in Section 4001(a)(3) of ERISA.




          “National Currency Unit” shall mean the unit of currency (other than a Euro Unit) of a
Participating Member State.




          “Net Mark-to-Market Exposure” of any Person shall mean, as of any date of
determination with respect to any Hedging Obligation, the excess (if any) of all unrealized losses
over all unrealized profits of such Person arising from such Hedging Obligation. “Unrealized
losses” shall mean the fair market value of the cost to such Person of replacing the Hedging
Transaction giving rise to such Hedging Obligation as of the date of determination (assuming the
Hedging Transaction were to be terminated as of that date), and “unrealized profits” means the fair
market value of the gain to such Person of replacing such Hedging Transaction as of the date of
determination (assuming such Hedging Transaction were to be terminated as of that date).




          “Non-Recourse Debt” shall mean Indebtedness (i) as to which neither the Borrower nor
any of its Subsidiaries (a) provides any Guarantee or other credit support of any kind (including
any undertaking, agreement or instrument that would constitute Indebtedness) or is otherwise
directly or indirectly liable (as a guarantor or otherwise) or (b) is the lender thereunder; (ii)
no default with respect to which (including any rights that the holders thereof may have to take
enforcement action against any Subsidiary) would permit (upon notice, lapse of time or both) the
holders of Indebtedness of the Borrower or any of its Subsidiaries to declare a default on such
Indebtedness or cause the payment thereof to be accelerated or payable prior to its stated
maturity; and (iii) the explicit terms of which provide that there is no recourse to the stock or
assets of the Borrower or any of its Subsidiaries.




          “Obligations” shall mean all amounts owing by the Borrower to the Administrative
Agent, the Issuing Bank, the Collateral Agent or any Lender pursuant to or in connection with this
Agreement or any other Loan Document, including without limitation, all principal, interest
(including any 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), all reimbursement
obligations, fees, expenses, indemnification and reimbursement payments, costs and expenses
including all fees and expenses of counsel to the Administrative Agent, the Issuing Bank, the
Collateral Agent and any Lender incurred pursuant to this Agreement or any other Loan Document.




          “Off-Balance Sheet Liabilities” of any Person shall mean (i) any repurchase obligation
or liability of such Person with respect to accounts or notes receivable sold by such Person, (ii)
any liability of such Person under any sale and leaseback transactions that do not create a
liability on the balance sheet of such Person, (iii) any Synthetic Lease Obligation or (iv) any
obligation arising with respect to any other transaction which is the functional equivalent of

16









 








or takes the place of borrowing but which does not constitute a liability on the balance sheet
of such Person.




          “OSHA” shall mean the Occupational Safety and Health Act of 1970, as amended from time
to time, and any successor statute.




          “Other Taxes” shall mean 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.




          “Participant” shall have the meaning given to such term in Section 10.4(d).




          “Participating Member State” shall mean each country so described in any EMU
Legislation.




          “Patent” shall have the meaning assigned to such term in the Security Agreement.




          “Patent Security Agreements” shall mean, collectively, the Patent Security Agreements
executed in favor of the Collateral Agent, on behalf of itself and the Facilities Lenders, by the
Loan Parties owning Patents or licenses of Patents both on the Closing Date and thereafter.




          “Payment Office” shall mean the office of the Administrative Agent located at 303
Peachtree Street, N.E., Atlanta, Georgia 30308, or such other office or such account maintained by
or on behalf of the Administrative Agent as to which the Administrative Agent shall have given
written notice to the Borrower and the other Lenders.




          “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in
ERISA, and any successor entity performing similar functions.




          “Perfection Certificate” shall have the meaning assigned to such term in the Security
Agreement.




          “Permitted Liens” shall mean:





     (i) Liens securing Indebtedness under the Loan Documents and the Credit Agreement,




     (ii) any Lien existing on any asset of any Person at the time such Person becomes a
Subsidiary of the Borrower; provided, that any such Lien was not created in the
contemplation thereof and any such Lien secures only those obligations which it secures on
the date that such person becomes a Subsidiary (and all extensions, renewals and
replacements of any such obligations that do not increase the outstanding principal amount
thereof),




     (iii) Liens securing Hedging Obligations entered into with any Lender to the extent
such Indebtedness is permitted under the terms hereunder, and Liens securing



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Hedging Obligations entered into with any other Person to the extent such Indebtedness
is permitted under the terms hereunder and provided that such Person has entered into an
intercreditor agreement with the Administrative Agent in form and substance reasonably
satisfactory to the Administrative Agent,




     (iv) Liens existing on the Closing Date and set forth on Schedule 7.2 (and all
extensions, renewals and replacements of any such obligations that do not increase the
outstanding principal amount thereof),




     (v) any interest or title of a lessor under a capital lease or an operating lease to
the extent such Indebtedness is permitted under the terms hereunder,




     (vi) Liens securing purchase money financing and other obligations permitted under
Section 7.1(f),




     (vii) Liens securing Non-Recourse Debt to the extent such Indebtedness is permitted
under the terms hereunder,




     (viii) Liens in respect of pending or threatened litigation or with respect to a
judgment which has not resulted in an Events of Default under Section 8.1(1),




     (ix) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlords’ or
other like Liens arising in the ordinary course of business which are not overdue for a
period of more than 90 days or which are being contested in good faith by appropriate
proceedings or otherwise which, in aggregate could not reasonably be expected to have a
Material Adverse Effect,




     (x) irregularities in title, easements, rights-of-way, restrictions and other similar
encumbrances with respect to property incurred in the ordinary course of business which, in
the aggregate, impair the use of any material property by the Borrower and its Subsidiaries
or otherwise could not reasonably be expected to have a Material Adverse Effect,




     (xi) Liens imposed by law for taxes not yet due or which are being contested in good
faith by appropriate proceedings diligently conducted and with respect to which adequate
reserves are being maintained in accordance with GAAP or otherwise which, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect,




     (xii) statutory Liens of landlords, carriers, warehousemen, mechanics, materialmen and
similar Liens arising by operation of law in the ordinary course of business for amounts not
yet due or which are being contested in good faith by appropriate proceedings and with
respect to which adequate reserves are being maintained in accordance with GAAP or otherwise
which, in the aggregate, could not reasonably be expected to have a Material Adverse Effect,




     (xiii) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations,



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     (xiv) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business,




     (xv) customary rights of set-off, revocation, refund or chargeback under deposit
agreements or under the Uniform Commercial Code or other law of banks or other financial
institutions where Borrower or any of its Subsidiaries maintains deposits (other than
deposits intended as cash collateral) in the ordinary course of business; and




     (xvi) Liens not otherwise permitted hereunder securing Indebtedness not in excess of
$10,000,000.



          “Permitted Investments” shall mean:





     (i) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the United States), in each case
maturing within one year from the date of acquisition thereof;




     (ii) commercial paper having the highest rating, at the time of acquisition thereof, of
S&P or Moody’s and in either case maturing within six months from the date of acquisition
thereof;




     (iii) certificates of deposit, bankers’ acceptances and time deposits maturing within
180 days of the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any commercial bank which has a combined
capital and surplus and undivided profits of not less than the Dollar Equivalent of
$500,000,000;




     (iv) fully collateralized repurchase agreements with a term of not more than 30 days
for securities described in clause (i) above and entered into with a financial institution
satisfying the criteria described in clause (iii) above; and




     (v) money market mutual funds investing primarily in any one or more of the Permitted
Investments described in clauses (i) through (iv) above.



          “Permitted Subordinated Debt” shall mean any Indebtedness of the Borrower or any
Subsidiary (i) that is expressly subordinated to the Obligations on terms reasonably satisfactory
to the Administrative Agent and the Required Lenders in their sole discretion, (ii) that matures by
its terms no earlier than six months after the later of the LC Commitment Termination Date with no
scheduled principal payments permitted prior to such maturity, and (iii) that is evidenced by an
indenture or other similar agreement that is in a form satisfactory to the Administrative Agent and
the Required Lenders.




          “Person” shall mean any individual, partnership, firm, corporation, association, joint
venture, limited liability company, trust or other entity, or any Governmental Authority.




19









 








          “Plan” shall mean (i) any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of
ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section
3(5) of ERISA and (ii) the defined benefit plan of a United Kingdom Subsidiary.




          “Pounds” means British Pounds Sterling.




          “Pledge Agreement” shall mean that certain Pledge Agreement, dated as of the date
hereof, executed by the Borrower, each Wholly Owned Domestic Subsidiary, in favor of the Collateral
Agent for the benefit of the Facilities Lenders, pursuant to which such Loan Parties shall pledge
all of the Capital Stock of each Wholly Owned Domestic Subsidiary and 65% of the Capital Stock of
all First-Tier Foreign Subsidiaries.




          “Pro Rata Share” shall mean with respect to any LC Commitment of any Lender at any
time, a percentage, the numerator of which shall be such Lender’s LC Commitment (or if such LC
Commitments have been terminated or expired, such Lender’s LC Exposure), and the denominator of
which shall be the sum of such LC Commitments of all Lenders (or if such LC Commitments have been
terminated or expired, all LC Exposure of all Lenders).




          “Real Estate” shall mean all real property owned or leased by the Borrower and its
Subsidiaries.




          “Received Currency” shall have the meaning given to such term in Section 2.13.




          “Redenominate” means the conversion of each Alternate Currency Letter of Credit from
one Alternate Currency into Dollars or another Alternate Currency.




          “Reference Banks” means JPMorgan Chase Bank, National Association, Bank of America,
N.A. and SunTrust Bank or if any such Lender assigns all of its LC Commitment, such other Lender as
may be designated by the Administrative Agent.




          “Regulation D” shall mean Regulation D of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and any successor regulations.




          “Related Parties” shall mean, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.




          “Release” shall mean any release, spill, emission, leaking, dumping, injection,
pouring, deposit, disposal, discharge, dispersal, leaching or migration into the environment
(including ambient air, surface water, groundwater, land surface or subsurface strata) or within
any building, structure, facility or fixture.




          “Required Lenders” shall mean, at any time, the Facilities Lenders holding more than
50% of the sum of the aggregate outstanding Revolving Commitments at such time plus the

20









 








aggregate outstanding LC Commitments or if the Facilities Lenders have no Revolving
Commitments or LC Commitments outstanding, then Facility Lenders holding more than 50% of sum of
the Revolving Credit Exposure plus the LC Exposure.




          “Requirement of Law” for any Person shall mean the articles or certificate of
incorporation, bylaws, partnership certificate and agreement, or limited liability company
certificate of organization and agreement, as the case may be, and other organizational and
governing documents of such Person, and any law, treaty, rule or regulation, or determination of a
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.




          “Reset Date” shall have the meaning given to such term in Section 2.13.




          “Responsible Officer” shall mean any of the president, the chief executive officer,
the chief operating officer, the chief financial officer, the treasurer, controller or a vice
president of the Borrower or such other representative of the Borrower as may be designated in
writing by any one of the foregoing with the consent of the Administrative Agent; and, with respect
to the financial covenants only, the chief financial officer or the treasurer of the Borrower.




          “Restricted Payment” shall have the meaning given to such term in Section 7.5.




          “Revolving Commitment” shall have the meaning set forth in the Credit Agreement.




          “Revolving Credit Exposure” shall have the same meaning as set forth in the Credit
Agreement.




          “Revolving Issuing Bank” shall mean SunTrust Bank or any other lender issuing letters
of credit under the Credit Agreement.




          “Revolving LC Exposure” shall have the meaning as the term “LC Exposure” set forth in
the Credit Agreement.




          “Revolving Letter of Credit” shall mean any letter of credit issued pursuant to the
Credit Agreement for the account of the Borrower.




          “Revolving Lenders” shall mean each lender party to the Credit Agreement.




          “Revolving Loan” shall mean a loan made by a Revolving Lender (other than the
Swingline Lender) to the Borrower under its Revolving Commitment.




          “S&P” shall mean Standard & Poor’s, a Division of the McGraw-Hill Companies.




          “Security Agreement” shall mean that certain Security Agreement, dated as of the date
hereof, executed by the Loan Parties in favor of the Collateral Agent for the benefit of the
Lenders.




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          “Security Documents” shall mean, collectively, the Security Agreement, the Pledge
Agreements, any Copyright Security Agreement, any Trademark Security Agreement, any Patent Security
Agreement, the Perfection Certificate, and all other instruments and agreements now or hereafter
securing the whole or any part of the Obligations or any Guarantee thereof, all UCC financing
statements, fixture filings, stock powers, and all other documents, instruments, agreements and
certificates executed and delivered by any Loan Party to the Collateral Agent and the Lenders in
connection with the foregoing.




          “Senior Secured Debt” shall mean the aggregate principal amount of all obligations
under the Loan Documents and the Credit Agreement.




          “Significant Subsidiary” shall mean any Subsidiary of the Borrower that would be a
“significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant
to the Securities Act of 1933, as amended, as such Regulation S-X is in effect on the Closing Date.




          “SPV” shall mean any Person that is designated by the Borrower as a SPV and has no
Indebtedness other than Non-Recourse Indebtedness, provided that the Borrower shall not designate
as a SPV any Subsidiary that owns, directly or indirectly, any other Subsidiary that has total
assets (including assets of any Subsidiaries of such other Subsidiary, but excluding any assets
that would be eliminated in consolidation with the Borrower and its Subsidiaries) which equates to
at least five percent (5%) of the Borrower’s Consolidated Total Assets, or that had net income
(including net income of any Subsidiaries of such other Subsidiary, all before discontinued
operations and income or loss resulting from extraordinary items, all determined in accordance with
GAAP, but excluding revenues and expenses that would be eliminated in consolidation with the
Borrower and its Subsidiaries) during the most recently completed Fiscal Year of the Borrower in
excess of the greater of (i) $1,000,000, and (ii) fifteen percent (15%) of the net income (before
discontinued operations and income or loss resulting from extraordinary items) for the Borrower and
its Subsidiaries, all as determined on a consolidated basis in accordance with GAAP during such
Fiscal Year of the Borrower. The Borrower may elect to treat any Subsidiary as a SPV (provided
such Subsidiary would otherwise qualify as such), and may rescind any such prior election, by
giving written notice thereof to the Administrative Agent specifying the name of such Subsidiary or
SPV, as the case may be, and the effective date of such election, which shall be a date within
sixty (60) days after the date such notice is given. The election to treat a particular Person as
a SPV may only be made once.




          “Subsidiary” shall mean, with respect to any person (the “parent”), any corporation,
partnership, joint venture, limited liability company, trust, association or other entity of which
securities or other ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power, or in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, controlled or held by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the parent, together
with any other corporation, partnership, joint venture, limited liability company, trust,
association or other entity (other than, except in the context of the items set forth in the
Section 5.1 herein, a SPV) the accounts of which would be consolidated with those of the
parent in the parent’s consolidated financial statements if such financial statements were prepared
in accordance with GAAP as of such date.




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          “Subsidiary Guaranty Agreement” shall mean the Subsidiary Guaranty Agreement, dated as
of the date hereof, made by each Guarantor in favor of the Administrative Agent for the benefit of
the Lenders.




          “Swingline Lender” shall mean SunTrust Bank, or any other Lender approved by the
Borrower and the Administrative Agent that may agree to make Swingline Loans under the Credit
Agreement.




          “Swingline Loan” shall mean a loan made to the Borrower by the Swingline Lender under
the Credit Agreement.




          “Synthetic Lease” shall mean a lease transaction under which the parties intend that
(i) the lease will be treated as an “operating lease” by the lessee pursuant to Statement of
Financial Accounting Standards No. 13, as amended and (ii) the lessee will be entitled to various
tax and other benefits ordinarily available to owners (as opposed to lessees) of like property as
is customary in synthetic leases.




          “Synthetic Lease Obligations” shall mean, with respect to any Person, the sum of (i)
all remaining rental obligations of such Person as lessee under Synthetic Leases which are
attributable to principal and, without duplication, (ii) all rental and purchase price payment
obligations of such Person under such Synthetic Leases assuming such Person exercises the option to
purchase the lease property at the end of the lease term.




          “TARGET” means the Trans-European Automated Real-Time Gross Settlement Express
Transfer system.




          “Taxes” shall mean any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.




          “Total Assets” shall mean as of any date of determination, the aggregate book value of
the assets of a Person determined in accordance with GAAP as of such date.




          “Trademark” shall have the meaning assigned to such term in the Security Agreement.




          “Trademark Security Agreements” shall mean, collectively, the Trademark Security
Agreements in favor of the Collateral Agent, on behalf of itself and the Facilities Lenders,
executed by the Loan Parties owning Trademarks or licenses of Trademarks, both on the Closing Date
and thereafter.




          “Uniform Commercial Code” or “UCC” shall mean the Uniform Commercial Code as
in effect from time to time in the State of New York.




          “Wholly Owned Domestic Subsidiary” shall mean each Domestic Subsidiary of the Borrower
or any other Domestic Subsidiary, all of the Capital Stock of which (other than directors’
qualifying shares) is owned by the Borrower directly or indirectly through other Persons all of
whose Capital Stock (other than director’s qualifying shares) is at the time owned, directly or
indirectly by the Borrower.




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          “Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.




          Section 1.2. Accounting Terms and Determination. Unless otherwise defined or
specified herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to be delivered
hereunder shall be prepared, in accordance with GAAP as in effect from time to time, applied on a
basis consistent with the most recent audited consolidated financial statement of the Borrower
delivered pursuant to Section 5.1(a); if (i) any change in accounting principles from those
used in the preparation of the financial statements of the Borrower referred to in Section
5.1 is hereafter occasioned by the promulgation of rules, regulations, pronouncements and
opinions by or required by the Financial Accounting Standards Board or the American Institute of
Certified Public Accounts (or successors thereto or agencies with similar functions), and such
change materially affects the calculation of any component of any financial covenant, standard or
term found in this Agreement, or (ii) there is a material change in federal, state or foreign tax
laws which materially affects any of the Borrower and its Subsidiaries’ ability to comply with the
financial covenants, standards or terms found in this Agreement, the Borrower and the Lenders agree
to enter into negotiations in order to amend such provisions (with the agreement of the Required
Lenders or, if required by Section 10.2, all of the Lenders) so as to equitably reflect
such changes with the desired result that the criteria for evaluating any of the Borrower’s and its
Subsidiaries’ financial condition shall be the same after such changes as if such changes had not
been made. Unless and until such provisions have been so amended, the provisions of this Agreement
shall govern.




          Section 1.3. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. In the
computation of periods of time from a specified date to a later specified date, the word “from”
means “from and including” and the word “to” means “to but excluding”. Unless the context requires
otherwise (i) any definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document as it was
originally executed or as it may from time to time be amended, restated, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or modifications set forth
herein), (ii) any reference herein to any Person shall be construed to include such Person’s
successors and permitted assigns, (iii) the words “hereof”, “herein” and “hereunder” and words of
similar import shall be construed to refer to this Agreement as a whole and not to any particular
provision hereof, (iv) all references to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles, Sections, Exhibits and Schedules to this Agreement and (v) all
references to a specific time shall be construed to refer to the time in the city and state of the
Administrative Agent’s principal office, unless otherwise indicated.




