CREDIT AGREEMENT

Exhibit 10.1

Execution Version

 

ALLIANCE LAUNDRY HOLDINGS LLC

ALLIANCE LAUNDRY SYSTEMS LLC

(as successor by merger to ALH Finance LLC)

 

$250,000,000

CREDIT AGREEMENT

Dated as of January 27, 2005

(as in effect as of March 12, 2009)

 

LEHMAN BROTHERS INC.,

AS SOLE ADVISOR, SOLE LEAD ARRANGER AND SOLE BOOKRUNNER

THE BANK OF NOVA SCOTIA,

AS SYNDICATION AGENT

BANK OF AMERICA, N.A.

and

ROYAL BANK OF CANADA,

AS CO-DOCUMENTATION AGENTS

and

BANK OF AMERICA, N.A.,

AS ADMINISTRATIVE AGENT

 

TABLE OF CONTENTS

 

 

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ANNEXES:

 

 

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CREDIT AGREEMENT, dated as of January 27, 2005 and as in effect as of March 12, 2009, among ALLIANCE LAUNDRY HOLDINGS LLC, a Delaware limited liability company (“ Holdings ”), ALLIANCE LAUNDRY SYSTEMS LLC, a Delaware limited liability company (as successor by merger to ALH Finance LLC, “ Alliance Laundry ”), the several banks and other financial institutions or entities from time to time parties to this Agreement (the “ Lenders ”), LEHMAN BROTHERS INC., as sole advisor, sole lead arranger and sole bookrunner (in such capacity, the “ Arranger ”), THE BANK OF NOVA SCOTIA, as syndication agent (in such capacity, the “ Syndication Agent ”), BANK OF AMERICA, N.A. and ROYAL BANK OF CANADA, as co-documentation agents (together, in such capacity, the “ Co-Documentation Agents ”), and BANK OF AMERICA, N.A. (“ Bank of America ”), as administrative agent (in such capacity, the “ Administrative Agent ”).

W I T N E S S E T H :

WHEREAS, ALH Holding Inc., a Delaware corporation (“ ALH ”), is a wholly-owned subsidiary of Ontario Teachers’ Pension Plan Board (the “ Sponsor ”);

WHEREAS, ALH has entered into the Purchase Agreement (as defined below), pursuant to which, among other things, ALH will acquire all of the issued and outstanding common units and rights to acquire common units of Holdings, the direct parent of Alliance Laundry (the “ Purchase ”);

WHEREAS, in connection with the consummation of the Purchase, the Sponsor will contribute cash equity to ALH in an aggregate amount, together with management cash equity and management (non-cash) roll-over equity of no more than $8,370,000, of not less than $117,000,000 (collectively, the “ Equity Financing ”);

WHEREAS, in connection with the consummation of the Purchase, ALH Finance LLC (“ ALH Finance ”) and ALH Finance Corporation will simultaneously herewith co-issue a total of $150,000,000 in aggregate principal amount of Senior Subordinated Notes (as defined below) in a public offering or in a Rule 144A or other private placement;

WHEREAS, immediately after the Purchase on the Effective Date, ALH Finance will be merged with and into Alliance Laundry, with Alliance Laundry as the surviving entity (the “ Borrower Merger ”), and ALH Finance Corporation will be merged with and into Alliance Laundry Corporation, a subsidiary of Alliance Laundry, with Alliance Laundry Corporation as the surviving entity (the “ Co-Issuer Merger ”); and

WHEREAS, to facilitate the Purchase, ALH and ALH Finance have requested the Lenders to extend credit to the Borrower (as defined below) in the form of (a) Term Loans on the Effective Date, in an aggregate principal amount not in excess of $200,000,000, and (b) Revolving Credit Loans and Letters of Credit from time to time prior to the Revolving Credit Termination Date, in an aggregate principal amount at any time outstanding not in excess of $50,000,000.

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

SECTION 1.

DEFINITIONS

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

“ Accounts Receivable ”: as to the Borrower or any of its Subsidiaries, any right to payment (including interest payments) for goods sold or leased or for services rendered by the Borrower or such Subsidiary in the ordinary course of business.

“ Acquired Person ”: as to any Person, any other Person (i) at least 80% of the Capital Stock of which is owned by such Person and (ii) which is consolidated with such Person in accordance with GAAP.

“ Acquisition ”: as to any Person, the acquisition by such Person of (a) Capital Stock of any other Person if, after giving effect to the acquisition of such Capital Stock, such other Person would be (i) an Acquired Person of such Person and (ii) a Subsidiary Guarantor, (b) all or substantially all of the assets of any other Person or (c) assets constituting one or more business units of any other Person.

“ Additional Term Commitment ”: as to each Additional Term Lender, the amount set forth under such Lender’s name on the signature page delivered by such Lender or, as the case may be, in the Assignment and Acceptance pursuant to which such Lender became a party hereto. The original aggregate amount of the Additional Term Commitments is $60,000,000.

“ Additional Term Lender ”: each Lender which has an Additional Term Commitment or which is the holder of an Additional Term Loan.

“ Additional Term Loan ”: as defined in Section 2.1.

“ Adjusted EBITDA ”: for any period, Consolidated Net Income for such period plus the sum of (a) the difference between (i) the interest and fees earned on equipment promissory notes sold to special-purpose bankruptcy remote entities less interest expense payable to noteholders of such entities less collection and administrative expenses associated with said promissory notes and (ii) the gain on sale accounting resulting from the sale of promissory notes to such entities in accordance with GAAP and (b) without duplication and to the extent reflected as a charge in the statement of such Consolidated Net Income for such period, the sum of (i) income tax expense (including franchise taxes imposed in lieu of income taxes), (ii) interest expense associated with Indebtedness (including the Loans and the Letters of Credit) and Hedge Agreements, but excluding any interest expense associated with any Indebtedness (including Letters of Credit) issued in connection with any Permitted Receivables Financing, (iii) amortization or writeoff of deferred financing fees, debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness (including the Loans, the Letters of Credit and any Indebtedness issued in connection with any Permitted Receivables Financing) and Hedge Agreements, (iv) depreciation and amortization expense, (v) amortization of intangibles (including, but not limited to, goodwill) and organization costs, (vi) any extraordinary, unusual or non-recurring expenses or losses (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, losses on sales of assets outside of the ordinary course of business, and charges for the writeoff of any step-up in basis of inventory required in a transaction which is accounted for under the purchase method of accounting), provided that, if any such expense or loss is not includable as a separate item in the statement of Consolidated Net Income for such period under GAAP, such expense or loss is reasonably acceptable to the Administrative Agent and (vii) any other non-cash charges (other than writeoffs or write-downs of inventory (other than any writeoffs of any step-up in basis of inventory) unless reasonably acceptable to the Administrative Agent); (viii) fees in respect of the Bain Capital Partners LLC (formerly known as Bain Capital, Inc.) Advisory Agreement dated May 5, 1998 accrued prior to the Effective Date; (ix) Transaction Costs; (x) closing fees, costs and expenses incurred in connection with Permitted Receivables Financings, including the Existing Receivables Facility; (xi) payments made and fees paid on or about the Effective Date under executive management closing bonus agreements in an aggregate amount not to exceed $6,176,100 and payments under post-closing executive management retention bonus agreements in an aggregate amount not to exceed $2,320,000; (xii) restructuring charges related to the closure, restructuring and consolidation of certain facilities located in the United States acquired in connection with the CLD Acquisition in an aggregate amount not to exceed $10,000,000 and (xiii) payments made and fees paid from time to time in connection with the CLD Acquisition under executive management closing and post-closing bonus agreements in an aggregate amount not to exceed $600,000; and minus , to the extent included in the statement of such Consolidated Net Income for such period, the sum of (x) any extraordinary, unusual or non-recurring income or gains (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, gains on the sales of assets outside of the ordinary course of business), provided that, if any such income or gain is not includable as a separate item in the statement of Consolidated Net Income for such period under GAAP, such income or gain is reasonably acceptable to the Administrative Agent and (y) any other non-cash income, all as determined on a consolidated basis.

 

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“ Adjustment Date ”: as defined in the Pricing Grid.

“ Administrative Agent ”: as defined in the Preamble to this Agreement.

“ Affiliate ”: as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.

“ Agent Parties ”: as defined in Section 10.18.

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

“ Aggregate Exposure Percentage ”: with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate Exposure of all the Lenders at such time.

“ Agreement ”: this Credit Agreement, as amended, supplemented or otherwise modified from time to time.

“ ALH ”: as defined in the first recital to this Agreement.

“ ALH Finance ”: as defined in the Preamble to this Agreement.

“ Alliance Laundry ”: as defined in the Preamble to this Agreement.

“ Alliance Laundry Corporation ”: Alliance Laundry Corporation, a Delaware corporation.

“ Applicable Margin ”: on and after the Second Amendment Effective Date, for each Type of Loan, the rate per annum set forth under the relevant column heading below:

 

provided , that, on and after the first Adjustment Date occurring after the Second Amendment Effective Date, the Applicable Margin with respect to Term Loans, Revolving Credit Loans, Letters of Credit and Swing Line Loans will be determined pursuant to the Pricing Grid.

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

“ Approved Fund ”: means, with respect to any Lender that is a fund that invests in commercial loans, any other fund that invests in commercial loans and is managed or advised by the same investment advisor as such Lender, by such Lender or by an Affiliate of such Lender.

“ Arranger ”: as defined in the Preamble to this Agreement.

 

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“ Asset Sale ”: any Disposition of Property or series of related Dispositions of Property (excluding any such Disposition permitted by clause (a), (b), (c), (d), (e), (f), (g), (l), (m), (o), (q), (r) or (s)(i) of Section 7.5) which yields gross proceeds to Holdings, the Borrower or any of its Subsidiaries (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $500,000.

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

“ Assignment and Acceptance ”: as defined in Section 10.6(c).

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

“ Auto-Extension Letter of Credit ”: as defined in Section 3.8(a).

“ Auto-Reinstatement Letter of Credit ”: as defined in Section 3.8(b).

“ Available Revolving Credit Commitment ”: as to any Revolving Credit Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Revolving Credit Commitment then in effect over (b) such Lender’s Revolving Extensions of Credit then outstanding; provided , that in calculating any Lender’s (other than the Swing Line Lender’s) Revolving Extensions of Credit for the purpose of determining such Lender’s Available Revolving Credit Commitment pursuant to Section 2.9(a), the aggregate principal amount of Swing Line Loans then outstanding shall be deemed to be zero.

“ Bank of America Entity ”: any of Bank of America, N.A. or any of is affiliates.

“ Base Rate ”: for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof: “ Prime Rate ” shall mean 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 the 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. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually available. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective as of the opening of business on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.

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

“ Belgian CLD Purchase Agreement ”: the Share Purchase Agreement dated as of May 23, 2006, between the Borrower and the CLD Seller.

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

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

“ Borrower ”: (a) prior to the consummation of the Borrower Merger, ALH Finance and (b) upon and after the consummation of the Borrower Merger, Alliance Laundry.

