CREDIT AGREEMENT

Exhibit 10.2

CREDIT AGREEMENT

dated as of

November 3, 2006

among

INFRASTRUX GROUP, INC.,

as Borrower,

THE OTHER CREDIT PARTIES PARTY HERETO,

THE LENDERS PARTY HERETO,

as Lenders,

and

CREDIT SUISSE, CAYMAN ISLANDS BRANCH,

as an Issuing Bank, as the Swing Line Lender and as the Administrative Agent

UBS SECURITIES LLC,

as Syndication Agent

CREDIT SUISSE SECURITIES (USA) LLC

and

UBS SECURITIES LLC,

as Joint Lead Arrangers and Joint Bookrunners

TABLE OF CONTENTS

 

 

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EXHIBITS

 

SCHEDULES

 

 

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THIS CREDIT AGREEMENT is entered into as of November 3, 2006, among the following:

(i) INFRASTRUX GROUP, INC., a Washington corporation (herein, together with its successors and assigns, the “ Borrower ”);

(ii) INFRASTRUX HOLDINGS, LLC, a Delaware limited liability company (herein, together with its successor and assigns, (the “ Parent ”);

(iii) each Subsidiary signatory hereto (herein, together with any other Subsidiary that becomes a party hereto by joinder supplement or otherwise after the date hereof and together with their respective successors and assigns, collectively, the “ Subsidiary Guarantors ” and, individually, “ Subsidiary Guarantor ”);

(iv) the lenders from time to time party hereto (herein, together with their respective successors and assigns, collectively, the “ Lenders ” and, individually, “ Lender ”); and

(v) CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as the administrative agent (herein, together with its successors and assigns, the “ Administrative Agent ”), the Swing Line Lender (as hereinafter defined) and an Issuing Bank (as hereafter defined).

RECITALS:

(1) The Borrower has requested that the Lenders provide a term loan facility and a revolving credit facility (collectively, the “ Credit Facilities ”); and

(2) Subject to and upon the terms and conditions set forth herein, the Lenders, the Swing Line Lender and each Issuing Bank are willing to extend credit and make available to the Borrower the Credit Facilities provided for herein.

AGREEMENT :

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

ARTICLE I

DEFINITIONS AND TERMS

Section 1.01 Certain Defined Terms . As used herein, the following terms shall have the meanings herein specified unless the context otherwise requires:

“ ABR ” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

“ ABR Loan ” means any Loan bearing interest at a rate based upon the Alternate Base Rate in effect from time to time.

“ Acquired Companies ” means the Hawkeye Companies and Gopher and the subsidiaries of each of them.

“ Acquisition ” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (i) the acquisition of all or substantially all of the assets of any Person, or any business or division of any Person, (ii) the acquisition or ownership of in excess of 50% of the Equity Interest of any Person, or (iii) the acquisition of another Person by a merger, consolidation, amalgamation or any other combination with such Person.

“ Additional Incorporated Terms ” has the meaning provided in Section 6.22 .

“ Adjusted LIBO Rate ” means, with respect to any Eurodollar Loan for any Interest Period, an interest rate per annum equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.

“ Administrative Agent ” has the meaning provided in the first paragraph of this Agreement and includes any successor to the Administrative Agent appointed in accordance with Section 9.11 of this Agreement.

“ Administrative Questionnaire ” means an Administrative Questionnaire in form and substance acceptable to the Administrative Agent.

“ Affiliate ” means, with respect to any specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified; provided, however, that, for purposes of Section 7.09 only, the term “Affiliate” shall also include any Person that directly or indirectly owns 10% or more of any class of Equity Interests of the Person specified or that is an officer or director of the Person specified.

“ Aggregate Commitments ” means the Commitments of all the Lenders.

“ Aggregate Credit Facility Exposure ” means, at any time, the sum of (i) the Aggregate Revolving Facility Exposure at such time, (ii) the aggregate principal amount of the Term Loans outstanding at such time and (iii) the aggregate principal amount of Swing Loans outstanding at such time.

“ Aggregate Revolving Facility Exposure ” means, at any time, the sum of (i) the principal amounts of all Revolving Loans made by all Lenders and outstanding at such time and (ii) the aggregate amount of the LC Exposure at such time.

“ Agreement ” means this Credit Agreement, as the same may from time to time be amended, restated, supplemented or otherwise modified.

“ Alternate Base Rate ” means, for any day, a rate per annum 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%. If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be determined without regard to clause (b) of the preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, as the case may be.

 

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“ Anti-Terrorism Law ” means the USA Patriot Act or any other law pertaining to the prevention of future acts of terrorism, in each case as such laws may be amended from time to time.

“ Applicable Lending Office ” means, with respect to each Lender, the office designated by such Lender to the Administrative Agent as such Lender’s lending office for all purposes of this Agreement. A Lender may have a different Applicable Lending Office for ABR Loans and Eurodollar Loans.

“ Applicable Percentage ” means as to each Lender (a) with respect to such Lender’s Revolving Commitment at any time, the percentage of the Total Revolving Commitments represented by such Lender’s Revolving Commitment at such time; (b) with respect to such Lender’s Delayed Draw Term Commitment at any time, the percentage of the Total Delayed Draw Term Commitments represented by such Lender’s Delayed Draw Term Commitment at such time and (c) with respect to such Lender’s outstanding Term Loans at any time, the percentage of the total aggregate principal amount of the Term Loan represented by the Term Loans held by such Lender at such time. If the commitment of each Revolving Lender to make Revolving Loans has been terminated or if the Total Revolving Commitments have expired, then the Applicable Percentage of each Lender in respect of its Revolving Commitment shall be determined based on the Applicable Percentage of such Revolving Lender most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender in respect of each of the Credit Facilities is set forth opposite the name of such Lender on Schedule 1 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

“ Approved Bank ” has the meaning provided in subpart (c) of the definition of “Cash Equivalents.”

“ Approved Counterparty ” means (a) the Administrative Agent, any Arranger, any Lender or an Affiliate of any of the foregoing, (b) any other Person whose long term senior unsecured debt rating is A-/A3 by S&P or Moody’s (or their equivalent) or higher or (c) any other Person from time to time approved by Required Lenders.

“ Approved Fund ” means any Person (other than a natural Person) that is engaged in making, purchasing, holding or investing in revolving bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“ Arrangers ” means Credit Suisse Securities (USA) LLC and UBS Securities LLC, acting in their capacities as joint lead arrangers and joint bookrunners, and “Arranger” means either of them.

“ Asset Sale ” means the sale, lease, transfer or other disposition (including by means of Sale Leaseback Transactions, and by means of mergers, consolidations, amalgamations and liquidations of a corporation, partnership or limited liability company of the interests therein of the Borrower or any Subsidiary) by the Borrower or any Subsidiary to any Person of any of the Borrower’s or such Subsidiary’s respective assets; provided that the term Asset Sale specifically excludes any sales, transfers or other dispositions of inventory, or obsolete, worn-out or excess furniture, fixtures, equipment or other property, real or personal, tangible or intangible, in each case in the ordinary course of business.

“ Assignment and Assumption ” means an Assignment and Assumption Agreement substantially in the form of Exhibit E .

“ Audited Financial Statements ” means the audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2005, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Borrower and its Subsidiaries, including the notes thereto.

 

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“ Bankruptcy Code ” means Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor thereto, as hereafter amended.

“ Board ” means the Board of Governors of the Federal Reserve System of the United States of America or any successor Governmental Authority.

“ Borrower ” has the meaning specified in the first paragraph of this Agreement.

“ Borrower Consolidated Parties ” means collectively the Borrower and its consolidated Subsidiaries.

“ Borrower Guaranteed Obligations ” has the meaning provided in Section 2.15(a) .

“ Borrowing ” means a Revolving Borrowing, a Term Borrowing or the incurrence of a Swing Loan.

“ Borrowing Request ” means a request by the Borrower for a Borrowing in accordance with Section 2.06 .

“ Business Day ” means any day that is not a Saturday, Sunday or other day on which banks in New York City are authorized or required by law to remain closed; and if such day relates to a Borrowing or continuation of, a payment or prepayment of principal of or interest on, or a conversion of or into, or the Interest Period for, a Eurodollar Loan or a notice by the Borrower with respect to any such Borrowing or continuation, payment, prepayment, conversion or Interest Period, any day which is also a day on which dealings in dollar deposits are carried out in the London interbank market.