24









 








ARTICLE II




AMOUNT AND TERMS OF THE COMMITMENTS




          Section 2.1. General Description of Facilities. Subject to and upon the terms and
conditions herein set forth, the Issuing Bank agrees to issue, amend, renew or extend Letters of
Credit in accordance with Section 2.10, and each Lender agrees to purchase a
participation interest in the Letters of Credit pursuant to the terms and conditions hereof;
provided, that the Issuing Bank shall have no obligation to issue, amend, renew or extend a
Letter of Credit and no Lender shall be permitted or required to purchase a participation interest
in any Letters of Credit if, after giving effect thereto, (i) the Dollar Equivalent of the
aggregate principal amount of the LC Exposure of all Lenders (determined in accordance with
Section 2.13) would thereby exceed the Aggregate LC Commitment Amount then in effect. Such
Letters of Credit shall be issued in any combination of Dollars or any other Alternate Currency as
specified by the Borrower.




          Section 2.2. Optional Reduction and Termination of LC Commitments.




          (a) Unless previously terminated, all LC Commitments shall terminate on the LC Commitment
Termination Date.




          (b) Upon at least three (3) Business Days’ prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent (which notice shall be irrevocable), the Borrower
may reduce the Aggregate LC Commitments in part or terminate the Aggregate LC Commitments in whole;
provided, that (i) any partial reduction shall apply to reduce proportionately and
permanently the LC Commitment of each Lender, (ii) any partial reduction pursuant to this
Section 2.2 shall be in an amount of at least $5,000,000 and any larger multiple of
$1,000,000, and (iii) no such reduction shall be permitted which would reduce the Aggregate LC
Commitment Amount to an amount less than the outstanding LC Exposures of all Lenders.




          Section 2.3. Mandatory Prepayments. In the event and on each occasion that the sum of
the Dollar Equivalent of the aggregate principal amount of the LC Exposure exceeds the Aggregate LC
Commitment Amount then in effect, then the Borrower shall make such payment or reduction that is
sufficient to eliminate such excess. If the Administrative Agent shall notify the Borrower that
the Administrative Agent has determined that any reduction of the LC Exposure is required under
this Section 2.3, the Borrower shall make such payment and/or reduce the LC Exposure no
later than the second Business Day following such notice. If after giving effect to any prepayment
or reduction, the LC Exposure of all Lenders exceeds the Aggregate LC Commitment Amount, the
Borrower shall deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Issuing Bank and the Lenders, an amount in cash
equal to such excess plus any accrued and unpaid fees thereon to be held as collateral for the LC
Exposure. Such account shall be administered in the manner provided in Section 2.10(g)
hereof.




25









 








          Section 2.4. Fees.




          (a) The Borrower shall pay to the Administrative Agent for its own account fees in the amounts
and at the times previously agreed upon in writing by the Borrower and the Administrative Agent.




          (b) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a
commitment fee, which shall accrue at the Applicable Percentage per annum (determined daily in
accordance with Schedule I) on the daily amount of the unused LC Commitment of such Lender
during the Availability Period. For purposes of computing commitment fees with respect to the LC
Commitments, the LC Commitment of each Lender shall be deemed used to the extent of the outstanding
LC Exposure of such Lender.




          (c) The Borrower agrees to pay (i) to the Administrative Agent, for the account of each
Lender, a letter of credit fee with respect to its participation in each Letter of Credit, which
shall accrue at a rate per annum equal to the Applicable Margin for Letters of Credit then in
effect on the daily amount of such Lender’s LC Exposure attributable to such Letter of Credit
during the period from and including the date of issuance of such Letter of Credit to but excluding
the date on which such Letter of Credit expires or is irrevocably cancelled or drawn in full
(including without limitation any LC Exposure that remains outstanding after the LC Commitment
Termination Date) and (ii) to the Issuing Bank for its own account a fronting fee, which shall
accrue at the rate of 0.125% per annum on the daily amount of the LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the Availability Period (or
until the date that such Letter of Credit expires or is irrevocably cancelled, whichever is later),
as well as the Issuing Bank’s standard fees with respect to issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder. Notwithstanding the
foregoing, if the Required Lenders elect to increase the interest rate Revolving Loans to the
Default Interest (as defined in the Credit Agreement) pursuant to Section 2.14(c) of the Credit
Agreement, the rate per annum used to calculate the letter of credit fee pursuant to clause (i)
above shall automatically be increased by an additional 2% per annum.




          (d) The Borrower shall pay to the Administrative Agent, for the ratable benefit of each
Lender, the upfront fee previously agreed upon by the Borrower and the Administrative Agent, which
shall be due and payable on the Closing Date.




          (e) Accrued fees under paragraphs (b) and (c) above shall be payable quarterly in arrears on
the last day of each March, June, September and December, commencing on June 30, 2006 and on the LC
Commitment Termination Date (and if later, the date the LC Exposure shall be repaid in its
entirety); provided further, that any such fees accruing after the LC Commitment
Termination Date shall be payable on demand.




          Section 2.5. Computation of Interest and Fees. All computations of interest and fees
hereunder shall be made on the basis of a year of 365 days (or 366 days in a leap year) for the
actual number of days (including the first day but excluding the last day) occurring in the period
for which such interest or fees are payable (to the extent computed on the basis of days elapsed),
except that interest on Eurocurrency Rate Loans and amounts
determined by reference to the Federal Funds Rate shall be calculated on the basis of a 360-day year. Each determination by


26









 







the Administrative Agent of an interest amount or fee hereunder shall be made in good faith and,
except for manifest error, shall be final, conclusive and binding for all purposes.




          Section 2.6. Illegality. If any Change in Law shall make it unlawful or impossible
for any the Issuing Bank to issue a Letter of Credit, in a particular Alternate Currency and the
Issuing Bank shall so notify the Administrative Agent, the Administrative Agent shall promptly give
notice thereof to the Borrower and the other Lenders, whereupon until the Issuing Bank notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such suspension no
longer exist, (i) the obligation of the Issuing Bank to issue Letters of Credit, in such Alternate
Currency shall be suspended, and (ii) any Letters of Credit issued in such Alternate Currency shall
be converted to an available Alternate Currency or Dollars on: (i) the last day of the then
current Interest Period for the affected Alternate Currency Letter of Credit, if Lenders may
lawfully continue to maintain Letters of Credit at such Alternate Currency to such day, or (ii)
immediately, if Lenders may not lawfully continue to so maintain such Alternate Currency Letter of
Credit.




          Section 2.7. Increased Costs.




          (a) If any Change in Law shall:





     (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement that is not otherwise included in the determination of the Eurocurrency Rate
hereunder against assets of, deposits with or for the account of, or credit extended by, any
Lender (except any such reserve requirement reflected in the Eurocurrency Rate) or the
Issuing Bank; or




     (ii) impose on any Lender or on the Issuing Bank or the eurodollar interbank market any
other condition affecting this Agreement or any Letter of Credit or any participation
therein;


and the result of either of the foregoing is to increase materially the cost to such Lender or the
Issuing Bank of participating in or issuing any Letter of Credit or to reduce the amount received
or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or any
other amount), then the Borrower shall promptly pay, upon written notice from and demand
(specifying the basis therefor and the computation with respect thereto) by such Lender or Issuing
Bank, as the case may be, on the Borrower (with a copy of such notice and demand to the
Administrative Agent), to the Administrative Agent for the account of such Lender or Issuing Bank,
as the case may be, within ten Business Days after the date of such notice and demand, additional
amount or amounts sufficient to compensate such Lender or the Issuing Bank, as the case may be, for
such additional costs incurred or reduction suffered.




          (b) If any Lender or the Issuing Bank shall have reasonably determined that on or after the
date of this Agreement any Change in Law regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital
(or on the capital of such Lender’s or the Issuing Bank’s parent corporation) as a consequence
of




27









 





its obligations hereunder or under or in respect of any Letter of Credit to a level below that
which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s parent corporation
could have achieved but for such Change in Law (taking into consideration such Lender’s or the
Issuing Bank’s policies or the policies of such Lender’s or the Issuing Bank’s parent corporation
with respect to capital adequacy) then, from time to time, within ten (10) Business Days after
receipt by the Borrower of written demand by such Lender or Issuing Bank (with a copy thereof to
the Administrative Agent), the Borrower shall pay to such Lender or Issuing Bank such additional
amounts as will compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s
parent corporation for any such reduction suffered.




          (c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s
parent corporation, as the case may be, specified in paragraph (a) or (b) of this Section
2.7 shall be delivered to the Borrower (with a copy to the Administrative Agent) and shall be
prima facie evidence of the correctness thereof.




          (d) If the Issuing Bank or any Lender makes such a claim for compensation under this Section,
it shall provide to the Borrower a certificate executed by an officer of such Person setting forth
the amount of such loss, cost or expense in reasonable detail (including an explanation of the
basis for and the computation of such loss, cost or expense) no later than one hundred and twenty
(120) days after the event giving rise to the claim for compensation. In any event, the Borrower
shall not have any obligation to pay any amount with respect to claims accruing prior to the 120th
day preceding such written demand.




          (e) Any additional fees owed pursuant to paragraph (d) above shall be determined by the
relevant Lender and notified to the Borrower (with a copy to the Administrative Agent) in the form
of a certificate setting forth such additional fees (and the basis for determining such amount) at
least ten (10) Business Days before each date on which fees are payable for the relevant Alternate
Currency Letter of Credit, and such additional fees so notified to the Borrower by such Lender
shall be payable to the Administrative Agent for the account of such Lender on each date on which
fees are payable for such Letter of Credit.




          Section 2.8. Taxes.




          (a) Any and all payments by or on account of any obligation of the Borrower hereunder shall be
made free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided, that if the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional sums payable under
this Section 2.8) the Administrative Agent, any Lender or the Issuing Bank (as the case may
be) shall receive an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable law.




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




28









 








          (c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within ten (10) Business Days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes imposed or asserted by a Governmental Authority and paid by the Administrative
Agent, such Lender or the Issuing Bank, as the case may be, on or with respect to any payment by or
on account of any obligation of the Borrower hereunder (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section 2.8) and any
penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest error.




          (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority under Section 2.2(a) or (b), the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to the Administrative Agent.




          (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the Code or any treaty to which the United States 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, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will permit such payments
to be made without withholding or at a reduced rate. Without limiting the generality of the
foregoing, each Foreign Lender agrees that it will deliver to the Administrative Agent and the
Borrower (or in the case of a Participant, to the Lender from which the related participation shall
have been purchased), as appropriate, two (2) duly completed copies of (i) Internal Revenue Service
Form W-8ECI, or any successor form thereto, certifying that the payments received from the Borrower
hereunder are effectively connected with such Foreign Lender’s conduct of a trade or business in
the United States; or (ii) Internal Revenue Service Form W-8BEN, or any successor form thereto,
certifying that such Foreign Lender is entitled to benefits under an income tax treaty to which the
United States is a party which reduces the rate of withholding tax on payments of interest; or
(iii) Internal Revenue Service Form W-8BEN, or any successor form prescribed by the Internal
Revenue Service, together with a certificate (A) establishing that the payment to the Foreign
Lender qualifies as “portfolio interest” exempt from U.S. withholding tax under Code section 871(h)
or 881(c), and (B) stating that (1) the Foreign Lender is not a bank for purposes of Code section
881(c)(3)(A), or the obligation of the Borrower hereunder is not, with respect to such
Foreign Lender, a loan agreement entered into in the ordinary course of its trade or business,
within the meaning of that section; (2) the Foreign Lender is not a 10% shareholder of the Borrower
within the meaning of Code section 871(h)(3) or 881(c)(3)(B); and (3) the Foreign Lender is not a
controlled foreign corporation that is related to the Borrower within the meaning of Code section
881(c)(3)(C); or (iv) such other Internal Revenue Service forms as may be applicable to the Foreign
Lender, including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender shall deliver to the Borrower
and the Administrative Agent such forms on or before the date that it becomes a party to this
Agreement (or in the case of a Participant, on or before the date such Participant purchases the
related participation). In addition,

29









 








each such Foreign Lender shall deliver such forms promptly upon the obsolescence or invalidity
of any form previously delivered by such Foreign Lender. Each such Foreign Lender shall promptly
notify the Borrower and the Administrative Agent at any time that 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 Internal Revenue Service for such purpose). If any Lender,
Issuing Bank or the Administrative Agent becomes aware that it has received a refund of any
Indemnified Tax or any Other Tax with respect to which the Borrower has paid any amount pursuant to
this Section 2.8, such Lender, Issuing Bank or the Administrative Agent shall pay the
amount of such refund (including any interest received with respect thereto) to the Borrower within
fifteen (15) days after receipt thereof. A Lender, Issuing Bank, or the Administrative Agent shall
provide, at the sole cost and expense of the Borrower, such assistance as the Borrower may
reasonably request in order to obtain such a refund; provided, however, that neither the
Administrative Agent nor any Lender or Issuing Bank shall in any event be required to disclose any
information to the Borrower with respect to the overall tax position of the Administrative Agent,
Issuing Bank, or such Lender.




          Section 2.9. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.




          (a) The Borrower shall make each payment required to be made by it hereunder (whether of
interest, fees or reimbursement of LC Disbursements, or of amounts payable under Sections
2.6, 2.7 or 2.8, or otherwise) at the applicable Payment Office prior to 1:00
p.m. (New York, New York time, in the case of payments made to a Payment Office in the United
States, or 1:00 p.m. local time at any applicable Payment Office located outside the United States)
on the date when due, in immediately available funds, free and clear of any defenses, rights of
set-off, counterclaim, or withholding or deduction of taxes. Any amounts received after such time
on any date may, in the discretion of the Administrative Agent, be deemed to have been received on
the next succeeding Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at the Payment Office, except payments to be made
directly to the Issuing Bank as expressly provided herein and except that payments pursuant to
Sections 2.6, 2.7 and 2.8 and 10.3 shall be made directly to the
Persons entitled thereto. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly following receipt
thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case of any payment
accruing interest, interest thereon shall be made payable for the period of such extension.




          (b) All payments of Obligations shall be made in Dollars, except for reimbursement obligations
with respect to Letters of Credit issued in Alternate Currencies, which shall be repaid, including
interest thereon, in the applicable Alternate Currency.




          (c) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due
hereunder, and other amounts not required to be applied in another manner ratably among the parties
entitled thereto in accordance with the amounts of interest and fees then due to
such parties, and (ii) second, towards payment of unreimbursed LC Disbursements then due




30









 







hereunder, ratably among the parties entitled thereto in accordance with the amounts of
unreimbursed LC Disbursements then due to such parties.




          (d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any participations in LC Disbursements or fees that would result in
such Lender receiving payment of a greater proportion of the aggregate amount of its participations
in LC Disbursements and accrued interest thereon or fees than the proportion received by any other
Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value)
participations in the LC Disbursements of other Lenders to the extent necessary so that the benefit
of all such payments shall be shared by the Lenders ratably in accordance with the aggregate
participations in LC Disbursements; provided, that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its participations in LC Disbursements to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of
this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it
may effectively do so under applicable law, that any Lender acquiring a participation pursuant to
the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim
with respect to such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.




          (e) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders or the
Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be,
the amount or amounts due. In such event, if the Borrower has not in fact made such payment, then
each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is distributed to it to
but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds
Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.




          (f) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.4(c) and (d), 2.7(a), 2.9(d), 2.10(d) or
(e) or 10.3(d), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such
Sections until all such unsatisfied obligations are fully paid.




          Section 2.10. Letters of Credit.




          (a) During the Availability Period, the Issuing Bank, in reliance upon the agreements of the
other Lenders pursuant to Section 2.10(d), agrees to issue, amend, renew or




31









 







extend, at the
request of the Borrower, Letters of Credit for the account of the Borrower on the terms and
conditions hereinafter set forth; provided, that (i) each Letter of Credit shall expire on
the date that is five (5) Business Days prior to the LC Commitment Termination Date; (ii) each
Letter of Credit shall be in a stated amount of at least $50,000 (or, in the case of Letters of
Credit issued in any Alternate Currency, a minimum amount of such Alternate Currency with a
comparable Dollar Equivalent of the preceding amount, rounded upwards to the nearest 100,000 unit
multiple in such Alternate Currency); and (iii) the Borrower may not request any Letter of Credit,
if, after giving effect to such issuance (A) the Dollar Equivalent of the aggregate LC Exposure
would exceed the LC Commitment or (B) the issuance of such Letter of Credit would violate any legal
or regulatory restriction then applicable to the Issuing Bank or any Lender as notified by the
Issuing Bank or such Lender to the Administrative Agent before the date of issuance of such Letter
of Credit. Letters of Credit and any increases and extensions thereof hereunder may be issued in
face amounts of either Dollars or any other Alternate Currency; provided, further,
that the Dollar Equivalent amount of outstanding Letters of Credit in any Alternate Currency
determined, with respect to each such Letter of Credit, in accordance with Section 2.13 on
the date such Letter of Credit is issued, increased and extended, as applicable, shall not exceed
the Aggregate LC Commitment Amount then in effect. Each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Issuing Bank without recourse a
participation in each Letter of Credit equal to such Lender’s Pro Rata Share of the aggregate
amount available to be drawn under such Letter of Credit (i) on the Closing Date with respect to
all Existing Letters of Credit and (ii) on the date of issuance with respect to all other Letters
of Credit. Each issuance of a Letter of Credit shall be deemed to utilize the LC Commitment of
each Lender by an amount equal to the amount of such participation. Each Letter of Credit shall be
denominated in Dollars or in an Alternate Currency.




          (b) To request the issuance of a Letter of Credit (or any amendment, renewal or extension of
an outstanding Letter of Credit), the Borrower shall give the Issuing Bank and the Administrative
Agent irrevocable written notice at least three (3) Business Days prior to the requested date of
such issuance, amendment, renewal or extension specifying the date (which shall be a Business Day)
such Letter of Credit is to be issued (or amended, extended or renewed, as the case may be), the
expiration date of such Letter of Credit, the amount of such Letter of Credit, the requested
Currency for the face amount of the Letter of Credit, the name and address of the beneficiary
thereof and such other information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. In addition to the satisfaction of the conditions in Article III, the
issuance of such Letter of Credit (or any amendment which increases the amount of such Letter of
Credit) will be subject to the further conditions that such Letter of Credit shall be in such form
and contain such terms as the Issuing Bank shall reasonably approve and that the Borrower shall
have executed and delivered any additional applications, agreements and instruments relating to
such Letter of Credit as the Issuing Bank shall reasonably require (it being understood that, if
requested by the Issuing bank, the Borrower shall execute a letter of credit application and
agreement on the Issuing Bank’s standard form); provided, that in the event of any conflict
between such applications, agreements or instruments and this Agreement, the terms of this
Agreement shall control.




          (c) At least two Business Days prior to the issuance, amendment, renewal or extension of any
Letter of Credit, the Issuing Bank will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received such notice and if not, the




32









 







Issuing Bank will
provide the Administrative Agent with a copy thereof. Unless the Issuing Bank has received notice
from the Administrative Agent on or before the Business Day immediately preceding the date the
Issuing Bank is to issue (or amended, extend or renew, as the case may be) the requested Letter of
Credit, directing the Issuing Bank not to issue, amend, extend or renew the Letter of Credit
because such action is not then permitted hereunder because of the limitations set forth in
Section 2.10(a) or that one or more conditions specified in Article III are not
then satisfied, then, subject to the terms and conditions hereof, the Issuing Bank shall, on the
requested date, issue, amend, extend or renew such Letter of Credit in accordance with the Issuing
Bank’s usual and customary business practices.