“ Borrower Materials ”: as defined in Section 10.18.

“ Borrower Merger ”: as defined in the fifth recital to this Agreement.

 

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

“ Business ”: as defined in Section 4.17(b).

“ Business Day ”: (i) for all purposes other than as covered by clause (ii) below, a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close and (ii) with respect to all notices and determinations in connection with, and payments of principal and interest on, Eurodollar Loans, any day which is a Business Day described in clause (i) and which is also a day for trading by and between banks in Dollar deposits in the interbank eurodollar market.

“ CapEx Carryforward Amount ”: as defined in Section 7.7.

“ Capital Expenditures ”: for any period, with respect to any Person, the aggregate of all expenditures by such Person and its Subsidiaries for the acquisition or leasing (pursuant to a capital lease) of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) which should be capitalized under GAAP on a consolidated balance sheet of such Person and its Subsidiaries.

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

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

“ Cash Equivalents ”: (a) (i) with respect to the Borrower or any Domestic Subsidiary, marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency thereof and backed by the full faith and credit of the United States or (ii) with respect to any Foreign Subsidiary, marketable direct obligations issued by, or unconditionally guaranteed by, the national government of the jurisdiction of organization of such Foreign Subsidiary or issued by any agency thereof and backed by the full faith and credit of such government, in each case maturing within one year from the date of acquisition; (b) certificates of deposit, bankers’ acceptances, time deposits, eurodollar time deposits or overnight bank deposits having maturities of one year or less from the date of acquisition issued by any Lender or by any commercial bank organized under the laws of the United States of America or any state thereof having combined capital and surplus of not less than $500,000,000 (or, in the case of any certificate of deposit, bankers’ acceptances, time deposits, eurodollar time deposits or overnight time deposits of any Foreign Subsidiary, issued by any commercial bank having capital and surplus of not less than $500,000,000 (or the equivalent thereof)); (c) commercial paper rated at least A-2 (or the equivalent thereof) by Standard & Poor’s Ratings Services (“ S&P ”) or P-2 (or the equivalent thereof) by Moody’s Investors Service, Inc. (“ Moody’s ”), or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper generally, and maturing within one year from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the applicable requirements of clause (b) of this definition, having a term of not more than 30 days with respect to securities of the types described in clauses (a) and (b) of this definition; (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A (or the equivalent thereof) by S&P or A (or the equivalent thereof) by Moody’s or carry an equivalent rating by a nationally recognized rating agency if both of the two named rating agencies cease publishing ratings of such type generally; (f) securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition; or (g) shares of money market mutual or similar funds which invest substantially in assets satisfying the requirements of clauses (a) through (f) of this definition.

 

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“ CLD Acquisition ”: the acquisition of the commercial laundry business division of the CLD Seller pursuant to the CLD Purchase Agreements.

“ CLD Purchase Agreements ”: the Belgian CLD Purchase Agreement and the U.S. CLD Purchase Agreement.

“ CLD Seller ”: Laundry Systems Group NV, a limited liability company organized under the laws of Belgium.

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

“ Co-Documentation Agents ”: as defined in the Preamble to this Agreement.

“ Co-Issuer Merger ”: as defined in the fifth recital to this Agreement.

“ Collateral ”: all Property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is created or purported to be created by any Security Document.

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

“ Commitment Fee Rate ”: 0.50% per annum.

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

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

“ Confidential Information Memorandum ”: the Confidential Information Memorandum dated January 2005 and furnished to the Lenders.

“ Consolidated Cash Interest Expense ”: for any period, the Consolidated Interest Expense payable in cash during such period, provided , that the Consolidated Interest Expense accrued with respect to the Senior Subordinated Notes during such period shall be deemed to be payable in cash during such period.

“ Consolidated Current Assets ”: at any date, all amounts (other than cash, Cash Equivalents and deferred income taxes) which would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Borrower and its Subsidiaries at such date.

“ Consolidated Current Liabilities ”: at any date, all amounts which would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Borrower and its Subsidiaries at such date, but excluding (a) the current portion of any Funded Debt (including accrued but unpaid interest) of the Borrower and its Subsidiaries and (b) without duplication of clause (a) above, all Indebtedness (including accrued but unpaid interest) consisting of Term Loans, Revolving Credit Loans, Letters of Credit or Swing Line Loans to the extent otherwise included therein.

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

 

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“ Consolidated Interest Expense ”: for any period, total interest expense (including that attributable to Capital Lease Obligations) of the Borrower and its Subsidiaries for such period with respect to all outstanding Indebtedness of the Borrower and its Subsidiaries (including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under Hedge Agreements in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP, but excluding any interest expense associated with any Indebtedness (including Letters of Credit) issued in connection with any Permitted Receivables Financing).

“ Consolidated Leverage Ratio ”: as at the last day of any period of four consecutive fiscal quarters of the Borrower, the ratio of (a) Consolidated Total Debt on such day to (b) Adjusted EBITDA for such period; provided that for purposes of calculating Adjusted EBITDA for any period, the Adjusted EBITDA of any Person or assets acquired by the Borrower or any of its Subsidiaries during such period pursuant to an Acquisition or Subsidiary Acquisition permitted hereunder (including the portion of such period prior to the consummation of such Acquisition or Subsidiary Acquisition) shall be included on a pro forma basis for such period (assuming that (i) the consummation of such acquisition and the incurrence, assumption or repayment of any Indebtedness in connection therewith occurred on the first day of such period and (ii) any cost savings to be implemented in connection with such Acquisition or Subsidiary Acquisition as to which the Borrower shall have provided support for the calculation thereof which is reasonably acceptable to the Administrative Agent in conformity with Regulation S-X under the Securities Act as in effect on the date hereof had been effected on the first day of such period) if the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth, consistent with Article 11 of Regulation S-X under the Securities Act as in effect on the date hereof, the calculations required to support such pro forma adjustments.

“ Consolidated Net Income ”: for any period, the consolidated net income (or loss) of the Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with the Borrower or any of its Subsidiaries pursuant to an Acquisition permitted hereunder, (b) the income (or loss) of any Person (other than a Subsidiary of the Borrower) in which the Borrower or any of its Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Borrower or such Subsidiary in the form of dividends or similar distributions and (c) the undistributed earnings of any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document) or Requirement of Law applicable to such Subsidiary.

“ Consolidated Senior Debt ”: all Funded Debt under this Agreement and all other Funded Debt of the Borrower and its Subsidiaries (excluding all other Funded Debt of the Borrower and its Subsidiaries which is subordinated to the Funded Debt under this Agreement on terms no less favorable than the terms of the Senior Subordinated Notes).

“ Consolidated Senior Debt Leverage Ratio ”: as at the last day of any period of four consecutive fiscal quarters of the Borrower, the ratio of (a) Consolidated Senior Debt on such day to (b) Adjusted EBITDA for such period; provided that for purposes of calculating Adjusted EBITDA for any period, the Adjusted EBITDA of any Person or assets acquired by the Borrower or any of its Subsidiaries during such period pursuant to an Acquisition or Subsidiary Acquisition permitted hereunder (including the portion of such period prior to the consummation of such Acquisition or Subsidiary Acquisition) shall be included on a pro forma basis for such period (assuming that (i) the consummation of such acquisition and the incurrence, assumption or repayment of any Indebtedness in connection therewith occurred on the first day of such period and (ii) any cost savings to be implemented in connection with such Acquisition or Subsidiary Acquisition as to which the Borrower shall have provided support for the calculation thereof which is reasonably acceptable to the Administrative Agent in conformity with Regulation S-X under the Securities Act as in effect on the date hereof had been effected on the first day of such period) if the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth, consistent with Article 11 of Regulation S-X under the Securities Act as in effect on the date hereof, the calculations required to support such pro forma adjustments.

 

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“ Consolidated Total Debt ”: at any date, (a) the aggregate principal amount of all Funded Debt of the Borrower and its Subsidiaries at such date, determined on a consolidated basis in accordance with GAAP minus (b) the lesser of (i) $3,000,000 and (ii) the aggregate amount of unrestricted cash and Cash Equivalents held by Foreign Subsidiaries at such date.

“ Consolidated Working Capital ”: at any date, the excess of Consolidated Current Assets on such date over Consolidated Current Liabilities on such date, excluding any increases or decreases in Notes Receivable.

“ Contractual Obligation ”: 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 Investment Affiliate ”: as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

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

“ Defaulting Revolving Credit Lender ” means any Revolving Credit Lender that (a) has refused in writing (which refusal has not been retracted) or failed to make available its portion of any incurrence of Loans or Reimbursement Obligations which refusal or failure is not cured within one Business Day after the date of such refusal or failure, (b) has otherwise failed to pay over to the Administrative Agent, the Swing Line Lender, any Issuing Lender or any other Lender 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, (c) according to publicly available information from reputable sources has defaulted in fulfilling its funding obligations (as a lender, agent or letter of credit or bank guarantee issuer) under one or more other syndicated credit facilities, or (d) becomes subject to a Lender-Related Distress Event. A Revolving Credit Lender shall cease to be a Defaulting Revolving Credit Lender when the Administrative Agent, each Issuing Lender, the Swing Line Lender and the Borrower have determined, acting reasonably, that such Revolving Credit Lender has adequately remedied all matters that caused such Revolving Credit Lender to become a Defaulting Revolving Credit Lender.

“ Defaulting Revolving Credit Lender Credit Support Amount ”: as defined in Section 3.9.

“ Designated Equity Amounts ”: at any date, the amount equal to the aggregate amount of Net Cash Proceeds received by Holdings from the issuance of Capital Stock (other than to the Borrower or any Subsidiary of Holdings or the Borrower) or from any capital contribution to Holdings by a Person other than the Borrower or any Subsidiary of Holdings or the Borrower which have been designated in writing by the Borrower to the Administrative Agent as “Permitted Expenditure Amounts” so long as such Net Cash Proceeds are utilized by Holdings, the Borrower or any of its Subsidiaries within 45 days after such receipt for an Expenditure Use Amount.

“ Disposition ”: with respect to any Property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof (excluding the sale by Holdings of its own Capital Stock); the terms “Dispose” and “Disposed of” shall have correlative meanings.

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

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

“ ECF Percentage ”: 75%; provided that, with respect to any fiscal year of the Borrower, the ECF Percentage with respect to such fiscal year shall be reduced to (a) 50% if the Consolidated Leverage Ratio at the last day of such fiscal year of the Borrower is not greater than 4.5 to 1.0 and (b) 0% if the Consolidated Leverage Ratio at the last day of such fiscal year of the Borrower is not greater than 4.0 to 1.0.

 

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

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

“ Equity Financing ”: as defined in the third recital to this Agreement.

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

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

“ Eurodollar Base Rate ”: with respect to each day during each Interest Period, the rate per annum determined on the basis of the rate for deposits in Dollars for a period equal to such Interest Period commencing on the first day of such Interest Period appearing on Reuters Screen LIBOR01 Page as of 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period. In the event that such rate does not appear on Reuters Screen LIBOR01 Page (or otherwise on such screen), the “ Eurodollar Base Rate ” for purposes of this definition shall be determined by reference to such other comparable publicly available service for displaying eurodollar rates as may be selected by the Administrative Agent.