“ CableCure License ” means the Fifth Amended (Amended and Restated) Exclusive License and Distribution Agreement between Dow Corning Corporation and UTILX Corporation effective July 13, 1991.

“ Calculation Date ” means the date of the applicable Specified Transaction which gives rise to the requirement to calculate the financial covenants set forth in Section 7.07 on a Pro Forma Basis.

“ Calculation Period ” means, in respect of any Calculation Date, the period consisting of the four consecutive fiscal quarters of the Borrower and its Subsidiaries ended as of the last day of the most recent fiscal quarter of the Borrower and its Subsidiaries preceding such Calculation Date (whether or not such quarters are all within the same fiscal year) for which the Administrative Agent shall have received the Required Financial Information.

“ Capital Expenditures ” means, with respect to any Person for any period, any expenditure in respect of the purchase or other acquisition of any fixed or capital asset (excluding normal replacements and maintenance which are properly charged to current operations), which, in accordance with GAAP, would be classified as a capital expenditure.

“ Capital Lease ” means, in respect of any Person, any lease which is required, in accordance with GAAP, to be recorded as a capital lease on the balance sheet of the Person liable (whether contingent or otherwise) for the payment of rent thereunder.

 

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“ Capitalized Lease Obligations ” means all obligations under Capital Leases of the Borrower or any of its Subsidiaries, without duplication, in each case taken at the amount thereof accounted for as liabilities identified as “capital lease obligations” (or any similar words) on a consolidated balance sheet of the Borrower and its Subsidiaries prepared in accordance with GAAP.

“ Cash Equivalents ” means any of the following:

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

(b) investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;

(c) investments in certificates of deposit, banker’s acceptances and time deposits maturing within one year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, the Administrative Agent or any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof that has a combined capital and surplus and undivided profits of not less than $500,000,000 (an “ Approved Bank ”);

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

(e) investments in “money market funds” within the meaning of Rule 2a-7 of the Investment Company Act of 1940, as amended, substantially all of whose assets are invested in investments of the type described in clauses (a) through (d) above;

(f) investments in so-called “auction rate” securities rated AAA or higher by S&P or Aaa or higher by Moody’s and which have a reset date not more than 90 days from the date of acquisition thereof; and

(g) other short-term investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in investments of a type analogous to the foregoing.

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

“ CERCLA ” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as the same may be amended from time to time, 42 U.S.C. § 9601 et seq.

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

 

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

“ Change of Control ” means an event or series of events shall occur by which:

(a) at any time prior to the creation of a Public Market, the Sponsor shall cease to own and control legally and beneficially, either directly or indirectly, Equity Interests in the Parent representing more than 80% of the combined voting power of all Equity Interests entitled to vote for members of the board of directors or equivalent governing body of the Parent on a fully-diluted basis (and taking into account all such securities that the Sponsor has the right to acquire pursuant to any option right (as defined in clause (b) below); or

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

(c) a majority of the seats (other than vacant seats) on the board of directors (or equivalent governing body) of the Borrower shall at any time be occupied by persons who were neither (i) nominated by the board of directors (or equivalent governing body) of Sponsor nor (ii) appointed by directors so nominated; or

(d) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Parent, or control over the Equity Interests of the Parent entitled to vote for members of the board of directors or equivalent governing body of the Parent on a fully-diluted basis (and taking into account all such securities that such Person or Persons have the right to acquire pursuant to any option right) representing 30% or more of the combined voting power of such Equity Interests, unless the Sponsor is the beneficial owner of a larger percentage of such Equity Interests than such Person or group; or

(e) the Parent shall cease, directly or indirectly, to own and control legally and beneficially, all of the Equity Interests in the Borrower other than Permitted Management Equity Interests; or

(f) The Borrower shall cease to own and control legally and beneficially, either directly or indirectly, Equity Interests in either Joint Venture GP or Joint Venture LP representing 100% of the combined voting power of all of Equity Interests entitled to vote for members of the board of directors or equivalent governing body of, respectively, Joint Venture GP or Joint Venture LP on a fully-diluted basis; or

 

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(g) a “ Change of Control ” under, and as defined in, the Joint Venture Credit Agreement (as in effect on the Joint Venture Effective Date) shall have occurred; or

(h) From and after the Joint Venture Effective Date, either the Sponsor or TXU Owner shall cease to own and control legally and beneficially, either directly or indirectly, Equity Interests in the Joint Venture representing 50% of the combined voting power of all Equity Interests entitled to vote for members of the board of directors or equivalent governing body of the Joint Venture on a fully-diluted basis; or

(i) From and after the Joint Venture Effective Date, an event or series of events shall occur by which:

(i) at any time prior to the creation of a Public Market, TXU Owner shall cease to own and control legally and beneficially, either directly or indirectly, Equity Interests in TXU ED representing more than 80% of the combined voting power of all Equity Interests entitled to vote for members of the board of directors or equivalent governing body of TXU ED on a fully-diluted basis (and taking into account all such securities that TXU Owner has the right to acquire pursuant to any option right (as defined in clause (ii) below); or

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

(iii) a majority of the seats (other than vacant seats) on the board of directors (or equivalent governing body) of TXU ED shall at any time be occupied by persons who were neither (A) nominated by the board of directors (or equivalent governing body) of TXU Owner nor (B) appointed by directors so nominated; or

(iv) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of TXU ED, or control over the Equity Interests of TXU ED entitled to vote for members of the board of directors or equivalent governing body of TXU ED on a fully-diluted basis (and taking into account all such securities that such Person or Persons have the right to acquire pursuant to any option right) representing 30% or more of the combined voting power of such Equity Interests, unless TXU Owner is the beneficial owner of a larger percentage of such Equity Interests than such Person or group.

 

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“ Charges ” has the meaning provided in Section 11.23 .

“ CIP Regulations ” has the meaning provided in Section 9.07 .

“ Claims ” has the meaning set forth in the definition of “ Environmental Claims .”

“ Closing Date ” means the date on which all of the conditions set forth in Section 4.01 have been satisfied or waived in accordance with Section 11.12 .

“ Closing Date Term Commitment ” means, with respect to each Lender, the obligation of such Lender to make its portion of the Closing Date Term Loan to the Borrower pursuant to Section 2.02(a)(i)(A) in the principal amount set forth opposite such Lender’s name in Schedule 1 as its “ Closing Date Term Commitment ” or in the case of any Lender that becomes a party hereto pursuant to an Assignment and Assumption, the amount set forth in such Assignment and Assumption, as such commitment may be reduced pursuant to Section 2.12(e) or adjusted from time to time as a result of assignments to or from such Lender pursuant to Section 11.06 . As of the Closing Date, the amount of the Closing Date Term Commitments of all the Lenders is $309,000,000.

“ Closing Date Term Loan ” has the meaning specified in Section 2.02(a)(i)(A) .

“ Code ” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and the rulings issued thereunder. Section references to the Code are to the Code as in effect at the Closing Date and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.

“ Collateral ” means all of the “ Collateral ” (as defined in and limited by the Collateral Documents) and the Mortgaged Properties that is or are subject to Liens in favor of the Administrative Agent for the benefit of the Secured Creditors and all other real or personal property required to be pledged to the Administrative Agent for the benefit of the Secured Creditors pursuant to Section 6.08 and/or Section 6.09 .

“ Collateral Documents ” means, collectively, the Security Agreement, the Mortgages and each of the other mortgages, collateral assignments, security agreements, pledge agreements or other similar agreements delivered to the Administrative Agent pursuant to the terms of Sections 6.08 and 6.09 , the Joint Venture Amendment and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Creditors.

“ Commitment ” means (i) with respect to each Lender, its Revolving Commitment or its Term Commitment, as the context may require, and (ii) with respect to the Swing Line Lender, its Swing Line Commitment.

“ Compliance Certificate ” has the meaning provided in Section 6.01(d) .

“ Consolidated Capital Expenditures ” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, all Capital Expenditures made during such period, as determined in accordance with GAAP; provided, however, that Consolidated Capital Expenditures shall not include (a) reinvestments made with proceeds of any Asset Sale or Recovery Event or (b) Acquisitions.