          (d) The Issuing Bank shall examine all documents purporting to represent a demand for payment
under a Letter of Credit promptly following its receipt thereof. The Issuing Bank shall notify the
Borrower and the Administrative Agent of such demand for payment and whether the Issuing Bank has
made or will make a LC Disbursement thereunder; provided, that any failure to give or delay
in giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing
Bank and the Lenders with respect to such LC Disbursement. The Borrower shall be irrevocably and
unconditionally obligated to reimburse the Issuing Bank for any LC Disbursements paid by the
Issuing Bank in respect of such drawing on the day of such drawing, without presentment, demand or
other formalities of any kind. If the Borrower fails to reimburse the Issuing Bank for any LC
Disbursements paid by the Issuing Bank in respect of such drawing on the day when due, any such
unpaid amount shall accrue interest at the Default Rate from the date of such drawing until paid.




          (e) Each Lender (other than the Issuing Bank) shall be obligated to fund the participation
that such Lender purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share of
such LC Disbursement on and as of the date which such LC Disbursement should have been paid by the
Borrower. Each Lender’s obligation to fund its participation shall be absolute and unconditional
and shall not be affected by any circumstance, including without limitation (i) any setoff,
counterclaim, recoupment, defense or other right that such Lender or any other Person may have
against the Issuing Bank or any other Person for any reason whatsoever, (ii) the existence of a
Default or an Event of Default or the termination of the Aggregate LC Commitments, (iii) the
existence (or alleged existence) of any event or condition which has had or could reasonably be
expected to have a Material Adverse Effect, (iv) any breach of this Agreement by the Borrower or
any other Lender, (v) any amendment, renewal or extension of any Letter of Credit or (vi) any other
circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. On
the date that such participation is required to be funded, each Lender shall promptly transfer, in
immediately available funds, the amount of its participation to the Administrative Agent for the
account of the Issuing Bank. Whenever, at any time after the Issuing Bank has received from any
such Lender the funds for its participation in a LC Disbursement, the Issuing Bank (or the
Administrative Agent on its behalf) receives any payment on account thereof, the Administrative
Agent or the Issuing Bank, as the case may be, will distribute to such Lender its Pro Rata Share of
such payment; provided, that if such payment is required to be returned for any reason to
the Borrower or to a trustee, receiver, liquidator, custodian or similar official in any bankruptcy
proceeding, such Lender will return to the
Administrative Agent or the Issuing Bank any portion thereof previously distributed by the
Administrative Agent or the Issuing Bank to it.





33









 








          (f) To the extent that any Lender shall fail to pay any amount required to be paid pursuant to
paragraphs (d) or (e) of this Section on the due date therefor, such Lender shall pay interest to
the Issuing Bank (through the Administrative Agent) on such amount from such due date to the date
such payment is made at a rate per annum equal to the Federal Funds Rate; provided, that if
such Lender shall fail to make such payment to the Issuing Bank within three (3) Business Days of
such due date, then, retroactively to the due date, such Lender shall be obligated to pay interest
on such amount at the Default Rate.




          (g) If any Event of Default shall occur and be continuing, on the Business Day that the
Borrower receives notice from the Administrative Agent or the Required Lenders demanding the
deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit in an account
with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the
Issuing Bank and the Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid fees thereon; provided, that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become immediately due and
payable, without demand or notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (h) or (i) of Section 8.1. Such deposit shall
be held by the Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such account. Borrower
agrees to execute any documents and/or certificates to effectuate the intent of this paragraph.
Other than any interest earned on any investment of such deposits, which investments shall be made
at the option and sole discretion of the Administrative Agent and at the Borrower’s risk and
expense, such deposits shall bear interest. Interest and profits, if any, on such investments
shall accumulate in such account. Moneys in such account shall be applied by the Administrative
Agent to reimburse the Issuing Bank for LC Disbursements for which it had not been reimbursed and
to the extent so applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, with the consent of the Required Lenders, be
applied to satisfy other obligations of the Borrower under this Agreement and the other Loan
Documents. If the Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not so applied as
aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default
have been cured or waived. To the extent any such cash collateral is applied to the aforesaid and
all such obligations are paid in full, so long as no Event of Default exists, any remaining amounts
shall be returned to the Borrower upon Borrower’s request.




          (h) Promptly following the end of each calendar quarter, the Issuing Bank shall deliver
(through the Administrative Agent) to each Lender and the Borrower a report describing the
aggregate Letters of Credit outstanding at the end of such Fiscal Quarter. Upon the request of any
Lender from time to time, the Issuing Bank shall deliver to such Lender any other information
reasonably requested by such Lender with respect to each Letter of Credit then outstanding.




          (i) The Borrower’s obligation to reimburse LC Disbursements hereunder shall be absolute,
unconditional and irrevocable and shall be performed strictly in accordance with the terms of this
Agreement under all circumstances whatsoever (other than payment in full of such LC Disbursements)
and irrespective of any of the following circumstances:




34









 









     (i) any lack of validity or enforceability of any Letter of Credit or this Agreement;




     (ii) the existence of any claim, set-off, defense or other right which the Borrower or
any Subsidiary or Affiliate of the Borrower may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons or entities for whom any such
beneficiary or transferee may be acting), any Lender (including the Issuing Bank) or any
other Person, whether in connection with this Agreement or the Letter of Credit or any
document related hereto or thereto or any unrelated transaction;




     (iii) any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect;




     (iv) payment by the Issuing Bank under a Letter of Credit against presentation of a
draft or other document to the Issuing Bank that does not comply with the terms of such
Letter of Credit;




     (v) any other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section 2.10, constitute a
legal or equitable discharge of, or provide a right of setoff against, the Borrower’s
obligations hereunder; or




     (vi) the existence of a Default or an Event of Default.


Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related Party of any of the
foregoing shall have any liability or responsibility by reason of or in connection with the
issuance or transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to above), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any consequence arising from causes
beyond the control of the Issuing Bank; provided, that the foregoing shall not be construed
to excuse the Issuing Bank from liability to the Borrower to the extent of any actual direct
damages (as opposed to special, indirect (including claims for lost profits or other consequential
damages), or punitive damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by the Issuing Bank’s
failure to exercise due care when determining whether drafts or other documents presented under a
Letter of Credit comply with the terms thereof. The parties hereto expressly agree, that in the
absence of gross negligence or willful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have
exercised due care in each such determination. In furtherance of the foregoing
and without limiting the generality thereof, the parties agree that, with respect to documents
presented that appear on their face to be in substantial compliance with the terms of a Letter of
Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such
documents without responsibility for further investigation, regardless of any notice or




35









 







information
to the contrary, or refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.




          (j) Unless otherwise expressly agreed by the Issuing Bank and the Borrower when a Letter of
Credit is issued and subject to applicable laws, performance under Letters of Credit by the Issuing
Bank, its correspondents, and the beneficiaries thereof will be governed by (i) either (x) the
rules of the “International Standby Practices 1998” (ISP98) (or such later revision as may be
published by the Institute of International Banking Law & Practice on any date any Letter of Credit
may be issued) or (y) the rules of the “Uniform Customs and Practice for Documentary Credits” (1993
Revision), International Chamber of Commerce Publication No. 500 (or such later revision as may be
published by the International Chamber of Commerce on any date any Letter of Credit may be issued)
and (ii) to the extent not inconsistent therewith, the governing law of this Agreement set forth in
Section 10.5.




          (k) The Borrower hereby (a) acknowledges that it may be requesting the issuance of one or more
Letters of Credit hereunder which will support a bank guarantee issued by a local bank (or a local
branch of the Issuing Bank) to a beneficiary located in a jurisdiction where (i) applicable law
extends the period within which such beneficiary may claim under such bank guarantee beyond its
stated expiration date or (ii) local custom and practice is to issue such a bank guarantee without
a stated expiration date (either, collectively, “Extended Claim Guarantees”; with the
foregoing Letters of Credit being hereinafter referred to collectively as “Extended Claim
Letters of Credit”) and (b) agrees that, notwithstanding anything to the contrary contained in
this Agreement, (x) the Issuing Bank may adjust the expiration date of any Extended Claim Letter of
Credit from the date requested by the Borrower to cover the entire period within which claims under
the Extended Claim Guarantee may, under such applicable law, be made; provided that in any
event such expiration date must comply with the other requirements and limitations herein and (y)
that the foregoing requirements and limitations may result in an Extended Claim Letter of Credit
which will expire prior to the expiration date or other period within claims under the Extended
Claim Guarantee may be made.




          Section 2.11. Mitigation of Obligations. If any Lender requests compensation under
Section 2.7, 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 2.9, 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 sole judgment of such Lender, such designation or assignment (i)
would eliminate or reduce amounts payable under Section 2.7 or Section 2.9, 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 such designation or
assignment.




          Section 2.12. Replacement of Lenders. If (a) any Lender or Issuing Bank has demanded
compensation or additional interest or given notice of its intention to demand compensation or
additional interest under Section 2.7, 2.9 or Section 2.14, (b) the
Borrower is required to pay any additional amount to any Lender or Issuing Bank under Section
2.8, (c) any Lender or Issuing Bank is unable to submit any form or certificate required under
Section 2.9 or




36









 







withdraws or cancels any previously submitted form with no substitution
therefor, (d) any Lender or Issuing Bank gives notice of any change in law or regulations, or in
the interpretation thereof, pursuant to Section 2.6, (e) any Lender or Issuing Bank has
been declared insolvent or a receiver or conservator has been appointed for a material portion of
its assets, business or properties, (f) any Lender or Issuing Bank shall seek to avoid its
obligation to issue Letters of Credit hereunder for any reason, including, without limitation,
reliance upon 12 U.S.C. § 1821(e) or (n) (1) (B), (g) any taxes referred to in Section 2.9
have been levied or imposed (or the Borrower determines in good faith that there is a substantial
likelihood that such taxes will be levied or imposed) so as to require withholding or deductions by
the Borrower or payment by the Borrower of additional amounts to any Lender or Issuing Bank, or
other reimbursement or indemnification of any Lender or Issuing Bank, as a result thereof, (h) any
Lender shall decline to consent to a modification or waiver of the terms of this Agreement or any
other Loan Documents requested by the Borrower, (i) the Issuing Bank gives notice pursuant to
Section 2.10 that the issuance of the Letter of Credit would violate any legal or
regulatory restriction then applicable to such Issuing Bank, or (j) any Lender is unable to
fulfill its commitment under Section 2.13(a) to issue Alternate Currency Letters of Credit
and such Alternate Currency Letters of Credit are deemed unavailable in accordance with such
Section, then and in such event, upon request from the Borrower delivered to such Lender or Issuing
Bank, and the Administrative Agent, such Lender shall assign, in accordance with the provisions of
Section 10.4 and an appropriately completed Assignment Agreement, all of its rights and
obligations under the Loan Documents to another Lender or a commercial banking institution selected
by the Borrower and (in the case of a commercial banking institution) reasonably satisfactory to
the Administrative Agent, in consideration for the payments set forth in such Assignment Agreement
and payment by the Borrower to such Lender of all other amounts which such Lender may be owed
pursuant to this Agreement, including, without limitation, Sections 2.6, 2.7, or
2.9.



Section 2.13. Alternate Currency Provisions.



          (a) Each Lender’s Pro Rata Share of each Alternate Currency Letter of Credit shall be
determined by reference to its Dollar Equivalent on the date each such Alternate Currency Letter of
Credit is issued. As to any Alternate Currency Letter of Credit, each Lender may elect to fulfill
its commitment to participate in such Alternate Currency Letter of Credit by causing an Applicable
Lending Office to make such Alternate Currency Letter of Credit; provided, however,
that no such election shall be made if as a result thereof the Borrower would be required to pay
United States withholding taxes or any additional amounts. In the event that a Lender is unable to
fulfill its commitment to issue such Alternate Currency Letter of Credit through its Applicable
Lending Office because of its inability to issue Letters of Credit in such requested Currency, such
Lender shall enter into a foreign exchange transaction with the Administrative Agent for the
Currency applicable to such Alternate Currency Letters of Credit; provided, that if the
Administrative Agent shall determine in its reasonable credit judgment that it is unwilling to
enter
into such foreign exchange transaction with such Lender, such Currency shall be deemed to be
unavailable to all Lenders and the Administrative Agent and the Lenders shall have no obligation to
issue such Alternate Currency Letters of Credit.



          (b) If payment required by Borrower is not made in the Currency due under this Agreement (the
“Contractual Currency”) or if any court or tribunal shall render against a Loan Party a
judgment or order for the payment of amounts due hereunder or under the other Loan




37









 







Documents and
such judgment is expressed in a Currency other than the Contractual Currency, the Borrower shall
indemnify and hold the Lenders (including the Issuing Rank) harmless against any deficiency
incurred by the Lenders with respect to the amount received by the Lenders to the extent the
Exchange Rate at which the Contractual Currency is convertible into the Currency actually received
or the Currency in which the judgment is expressed (the “Received Currency”) is not the
reciprocal of the Exchange Rate at which the Administrative Agent would be able to purchase the
Contractual Currency with the Received Currency, in each case on the Business Day following receipt
of the Received Currency in accordance with normal banking procedures. If the court or tribunal
has fixed the date on which the Exchange Rate is determined for the conversion of the judgment
Currency into the Contractual Currency (the “Conversion Date”) and if there is a change in
the Exchange Rate prevailing between the Conversion Date and the date of receipt by the Lenders,
then the Borrower will, notwithstanding such judgment or order, pay such additional amount (if any)
as may be necessary to ensure that the amount paid in the Received Currency when converted at the
Exchange Rate prevailing on the date of receipt will produce the amount then due to the Lenders
from the Borrower hereunder in the Contractual Currency.




          (c) If the Borrower shall wind up, liquidate, dissolve or become a debtor in bankruptcy while
there remains outstanding: (i) any amounts owing by the Borrower or any Loan Party to the Lenders
(including the Issuing Bank) hereunder or under the other Loan Documents, (ii) any damages owing to
the Lenders (including the Issuing Bank) in respect of its breach of any of the terms hereof, or
(iii) any judgment or order rendered against a Loan Party in respect of such amounts or damages,
the Borrower shall indemnify and hold the Lenders harmless against any deficiency with respect to
the Contractual Currency in the amounts received by the Lenders arising or resulting from any
variation as between: (i) the Exchange Rate at which the Contractual Currency is converted into
another currency (the “Liquidation Currency”) for purposes of such winding-up, liquidation,
dissolution or bankruptcy with regard to the amount in the Contractual Currency due or contingently
due hereunder or under the Notes or under any judgment or order to which the relevant obligations
hereunder or under the Notes shall have been merged and (ii) the Exchange Rate at which
Administrative Agent would, in accordance with normal banking procedures, be able to purchase the
Contractual Currency with the Liquidation Currency at the earlier of (A) the date of payment of
such amounts or damages and (B) the final date or dates for the filing of proofs of a claim in a
winding-up, liquidation, dissolution or bankruptcy. As used in the preceding sentence, the “final
date” or dates for the filing of proofs of a claim in a winding-up, liquidation, dissolution or
bankruptcy shall be the date fixed by the liquidator under the applicable law as being the last
practicable date as of which the liabilities of the Borrower may be ascertained for such
winding-up, liquidation, dissolution or bankruptcy before payment by the liquidator or other
appropriate person in respect thereof.




          (d) On the Closing Date, the available Alternate Currencies are Euros and Pounds. The
Administrative Agent and the Issuing Bank shall be entitled to assume that such Currencies,
and any other currencies requested by the Borrower that all Lenders agree to provide, remain
available to all Lenders until such time as the Administrative Agent and the Issuing Bank actually
receive written notice to the contrary from any Lender. Upon receipt of any such notice, the
Administrative Agent shall promptly notify the Borrower, and thereafter no additional Alternate
Currency Letters of Credit shall be issued. Any Alternate Currency Letters of Credit in such
Currency outstanding at the time such notice is received shall remain outstanding until the expiry
date thereof and may not be renewed or extended in such Currency.




38









 








          (e) Exchange Rates.





     (i) On each Determination Date, the Administrative Agent shall determine the Exchange
Rate as of such Determination Date with respect to all Alternate Currencies. The Exchange
Rates so determined shall become effective on the first Business Day immediately following
the relevant Determination Date (a “Reset Date”), shall remain effective until the
next succeeding Reset Date, and shall for all purposes of this Agreement be the Exchange
Rates employed in determining the Dollar Equivalent of any amounts of such Alternate
Currencies.




     (ii) Not later than 5:00 p.m. on each Determination Date, the Administrative Agent
shall (A) determine the Dollar Equivalent of the aggregate principal amounts of the LC
Exposures (after giving effect to any Letters of Credit being issued, repaid, or cancelled
or reduced on such date), and (B) notify the Lenders and the Borrower of the results of such
determination and of the respective Exchange Rates as so determined.



          Section 2.14. European Economic and Monetary Union.




          (a) Effectiveness of Provisions. The provisions of subsections (b) through (i) below
(inclusive) shall be effective upon the execution of this Agreement, provided, that if and
to the extent that any such provision relates to any country (or the currency of such country) that
is not a Participating Member State upon the execution of this Agreement, such provision shall
become effective in relation to such country (and the currency of such country) at and from the
date on which such country becomes a Participating Member State.




          (b) Redenomination and Alternate Currencies. Each obligation of any party under this
Agreement which has been denominated in the National Currency Unit of a non-member country which
becomes a Participating Member State after the date of any Alternate Currency Letter of Credit made
in the National Currency Unit of such country shall be Redenominated into the Euro Unit at the
exchange rate set in accordance with EMU Legislation, provided, that if and to the extent
that any EMU Legislation provides that an amount denominated either in the Euro or in the National
Currency Unit of a Participating Member State and payable within that Participating Member State by
crediting an account of a creditor can be paid by a debtor either in the Euro Unit or in the
National Currency Unit, each party to this Agreement shall be entitled to pay or repay any such
amount either in the Euro Unit or in such National Currency Unit; provided,
however, any amount paid in a National Currency Unit shall be paid at the fixed exchange
rate in order to yield the required amount in Euros.




          (c) Payment to the Lenders. Sections of this Agreement which provide for payment or
repayment in a National Currency Unit shall be construed so that, in relation to the payment of any
amount of Euro Units or National Currency Units, such amount shall be made available to the Lenders
(including the Issuing Bank), in immediately available, freely transferable, cleared funds to such
account with each bank (in such principal financial center) as each Lender may from time to time
nominate for this purpose in accordance with this Agreement.




