TABLE OF CONTENTS

 

ARTICLE I CERTAIN DEFINED TERMS; CERTAIN RULES OF CONSTRUCTION		5
Section 1.01	Certain Defined Terms	5
Section 1.02	Certain Rules Of Construction	27
ARTICLE II CREDIT EXTENSIONS		28
Section 2.01	Loans	28
Section 2.02	Procedures For Borrowing	29
Section 2.03	Letters Of Credit	32
Section 2.04	Swing Line Loans	39
Section 2.05	Payments And Prepayments	41
Section 2.06	Termination Or Reduction Of Aggregate Revolving Credit Commitments	45
Section 2.07	Repayment Of Loans	45
Section 2.08	Interest; Applicable Rates	46
Section 2.09	Fees	47
Section 2.10	Computations Of Interest And Fees	47
Section 2.11	Evidence Of Debt	47
Section 2.12	Payments Generally; Right Of Administrative Agent To Make Deductions Automatically	48
Section 2.13	Sharing Of Payments	50
Section 2.14	Security For The Obligations	50
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY		51
Section 3.01	Taxes	51
Section 3.02	Illegality	52
Section 3.03	Inability To Determine Rates	53
Section 3.04	Increased Costs	53
Section 3.05	Compensation For Losses	54
Section 3.06	Mitigation Obligations; Additional L/C Issuer	55
Section 3.07	Removal Or Replacement Of Lenders	55
Section 3.08	Survival	56
ARTICLE IV CONDITIONS PRECEDENT		57
Section 4.01	Conditions To Effectiveness and to Initial Credit Extension	57
Section 4.02	Conditions To All Credit Extensions	59
ARTICLE V REPRESENTATIONS AND WARRANTIES		60
Section 5.01	Corporate Existence And Power	60
Section 5.02	Corporate Authorization; No Contravention	61
Section 5.03	Governmental Authorization; Compliance With Laws	61
Section 5.04	Binding Effect	61
Section 5.05	Litigation	61
Section 5.06	No Defaults	62
Section 5.07	ERISA Compliance	62
Section 5.08	Use Of Proceeds	62
Section 5.09	Title To Properties	62
Section 5.10	Taxes	63
Section 5.11	Financial Condition	63
Section 5.12	Environmental Matters	63

 

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Section 5.13	Margin Regulations; Regulated Entities	63
Section 5.14	Swap Obligations	64
Section 5.15	Intellectual Property	64
Section 5.16	Equity Interests Held By Borrower; Equity Interests In Borrower	65
Section 5.17	Insurance	65
Section 5.18	Collateral And Collateral Documents	65
Section 5.19	Labor Relations	66
Section 5.20	Solvency	66
Section 5.21	Full Disclosure	66
Section 5.22	Business Locations	66
Section 5.23	Brokerage Commissions	66
Section 5.24	Deposit and Securities Account	67
ARTICLE VI		67
AFFIRMATIVE COVENANTS		67
Section 6.01	Financial Statements	67
Section 6.02	Certificates; Other Information	68
Section 6.03	Notices	70
Section 6.04	Payment of Certain Obligations	71
Section 6.05	Preservation of Existence, Etc	71
Section 6.06	Maintenance of Properties	71
Section 6.07	Maintenance of Insurance	71
Section 6.08	Compliance with Laws; Contractual Obligations	72
Section 6.09	Books and Records	72
Section 6.10	Inspection Rights	72
Section 6.11	Use of Proceeds	72
Section 6.12	Financial Covenants	73
Section 6.13	Further Assurances	73
Section 6.14	Interest Rate Protection Agreements	74
Section 6.15	Deposit and Securities Accounts; Control Agreements	74
ARTICLE VII NEGATIVE COVENANTS		75
Section 7.01	Liens	75
Section 7.02	Investments	77
Section 7.03	Debt	78
Section 7.04	Fundamental Changes	80
Section 7.05	Dispositions	81
Section 7.06	Restricted Payments	82
Section 7.07	Transactions with Affiliates	82
Section 7.08	Burdensome Agreements	83
Section 7.09	Use of Proceeds	83
Section 7.10	Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity; Accounting Policies and Reporting Practices	84
Section 7.11	Margin Stock	84
Section 7.12	Cash Restrictions	84
Section 7.13	Deposit Accounts; Control Agreements	84
Section 7.14	Securities Accounts; Control Agreements	84
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES		84
Section 8.01	Events of Default	84

 

 

Section 8.02	Remedies Upon Event of Default	87
Section 8.03	Application of Funds	87
ARTICLE IX ADMINISTRATIVE AGENT		88
Section 9.01	Appointment and Authority	88
Section 9.02	Rights as a Lender	88
Section 9.03	Exculpatory Provisions	89
Section 9.04	Reliance by Administrative Agent	89
Section 9.05	Delegation of Duties	90
Section 9.06	Resignation of Administrative Agent	90
Section 9.07	Non-Reliance on Administrative Agent and Other Lenders	91
Section 9.08	No Other Duties; Etc.	91
Section 9.09	Administrative Agent May File Proofs of Claim	91
Section 9.10	Collateral and Guaranty Matters	92
ARTICLE X GENERAL PROVISIONS		92
Section 10.01	Amendments, Etc	92
Section 10.02	Notices; Effectiveness; Electronic Communications	94
Section 10.03	No Waiver; Cumulative Remedies; Enforcement	95
Section 10.04	Expenses; Indemnity; Damage Waiver	96
Section 10.05	Marshalling; Payments Set Aside	97
Section 10.06	Successors and Assigns	98
Section 10.07	Treatment of Certain Information; Confidentiality	101
Section 10.08	Right of Setoff	102
Section 10.09	Interest Rate Limitation	102
Section 10.10	Counterparts; Integration; Effectiveness	103
Section 10.11	Survival of Representations and Warranties	103
Section 10.12	Severability	103
Section 10.13	USA Patriot Act Notice	103
Section 10.14	Guaranty By Subsidiaries	104
Section 10.15	Time of the Essence	110
Section 10.16	Governing Law; Jurisdiction; Etc	110
Section 10.17	Waiver of Right to Jury Trial	111
Section 10.18	Release of Collateral and Guaranty Obligations	111
Section 10.19	Electronic Execution of Assignments and Certain Other Documents	111
Section 10.20	No Advisory or Fiduciary Relationship	112

 

 

SCHEDULES
2.01		Lenders; Commitments; Applicable Percentages
5.15		Intellectual Property Rights
5.16		Equity Interests Held by Borrower; Equity Interests in Borrower
5.17		Insurance
5.19		Labor Issues
5.22(a)		Locations of Real Property
5.22(b)		Taxpayer and Organizational Identification Numbers
5.22(c)		Changes in Legal Name, State of Formation and Structure
5.24		Deposit and Securities Accounts
7.01(b)		Existing Liens
7.01(o)		Earn Out Obligations
7.03		Existing Debt
10.02		Administrative Agent’s Office; Certain Addresses for Notices
EXHIBITS
A		Form of Assignment and Assumption
B		Form of Compliance Certificate
C		Form of Joinder Agreement
D		Form of Loan Notice
E-1		Form of Revolving Note
E-2		Form of Swing Line Note
E-3		Form of Term Note
F		Form of Swing Line Notice

 

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AMENDED AND RESTATED CREDIT AGREEMENT

 

This AMENDED AND RESTATED CREDIT AGREEMENT , dated as of August 20, 2009, is among CIBER, INC., a Delaware corporation (“ Borrower ”), Subsidiary Guarantors party hereto, the several financial institutions party to this Agreement in their capacity as lenders hereunder (the “ Lenders ”), and BANK OF AMERICA, N.A., a national banking association, as Administrative Agent, Swing Line Lender and L/C Issuer.

 

RECITALS

 

WHEREAS Borrower has requested that Lenders provide credit facilities for the purposes set forth herein, and Lenders are willing to do so on the terms and conditions set forth herein.

 

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

 

AGREEMENT

 

ARTICLE I

 

CERTAIN DEFINED TERMS; CERTAIN RULES OF CONSTRUCTION

 

Section 1.01         Certain Defined Terms .

 

As used herein:

 

“ Acquiree ” has the meaning ascribed thereto in the definition of “Permitted Acquisition” contained herein.

 

“ Acquisition ” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in:  (a) the acquisition of:  (i) all or substantially all of the assets of a Person; or (ii) any business or division of a Person; (b) the acquisition of in excess of fifty percent of the Equity Interests of any Person, or otherwise causing any Person to become a Subsidiary of such Person; or (c) a merger or consolidation or any other combination with another Person (other than a Person that is a Subsidiary) in which Borrower or a Subsidiary of Borrower is the surviving Person.

 

“ Act ” has the meaning ascribed thereto in Section 10.13 .

 

“ Administrative Agent ” means, at any time, the administrative agent for the Lending Parties under each of the Loan Documents (which, initially, shall be Bank of America).

 

“ Administrative Agent’s Office ” means Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 , or such other address or account as Administrative Agent may from time to time notify Borrower, Guarantors and each Lending Party.

 

“ Administrative Detail Form ” means an administrative detail form in a form supplied by, or otherwise acceptable to, Administrative Agent.

 

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

 

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Person specified or (b) each of such Person’s officers, directors, joint venturers and partners; provided that in no case shall Administrative Agent or any Lender be deemed to be an Affiliate of Borrower or any its Subsidiaries for purposes of this Agreement.

 

“ Aggregate Revolving Credit Commitments ” means, at any time, the aggregate Revolving Credit Commitments of all Lenders.  The aggregate principal amount of the Aggregate Revolving Credit Commitments in effect on the Closing Date is ONE HUNDRED FIVE MILLION DOLLARS ($105,000,000). „!

 

“ Agreement ” means this Credit Agreement.