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

“ Eurodollar Rate ”: with respect to each day during each Interest Period pertaining to a Eurodollar Loan, a rate per annum determined for such day in accordance with the following formula:

 

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

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

“ Excess Cash Flow ”: for any fiscal year of the Borrower, the excess, if any, of (a) the sum, without duplication, of (i) Consolidated Net Income for such fiscal year, (ii) an amount equal to the amount of all non-cash charges (including depreciation and amortization, but excluding any non-cash charges associated with any Permitted Receivables Financing) deducted in arriving at such Consolidated Net Income, (iii) decreases in Consolidated Working Capital for such fiscal year, (iv) an amount equal to the aggregate net non-cash loss on the Disposition of Property by the Borrower and its Subsidiaries during such fiscal year (other than sales of inventory in the ordinary course of business and sales of Receivables pursuant to any Permitted Receivables Financing), to the extent deducted in determining such Consolidated Net Income, (v) the net increase during such fiscal year (if any) in deferred tax

 

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accounts of the Borrower and Holdings, (vi) the amount by which Consolidated Working Capital was increased as a result of the payment in such fiscal year of items referred to in clause (b)(xv) below, (vii) any unused CapEx Carryforward Amount from the prior fiscal year, (viii) decreases during such fiscal year in the retained interest of the Borrower and its Subsidiaries in any Securitization Entity resulting from the sale of Receivables to such Securitization Entity in connection with a Permitted Receivables Financing, (ix) any cash deposits returned to the Borrower and its Subsidiaries in respect of the Limited Originator Recourse during such fiscal year and (x) any decrease in the Notes Receivable during such fiscal year over (b) the sum, without duplication, of (i) an amount equal to the amount of all non-cash credits included in determining such Consolidated Net Income, (ii) the aggregate amount actually paid by the Borrower and its Subsidiaries in cash during such fiscal year on account of Capital Expenditures (excluding the principal amount of Indebtedness incurred in connection with such expenditures and any such expenditures financed with the proceeds of any portion of any Reinvestment Deferred Amount that exceeded any gain included in the determination of Consolidated Net Income recognized as a result of the event that gave rise to such Reinvestment Deferred Amount or Permitted Expenditure Amounts), (iii) the CapEx Carryforward Amount for such fiscal year, (iv) the aggregate amount of all prepayments of Revolving Credit Loans and Swing Line Loans during such fiscal year to the extent accompanying permanent optional reductions of the Revolving Credit Commitments and all optional prepayments of the Term Loans and other Funded Debt (to the extent such Funded Debt may not be reborrowed under the terms of such Funded Debt) during such fiscal year, (v) the aggregate amount of all regularly scheduled principal payments of Funded Debt (including, without limitation, the Term Loans) of the Borrower and its Subsidiaries made during such fiscal year (other than in respect of any revolving credit facility to the extent there is not an equivalent permanent reduction in commitments thereunder), (vi) increases in Consolidated Working Capital for such fiscal year, (vii) an amount equal to the aggregate net non-cash gain on the Disposition of Property by the Borrower and its Subsidiaries during such fiscal year (other than sales of inventory in the ordinary course of business), to the extent included in determining such Consolidated Net Income, (viii) the net decrease during such fiscal year (if any) in deferred tax accounts of the Borrower and Holdings and any distributions of the type described in Section 7.6(d), (ix) any cash payments made during such period in permanent satisfaction of non-current liabilities of the Borrower and its Subsidiaries, (x) any cash payments made during such fiscal year in respect of restructuring charges to the extent not deducted in determining such Consolidated Net Income, (xi) any Restricted Payments permitted under Section 7.6 and made in cash during such fiscal year, (xii) increases during such fiscal year in the retained interest of the Borrower and its Subsidiaries in any Securitization Entity resulting from the sale of Receivables to such Securitization Entity in connection with a Permitted Receivables Financing, (xiii) any cash payments made during such fiscal year pursuant to Investments permitted under Sections 7.8(d), 7.8(i) (other than in respect of Acquisitions consummated in accordance with clause (i)(A)(y) of the proviso to Section 7.8(i)) and 7.8(l) and which results in a net increase during such fiscal year in the outstanding or unreturned cash balance of such Investments, (xiv) any gain recognized as a result of any Asset Sale or Recovery Event to the extent such gain was included in determining such Consolidated Net Income, (xv) the amount of non-cash charges that decreased Consolidated Working Capital during such fiscal year which resulted from items that the Borrower reasonably determines in good faith are expected to be paid in cash in the immediately following fiscal year, (xvi) any cash deposits made by the Borrower and its subsidiaries pursuant to the Limited Originator Recourse during such fiscal year, (xvii) the amount of cash actually paid by the Borrower and its subsidiaries during such period in respect of fees and expenses associated with the negotiation, execution and delivery of this Agreement and any Permitted Receivables Financing refinancing or replacing the Existing Receivables Facility and (xviii) any increase in the Notes Receivable during such fiscal year.

“ Excess Cash Flow Application Date ”: as defined in Section 2.12(c).

“ Exchange Act ”: as defined in Section 8(k).

“ Excluded Subsidiaries ”: collectively, any Foreign Subsidiaries and any Securitization Entities.

“ Existing Credit Facilities ”: the Amended and Restated Credit Agreement, dated as of August 2, 2002, among Holdings, the Borrower, the lenders party thereto, Lehman Commercial Paper Inc., as syndication agent, Fleet National Bank and LaSalle Bank National Association, as documentation agents, and General Electric Capital Corporation, as administrative agent.

 

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“ Existing Letters of Credit” : the letters of credit described in Schedule 1.1A.

“ Existing Receivables Facility ”: the $300,000,000 non-recourse off-balance sheet receivables purchase and equipment financing facility established by the Borrower and in effect on the Effective Date, as the same may be amended, modified, changed or replaced from time to time.

“ Existing Term Commitment ”: as to each Existing Term Lender, the amount set forth under the heading “Existing Term Commitment” opposite such Lender’s name on Schedule 1 to the Lender Addendum delivered by such Lender or, as the case may be, in the Assignment and Acceptance pursuant to which such Lender became a party hereto. The original aggregate amount of the Existing Term Commitments on the Effective Date was $200,000,000.

“ Existing Term Lender ”: each Lender which has an Existing Term Commitment or which is the holder of an Existing Term Loan.

“ Existing Term Loan ”: as defined in Section 2.1.

“ Expenditure Use Amounts ”: at any date, the amount equal to the sum of (a) all amounts utilized by Holdings, the Borrower and its Subsidiaries as of such date to finance Capital Expenditures, other than Capital Expenditures which are (i) not in excess of the permitted Capital Expenditures for the relevant fiscal year as set forth in Section 7.7(a) and any CapEx Carryforward Amounts from the prior fiscal year, (ii) financed with Reinvestment Deferred Amounts, or (iii) attributable to all or a portion of the cost of Acquisitions or Subsidiary Acquisitions permitted under Section 7.8, (b) all amounts utilized by Holdings, the Borrower and its Subsidiaries as of such date to finance Acquisitions permitted pursuant to Section 7.8(i), except to the extent that the consideration (determined in accordance with Section 7.8(i)) for all such Acquisitions made since the Effective Date does not exceed $50,000,000 in the aggregate and (c) all amounts utilized by the Borrower and the Subsidiary Guarantors as of such date to finance Investments (other than Acquisitions) pursuant to Section 7.8(i), except to the extent that the consideration (determined in accordance with Section 7.8(i)) for all such Investments (other than Acquisitions) made since the Effective Date does not exceed $5,000,000 in the aggregate.

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

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

“ First Amendment ”: the First Amendment dated as of July 14, 2006, to the Credit Agreement.

“ First Amendment Effective Date ”: July 14, 2006.

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

“ Funded Debt ”: as to any Person, all Indebtedness of such Person that matures more than one year from the date of its creation or matures within one year from such date but is renewable or extendible, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including, without limitation, all current maturities and current sinking fund payments in respect of such Indebtedness whether or not required to be paid within one year from the date of its creation and, in the case of the Borrower, Indebtedness in respect of the Loans, provided that (a) any Indebtedness of such Person in respect of the undrawn portion of any

 

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letter of credit shall not constitute Funded Debt of such Person and (b) any undrawn loan commitment or cash collateral deposit pursuant to the Limited Originator Recourse shall not constitute Funded Debt of the Borrower and its Subsidiaries.

“ Funding Office ”: the office specified from time to time by the Administrative Agent as its funding office by notice to the Borrower and the Lenders.

“ GAAP ”: generally accepted accounting principles in the United States of America as in effect from time to time, except that for purposes of Section 7.1, GAAP shall be determined on the basis of such principles in effect on the date hereof and consistent with those used in the preparation of the most recent audited financial statements delivered pursuant to Section 4.1(b), except that calculations made for purposes of determining compliance with Section 7.1 and for purposes of determining the Applicable Margin shall be made without giving effect to depreciation, amortization or other expenses to the extent recorded as a result of the application of purchase accounting in accordance with Accounting Principles Board Opinion Nos. 16 and 17. In the event that any “Accounting Change” (as defined below) shall occur and such change results in a change in the method of calculation of financial covenants, standards or terms in this Agreement, then the Borrower and the Administrative Agent agree to enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Changes with the desired result that the criteria for evaluating the Borrower’s financial condition shall be the same after such Accounting Changes as if such Accounting Changes had not been made. Until such time as such an amendment shall have been executed and delivered by the Borrower, the Administrative Agent and the Required Lenders, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Changes had not occurred. “ Accounting Changes ” refers to changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the Securities and Exchange Commission (or successors thereto or agencies with similar functions).

“ Governmental Authority ”: any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government (including, without limitation, the National Association of Insurance Commissioners).

“ Guarantee and Collateral Agreement ”: the Guarantee and Collateral Agreement to be executed and delivered by Holdings, Alliance Laundry Corporation, the Borrower and each Subsidiary Guarantor, substantially in the form of Exhibit A, as the same may be amended, supplemented or otherwise modified from time to time.

“ Guarantee Obligation ”: as to any Person (the “ guaranteeing person ”), any obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “ primary obligations ”) of any other third Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including, without limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any Property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase Property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided , however , that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection or standard contractual indemnities entered into, in each case, in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.

 

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“ Guarantors ”: the collective reference to Holdings, Alliance Laundry Corporation and the Subsidiary Guarantors.

“ Hedge Agreements ”: all interest rate or currency swaps, caps or collar agreements, foreign exchange agreements, commodity contracts or similar arrangements entered into by the Borrower or its Subsidiaries providing for protection against increases, decreases or fluctuations in interest rates, currency exchange rates, commodity prices or the exchange of nominal interest obligations, either generally or under specific contingencies.

“ Holdings ”: as defined in the Preamble to this Agreement.

“ Income Taxes ”: as defined in Section 2.20(a).