          (d) Payments by the Lenders Generally. With respect to the payment of any amount
denominated in the Euro or in a National Currency Unit, the Lenders (including the




39









 







Issuing Bank)
shall not be liable to the Borrower in any way whatsoever for any delay, or the consequences of any
delay, in the crediting to any account of any amount required by this Agreement to be paid by a
Lender if such Lender has made reasonable efforts to effect all relevant steps to achieve, on the
date required by this Agreement, the payment of such amount in immediately available, freely
transferable, cleared funds (in the Euro Unit or, as the case may be, in a National Currency Unit)
to the account with the bank in the principal financial center in the Participating Member State
which the Borrower shall have specified for such purpose. In this paragraph, “all relevant steps”
means all such steps as may be prescribed from time to time by the regulations or operating
procedures of such clearing or settlement system as such Lender may from time to time select for
the purpose of clearing or settling payment of the Euro.




          (e) Basis of Accrual. If the basis of accrual of interest or fees expressed in this
Agreement with respect to the currency of any country that becomes a Participating Member State
shall, in a Lender’s reasonable judgment, be inconsistent with any convention or practice in the
London Interbank Market for the basis of accrual of interest or fees in respect of the Euro, or if
interest rate quotes for a National Currency Unit are no longer provided, such convention or
practice in the London Interbank Market shall replace such expressed basis effective as of and from
the date on which such country becomes a Participating Member State.




          (f) Rounding and Other Consequential Changes. Without prejudice and in addition to
any method of conversion or rounding prescribed by any EMU Legislation and without prejudice to the
respective liabilities for Indebtedness of the Borrower to the Lenders (including the Issuing Bank)
and of the Lenders to the Borrower under or pursuant to this Agreement,





     (i) each reference in this Agreement to a minimum amount (or an integral multiple
thereof) in a National Currency Unit to be paid to or by a Lender shall be replaced by a
reference to such reasonably comparable and convenient amount (or an integral multiple
thereof) in the Euro Unit as such Lender may from time to time specify; and




     (ii) except as expressly provided in this Agreement, each provision of this Agreement,
including, without limitation, the right to combine currencies to effect a set-off, shall be
subject to such reasonable changes of interpretation as Lenders may from time to time
specify to be necessary or appropriate to reflect the introduction of or changeover to the
Euro in Participating Member States.



          (g) Exchange Indemnification and Increased Costs. The Borrower shall from time to
time, upon demand from the Lenders (including the Issuing Bank), pay to the Lenders the
amount of any loss, expense or increased cost incurred by, or of any reduction in any amount
payable to or in the effective return of its capital to, or of interest or other return, including
principal foregone by any Lender or its holding company as a result of the introduction of,
changeover to or operation of the Euro in any Participating Member State or the Borrower’s election
to borrow in a National Currency Unit and repay in the Euro or to borrow in the Euro and repay in a
National Currency Unit other than any such cost or reduction or amount foregone reflected in the
associated interest rate.




40









 








          (h) Further Assurances. Borrower agrees, at the request of the Administrative Agent
or a Lender, at the time of or at any time following the implementation of any EMU Legislation, to
enter into an agreement amending this Agreement in order to reflect the implementation of the EMU
Legislation and to place the parties hereto in the position they would have been in had such EMU
Legislation not been implemented.




          (i) Payment Limitations. If the Issuing Bank or any Lender makes such a claim for
compensation under this Section, it shall provide to the Borrower a certificate executed by an
officer of such Person setting forth the amount of such loss, cost or expense in reasonable detail
(including an explanation of the basis for and the computation of such loss, cost or expense) no
later than one hundred and twenty (120) days after the event giving rise to the claim for
compensation. In any event, the Borrower shall not have any obligation to pay any amount with
respect to claims accruing prior to the 120th day preceding such written demand.




          Section 2.15. Release of Collateral. Notwithstanding anything to the contrary
contained in this Agreement, the Security Documents, any Loan Document or any other document
executed in connection herewith, upon the occurrence of an Investment Grade Rating Event, all
Collateral and the Security Documents shall be released automatically without any further action.
In connection with the foregoing, the Collateral Agent shall, at Borrower’s expense, promptly
execute and file in the appropriate location and deliver to each such Guarantor or Guarantor’s
designee such termination and full or partial release statements or confirmations thereof, as
applicable, and do such other things as are necessary to release the liens to be released pursuant
hereto promptly upon the effectiveness of any such release. Upon the occurrence of an Investment
Grade Rating Event, the Collateral Agent authorizes the Borrower and any Guarantor to execute and
deliver and record in its name and stead any such releases or statements as may be necessary to
evidence or confirm such release or discharge.




ARTICLE III




CONDITIONS PRECEDENT TO EFFECTIVENESS




          Section 3.1. Conditions To Effectiveness. The obligations of the Issuing Bank to issue
any Letter of Credit hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 10.2).




          (a) The Administrative Agent shall have received all fees and other amounts due and payable on
or prior to the Closing Date, including reimbursement or payment of all reasonable out-of-pocket
expenses (including reasonable fees, charges and disbursements of counsel to the Administrative
Agent) required to be reimbursed or paid by the Borrower hereunder, under any other Loan Document
and under any agreement with the Administrative Agent or SunTrust Capital Markets, Inc., as
Arranger for which invoices (including estimated expenses) have been presented to the Borrower no
later than 2 days before the Closing Date.




          (b) The Administrative Agent or the Collateral Agent (or their counsel) shall have received
the following:




41









 









     (i) a counterpart of this Agreement signed by or on behalf of each party hereto;




     (ii) the Subsidiary Guaranty Agreement duly executed by each Guarantor;




     (iii) the Pledge Agreement duly executed by the Borrower and each Guarantor, together
with (i) original stock certificates evidencing the issued and outstanding shares of Capital
Stock pledged to the Collateral Agent to the Pledge Agreement, and (ii) stock powers or
other appropriate instruments of transfer executed in blank;




     (iv) the Security Agreement duly executed by the Borrower and each Guarantor, together
with (i) UCC financing statements and other applicable documents under the laws of the
jurisdictions with respect to the perfection of the Liens granted under the Security
Agreement, as required in order to perfect such Liens, (ii) copies of UCC, tax, and judgment
search reports in all necessary or appropriate jurisdictions and under all legal and trade
names of the Loan Parties requested by the Lenders, indicating that there are no prior Liens
on any of the Collateral other than Permitted Liens, (iii) a Perfection Certificate duly
completed and executed by the Loan Parties, and (iv) duly executed Copyright Security
Agreements, Patent Security Agreements and Trademark Security Agreements, if applicable;




     (v) duly executed termination and payoff letters, in form and substance satisfactory to
the Administrative Agent, executed by each lender holding credit facilities or Indebtedness
to be terminated or refinanced on the Closing Date, together with all releases, terminations
or other documents reasonably required by the Administrative Agent to evidence the
termination and payoff of such credit facilities or Indebtedness; other than outstanding
letters of credit (i) which have been cash collateralized in a manner satisfactory to the
Administrative Agent, (ii) which have been assumed as a part of the obligations under the LC
Commitments, or (iii) pursuant to which a letter of credit has been issued under the LC
Commitments backstopping each such outstanding letter of credit.




     (vi) certificates of insurance issued by Borrower’s broker on behalf of insurers of the
Borrower and all Subsidiaries, describing in reasonable detail the types and amounts of
insurance (property and liability, and flood insurance where applicable)
maintained by the Borrower and all Subsidiaries, naming the Collateral Agent as
additional insured and/or loss payee, as appropriate;




     (vii) such financial information with respect to the Borrower or its Subsidiaries as
the Administrative Agent may reasonably request;




     (viii) a certificate of the Secretary or Assistant Secretary of each Loan Party
attaching and certifying copies of its bylaws and of the resolutions of its boards of
directors, or partnership agreement or limited liability company agreement, or comparable
organizational documents and authorizations, authorizing the execution, delivery and
performance of the Loan Documents to which it is a party and certifying the name, title



42









 






and
true signature of each officer of such Loan Party executing the Loan Documents to which it
is a party;




     (ix) to the extent not delivered under clause (viii) certified copies of the articles
or certificate of incorporation, certificate of organization or limited partnership, or
other registered organizational documents of each Loan Party, together with certificates of
good standing or existence, as may be available from the Secretary of State of the
jurisdiction of organization of such Loan Party and each other jurisdiction where such Loan
Party is required to be qualified to do business as a foreign corporation where the failure
to be so qualified could reasonably be expected to have a Material Adverse Effect;




     (x) a favorable written opinion of Baker Botts LLP, and local counsel to the Loan
Parties and/or their Subsidiaries, addressed to the Administrative Agent and each of the
Lenders, and covering such matters relating to the Loan Parties, the Loan Documents and the
transactions contemplated therein as the Administrative Agent shall reasonably request,
including, without limitation, a no conflicts opinion with respect to other material
agreements ;




     (xi) Evidence reasonably satisfactory to the Administrative Agent as to the absence of
any default or event of default existing under those certain 6 1/8% Senior Notes Due 2013
(the “Senior Notes”) issued by the Borrower pursuant to the Indenture;




     (xii) a certificate dated the Closing Date and signed by a Responsible Officer,
certifying that (x) no Default or Event of Default exists, (y) all representations and
warranties of each Loan Party set forth in the Loan Documents are true and correct in all
material respects. except the extent limited to an earlier date and (z) since the date of
the financial statements of the Borrower described in Section 4.4, there shall have
been no change which has had or could reasonably be expected to have a Material Adverse
Effect;




     (xiii) certified copies of all consents, approvals, authorizations, registrations and
filings and orders required to be made or obtained under any Requirement of Law, or by any
Contractual Obligation of each Loan Party, in connection with the execution, delivery,
performance, validity and enforceability of the Loan Documents or any of the transactions
contemplated thereby, and such consents, approvals, authorizations, registrations, filings
and orders shall be in full force and effect and all applicable waiting periods shall have
expired, and no investigation or inquiry by any governmental authority
regarding the LC Commitments or any transaction being financed with the proceeds
thereof shall be ongoing;




     (xiv) a duly completed and executed certificate of the type described in Section
5.1(c) including calculations of the financial covenants set forth in Article VI
hereof as of March 31, 2006;




     (xv) the most current information available as of August 3, 2006 in respect of certain
inquiries or investigations by the Securities and Exchange Commission and the Department of
Justice then pending or threatened in respect of the Borrower or its Subsidiaries and any
other related investigations (the “Disclosed Items”), and since such



43









 






date there
shall not have been any adverse developments or occurrences (excluding any such developments
or occurrences that were expressly identified and described in the Disclosed Items) in
respect of any such matters that has had or could reasonably be expected to cause a Material
Adverse Effect; and




     (xvi) certified copies of all agreements, indentures or notes governing the terms of
any Material Indebtedness and all other material agreements, documents and instruments to
which any Loan Party or any of its assets are bound.



          (c) No action, suit, investigation or proceeding shall be pending or threatened in any court
or before any arbitrator, governmental authority, the Department of Justice, or the Securities and
Exchange Commission that could reasonably be expected to have a Material Adverse Effect, excluding
in each case the effects of the matters as described in the Disclosed Items.




          (d) The Administrative Agent shall have completed its due diligence, with results reasonably
satisfactory to the Administrative Agent, with respect to any pending Securities and Exchange
Commission or other governmental investigations or inquiries existing on the Closing Date.




          Section 3.2. Each Issuance of Letters of Credit. The obligation of the Issuing Bank
to issue, amend, renew or extend any Letter of Credit is subject to the satisfaction of the
following conditions:




          (a) at the time of and immediately after giving effect to the issuance, amendment, renewal or
extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist;




          (b) as of the date of the issuance, amendment, renewal or extension of such Letter of Credit,
as applicable, all representations and warranties of each Loan Party set forth in the Loan
Documents shall be true and correct in all material respects on and as of the date of the date of
issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after
giving effect thereto except to the extent limited to a prior date; and




          (c) since the date of the financial statements of the Borrower described in Section
4.4, there shall have been no change which has had or could reasonably be expected to have a
Material Adverse Effect (excluding the effects of the matters as described in the Disclosed
Items, and there shall have been no adverse developments or occurrences in respect of any such
matters that has had or could reasonably be expected to have a Material Adverse Effect).




          Each issuance, amendment, extension or renewal of any Letter of Credit shall be deemed to
constitute a representation and warranty by the Borrower on the date thereof as to the matters
specified in paragraphs (a), (b) and (c) of this Section 3.2.




          Section 3.3. Delivery of Documents. All of the Loan Documents, certificates, legal
opinions and other documents referred to in Section 3.1, unless otherwise specified or
delivered under the Credit Agreement, shall be delivered to the Administrative Agent or the
Collateral Agent for the account of each of the Lenders and in sufficient counterparts or copies
for




44









 







each of the Lenders and shall be in form and substance satisfactory in all respects to the
Administrative Agent.




ARTICLE IV




REPRESENTATIONS AND WARRANTIES




          The Borrower represents and warrants to the Administrative Agent and each Lender as follows:




          Section 4.1. Existence; Power. Each of the Borrower and its Subsidiaries (i) is duly
organized, validly existing and in good standing as a corporation, partnership or limited liability
company under the laws of the jurisdiction of its organization, (ii) has all requisite power and
authority to carry on its business as now conducted, and (iii) is duly qualified to do business,
and is in good standing, in each jurisdiction where such qualification is required, in each case,
except where a failure to be so qualified could not reasonably be expected to result in a Material
Adverse Effect.




          Section 4.2. Organizational Power; Authorization. The execution, delivery and
performance by each Loan Party of the Loan Documents to which it is a party are within such Loan
Party’s organizational powers and have been duly authorized by all necessary organizational, and if
required, shareholder, partner or member, action, as the case may be. This Agreement has been duly
executed and delivered by the Borrower, and constitutes, and each other Loan Document to which any
Loan Party is a party, when executed and delivered by such Loan Party, will constitute, valid and
binding obligations of the Borrower or such Loan Party (as the case may be), enforceable against it
in accordance with their respective terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors’
rights generally and by general principles of equity.




          Section 4.3. Governmental Approvals; No Conflicts. The execution, delivery and
performance by the Borrower of this Agreement, and by each Loan Party of the other Loan Documents
to which it is a party (a) do not require any consent or approval of, registration or
filing with, or any action by, any Governmental Authority, except those as have been obtained
or made and are in full force and effect, (b) will not violate any Requirements of Law applicable
to the Borrower or any of its Subsidiaries or any judgment, order or ruling of any Governmental
Authority, (c) will not violate or result in a default under the Indenture or any other indenture,
material agreement or other material instrument binding on the Borrower or any of its Subsidiaries
or any of its assets or give rise to a right thereunder to require any payment to be made by the
Borrower or any of its Subsidiaries and (d) will not result in the creation or imposition of any
Lien on any asset of the Borrower or any of its Subsidiaries, except Permitted Liens.




          Section 4.4. Financial Statements. The audited consolidated balance sheet of the
Borrower and its Subsidiaries as of March 31, 2006 and the related consolidated statements of
income, shareholders’ equity and cash flows for the Fiscal Year then ended fairly present in all
material respects the consolidated financial condition of the Borrower and its Subsidiaries as of
such dates and the consolidated results of operations for such periods in conformity with GAAP
consistently applied. Since March 31, 2006, there has been no event with respect to the Borrower

45









 








and its Subsidiaries which has had or could reasonably be expected to have a Material Adverse
Effect (excluding the effects of the matters as described in the Disclosed Items).




          Section 4.5. Litigation and Environmental Matters.




          (a) Except as disclosed in Borrower’s filings with the Securities and Exchange Commission, no
litigation, investigation or proceeding of or before any arbitrators or Governmental Authorities is
pending against or, to the knowledge of the Borrower, threatened against the Borrower or any of its
Subsidiaries as to which there is a reasonable possibility of an adverse determination that could
reasonably be expected to have a Material Adverse Effect (excluding the effects of the matters as
described in the Disclosed Items) and the absence of any pending or threatened litigation
constituting an adverse development or occurrence in respect of any such Disclosed Items that has
had or could reasonably be expected to have a Material Adverse Effect.




          (b) Neither the Borrower nor any of its Subsidiaries (i) has become subject to any
Environmental Liability, (ii) has received notice of any claim with respect to any Environmental
Liability or (iii) knows of any basis for any Environmental Liability except, in each case, where
the failure to so comply or such Environmental Liability could not reasonably be expected to have a
Material Adverse Effect.




          Section 4.6. Compliance with Laws and Agreements. The Borrower and each Subsidiary is
in compliance with (a) all Requirements of Law and all judgments, decrees and orders of any
Governmental Authority and (b) all material indentures, material agreements or other material
instruments binding upon it or its properties, except where non-compliance, could not reasonably be
expected to result in a Material Adverse Effect (excluding the effects of the matters as described
in the Disclosed Items).




          Section 4.7. Investment Company Act, Etc. Neither the Borrower nor any of its
Subsidiaries is (a) an “investment company” or is “controlled” by an “investment company”, as such
terms are defined in, or subject to regulation under, the Investment Company Act of 1940, as
amended, (b) otherwise subject to any other regulatory requirement limiting its ability to incur or
guarantee Indebtedness or grant security interests in its property to secure such Indebtedness or
requiring any approval or consent from or registration or filing with, any Governmental Authority
in connection therewith.




          Section 4.8. Taxes; Fees. The Borrower and its Subsidiaries have timely filed or
caused to be filed all federal income tax returns and all other material tax returns that are
required to be filed by them, and have paid all taxes shown to be due and payable on such returns
or on any assessments made against it or its property and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental Authority, (except where being contested
in good faith by appropriate proceedings and subject to maintenance of adequate reserves), in each
case where the failure to file or pay could not reasonably be expected to have a Material Adverse
Effect.




          Section 4.9. Margin Regulations. None of the proceeds of any of the Letters of Credit
will be used, directly or indirectly, for “purchasing” or “carrying” any “margin stock”




46









 







with the
respective meanings of each of such terms under Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect or for any purpose that
violates the provisions of the Regulation U. Neither the Borrower nor its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying “margin stock.”




          Section 4.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect. The
present value of all accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed the fair market value of the assets of such
Plan, and the present value of all accumulated benefit obligations of all underfunded Plans (based
on the assumptions used for purposes of Statement of Financial Standards No. 87) did not, as of the
date of the most recent financial statements reflecting such amounts, exceed the fair market value
of the assets of all such underfunded Plans, except in each case where any such excess amount could
not reasonably be expected to have a Material Adverse Effect.




          Section 4.11. Ownership of Property.




          (a) Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests
in, all of its real and personal property material to the operation of its business, including all
such properties reflected in the audited consolidated balance sheet of the Borrower referred to in
Section 4.4 or purported to have been acquired by the Borrower or any Subsidiary
after said date (except as sold or otherwise disposed of in the ordinary course of business or
permitted by the Loan Documents), in each case free and clear of Liens prohibited by this
Agreement, except where such failure could not reasonably be expected to have a Material Adverse
Effect.




          (b) Each of the Borrower and its Subsidiaries owns, or is licensed, or otherwise has the
right, to use, free from burdensome restrictions, all material patents, trademarks, service marks,
trade names, copyrights and other intellectual property, except where such failure could not
reasonably be expected to have a Material Adverse Effect, and the use thereof by the Borrower and
its Subsidiaries does not infringe on the rights of any other Person, except where such
infringement could not reasonably be expected to result in a Material Adverse Effect.




          (c) The properties of the Borrower and its Subsidiaries are insured with financially sound and
reputable insurance companies which are not Affiliates of the Borrower (other than Kingsmill
Insurance Company Limited), in such amounts with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning similar properties in
localities where the Borrower or any applicable Subsidiary operates.