 

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

 

“ Applicable Rate ” means with respect to Revolving Credit Loans, the Term Loan, Swing Line Loans, Letters of Credit and the Commitment Fee, the following percentages per annum, based upon the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by Administrative Agent pursuant to Section 6.02(a) :

 

Pricing Tier		Consolidated Leverage Ratio		Commitment  Fee		L/C Fee		Eurodollar  Rate Loans		Base Rate  Loans
1		< 1.5 to 1.0		0.50	%	2.75	%	2.75	%	1.75	%
2		> 1.5 to 1.0 but < 2.0 to 1.0		0.50	%	3.00	%	3.00	%	2.00	%
3		> 2.0 to 1.0 but < 2.5 to 1.0		0.50	%	3.25	%	3.25	%	2.25	%
4		> 2.5 to 1.0		0.50	%	3.50	%	3.50	%	2.50	%

 

Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a) ; provided , however , that if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of Required Lenders, Pricing Tier 4 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall continue to apply until the first Business Day immediately following the date a Compliance Certificate is delivered in accordance with Section 6.02(a) , whereupon the Applicable Rate shall be adjusted based upon the calculation of the Consolidated Leverage Ratio contained in such Compliance Certificate.  The Applicable Rate in effect from the Closing Date through the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a)  for the fiscal quarter ending September 30, 2009 shall be determined based upon Pricing

 

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Tier 4.  Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.09 .

 

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

 

“ Arranger ” means Banc of America Securities LLC as sole lead arranger and sole book runner for the transactions contemplated by the Loan Documents.

 

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

 

“ Attributable Debt ” means, on any date of determination:  (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP; and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.

 

“ Audited Financial Statements ” means the audited consolidated balance sheet for Borrower for the fiscal year ended December 31, 2008, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of Borrower, including the notes thereto, together with the opinion issued thereon by the independent accountants that prepared such financial statements.

 

“ Automatic Extension Letter of Credit ” has the meaning ascribed thereto in Section 2.03(b)(iv) .

 

“ Available Revolving Credit Commitment ” means the Aggregate Revolving Credit Commitments minus the Total Revolving Credit Outstandings.

 

“ Availability Period ” means, with respect to the Revolving Credit Commitments, the period from the Closing Date to the Maturity Date.

 

“ Bank of America ” means Bank of America, N.A.

 

“ Bankruptcy Code ” means the federal Bankruptcy Reform Act of 1978 (11 U.S.C. Sections 101 et seq .).

 

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

 

“ Base Rate ” means, for any day, a rate per annum equal to the highest of (a) the Prime Rate for such day, (b) the sum of 0.50% plus the Federal Funds Rate for such day and (c) the Eurodollar Base Rate plus 1.0%.

 

“ Base Rate Loan ” means a Loan that bears interest based upon the Base Rate.

 

“ Borrower ” has the meaning ascribed thereto in the preamble hereto.

 

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

 

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

 

“ Capital Expenditures ” means all expenditures (whether paid in cash or other consideration or accrued as a liability and including that portion of capital leases that is capitalized on the balance sheet of such Person including in connection with a sale-leaseback transaction) by such Person for the acquisition or leasing of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) that are required to be capitalized under GAAP on a balance sheet of such Person.  For purposes of this definition:  (a) the purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment owned by such Person thereof or with insurance proceeds shall be included in Capital Expenditures only to the extent of the gross amount of such purchase price minus the credit granted by the seller of such equipment for such equipment being traded in at such time, or the amount of such proceeds, as the case may be; and (b) neither an acquisition to the extent made with the proceeds of a Disposition in accordance with Section 2.05(b)(iv)  and Section 7.05(f)(iii)  nor any Acquisition complying with Section 7.02(e)  shall be deemed a “Capital Expenditure” hereunder.

 

“ Cash Collateral ” means all Collateral that has, in accordance with the provisions hereof, been pledged to Cash Collateralize:  (a) L/C Obligations; or (b) Loans that are Eurodollar Rate Loans.

 

“ Cash Collateralize ” means to pledge and deposit with or deliver to Administrative Agent, for the benefit of L/C Issuer and Lenders, as collateral for the L/C Obligations or the Loans, cash or deposit account balances pursuant to documents in form and substance satisfactory to Administrative Agent and L/C Issuer (which documents are hereby consented to by Lenders).

 

“ Cash Equivalents ” means, as to any Person:  (a) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (but only so long as the full faith and credit of the United States is pledged in support thereof) having maturities of not more than twelve months from the date of acquisition; (b) securities issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than ninety days from the date of acquisition and having one of the two highest ratings from either Standard & Poor’s Corporation or Moody’s Investors Service, Inc.; (c) domestic and Eurodollar certificates of deposit, time or demand deposits or bankers’ acceptances maturing within six months after the date of acquisition issued or guaranteed by or placed with, and money market deposit accounts issued or offered by:  (i) any Lender; and (ii) any commercial bank organized under the laws of the United States or any state thereof or the District of Columbia having combined capital and surplus of not less than $250,000,000.00; (d) repurchase obligations with a term of not more than thirty days for underlying securities of the types described in clause (a) and (b) of this definition entered into with any bank meeting the qualifications specified in clause (c) of this definition; (e) commercial paper issued by the parent corporation of any Lender or any commercial bank (provided that the parent corporation and the bank are both incorporated in the United States) having capital and surplus in excess of $250,000,000.00 and commercial paper issued by any Person incorporated in the United States, which commercial paper is rated at least A-1 or the equivalent thereof by Standard & Poor’s Corporation or at least P-1 or the equivalent thereof by Moody’s Investors Service, Inc., and in each case maturing not more than ninety

 

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days after the date of acquisition by such Person; and (f) investments in money market funds substantially all the assets of which are comprised of securities of the types described in clauses (a) through (e) of this definition.

 

“ Cash Management Obligations ” shall mean any and all obligations owing pursuant to any treasury or cash management services extended to any Loan Party by any Lending Party or any Affiliate of any Lending Party including deposit accounts, overdraft, credit or debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services.

 

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

 

“ Change of Control ” means (a) an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “ option right ”)), directly or indirectly, of twenty-five percent or more of the Equity Interests of Borrower entitled to vote for members of the board of directors or equivalent governing body of Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); (b) if a majority of the board of directors of Borrower shall no longer be composed of individuals (i) who were members of said board on the date hereof, (ii) whose election or nomination to said board was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of said board, or (iii) whose election or nomination to said board was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of said board; or (c) a “change of control” or similar event under any Permitted Subordinated Debt.

 

“ Closing Date ” means August 20, 2009.

 

“ Code ” means the Internal Revenue Code of 1986.

 

“ Collateral ” means all property and interests in property and proceeds thereof now owned or hereafter acquired by Borrower or any Subsidiary Guarantor in or upon which a Lien now or hereafter exists in favor of Administrative Agent, for the benefit of itself and each Lending Party (or any of the foregoing), whether under this Agreement or under any other Loan Document.

 

“ Collateral Documents ” means, collectively, each Guaranty, the Security Documents, and all other security agreements, mortgages, deeds of trust, patent, trademark and copyright assignments, lease assignments and other similar documents between any Loan Party and Administrative Agent, for the benefit of itself and each Lending Party (or any of the foregoing), now or hereafter delivered to Administrative Agent pursuant to or in connection with the transactions contemplated hereby, and all financing statements (or comparable documents now or hereafter filed in accordance with the Uniform Commercial Code or other comparable Law) against any Loan Party as debtor in favor of Administrative Agent, for the benefit of itself and each Lending Party (or any of the foregoing), as secured party.

 

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

 

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

 

“ Consolidated Adjusted EBITDA ” means an amount equal to the difference between (a) Consolidated EBITDA for the period consisting of the four consecutive Fiscal Periods ending on such date minus (b) Capital Expenditures for such period.

 

“ Consolidated EBITDA ” means, for any period, for Borrower and its Subsidiaries on a consolidated basis, the sum of (without duplication):  (a) the net income (or net loss) for such period; provided that net income (or net loss) shall be computed without giving effect to extraordinary gains or extraordinary losses; provided further that there shall be excluded the net income (or net loss) of any Person (other than a Subsidiary of Borrower) in which Borrower or any of its Subsidiaries has an ownership interest, except to the extent that any such income is actually received by Borrower or such Subsidiary in the form of dividends or similar distributions; plus (b) Consolidated Interest Expense (net of interest income) for such period to the extent included in the determination of such net income (or net loss); plus (c) Consolidated Tax Expense for such period to the extent included in the determination of such net income (or net loss); plus (d) all amounts treated as expenses for such period for depreciation and the amortization of intangibles of any kind; plus (e) any non-cash expense attributable to the expensing of share based payment awards (including without limitation awards related to stock option programs and phantom stock programs) pursuant to the implementation of or compliance with the Financial Accounting Standards Board Statement 123R (excluding any such expense that constitutes an accrual of or a reserve for cash charges for any future period); minus (f) without duplication, any non-cash gains attributable to the expensing of share based payment awards (including without limitation awards related to stock option programs and phantom stock programs) pursuant to the implementation of or compliance with the Financial Accounting Standards Board Statement 123R (excluding any such gain that represents the reversal of any accrual of or reserve for anticipated cash charges in any prior period that are described in the parenthetical to clause (e) above); plus (g) any non-cash mark-to-market expense (minus any non-cash mark-to-market gains) relating to Swap Agreements permitted hereunder for such period to the extent included in the determination of such net income (or net loss), but in each case only to the extent included in the determination of such Consolidated EBITDA.

 

“ Consolidated Fixed Charge Coverage Ratio ” means, as of any date of determination, subject to Section 1.02(l) , the ratio of (a) Consolidated Adjusted EBITDA for the period consisting of the four consecutive Fiscal Periods ending on such date; to (b) Consolidated Fixed Charges for the period consisting of the four consecutive Fiscal Periods ending on such date.

 

“ Consolidated Fixed Charges ” means, for any period, for Borrower and its Subsidiaries on a consolidated basis, an amount equal to the sum of (i) Consolidated Tax Expenses for such period plus (ii) Consolidated Interest Expense for such period plus (iii) Consolidated Scheduled Funded Debt Payments for such period plus (iv) the amount of cash Restricted Payments permitted by Section 7.06(d)  made during such period, all as determined in accordance with GAAP.

 

“ Consolidated Interest Expense ” means, for any period, for Borrower and its Subsidiaries on a consolidated basis, the sum of (without duplication):  (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with Debt (including capitalized interest) during such period; plus (b) all payments made under interest rate Swap Contracts during such period to the extent not included in clause (a) of this definition; minus (c) all payments received under interest rate Swap Contracts during such period; plus (d) the portion of rent expense with respect to such period under

 

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capital leases that is treated as interest in accordance with GAAP; plus (e) the Synthetic Lease Interest Component with respect to such period.