 

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“ Consolidated Current Assets ” means, on any date, all assets of the Borrower and its Subsidiaries on such date which, in accordance with GAAP, would be classified on a consolidated balance sheet of the Borrower and its Subsidiaries as “current assets,” other than cash and Cash Equivalents.

“ Consolidated Current Liabilities ” means, on any date, all liabilities of the Borrower and its Subsidiaries on such date which, in accordance with GAAP, would be classified on a consolidated balance sheet of the Borrower and its Subsidiaries as “current liabilities” (other than the current portion of Consolidated Funded Indebtedness).

“ Consolidated EBITDA ” means, for any Testing Period, an amount equal to Consolidated Net Income plus the sum of the following to the extent deducted in determining such Consolidated Net Income: (a) the sum of provisions for income taxes, interest expense, and depreciation and amortization expense, (b) amounts deducted from Consolidated Net Income with respect to any extraordinary or non-recurring losses, (c) amounts deducted from Consolidated Net Income with respect to any restructuring charges, including, but not limited to, stay bonuses, severance and lease continuations and any other cash expenses associated with closing facilities or operations (including discontinued operations) that are acceptable to the Administrative Agent in its reasonable discretion, (d) the amount of any aggregate net loss (or minus the amount of any gain) arising from the sale, exchange or other disposition of capital assets, (e) the amount of any fees paid under the Management Agreement to the extent permitted by Section 7.09 , (f) non-cash expenses deducted in the determination of Consolidated Net Income including, without limitation, in connection with (i) “goodwill impairment losses” under FASB Statement 142, (ii) losses (or less non-cash gain) resulting from any Interest Rate Protection Agreement and (iii) any earnout agreements (or obligations under non-competition or similar agreements which are in the nature of deferred compensation), stock appreciation rights, “phantom” stock plans, employment agreements, non-competition agreements, subscription and stockholders agreements, stock option plans and similar arrangements incurred in connection with the Transaction or any Permitted Acquisition by the Borrower or any of its Subsidiaries or the retention of executives, officers or employees by the Borrower or any of its Subsidiaries, including (but without duplication) any Person that has become a Subsidiary during such period (such calculations to be made on a Pro Forma Basis), (g) expenses and fees deducted in the determination of Consolidated Net Income and incurred during the period in connection with the consummation of Permitted Acquisitions, mergers, financings, dispositions or joint ventures permitted herein, including, without limitation, the Transaction (including any payments of success/transition bonuses to management of the Borrower in connection therewith), provided that such amount with respect to the Transaction shall not exceed $5,000,000, (h) other unusual and non-recurring expenses (or less unusual and non-recurring gains) solely to the extent deducted in the determination of Consolidated Net Income, that are acceptable to the Administrative Agent in its reasonable discretion, (i) all fees and charges associated with Permitted Investments, Loans or other indebtedness permitted hereunder (including, without limitation, LC Fees, Administrative Agent fees, and Commitment fees), (j) up to $10,000,000 of bonuses paid on or about the Closing Date by or on behalf of the Hawkeye Companies in association with the Transaction, but only so long as such bonuses do not reduce the net cash available to Borrower for debt service and (k) to the extent not duplicative of the foregoing, the amount of dividends or distributions actually paid in cash during the period received by the Borrower or its Subsidiaries from Persons not consolidated with the Borrower and its Subsidiaries in accordance with GAAP, excluding cash distributions pursuant to Sections 2.13(b)(ix) and (x) . Notwithstanding the foregoing, Consolidated EBITDA for each of the fiscal quarters ended March 31, 2006, June 30, 2006 and September 30, 2006 shall be equal to the amount for such fiscal quarter shown on Schedule 4 .

“ Consolidated Funded Indebtedness ” means, as of any date of determination, for the Borrower and its Subsidiaries on a consolidated basis, without duplication, the sum of (a) the principal portion of all obligations for borrowed money, (b) the principal portion of all obligations evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (c) the

 

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principal portion of all obligations under conditional sale or other title retention agreements relating to property purchased by the Borrower and its Subsidiaries (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (d) the principal portion of all obligations (including, without limitation, earnout obligations and obligations under non-competition or similar agreements which are in the nature of deferred compensation) issued or assumed as the deferred purchase price of property or services purchased by the Borrower or its Subsidiaries (other than trade debt incurred in the ordinary course of business and due within six months of the incurrence thereof) which would appear as liabilities on a balance sheet of the Borrower and its Subsidiaries, (e) all Capitalized Lease Obligations of such Person, (f) the principal portion, determined on the basis of the implicit interest rate, of all basic rental obligations under all Synthetic Leases of such Person, (g) all direct reimbursement obligations in respect of letters of credit (other than trade letters of credit, and excluding issued and undrawn Letters of Credit), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, including, without duplication, all unreimbursed drafts drawn thereunder (less the amount of any cash collateral securing any such letters of credit or and bankers’ acceptances), (h) the principal component or liquidation preference of all Equity Interests issued by the Borrower or a Subsidiary and which by the terms thereof could at any time prior to the Term Loan Termination Date be (at the request of the holders thereof or otherwise) subject to mandatory sinking fund payments, mandatory redemption or other acceleration, (i) the aggregate amount of uncollected accounts receivable subject at such time to a sale or securitization of receivables (or similar transaction) (whether or not such transaction would be reflected on the balance sheet of the Borrower and its Subsidiaries in accordance with GAAP) (all such Indebtedness of the types described in the forgoing clauses (a) through (i), as to any Person, “ Funded Indebtedness ”), (j) all Funded Indebtedness of others secured by (or for which the holder of such Funded Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by the Borrower and its Subsidiaries, whether or not the obligations secured thereby have been assumed, (k) all Guarantees with respect to Funded Indebtedness of another Person and (l) the Funded Indebtedness of any partnership or unincorporated joint venture in which the Borrower or a Subsidiary is a general partner or a joint venturer to the extent such Indebtedness is recourse to such Person, other than the Joint Venture GP, so long as the Joint Venture is treated under the equity method of accounting purposes and not consolidated into the Borrower for accounting purposes.

“ Consolidated Income Tax Expense ” means, for any period, all provisions for taxes based on the net income of the Borrower or any of its Subsidiaries (including, without limitation, any additions to such taxes, and any penalties and interest with respect thereto), all as determined for the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP.

“ Consolidated Interest Expense ” means, for any period, without duplication, the sum of (i) total interest expense (including, without limitation, that which is capitalized, the interest component under Capital Leases and the implied interest component under Synthetic Leases) of the Borrower and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness of the Borrower and its Subsidiaries, plus (ii) the net amount payable (or minus the net amount receivable) under Interest Rate Protection Agreements to which Borrower or any of its Subsidiaries are a party during such period (irrespective of whether actually paid or received during such period).

“ Consolidated Net Income ” means for any period, the net income (or loss) of the Borrower and its Subsidiaries on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP, excluding, to the extent otherwise included, (a) Net Cash Proceeds from Asset Sales of the Joint Venture Parties and Termination Charges and (b) income derived from the ownership of any Equity Interest of any Person not consolidated with the Borrower and its Subsidiaries in accordance with GAAP.

 

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“ Consolidated Scheduled Funded Debt Payments ” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, the sum of all Scheduled Payments of Principal on Consolidated Funded Indebtedness, as determined in accordance with GAAP. For purposes of this definition, “ Scheduled Payments of Principal ” (a) shall be determined without giving effect to any reduction of such scheduled payments resulting from the application of any voluntary or mandatory prepayments made during the applicable period, (b) shall be deemed to include all (i) the principal portion of Capitalized Lease Obligations and (ii) the principal portion determined on the basis of the implicit interest rate, of all basic rental obligations under all Synthetic Leases and (c) shall not include any voluntary prepayments or mandatory prepayments required pursuant to Section 2.13 or, to the extent permitted hereunder, otherwise made with respect to any Consolidated Funded Indebtedness.

“ Consolidated Working Capital ” means, on any date, Consolidated Current Assets minus Consolidated Current Liabilities on such date.

“ Continue ,” “ Continuation ” and “ Continued ” each refers to a continuation of a Eurodollar Loan for an additional Interest Period as provided in Section 2.10 .

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

“ Contributed Subsidiaries ” means the Persons listed on Schedule 2 hereto, which Persons will be direct or indirect Subsidiaries of the Borrower immediately prior to the consummation of the Joint Venture Contribution, and which will become direct or indirect Subsidiaries of the Joint Venture upon the consummation of the Joint Venture Contribution.