          Section 4.12. Disclosure. The Borrower has disclosed to the Lenders all agreements,
instruments, and corporate restrictions to which the Borrower or any of its Subsidiaries is subject
that could reasonably be expected to result in a Material Adverse Effect. No written information
furnished by or on behalf of the Borrower to the Administrative Agent or




47









 







any Lender in connection
with the negotiation or syndication of this Agreement or any other Loan Document or delivered
hereunder or thereunder (as modified or supplemented by any other information so furnished)
contains any material misstatement of fact or omits to state any material fact necessary to make
the statements therein, taken as a whole, in light of the circumstances under which they were made,
not misleading.




          Section 4.13. Labor Relations. There are no material labor disputes against the
Borrower or any of its Subsidiaries, or, to the Borrower’s knowledge, threatened against or
affecting the Borrower or any of its Subsidiaries, and no significant claims of unfair labor
practices, charges or grievances are pending against the Borrower or any of its Subsidiaries, or to
the Borrower’s knowledge, threatened against any of them before any Governmental Authority that
would reasonably be expected to result in a Material Adverse Effect.




          Section 4.14. Subsidiaries. Schedule 4.14 sets forth the name of, the
ownership interest of the Borrower in, the jurisdiction of incorporation or organization of, and
the type of, each Subsidiary and SPV and identifies each Subsidiary that is a Guarantor, in each
case as of the Closing Date.




          Section 4.15. Insolvency. After giving effect to the execution and delivery of the
Loan Documents, the issuance of the Letters of Credit under this Agreement, neither the Borrower
nor its Subsidiaries, taken as a whole, will be “insolvent,” within the meaning of such term as
defined in § 101 of Title 11 of the United States Code, as amended from time to time, or be unable
to pay its debts generally as such
debts become due, or have an unreasonably small capital to engage in any business or
transaction, whether current or contemplated.




          Section 4.16. OFAC. No Loan Party (i) is a Person whose property or interest in
property is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of
September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten
to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or
transactions prohibited by Section 2 of such executive order, or is otherwise associated with any
such Person in any manner violative of Section 2, or (iii) is a Person on the list of Specially
Designated Nationals and Blocked Persons or subject to the limitations or prohibitions under any
other U.S. Department of Treasury’s Office of Foreign Assets Control regulation or executive order.




          Section 4.17. Compliance with Patriot Act and Other Laws. Each Loan Party is in
compliance, in all material respects, with (i) the Trading with the Enemy Act, as amended, and each
of the foreign assets control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating
thereto, and (ii) the Uniting And Strengthening America By Providing Appropriate Tools Required To
Intercept And Obstruct Terrorism (USA Patriot Act of 2001). No Letters of Credit will be used,
directly or indirectly, for any payments to any governmental official or employee, political party,
official of a political party, candidate for political office, or anyone else acting in an official
capacity, in order to obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977, as amended.





48









 








          Section 4.18. Security Documents. (a) The Pledge Agreement is effective to create in
favor of the Collateral Agent, for the ratable benefit of the Lenders, a legal, valid and
enforceable security interest in the Pledged Collateral (as defined in the Pledge Agreement) and,
when certificates and other instruments evidencing any portion of such Pledged Collateral are
delivered to the Collateral Agent, the Pledge Agreement shall constitute a perfected Lien on, and
security interest in, all right, title and interest of the pledgor thereunder in such Pledged
Collateral, in each case prior and superior in right to any other Person, subject to Permitted
Liens.




          (b) (i) The Security Agreement is effective to create in favor of the Collateral Agent, for
the ratable benefit of the Lenders, a legal, valid and enforceable security interest in the
Collateral (as defined in the Security Agreement) and, (ii) when financing statements in
appropriate form are filed in the offices specified on Schedule 2 to the Perfection Certificate,
the Security Agreement shall constitute a fully perfected Lien on, and security interest in, all
right, title and interest of the grantors thereunder in such Collateral (other than the
Intellectual Property (as defined in the Security Agreement)), in each case prior and superior in
right to any other Person, other than Permitted Liens.




          (c) When the filings in clause (b)(ii) above are made and when the Patent Security Agreement
and Trademark Security Agreement are filed in the United States Patent and Trademark Office and the
Copyright Security Agreement is filed in the United States Copyright Office, the Security Agreement
shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the Loan Parties in the Intellectual Property (as defined in the
Security Agreement) in which a security interest may be perfected by filing, recording or
registering a security agreement, financing statement or analogous document in the United States
Patent and Trademark Office or the United States Copyright Office, as applicable, in each case
prior and superior in right to any other Person, other than Permitted Liens.




          Section 4.19. Existing Indebtedness. Schedule 7.1 contains a complete and
accurate list of all Indebtedness outstanding as of the Closing Date, with respect to the Borrower
and its Subsidiaries, in each case in a principal amount of $10,000,000 or more, and in each case
showing the aggregate principal amount thereof, the name of the respective borrower and any other
entity which guaranteed such Indebtedness, and the scheduled payments of such Indebtedness




ARTICLE V




AFFIRMATIVE COVENANTS




          The Borrower covenants and agrees that so long as any Lender has a LC Commitment hereunder or
any Obligation remains unpaid or outstanding:




          Section 5.1. Financial Statements and Other Information. The Borrower will deliver to
the Administrative Agent and each Lender:




49









 








          (a) as soon as available and in any event within 90 days after the end of each Fiscal Year of
Borrower, a copy of the annual audit report for such Fiscal Year for the Borrower and its
Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity
and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such
Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal
Year, (without qualification as to scope of audit or any going concern explanation or limitation)
accompanied by a certificate from the Borrower’s certified public accountant stating that such
financial statements fairly present in all material respects the financial condition and the
results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated
basis in accordance with GAAP;




          (b) as soon as available and in any event within 45 days after the end of each Fiscal Quarter
of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash
flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of
such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding
quarter and the corresponding portion of Borrower’s previous Fiscal Year;




          (c) concurrently with the delivery of the financial statements referred to in clauses (a) and
(b) above, a Compliance Certificate signed by the chief financial officer, treasurer or controller
of the Borrower;




          (d) promptly following any reasonable request therefor, such other information regarding the
results of operations, business affairs and financial condition of the Borrower or any Subsidiary
as the Administrative Agent or any Lender may reasonably request; and




          (e) concurrently with the delivery of the financial statements referred to in clause (a) and
(b) above, a certificate of the chief financial officer or treasurer or controller (a) certifying
as to the accuracy of such financial statements and otherwise consistent with the applicable
requirements of the Securities and Exchange Commission, (b) certifying as to whether there exists a
Default or Event of Default on the date of such certificate, and if a Default or an Event of
Default, specifying the details thereof and the action which the Borrower has taken or proposes to
take with respect thereto, (c) setting forth in reasonable detail calculations, made consistent
with the terms of the Agreement and otherwise using customary methods, demonstrating compliance
with the financial covenants and (d) stating whether any change in the application of GAAP has
occurred since the date of the Borrower’s audited financial statements delivered in connection with
the closing, and, if any change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate.




          So long as the Borrower is required to file periodic reports under Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934, as amended, the Borrower’s obligation to deliver the
financial statements referred to in clauses (a) and (b) shall be deemed satisfied upon the filing
of such financial statements in the EDGAR system and the giving by the Borrower of notice to the
Lenders and the Administrative Agent as to the public availability of such financial statements
from such source.




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          Section 5.2. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:




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




          (b) any litigation or governmental proceeding of the type described in Section 4.5;




          (c) the occurrence of any default or event of default, or the receipt by Borrower or any of
its Subsidiaries of any written notice of an alleged default or event of default, in respect of any
other Indebtedness in an aggregate principal amount exceeding $10,000,000 of the Borrower or any of
its Subsidiaries;




          (d) the occurrence of any event that has had or could reasonably be expected to have, a
Material Adverse Effect; and




          (e) any change (i) in any Loan Party’s legal name, (ii) in any Loan Party’s chief executive
office, its principal place of business, (iii) in any Loan Party’s identity or legal structure,
(iv) in any Loan Party’s federal taxpayer identification number or organizational number or (v) in
any Loan Party’s jurisdiction of organization, in each case within thirty (30) days thereafter.



Each notice delivered under this Section 5.2 shall be accompanied by a written statement of
a Responsible Officer setting forth the details of the event or development requiring such notice
and any action taken or proposed to be taken with respect thereto.




          Section 5.3. Existence; Conduct of Business. The Borrower will, and will cause each
of its Subsidiaries to do, or cause to be done all things necessary to preserve, renew and maintain
in full force and effect its legal existence and its respective rights, licenses, permits,
privileges, franchises, patents, copyrights, trademarks and trade names material to the conduct of
its business and will continue to engage in the same business as presently conducted or such other
businesses that are reasonably related thereto; provided, that nothing in this Section
5.3 shall prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 7.3.




          Section 5.4. Compliance with Laws, Etc. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and requirements of any Governmental
Authority applicable to its business and properties, except where the failure to do so could not
reasonably be expected to result in a Material Adverse Effect (excluding the effects of the matters
as described in the Disclosed Items).




          Section 5.5. Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay and discharge at or before maturity, all of its obligations and liabilities
(including without limitation all Environmental Liabilities, taxes, assessments and other
governmental charges, levies and all other claims that could result in a statutory Lien) before the
same shall become delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, and the Borrower or such Subsidiary has
set aside on its books adequate reserves with respect thereto in accordance with GAAP or (b)

51









 








the
failure to make payment could not reasonably be expected to result in a Material Adverse Effect.




          Section 5.6. Books and Records. The Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and account customary in the businesses of the
Borrower and its Subsidiaries and otherwise required to be maintained by publicly held companies,
in which full, true and correct entries shall be made of all dealings and transactions in relation
to its business and activities to the extent necessary to prepare the consolidated financial
statements of Borrower in conformity with GAAP.




          Section 5.7. Visitation, Inspection, Etc. The Borrower will, and will cause each of
its Subsidiaries to, permit any representative of the Administrative Agent, the Issuing Bank or any
Lender, to visit and inspect its properties, to examine its books and records and to make copies
and take extracts
therefrom, and to discuss its affairs, finances and accounts with any of its officers and with
its independent certified public accountants, all at such reasonable times and as often as the
Administrative Agent, the Issuing Bank or any Lender (if an Event of Default exists) may reasonably
request after reasonable prior notice to the Borrower; provided, however, if any Default or Event
of Default has occurred and is continuing, no prior notice shall be required. The Borrower will,
and will cause each of the Guarantors to, permit any representative of the Administrative Agent,
the Issuing Bank, or any Lender (if an Event of Default exists), to visit and inspect its
properties and to conduct audits of the Collateral (including any third party evaluations by
HeliValue$ or other similar auditor of aircraft granted as collateral to cure any breach of the
Collateral Asset Value Ratio), all at such reasonable times as the Administrative Agent may
reasonably request after reasonable prior notice to the Borrower; provided, however, if a
Default or an Event of Default has occurred and is continuing, no prior notice shall be required
and no limitations as to times or frequency shall apply.




          Section 5.8. Maintenance of Properties; Insurance. The Borrower at all times will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property material to the
conduct of its business in good working order and condition, ordinary wear and tear excepted and
subject to force majuere, and (b) maintain with financially sound and reputable insurance companies
(i) insurance with respect to its properties and business, and the properties and business of its
Subsidiaries, against such casualties and contingencies and of such types and in such amounts as is
customary in the case of similar businesses operating in the same or similar locations and (ii)
furnish to the Administrative Agent no more frequently than annually a certificate of an Authorized
Officer of Borrower setting forth the nature and extent of all insurance maintained by Borrower and
its Subsidiaries in accordance with this Section, and (c) name the Collateral Agent as additional
insured on liability insurance policies of the Borrower and its Subsidiaries and as loss payee
(pursuant to the loss payee endorsement approved by the Collateral Agent) on all casualty and
property insurance policies of the Borrower and its Subsidiaries in each case, as appropriate
respecting the Collateral.




          Section 5.9. Use of Letters of Credit. No part of the proceeds of any Letter of
Credit will be used, whether directly or indirectly, for any purpose that would violate any rule or
regulation of the Board of Governors of the Federal Reserve System, including Regulations T, U or
X. All Letters of Credit will be used to support or secure performance of statutory obligations,

52









 








surety or appeal bonds, bid or performance bonds, insurance obligations or other obligations of a
like nature incurred in the ordinary course of business.




          Section 5.10. [Intentionally Omitted].




          Section 5.11.
Additional Subsidiaries.




          (a) In the event that, subsequent to the Closing Date, any Wholly Owned Domestic Subsidiary
becomes a Significant Subsidiary, whether pursuant to an acquisition or
otherwise, (x) the Borrower shall promptly notify the Administrative Agent, the Issuing Bank,
and the Lenders of such additional Wholly Owned Domestic Subsidiary that is a Significant
Subsidiary and (y) within twenty (20) Business Days thereafter, the Borrower shall cause such
Person (i) to join the Subsidiary Guaranty Agreement as a new Guarantor by executing and delivering
to the Collateral Agent a supplement to the Subsidiary Guaranty Agreement, (ii) to grant Liens in
favor of the Collateral Agent in all of its personal property of the types described in the
Security Agreement by joining the Security Agreement, executing and delivering Copyright Security
Agreement, Patent Security Agreement and Trademark Security Agreement (as applicable) and to file,
or at the request of the Collateral Agent to authorize the filing of, all such UCC financing
statements or similar instruments required by the Collateral Agent to perfect Liens in favor of the
Collateral Agent and granted under any of the Loan Documents, (iii) if such Wholly Owned Domestic
Subsidiary that is a Significant Subsidiary owns Capital Stock in another Person, to join in the
Pledge Agreement to pledge such 100% of the Capital Stock, and (iv) to deliver all such other
documentation (including without limitation, lien searches, legal opinions, and certified
organizational documents) and to take all such other actions as such Wholly Owned Domestic
Subsidiary would have been required to deliver and take pursuant to Section 3.1 if such
Wholly Owned Domestic Subsidiary had been a Loan Party on the Closing Date. In addition, within
twenty (20) Business Days after the date such Person becomes a Wholly Owned Domestic Subsidiary of
the Borrower, the Borrower shall, or shall cause the Wholly Owned Domestic Subsidiary owning such
Person, to pledge all of the Capital Stock of such Person to the Collateral Agent as security for
the Obligations by executing and delivering an amendment or supplement to the Pledge Agreement, in
form and substance satisfactory to the Collateral Agent, and to deliver the original stock
certificates evidencing such Capital Stock to the Collateral Agent, together with appropriate stock
powers executed in blank.




          (b) In the event that, subsequent to the Closing Date, any Person becomes a First-Tier Foreign
Subsidiary of the Borrower or any Guarantor, whether pursuant to an acquisition or otherwise, (x)
the Borrower shall promptly notify the Administrative Agent, the Issuing Bank and the Lenders
thereof and (y) no later than twenty (20) Business Days after such Person becomes a First-Tier
Foreign Subsidiary, or if the Administrative Agent determines in its sole discretion that the
Borrower is working in good faith, such longer period as the Administrative Agent shall permit not
to exceed thirty (30) additional days, the Borrower shall, or shall cause its Wholly Owned Domestic
Subsidiary owning such Person, (i) to pledge sixty-five percent (65%) of the voting Capital Stock
of such First-Tier Foreign Subsidiary to the Collateral Agent as security for the Obligations and
the obligations under the Credit Agreement pursuant to an amendment or supplement to the Pledge
Agreement, or a separate pledge agreement, in either case in form and substance reasonably
satisfactory to the Collateral Agent, (ii) to deliver the original stock certificates evidencing
such pledged Capital Stock, together with appropriate stock

53









 








powers executed in blank and (iii) to
deliver all such other documentation (including without limitation, lien searches, legal opinions,
landlord waivers, and certified organizational documents) and to take all such other actions as
Borrower or such Wholly Owned Domestic Subsidiary would have been required to deliver and take
pursuant to Section 3.1 if such First-Tier Foreign Subsidiary had been a First-Tier Foreign
Subsidiary on the Closing Date.




          (c) The Borrower agrees that, following the delivery of any Security Documents required to be
executed and delivered by this Section 5.12, the Collateral Agent shall have a valid and
enforceable, first priority perfected Lien on the property required to be pledged
pursuant to clause (a) and (b) above, free and clear of all Liens other than Permitted Liens.
All actions to be taken pursuant to this Section 5.12 shall be at the expense of the
Borrower or the applicable Loan Party, and shall be taken to the reasonable satisfaction of the
Collateral Agent.




          (d) Notwithstanding the foregoing, at any time that the Total Assets of Bristow International
Limited exceed $1,000,000, (x) the Borrower shall promptly notify the Administrative Agent and the
Lenders thereof and (y) no later than twenty (20) Business Days after Bristow International
Limited’s Total Assets exceed $1,000,000, or if the Administrative Agent determines in its sole
discretion that the Borrower is working in good faith, such longer period as the Administrative
Agent shall permit not to exceed thirty (30) additional days, the Borrower shall (i) pledge
sixty-five percent (65%) of the voting Capital Stock of Bristow International Limited to the
Collateral Agent as security for the Obligations and the obligations the Credit Agreement pursuant
to an amendment or supplement to the Pledge Agreement, or a separate pledge agreement, in either
case in form and substance reasonably satisfactory to the Collateral Agent and the Required
Lenders, (ii) deliver the original stock certificates evidencing such pledged Capital Stock,
together with appropriate stock powers executed in blank and (iii) deliver all such other
documentation (including without limitation, lien searches, legal opinions, landlord waivers, and
certified organizational documents) and to take all such other actions as Borrower would have been
required to deliver and take pursuant to Section 3.1 if the Capital Stock of Bristow
International Limited had been pledged on the Closing Date.




          Section 5.12. Further Assurances. Borrower will, and will cause each Loan Party to,
execute any and all further documents, financing statements, agreements and instruments, and take
all such further actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents), which may be reasonably required under any
applicable law, or which the Administrative Agent, the Collateral Agent or the Required Lenders may
reasonably request, to effectuate the transactions contemplated by the Loan Documents or to grant,
preserve, protect or perfect the Liens created by the Security Documents or the validity or
priority of an such Lien, all at the expense of the Loan Parties. Borrower also agrees to provide
to the Administrative Agent, from time to time upon request, evidence reasonably satisfactory to
the Administrative Agent as to the perfection and priority of the Liens created or intended to be
created by the Security Documents.




          Section 5.13. Post Closing Covenant. On or prior to the fortieth (40th)
day following the Closing Date the Borrower shall deliver duly executed landlord waivers with
respect to all material Collateral of the Borrower and the other Loan Parties at leased locations
or other locations not owned by the Borrower and the other Loan Parties in fee simple (other than
the New Iberia, Louisiana location). On or prior to the ninetieth (90th) day following
the Closing Date the




54









 







Borrower shall deliver (i) duly executed landlord waivers with respect to all
material Collateral of the Borrower and the other Loan Parties at the New Iberia, Louisiana
location and (ii) duly executed original intercompany notes for all intercompany indebtedness
evidenced by notes, along with duly executed allonges. On or prior to the fourteenth
(14th) day following the Closing Date, the Borrower shall deliver to the Collateral
Agent a duly executed Control Account Agreement with respect to the Borrower’s account with State
Street Bank and Trust Company.