 

“ Consolidated Leverage Ratio ” means, as of any date of determination, subject to Section 1.02(l) , the ratio of:  (a) Consolidated Total Debt; to (b) Consolidated EBITDA for the period consisting of the four consecutive Fiscal Periods ending on such date.

 

“ Consolidated Scheduled Funded Debt Payments ” means for any period for Borrower and its Subsidiaries on a consolidated basis, the sum of all scheduled payments of principal on Consolidated Total Debt, as determined in accordance with GAAP.  For purposes of this definition, “scheduled payments of principal” (a) shall be determined without giving effect to any reduction of such scheduled payments resulting from the application of any voluntary or mandatory prepayments made during the applicable period, (b) shall be deemed to include the Attributable Debt in respect of capital leases, securitization transactions and Synthetic Lease Obligations and (c) shall not include any voluntary prepayments or mandatory prepayments required pursuant to Section 2.05 .  Notwithstanding the foregoing, for purposes of calculating Consolidated Scheduled Funded Debt Payments as of September 30, 2008, December 31, 2008, March 31, 2009, June 30, 2009 and September 30, 2009, scheduled payments of principal with respect to the Term Loan for each of the four fiscal quarter periods ending September 30, 2008, December 31, 2008, March 31, 2009, June 30, 2009 and September 30, 2009 shall be deemed to be $10,000,000.

 

“ Consolidated Tax Expenses ” means, for any period, for Borrower and its Subsidiaries on a consolidated basis, the aggregate of all income taxes, as determined in accordance with GAAP.

 

“ Consolidated Total Debt ” means, as of any date of determination, the aggregate principal amount of all Debt of Borrower and its Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP, provided , it being understood that the following does not constitute Debt for purposes of this definition:  (a) Debt under Swap Agreements, (b) surety and performance bonds permitted under Section 7.03(i) , (c) any Debt under the IBM Credit Agreement but only to the extent that (i) such Debt is repaid within the earlier of (x) forty-five days of incurrence and (y) the due date therefor, (ii) the equipment purchased that gave rise to the incurrence of such Debt is subject to a valid, binding and enforceable purchase contract requiring a third party purchaser to purchase such equipment within 45 days of such incurrence and (iii) the obligations of the purchaser under such purchase contract are absolute and not contingent on any matter whatsoever (other than cancellation rights of such purchaser in the ordinary course, but only if, under such circumstances, Borrower shall have an absolute and unconditional right to cancel (and shall promptly so cancel) the affected order or return the affected equipment in each case for full credit against the Debt associated therewith).

 

“ Contingent Obligations ” has the meaning ascribed thereto in the definition of “ Debt ” contained herein.

 

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

 

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

 

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

 

“ Debt ” means, as to any Person as of any date of determination, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:  (a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) all direct or contingent obligations of such Person arising under letters of credit, bankers’ acceptances, bank guaranties, surety bonds and similar instruments; (c) net obligations of such Person under any Swap Contract; (d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business not past due for more than sixty days unless being contested in good faith) including, without limitation, any Earn Out Obligations recognized as a liability on the balance sheet of Borrower and its Subsidiaries in accordance with GAAP; (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse; (f) all Attributable Debt; (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and (h) all Guarantees of such Person in respect of any of the foregoing (collectively, “ Contingent Obligations ”).  For all purposes hereof, the Debt of any Person shall include the Debt of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Debt is expressly made non-recourse to such Person.  The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.

 

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

 

“ Default Rate ” means:  (a) when used with respect to Obligations other than L/C Fees, a per annum interest rate equal to the sum of:  (i) the Base Rate; plus (ii) the Applicable Rate applicable to Base Rate Loans; plus (iii) two hundred basis points per annum; provided that, with respect to a Eurodollar Rate Loan, the Default Rate shall be a per annum interest rate equal to the sum of:  (A) the interest rate (including any Applicable Rate) otherwise applicable to such Eurodollar Rate Loan; plus (B) two hundred basis points per annum; and (b) when used with respect to L/C Fees, a per annum interest rate equal to the sum of (i) the Applicable Rate applicable to L/C Fees plus (ii) two hundred basis points per annum.

 

“ Defaulting Lender ” means any Lender that:  (a) has failed to fund any portion of the Loans, any participations in L/C Obligations or any participations in Swing Line Loans required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder; has otherwise failed to pay to Administrative Agent or any Lending Party, as the case may be, any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute; or (c) has been deemed insolvent or become the subject of a proceeding under any Bankruptcy Law.

 

“ Disposition ” means the sale, assignment transfer, conveyance, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer, conveyance or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.  The term “ Dispose ” has a meaning correlative thereto.

 

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

 

“ Domestic Subsidiary ” means each direct or indirect Subsidiary which is organized under the laws of the United States or any state thereof.

 

“ Earn Out Obligations ” means, with respect to an Acquisition, all obligations of Borrower or any Subsidiary to make earn out or other contingency payments (including purchase price adjustments, non-competition and consulting agreements, or other indemnity obligations) pursuant to the documentation relating to such Acquisition.  The amount of any Earn Out Obligations at the time of determination shall be the aggregate amount, if any, of such Earn Out Obligations that are required at such time under GAAP to be recognized as liabilities on the consolidated balance sheet of Borrower.

 

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

 

“ Environmental Claims ” means all claims, however asserted, by any Governmental Authority or other Person alleging Environmental Liabilities.

 

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

 

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

 

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

 

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

 

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

 

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“ ERISA Event ” means any of the following:  (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 400 1(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition that constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Borrower or any ERISA Affiliate.

 

“ Eurodollar Rate ” means,

 

(a)                                   for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum obtained by dividing: (i) either (x) equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.  If such rate is not available at such time for any reason, then the “Eurodollar Rate” for such Interest Period shall be the rate per annum determined by Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period by (b) the sum of:  (i) one; minus (ii) the stated maximum rate (rounded upwards, as necessary, to the nearest one-one hundredth of one percent), as in effect on the date of the determination of any “ Eurodollar Rate ” in accordance with clause (i) of this definition, of all reserve requirements (including any marginal, emergency, supplemental, special or other reserves) applicable on such date to any member bank of the Federal Reserve System in respect of “Eurocurrency liabilities” as defined in Regulation D (or any successor category of liabilities under Regulation D) of the FRB as in effect on such day, whether or not applicable to any Lending Party; and

 

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

 

Each determination by Administrative Agent pursuant to this definition shall be conclusive absent manifest error.

 

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“ Eurodollar Rate Loan ” means a Loan that bears interest based upon the Eurodollar Rate.

 

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

 

“ Event of Loss ” means, with respect to any property, any of the following:  (a) any loss, destruction or damage of such property; or (b) any actual condemnation, seizure or taking, by exercise of the power of eminent domain or otherwise, of such property, or confiscation of such property or the requisition of the use of such property.

 

“ Exchange Act ” means the Securities Exchange Act of 1934.

 

“ Excluded Property ” means, with respect to any Loan Party, including any Person that becomes a Loan Party after the Closing Date as contemplated by Section 6.13 , (a) any owned or leased real or personal property which is located outside of the United States, (b) any personal property (including, without limitation, motor vehicles) in respect of which perfection of a Lien is not either (i) governed by the Uniform Commercial Code or (ii) effected by appropriate evidence of the Lien being filed in either the United States Copyright Office or the United States Patent and Trademark Office, (c) the Equity Interests of any direct Foreign Subsidiary of a Loan Party to the extent not required to be pledged to secure the Obligations pursuant to Section 6.13 , (d) any property which, subject to the terms of Section 7.09 , is subject to a Lien of the type described in Section 7.01(i)  pursuant to documents which prohibit such Loan Party from granting any other Liens in such property and (e) any leasehold interest of any Loan Party in office space.

 

“ Excluded Taxes ” means, with respect to Administrative Agent, any Lending Party or any other recipient of any payment to be made by or on account of any obligation of Borrower or any Guarantor hereunder or under any Loan Document:  (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lending Party, in which its applicable Lending Office is located; and (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which Borrower or any Guarantor is located.

 

“ Exempt Foreign Subsidiary ” means each Foreign Subsidiary that (a) is treated as a partnership under the IRC or (b) is not treated as an entity that is separate from (A) Borrower; (B) any Person that is treated as a partnership under the IRC; or (C) any “United States person” (as defined in section 770 1(a)(30) of the IRC).

 

“ Existing Credit Agreement ” means that certain Credit Agreement dated as of February 11, 2008 by and among Borrower, Subsidiary Guarantors, the lenders party thereto and Wells Fargo, as administrative agent, as amended.

 

“ Existing Guaranteed Obligations ” has the meaning ascribed thereto in Section 10.14(j) .

 

“ Extraordinary Receipts ” means, with respect to any Person, any cash received by or paid to or for the account of such Person not in the ordinary course of business, including pension plan reversions, proceeds of insurance (other than proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings and proceeds of from an Event of Loss), indemnity payments and any purchase price adjustments; provided , however , that an Extraordinary Receipt shall not include (a) tax refunds or (b) cash receipts from proceeds of insurance or indemnity payments to the extent that such proceeds, awards or payments are received by any Person in respect of any third party claim against

 

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such Person and applied to pay (or to reimburse such Person for its prior payment of) such claim and the costs and expenses of such Person with respect thereto.

 

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

 

“ Fee Letter ” means the letter agreement, dated August 17, 2009, among Borrower, Administrative Agent and Arranger.

 

“ Fiscal Period ” means, as of any date of determination with respect to Borrower or any Subsidiary thereof, each fiscal quarter occurring during each of Borrower’s fiscal years.

 

“ Foreign Subsidiary ” shall mean each direct or indirect Subsidiary which is organized in a jurisdiction other than the United States of America or any state thereof.

 

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

 

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

 

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

 

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

 

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

 

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obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part).  The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.  The term “ Guarantee ” as a verb has a corresponding meaning.

 

“ Guaranteed Obligations ” has the meaning ascribed thereto in Section 10.14(a) .

 

“ Guarantor ” means, collectively: (a) each Subsidiary Guarantor (including each Subsidiary of Borrower who executes a Joinder Agreement following the date hereof); and (b) each other Person who, following the date hereof, is required pursuant to the terms hereof to be a guarantor of the Obligations.

 

“ Guaranty ” means any guaranty, in form and substance acceptable to Administrative Agent, made by a Guarantor in favor of Administrative Agent and for the benefit of Administrative Agent and Lending Parties and includes the guaranty set forth in Section 10.14 .