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

“ Convert ,” “ Conversion ” and “ Converted ” each refers to a conversion of Loans of one Type into Loans of another Type.

“ Credit Event ” means the making of any Borrowing, any Conversion or Continuation or any LC Issuance.

“ Credit Facilities ” has the meaning specified in the recitals hereof.

“ Credit Facility Exposure ” means, for any Lender at any time, the sum of (i) such Lender’s Revolving Facility Exposure at such time, (ii) the principal amount of the Term Loans held by such Lender at such time and (iii) in the case of the Swing Line Lender, the principal amount of Swing Loans outstanding at such time.

“ Credit Party ” means the Borrower or any Guarantor.

“ Credit Suisse ” means Credit Suisse, Cayman Islands Branch.

“ Cumulative Retained Excess Cash Flow ” means, at any date of determination, an amount not less than zero, determined on a cumulative basis equal to the amount of consolidated Excess Cash Flow for all fiscal years of the Borrower and its consolidated Subsidiaries ending after the Closing Date (commencing with the fiscal year ending December 31, 2006 (for 2006 only, from the Closing Date

 

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through and including December 31, 2006 and for all subsequent fiscal years, the full fiscal year)) that is not (and, in the case of any fiscal year of the Borrower and its consolidated Subsidiaries where the respective required date of prepayment has not yet occurred pursuant to Section 2.13(b)(iv) , will not on such date of required prepayment be) required to be applied in accordance with Section 2.13(b)(iv) .

“ Debt Issuance ” shall mean the issuance of any Indebtedness by the Credit Parties or any of their Subsidiaries (excluding any Equity Issuance or any Indebtedness of the Credit Parties and their Subsidiaries permitted to be incurred pursuant to Section 7.04 hereof).

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

“ Declined Amounts ” has the meaning provided in Section 2.13(b)(xiii) .

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

“ Defaulting Lender ” means any Lender that (a) has failed to fund any portion of the Loans or participations in Letters of Credit required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder unless such failure has been cured, (b) has otherwise failed to pay over to the Administrative Agent 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 or unless such failure has been cured, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.

“ Default Rate ” means, for any day, (i) with respect to any Loan, a rate per annum equal to 2% per annum above the interest rate that is or would be applicable from time to time to such Loan pursuant to Section 2.09(a) , Section 2.09(b) or Section 2.09(c) , as applicable, and (ii) with respect to any other amount, a rate per annum equal to 2% per annum above the rate that would be applicable to Revolving Loans that are ABR Loans pursuant to Section 2.09(a)(i) .

“ Delayed Draw Availability Period ” means the period from and including the Closing Date and ending on the earlier of (a) the date that is six (6) months after the Closing Date and (b) the Term Loan Termination Date.

“ Delayed Draw Term Commitment ” means, with respect to each Lender, the obligation of such Lender to make, from time to time during the Delayed Draw Availability Period, its portion of the Delayed Draw Term Loans to the Borrower pursuant to Section 2.02(a)(i)(B) in the principal amount set forth opposite such Lender’s name in Schedule 1 as its “ Delayed Draw Term Commitment ” or in the case of any Lender that becomes a party hereto pursuant to an Assignment and Assumption, the amount set forth in such Assignment and Assumption, as such commitment may be reduced pursuant to Section 2.12(f) or adjusted from time to time as a result of assignments to or from such Lender pursuant to Section 11.06 .

“ Delayed Draw Term Loan ” has the meaning specified in Section 2.02(a)(i)(B) .

“ Dollars ,” “ U.S. Dollars ” and the sign “ $ ” each means lawful money of the United States.

 

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“ Domestic Subsidiary ” means any Subsidiary that is organized under the Laws of the United States of America or any state thereof or the District of Columbia, and a “Domestic Wholly-Owned Subsidiary means any Domestic Subsidiary that is a Wholly-Owned Subsidiary.

“ Eligible Assignee ” means (i) a Lender, (ii) an Affiliate of a Lender, (iii) an Approved Fund, and (iv) any other Person (other than a natural Person) approved by (A) the Administrative Agent, (B) each Issuing Bank, and (C) unless an Event of Default has occurred and is continuing, the Borrower (each such approval not to be unreasonably withheld or delayed); provided, however, that notwithstanding the foregoing, “ Eligible Assignee ” shall not include the Borrower or any of the Borrower’s Affiliates or Subsidiaries.

“ Environmental Claims ” means any and all administrative or judicial actions, suits, demand letters, claims, liens, orders, written notices of non-compliance or violation, or administrative or judicial proceedings (hereafter “ Claims ”) asserted, issued or arising under any Environmental Law or any permit issued under any Environmental Law, including, without limitation, (i) any and all Claims by any Governmental Authority for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law, and (ii) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from the storage, treatment or Release of any Hazardous Materials or arising from alleged injury or threat of injury to health, safety or the environment.

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

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

“ Equity Interest ” means with respect to any Person, any and all shares, interests, participations or other equivalents, including membership interests (however designated, whether voting or non-voting) of equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited) or any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, such partnership, but in no event will Equity Interest include any debt securities convertible or exchangeable into equity unless and until actually converted or exchanged.

“ Equity Issuance ” shall mean any issuance by any Credit Party or any Subsidiary to any Person which is not a Credit Party of (a) shares of its Equity Interests, (b) any shares of its Equity Interests pursuant to the exercise of options or warrants, (c) any shares of its Equity Interests pursuant to the conversion of any debt securities to equity or (d) warrants or options that are exercisable for shares of its Equity Interests. Notwithstanding the foregoing, the term “Equity Issuance” shall not include (i) any Debt Issuance or (ii) any Equity Interests issued in connection with any Acquisition so long as (A) all such Equity Interests, regardless of whether they are owned by an “Obligor” as such term is defined in the

 

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Security Agreement, are pledged to the Administrative Agent to secure the “Secured Obligations” as such term is defined in the Security Agreement on terms substantially similar to the Security Agreement or otherwise acceptable to the Administrative Agent, (B) used solely as consideration for a Permitted Acquisition, (C) such Equity Interests are issued to the Responsible Officers of the company acquired pursuant to a Permitted Acquisition and (D) there are no Net Cash Proceeds from such issuance.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time. Section references to ERISA are to ERISA, as in effect at the Closing Date and any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.

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

“ ERISA Event ” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.

“ Eurodollar ,” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.

“ Eurodollar Loan ” means each Loan bearing interest at a rate based upon the Adjusted LIBO Rate.

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

“ Excess Cash Flow ” means, with respect to any fiscal year period of the Borrower and its Subsidiaries on a consolidated basis, an amount equal to (a) Consolidated EBITDA minus (b) Consolidated Capital Expenditures minus (c) Consolidated Interest Expense paid in cash minus (d) federal, state and other income taxes actually paid by the Borrower and its Subsidiaries on a consolidated basis minus (e) Consolidated Scheduled Funded Debt Payments, minus (f) voluntary principal prepayments of the Term Loan or, to the extent the Revolving Commitments are permanently reduced in connection with such repayments, the Revolving Loans, minus (g) any increase in Consolidated Working Capital for such fiscal year, measured as of the last day of such fiscal year by comparison with Consolidated Working Capital on the first day of such fiscal year, plus (h) any decrease in Consolidated Working Capital for such fiscal year, measured as of the last day of such fiscal year by comparison with Consolidated Working Capital on the first day of such fiscal year.

“ Excluded Property ” means, with respect to any Credit Party, including any Person that becomes a Credit Party after the Closing Date as contemplated by Section 7.13 , (a) any leased Real Property or personal property, (b) any item of owned Real Property or owned personal property (other than Material

 

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Foreign Intellectual Property) which is located outside of the United States and which has a net book value of less than $2,000,000, provided that the aggregate net book value of all Real Property or personal property of all of the Credit Parties excluded pursuant to this clause (b) shall not exceed $5,000,000, (c) any owned Real Property located in the United States which has a net book value of less than $1,000,000, provided that the aggregate net book value of all Real Property of all of the Credit Parties excluded pursuant to this clause (c) shall not exceed $3,000,000, (d) any owned personal property located in the United States (other than motor vehicles covered by a certificate of title) in respect of which perfection of a Lien is not either (i) governed by the Uniform Commercial Code or (ii) effected by appropriate evidence of the Lien being filed in either the United States Copyright Office or the United States Patent and Trademark Office, (e) any motor vehicle covered by a certificate of title that is not either (i) delivered to the Administrative Agent on the Closing Date or (ii) a Material Vehicle and (f) any property which, subject to the terms of Section 7.08 , is subject to a Lien of the type described in Section 7.03(i) pursuant to documents which prohibit such Credit Party from granting any other Liens in such property.