“ Indebtedness ”: of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of Property or services (other than current accounts or trade payables and accrued expenses incurred in the ordinary course of such Person’s business and excluding any such obligations arising under ERISA other than such obligations which must be satisfied within the succeeding twelve months) to the extent such obligations would appear as liabilities on a consolidated balance sheet of such Person prepared in accordance with GAAP, (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to Property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such Property), (e) all Capital Lease Obligations of such Person, (f) the face amount of all obligations of such Person, contingent or otherwise, as an account party under acceptance, letter of credit or similar facilities ( provided that the Existing Letters of Credit shall not constitute Indebtedness to the extent supported by Letters of Credit issued under this Agreement), (g) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (f) above, (h) all obligations of the kind referred to in clauses (a) through (g) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on Property (including, without limitation, accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, and (i) for the purposes of Section 8(e) only, all obligations of such Person in respect of Hedge Agreements. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness expressly provide that such Person is not liable therefor. The amount of any Indebtedness under (x) clause (h) shall be equal to the lesser of (A) the stated amount of the relevant obligations and (B) the fair market value of the Property subject to the relevant Lien and (y) clause (i) shall be the net amount, including any net termination payments, required to be paid to a counterparty rather than the notional amount of the applicable Hedge Agreement.

“ Indemnified Liabilities ”: as defined in Section 10.5.

“ Indemnitee ”: as defined in Section 10.5.

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

“ Insolvent ”: pertaining to a condition of Insolvency.

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

 

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

“ Interest Payment Date ”: (a) as to any Base Rate Loan, the first day of each April, July, October and January to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or shorter, the last day of such Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer than three months, each day that is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period and (d) as to any Loan (other than any Revolving Credit Loan that is a Base Rate Loan and any Swing Line Loan), the date of any repayment or prepayment made in respect thereof.

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

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

(ii) (A) any Interest Period with respect to any Revolving Credit Loan that would otherwise extend beyond the Revolving Credit Termination Date shall end on the Revolving Credit Termination Date and (B) any Interest Period with respect to any Term Loan that would otherwise extend beyond the date final payment is due on the Term Loans shall end on such due date;

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

(iv) the Borrower shall select Interest Periods so as not to require a prepayment of any Eurodollar Loan during an Interest Period for such Loan in connection with any scheduled payment of principal with respect thereto.

“ Investments ”: as defined in Section 7.8.

“ Issuing Lender ”: (a) Bank of America, N.A. (as successor to LaSalle Bank National Association), (b) any other Revolving Credit Lender from time to time designated by the Borrower as an Issuing Lender with the consent of such Revolving Credit Lender and the Administrative Agent and (c) any commercial bank reasonably acceptable to the Borrower which is designated as an “Issuing Lender” by the Administrative Agent and subject to a master letter of credit agreement with the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent.

“ Joint Venture Step-Up Period ” shall mean any period commencing on the first day on which the Consolidated Leverage Ratio, after giving effect to any Investment made pursuant to Section 7.8(w), is less than 4.50 to 1.00 and ending on the first day thereafter on which the Consolidated Leverage Ratio, after giving effect to any Investment made pursuant to Section 7.8(w), is greater than or equal to 4.50 to 1.00.

 

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“ L/C Commitment ”: $40,000,000.

“ L/C Fee Payment Date ”: the first day of each April, July, October and January and the last day of the Revolving Credit Commitment Period.

“ L/C Obligations ”: at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit which have not then been reimbursed pursuant to Section 3.5.

“ L/C Participants ”: the collective reference to all the Revolving Credit Lenders.

“ Lender Addendum ”: with respect to any initial Lender, a Lender Addendum, substantially in the form of Exhibit I, executed and delivered by such Lender on the Effective Date as provided in Section 10.17.

“ Lender-Related Distress Event ” means, with respect to any Lender, a voluntary or involuntary case with respect to such Lender under the Bankruptcy Code or any similar bankruptcy laws of its jurisdiction of formation, or a custodian, conservator, receiver or similar official is appointed for such Lender or any substantial part of such Lender’s assets, or such Lender is subject to a forced liquidation, merger, sale or other change of control supported in whole or in part by guaranties or other support of (including without limitation the nationalization or assumption of ownership or operating control by) the U.S. government or other governmental authority, or such Lender makes an general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any governmental authority having regulatory authority over such Lender or its assets to be, insolvent or bankrupt.

“ Lenders ”: as defined in the Preamble to this Agreement.

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

“ Lien ”: any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever, in each case, for the purpose of securing any obligation of any Person (including, without limitation, any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing).

“ Limited Originator Recourse ”: a letter of credit, revolving loan commitment, cash collateral account or other such credit enhancement issued in connection with the incurrence of Indebtedness by a Securitization Entity under a Permitted Receivables Financing; provided that, the aggregate amount of such letter of credit reimbursement obligations and the aggregate available amount of such revolving loan commitments, cash collateral accounts or other such credit enhancements of the Borrower and the Subsidiary Guarantors shall not exceed 15.0% of the principal amount of such Indebtedness at any time.

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

“ Loan Documents ”: this Agreement, the Security Documents, the Notes and the Applications.

“ Loan Parties ”: Holdings, the Borrower, Alliance Laundry Corporation and each Subsidiary of the Borrower which is a party to a Loan Document.

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

 

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“ Majority Revolving Credit Facility Lenders ”: the Majority Facility Lenders in respect of the Revolving Credit Facility.

“ Management Notes ”: as defined in Section 7.6(b).

“ Management Shareholders ”: the members of management of Holdings or the Borrower who are investors in ALH.

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

“ Material Subsidiary ”: any Subsidiary of Holdings or the Borrower which has assets (valued at their fair market value) or annual revenues which are in excess of $2,500,000.

“ Materials of Environmental Concern ”: any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or wastes, defined or regulated as such in or under any Environmental Law, including, without limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.

“ Moody’s ”: as defined in the definition of “Cash Equivalents.”

“ Mortgaged Properties ”: the real properties listed on Schedule 1.1, as to which the Administrative Agent for the benefit of the Secured Parties has been or shall be granted a Lien pursuant to the Mortgages.

“ Mortgages ”: each of the mortgages and deeds of trust made by any Loan Party in favor of, or for the benefit of, the Administrative Agent for the benefit of the Secured Parties, substantially in the form of Exhibit D (with such changes thereto as shall be advisable under the law of the jurisdiction in which such mortgage or deed of trust is to be recorded), as the same may be amended, supplemented or otherwise modified from time to time.

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

“ Net Cash Proceeds ”: (a) in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or the sale or disposition of any non-cash consideration or otherwise, but only as and when received and excluding the portion of such deferred payment constituting interest) of such Asset Sale or Recovery Event, net of attorneys’ fees, accountants’ fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset which is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document) and other customary costs, fees and expenses actually incurred in connection therewith and net of taxes paid or reasonably estimated to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements) and net of amounts deposited in escrow in connection therewith or reasonably expected to be paid as a result of any purchase price adjustment, indemnities or reserves related thereto (such amounts shall be Net Cash Proceeds to the extent and at the time released or not required to be so used) and (b) in connection with any issuance or sale of equity securities or debt securities or instruments or the incurrence of loans or capital contribution, the cash proceeds received from such issuance, incurrence or capital contribution, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith.

 

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“ Non-Excluded Taxes ”: as defined in Section 2.20(a).

“ Non-Extension Notice Date ”: as defined in Section 3.8(a).

“ Non-Reinstatement Deadline ”: as defined in Section 3.8(b).

“ Non-U.S. Lender ”: as defined in Section 2.20(d).

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

“ Notes Receivable ”: as to the Borrower or any of its Subsidiaries, any right to payment in respect of loans or finance leases made by the Borrower or such Subsidiary to its customers or users of the Borrower’s or any Subsidiary’s product or customers of distributors of such products in the ordinary course of business.

“ Not Otherwise Applied ”: with reference to any amount of Excess Cash Flow, means that such amount was not previously applied in determining the permissibility of a transaction under the Loan Documents where such permissibility was (or may have been) contingent on receipt of such amount. The Company shall promptly notify the Administrative Agent of any application of such amount as contemplated by the prior sentence.

“ Obligations ”: the unpaid principal of and interest on (including, without limitation, interest accruing after the maturity of the Loans and Reimbursement Obligations and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and Reimbursement Obligations and all other obligations and liabilities of the Borrower to the Administrative Agent or to any Lender (or, in the case of Hedge Agreements, any affiliate of any Lender), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, the Letters of Credit, any Hedge Agreement entered into with any Lender or any affiliate of any Lender, or any other document made, delivered or executed by any Loan Party in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including, without limitation, all fees, charges and disbursements of counsel to the Administrative Agent or to any Lender that are required to be paid by the Borrower pursuant hereto) or otherwise; provided , that (i) obligations of the Borrower or any Subsidiary under any Specified Hedge Agreement shall be secured and guaranteed pursuant to the Security Documents only to the extent that, and for so long as, the other Obligations are so secured and guaranteed and (ii) any release of Collateral or Guarantors effected in the manner permitted by this Agreement shall not require the consent of holders of obligations under Specified Hedge Agreements.

“ Other Taxes ”: any and all present or future stamp or documentary taxes or any other excise taxes (other than excise taxes imposed in lieu of Income Taxes), charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

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

“ Participation Amount ”: as defined in Section 3.4(b).

“ PATRIOT Act ”: as defined in Section 10.20

“ Payment Office ”: the office specified from time to time by the Administrative Agent as its payment office by notice to the Borrower and the Lenders.

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

 

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“ Permitted Expenditure Amounts ”: at any date, the amount equal to (a) the sum of (i) all Designated Equity Amounts as of such date and (ii) any portion of the Excess Cash Flow of the Borrower for fiscal years completed since the Effective Date which was not required to be applied toward the prepayment of the Term Loan pursuant to the provisions of Section 2.12(c) as of such date minus (b) the aggregate amount of Expenditure Use Amounts as of such date.

“ Permitted Investors ”: the collective reference to (a) the Sponsor, (b) its Control Investment Affiliates and (c) the Management Shareholders to the extent that such Management Shareholders in the aggregate own beneficially or of record no more than 25% of the outstanding Capital Stock of ALH.

“ Permitted Receivables Financing ”: (a) the Existing Receivables Facility, as the same may be amended, modified, changed or replaced from time to time and/or (b) any other off-balance sheet transaction providing for the sale of Receivables by the Borrower and its Subsidiaries to a Securitization Entity or any other Person (other than Holdings, the Borrower or any of their respective Subsidiaries) which transaction may include limited recourse to the Borrower and its Subsidiaries (not to exceed the Limited Originator Recourse) based on the collectability of the Receivables sold.

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

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

“ Platform ”: as defined in Section 10.18.

“ Pricing Grid ”: the pricing grid attached hereto as Annex A.

“ Pro Forma Balance Sheet ”: as defined in Section 4.1(a).

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

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

“ Property ”: any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, without limitation, Capital Stock.

“ Purchase ”: as defined in the second recital to this Agreement.