 

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

 

“ Hedging Obligations ” means, with respect to any Loan Party, all liabilities of such Loan Party under Swap Contracts entered into with any Lender or an Affiliate of any Lender.

 

“ Honor Date ” has the meaning ascribed thereto in Section 2.03(c)(i) .

 

“ IBM Credit Agreement ” means that certain Agreement for Wholesale Financing, dated March 9, 2004, between IBM Credit LLC and Borrower, as amended on or prior to the Closing Date and as amended after the date hereof as permitted hereby.

 

“ Immaterial Subsidiary ” means, on any date of determination, a Subsidiary having (a) total assets with an aggregate book value of less than $1,000,000.00 on such date and (b) annual revenue of less than $1,000,000.00 on such date.

 

“ Impacted Lender ” means any Lender as to which (a) L/C Issuer has a good faith belief that such Lender has defaulted in fulfilling its obligations under one or more other syndicated credit facilities or (b) an entity that controls such Lender has been deemed insolvent or has become subject to a bankruptcy or other similar proceeding.

 

“ Indemnified Taxes ” means Taxes other than Excluded Taxes.

 

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

 

“ Intellectual Property Rights ” has the meaning ascribed thereto in Section 5.15 .

 

“ Interest Payment Date ” means:  (a) with respect to:  (i) a Eurodollar Rate Loan, the last day of each Interest Period applicable thereto; provided that, if any such Interest Period exceeds three months, the date that falls three months after the beginning of such Interest Period shall also be an Interest Payment Date; (ii) a Base Rate Loan (other than a Swing Line Loan), the last Business Day of each calendar quarter; and (iii) a Swing Line Loan, the last Business Day of each calendar month; and (b) in

 

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the case of all Loans, the Maturity Date.

 

“ Interest Period ” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, three or six months thereafter, as selected by Borrower in its related Loan Notice; provided that:  (a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day; (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and (c) no Interest Period for any Loan shall extend beyond the Maturity Date.

 

“ Investment ” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of:  (a) the purchase or other acquisition of capital stock or other securities of another Person; (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Debt of such other Person; or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit.  For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

 

“ IRS ” means the United States Internal Revenue Service.

 

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

 

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

 

“ Joinder Agreement ” means an agreement entered into by a Subsidiary of Borrower following the date hereof to join in the Guaranty set forth in Section 10.14 , in substantially the form of Exhibit C or any other form approved by Administrative Agent.

 

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

 

“ L/C Advance ” means a Lender’s funding of its participation in an L/C Borrowing in accordance with its Applicable Percentage.

 

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

 

“ L/C Borrowing ” means an extension of credit resulting from a drawing under any Letter of

 

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Credit that has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing.

 

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

 

“ L/C Expiration Date ” means the day that is ten days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).

 

“ L/C Fee ” has the meaning ascribed thereto in Section 2.03(i) .

 

“ L/C Issuer ” means (a) Bank of America and/or (b) any other Lender from time to time designated by Borrower as an L/C Issuer with the consent of such Lender and Administrative Agent, in each case in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.  In the event that there is more than one L/C Issuer at any time, references herein and in the other Loan Documents to the L/C Issuer shall be deemed to refer to the L/C Issuer in respect of the applicable Letter of Credit or to all L/C Issuers, as the context requires.

 

“ L/C Obligations ” means, at any time, the sum of:  (a) the aggregate amount available to be drawn under all outstanding Letters of Credit; plus (b) the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.  For all purposes of this Agreement, if at any time of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in an amount equal to the amount remaining available to be drawn.

 

“ L/C Sublimit ” means an amount equal to $15,000,000.00.  The L/C Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitments.

 

“ Lender ” has the meaning ascribed thereto in the preamble hereto.  On the Closing Date, Lenders are designated on Schedule 2.01 .

 

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

 

“ Lending Parties ” means, collectively, Lenders, Swing Line Lender and L/C Issuer.

 

“ Letter of Credit ” means any standby letter of credit issued hereunder.

 

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

 

“ Loan ” means any Revolving Credit Loan, Term Loan and/or Swing Line Loan.

 

“ Loan Documents ” means, collectively, this Agreement, each Note, each Issuer Document, each Subordination Agreement, each Collateral Document, and the Fee Letter.

 

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

 

“ Loan Parties ” means, collectively, Borrower and all Guarantors.

 

“ Margin Stock ” has the meaning ascribed thereto in Regulation U of the FRB.

 

“ Material Adverse Effect ” means any of the following:  (a) a material adverse change in, or material adverse effect upon, the business, condition (financial or otherwise), operations, performance, properties, assets or liabilities (actual or contingent) of the Loan Parties taken as a whole; (b) a material impairment of the ability of either:  (i) Borrower; or (ii) the Loan Parties taken as a whole, to perform their respective obligations under the Loan Documents; (c) a material adverse effect upon:  (i) the legality, validity, binding effect or enforceability of any Loan Document against either:  (A) Borrower; or (B) the Loan Parties taken as a whole; or (ii) the rights and remedies of Administrative Agent or any Lending Party under or in respect of any Loan Document; or (d) a material adverse change in the attachment, perfection or priority of Administrative Agent’s or any Lender’s security interest in the Collateral.

 

“ Maturity Date ” means August 20, 2012; provided , however , that if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.

 

“ Maximum Rate ” has the meaning ascribed thereto in Section 10.09 .

 

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

 

“ Net Proceeds ” means, (i) in respect of any Disposition or Event of Loss, the proceeds in cash or Cash Equivalents received by any Loan Party with respect to or on account of such Disposition or Event of Loss, net of:  (a) in the case of a Disposition, the direct costs of such Disposition payable or reasonably anticipated to be payable by the recipient of such proceeds, or, in the case of an Event of Loss, the direct costs of collecting insurance or other proceeds, in each case excluding amounts payable to Borrower or any Affiliate of Borrower; (b) sales, use and other taxes paid or payable by such recipient as a result thereof; and (c) amounts required to be applied to repay principal, interest and prepayment premiums and penalties on Debt secured by a Permitted Lien on the properties subject to such Disposition; (ii) with respect to any issuance or incurrence of any Debt by any Loan Party, the proceeds in cash or Cash Equivalents received by any Loan Party with respect to or on account of such issuance or incurrence less the sum of (a) the actual amount of the fees and commissions payable to Persons other than Borrower or any Affiliate of Borrower, (b) legal expenses and (c) other costs and expenses, in each case directly related to such issuance or incurrence that are to be paid by such Loan Party; and (iii) with respect to any issuance of Equity Interests by any Loan Party, the proceeds in cash or Cash Equivalents received by any Loan Party with respect to or on account of such issuance, less the sum of (a) the actual amount of the fees and commissions payable to Persons other than Borrower or any Affiliate of Borrower, (b) legal expenses and (c) other costs and expenses, in each case directly related to such issuance that are to be paid by such Loan Party.

 

“ Note ” means any promissory note executed by Borrower in favor of a Lender pursuant to Section 2.11 in substantially the form of Exhibit E .

 

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“ Obligations ” means all advances, debts, liabilities, obligations, covenants and duties owing by any Loan Party to Administrative Agent or any Lending Party, as well as all Hedging Obligations and Cash Management Obligations; in each case under or in respect of any Loan Document or otherwise, whether with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Bankruptcy Law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

 

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

 

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

 

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

 

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

 

“ PBGC ” means the Pension Benefit Guaranty Corporation.

 

“ Pension Plan ” means any “employee pension benefit plan” (as that term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by Borrower or any ERISA Affiliate or to which Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.

 

“ Permitted Acquisition ” means any Acquisition so long as:  (a) such Acquisition is undertaken in all material respects in accordance with all applicable Laws; (b) immediately prior to and immediately after giving effect to such Acquisition, there does not exist a Default; (c) such Acquisition is approved by the board of directors or equivalent governing body of the Person or business so acquired (the “ Acquiree ”); (d) after giving effect to such Acquisition, Borrower will be in compliance with the requirements of Section 7.04(a) ; (e) immediately after giving effect to such Acquisition, the Available Revolving Credit Commitment is equal to or greater than $5,000,000.00; (f) such Acquisition complies with the conditions set forth in Section 7.03(e) ; (g) Administrative Agent shall receive all items in respect

 

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of the Equity Interests or property acquired in such Acquisition in accordance with the terms of Section 6.13 , (h) the representations and warranties made by the Loan Parties in each Loan Document shall be true and correct in all material respects at and as if made as of the date of such Acquisition (after giving effect thereto) except to the extent such representations and warranties expressly relate to an earlier date, (i) the aggregate consideration (excluding any equity consideration (including the use of Net Proceeds from the issuance of any Equity Interests in accordance with Section 2.05(b)(vii) ) or consideration paid with the proceeds of Permitted Subordinated Debt) paid for all Acquisitions shall not exceed (x) $5,000,000 in any fiscal year; provided that such amount for the succeeding fiscal year may be increased by the unused portion from a prior fiscal year and (y) $15,000,000 during the term of this Agreement, (j) with respect to any Acquisition by any Person that is not a Loan Party, no cash or Cash Equivalents of Borrower or any Loan Party shall be used (directly or indirectly) to consummate such Acquisition, (k) (i) upon the closing of any Acquisition by a Loan Party, a Responsible Officer of Borrower shall deliver a certificate to Administrative Agent (x) to the effect that each of clauses (a) through (i), inclusive (as applicable), of this definition has been satisfied; (y) after giving effect to such Acquisition in accordance with Section 1.02(l) , Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.12 as of the most recent fiscal quarter end for which financial statements have been delivered by Borrower pursuant to Section 6.01(a)  or (b)  (including after giving effect to any Debt assumed in connection with such Acquisition pursuant to Section 7.03(e) ); and (z) certifying that the Consolidated Leverage Ratio after giving effect to such Acquisition is less than 2.00 : 1:00 on a pro forma basis (computed in accordance with Section 1.02(l)) as of the most recent fiscal quarter end for which financial statements have been delivered by Borrower pursuant to Section 6.01(a)  or (b)  and (ii) upon the closing of any Acquisition by a Person that is not a Loan Party, a Responsible Officer of Borrower shall deliver a certificate to Administrative Agent (x) to the effect that each of clauses (a) through (j), inclusive (as applicable), of this definition has been satisfied; and (y) after giving effect to such Acquisition in accordance with Section 1.02(l) , Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.12 (including after giving effect to any Debt assumed in connection with such Acquisition pursuant to Section 7.03(e) ).  For purposes of computing the aggregate non-cash consideration payable with respect to this definition, any consideration in the form of common shares of Equity Interests of Borrower and any consideration paid with the proceeds of Permitted Subordinated Debt shall be excluded.