“ Existing Credit Agreements ” means, collectively, (a) that certain First Lien Credit Agreement dated as of May 8, 2006 and (b) that certain Second Lien Term Loan Agreement dated as of May 8, 2006, each among the Borrower, certain subsidiaries of the Borrower, as guarantors, and the various lenders and agents party thereto.

“ Existing Letters of Credit ” means, collectively the letters of credit issued by an Issuing Bank, which are outstanding as of the Closing Date, as more particularly described in Schedule 5 hereto.

“ Extraordinary Receipt ” means any cash received by or paid to or for the account of any Person not in the ordinary course of business, in the form of tax refunds, pension plan reversions, proceeds from Recovery Events (other than proceeds of business interruption insurance), indemnity payments and any purchase price adjustments; provided, however, that an Extraordinary Receipt shall not include cash receipts from proceeds of Recovery Events (or payments in lieu thereof) or indemnity payments to the extent that such proceeds, awards or payments are received by any Person in respect of any third party claim against such Person and applied to pay (or to reimburse such Person for its prior payment of) such claim and the costs and expenses of such Person with respect thereto.

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

“ Fee Letter ” means the letter, dated as of October 17, 2006 among the Administrative Agent, the Arrangers, UBS Loan Finance LLC and the Borrower, which details certain fees payable by the Borrower in connection with this Agreement.

“ Fees ” means all amounts payable pursuant to, or referred to in, Section 2.11 .

“ Field Services Agreement ” means that certain Field Services Agreement dated June 24, 2006 between TXU ED and the Joint Venture or such other field services agreement entered into pursuant to the Master Framework Agreement, each of the foregoing, as amended, restated, supplemented or otherwise modified in accordance with this Agreement.

“ Flood Hazard Property ” has the meaning provided in Section 6.17(d) .

 

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“ Foreign Subsidiary ” means any Subsidiary that is not a Domestic Subsidiary.

“ GAAP ” means generally accepted accounting principles in the United States of America as in effect from time to time.

“ General Partner ” has the meaning provided for such term in the Joint Venture Partnership Agreement.

“ Gopher ” means the company and/or companies identified by the Borrower to the Administrative Agent as the Persons to be acquired in accordance with the Gopher Acquisition.

“ Gopher Acquisition ” means the consummation of the purchase of all or substantially all of the assets or Equity Interests of Gopher in accordance with the terms and conditions herein.

“ Gopher Effective Date ” is the first date upon which the conditions precedent in Section 4.03 hereof have been satisfied or waived in accordance herewith.

“ Governmental Authority ” means the government of (a) the United States of America, (b) any other nation or any political subdivision thereof, whether state or local, and (c) any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government over the Borrower, any Subsidiary, any of their properties, the Administrative Agent, any Issuing Bank or any Lender.

“ Guarantee ” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “ Guarantee ” as a verb has a corresponding meaning.

“ Guarantor ” means the Parent, any of the Subsidiary Guarantors and any other Person that executes and delivers a Guaranty to the Administrative Agent, other than the Contributed Subsidiaries after the Joint Venture Effective Date, provided each of the conditions to the release of the Contributed Subsidiaries as Guarantors has been satisfied.

 

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“ Guaranty ” means any of the following: (i) the guaranty by the Borrower in Section 2.15 , (ii) the guaranty by the Guarantors in Article X and (iii) a guaranty, in form and substance reasonably satisfactory to the Administrative Agent, executed by one of more Persons in favor of the Administrative Agent for the benefit of the Secured Creditors under which such Persons guarantee payment and performance of the Obligations.

“ Hawkeye Companies ” means Hawkeye, L.L.C., a New York limited liability company, Premier Utility Locating, L.L.C., a New York limited liability company, Halpin Line Construction, L.L.C., a New York limited liability company, and Bemis, L.L.C, a Vermont limited liability company.

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

“ Incorporated Covenants ” has the meaning provided in Section 6.22 .

“ Incorporated Defaults ” has the meaning provided in Section 6.22 .

“ Indebtedness ” means, with respect to any Person, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (d) all obligations (including, without limitation, earnout obligations and obligations under non-competition or similar agreements which are in the nature of deferred compensation) of such Person issued or assumed as the deferred purchase price of property or services purchased by such Person, other than trade debt incurred in the ordinary course of business and due within six months of the incurrence thereof, which appear as liabilities on a balance sheet of such Person, (e) all obligations of such Person under take or pay or similar arrangements or under commodities agreements, (f) all Capitalized Lease Obligations of such Person, (g) the principal portion, determined on the basis of the implicit interest rate, of all basic rental obligations under all Synthetic Leases of such Person, (h) all net obligations of such Person under Swap Agreements, (i) all direct and contingent reimbursement obligations in respect of letters of credit (other than trade letters of credit), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, including, without duplication, all unreimbursed drafts drawn thereunder (less the amount of any cash collateral securing any such letters of credit or and bankers’ acceptances), (j) the principal component or liquidation preference of all Equity Interests issued by such Person and which by the terms thereof could at any time prior to the Term Loan Termination Date be (at the request of the holders thereof or otherwise) subject to mandatory sinking fund payments, mandatory redemption or other acceleration, (k) the aggregate amount of uncollected accounts receivable of such Person subject at such time to a sale or securitization of receivables (or similar transaction) (whether or not such transaction would be reflected on the balance sheet of such Person in accordance with GAAP), (l) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (m) all Guarantees of such Person with respect to Indebtedness of another Person and (n) the Indebtedness of any partnership or unincorporated joint venture in which such Person is a general partner or a joint venturer to the extent such Indebtedness is recourse to such Person.

“ Indemnitees ” has the meaning provided in Section 11.02 .

“ Information ” has the meaning provided in Section 11.15(b) .

 

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“ InfrastruX Capital Expenditures ” means, for any period, all Capital Expenditures made during such period, as determined in accordance with GAAP, but only to the extent such Capital Expenditures are allocated to the Contributed Subsidiaries (on a consolidated basis) which are part of the Joint Venture; provided, however, that InfrastruX Capital Expenditures shall not include (a) reinvestments made with proceeds of any Asset Sale or Recovery Event, (b) Acquisitions or (c) the Capital Expenditures of the Joint Venture that are allocated to TXU and its Subsidiaries.

“ InfrastruX Director ” has the meaning provided for such term in the Joint Venture Partnership Agreement.

“ Insolvency Event ” means, with respect to any Person, (i) the commencement of a voluntary case by such Person under the Bankruptcy Code or the seeking of relief by such Person under any bankruptcy or insolvency or analogous law in any jurisdiction outside of the United States; (ii) the commencement of an involuntary case against such Person under the Bankruptcy Code and the petition is not timely disputed, or is not dismissed within 60 days, after commencement of the case; (iii) a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of such Person; (iv) such Person commences (including by way of applying for or consenting to the appointment of, or the taking of possession by, a rehabilitator, receiver, custodian, trustee, conservator or liquidator (collectively, a “conservator”) of such Person or all or any substantial portion of its property) any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency, liquidation, rehabilitation, conservatorship or similar law of any jurisdiction whether now or hereafter in effect relating to such Person; (v) any such proceeding of the type set forth in clause (iv) above is commenced against such Person to the extent such proceeding is consented to by such Person or remains undismissed for a period of 60 days; (vi) such Person is adjudicated insolvent or bankrupt; (vii) any order of relief or other order approving any such case or proceeding is entered; (viii) such Person suffers any appointment of any conservator or the like for it or any substantial part of its property that continues undischarged or unstayed for a period of 60 days; (ix) such Person makes a general assignment for the benefit of creditors or generally does not pay its debts as such debts become due; or (x) any corporate (or similar organizational) action is taken by such Person for the purpose of effecting any of the foregoing.