“ Purchase Agreement ”: the Unit Purchase Agreement, dated as of December 7, 2004, by and among Holdings, the Sellers and ALH, as amended, supplemented or otherwise modified from time to time.

“ Purchase Documents ”: the collective reference to the Purchase Agreement and all other documents and agreements delivered in connection therewith.

“ Qualified Counterparty ”: with respect to any Specified Hedge Agreement, any counterparty thereto that, at the time such Specified Hedge Agreement was entered into, was a Lender or an affiliate of a Lender.

“ Receivables ”: as to the Borrower or any of its Subsidiaries, collectively, the Accounts Receivable and Notes Receivable of the Borrower or such Subsidiary, as the case may be.

 

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“ Recovery Event ”: any settlement of or payment in respect of any property or casualty insurance claim (but not to the extent such claim compensates for any loss of revenues or interruption of business or operations caused thereby) or any condemnation proceeding relating to any asset of Holdings, the Borrower or any of its Subsidiaries with a value in excess of $500,000.

“ Refunded Swing Line Loans ”: as defined in Section 2.7(b).

“ Refunding Date ”: as defined in Section 2.7(c).

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

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

“ Reimbursement Obligation ”: the obligation of the Borrower to reimburse the relevant Issuing Lender or the Administrative Agent, as the case may be, pursuant to Section 3.5 for amounts drawn under Letters of Credit.

“ Reinvestment Deferred Amount ”: with respect to any Reinvestment Event, the aggregate Net Cash Proceeds received by Holdings, the Borrower or any of its Subsidiaries in connection therewith which are not applied to prepay the Term Loans pursuant to Section 2.12(b) as a result of the delivery of a Reinvestment Notice.

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

“ Reinvestment Notice ”: a written notice executed by a Responsible Officer stating that no Event of Default has occurred and is continuing and that the Borrower (directly or indirectly through a Subsidiary Guarantor) (in the case of any Asset Sale or Recovery Event relating to assets of the Borrower or a Subsidiary Guarantor) or any Subsidiary (in the case of any Asset Sale or Recovery Event relating to assets of a Subsidiary which is not a Subsidiary Guarantor) intends and expects to use all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire assets (directly or through the purchase of the Capital Stock of a Person pursuant to an Acquisition or (in the case of any Asset Sale or Recovery Event relating to assets of a Subsidiary which is not a Subsidiary Guarantor or the Capital Stock of any such Subsidiary) Subsidiary Acquisition) useful in its business.

“ Reinvestment Prepayment Amount ”: with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant Reinvestment Prepayment Date to acquire assets (directly or through the purchase of the Capital Stock of a Person pursuant to an Acquisition or (in the case of any Asset Sale or Recovery Event relating to assets of a Subsidiary which is not a Subsidiary Guarantor or the Capital Stock of any such Subsidiary) Subsidiary Acquisition) useful in the Borrower’s or any of its Subsidiaries’ business.

“ Reinvestment Prepayment Date ”: with respect to any Reinvestment Event, the earlier of (a) the date occurring six months after such Reinvestment Event (or in the case of any Reinvestment Event arising out of a casualty insurance claim where the Borrower or any of its Subsidiaries is rebuilding or restoring the property subject to such casualty, the date occurring twelve months after such Reinvestment Event) and (b) the date on which the Borrower shall have determined not to, or shall have otherwise ceased to, acquire assets (directly or through the purchase of the Capital Stock of a Person pursuant to an Acquisition or (in the case of any Asset Sale or Recovery Event relating to assets of a Subsidiary which is not a Subsidiary Guarantor or the Capital Stock of any such Subsidiary) Subsidiary Acquisition) useful in the Borrower’s or any of its Subsidiaries’ business with all or any portion of the relevant Reinvestment Deferred Amount.

“ Related Parties ”: 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.

 

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

“ Reportable Event ”: any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the notice period is waived under subsections .22, .23, .25, .27 or .28 of PBGC Reg. § 4043.

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

“ Required Prepayment Lenders ”: the Majority Facility Lenders in respect of each Facility.

“ Required Revolving Credit Lenders ”: at any time, the holders of more than 50% of (a) until the Effective Date, the Total Revolving Credit Commitments and (b) thereafter, the Total Revolving Credit Commitments then in effect or, if the Revolving Credit Commitments have been terminated, the Total Revolving Extensions of Credit then outstanding.

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

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

“ Restatement Effective Date ”: March 12, 2009.

“ Restricted Payments ”: as defined in Section 7.6.

“ Revolving Credit Commitment ”: as to any Lender, the obligation of such Lender, if any, to make Revolving Credit Loans and participate in Swing Line Loans and Letters of Credit (or guarantees by the Administrative Agent in respect of Letters of Credit issued by Issuing Lenders which are not Lenders), in an aggregate principal and/or face amount not to exceed the amount set forth under the heading “Revolving Credit Commitment” opposite such Lender’s name on Schedule 1.1 or, as the case may be, in the Assignment and Acceptance pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The original amount of the Total Revolving Credit Commitments is $55,000,000.

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

“ Revolving Credit Facility ”: as defined in the definition of “Facility” contained in this Section 1.1.

“ Revolving Credit Lender ”: each Lender which has a Revolving Credit Commitment or which is the holder of Revolving Credit Loans.

“ Revolving Credit Loans ”: as defined in Section 2.4.

“ Revolving Credit Percentage ”: as to any Revolving Credit Lender at any time, the percentage which such Lender’s Revolving Credit Commitment then constitutes of the Total Revolving Credit Commitments (or, at any time after the Revolving Credit Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Lender’s Revolving Extensions of Credit then outstanding constitutes of the aggregate principal amount of the Revolving Extensions of Credit of all the Revolving Credit Lenders then outstanding).

 

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“ Revolving Credit Termination Date ”: the sixth anniversary of the Effective Date.

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

“ Sale/Leaseback Transaction ”: as defined in Section 7.11.

“ S&P ”: as defined in the definition of “Cash Equivalents.”

“ Second Amendment ”: the Second Amendment dated as of September 10, 2007, to the Credit Agreement.

“ Second Amendment Effective Date ”: September 10, 2007.

“ Secured Parties ”: as defined in the Guarantee and Collateral Agreement.

“ Securities Act ”: the Securities Act of 1933, as amended.

“ Securitization Documentation ”: the collective reference to the documentation pursuant to which any Permitted Receivables Financing is established and maintained.

“ Securitization Entity ”: as to the Borrower or any of its Subsidiaries, a corporation, partnership, trust, limited liability company or other entity that is formed from time to time by the Borrower or such Subsidiary for the purpose of purchasing or financing Receivables of the Borrower and/or its Subsidiaries pursuant to any Permitted Receivables Financing and (other than with respect to Alliance Laundry Equipment Receivables LLC, Alliance Laundry Equipment Receivables Trust 2000-A, Alliance Laundry Equipment Receivables 2002 LLC and Alliance Laundry Equipment Receivables Trust 2002-A) that is designated as a “Securitization Entity” in a written notice delivered to the Administrative Agent by the Borrower (including, without limitation, Alliance Laundry Equipment Receivables LLC, Alliance Laundry Equipment Receivables Trust 2000-A, Alliance Laundry Equipment Receivables 2002 LLC, Alliance Laundry Equipment Receivables Trust 2002-A and any similar entity formed after the Effective Date) so long as (a) such corporation, partnership, trust, limited liability company or other entity engages in no business and incurs no Indebtedness or other liabilities or obligations other than those related to or incidental to the relevant Permitted Receivables Financing, (b) neither the Borrower nor any Subsidiary issues or incurs any Indebtedness or Guarantee Obligations (other than Limited Originator Recourse) in respect of, or grants any Lien on any of its assets or properties to secure, any Indebtedness, liabilities or other obligations of such corporation, partnership, trust, limited liability company or other entity or otherwise relating to such Permitted Receivables Financing, (c) neither Holdings, the Borrower nor any of their respective Subsidiaries has any material contract, agreement, arrangement or understanding other than on terms no less favorable to Holdings, the Borrower or such Subsidiary than those that might be obtained at that time from Persons that are not Affiliates of the Borrower, other than fees payable in the ordinary course of business in connection with servicing receivables of such entity, and (d) neither Holdings, the Borrower nor any of their respective Subsidiaries has any obligation to maintain such entity’s financial condition or cause such entity to achieve certain levels of operating results (other than those related to or incidental to the relevant Permitted Receivables Financing).

“ Security Documents ”: the collective reference to the Guarantee and Collateral Agreement, the Mortgages and all other security documents hereafter delivered to and accepted by the Administrative Agent granting a Lien on any Property of any Person to secure the obligations and liabilities of any Loan Party under any Loan Document.

“ Sellers ”: as defined in the Purchase Agreement.

“ Senior Subordinated Note Indenture ”: the indenture entered into by the Borrower and certain of its Subsidiaries in connection with the issuance of the Senior Subordinated Notes, together with all instruments and other agreements entered into by the Borrower or such Subsidiaries in connection therewith, as the same may be amended, supplemented or otherwise modified from time to time.

 

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“ Senior Subordinated Notes ”: the 8.5% Senior Subordinated Notes due 2013 issued pursuant to the Senior Subordinated Note Indenture and any senior subordinated notes having the same terms and conditions as such Senior Subordinated Notes issued in exchange for such Senior Subordinated Notes pursuant to the Senior Subordinated Note Indenture, as the same may be amended, supplemented or otherwise modified from time to time.

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

“ Solvent ”: when used with respect to any Person, means that, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the “present fair saleable value” (as determined in accordance with applicable federal and state laws governing determination of the insolvency of debtors) of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature. For purposes of this definition, (i) “debt” means liability on a “claim”, (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured, and (iii) the Borrower may assume, so long as no Default or Event of Default shall have occurred and be continuing at the time such assumption is made, that all or a portion of the outstanding Term Loans or Indebtedness permitted under Section 7.2(f) will be refinanced at the maturity thereof.

“ Specified Change of Control ”: a “Change of Control” as defined in the Senior Subordinated Note Indenture.

“ Specified Hedge Agreement ”: any Hedge Agreement entered into by (a) the Borrower or any of its Subsidiaries and (b) any Person that is a Qualified Counterparty.

“ Sponsor ”: as defined in the first recital to this Agreement.

“ Subsidiary ”: as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, (a) all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower and (b) except as otherwise expressly provided herein, for purposes of this Agreement, no Securitization Entity shall be a Subsidiary of the Borrower or Holdings.

“ Subsidiary Acquisition ”: any Investment (other than an Acquisition) which results in the creation or acquisition of a Subsidiary.

“ Subsidiary Guarantor ”: each Subsidiary of the Borrower other than any Excluded Subsidiary.

“ Swing Line Commitment ”: the obligation of the Swing Line Lender to make Swing Line Loans pursuant to Section 2.6 in an aggregate principal amount at any one time outstanding not to exceed $10,000,000.

 

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“ Swing Line Lender ”: Bank of America, N.A. in its capacity as the lender of Swing Line Loans.