 

“ Permitted Foreign Subsidiary Debt ” has the meaning ascribed thereto in Section 7.03(j) .

 

“ Permitted Liens ” has the meaning ascribed thereto in Section 7.01 .

 

“ Permitted Subordinated Debt ” means, any Debt that has been subordinated to the Obligations on terms and conditions, and pursuant to documents, satisfactory to Administrative Agent and Required Lenders; provided that in connection with any incurrence of Permitted Subordinated Debt after the Closing Date:  (a) upon the incurrence of such Permitted Subordinated Debt, a Responsible Officer of Borrower shall deliver a certificate to Administrative Agent and Lenders detailing that, after giving effect to such incurrence, Borrower shall be in pro forma compliance with all financial covenants set forth in Section 6.12 ; (b) the Permitted Subordinated Debt shall not contain (i) any covenants (or defaults having the same effect as a covenant) or (ii) any cross-default provisions to the Loan Documents; (c) the other terms of such Permitted Subordinated Debt taken as a whole shall not be more restrictive than those set forth herein; (d) the lender extending such Permitted Subordinated Debt is not an Affiliate of Borrower; (e) the terms of such Permitted Subordinated Debt shall not require any principal payments, redemption, amortization, prepayments, repurchases or defeasance prior to ninety-one (91) days after the Maturity Date; (f) such Permitted Subordinated Debt shall be unsecured; and (g) Borrower shall comply with Section 2.05(b)  with respect to such incurrence.

 

“ Person ” means any natural person, corporation, limited liability company, trust, joint venture,

 

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association, company, partnership, Governmental Authority or other entity.

 

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

 

“ Prime Rate ” means the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate.”  The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

 

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

 

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

 

“ Replacement Lender ” has the meaning ascribed thereto in Section 3.07(a) .

 

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

 

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

 

“ Required Lenders ” means, at any time:  (a) Lenders holding in excess of fifty percent of the unfunded Commitments, the outstanding Loans, L/C Obligations and participations therein; or (b) if there the Commitments have been terminated, Lenders holding in excess of fifty percent of the outstanding Loans, L/C Obligations and participations therein; provided that the unfunded Commitments of, and the portion of the outstanding Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

 

“ Responsible Officer ” means:  (a) with respect to Borrower in connection with any Request for Credit Extension, any Compliance Certificate or any other certificate or notice pertaining to any financial information required to be delivery by Borrower hereunder, the chief financial officer or treasurer of Borrower; and (b) otherwise, with respect to Borrower or any other Loan Party, the chief executive officer, president, chief financial officer, treasurer, controller or chief accounting officer of such Person.  Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

 

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

 

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

 

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

 

“ Revolving Credit Loan ” has the meaning ascribed thereto in Section 2.01(a) .

 

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

 

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

 

“ Security Documents ” means, collectively:  (a) the Security and Pledge Agreement, dated as of the Closing Date, executed by the Loan Parties in favor of Administrative Agent; and (b) any similar document executed thereafter pursuant to the terms hereof or otherwise in connection herewith after the Closing Date.

 

“ Solvent ” means, as to any Person at any time, that:  (a) the fair value of the property of such Person on a going concern basis is greater than the amount of such Person’s liabilities (including contingent liabilities), as such value is established and such liabilities are evaluated for purposes of Section 10 1(32) of the Bankruptcy Code and, in the alternative, for purposes of the New York Uniform Fraudulent Conveyance Act or any similar state statute applicable to Borrower or any Subsidiary thereof; the present fair salable value of the property of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured; such Person is able to realize upon its property and pay its debts and other liabilities (including contingent liabilities) as they mature in the normal course of business; (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature; and (e) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute unreasonably small capital.

 

“ Specified Lender ” means, at any time, any Lender:  (a) that has requested compensation under Section 3.04 and has not rescinded such request within five Business Days of the making thereof; (b) to whom Borrower must pay an additional amount (or on whose behalf Borrower must pay an additional amount to a Governmental Authority) pursuant to Section 3.01 ; (c) that gives a notice pursuant to Section 3.02 ; (d) that is a Defaulting Lender; or (e) that is a Lender that may, but does not, provide its consent to any matter as to which Required Lenders may give and have given their consent pursuant to Section 10.01 ; or (f) that is the sole Lender that may but does not provide its consent to any matter as to which all other Lenders may give and have given their consent pursuant to Section 10.01 .

 

“ Subordination Agreements ” means one or more Subordination Agreements entered into in connection with Permitted Subordinated Debt.

 

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

 

“ Subsidiary Guarantor ” has the meaning ascribed thereto in Section 10.14(a) .

 

“ Subsidiary Guarantor Subordinated Debt ” has the meaning ascribed thereto in Section 10.14(i) .

 

“ Subsidiary Guarantor Subordinated Debt Payments ” has the meaning ascribed thereto in Section 10.14(i) .

 

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

 

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

 

“ Swing Line ” means the revolving credit facility made available by Swing Line Lender pursuant to Section 2.04 .

 

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

 

“ Swing Line Lender ” means, at any time, the provider of the Swing Line hereunder (which, initially, shall be Bank of America).

 

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

 

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

 

“ Swing Line Loan Notice ” means a notice of a Swing Line Borrowing pursuant to

 

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Section 2.04(b) , which, if in writing, shall be substantially in the form of Exhibit F .

 

“ Swing Line Sublimit ” means an amount equal to the lesser of:  (a) $15,000,000.00; and (b) the Aggregate Revolving Credit Commitments.  The Swing Line Sublimit is a part of, but is not in addition to, the Aggregate Revolving Credit Commitments.

 

“ Synthetic Lease Interest Component ” means, with respect to any Person for any period, the portion of rent paid or payable (without duplication) for such period under Synthetic Leases of such Person that would be treated as interest in accordance with Financial Accounting Standards Board Statement No. 13 if such Synthetic Leases were treated as capital leases under GAAP.

 

“ Synthetic Lease Obligation ” means the monetary obligation of a Person under either:  (a) a so-called synthetic, off-balance sheet or tax retention lease; or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

 

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

 

“ Term Loan ” means the term loan made by Lenders on the Closing Date pursuant to Section 2.01(b)  and the term loans made by Lenders pursuant to Section 2.02(h)(ii) .

 

“ Term Loan Commitment ” means, as to each Lender, its obligation to make its portion of the Term Loan to Borrower, in the principal amount set forth opposite such Lender’s name on Schedule 2.01 , as such obligation may be increased in the sole discretion of such Lender pursuant to Section 2.02(h)(ii) . The aggregate principal amount of the Term Loan Commitments of all of Lenders as in effect on the Closing Date is FIFTY MILLION DOLLARS ($50,000,000).

 

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

 

“ Threshold Amount ” means $7,500,000.00.

 

“ Total Revolving Credit Outstandings ” means, at any time, the sum of:  (a) the aggregate Outstanding Amount of all Revolving Credit Loans; plus (b) the Outstanding Amount of all L/C Obligations; plus (c) the Outstanding Amount of all Swing Line Loans.

 

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

 

“ Uniform Commercial Code ” means the Uniform Commercial Code as in effect in any applicable jurisdiction.

 

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

 

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

 

“ Wells Fargo ” means Wells Fargo Bank, National Association, a national banking association.

 

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Section 1.02                             Certain Rules Of Construction .

 

(a)                                   Unless the context requires otherwise, the meaning of a defined term is applicable equally to the singular and plural forms thereof.

 

(b)                                  The words “ hereof ,” “ herein ,” “ hereunder ” and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement; and, unless otherwise specified, Article, Section, subsection, clause, Schedule and Exhibit references are to this Agreement. „!

 

(c)                                   (i)                                      The term “ documents ” includes instruments, documents, agreements, certificates, indentures, notices and other writings, however evidenced.

 

(ii)                                   The terms “ include ” and “ including ” are not limiting.

 

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

 

(iv)                               Unless the context clearly requires otherwise, the terms “ property ,” “ properties ,” “ asset ” and “ assets ” refer to both personal property (whether tangible or intangible) and real property.

 

(d)                                  Unless otherwise expressly provided herein:  (i) references to documents (including this Agreement) shall be deemed to include all subsequent amendments and other modifications thereto, but only to the extent such amendments and other modifications are not prohibited by the terms of any Loan Document; and (ii) references to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting the statute or regulation.

 

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

 

(f)                                     The captions and headings of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.

 

(g)                                  This Agreement and the other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters.  All such limitations, tests and measurements are cumulative and shall be performed in accordance with their respective terms.

 

(h)                                  This Agreement and the other Loan Documents are the result of negotiations among, and have been reviewed by counsel to, the Loan Parties, Administrative Agent and Lending Parties and are the products of all parties.  Accordingly, they shall not be construed against Administrative Agent or any Lending Party merely because of the involvement of any or all of the preceding Persons in their preparation.

 

(i)                                      Unless the context otherwise clearly requires, all accounting terms not expressly defined herein shall be construed, and all financial computations required under this Agreement shall be made, in accordance with GAAP.  If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either Borrower or Required Lenders shall so request, Administrative Agent, Lending Parties and

 

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

 

(j)                                      References herein to “ fiscal year ” refer to the fiscal year of Borrower.

 

(k)                                   Any financial ratios required to be maintained by the Loan Parties or any of them pursuant to the Loan Documents shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number using the common – or symmetric arithmetic – method of rounding (in other words, rounding-up if there is no nearest number).

 

(l)                                      For purposes of computing the financial covenants set forth in Section 6.12 as of any date, all components of such ratios shall include or exclude, as the case may be, for the period consisting of the four Fiscal Periods ending on such date all financial results (without duplication of amounts) attributable to any business or assets the subject of any Acquisition or Disposition by Borrower or any Subsidiary thereof effected during such period, as determined in good faith by Borrower on a pro forma basis for such period as if such Acquisition or Disposition had occurred (and any Debt incurred or repaid in connection therewith had been incurred and repaid, as the case may be) on (in the case of any balance sheet item) the last day of such period or on (in the case of any other item) the first day of such period (including cost savings reasonably projected by Borrower that would have been realized had such Acquisition occurred on such day and which inclusion when not otherwise permitted under GAAP has been approved by Required Lenders).