“ Inter-Agent Agreement ” means that certain letter agreement dated as of the Joint Venture Effective Date by and between the Administrative Agent and Credit Suisse, in its capacity as administrative agent for the lenders under the Joint Venture Credit Agreement, the terms and conditions of which are reasonably acceptable to the Administrative Agent and the Borrower, but only to the extent the Borrower is a party thereto.

“ InterCon Directional Drilling Transaction ” means the potential sale of all assets relating directly or indirectly to the directional drilling operations of InterCon Construction, Inc.

“ Interest Coverage Ratio ” means, for any Testing Period, the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest Expense.

“ Interest Election Request ” means a request by the Borrower to Convert or Continue a Borrowing in accordance with Section 2.10 .

“ Interest Period ” means, with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as the Borrower may elect; or such other period that is twelve months or less as requested by the Borrower and consented to by all the Lenders; provided, that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to

 

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the next succeeding Business Day unless such next succeeding day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (b) no Interest Period for any Eurodollar Loan may be selected that would end after the Revolving Facility Termination Date for Revolving Loans and Swing Loans and the Term Loan Termination Date for Term Loans and (c) any Interest Period pertaining to a Eurodollar Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last day of the last calendar month of such Interest Period. Interest shall accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent Conversion or Continuation of such Borrowing.

“ Interest Rate Protection Agreement ” means any interest rate swap agreement, any interest rate cap agreement, any interest rate collar agreement or other similar interest rate management agreement or arrangement, in each case providing for the transfer or mitigation of interest risks either generally or under specific contingencies.

“ Investment ” in any Person means (a) any Acquisition of such Person or its property, (b) any other acquisition of Equity Interests, bonds, notes, debentures, partnership, joint ventures or other ownership interests or other securities of such other Person, (c) any deposit with, or advance, loan or other extension of credit to, such Person (other than deposits made in connection with the purchase of equipment inventory and supplies in the ordinary course of business) or (d) any other capital contribution to or investment in such Person, including, without limitation, any Guarantee (including any support for a letter of credit issued on behalf of such Person) incurred for the benefit of such Person and any disposition to such Person for consideration less than the fair market value of the property disposed in such transaction, but excluding any Restricted Payment to such Person. Investments which are capital contributions or purchases of Equity Interests which have a right to participate in the profits of the issuer thereof shall be valued at the amount (or, in the case of any Investment made with property other than cash, the book value of such property) actually contributed or paid (including cash and non cash consideration and any assumption of Indebtedness) to purchase such Equity Interests as of the date of such contribution or payment. Investments which are loans, advances, extensions of credit or Guarantees shall be valued at the principal amount of such loan, advance or extension of credit outstanding as of the date of determination or, as applicable, the principal amount of the loan or advance outstanding as of the date of determination actually guaranteed by such Guarantees.

“ Issuing Bank ” means Credit Suisse, KeyBank, National Association or any other Lender approved by the Administrative Agent, each in its capacity as an issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.05(i) . Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit issued and presentable in New York City to be issued by Affiliates of such Issuing Bank, in which case the term “ Issuing Bank ” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.

“ Joinder Agreement ” means a Joinder Agreement substantially in the form of Exhibit F hereto, executed and delivered by a new Guarantor in accordance with the provisions of Section 6.08 .

“ Joint Venture ” means InfrastruX Energy Services Group, LP, a Delaware limited partnership, of which 50% of the Equity Interests thereof are owned indirectly by each of the Borrower and TXU Corp.

“ Joint Venture Amendment ” means that certain amendment to certain of the Material Joint Venture Documents dated on or prior to the Joint Venture Effective Date by and among the Joint Venture, the parties to the Joint Venture Partnership Agreement and certain other Persons who may be party

 

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thereto, including without limitation each document contemplated to be delivered thereunder, each of such amendment and such other documents to be in form and substance reasonably acceptable to the Borrower and the Administrative Agent, which amendment may include a direction to the Joint Venture to deliver to the Administrative Agent all distributions due to Joint Venture GP and Joint Venture LP.

“ Joint Venture Contribution ” means collectively, the transfer and contribution to the Joint Venture of the Contributed Subsidiaries (including their assets), the release of the Liens on the Contributed Subsidiaries and their assets created pursuant to the Loan Documents and the release of the Contributed Subsidiaries as Guarantors pursuant to the Loan Documents.

“ Joint Venture Credit Agreement ” means the Credit Agreement dated on or about the Joint Venture Effective Date among the Joint Venture, as borrower thereunder, the Subsidiaries of the Joint Venture party thereto, as guarantors, the lenders party thereto and Credit Suisse, as administrative agent for such lenders, and all schedules and exhibits thereto, which Credit Agreement shall be in form and substance reasonably acceptable to the Administrative Agent and the Borrower.

“ Joint Venture Effective Date ” is the first date upon which (a) the conditions precedent in Section 4.04 hereof and the Joint Venture Credit Agreement have been satisfied or waived in accordance therewith, (b) the contribution to the Joint Venture by the Borrower of the Equity Interests of the Contributed Subsidiaries and by the Credit Parties of the assets contemplated by the Material Joint Venture Documents has occurred, (c) the contribution to the Joint Venture by TXU or its Subsidiaries of the Equity Interests of TXU Electric Delivery Property Company LLC and of the assets contemplated by the Material Joint Venture Documents has occurred (d) the leasing by TXU or certain of its Subsidiaries of certain real estate to be used by the Joint Venture or its Subsidiaries is in full force and effect, (e) the effectiveness of the Master Framework Agreement, pursuant to which a Subsidiary of TXU agrees to purchase certain services from the Joint Venture (subject to the terms and condition contained therein) is in full force and effect and (f) the Contributed Subsidiaries have joined and are party to the Joint Venture Credit Agreement and each of the other Joint Venture Loan Documents to which they are or are intended to be a party.

“ Joint Venture GP ” means InfrastruX Energy GP, LLC, a Delaware limited liability company, to the extent it is a General Partner of the Joint Venture, and its successor General Partner.

“ Joint Venture Loan Documents ” means collectively, (a) the documents included in definition of the term “Loan Documents” in the Joint Venture Credit Agreement and (b) documents related to any replacements or refinancings of the Joint Venture Credit Agreement, to the extent permitted hereby.

“ Joint Venture LP ” means InfrastruX Energy LP, LLC, a Delaware limited liability company, to the extent it is a Limited Partner of the Joint Venture, and its successor Limited Partner.

“ Joint Venture Material Adverse Effect ” means from and after the Joint Venture Effective Date, any or all of the following: (i) any material adverse effect on the business, operations, properties, prospects or conditions (financial or otherwise) of the Joint Venture Parties, taken as a whole; (ii) any material adverse effect on the ability of the Joint Venture Parties, taken as a whole, to perform their obligations under the Joint Venture Credit Agreement, the Joint Venture Partnership Agreement or, taken as a whole, the other Material Joint Venture Documents; or (iii) any material adverse effect on the validity, effectiveness or enforceability against the applicable Joint Venture Parties of the Joint Venture Credit Agreement, the Joint Venture Partnership Agreement or, taken as a whole, the other Material Joint Venture Documents.

 

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“ Joint Venture Material Agreements ” means any contract, agreement or arrangement to which any of the Joint Venture Parties is party (other than the Joint Venture Loan Documents and the Material Joint Venture Documents) (a) involving aggregate consideration payable to or by such Person of $3,000,000 or more during any fiscal year ending after 2005, (b) for which breach, termination, nonperformance or failure to renew could reasonably be expected to have a Joint Venture Material Adverse Effect, or (c) that relates to any Material Indebtedness of such Person.

“ Joint Venture Parties ” means collectively the Joint Venture and its Subsidiaries.

“ Joint Venture Partnership Agreement ” means that certain Limited Partnership Agreement of InfrastruX Energy Services Group LP dated June 24, 2006 among Joint Venture GP, Joint Venture LP, TXU Asset Services Group Management Company LLC, TXU Asset Services Group Investment Company LLC, the Borrower, TXU Asset Services Company LLC, TXU ED and Sponsor, as amended, restated, supplemented or otherwise modified in accordance with this Agreement.