“ Swing Line Loans ”: as defined in Section 2.6.

“ Swing Line Participation Amount ”: as defined in Section 2.7(c).

“ Syndication Agent ”: as defined in the Preamble to this Agreement.

“ Syndication Date ”: the date on which the Administrative Agent completes the syndication of the Facilities and the entities selected in such syndication process become parties to this Agreement.

“ Taxes ”: as defined in Section 2.20(a).

“ Tax Refund ”: as defined in Section 2.20(f).

“ Term Loan ”: as defined in Section 2.1.

“ Term Loan Commitment ”: each Existing Term Commitment and each Additional Term Commitment.

“ Term Loan Facility ”: as defined in the definition of “Facility” contained in this Section 1.1.

“ Term Loan Lender ”: each Existing Term Lender and each Additional Term Lender.

“ Term Loan Maturity Date ”: the date that is the seventh anniversary of the Effective Date.

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

“ Total Liquidity ”: at any time, the sum of (a) the aggregate amount of cash and Cash Equivalents on hand of the Borrower and its Subsidiaries at such time and (b) the amount of the unused Total Revolving Commitments at such time.

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

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

“ Transaction Costs ”: all fees, costs and expenses incurred by Holdings, the Borrower and their respective Subsidiaries in connection with the Purchase Agreement (including expenses of the Sellers), the Equity Financing, the Loan Documents, the Senior Subordinated Notes, the tender offer for the existing senior subordinated notes and the repayment of other existing Indebtedness, negotiating and executing the executive management retention bonus agreements and amending the Existing Receivables Facilities and the CLD Purchase Agreements, in each case to the extent incurred on or prior to the Effective Date.

“ Transferee ”: as defined in Section 10.14.

“ Type ”: as to any Loan, its nature as a Base Rate Loan or a Eurodollar Loan.

 

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“ UCC Filing Collateral ”: Collateral (other than fixtures) as to which filing financing statements under the Uniform Commercial Code of the applicable jurisdiction is an appropriate method of perfection of a security interest in such Collateral.

“ U.S. CLD Purchase Agreement ”: the Purchase Agreement dated as of May 23, 2006, between the Borrower, the CLD Seller and the other sellers named therein.

“ Wholly Owned Subsidiary ”: as to any Person, any other Person all of the Capital Stock of which (other than directors’ qualifying shares required by law and/or other nominal amounts of shares or other equity interests required by law to be held other than by such Person) is owned by such Person directly and/or through other Wholly Owned Subsidiaries.

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

1.2 Other Definitional Provisions .

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

(b) As used herein and in the other Loan Documents, and in any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings, the Borrower and its Subsidiaries not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.

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

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

SECTION 2.

AMOUNT AND TERMS OF COMMITMENTS

2.1 Term Loan Commitments . Each Existing Term Lender made a term loan (each, an “ Existing Term Loan ”) to the Borrower on the Effective Date in an amount equal to the amount of the Existing Term Commitment of such Lender. Each Additional Term Lender made a term loan (each, an “ Additional Term Loan ”; together with the Existing Term Loans, the “ Term Loans ”) to the Borrower on the First Amendment Effective Date in an amount equal to the amount of the Additional Term Commitment of such Lender. The Term Loans may from time to time be Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.13.

2.2 Procedure for Term Loan Borrowing .

(a) The Borrower gave the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent prior to 1:00 P.M., New York City time, one Business Day prior to the Effective Date) requesting that the Term Loan Lenders make the Term Loans on the Effective Date. The Term Loans made on the Effective Date were initially Base Rate Loans, and no Term Loan was converted into or continued as a Eurodollar Loan having an Interest Period in excess of one month prior to the earlier of (x) the Syndication Date and (y) the date which is 21 days after the Effective Date. Upon receipt of such notice the Administrative Agent promptly notified each Term Loan Lender thereof. Not later than 12:00 Noon, New York City time, on the Effective Date each

 

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Term Loan Lender made available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the Term Loan to be made by such Lender. The Administrative Agent transfered to the account of the Borrower specified by the Borrower the aggregate of the amounts made available to the Administrative Agent by the Term Loan Lenders in immediately available funds.

(b) The Borrower gave the Administrative Agent irrevocable notice (which notice must have been received by the Administrative Agent prior to 1:00 P.M., New York City time, one Business Day prior to the First Amendment Effective Date) requesting that the Additional Term Lenders make the Additional Term Loans on the First Amendment Effective Date. The Additional Term Loans made on the First Amendment Effective Date initially were Eurodollar Loans having the same rate of interest and maturity date as the Existing Term Loans. Upon receipt of such notice the Administrative Agent promptly notified each Additional Term Lender thereof. Not later than 12:00 Noon, New York City time, on the First Amendment Effective Date each Additional Term Lender made available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the Additional Term Loan to be made by such Lender. The Administrative Agent transfered to the account of the Borrower specified by the Borrower the aggregate of the amounts made available to the Administrative Agent by the Additional Term Lenders in immediately available funds.

(c) After the borrowings made pursuant to Section 2.2(a) and (b) no Term Loan Commitments remain outstanding.

2.3 Repayment of Term Loans . The Term Loan of each Term Loan Lender shall mature in 22 consecutive quarterly installments, commencing on September 30, 2006, each of which shall be in an amount equal to such Lender’s Term Loan Percentage multiplied by the amount set forth below opposite such installment:

 

 

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; provided that in any event the aggregate principal amount of the Term Loans outstanding on the Term Loan Maturity Date shall be repaid on the Term Loan Maturity Date.

2.4 Revolving Credit Commitments .

(a) Subject to the terms and conditions hereof, each Revolving Credit Lender severally agrees to make revolving credit loans (“ Revolving Credit Loans ”) to the Borrower from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Credit Percentage of the sum of (i) the L/C Obligations then outstanding and (ii) the aggregate principal amount of the Swing Line Loans then outstanding, does not exceed the amount of such Lender’s Revolving Credit Commitment; provided that no Revolving Credit Loans shall be made on the Effective Date (except in respect of Letters of Credit in an aggregate face amount not to exceed the aggregate face amount of the Existing Letters of Credit). During the Revolving Credit Commitment Period, the Borrower may use the Revolving Credit Commitments by borrowing or prepaying and reborrowing the Revolving Credit Loans in whole or in part, all in accordance with the terms and conditions hereof. The Revolving Credit Loans may from time to time be Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.5 and 2.13, provided that no Revolving Credit Loan shall be made as a Eurodollar Loan after the day that is one month prior to the Revolving Credit Termination Date.

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

2.5 Procedure for Revolving Credit Borrowing .

The Borrower may borrow under the Revolving Credit Commitments during the Revolving Credit Commitment Period on any Business Day, provided that (x) no Revolving Credit Loans shall be made on the Effective Date and (y) the Borrower shall give the Administrative Agent irrevocable notice (which notice may be given by telephone, promptly confirmed by telecopy) (which notice must be received by the Administrative Agent prior to (a) 3:00 P.M., New York City time, three Business Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or (b) 12:00 Noon, New York City time, on the requested Borrowing Date, in the case of Base Rate Loans) specifying (i) the amount and Type of Revolving Credit Loans to be borrowed, (ii) the requested Borrowing Date, (iii) the account to which the proceeds of such Loans should be transferred and (iv) in the case of Eurodollar Loans, the respective length of the initial Interest Periods therefor. Except for Letters of Credit in an aggregate face amount not to exceed the aggregate face amount of the Existing Letters of Credit, no Revolving Credit Loan may be made as, converted into or continued as a Eurodollar Loan having an Interest Period in excess of one month prior to the earlier of (A) the Syndication Date and (B) the date which is 21 days after the Effective Date. Each borrowing under the Revolving Credit Commitments shall be in an amount equal to (x) in the case of Base Rate Loans, at least $250,000 (or, if the then aggregate Available Revolving Credit Commitments are less than $250,000, such lesser amount) and (y) in the case of Eurodollar Loans, $1,000,000 or a whole multiple of $100,000 in excess thereof; provided , that (A) the Swing Line Lender may request, on behalf of the Borrower, borrowings under the Revolving Credit Commitments which are Base Rate Loans in other amounts pursuant to Section 2.7 and (B) borrowings of Base Rate Loans contemplated under Section 3.5 shall not be subject to the requirements of this sentence. Upon receipt of any such notice from the Borrower, the Administrative Agent shall promptly notify each Revolving Credit Lender thereof. Each Revolving Credit Lender will make the amount of its pro rata share of each borrowing available to the Administrative Agent for the account of the Borrower at the Funding Office prior to (a) 12:00 Noon, New York City time, in the case of Eurodollar Loans, or (b) 2:00 P.M., New York City time, in the case of Base Rate Loans, on the Borrowing Date requested by the Borrower in Dollars and in funds immediately available to the Administrative Agent. Such borrowing will then be made immediately available on such day to the Borrower by the Administrative Agent transferring to the account of the Borrower specified by the Borrower the aggregate of the amounts made available to the Administrative Agent by the Revolving Credit Lenders and in like funds as received by the Administrative Agent.

 

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2.6 Swing Line Commitment .

(a) Subject to the terms and conditions hereof, the Swing Line Lender in reliance upon the agreement of the other Revolving Credit Lenders set forth in Section 2.7, may agree to make a portion of the credit otherwise available to the Borrower under the Revolving Credit Commitments from time to time during the Revolving Credit Commitment Period by making swing line loans (“ Swing Line Loans ”) to the Borrower; provided that (i) the making of any Swing Line Loan shall be in the sole and absolute discretion of the Swing Line Lender (including, without limitation, sole and absolute discretion as to whether to make such Swing Line Loan in the event there are any Defaulting Revolving Credit Lenders and the Swing Line Lender may impose any additional terms and conditions to the making of such Swing Line Loan not in violation of this Agreement), (ii) the Borrower shall not use the proceeds of any Swing Line Loan to refinance any other Swing Line Loan, (iii) the aggregate principal amount of Swing Line Loans outstanding at any time shall not exceed the Swing Line Commitment then in effect (notwithstanding that the Swing Line Loans outstanding at any time, when aggregated with the Swing Line Lender’s other outstanding Revolving Credit Loans hereunder, may exceed the Swing Line Commitment then in effect or such Swing Line Lender’s Revolving Credit Commitment then in effect) and (iv) the Borrower shall not request, and the Swing Line Lender shall not make, any Swing Line Loan if, after giving effect to the making of such Swing Line Loan, the aggregate amount of the Available Revolving Credit Commitments would be less than zero. During the Revolving Credit Commitment Period, the Borrower may use the Swing Line Commitment by borrowing, repaying and reborrowing, all in accordance with the terms and conditions hereof. Swing Line Loans shall be Base Rate Loans only.

The Borrower shall repay each outstanding Swing Line Loan on the earlier of (x) ten Business Days after the borrowing of such Swing Line Loan, (y) one Business Day after written notice from the Administrative Agent or the Swing Line Lender to the Borrower that any Revolving Credit Lender has become a Defaulting Revolving Credit Lender, and (z) the Revolving Credit Termination Date.