 

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

 

ARTICLE II

 

CREDIT EXTENSIONS

 

Section 2.01                             Loans .

 

(a)                                   Revolving Credit Loans .  Subject to the terms and conditions set forth herein; each Lender severally agrees to make loans (each such loan, a “ Revolving Credit Loan ”) to Borrower, from time to time on any Business Day during the Availability Period, in an aggregate outstanding amount not to exceed at any time such Lender’s Revolving Credit Commitment, provided that, after giving effect to any Revolving Credit Borrowing:  (a) the Total Revolving Credit Outstandings shall not exceed the Aggregate Revolving Credit Commitments; and (b) the aggregate Outstanding Amount of the Revolving

 

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Credit Loans of any Lender, plus such Lender’s Applicable Percentage multiplied by the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage multiplied by the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit Commitment.  Within the limits of each Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, Borrower may borrow under this Section 2.01(a) , prepay under Section 2.05 , and reborrow under this Section 2.01(a) .  Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.

 

(b)                                  Term Loan .  Subject to the terms and conditions set forth herein, each Lender severally agrees to make its portion of the Term Loan to Borrower in Dollars on the Closing Date in an amount not to exceed such Lender’s Term Loan Commitment.  Amounts repaid on the Term Loan may not be reborrowed.  The Term Loan may consist of Base Rate Loans or Eurodollar Rate Loans or a combination thereof, as further provided herein, provided , however , all Borrowings made on the Closing Date shall be made as Base Rate Loans.

 

Section 2.02                             Procedures For Borrowing .

 

(a)                                   Each Borrowing (other than a Swing Line Borrowing), each conversion of Loans from one Type to the other and each continuation of Eurodollar Rate Loans shall be made upon Borrower’s irrevocable notice to Administrative Agent, which may, subject to the provisions of Section 10.02(b)  and Section 10.02(d) , be given by telephone or by approved electronic communication.  Each such notice must be received by Administrative Agent not later than 11:00 a.m.: (i) three Business Days prior to the requested date of any Borrowing (other than a Swing Line Borrowing) of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans; and (ii) one Business Day prior to the requested date of any Borrowing (other than a Swing Line Borrowing) of Base Rate Loans.  Notwithstanding anything to the contrary contained herein, but subject to the provisions of Section 10.02(b)  and Section 10.02(d) , any telephonic notice or other electronic communication by Borrower pursuant to this Section 2.02(a)  may be given by an individual who has been authorized in writing to do so by an appropriate Responsible Officer of Borrower.  Each such telephonic notice or other electronic communication must be confirmed promptly by delivery to Administrative Agent of a written Loan Notice, appropriately completed and signed by an appropriate Responsible Officer of Borrower.

 

(b)                                  Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $1,000,000.00 or a whole multiple of $1,000,000.00 in excess thereof.  Except as provided in Sections 2.03(c)  and Section 2.04(c) , each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000.00 or a whole multiple of $100,000.00 in excess thereof.

 

(c)                                   Each Loan Notice (whether telephonic or written) shall specify:  (i) whether Borrower is requesting:  (A) a Borrowing; (B) a conversion of outstanding Loans from one Type to the other; or (C) a continuation of Eurodollar Rate Loans; (ii) the requested date of such Borrowing, conversion or continuation, as the case may be (which shall be a Business Day); (iii) the principal amount of the Loans to be borrowed, converted or continued; (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted; and (v) if applicable, the duration of the Interest Period with respect thereto.  If Borrower fails to specify a Type of Loan in a Loan Notice or if Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loan(s) shall be made as, or converted to, Base Rate Loans.  Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in

 

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

 

(d)                                  Following receipt of a Loan Notice, Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the requested Loans.  If Borrower does not timely provide notice of a conversion or continuation, then Administrative Agent shall notify each applicable Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection.  Each Lender shall make the amount of its applicable Loan available to Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 11:00 a.m.  on the Business Day specified in the applicable Loan Notice.  Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01 ), Administrative Agent shall make all funds so received available to Borrower in like funds as received by Administrative Agent either by:  (i) crediting the account of Borrower on the books of Bank of America with the amount of such funds; or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) Administrative Agent by Borrower; provided that, if, on the date the Loan Notice with respect to such Borrowing is given by Borrower, there are L/C Borrowings outstanding, then the proceeds of such Borrowing shall be applied, first , to the payment in full of any such L/C Borrowings and, second , to Borrower as provided in this subsection.

 

(e)                                   Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan.  During the existence of an Event of Default:  (i) no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of Required Lenders; and (ii) Required Lenders may demand that any or all of the then outstanding Loans that are Eurodollar Rate Loans be converted immediately to Base Rate Loans, whereupon Borrower shall pay any amounts due under Section 3.05 in accordance with the terms thereof due to any such conversion.

 

(f)                                     Administrative Agent shall promptly notify Borrower and the applicable Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate.

 

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

 

(h)                                  Borrower may at any time and from time to time, upon prior written notice by Borrower to Administrative Agent, increase the Commitments (but not the L/C Sublimit or the Swing Line Sublimit) by a maximum aggregate amount of up to TWENTY-FIVE MILLION DOLLARS ($25,000,000) as follows:

 

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

 

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(A)                               any such increase shall be in a minimum principal amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof;

 

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

 

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

 

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

 

(E)                                  as a condition precedent to such increase, Borrower shall deliver to Administrative Agent a certificate of each Loan Party dated as of the date of such increase (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (1) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (2) in the case of Borrower, certifying that, before and after giving effect to such increase, (x) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.02(h) , the representations and warranties contained in subsections (a) and (b) of Section 5.11 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 , and (y) no Default or Event of Default exists.

 

Borrower shall prepay any Loans owing by it and outstanding on the date of any such increase (and pay any additional amounts required pursuant to Section 3.05 ) to the extent necessary to keep the outstanding Loans ratable with any revised Commitments arising from any nonratable increase in the Commitments under this Section.

 

(ii)                                   Increase of Term Loan .  Borrower may, at any time, upon prior written notice to Administrative Agent, request an increase to the Term Loan with additional Term Loan Commitments from existing Lenders or other Persons selected by Borrower (other than Borrower or any Affiliate or Subsidiary of Borrower) and reasonably acceptable to Administrative Agent; provided that

 

(A)                               any such increase shall be in a minimum aggregate principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof;

 

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

 

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

 

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

 

(E)                                  upon giving effect to such increase on a pro forma basis, a Responsible Officer of Borrower shall deliver a certificate to Administrative Agent certifying that after giving effect to such increase, Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.12 ; and

 

(F)                                  as a condition precedent to such increase, Borrower shall deliver to Administrative Agent a certificate of each Loan Party dated as of the date of such institution and effectiveness (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (1) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (2) in the case of Borrower, certifying that, before and after giving effect to the increase, (x) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.02(f) , the representations and warranties contained in subsections (a) and (b) of Section 5.11 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 , and (y) no Default or Event of Default exists.

 

Section 2.03                             Letters Of Credit .

 

(a)                                   The Letter of Credit Subfacility .

 

(i)                                      Subject to the terms and conditions set forth herein, (A) L/C Issuer agrees, in reliance upon the agreements of Lenders set forth in this Section 2.03 , (1) from time to time on any Business Day during the period from the Closing Date until the L/C Expiration Date, to issue Letters of Credit denominated in Dollars for the account of Borrower or any of its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) Lenders severally agree to participate in Letters of Credit issued for the account of Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Credit Commitments, (y) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus an amount equal to such Lender’s Applicable Percentage multiplied by the Outstanding Amount of all L/C Obligations plus an amount equal to such Lender’s Applicable Percentage multiplied by the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit Commitment and (z) the Outstanding Amount of the L/C Obligations shall not exceed the L/C Sublimit.  Each request by Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by Borrower that the requested L/C Credit Extension complies with the conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to the terms and conditions hereof, Borrower’s ability to obtain Letters of Credit shall be fully revolving, and, accordingly, Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.

 

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

 

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

 

(B)                                 the expiry date of such requested Letter of Credit would occur after the L/C Expiration Date, unless all Lenders have approved such expiry date.

 

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

 

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

 

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

 

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

 

(D)                                such Letter of Credit is (1) to be denominated in a currency other than Dollars or (2) is a commercial letter of credit;

 

(E)                                  any Lender is in default of its obligations to fund under Section 2.03(c)  or any Lender is at such time a Defaulting Lender or an Impacted Lender hereunder, unless L/C Issuer has entered into satisfactory arrangements with Borrower or such Lender to eliminate L/C Issuer’s risk with respect to such Lender; or

 

(F)                                  Unless specifically provided for in this Agreement, such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder.

 

(iv)                               L/C Issuer shall not amend any Letter of Credit if (A) L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

 

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

 

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“Administrative Agent” as used in Article IX included L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to L/C Issuer.

 

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

 

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

 

(ii)                                   Promptly after receipt of any L/C Application at the address provided for pursuant to Section 10.02 for receiving L/C Applications and related correspondence, L/C Issuer will confirm with Administrative Agent (by telephone or in writing) that Administrative Agent has received a copy of such L/C Application from Borrower and, if not, L/C Issuer will provide Administrative Agent with a copy thereof.  Unless L/C Issuer has received written notice from any Lender, Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not be satisfied, then, subject to the terms and conditions hereof, L/C Issuer shall, on the requested date, issue the Letter of Credit for the account of Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage multiplied by the amount of such Letter of Credit.

 

(iii)                                If Borrower so requests in any applicable L/C Application, L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Automatic Extension Letter of Credit ”); provided that any such Automatic Extension Letter of Credit must permit L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “ Non-Extension Notice Date ”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is

 

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

 

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

 

(c)                                   Drawings and Reimbursements; Funding of Participations .