“ Joint Venture Transaction ” means, collectively, (a) the formation of the Joint Venture and the contribution to the Joint Venture by (i) the Borrower of the Equity Interests of the Contributed Subsidiaries and related assets and (ii) TXU Corp. and its Subsidiaries of certain assets and employees, including without limitation the assets contemplated by the Participation Agreement and the other Material Joint Venture Documents, (b) the entering into by the Joint Venture GP, the Joint Venture LP, TXU GP, TXU LP and the Joint Venture Parties of the Joint Venture Loan Documents and the Material Joint Venture Documents to which they are or are intended to be a party, (e) the reduction of the Total Revolving Commitment in accordance with this Agreement, and (f) the payment of the fees and expenses incurred in connection with the consummation of the foregoing.

“ Laws ” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, regulations, ordinances, codes and administrative or judicial decisions, orders or rulings, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, directives, decrees or like action of any Governmental Authority.

“ LC Collection Account ” has the meaning provided in Section 2.05(j) .

“ LC Commitment Amount ” means $60,000,000.

“ LC Disbursement ” means a payment made by an Issuing Bank pursuant to a Letter of Credit.

“ LC Documents ” means, with respect to any Letter of Credit, any documents executed in connection with such Letter of Credit, including the Letter of Credit itself.

“ LC Exposure ” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all Unreimbursed Drawings in respect of Letters of Credit. The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.

“ LC Fee ” means any of the fees payable pursuant to Section 2.11(b) or Section 2.11(c) in respect of Letters of Credit.

“ LC Issuance ” means the issuance of any Letter of Credit by any Issuing Bank for the account of an LC Obligor in accordance with the terms of this Agreement, and shall include any amendment thereto that increases the Stated Amount thereof or extends the expiry date of such Letter of Credit.

 

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“ LC Obligor ” means, with respect to each LC Issuance, the Borrower or the Subsidiary Guarantor for whose account such Letter of Credit is issued.

“ Leaseholds ” means, with respect to any Person, all of right, title and interest of such Person as lessee or licensee in, to and under leases and licenses of land, improvements and fixtures.

“ Lender ” and “ Lenders ” have the meaning provided in the first paragraph of this Agreement and includes any other Person that becomes a party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context otherwise requires, the term “Lenders” includes the Swing Line Lender.

“ Letter of Credit ” means any Standby Letter of Credit issued by any Issuing Bank under this Agreement pursuant to Section 2.05 for the account of any LC Obligor and shall include the Existing Letters of Credit.

“ LIBO Rate ” means with respect to any Eurodollar Borrowing for any Interest Period, the rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the commencement of such Interest Period by reference to the British Bankers’ Association Interest Settlement Rates for deposits in dollars (as set forth by any service selected by the Administrative Agent that has been nominated by the British Bankers’ Association as an authorized information vendor for the purpose of displaying such rates) for a period equal to such Interest Period; provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall be the interest rate per annum determined by the Administrative Agent to be the average of the rates per annum at which deposits in dollars are offered for such relevant Interest Period to major banks in the London interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. (London time) on the date that is two Business Days prior to the beginning of such Interest Period.

“ Lien ” means any mortgage, pledge, security interest, hypothecation, encumbrance, lien or charge of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease in the nature thereof).

“ Limited Partner ” has the meaning provided for such term in the Joint Venture Partnership Agreement.

“ Loan ” means any Revolving Loan, Term Loan or Swing Loan.

“ Loan Documents ” means this Agreement, the Notes, the Collateral Documents, each Guaranty, the Fee Letter, each Joinder Agreement, the Inter-Agent Agreement (from and after the Joint Venture Effective Date), the Surety Intercreditor Agreement, each Letter of Credit and each other LC Document.

“ Management Agreement ” means the Amended and Restated Management Agreement dated as of the Closing Date, between Tenaska Capital Management, LLC and the Borrower.

“ Margin Stock ” has the meaning provided in Regulation U.

“ Master Framework Agreement ” means that certain Master Framework Agreement dated June 24, 2006 between TXU ED and the Joint Venture, as amended, restated, supplemented or otherwise modified in accordance with this Agreement.

 

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“ Master Lease Agreement ” means that certain Master Lease Agreement dated June 24, 2006 between TXU ED and the Borrower, as amended, restated, supplemented or otherwise modified in accordance with this Agreement.

“ Material Adverse Effect ” means any or all of the following: (i) any material adverse effect on the business, operations, properties, prospects or conditions (financial or otherwise) of the Borrower and its Subsidiaries, taken as a whole; (ii) any material adverse effect on the ability of the Credit Parties, taken as a whole, to perform their obligations under any of the Loan Documents; or (iii) any material adverse effect on the validity, effectiveness or enforceability against any Credit Party of any Loan Documents to which it is a party.

“ Material Agreements ” means any contract, agreement or arrangement to which the Borrower or any of its Subsidiaries is party (other than the Loan Documents and the Material Joint Venture Documents) (a) involving aggregate consideration payable to or by such Person of $2,100,000 or more during any fiscal year ending after 2005, (b) for which breach, termination, nonperformance or failure to renew could reasonably be expected to have a Material Adverse Effect, or (c) that relates to any Material Indebtedness of such Person. A list of all Material Agreements as of the Closing Date is set forth on Schedule 3 .

“ Material Field Services Agreement ” means (a) any Field Services Agreement that involves aggregate consideration payable to any Joint Venture Party of $3,000,000 or more during any fiscal year, (b) any group of Field Services Agreements providing for aggregate consideration payable to one or more Joint Venture Parties of $10,000,000 or more during any fiscal year, or (c) any Field Services Agreement for which breach, termination, nonperformance or failure to renew could reasonably be expected to have a Joint Venture Material Adverse Effect.

“ Material Foreign Intellectual Property ” means any patent, trademark, service mark, trade name or copyright awarded to a Credit Party (i) that is registered in a jurisdiction (other than the United States) where the portion of Consolidated EBITDA attributable to the operations of the Borrower and its Subsidiaries in such jurisdiction for the Testing Period most recently ended exceeds $2,000,000 and (ii) with respect to which the Administrative Agent has requested that the Borrower take (or cause to be taken) such action as the Administrative Agent may reasonably require and as is necessary under the law of the applicable jurisdiction to establish and perfect the Administrative Agent’s security interest hereunder in such property; provided that the Borrower shall be deemed to be in compliance with any covenant in the Loan Documents related to the perfection of such security interest until it has been given a commercially reasonable amount of time (but in no event less than 60 days) to perfect such security interest under the laws of the applicable foreign jurisdiction.

“ Material Indebtedness ” means, as to the Borrower or any of its Subsidiaries, any particular Indebtedness of the Borrower or such Subsidiary (including any Guarantees) in excess of the aggregate principal amount of $5,000,000.

“ Material Joint Venture Documents ” means the Joint Venture Credit Agreement, each of security and pledge agreements related to the Joint Venture Credit Agreement, the Joint Venture Partnership Agreement, the Master Framework Agreement, each Material Field Services Agreement, the Master Lease Agreement, the Participation Agreement and the Joint Venture Amendment.

“ Material Vehicle ” means any motor vehicle that (a) is owned by a Credit Party, (b) is subject to a certificate of title and (c) with respect to motor vehicles owned as of the Closing Date, has a net book value in excess of $15,000 or with respect to motor vehicles acquired after the Closing Date, has a net book value in excess of $25,000.

 

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“ Maximum Rate ” has the meaning provided in Section 11.23 .

“ Moody’s ” means Moody’s Investors Service, Inc. and its successors.

“ Mortgage Policies ” has the meaning specified in Section 6.17 .

“ Mortgaged Properties ” has the meaning specified in Section 6.17 .

“ Mortgages ” has the meaning specified Section 6.17 .