2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans .

(a) Whenever the Borrower desires that the Swing Line Lender make Swing Line Loans it shall give the Swing Line Lender irrevocable telephonic notice confirmed promptly in writing (which telephonic notice must be received by the Swing Line Lender not later than 1:30 P.M., New York City time, on the proposed Borrowing Date), specifying (i) the amount to be borrowed, (ii) the account to which such amount should be transferred and (iii) the requested Borrowing Date (which shall be a Business Day during the Revolving Credit Commitment Period). Each borrowing under the Swing Line Commitment shall be in a minimum amount equal to $50,000. Not later than 4:30 P.M., New York City time, on the Borrowing Date specified in a notice in respect of Swing Line Loans, the Swing Line Lender shall make available to the Administrative Agent at the Funding Office an amount in Dollars and in immediately available funds equal to the amount of the Swing Line Loan to be made by the Swing Line Lender. The Administrative Agent shall make the proceeds of such Swing Line Loan available to the Borrower on such Borrowing Date by transferring such proceeds to the account of the Borrower specified by the Borrower on such Borrowing Date in immediately available funds.

(b) The Swing Line Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swing Line Lender to act on its behalf), on one Business Day’s notice to the Administrative Agent given by the Swing Line Lender no later than 12:00 Noon, New York City time, request each Revolving Credit Lender to make, and each Revolving Credit Lender hereby severally agrees to make, a Revolving Credit Loan, in an amount equal to such Revolving Credit Lender’s Revolving Credit Percentage of the aggregate amount of the Swing Line Loans (the “ Refunded Swing Line Loans ”) outstanding on the date of such notice, to repay the Swing Line Lender. Upon receipt of any such notice from the Swing Line Lender, the Administrative Agent shall promptly notify the Revolving Credit Lenders thereof. Each Revolving Credit Lender shall make the amount of such Revolving Credit Loan available to the Administrative Agent at the Funding Office in immediately available funds, not later than 10:00 A.M., New York City time, one Business Day after the date of such notice. The proceeds of such Revolving Credit Loans shall be immediately made available by the Administrative Agent to the Swing Line Lender for application by the Swing Line Lender to the repayment of the Refunded Swing Line Loans.

 

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(c) If prior to the time a Revolving Credit Loan would have otherwise been made pursuant to Section 2.7(b), one of the events described in Section 8(f) shall have occurred and be continuing with respect to the Borrower or if for any other reason, as determined by the Swing Line Lender in its sole discretion, Revolving Credit Loans may not be made as contemplated by Section 2.7(b), each Revolving Credit Lender shall, on the date such Revolving Credit Loan was to have been made pursuant to the notice referred to in Section 2.7(b) (the “ Refunding Date ”), purchase for cash an undivided participating interest in the then outstanding Swing Line Loans by paying to the Swing Line Lender an amount (the “ Swing Line Participation Amount ”) equal to (i) such Revolving Credit Lender’s Revolving Credit Percentage times (ii) the sum of the aggregate principal amount of Swing Line Loans then outstanding which were to have been repaid with such Revolving Credit Loans.

(d) Whenever, at any time after the Swing Line Lender has received from any Revolving Credit Lender such Lender’s Swing Line Participation Amount, the Swing Line Lender receives any payment on account of the Swing Line Loans, the Swing Line Lender will distribute to such Lender its Swing Line Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded and, in the case of principal and interest payments, to reflect such Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swing Line Loans then due); provided , however , that in the event that such payment received by the Swing Line Lender is required to be returned, such Revolving Credit Lender will return to the Swing Line Lender any portion thereof previously distributed to it by the Swing Line Lender.

(e) If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of Section 2.7(b) by the time specified in Section 2.7(b), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Effective Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Revolving Credit Loan included in the relevant borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (e) shall be conclusive absent manifest error.

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

(g) Each Revolving Credit Lender’s obligation to make the Loans referred to in Section 2.7(b) and to purchase participating interests pursuant to Section 2.7(c) shall be absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Revolving Credit Lender or the Borrower may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever; (ii) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Section 2.5 or Section 5; (iii) any adverse change in the condition (financial or otherwise) of the Borrower; (iv) any breach of this Agreement or any other Loan Document by the Borrower, any other Loan Party or any other Revolving Credit Lender; or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

2.8 Repayment of Loans; Evidence of Debt .

The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of the appropriate Revolving Credit Lender, Term Loan Lender or the Swing Line Lender, as the case may be, (i) the then unpaid principal amount of each Revolving Credit Loan of such Revolving Credit Lender on the Revolving Credit Termination Date (or such earlier date on which the Loans become due and payable pursuant to Section 8), (ii) the then unpaid

 

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principal amount of each Swing Line Loan of such Swing Line Lender on the earlier of (x) ten Business Days after the borrowing of such Swing Line Loan, (y) one Business Day after written notice from the Administrative Agent or the Swing Line Lender to the Borrower that any Revolving Credit Lender has become a Defaulting Revolving Credit Lender, and (z) the Revolving Credit Termination Date (or such earlier date on which the Loans become due and payable pursuant to Section 8) and (iii) the principal amount of the Term Loan of such Term Loan Lender in installments according to the amortization schedule set forth in Section 2.3 (or on such earlier date on which the Loans become due and payable pursuant to Section 8). The Borrower hereby further agrees to pay interest on the unpaid principal amount of the Loans from time to time outstanding from the date hereof until payment in full thereof at the rates per annum, and on the dates, set forth in Section 2.15.

(a) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Borrower to such Lender resulting from each Loan of such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.

(b) The Administrative Agent, on behalf of the Borrower, shall maintain the Register pursuant to Section 10.6(d), and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Loan made hereunder and any Note evidencing such Loan, the Type thereof and each Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) both the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.

(c) The entries made in the Register and the accounts of each Lender maintained pursuant to Section 2.8(b) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded (absent manifest error); provided , however , that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to such Borrower by such Lender in accordance with the terms of this Agreement.

(d) The Borrower agrees that, upon the request to the Administrative Agent by any Lender, the Borrower will execute and deliver to such Lender a promissory note of the Borrower evidencing the Term Loan, Revolving Credit Loans or Swing Line Loans, as the case may be, of such Lender, substantially in the forms of Exhibit G-1, G-2 or G-3, respectively, with appropriate insertions as to date and principal amount; provided , that delivery of Notes shall not be a condition precedent to the occurrence of the Effective Date or the making of the Loans or issuance of Letters of Credit on the Effective Date.

2.9 Commitment Fees, etc .

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

(b) The Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the dates from time to time agreed to in writing by the Borrower and the Administrative Agent.

2.10 Termination or Reduction of Revolving Credit Commitments . The Borrower shall have the right, upon not less than three Business Days’ notice to the Administrative Agent, to terminate the Revolving Credit Commitments or, from time to time, to reduce the amount of the Revolving Credit Commitments; provided that no such termination or reduction of Revolving Credit Commitments shall be permitted if, after giving effect thereto and to any prepayments of the Revolving Credit Loans and Swing Line Loans made on the effective date thereof, the Total Revolving Extensions of Credit would exceed the Total Revolving Credit Commitments. Any such reduction

 

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shall be in an amount equal to $1,000,000, or a whole multiple thereof, and shall reduce permanently the Revolving Credit Commitments then in effect. Upon receipt of any such notice from the Borrower, the Administrative Agent shall promptly notify each Revolving Credit Lender thereof.

2.11 Optional Prepayments . The Borrower may at any time and from time to time prepay the Loans, in whole or in part, without premium or penalty, upon irrevocable notice delivered to the Administrative Agent prior to 12:00 Noon, New York City time, at least three Business Days prior thereto in the case of Eurodollar Loans or prior to 12:00 Noon, New York City time, at least one Business Day prior thereto in the case of Base Rate Loans (other than Swing Line Loans) or prior to 12:00 Noon, New York City time, on the date of such prepayment in the case of Swing Line Loans, which notice shall specify the date and amount of prepayment and whether the prepayment is of Eurodollar Loans or Base Rate Loans; provided , that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts then due and owing pursuant to Section 2.21; provided further , that all optional prepayments of Term Loans effected on or prior to the first anniversary of the Second Amendment Effective Date with the proceeds of a substantially concurrent issuance or incurrence of Indebtedness will be accompanied by a prepayment fee equal to 1.00% of the aggregate principal amount of such prepayment if the Applicable Margin or similar interest rate spread applicable to such Indebtedness is less than the Applicable Margin that would apply to the Term Loans on the date of such prepayment. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (except in the case of Revolving Credit Loans which are Base Rate Loans and Swing Line Loans) accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans and Revolving Credit Loans shall be in a minimum principal amount of $250,000 and, if applicable, the prepayment fee provided for in the first sentence of this Section 2.11. Partial prepayments of Swing Line Loans shall be in a minimum principal amount of $50,000.

2.12 Mandatory Prepayments .

(a) Unless the Majority Facility Lenders in respect of the Term Loan Facility shall otherwise agree, (i) if any Indebtedness is incurred after the date hereof by Holdings, the Borrower or any of its Subsidiaries (excluding any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence toward the prepayment of the Term Loans as set forth in Section 2.12(d) and Section 2.18(b) and (ii) if any Capital Stock shall be issued after the date hereof by Holdings, the Borrower or any of its Subsidiaries (excluding any issuance of Capital Stock (x) the proceeds of which constitute Designated Equity Amounts or (y) issued as compensation to employees of Holdings, the Company or any of its Subsidiaries or to management of Holdings or any of its Subsidiaries in the ordinary course of business), an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence toward the prepayment of the Term Loans as set forth in Section 2.12(d) and Section 2.18(b).

(b) Unless the Majority Facility Lenders in respect of the Term Loan Facility shall otherwise agree, if on any date Holdings, the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof within five Business Days thereafter, 100% of such Net Cash Proceeds shall be applied on such fifth Business Day toward the prepayment of the Term Loans as set forth in Section 2.12(d) and Section 2.18(b); provided , that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $5,000,000 in any fiscal year of the Borrower, (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 2.12(d) and Section 2.18(b) and (iii) for purposes of this Section 2.12(b), the Net Cash Proceeds of any Asset Sale pursuant to Section 7.5(k) shall be equal to the lesser of (A) the amount of such Net Cash Proceeds and (B) the aggregate amount of Investments made by Holdings, the Borrower or any of their respective Subsidiaries in the relevant Foreign Subsidiary after the Effective Date and, in no event, shall the Net Cash Proceeds of all Asset Sales in respect of the Capital Stock of any Foreign Subsidiary for purposes of this Section 2.12(b) exceed the aggregate amount of Investments made by Holdings, the Borrower and their respective Subsidiaries in such Foreign Subsidiary after the Effective Date.

 

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(c) Unless the Majority Facility Lenders in respect of the Term Loan Facility shall otherwise agree, if, for any fiscal year of the Borrower commencing with the fiscal year in which the Effective Date occurs, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans as set forth in Section 2.12(d) and Section 2.18(b). Each such prepayment and commitment reduction shall be made on a date (an “ Excess Cash Flow Application Date ”) no later than five Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders and (ii) the date such financial statements are actually delivered.