 

(i)                                      Upon receipt from the beneficiary of any Letter of Credit of any notice of drawing under such Letter of Credit, L/C Issuer shall notify Borrower and Administrative Agent thereof.  Not later than 11:00 a.m. on the date of any payment by L/C Issuer under a Letter of Credit (each such date, an “ Honor Date ”), Borrower shall reimburse L/C Issuer through Administrative Agent in an amount equal to the amount of such drawing.  If Borrower fails to reimburse L/C Issuer by such time, Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the “ Unreimbursed Amount ”), and the amount of such Lender’s Applicable Percentage thereof.  In such event, Borrower shall be deemed to have requested a Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the conditions set forth in Section 4.02 (other than the delivery of a Loan Notice) and provided that, after giving effect to such Borrowing, the Total Revolving Outstandings shall not exceed the Aggregate Revolving Credit Commitments.  Any notice given by L/C Issuer or Administrative Agent pursuant to this Section 2.03(c)(i)  may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

(ii)                                   Each Lender shall upon any notice pursuant to Section 2.03(c)(i)  make funds available to Administrative Agent for the account of L/C Issuer at the Administrative Agent’s Office in an amount equal to its Applicable Percentage multiplied by the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii) , each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to Borrower in such amount.  Administrative Agent shall remit the funds so received to L/C Issuer.

 

(iii)                                With respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, Borrower shall be deemed to have incurred from L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C

 

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Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate.  In such event, each Lender’s payment to Administrative Agent for the account of L/C Issuer pursuant to Section 2.03(c)(ii)  shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03 .

 

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

 

(v)                                  Each Lender’s obligation to make Revolving Credit Loans or L/C Advances to reimburse L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c) , shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against L/C Issuer, Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.03(c)  is subject to the conditions set forth in Section 4.02 (other than delivery by Borrower of a Loan Notice).  No such making of an L/C Advance shall relieve or otherwise impair the obligation of Borrower to reimburse L/C Issuer for the amount of any payment made by L/C Issuer under any Letter of Credit, together with interest as provided herein.

 

(vi)                               If any Lender fails to make available to Administrative Agent for the account of L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c)  by the time specified in Section 2.03(c)(ii) , L/C Issuer shall be entitled to recover from such Lender (acting through Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by L/C Issuer in accordance with banking industry rules on interbank compensation.  A certificate of L/C Issuer submitted to any Lender (through Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.

 

(d)                                  Repayment of Participations .

 

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

 

(ii)                                   If any payment received by Administrative Agent for the account of L/C Issuer pursuant to Section 2.03(c)(i)  is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by L/C Issuer in its discretion), each Lender shall pay to Administrative Agent for the account of L/C Issuer its

 

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Applicable Percentage thereof on demand of Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations of Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(f)                                     Role of L/C Issuer .  Each Lender and Borrower agree that, in paying any drawing under a Letter of Credit, L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document.  None of L/C Issuer, Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of Lenders or Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful

 

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

 

(g)                                  Cash Collateral .  Upon the request of Administrative Agent, (i) if L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the L/C Expiration Date, any L/C Obligation for any reason remains outstanding, Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations with an amount equal to 105% of such Outstanding Amount.  Sections 2.05 and 9.02(c)  set forth certain additional requirements to deliver Cash Collateral hereunder.  For purposes of this Section 2.03 , Section 2.05 and Section 8.02(c) , “ Cash Collateralize ” means to pledge and deposit with or deliver to Administrative Agent, for the benefit of L/C Issuer and Lenders, as collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in form and substance satisfactory to Administrative Agent and L/C Issuer (which documents are hereby consented to by Lenders).  Derivatives of such term have corresponding meanings.  Borrower hereby grants to Administrative Agent, for the benefit of L/C Issuer and Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing.  Cash Collateral shall be maintained in blocked, non-interest bearing deposit accounts with Administrative Agent.

 

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

 

(i)                                      L/C Fees .  Borrower shall pay to Administrative Agent for the account of each Lender in accordance with its Applicable Percentage a L/C Fee (the “ L/C Fee ”) for each Letter of Credit equal to the Applicable Rate times the daily maximum amount available to be drawn under such Letter of Credit.  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with „!Section 1.01(m) .  L/C Fees shall be (i) computed on a quarterly basis in arrears and (ii) due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the L/C Expiration Date and thereafter on demand.  If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrary

 

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contained herein, upon the request of Required Lenders, while any Event of Default exists, all L/C Fees shall accrue at the Default Rate.

 

(j)                                      Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer . Borrower shall pay directly to L/C Issuer for its own account a fronting fee with respect to each Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the actual daily maximum amount available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit) and on a quarterly basis in arrears.  Such fronting fee shall be due and payable on the tenth Business Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the L/C Expiration Date and thereafter on demand.  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.01(m) .  In addition, Borrower shall pay directly to L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of L/C Issuer relating to letters of credit as from time to time in effect.  Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

 

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

 

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

 

Section 2.04                             Swing Line Loans .

 

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

 

(b)                                  Swing Line Borrowing Procedures .  Each Borrowing of Swing Line Loans shall be made in accordance with the provisions of any agreement between Swing Line Lender and

 

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Borrower establishing an “Auto Borrow” plan for, among other things, the automatic advance to Borrower for deposit into an account of Borrower with Swing Line Lender.

 

(c)            Refinancing of Swing Line Loans .

 

(i)             Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of Borrower (which hereby irrevocably authorizes Swing Line Lender to so request on its behalf), that each Lender make a Revolving Credit Loan that is a Base Rate Loan in an amount equal to such Lender’s Applicable Percentage multiplied by the then aggregate Outstanding Amount of Swing Line Loans.  Such request shall be made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02 , without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Revolving Credit Commitments and the conditions set forth in Section 4.02 .  Swing Line Lender shall furnish Borrower with a copy of the applicable Loan Notice promptly after delivering such notice to Administrative Agent.  Each Lender shall make an amount equal to its Applicable Percentage multiplied by the aggregate amount of the requested Revolving Credit Loans specified in such Loan Notice available to Administrative Agent in immediately available funds for the account of Swing Line Lender at the Administrative Agent’s Office not later than 11:00 a.m.  on the day specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii) , each Lender that so makes funds available shall be deemed to have made a Revolving Credit Loan that is a Base Rate Loan to Borrower in such amount.  Administrative Agent shall promptly remit the funds so received to Swing Line Lender.

 

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

 

(iii)           If any Lender fails to make available to Administrative Agent for the account of Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c)  by the time specified in Section 2.04(c)(i) , Swing Line Lender shall be entitled to recover from such Lender (acting through Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by Swing Line Lender in connection with the foregoing.  A certificate of Swing Line Lender submitted to any Lender (through Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

 

(iv)           Each Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c)  shall be absolute and unconditional and shall not be affected by any circumstance, including: 

 

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(A) any setoff, counterclaim, recoupment, defense or other right that such Lender may have against Swing Line Lender, Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default; or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.04(c)  is subject to the conditions set forth in Section 4.02 .  No such funding of risk participations shall relieve or otherwise impair the obligation of Borrower to repay Swing Line Loans together with interest as provided herein.

 

(d)            Repayment of Participations .

 

(i)             If, at any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, Swing Line Lender receives any payment on account of such Swing Line Loan, then Swing Line Lender will distribute to such Lender an amount equal to its Applicable Percentage multiplied by such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s risk participation was funded) in the same funds as those received by Swing Line Lender.

 

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

 

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

 

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

 

Section 2.05          Payments And Prepayments .

 

(a)            Voluntary Prepayments .

 

(i)             Borrower may, upon notice to Administrative Agent, at any time or from time to time voluntarily prepay Revolving Credit Loans and/or the Term Loan in whole or in part without premium or penalty; provided that (A) such notice must be received by Administrative Agent not later than 11:00 a.m. (1) three Business Days prior to any date of prepayment of Loans that are Eurodollar Rate Loans and (2) on the Business Day of prepayment of Loans that are Base Rate Loans; (B) any such prepayment of Eurodollar Rate Loans shall be in a principal amount of $1,000,000.00 or a whole multiple of $1,000,000.00 in excess thereof (or, if less, the entire principal amount thereof then

 

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outstanding); and (C) any prepayment of Base Rate Loans shall be in a principal amount of $500,000.00 or a whole multiple of $100,000.00 in excess thereof (or, if less, the entire principal amount thereof then outstanding).  Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and whether the Loans to be prepaid are the Revolving Credit Loans and/or the Term Loan.  Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment.  If Borrower gives such notice, then Borrower’s prepayment obligation shall be irrevocable, and Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 .  Each such prepayment shall be applied to the Loans of Lenders in accordance with their respective Applicable Percentages.  Each such prepayment of the Term Loan shall be applied to the remaining principal amortization payments of the Term Loan in inverse order of maturity.

 

(ii)            Borrower may, upon notice to Swing Line Lender (with a copy to Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that such notice must be received by Swing Line Lender and Administrative Agent not later than 11:00 a.m.  on the date of the prepayment.  Each such notice shall specify the date and amount of such prepayment.  If Borrower gives such a notice, then Borrower’s prepayment obligation shall be irrevocable, and Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.

 

(b)            Mandatory Prepayments .

 

(i)             L/C Obligations .  If, on any date and for any reason, the Outstanding Amount of L/C Obligations exceeds the L/C Sublimit, then Borrower shall Cash Collateralize on such date L/C Obligations in an amount equal to such excess.

 

(ii)            Revolving Loans .  If, on any date and for any reason (including without limitation as a result of any reduction in the Aggregate Revolving Credit Commitments pursuant to Section 2.06 ), the Total Revolving Credit Outstandings (less the amount of L/C Obligations, if any, that are Cash Collateralized as a result of this clause (ii)) at any time exceed the then Aggregate Revolving Credit Commitments, then Borrower shall immediately, and without notice or demand, prepay the outstanding principal amount of the Revolving Credit Loans, Swing Line Loans and L/C Borrowings (and/or Cash Collateralize L/C Obligations) in an amount at least equal to the applicable excess.  Any such prepayment shall be applied, first , to any L/C Borrowings, second , to prepay Swing Line Loans, third , to any Revolving Credit Loans constituting Base Rate Loans or matured Eurodollar Rate Loans, as selected by Borrower, fourth , at Borrower’s option, either (x) to Cash Collateralize Eurodollar Rate Loans (which Cash Collateral shall be applied on the maturity date of their respective Interest Periods in the order of the maturities of their respective Interest Periods) or (y) to prepay Eurodollar Rate Loans (in the order of the maturity of their respective Interest Periods) provided that Borrower may only Cash Collateralize Eurodollar Rate Loans pursuant to clause (x) if no Default or Event of Default exists; and fifth, to Cash Collateralize Outstanding L/C Obligations.  Each such prepayment shall be applied to the Revolving Credit Loans of Lenders in accordance with their respective Applicable Percentages.