ARTICLE VI




FINANCIAL COVENANTS




          The Borrower covenants and agrees that so long as any Lender has a LC Commitment hereunder or
any Obligation remains unpaid or outstanding:




          Section 6.1. Leverage Ratio. The Borrower will maintain at all times a Leverage Ratio
of not greater than:




	 	 	 
	Fiscal Quarter	 	Leverage Ratio
	Each Fiscal Quarter ending on or
prior to June 30, 2007

	 	4.25:1.00
	 
	 	 
	Each Fiscal Quarter ending after
June 30, 2007

	 	4.00:1.00





provided, that, notwithstanding the foregoing, if the Borrower completes an offering of common
stock to the public pursuant to a registration statement filed with the Securities and Exchange
Commission in which the aggregate cash proceeds to the Borrower (net of any underwriting, discounts
or expenses) equals or exceeds $50,000,000, the Borrower and its Subsidiaries shall be required to
maintain a Leverage Ratio of no greater than 4.00:1.00 for each period ending after such offering.




          Section 6.2. Interest Coverage Ratio. The Borrower will maintain, as of the end of
each Fiscal Quarter, commencing with the Fiscal Quarter ending June 30, 2006, an Interest Coverage
Ratio of not less than 3.00:1.00.




          Section 6.3. Consolidated Net Worth. The Borrower will not permit its Consolidated Net
Worth at any time to be less than an amount equal to the sum of (i) $485,216,000, plus (ii) as of
the end of each Fiscal Quarter, 50% of the positive cumulative Consolidated Net Income, commencing
with the Fiscal Quarter ending June 30, 2006; plus (iii) 100% of the amount by which the Borrower’s
“total stockholders’ equity” is increased as a result of any public or private offering of Capital
Stock of the Borrower after the March 31, 2006. Promptly upon the consummation of such offering,
the Borrower shall notify the Administrative Agent in writing of the amount of such increase in
“total stockholders’ equity”.




          Section 6.4. Collateral Asset Value. At all times that the Borrower’s Additional
Permitted Investments exceed 5% of the Borrower’s Consolidated Net Tangible




55









 







Assets, the Borrower
shall maintain a ratio of Collateral Asset Value to Senior Secured Debt, as of the most recently
completed fiscal quarter for which financial statements are available, of at least 1.20:1.00;
provided, that, notwithstanding the
foregoing, as of any date of determination, the actual principal amount of Senior Secured Debt
outstanding shall be used in determining the ratio of Collateral Asset Value to Senior Secured
Debt.




ARTICLE VII




NEGATIVE COVENANTS




          The Borrower covenants and agrees that so long as any Lender has a LC Commitment hereunder or
any Obligation remains outstanding:




          Section 7.1. Indebtedness. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness, except:




          (a) Indebtedness created incurred pursuant to the Loan Documents and the Credit Agreement;




          (b) Indebtedness set forth on Schedule 7.1 and existing on the Closing Date (and all
extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof);




          (c) Hedging Obligations entered into with any Person in the ordinary course of business and
not for speculation;




          (d) intercompany Indebtedness of the Borrower owing to any Subsidiary or SPV, intercompany
Indebtedness of any Guarantor owing to the Borrower or any other Subsidiary or SPV or intercompany
Indebtedness of any Subsidiary (that is not a Guarantor) owing to any other Subsidiary (that is not
a Guarantor);




          (e) intercompany Indebtedness of any Subsidiary (that is not a Guarantor) or any SPV owing to
the Borrower or any Guarantor, including Guarantees thereof, so long as such Indebtedness and
Guarantees are permitted pursuant to Section 7.4 below;




          (f) Indebtedness represented by sale-lease back transactions, other Off-Balance Sheet
Liabilities constituting Indebtedness, capitalized lease obligations, mortgage financings or
purchase money financings, and unsecured Indebtedness represented by private placements or public
debt issuances, in each case incurred for the purpose of financing the acquisition of businesses
and assets for use in the businesses of the Borrower and its Subsidiaries, in an aggregate amount
outstanding at any time not to exceed $200,000,000;




          (g) Indebtedness of any person which becomes a Subsidiary of the Borrower after the Closing
Date; provided, that (A) such Indebtedness exists at the time that such Person becomes a
Subsidiary and is not created in contemplation of or in connection with such Person becoming a
Subsidiary, and (B) the aggregate principal amount of all such Indebtedness shall not exceed
$40,000,000 outstanding at any time; or




56









 








          (h) other unsecured Indebtedness in an aggregate principal amount not to exceed $15,000,000 at
any time outstanding.




          Section 7.2. Negative Pledge. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien on any of its assets or property
now owned or hereafter acquired, except for Permitted Liens.




          Section 7.3. Fundamental Changes.




          (a) The Borrower will not, and will not permit any Significant Subsidiary to, merge into or
consolidate into any other Person, or permit any other Person to merge into or consolidate with it,
or sell, lease, transfer or otherwise dispose of (in a single transaction or a series of
transactions) all or substantially all of its assets (in each case, whether now owned or hereafter
acquired) or all or substantially all of the stock of any of its Significant Subsidiaries (in each
case, whether now owned or hereafter acquired) or liquidate or dissolve; provided, that if
at the time thereof and immediately after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing (i) the Borrower or any Significant Subsidiary may merge with
a Person if the Borrower (or such Subsidiary if the Borrower is not a party to such merger) is the
surviving Person, (ii) any Significant Subsidiary may merge into another Subsidiary;
provided, that if any party to such merger is a Loan Party, the surviving Person shall be a
Loan Party, (iii) any Significant Subsidiary may sell, transfer, lease or otherwise dispose of all
or substantially all of its assets to the Borrower or to a Loan Party, (iv) any Significant
Subsidiary (other than a Loan Party) may liquidate or dissolve if the Borrower determines in good
faith that such liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders; provided, that any such merger involving a
Person that is not a wholly-owned Subsidiary immediately prior to such merger shall not be
permitted unless also permitted by Section 7.4, (v) sales and other disposition of property
that the Borrower or its Subsidiaries reasonably determine is obsolete and no longer useful in the
ordinary course of its business and (vi) so long as no Default or Event of Default exists or would
result therefrom, the Borrower or any Significant Subsidiary may sell, transfer, lease or otherwise
dispose of Grasso Corporation, Grasso Production Management, Inc., Medic Systems, Inc. or Turbo
Engines, Inc. or all or substantially all of their respective assets; provided, that the
consideration received for any such sale of assets or stock shall be in an amount at least equal to
the fair market value thereof as determined by Borrower’s board of directors.




          (b) The Borrower will not, and will not permit any of its Subsidiaries to, engage in any type
of business other than the helicopter services and production management businesses conducted by
the Borrower or its Subsidiaries as of August 3, 2006 and businesses reasonably related thereto.




          Section 7.4. Loans and Other Investments, Etc. The Borrower will not, and will not
permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with
any Person that was not a wholly-owned Subsidiary prior to such merger), any Capital Stock,
evidence of indebtedness or other securities (including any option, warrant, or other right to
acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of,
or make or permit to exist any investment (other than Permitted Investments) in, any other Person
(all of the foregoing being collectively called “Investments”), or




57









 







purchase or otherwise
acquire (in one transaction or a series of transactions) any assets of any other Person that
constitute a business unit, or create or form any Subsidiary, except:




          (a) Borrower may Guarantee unfunded pension obligations of the Borrower’s Subsidiaries with
respect to Plans in existence on the Closing Date;




          (b) Borrower and its Subsidiaries may make and permit to exist Investments in Borrower and the
Guarantors;




          (c) Investments set forth on Schedule 7.4 and existing on the Closing Date in an
aggregate amount equal to the amount outstanding on the Closing Date as shown on such Schedule
7.4; and




          (d) Borrower and its Subsidiaries may make and permit to exist additional Investments in any
other Person (“Additional Permitted Investments”) in an aggregate amount up to 5% of its
Consolidated Net Tangible Assets (measured at the time of the Investment) and, so long as the
Borrower and the Guarantors are in compliance with the Collateral Asset Value Ratio, other
Additional Permitted Investments in excess of 5% of its Consolidated Net Tangible Assets.



In connection with any Investment allowed in clause (d) above in excess of $25,000,000, prior to
making any such Investment, the Borrower shall provide the Administrative Agent a certificate
demonstrating continued compliance, on a pro forma basis, with the Collateral Asset Value to Senior
Secured Debt ratio required by Section 6.4 immediately after giving effect to such
Investment and related transactions.




          Section 7.5. Restricted Payments. The Borrower will not, declare or make, or agree to
pay or make, directly or indirectly, any dividend on any class of its stock, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for, the purchase,
redemption, retirement, defeasance or other acquisition of, any shares of Capital Stock or
Indebtedness subordinated to the Obligations of the Borrower or any Guarantee thereof or any
options, warrants, or other rights to purchase such Capital Stock or such Indebtedness, whether now
or hereafter outstanding (each, a “Restricted Payment”), other than (i) dividends and other
distributions paid in kind or in capital stock, (ii) payments on Permitted Subordinated Debt to the
extent permitted under the subordination terms of such Indebtedness approved by the Lenders, (iii)
the cashless exercise of options, warrants, conversion and other rights or tax withholding with
respect to the exercise of stock awards, (iv) severance, settlement or similar payments made to
former employees in an aggregate amount not to exceed $5,000,000 in any Fiscal Year, and (v) so
long as no Event of Default has occurred and is continuing, dividends paid in respect of Capital
Stock that is neither common stock nor Disqualified Stock in an amount not to exceed $15,000,000
during any Fiscal Year, and (vi) other dividends in respect of the Borrower’s Capital Stock in an
amount not to exceed $5,000,000 in any Fiscal Year.




          Section 7.6. Sale of Assets. The Borrower will not, and will not permit any of its
Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose of, any of its assets,
business or property, whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary’s common stock to any Person other than the Borrower or
a Loan Party (or to qualify directors if required by applicable law), other than sale-lease back




58









 







transactions permitted by this Agreement, Designated Asset Sales, sales of inventory in the
ordinary course of business, and sales and other transactions permitted pursuant to Section
7.3 above.




          Section 7.7. Transactions with Affiliates. The Borrower will not, and will not permit
any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates (other than Wholly-Owned Subsidiaries), except (a) in the
ordinary course of business at prices and on terms and conditions, taken as a whole, not less
favorable to the Borrower or such Subsidiary than could be obtained on an arm’s-length basis from
unrelated third parties, (b) transactions between or among the Borrower and any other Loan Party
not involving any other Affiliates and (c) any Restricted Payment permitted by Section 7.5.




          Section 7.8. Restrictive Agreements. The Borrower will not, and will not permit any
Subsidiary to, directly or indirectly, enter into, incur or permit to exist any consensual
agreement that prohibits, restricts or imposes any condition upon (a) the ability of the Borrower
or any Subsidiary to create, incur or permit any Lien upon any of its assets or properties, whether
now owned or hereafter acquired, in favor of the Collateral Agent to secure all or any portion of
the Secured Obligations, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to its Capital Stock, to make or repay loans or advances to the Borrower
or any other Subsidiary, to Guarantee Indebtedness of the Borrower or any other Subsidiary or to
transfer any of its property or assets to the Borrower or any Subsidiary of the Borrower;
provided, that (i) the foregoing shall not apply to restrictions or conditions imposed by
law or by this Agreement, any other Loan Document, the Credit Agreement or the Indenture and
renewals, refinancing and rearrangement thereof is similar in scope, (ii) the foregoing shall not
apply to customary restrictions and conditions contained in agreements relating to the sale of a
Subsidiary or any assets pending such sale, provided such restrictions and conditions apply only to
the Subsidiary or the assets that are sold and such sale is permitted hereunder, (iii) the
foregoing shall not apply to customary restrictions and conditions contained joint venture
agreements and similar agreements that reflect the transfer of interests in or assets of the joint
venture, (iv) clause (a) shall not apply to restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement if such restrictions and conditions
apply only to the property or assets securing such Indebtedness; provided that the foregoing shall
not prohibit financial incurrence, maintenance and similar covenants that indirectly have the
practical effect of prohibiting or restricting the ability of a Subsidiary to make such payments or
provisions that require that a certain amount of capital be maintained, or prohibit the return of
capital to shareholders above certain dollar limits; and (v) clause (a) shall not apply to
customary provisions in leases restricting the assignment thereof.




          Section 7.9. Hedging Transactions. The Borrower will not, and will not permit any of
the Subsidiaries to, enter into any Hedging Transaction, other than Hedging Transactions not for
speculative purposes entered into in the ordinary course of business to hedge or mitigate risks to
which the Borrower or any Subsidiary is exposed in the conduct of its business or the management of
its obligations or operations.




59









 








          Section 7.10. Amendment to Material Documents. The Borrower will not amend, modify or
waive any of its rights under (a) its certificate of incorporation, bylaws or other organizational
documents in a manner materially adverse to the interests of the Lenders, or (b) the Indenture or
agreements governing the terms of Permitted Subordinated Debt, that would increase the interest
rate thereof, shorten the average life to maturity, impose additional covenants, or otherwise be
materially adverse to the interests of the Borrower or the Lenders thereunder.




          Section 7.11. Accounting Changes. The Borrower will not, and will not permit any of
its Subsidiaries to, make any significant change in accounting treatment or reporting practices,
except as required or permitted by GAAP, or change the Fiscal Year of the Borrower or of any of its
Subsidiaries, except to change the Fiscal Year end to December 31.




ARTICLE VIII




EVENTS OF DEFAULT




          Section 8.1. Events of Default. If any of the following events (each an “Event of
Default”) shall occur:




          (a) the Borrower shall fail to pay any reimbursement obligation in respect of any LC
Disbursement when and as the same shall become due and payable, whether at the due date thereof or
at a date fixed for prepayment or otherwise; or




          (b) the Borrower shall fail to pay any fee or any other amount (other than an amount payable
under clause (a) of this Section 8.1) payable under this Agreement or any other Loan
Document, when and as the same shall become due and payable, and such failure shall continue
unremedied for a period of three (3) Business Days; or




          (c) any representation, warranty or statement made or deemed made by or on behalf of the
Borrower or any Subsidiary in or in connection with this Agreement or any other Loan Document
(including the Schedules attached thereto) shall prove to be incorrect in any material respect when
made or deemed made or submitted; or




          (d) the Borrower shall fail to observe or perform any financial covenant, negative covenant
(other than the Collateral Asset Value Ratio limitation in Section 6.4) or the Borrower’s
covenant to maintain its existence; or




          (e) any breach of the Collateral Asset Value ratio in Section 6.4 where the Borrower
fails, within (i) 60 days if the Collateral Asset Value ratio is greater than 1.1:1.0, or (ii) 45
days if the Collateral Asset Value ratio is less than 1.1:1.0, but greater than 1.0:1.0, to (x)
make the necessary reduction in the aggregate amount of Senior Secured Debt outstanding in order to
cure non-compliance with such Collateral Asset Value ratio or (y) grant a first priority security
interest (subject to Liens set forth in paragraphs (i), (iii), (v), paragraphs (viii) through
(xiii), and paragraph (xv) of the definition of “Permitted Liens”) in unencumbered aircraft having
a book value equal to or exceeding such amount as would be required in order to cure non-compliance
with such Collateral Asset Value ratio; or





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          (f) any Loan Party shall fail to observe or perform any covenant or agreement contained in
this Agreement (other than those referred to in clauses (a), (b) (d) and (e) above) or any other
Loan Document, and such failure shall remain unremedied for 30 days after the earlier of (i) any
Responsible Officer of the Borrower becomes aware of such failure, or (ii) notice thereof shall
have been given to the Borrower by the Administrative Agent; or




          (g) the Borrower or any Subsidiary (whether as primary obligor or as guarantor or other
surety) shall fail to make payments when due on any Indebtedness (other than Non-Recourse Debt to
the extent such Indebtedness is permitted under the terms hereunder) which individually or in the
aggregate the principal amount thereof exceeds $10,000,000, or breach of any covenant contained in
any agreement relating to such Indebtedness causing or permitting the acceleration of such
Indebtedness after the giving of notice and the expiration of any applicable grace period; or




          (h) the Borrower or any Guarantor shall (i) commence a voluntary case or other proceeding or
file any petition seeking liquidation, reorganization or other relief under any federal, state or
foreign bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the
appointment of a custodian, trustee, receiver, liquidator or other similar official of it or any
substantial part of its property, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in clause (i) of this
Section 8.1(h), (iii) apply for or consent to the appointment of a custodian, trustee,
receiver, liquidator or other similar official for the Borrower or any such Guarantor or for a
substantial part of its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general assignment for the benefit of
creditors, or (vi) take any board action for the purpose of effecting any of the foregoing; or




          (i) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Guarantor
or its debts, or any substantial part of its assets, under any federal, state or foreign
bankruptcy, insolvency or other similar law now or hereafter in effect or (ii) the appointment of a
custodian, trustee, receiver, liquidator or other similar official for the Borrower or any
Guarantor or for a substantial part of its assets, and in any such case, such proceeding or
petition shall remain undismissed for a period of 60 days or an order or decree approving or
ordering any of the foregoing shall be entered; or




          (j) the Borrower or any Guarantor shall become unable to pay, shall admit in writing its
inability to pay, or shall fail to pay, its debts as they become due; or




          (k) an ERISA Event shall have occurred that, in the reasonable opinion of the Required
Lenders, when taken together with other ERISA Events that have occurred, could reasonably be
expected to result in liability to the Borrower and the Subsidiaries in an aggregate amount
exceeding $10,000,000; or




          (l) any final judgment or order for the payment of money in excess of $10,000,000 or in the
case of any final judgments, orders, fines, penalties, awards or similar impositions for the
payment of money levied in connection with the Disclosed Items, $20,000,000 (but excluding any
portion thereof that is subject to insurance coverage within applicable policy




61









 







limits and where the
insurer has not denied or contested coverage), which judgments, orders, fines, penalties, awards or
impositions remain in effect for 30 days without being satisfied, discharged, stayed, deferred, or
vacated; or




          (m) a Change in Control shall occur or exist; or




          (n) any Subsidiary Guaranty Agreement shall for any reason cease to be valid and binding on,
or enforceable against, any Loan Party, or any Loan Party shall so state in writing, or any Loan
Party shall seek to contest or terminate its payment obligations under the Subsidiary Guaranty
Agreement other than as permitted by the Loan Documents;




          (o) any Lien purported to be created under any Security Document shall fail or cease to be a
valid and perfected Lien on any Collateral, with the priority required by the applicable Security
Document, except as a result of (i) the Collateral Agent’s failure to take any action reasonably
requested by Borrower in order to maintain a valid and perfected Lien on any Collateral (ii) any
action taken by the Collateral Agent to release any Lien on any Collateral or (iii) as permitted in
connection with the Loan Documents; or




          (p) an Event of Default shall occur and be continuing under any Loan Document (other than this
Agreement) or the Credit Agreement;



then, and in every such event (other than an event with respect to the Borrower described in clause
(h) or (i) of this Section 8.1) and at any time thereafter during the continuance of such
event, the Administrative Agent or Collateral Agent may, and upon the written request of the
Required Lenders shall, by notice to the Borrower, take any or all of the following actions, at the
same or different times: (i) terminate the LC Commitments, whereupon the LC Commitment of each
Lender shall terminate immediately, (ii) declare all Obligations owing hereunder, to be, whereupon
the same shall become, due and payable immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower, (iii) exercise all remedies
contained in any other Loan Document, and (iv) exercise any other remedies available at law or in
equity; and that, if an Event of Default specified in either clause (h) or (i) shall occur, the LC
Commitments shall automatically terminate and all fees and all other Obligations shall
automatically become due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.