(d) The application of any prepayment pursuant to this Section shall be made first to Base Rate Loans and second to Eurodollar Loans (in a manner, to the extent practicable and permitted hereunder, which minimizes amounts payable under Section 2.21 as a result of such prepayment). Each prepayment of the Term Loans under this Section shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.

2.13 Conversion and Continuation Options .

(a) Subject to Sections 2.2 and 2.5, the Borrower may elect from time to time to convert Eurodollar Loans to Base Rate Loans by giving the Administrative Agent at least three Business Days’ prior irrevocable notice of such election; provided that any such conversion of Eurodollar Loans may be made only on the last day of an Interest Period with respect thereto. The Borrower may elect from time to time to convert Base Rate Loans to Eurodollar Loans by giving the Administrative Agent at least three Business Days’ prior irrevocable notice of such election (which notice shall specify the length of the initial Interest Period therefor), provided that no Base Rate Loan under a particular Facility may be converted into a Eurodollar Loan (i) when any Event of Default has occurred and is continuing and the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such conversions or (ii) after the date that is one month prior to the final scheduled termination or maturity date of such Facility. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

(b) Subject to Sections 2.2 and 2.5, any Eurodollar Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower giving irrevocable notice to the Administrative Agent, in accordance with the applicable provisions of the term “Interest Period” set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loans, provided that no Eurodollar Loan under a particular Facility may be continued as such (i) when any Event of Default has occurred and is continuing and the Majority Facility Lenders in respect of such Facility have determined in its or their sole discretion not to permit such continuations or (ii) after the date that is one month prior to the final scheduled termination or maturity date of such Facility, and provided , further , that if the Borrower shall fail to give any required notice as described above in this paragraph or if such continuation is not permitted pursuant to the preceding proviso such Loans shall be automatically converted to Base Rate Loans on the last day of such then expiring Interest Period. Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof.

2.14 Minimum Amounts and Maximum Number of Eurodollar Tranches . Notwithstanding anything to the contrary in this Agreement, all borrowings, conversions, continuations and optional prepayments of Eurodollar Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, (a) after giving effect thereto, the minimum principal amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal to $1,000,000 or a whole multiple of $100,000 in excess thereof and (b) no more than eight Eurodollar Tranches shall be outstanding at any one time.

2.15 Interest Rates and Payment Dates .

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

 

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

(c) (i) If all or a portion of the principal amount of any Loan or Reimbursement Obligation shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), all outstanding Loans and Reimbursement Obligations (whether or not overdue) shall bear interest at a rate per annum which is equal to (x) in the case of the Loans, the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this Section plus 2% or (y) in the case of Reimbursement Obligations, the rate applicable to Base Rate Loans under the Revolving Credit Facility plus 2%, and (ii) if all or a portion of any interest payable on any Loan or Reimbursement Obligation or any commitment fee or other amount payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall (to the extent permitted by applicable law) bear interest at a rate per annum equal to the rate then applicable to Base Rate Loans under the relevant Facility plus 2% (or, in the case of any such other amounts that do not relate to a particular Facility, the rate then applicable to Base Rate Loans under the Revolving Credit Facility plus 2%), in each case, with respect to clauses (i) and (ii) above, from the date of such non-payment until such amount is paid in full (as well after as before judgment).

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

2.16 Computation of Interest and Fees .

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

(b) Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver to the Borrower a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Section 2.15(a).

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

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

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

the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the relevant Lenders as soon as practicable thereafter. If such notice is given (x) any Eurodollar Loans under the relevant Facility requested to be made on the first day of such Interest Period shall be made as Base Rate Loans, (y) any Loans under the relevant Facility that were to have been converted on the first day of such Interest Period to Eurodollar Loans shall be continued as Base Rate Loans and (z) any outstanding Eurodollar Loans under the relevant Facility shall be

 

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converted, on the first day of such Interest Period, to Base Rate Loans. Until such notice has been withdrawn by the Administrative Agent, no further Eurodollar Loans under the relevant Facility shall be made or continued as such, nor shall the Borrower have the right to convert Loans under the relevant Facility to Eurodollar Loans. The Administrative Agent shall withdraw (i) any such notice pursuant to clause (a) above if the Administrative Agent determines that the relevant circumstances have ceased to exist and (ii) any such notice pursuant to clause (b) above upon receipt of notice from the Majority Facility Lenders in respect of the relevant Facility that the relevant circumstances described in such clause (b) have ceased to exist.

2.18 Pro Rata Treatment and Payments .

(a) Each borrowing by the Borrower from the Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the relevant Lenders. Each payment of interest in respect of the Loans, each payment in respect of fees payable hereunder, and each payment in respect of Reimbursement Obligations, shall be applied to the amounts of such obligations owing to the Lenders pro rata according to the respective amounts then due and owing to the Lenders.

(b) Each prepayment (whether mandatory or optional) on account of principal of and interest on the Term Loans shall be applied, first , in direct order of maturity, to any principal repayment installments of the Term Loans that are due within twelve (12) months after the date of such prepayment, and, second , on a pro rata basis according to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders. Each payment on account of principal of the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Loan Lenders. Amounts repaid or prepaid on account of the Term Loans may not be reborrowed.

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

(d) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders, at the Payment Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.

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

 

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share of such borrowing is not made available to the Administrative Agent by such Lender within three Business Days of such Borrowing Date, the Administrative Agent shall also be entitled to recover the amount that was made available pursuant to the first sentence of this Section 2.18(e) with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on the Business Day following the date of demand, from the Borrower.

(f) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment being made hereunder that the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by the Borrower within three Business Days of such required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower.

2.19 Requirements of Law .

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

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

(ii) shall impose on such Lender any other condition (other than with respect to Taxes, which are governed exclusively by Section 2.20);

and the result of any of the foregoing is to increase the cost to such Lender, by an amount which such Lender deems to be material, of making, converting into, continuing or maintaining Eurodollar Loans or issuing or participating in Letters of Credit, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender, within 10 days of its demand therefor, any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable. If any Lender becomes entitled to claim any additional amounts pursuant to this Section, it shall promptly notify the Borrower (with a copy to the Administrative Agent) of the event in reasonable detail by reason of which it has become so entitled.

(b) If any Lender shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of its obligations hereunder or under or in respect of any Letter of Credit to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time, after submission by such Lender to the Borrower (with a copy to the Administrative Agent) of a written request therefor setting forth in reasonable detail the basis therefor, the Borrower shall pay to such Lender within 10 days after receipt of such request such additional amount or amounts as will compensate such Lender for such reduction.

(c) If any Lender becomes entitled to claim any additional amounts pursuant to this Section 2.19 or Section 2.21, it shall promptly notify the Borrower (with a copy to the Administrative Agent) of the event by reason

 

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of which it has become so entitled, provided that no Lender shall be entitled to claim any such additional amount with respect to the period which is more than 180 days prior to the delivery of such notice. A certificate as to any additional amounts payable pursuant to this Section 2.19 or Section 2.21 submitted by such Lender to the Borrower (with a copy to the Administrative Agent) setting forth in reasonable detail the calculation of such amounts and the basis therefor shall be presumptively correct in the absence of manifest error. The agreements in this Section shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

2.20 Taxes .

(a) Except as otherwise provided herein, all payments made by the Borrower under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority (“ Taxes ”), excluding net income taxes (including any Taxes imposed on branch profits, Taxes on capital and other “doing business” Taxes) and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender (“ Income Taxes ”) and any Taxes imposed as a result of a present or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely and directly from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any other Loan Document). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“ Non-Excluded Taxes ”) or Other Taxes are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement, provided , however , that the Borrower shall not be required to increase any such amounts payable to any Lender, Assignee or Participant with respect to any Non-Excluded Taxes (i) that are attributable to such Lender’s, Assignee’s or Participant’s failure to comply with the requirements of paragraph (d) or (e) of this Section or (ii) that are United States withholding taxes imposed on amounts payable to such Lender, Assignee or Participant at the time such Person becomes a party to this Agreement (or designates a new lending office, other than pursuant to a request by the Borrower under Section 2.23), except to the extent that such Person’s assignor (or such Lender, prior to such change in lending office) was entitled, at the time of assignment (or designation of a new lending office), to receive additional amounts from the Borrower with respect to such Non-Excluded Taxes pursuant to Section 2.20(a).

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

(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly as possible thereafter the Borrower shall send to the Administrative Agent for the account of the relevant Agent or Lender, as the case may be, a certified copy of an original official receipt to the extent received by the Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority, the Borrower shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Section 2.20 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

(d) Each Lender, Assignee and Participant that is not a United States Person as defined in Section 7701(a)(30) of the Code (a “ Non-U.S. Lender ”) shall deliver to the Borrower and the Administrative Agent (or, in the case of a Participant, to the Lender from which the related participation shall have been purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” a statement substantially in the form of Exhibit H and a Form W-8BEN, or any subsequent versions thereof or successors thereto properly completed and duly executed by such Non-U.S. Lender

 

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claiming complete exemption from U.S. federal withholding tax on all payments by the Borrower under this Agreement and the other Loan Documents, together with any other certificate or statement of exemption required under the Codes or Regulations issued thereunder. Each Lender, Assignee or Participant that is not a Non-U.S. Lender and is not treated as a corporation exempt from U.S. backup withholding shall deliver to the Borrower and the Administrative Agent (or, in the case of a Participant, to the Lender from which the related participation shall have been purchased) two copies of U.S. Internal Revenue Service Form W-9 or any subsequent version thereof or successor thereto properly completed and duly executed by such Person claiming complete exemption from any deduction or withholding of any United States federal income taxes on all payments by the Borrower under this Agreement and the other Loan Documents. Such forms shall be delivered by each such Person on or before the date it becomes a party to this Agreement (or, in the case of any Participant, on or before the date such Participant purchases the related participation). In addition, each such Person shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Person. Each such Person shall promptly notify the Borrower at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower (or any other form of certification adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other provision of this paragraph, a Person shall not be required to deliver any form pursuant to this paragraph that such Person is not legally able to deliver.

(e) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by the Borrower, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate, provided that such Lender is legally entitled to complete, execute and deliver such documentation and in such Lender’s reasonable judgment such completion, execution or submission would not materially prejudice the legal position of such Lender.

(f) If the Administrative Agent or any Lender receives a refund or otherwise would have received a refund but for the offset of the amount of such refund against the Person’s Non-Excluded Taxes (“ Tax Refund ”), which in the good faith judgment of such Person is allocable to Non-Excluded Taxes paid by the Borrower, it shall promptly pay such Tax Refund to the Borrower, net of all out-of-pocket expenses of such Person incurred in obtaining such Tax Refund, provided , however , that the Borrower agrees to promptly return such Tax Refund to the Administrative Agent or the applicable Person, as the case may be, if it receives notice from the Administrative Agent or applicable Person that the Administrative Agent or such Person is required to re