 

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(iii)           Swing Line Loans .  If the aggregate Outstanding Amount of Swing Line Loans exceeds the Swing Line Sublimit, Borrower shall prepay the Outstanding Amount of Swing Line Loans by an amount equal to the amount by which such Outstanding Amount exceeds the Swing Line Sublimit.

 

(iv)           Dispositions .  Upon any Disposition or series of Dispositions by any Loan Party (other than Dispositions pursuant to Section 7.05(b) , Section 7.05(c) , Section 7.05(d)  or Section 7.05(e) ) within any fiscal year, Borrower shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereafter provided in an amount equal to one hundred percent of the Net Proceeds of each such Disposition to the extent that the Net Proceeds of such Disposition, together with the Net Proceeds of all Events of Loss under clause (v) below in such fiscal year plus the Net Proceeds of all other such Dispositions in such fiscal year, exceed $1,000,000.00; provided that, so long as no Default exists, no such reduction or prepayment shall be required to the extent that:  (A) not later than ten (10) days following the date of the receipt of such Net Proceeds Borrower notifies Administrative Agent in writing of its or any Loan Party’s intent to apply such Net Proceeds to purchase property in a business or businesses permitted by Section 7.04(a)  or to make Investments otherwise permitted by Section 7.02(d)(iv)  or (v) , Section 7.02(e)  or Section 7.02(i)  and (B) within one hundred and eighty (180) days of receipt thereof such Net Proceeds are so applied for such purpose.  Any prepayment pursuant to this clause (iv) shall be applied as set forth in clause (ix) below.

 

(v)            Event of Loss .  Upon any Event of Loss relating to property of a Loan Party within any fiscal year, Borrower shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereafter provided in an amount equal to one hundred percent of the Net Proceeds of each such Event of Loss to the extent that the Net Proceeds of such Event of Loss, together with the Net Proceeds of all Dispositions under clause (iv) above in such fiscal year plus the Net Proceeds of all other Events of Loss in such fiscal year, exceeds $1,000,000.00; provided that, so long as no Default exists, no such reduction or prepayment shall be required to the extent that:  (A) not later than ten (10) days following the date of the receipt of such Net Proceeds Borrower notifies Administrative Agent in writing of its or any Loan Party’s intent to apply such Net Proceeds to purchase replacement property for, or restore, the property affected by such Event of Loss or to purchase property of the same type that was affected by such Event of Loss and (B) within one hundred and eighty (180) days of receipt thereof such Net Proceeds are so applied for such purpose.  Any prepayment pursuant to this clause (v) shall be applied as set forth in clause (ix) below.

 

(vi)           Debt Issuances .  Immediately upon the receipt by any Loan Party or Subsidiary of the Net Proceeds of any incurrence of Debt, Borrower shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereafter provided in an amount equal to one hundred percent of the Net Proceeds of any incurrence of Debt by any Loan Party either (A) pursuant to Section 7.03(g) , or (B) not otherwise permitted hereby; it being understood that this clause (vi) does not constitute permission for any such incurrence not permitted hereby; provided that, so long as no Default exists, no such reduction or prepayment shall be required in connection with the incurrence of Debt pursuant to Section 7.03(g)  to the extent that (1) on the date of the receipt of such Net Proceeds Borrower notifies Administrative Agent in writing of its or any Loan Party’s intent to apply such Net Proceeds to all or a portion of the purchase price of a Permitted Acquisition, and (2) within ninety (90) days of receipt thereof such Net Proceeds are so applied for such purpose.  Any prepayment pursuant to this clause (vi) shall be applied as set forth in clause (ix) below.

 

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(vii)          Equity Issuances .  Immediately upon the receipt by any Loan Party or Subsidiary of the Net Proceeds of any issuance of Equity Interests, Borrower shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereafter provided in an amount equal to one hundred percent of the Net Proceeds of any issuance of Equity Interests by any Loan Party; provided that, so long as no Default exists, no such reduction or prepayment shall be required:  (1) to the extent that (A) on the date of the receipt of such Net Proceeds Borrower notifies Administrative Agent in writing of its or any Loan Party’s intent to apply such Net Proceeds to all or a portion of the purchase price of a Permitted Acquisition, and (B) within ninety (90) days of receipt thereof such Net Proceeds are so applied for such purpose; or (2) with respect to any Equity Interests issued by:  (A) any Subsidiary to Borrower or to another Subsidiary Guarantor; or (B) Borrower to purchase, redeem or otherwise acquire shares of its or its Subsidiaries’ common stock in a transaction permitted by Section 7.06(c) , or (C) Borrower to directors, officers or employees of Borrower or any other Subsidiary of Equity Interests in the form of warrants, options or similar rights to acquire any other Equity Interests of Borrower, or any sale or issuance of Equity Interests upon the exercise of any such warrants, options or similar rights.  Any prepayment pursuant to this clause (vii) shall be applied as set forth in clause (ix) below.  For the avoidance of doubt, the parties hereto agree that Equity Interests issued directly by Borrower to a seller in connection with a Permitted Acquisition are permitted and are excluded from any prepayment requirement of this Section 2.05(b)(vii) .

 

(viii)         Extraordinary Receipts .  Immediately upon the receipt by any Loan Party or any Subsidiary of any Extraordinary Receipts, Borrower shall prepay the Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to one hundred percent of such Extraordinary Receipts; provided that with respect to Extraordinary Receipts consisting of proceeds of insurance, such prepayment pursuant to this clause (viii) shall only be required to the extent that such Extraordinary Receipts consisting of proceeds of insurance in such fiscal year exceeds $1,000,000.00).  Any prepayment pursuant to this clause (viii) shall be applied as set forth in clause (ix) below.

 

(ix)            Application of Mandatory Prepayments .  All amounts required to be paid pursuant to this Section 2.05(b)  shall be applied, with respect to all amounts prepaid pursuant to Sections 2.05(b)(iv) , (v) , (vi) , (vii)  and (viii) , first to the Term Loan (to the remaining principal amortization payments in inverse order of maturity), then (after the Term Loan has been paid in full) to the Revolving Credit Loans (with a corresponding permanent reduction in the Aggregate Revolving Credit Commitments) and then (after all Revolving Credit Loans have been repaid) to Cash Collateralize L/C Obligations (with a corresponding permanent reduction in the Aggregate Revolving Credit Commitments).

 

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

 

(c)            Interest .  Upon the prepayment of any Loan (whether such prepayment is an optional prepayment under Section 2.05(a) , a mandatory prepayment required by Section 2.05(b) , or a mandatory prepayment required by any other provision of this Agreement or the other Loan Documents, including a prepayment upon acceleration), Borrower shall pay (i) all accrued interest and fees to the date of such prepayment on the amount prepaid and (ii) if such

 

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prepayment is the prepayment of a Eurodollar Rate Loan on a day other than the last day of an Interest Period for such Eurodollar Rate Loan, all amounts payable to such Lender pursuant to Section 3.05 .

 

Section 2.06          Termination Or Reduction Of Aggregate Revolving Credit Commitments .

 

Borrower may, upon notice to Administrative Agent, terminate the Aggregate Revolving Credit Commitments, or from time to time permanently reduce the Aggregate Revolving Credit Commitments; provided that:  (a) subject to Section 2.05(a)(i) , if applicable, any such notice shall be received by Administrative Agent not later than 9:00 a.m.  one Business Day prior to the date of termination or reduction; (b) any such partial reduction shall be in an aggregate amount of $1,000,000.00 or any whole multiple of $500,000.00 in excess thereof; (c) Borrower shall not terminate or reduce the Aggregate Revolving Credit Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Credit Outstandings would exceed the Aggregate Revolving Credit Commitments; and (d) if, after giving effect to any reduction of the Aggregate Revolving Credit Commitments, the L/C Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate Revolving Credit Commitments, such sublimit(s) shall be automatically reduced by the amount of such excess.  Administrative Agent will promptly notify Lenders of any such notice of termination or reduction of the Aggregate Revolving Credit Commitments.  Any reduction of the Aggregate Revolving Credit Commitments shall be applied to the commitment of each Revolving Credit Lender according to its Applicable Percentage thereof.  All fees accrued until the effective date of any termination of the Aggregate Revolving Credit Commitments shall be paid on the effective date of such termination.

 

Section 2.07          Repayment Of Loans .

 

(a)            On the Maturity Date, Borrower shall repay: (i) to Lenders in full the aggregate Outstanding Amount of all Revolving Credit Loans; and (ii) to L/C Issuer in full, for itself and on behalf of the other Lenders, as applicable, the aggregate Outstanding Amount of all L/C Obligations, if any.

 

(b)            Borrower shall repay each Swing Line Loan (i) in accordance with the terms of any “Auto Borrow” plan and (ii) on the Maturity Date.

 

(c)            Borrower shall repay the outstanding principal amount of the Term Loan in installments on the dates and in the amounts set forth in the table below (as such installments may hereafter be adjusted as a result of prepayments made pursuant to Section 2.05 ), unless accelerated sooner pursuant to Section 8.02 :

 

Payment Dates		Principal Amortization Payment (% of Term Loan outstanding on the Closing Date plus the initial amount of any Term Loans funded pursuant to Section  2.02(h)(ii))
December 31, 2009		5.00%
March 31, 2010		5.00%
June 30, 2010		5.00%
September 30, 2010		5.00%
December 31, 2010		5.00%
March 31, 2011		5.00%
June 30, 2011		5.00%
September 30, 2011		5.00%
December 31, 2011		5.00%
March 31, 2012		5.00%
June 30, 2012		5.00%
Maturity Date		Outstanding Principal Balance of Term Loan

 

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Section 2.08          Interest; Applicable Rates .

 

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

 

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

 

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

 

(iii)           Without limiting clauses (i) and (ii) above, upon the request of Required Lenders, while any Event of Default exists, Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

 

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

 

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

 

Notwithstanding the foregoing and for the avoidance of doubt, if, as a result of any restatement of or other adjustment to the financial statements of Borrower or for any other reason, Borrower or Lenders determine that (i) the Consolidated Leverage Ratio as calculated by Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher pricing for such period, Borrower shall immediately and retroactively be obligated to pay to Administrative Agent for the account of the applicable Lenders or L/C Issuer, as the case may be, promptly on demand by Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to Borrower under the Bankruptcy Code, automatically and without further

 

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action by Administrative Agent, any Lender or L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have be