          Section 8.2. Application of Proceeds from Collateral. All proceeds from each sale of,
or other realization upon, all or any part of the Collateral by the Collateral Agent, the
Administrative
Agent, Issuing Bank or any of the Lenders after an Event of Default arises shall be applied in
the manner set forth in the Collateral Agency Agreement.




ARTICLE IX




THE ADMINISTRATIVE AGENT




          Section 9.1. Appointment of Administrative Agent.




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          (a) The Issuing Bank and each Lender irrevocably appoints SunTrust Bank as the Administrative
Agent and authorizes it to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent under this Agreement and the other Loan Documents, together
with all such actions and powers that are reasonably incidental thereto. The Administrative Agent
may perform any of their duties hereunder or under the other Loan Documents by or through any one
or more sub-agents or attorneys-in-fact appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent or attorney-in-fact may perform any and all of their duties and
exercise its rights and powers through their respective Related Parties. The exculpatory
provisions set forth in this Article shall apply to any such sub-agent or attorney-in-fact and the
Related Parties of the Administrative Agent, any such sub-agent and any such attorney-in-fact and
shall apply to their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.




          (b) The Issuing Bank shall act on behalf of the Lenders with respect to any Letters of Credit
issued by it and the documents associated therewith until such time and except for so long as the
Administrative Agent may agree at the request of the Required Lenders to act for the Issuing Bank
with respect thereto; provided, that the Issuing Bank shall have all the benefits and immunities
(i) provided to the Administrative Agent in this Article with respect to any acts taken or
omissions suffered by the Issuing Bank in connection with Letters of Credit issued by it or
proposed to be issued by it and the application and agreements for letters of credit pertaining to
the Letters of Credit as fully as if the term “Administrative Agent”, as used in this Article,
included the Issuing Bank with respect to such acts or omissions and (ii) as additionally provided
in this Agreement with respect to the Issuing Bank.




          Section 9.2. Nature of Duties of Administrative Agent. The Administrative Agent shall
not have any duties or obligations except those expressly set forth in this Agreement and the other
Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent
shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or
an Event of Default has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers, except those
discretionary rights and powers expressly contemplated by the Loan Documents that the
Administrative Agent is required to exercise in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the circumstances as provided
in Section 10.2), and (c) except as expressly set forth in the Loan Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it, its
sub-agents or attorneys-in-fact with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the circumstances as provided
in Section 10.2) or in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents or
attorneys-in-fact selected by it with reasonable care. The Administrative Agent shall not be
deemed to have knowledge of any Default or Event of Default unless and until written notice thereof
(which notice shall include an express reference to such event being a “Default” or “Event of
Default” hereunder) is given to the Administrative Agent by the Borrower or any Lender, and




63









 







the
Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of any of the covenants,
agreements, or other terms and conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in Article III
or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent. The Administrative Agent may consult with legal counsel
(including counsel for the Borrower) concerning all matters pertaining to such duties.




          Section 9.3. Lack of Reliance on the Administrative Agent. Each of the Lenders and
the Issuing Bank acknowledges that it has, independently and without reliance upon the
Administrative Agent, the Issuing Bank or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each of the Lenders and the Issuing Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent, the Issuing Bank or any other
Lender and based on such documents and information as it has deemed appropriate, continue to make
its own decisions in taking or not taking of any action under or based on this Agreement, any
related agreement or any document furnished hereunder or thereunder.




          Section 9.4. Certain Rights of the Administrative Agent. If the Administrative Agent
shall request instructions from the Required Lenders with respect to any action or actions
(including the failure to act) in connection with this Agreement, the Administrative Agent shall be
entitled to refrain from such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur liability to any
Person by reason of so refraining. Without limiting the foregoing, no Lender shall have any right
of action whatsoever against the Administrative Agent as a result of the Administrative Agent
acting or refraining from acting hereunder in accordance with the instructions of the Required
Lenders where required by the terms of this Agreement.




          Section 9.5. Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing (including any electronic
message, posting or other distribution) believed by it to be genuine and to have been signed, sent
or made by the proper Person. The Administrative Agent may also rely upon any statement made to it
orally or by telephone and believed by it to be made by the proper Person and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal counsel (including
counsel for the Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or not taken by it in accordance with the advice of such
counsel, accountants or experts.




          Section 9.6. The Administrative Agent in its Individual Capacity. The Person serving
as the Administrative Agent shall have the same rights and powers under this Agreement and any
other Loan Document in its capacity as a Lender as any other Lender and may exercise or refrain
from exercising the same as though it were not the Administrative Agent; and the terms “Lenders”,
“Required Lenders”, “holders of Notes”, or any similar terms shall, unless




64









 







the context clearly
otherwise indicates, include the Administrative Agent in its individual capacity. The Person
acting as the Administrative Agent and its Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary or Affiliate of the
Borrower as if it were not the Administrative Agent hereunder.




          Section 9.7. Successor Administrative Agent.




          (a) The Administrative Agent may resign at any time by giving notice thereof to the Lenders
and the Borrower. Upon any such resignation, the Required Lenders shall have the right to appoint
a successor Administrative Agent, subject to the approval by the Borrower provided that no Default
or Event of Default shall exist at such time. If no successor Administrative Agent shall have been
so appointed, and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent, which shall
be a commercial bank organized under the laws of the United States of America or any state thereof
or a bank which maintains an office in the United States, having a combined capital and surplus of
at least $500,000,000.




          (b) Upon the acceptance of its appointment as the Administrative Agent hereunder by a
successor, such successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and obligations under this
Agreement and the other Loan Documents. If within 45 days after written notice is given of the
retiring Administrative Agent’s resignation under this Section 9.7 no successor
Administrative Agent shall have been appointed and shall have accepted such appointment, then on
such 45th day (i) the retiring Administrative Agent’s resignation shall become
effective, (ii) the retiring Administrative Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (iii) the Required Lenders shall thereafter perform all
duties of the
retiring Administrative Agent under the Loan Documents until such time as the Required Lenders
appoint a successor Administrative Agent as provided above. After any retiring Administrative
Agent’s resignation hereunder, the provisions of this Article shall continue in effect for the
benefit of such retiring Administrative Agent and its representatives and agents in respect of any
actions taken or not taken by any of them while it was serving as the Administrative Agent.




          Section 9.8. Authorization to Execute other Loan Documents. Each Lender hereby
authorizes the Administrative Agent to execute on behalf of all Lenders all Loan Documents other
than this Agreement.




          Section 9.9. Documentation Agent; Syndication Agent. Each Lender agrees that neither
the Documentation Agent nor the Syndication Agent shall have any duties or obligations under any
Loan Documents to any Lender or any Loan Party.




65









 








ARTICLE X




MISCELLANEOUS




          Section 10.1. Notices.




          (a) Written Notices.





     (i) Except in the case of notices and other communications expressly permitted to be
given by telephone, all notices and other communications to any party herein to be effective
shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:



	 	 	 
	To the Borrower:

	 	Bristow Group Inc.
	 

	 	2000 W. Sam Houston Parkway S.
	 

	 	Suite 1700
	 

	 	Houston, Texas 77042
	 

	 	Attention: Mr. Perry L. Elders
	 
	 	 
	To the Administrative Agent:

	 	SunTrust Bank
	 

	 	303 Peachtree Street, N. E.
	 

	 	Atlanta, Georgia 30308
	 

	 	Attention: Mr. Joe McCreery
	 

	 	Telecopy Number: (404) 827-6270
	 
	 	 
	With a copy to:

	 	SunTrust Bank
	 

	 	Agency Services
	 

	 	303 Peachtree Street, N. E./ 25th Floor
	 

	 	Atlanta, Georgia 30308
	 

	 	Attention: Ms. Doris Folsum
	 

	 	Telecopy Number: (404) 658-4906
	 
	 	 
	 

	 	and
	 
	 	 
	 

	 	King & Spalding LLP
	 

	 	1180 Peachtree Street, N.E.
	 

	 	Atlanta, Georgia 30309
	 

	 	Attention: Mr. Albert H. Conrad
	 

	 	Telecopy Number: (404) 572-5128






66









 






	 	 	 
	To the Original Issuing Bank:

	 	JPMorgan Chase Bank, National Association
	 

	 	10 South Dearborn, Floor 19
	 

	 	Chicago, IL 60603-2003
	 

	 	Attention: Kerry J. Sroczynski
	 

	 	Telecopy Number: (312) 385-7096
	 
	 	 
	 

	 	JPMorgan Chase Bank, National Association
	 

	 	420 West Van Buren, Floor 2
	 

	 	Chicago, IL 60606-6613
	 

	 	Attention: Victorio G. DeGuzman
	 

	 	Telecopy Number: (312) 954-2457
	 
	 	 
	To any other Lender:

	 	the address set forth in the Administrative Questionnaire or the Assignment and Acceptance Agreement executed by such Lender







Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such notices and
other communications shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day) delivery, or transmitted in legible
form by facsimile machine, respectively, or if mailed, upon the third Business Day after
the date deposited into the mail or if delivered, upon delivery; provided, that notices
delivered to the Administrative Agent or the Issuing Bank shall not be effective until
actually received by such Person at its address specified in this Section 10.1.




     (ii) Any agreement of the Administrative Agent and the Lenders herein to receive
certain notices by telephone or facsimile is solely for the convenience and at the request
of the Borrower. The Administrative Agent and the Lenders shall be entitled to
rely on the authority of any Person purporting to be a Person authorized by the
Borrower to give such notice and the Administrative Agent and Lenders shall not have any
liability to the Borrower or other Person on account of any action taken or not taken by the
Administrative Agent or the Lenders in reasonable reliance in good faith upon such
telephonic or facsimile notice. The obligation of the Borrower to repay all Obligations
hereunder shall not be affected in any way or to any extent by any failure of the
Administrative Agent and the Lenders to receive written confirmation of any telephonic or
facsimile notice or the receipt by the Administrative Agent and the Lenders of a
confirmation which is at variance with the terms understood by the Administrative Agent and
the Lenders to be contained in any such telephonic or facsimile notice.



          (b) Electronic Communications.





     (i) Notices and other communications to the Administrative Agent, to the Lenders and
the Issuing Bank hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to



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procedures approved by
Administrative Agent, provided that the foregoing shall not apply to notices to the
Administrative Agent, any Lender or the Issuing Bank pursuant to Article 2 unless
such Lender, the Issuing Bank, as applicable, and the Administrative Agent have agreed to
receive notices under such Section by electronic communication and have agreed to the
procedures governing such communications. The Administrative Agent or 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.




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



          Section 10.2. Waiver; Amendments.




          (a) No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in
exercising any right or power hereunder or under any other Loan Document, and no course of dealing
between the Borrower and the Administrative Agent or any Lender or the Issuing Bank, shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right or power or any
abandonment or discontinuance of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent, the Issuing Bank and the
Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of
any rights or remedies provided by law. No waiver of any provision of this Agreement or any other
Loan Document or consent to any departure by the Borrower therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section 10.2, and then such
waiver or consent shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the issuance of a Letter of Credit shall
not be construed as a waiver of any Default or Event of Default, regardless of whether the
Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default or Event of Default at the time.




          (b) No amendment or waiver of any provision of this Agreement or the other Loan Documents, nor
consent to any departure by the Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Borrower and the Required Lenders or the Borrower and the
Administrative Agent with the consent of the Required Lenders and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for which given;
provided, that no amendment or waiver shall: (i) increase the LC Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal amount of any LC

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Disbursement, or reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the date fixed for any scheduled payment of any principal of, or
interest on, any LC Disbursement or interest thereon or any fees hereunder or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date for the termination or reduction
of any LC Commitment, without the written consent of each Lender affected thereby, (iv) change
Section 2.9(c) or (d) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, (v) change any of the provisions of
this Section 10.2(b) or the definition of “Required Lenders” or any other provision hereof
specifying the number or percentage of Lenders which are required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder, without the consent of
each Lender, (vi) release any Guarantor or limit the liability of any such Guarantor under the
Subsidiary Guaranty Agreement or any other guaranty agreement or other Loan Documents, without the
written consent of each Lender, except in connection with the sale or other disposition of such
Guarantor or as expressly permitted in this Agreement or other Loan Documents, and (vii) release
all or substantially all collateral securing any of the Obligations or agree to subordinate any
Lien in such collateral to any other creditor of the Borrower or any Subsidiary other than in
accordance with the terms of the Loan Documents, without the written consent of each Lender;
provided further, that no such agreement shall amend, modify or otherwise affect the
rights, duties or obligations of the Administrative Agent or the Issuing Bank without the prior
written consent of such Person. Notwithstanding anything contained herein to the contrary, this
Agreement may be amended and restated without the consent of any Lender (but with the consent of
the Borrower and the Administrative Agent) if, upon giving effect to such amendment and
restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated),
the LC Commitments of such Lender shall have terminated (but such Lender shall continue to be
entitled to the benefits of Sections 2.7, 2.8, 2.9 and 10.3), and
such Lender shall have no other commitment or other obligation hereunder and shall have been paid
in full all principal, interest and other amounts owing to it or accrued for its account under this
Agreement.




          Section 10.3. Expenses; Indemnification.




          (a) The Borrower shall pay (i) all reasonable, out-of-pocket costs and expenses of the
Administrative Agent, the Collateral Agent, and their Affiliates, including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent, the Collateral Agent and their
Affiliates, in connection with the syndication of the credit facilities provided for herein, the
preparation and administration of the Loan Documents and any amendments, modifications or waivers
thereof (whether or not the transactions contemplated in this Agreement or any other Loan Document
shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing Bank in
connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket costs and expenses (including, without
limitation, the reasonable fees, charges and disbursements of outside counsel) incurred by the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender in connection with the
enforcement or protection of its rights in connection with this Agreement, including its rights
under this Section 10.3, or in connection with any Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Letters of Credit.




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          The Borrower shall indemnify the Administrative Agent and the Collateral Agent (and any
sub-agent thereof), each Lender and the Issuing Bank, and each Related Party of any of the
foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses
(including the reasonable fees, charges and disbursements of any counsel for any Indemnitee), and
shall indemnify and hold harmless each Indemnitee from all reasonable allocated fees and
disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by the Borrower or any other Loan Party or
Related Party arising out of, in connection with, or as a result of (i) the execution or delivery
of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Letter
of Credit (including without limitation any Extended Claim Letter of Credit) or the use or proposed
use of the proceeds therefrom (including any refusal by the Issuing Bank to honor a demand for
payment under a Letter of Credit if the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (iii) any Extended Claim Guarantee, (iv)
any actual or alleged presence or Release of Hazardous Materials on or from any property owned or
operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any
way to the Borrower or any of its Subsidiaries, or (v) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory, whether brought by a third party or by the Borrower or any other Loan Party or
Related Party, and regardless of whether any Indemnitee is a party thereto, provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (y) result from a claim brought by the Borrower or any
other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations
hereunder or
under any other Loan Document, if the Borrower or such Loan Party has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction. The Borrower, upon demand by the Administrative Agent, or a Lender or Issuing Bank
at any time, shall reimburse such Administrative Agent or such Lender or Issuing Bank for any such
reasonable legal or other expenses incurred in connection with investigating or defending against
any of the foregoing, except if the same is excluded from indemnification pursuant to the
provisions of the preceding sentence. Each Indemnitee agrees to contest any indemnified claim if
requested by the Borrower, in a manner reasonably directed by the Borrower, with counsel selected
by the Indemnitee and approved by the Borrower, which approval shall not be unreasonably withheld
or delayed. Any Indemnitee that proposes or intends to settle or compromise any such indemnified
claim shall give the Borrower written notice of the terms of such settlement or compromise
reasonably in advance of settling or compromising such claim or proceeding and shall obtain the
Borrower’s prior written consent thereto, which consent shall not be unreasonably withheld or
delayed; provided that the Indemnitee shall not be restricted from settling or compromising any
such claim if the Indemnitee waives its right to indemnity from the Borrower in respect of such
claim and such settlement or compromise does not materially increase the Borrower’s liability
pursuant to this Section 10.3 to any related party of such Indemnitee.




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          (b) The Borrower shall pay, and hold the Administrative Agent, the Collateral Agent and each
of the Lenders harmless from and against, any and all present and future stamp, documentary, and
other similar taxes with respect to this Agreement and any other Loan Documents, any collateral
described therein, or any payments due thereunder, and save the Administrative Agent, the
Collateral Agent and each Lender harmless from and against any and all liabilities with respect to
or resulting from any delay or omission to pay such taxes.




          (c) To the extent that the Borrower fails to pay any amount required to be paid to the
Administrative Agent, the Collateral Agent, or the Issuing Bank under clauses (a), (b) or (c)
hereof, each Lender severally agrees to pay to the Administrative Agent, the Collateral Agent, or
the Issuing Bank, as the case may be, such Lender’s Pro Rata Share (determined as of the time that
the unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided,
that the unreimbursed expense or indemnified payment, claim, damage, liability or related expense,
as the case may be, was incurred by or asserted against the Administrative Agent, the Collateral
Agent, or the Issuing Bank in its capacity as such.




          (d) To the extent permitted by applicable law, no party to this Agreement or Indemnitee shall
assert, and each hereby waives, any claim against any such other Person, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed to actual or direct
damages) arising out of, in connection with or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the transactions contemplated therein, any Letter of Credit or the
use of proceeds thereof.




          (e) All amounts due under this Section 10.3 shall be payable within ten (10) business
days after written demand therefor.




          Section 10.4. Successors and Assigns.




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




          (b) Any Lender may at any time assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its LC Commitment and
participations in the Letters of Credit at the time outstanding); provided that any such
assignment shall be subject to the following conditions:




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     (i) Minimum Amounts.




     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s LC Commitment and the participations in the Letters of Credit at
the time outstanding or in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund, no minimum amount need be assigned; provided,
that such Lender shall simultaneously assign its entire Revolving Commitment in
connection therewith; and




     (B) in any case not described in paragraph (b)(i)(A) of this Section, the
aggregate amount of the LC Commitment or, if the applicable LC Commitment is not
then in effect, the principal outstanding balance of the LC Exposure of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified in the Assignment and
Acceptance, as of the Trade Date) shall not be less than $1,000,000, unless each of
the Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed).




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the LC Exposure or the LC Commitment assigned,
provided, that, such Lender shall assign such portion of its rights and
obligations with respect to its LC Commitments and its Revolving Commitment on a pro rata
basis.




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




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




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments to a Person that
is not a Lender with a LC Commitment; and




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




     (iv) Assignment and Acceptance. The parties to each assignment shall deliver
to the Administrative Agent (A) a duly executed Assignment and Acceptance, (B) a processing
and recordation fee of $3,500, (C) an Administrative Questionnaire unless the



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assignee is
already a Lender and (D) the documents required under Section 2.8 if such assignee
is a Foreign Lender.




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




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


Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c)
of this Section 10.4, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Acceptance, 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 Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance 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 2.19, 2.20, 2.21 and
10.3 with respect to facts and circumstances occurring prior to the effective date of such
assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph 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 (d)
of this Section 10.4. If the consent of the Borrower to an assignment is required
hereunder (including a
consent to an assignment which does not meet the minimum assignment thresholds specified above),
the Borrower shall be deemed to have given its consent ten (10) Business Days after the date notice
thereof has actually been delivered by the assigning Lender (through the Administrative Agent) to
the Borrower, unless the Borrower gives written notice to the assigning Lender prior to such tenth
(10th) Business Day that the Borrower objects to such assignment.




          (c) The Administrative Agent, acting solely for this purpose as an agent of the Borrower,
shall maintain at one of its offices in Atlanta, Georgia a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the LC Commitments of, and LC Exposure owing to, each Lender pursuant to the terms hereof from time
to time (the “Register”). Information contained in the Register with respect to any Lender
shall be available for inspection by such Lender at any reasonable time and from time to time upon
reasonable prior notice; information contained in the Register shall also be available for
inspection by the Borrower at any reasonable time and from time to time upon reasonable prior
notice. In establishing and maintaining the Register, Administrative Agent shall serve as
Borrower’s agent solely for tax purposes and solely with respect to the actions described in this
Section, and the Borrower hereby agrees that, to the extent SunTrust Bank serves in such
capacity, SunTrust Bank and its officers, directors, employees, agents, sub-agents and affiliates
shall constitute “Indemnitees.”




          (d) Any Lender may at any time, without the consent of, or notice to, the Borrower, the
Administrative Agent or the Issuing Bank sell participations to any Person (other than a natural
person, the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement




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(including all or a portion of its LC Commitment); provided that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such obligations and (iii)
the Borrower, the Administrative Agent, the Lenders, and Issuing Bank shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement.




          (e) Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver with respect to the following to the
extent affecting such Participant: (i) increase the LC Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any LC Disbursement or reduce
the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of
each Lender affected thereby, (iii) postpone the date fixed for any payment of any principal of, or
interest on, any LC Disbursement or interest thereon or any fees hereunder or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date for the termination or reduction
of any LC Commitment, without the written consent of each Lender affected thereby, (iv) change
Section 2.9(c) or (d) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, (v) change any of the provisions of
this Section 10.4 or the definition of “Required Lenders” or any other provision hereof
specifying the number or percentage of Lenders which are required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder, without
the consent of each Lender; (vi) release any guarantor or limit the liability of any such
guarantor under any guaranty agreement without the written consent of each Lender except to the
extent such release is expressly provided under the terms of the Guaranty Agreement or the other
Loan Documents; or (vii) release all or substantially all collateral (if any) securing any of the
Obligations. Subject to paragraph (f) of this Section 10.4, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.19, 2.20, and
2.21 to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section 10.4. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.7 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.9 as though it were a
Lender.




          (f) A Participant shall not be entitled to receive any greater payment under Section
2.7, Section 2.8 and Section 2.13 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrower’s prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.9 unless the Borrower is notified of the participation sold to such
Participant and Borrower agrees and such Participant agrees, for the benefit of the Borrower, to
comply with Section 2.9(e) as though it were a Lender.




          (g) 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 without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank;




74









 







provided that no
such pledge or assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.




          Section 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS.




          (a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF) OF THE STATE
OF NEW YORK.




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




          (c) EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING DESCRIBED IN PARAGRAPH
(B) OF THIS SECTION 10.5 AND BROUGHT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS
SECTION 10.5. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.




          (d) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS IN THE MANNER
PROVIDED FOR NOTICES IN SECTION 10.1. NOTHING IN THIS AGREEMENT OR IN ANY OTHER




75









 







LOAN
DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW.




          Section 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.




          Section 10.7. Right of Setoff. In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, each Lender and the Issuing
Bank shall have the right, at any time or from time to time upon the occurrence and during the
continuance of an Event of Default, without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the
extent permitted by applicable law, to set off and apply against all deposits (general or
special, time or demand, provisional or final) of the Borrower at any time held or other
obligations at any time owing by such Lender and the Issuing Bank to or for the credit or the
account of the Borrower against any and all Obligations held by such Lender or the Issuing Bank, as
the case may be, irrespective of whether such Lender or the Issuing Bank shall have made demand
hereunder and although such Obligations may be unmatured. Each Lender and the Issuing Bank agree
promptly to notify the Administrative Agent and the Borrower after any such set-off and any
application made by such Lender and the Issuing Bank, as the case may be; provided, that
the failure to give such notice shall not affect the validity of such set-off and application.
Each Lender and the Issuing Bank agrees to apply all amounts collected from any such set-off to the
Obligations before applying such amounts to any other Indebtedness or other obligations owed by the
Borrower and any of its Subsidiaries to such Lender or Issuing Bank.




          Section 10.8. Counterparts; Integration. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to constitute one and the
same instrument. This Agreement, the Fee Letter, the other Loan Documents, and any separate letter
agreement(s) relating to any fees payable to the Administrative Agent constitute the entire
agreement among the parties hereto and thereto regarding the subject matters hereof and thereof and
supersede all prior agreements and understandings, oral or written, regarding such subject matters.




          Section 10.9. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the




76









 







other
parties hereto and shall survive the execution and delivery of this Agreement and the issuance of
any Letters of Credit, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any Lender may have
had notice or knowledge of any Default or Event of Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force and effect as long
as any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter
of Credit is outstanding and so long as the LC Commitments have not expired or terminated. The
provisions of Sections 2.19, 2.20, 2.21, and 10.3 and Article
IX shall survive and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the expiration or termination of the Letters of Credit and the LC
Commitments or the termination of this Agreement or any provision hereof. All representations and
warranties made herein, in the certificates, reports, notices, and other documents delivered
pursuant to this Agreement shall survive the execution and delivery of this Agreement and the other
Loan Documents, and the issuance of the Letters of Credit.




          Section 10.10. Severability. Any provision of this Agreement or any other Loan
Document held to be illegal, invalid or unenforceable in any jurisdiction, shall, as to such
jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability
without affecting the legality, validity or enforceability of the remaining provisions hereof or
thereof; and the illegality, invalidity or unenforceability of a
particular provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.




          Section 10.11. Confidentiality. Each of the Administrative Agent, the Collateral
Agent, the Issuing Bank and each Lender agrees to maintain the confidentiality of any information
designated in writing as confidential and provided to it by the Borrower or any Subsidiary, except
that such information may be disclosed (i) to any Related Party of the Administrative Agent, the
Issuing Bank or any such Lender, including without limitation accountants, legal counsel and other
advisors solely for purposes of evaluating such information, (ii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (iii) to the extent
requested by any regulatory agency or authority, (iv) to the extent that such information becomes
publicly available other than as a result of a breach of this Section 10.11, or which
becomes available to the Administrative Agent, the Issuing Bank, any Lender or any Related Party of
any of the foregoing on a non-confidential basis from a source other than the Borrower, (v) in
connection with the exercise of any remedy hereunder or any suit, action or proceeding relating to
this Agreement or the enforcement of rights hereunder, and (ix) subject to provisions substantially
similar to this Section 10.11, to any actual or prospective assignee or Participant, or
(vi) with the consent of the Borrower. Any Person required to maintain the confidentiality of any
information as provided for in this Section 10.11 shall be considered to have complied with
its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such information as such Person would accord its own confidential information.




          Section 10.12. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any LC Exposure, together with all fees,
charges and other amounts which may be treated as interest on such LC Exposure under applicable law
(collectively, the “Charges”), shall exceed the maximum lawful rate of interest (the
“Maximum Rate”) which may be contracted for, charged, taken, received or reserved by a
Lender holding such LC Exposure in accordance with applicable law, the rate of interest payable in

77









 








respect of such LC Exposure hereunder, together with all Charges payable in respect thereof, shall
be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such LC Exposure but were not payable as a result of the operation of
this Section 10.12 shall be cumulated and the interest and Charges payable to such Lender
in respect of other LC Exposure or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the Federal Funds Rate to
the date of repayment (to the extent permitted by applicable law), shall have been received by such
Lender.




          Section 10.13. Waiver of Effect of Corporate Seal. The Borrower represents and
warrants that neither it nor any other Loan Party is required to affix its corporate seal to this
Agreement or any other Loan Document pursuant to any requirement of law or regulation, agrees that
this Agreement is delivered by Borrower under seal and waives any shortening of the statute of
limitations that may result from not affixing the corporate seal to this Agreement or such other
Loan Documents.




          Section 10.14. Patriot Act. The Administrative Agent and each Lender hereby notifies
the Loan Parties that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain,
verify and record information that identifies each Loan Party, which information includes the name
and address of such Loan Party and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify such Loan Party in accordance with the Patriot
Act. Each Loan Party shall, and shall cause each of its Subsidiaries to, provide to the extent
commercially reasonable, such information and take such other actions as are reasonably requested
by the Administrative Agent or any Lender in order to assist the Administrative Agent and the
Lenders in maintaining compliance with the Patriot Act.




          Section 10.15. Officer’s Certificates. It is not intended that any certificate of any
officer or director of the Borrower delivered to the Administrative Agent or any Lender pursuant to
this Agreement shall give rise to any personal liability on the part of such officer or director.




          Section 10.16. Effect of Inclusion of Exceptions. It is not intended that the
specification of any exception to any covenant herein shall imply that the excepted matter would,
but for such exception, be prohibited or required.




(remainder of page left intentionally blank)




78









 








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




	 	 	 	 	 
	 	BRISTOW GROUP INC.

 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE TO

LETTER OF CREDIT FACILITY AGREEMENT]




 









 








	 	 	 	 	 
	 	SUNTRUST BANK


as Administrative Agent and as a Lender

 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




[SIGNATURE PAGE TO

LETTER OF CREDIT FACILITY AGREEMENT]



 









 





	 	 	 	 	 
	 	JP MORGAN CHASE BANK, NATIONAL
ASSOCIATION, as Issuing Bank and a Lender

 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE TO

LETTER OF CREDIT FACILITY AGREEMENT]







 









 








	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION as a Lender

 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE TO

LETTER OF CREDIT FACILITY AGREEMENT]





 









 








	 	 	 	 	 
	 	WHITNEY NATIONAL BANK, as a Lender

 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE TO

LETTER OF CREDIT FACILITY AGREEMENT]





 









 








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

 	 
	 	By  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[SIGNATURE PAGE TO

LETTER OF CREDIT FACILITY AGREEMENT]





 









 








Schedule I




APPLICABLE MARGIN 




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Pricing Level	 	I	 	 	II	 	 	III	 	 	IV	 	 	V	 	 	VI	 
	 	 	BBB or	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	higher/Baa2	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Lower than	 
	Rating Category	 	or higher	 	 	BBB-/Baa3	 	 	BB+/Ba1	 	 	BB/Ba2	 	 	BB-/Ba3	 	 	BB-/Ba3	 
	Applicable Margin
for Letter of
Credit Fees
	 	 	0.500	%	 	 	0.750	%	 	 	1.00	%	 	 	1.25	%	 	 	1.75	%	 	 	2.50	%
	Applicable
Percentage for
Commitment Fee
	 	 	0.125	%	 	 	0.15	%	 	 	0.175	%	 	 	0.20	%	 	 	0.35	%	 	 	0.50	%







 









 








Schedule II




COMMITMENT AMOUNTS




	 	 	 	 	 
	Lender	 	LC Commitment Amount
	SunTrust Bank
	 	$	6,000,000	 
	 
	 	 	 	 
	JPMorgan Chase Bank
	 	$	5,000,000	 
	 
	 	 	 	 
	Wells Fargo Bank
	 	$	5,000,000	 
	 
	 	 	 	 
	Whitney National Bank
	 	$	5,000,000	 
	 
	 	 	 	 
	Bank of America
	 	$	4,000,000	 







 









 








SCHEDULE 4.14




SUBSIDIARIES





 









 







EXHIBIT A




FORM OF ASSIGNMENT AND ACCEPTANCE




August 3, 2006




     Reference is made to the Letter of Credit Facility Agreement dated as of August ___, 2006 (as
amended and in effect on the date hereof, the “Letter of Credit Agreement”), among Bristow
Group Inc., a Delaware corporation, the Lenders from time to time party thereto, JPMorgan Chase
Bank, National Association, as original issuing bank, and SunTrust Bank, as Administrative Agent
for such Lenders. Terms defined in the Letter of Credit Agreement are used herein with the same
meanings.



     The [name of assignor] (the “Assignor”) hereby sells and assigns, without recourse, to
[name of assignee] (the “Assignee”), and the Assignee hereby purchases and assumes, without
recourse, from the Assignor, effective as of the Assignment Date set forth below, the interests set
forth below (the “Assigned Interest”) in the Assignor’s rights and obligations under the
Letter of Credit Agreement, including, without limitation, the interests set forth below in the LC
Exposure of the Assignor on the Assignment Date and LC Exposure of the Assignor which are
outstanding on the Assignment Date [, but excluding accrued interest and fees to and excluding the
Assignment Date]. The Assignee hereby acknowledges receipt of a copy of the Letter of Credit
Agreement. From and after the Assignment Date (i) the Assignee shall be a party to and be bound by
the provisions of the Letter of Credit Agreement and, to the extent of the Assigned Interest, have
the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of the
Assigned Interest, relinquish its rights and be released from its obligations under the Letter of
Credit Agreement.



     This Assignment and Acceptance is being delivered to the Administrative Agent together with
(i) if the Assignee is a Foreign Lender, any documentation required to be delivered by the Assignee
pursuant to Section 2.8 of the Letter of Credit Agreement, duly completed and executed by the
Assignee, and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Administrative Agent, duly completed by
the Assignee. The Assignee shall pay the fee payable to the Administrative Agent pursuant to
Section 10.4(b) of the Credit Agreement.



     The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the
Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other
adverse claim and (iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Acceptance and to consummate the transactions contemplated
hereby, and (b) assumes no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other Loan Document, (ii)
the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any Collateral thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv)
the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Document.



 









 





     The Assignee (a) represents and warrants that (i) it has full power and authority, and has
taken all action necessary, to execute and deliver this Assignment and Acceptance and to consummate
the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement (subject to receipt of
such consents as may be required under the Credit Agreement), (iii) from and after the Effective
Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to
the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has
received a copy of the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 5.1 thereof, as applicable, and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance and to purchase the Assigned Interest on the basis of which it has
made such analysis and decision independently and without reliance on the Administrative Agent or
any other Lender, and (v) if it is a Foreign Lender, attached to the Assignment and Acceptance is
any documentation required to be delivered by it pursuant to the terms of the Credit Agreement,
duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.



          Choose in the alternative [Alternative A: From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned Interest (including
payments of principal, interest, fees and other amounts) to the Assignor for amounts which have
accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from
and after the Effective Date.] [Alternative B: From and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned Interest (including
payments of principal, interest, fees and other amounts) to the Assignee whether such amounts have
accrued prior to, on or after the Effective Date. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Administrative Agent for periods prior to the Effective
Date or with respect to the making of this assignment directly between themselves.]



          This Assignment and Acceptance shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and assigns. This Assignment and Acceptance may be executed
in any number of counterparts, which together shall constitute one instrument. Delivery of an
executed counterpart of a signature page of this Assignment and Acceptance by telecopy shall be
effective as delivery of a manually executed counterpart of this Assignment and Acceptance. This
Assignment and Acceptance shall be governed by and construed in accordance with the laws of the
State of New York.



 









 





Assignment Date:




Legal Name of Assignor:




Legal Name of Assignee:




Assignee’s Address for Notices:




Effective Date of Assignment:

(“Effective Date”):




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Percentage Assigned of LC	 
	 	 	 	 	 	 	Exposure (set forth, to at least	 
	 	 	 	 	 	 	8 decimals, as a percentage of	 
	 	 	 	 	 	 	the Aggregate LC	 
	 	 	Principal Amount	 	 	Commitments of all Lenders	 
	Facility	 	Assigned	 	 	thereunder)	 
	LC Exposure:	 	$	 	 	 	 	%	 





The terms set forth above are hereby agreed to:




	 	 	 	 	 
	 	 	[Name of Assignor], as Assignor
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	[Name of Assignee], as Assignee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






 









 





         
   
The undersigned hereby consent to the within assignment1:




	 	 	 	 	 	 	 
	Bristow Group Inc.	 	SunTrust Bank, as Administrative Agent:
	 
	 	 	 	 	 	 
	By:

	 	 	 	By:	 	 
	 	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	Name:
	 

	 	Title:
	 	 	 	Title:
	 
	 	 	 	 	 	 
	 	 	 	 	JPMorgan Chase Bank, National Association,
	 	 	 	 	as Original Issuing Bank:
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 

	 	 	 	 	 	Title:






 









 






EXHIBIT_5.1(c)




FORM OF COMPLIANCE CERTIFICATE




	 	 	 
	To:

	 	SunTrust Bank, as Administrative Agent
	 

	 	303 Peachtree St., N.E.
	 

	 	Atlanta, GA 30308
	 

	 	Attention:                     





Ladies and Gentlemen:




     Reference is made to that certain Letter of Credit Facility Agreement dated as of                     
___, 2006 (as amended and in effect on the date hereof, the “Letter of Credit Agreement”),
among Bristow Group Inc. (the “Borrower”), the Lenders named therein, JPMorgan Chase Bank,
National Association, as original issuing bank and SunTrust Bank, as Administrative Agent.
Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such
terms in the Letter of Credit Agreement.



     The undersigned being the duly elected and acting [chief financial officer] [treasurer]
[controller] of the Borrower, and in such capacity, hereby certifies to the Administrative Agent
and each Lender as follows:



     1. The consolidated financial statements of the Borrower and its Subsidiaries attached hereto
for the fiscal [quarter][year] ended                                          fairly present in all material respects
the financial condition of the Borrower and its Subsidiaries as at the end of such fiscal
[quarter][year] on a consolidated basis, and the related statements of [income cash flows] of the
Borrower and its Subsidiaries for such fiscal [quarter][year], in accordance with generally
accepted accounting principles consistently applied (subject, in the case of such quarterly
financial statements, to normal year-end audit adjustments and the absence of footnotes).



     2. The calculations set forth in Attachment 1 are computations of the financial
covenants set forth in Article VI of the Credit Agreement calculated from the financial statements
referenced in paragraph 1 above in accordance with the terms of the Credit Agreement.



     3. Based upon a review of the activities of Borrower and its Subsidiaries and the financial
statements attached hereto during the period covered thereby, as of the date hereof, there exists
no Default or Event of Default [except as follows:                                         ][describe any Default
or Event of Default and any other actions being taken by the Borrower with respect thereto, all in
reasonable detail].



	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 






 









 





Attachment to Compliance Certificate

Computation of Financial Covenant Compliance