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

“ Net Cash Proceeds ” shall mean the aggregate cash proceeds received by any Credit Party or any Subsidiary in respect of any Asset Sale, Equity Issuance, Debt Issuance or Extraordinary Receipt, net of (a) direct costs (including, without limitation, legal, accounting and investment banking fees and expenses, title insurance premiums, recordation, transfer or similar taxes and fees, and sales commissions) associated therewith other than direct costs constituting fees and expenses payable to another Credit Party or to any Affiliate of a Credit Party, (b) amounts held in escrow to be applied as part of the purchase price of any Asset Sale or to fund continuing liabilities estimated to be payable to any third party (c) taxes paid or payable as a result thereof, and (d) with respect to an Asset Sale or Extraordinary Receipt, the principal amount of any Indebtedness that is secured by the applicable asset and that is required to be repaid in connection with such transaction (other than Indebtedness under the Loan Documents); it being understood that “ Net Cash Proceed s” shall include, without limitation, (i) any cash received upon the sale or other disposition of any non-cash consideration received by any Credit Party or any Subsidiary in connection with any Asset Sale, Equity Issuance, Debt Issuance or Extraordinary Receipt, (ii) any cash that is part of the purchase price of an Asset Sale which was placed in escrow (A) to fund a purchase price adjustment, earnout obligation or obligations under non-competition or similar agreements which are in the nature of deferred compensation related to any Asset Sale to the extent that it is subsequently released from escrow and paid or returned to any Credit Party or (B) to fund continuing liabilities estimated to be payable to any third party in connection with any Asset Sale to the extent that it is subsequently released from escrow and paid or returned to any Credit Party.

“ 1934 Act ” means the Securities Exchange Act of 1934, as amended.

“ Note ” means a Revolving Facility Note, a Term Note or a Swing Line Note, as applicable.

“ Notice of Swing Loan Refunding ” has the meaning provided in Section 2.04(b) .

“ NPL ” means the National Priorities List under CERCLA.

“ Obligations ” means all amounts, indemnities and reimbursement obligations, direct or indirect, contingent or absolute, of every type or description, and at any time existing, owing by the Borrower or any other Credit Party to (i) the Administrative Agent, any Lender, the Swing Line Lender or any Issuing Bank pursuant to the terms of this Agreement or any other Loan Document and (ii) any Secured Swap Provider under any Swap Agreement (including in each case, but not limited to, interest and fees that accrue after the commencement by or against any Credit Party of any insolvency proceeding, regardless of whether allowed or allowable in such proceeding or subject to an automatic stay under Section 362(a) of the Bankruptcy Code).

 

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“ Operating Lease ” as applied to any Person means any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is not accounted for as a Capital Lease on the balance sheet of that Person.

“ Organizational Documents ” means, with respect to any Person (other than an individual or Governmental Authority), such Person’s Articles (Certificate) of Incorporation, or equivalent formation documents, and Regulations (Bylaws), or equivalent governing documents, and, in the case of any partnership, includes any partnership agreement, and, in the case of any limited liability company, includes any operating agreement, and, in each case, and any amendments to any of the foregoing.

“ Parent ” has the meaning specified in the first paragraph of this Agreement.

“ Participant ” has the meaning provided in Section 11.06(c) .

“ Participation Agreement ” means that certain Participation Agreement dated June 24, 2006 between TXU Asset Services Company LLC and the Borrower, and for the purposes of Sections 6.02 and 9.17 thereof only, TXU ED, as amended, restated, supplemented or otherwise modified in accordance with this Agreement

“ PBGC ” means the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.

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

“ Permitted Acquisition ” means any Acquisition permitted by Section 7.05 .

“ Permitted Investments ” means, at any time, Investments by the Borrower and its Subsidiaries permitted to exist at such time pursuant to the terms of Section 7.05 .

“ Permitted Lien ” means any Lien permitted by Section 7.03 .

“ Permitted Management Equity Interests ” means the Equity Interests of the Borrower held by certain members of the management, consultants, employees and directors of the Borrower in an amount not to exceed 15% of the Equity Interest of the Borrower at any time.

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

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

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

 

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“ Prime Rate ” means the rate of interest per annum determined from time to time by the Administrative Agent as its prime rate for loans in U.S. dollars, whether or not announced; each change in the Prime Rate shall be effective from and including the date such change is announced as being effective. Such rate is set by the Administrative Agent as a general reference rate of interest, taking into account such factors as the Administrative Agent may deem appropriate; it being understood that many of the Administrative Agent’s commercial or other loans are priced in relation to such rate, that it is not necessarily the lowest or best rate actually charged to any customer and that the Administrative Agent may make various commercial or other loans at rates of interest having no relationship to such rate.

“ Pro Forma Basis ” means, in connection with the calculation as of the applicable Calculation Date of the financial covenants set forth in Section 7.07 in respect of a proposed transaction under Section 4.04 , 7.04(k) or 7.05(i) (a “ Specified Transaction ”) as of the date on which such Specified Transaction is to be effected, the making of such calculation after giving effect on a pro forma basis to:

(a) the consummation of such Specified Transaction as if such Specified Transaction had been consummated as of the first day of the applicable Calculation Period;

(b) the assumption, incurrence or issuance of any Indebtedness by any of the Borrower and its Subsidiaries (including any Person which became a Subsidiary pursuant to or in connection with such Specified Transaction) in connection with such Specified Transaction, as if such Indebtedness had been assumed, incurred or issued (and the proceeds thereof applied) on the first day of such Calculation Period (with any such Indebtedness bearing interest at a floating rate being deemed to have an implied rate of interest for the applicable period equal to the rate which is or would be in effect with respect to such Indebtedness as of the applicable Calculation Date);

(c) the permanent repayment, retirement or redemption of any Indebtedness (other than revolving Indebtedness, except to the extent accompanied by a permanent commitment reduction) by any of the Borrower and its Subsidiaries (including any Person which became a Subsidiary pursuant to or in connection with such Specified Transaction) in connection with such Specified Transaction, as if such Indebtedness had been repaid, retired or redeemed on the first day of such Calculation Period;

(d) other than in connection with such Specified Transaction, any assumption, incurrence or issuance of any Indebtedness by any of the Borrower and its Subsidiaries during the period beginning with the first day of the applicable Calculation Period through and including the applicable Calculation Date, as if such Indebtedness had been assumed, incurred or issued (and the proceeds thereof applied) on the first day of such Calculation Period (with any such Indebtedness bearing interest at a floating rate being deemed to have an implied rate of interest for the applicable period equal to the weighted average of the interest rates actually in effect with respect to such Indebtedness during the portion of such period that such Indebtedness was outstanding); and

(e) other than in connection with such Specified Transaction, the permanent repayment, retirement or redemption of any Indebtedness (other than revolving Indebtedness, except to the extent accompanied by a permanent commitment reduction) by any of the Borrower and its Subsidiaries during the period beginning with the first day of the applicable Calculation Period through and including the applicable Calculation Date, as if such Indebtedness had been repaid, retired or redeemed on the first day of such Calculation Period.

“ Pro Forma Compliance Certificate ” means a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent in connection with the Specified Transaction, such certificate to contain reasonably detailed calculations satisfactory to the Administrative Agent, upon giving effect to the applicable Specified Transaction on a Pro Forma Basis, of the financial covenants set forth in Section 7.07 for the applicable Calculation Period.

 

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“ Public Market ” shall exist if (a) a Public Offering has been consummated and (b) any Equity Interests of the Parent have been distributed by means of an effective registration statement under the Securities Act of 1933.

“ Public Offering ” means a public offering of the Equity Interests of the Parent pursuant to an effective registration statement under the Securities Act of 1933.

“ Purchase Agreements ” means collectively that certain LLC Membership Interest Purchase Agreement by and among William J. Haugland, Hawkeye Group, LLC and InfrastruX Hawkeye Holdings, LLC and on and after the Gopher Effective Date, the Gopher acquisition agreement dated on or about the Gopher Effective Date.

“ Purchase Date ” has the meaning provided in Section 2.04(c) .

“ Real Property ” means, with respect to any Person at any time, all of the right, title and interest of such Person in and to land, improvements and fixtures, including Leaseholds.

“ Recovery Event ” shall mean the receipt by the Credit Parties or any of their Subsidiaries of any cash insurance proceeds or condemnation or expropriation award payable by reason of theft, loss, physical destruction or damage, taking or similar event with respect to any of their respective property or assets other than obsolete property or assets no longer used or useful in the business of the Credit Parties or any of their Subsidiaries.

“ Register ” has the meaning provided in Section 11.06 .

“ Regulation D ” means Regulation D of the Board, as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“ Regulation U ” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“ Related Documents ” means (a) the Purchase Agreements, (b) the Escrow and Indemnification Agreement, dated as of the May 8, 2006, among Parent, TPF InfrastruX, Inc., the Borrower, Bertrand Valdman and U.S. Bank, National Association, (c) the Special Indemnification Agreement and (d) such documents as the Administrative Agent and the Borrower shall reasonably agree to designate as “Related Documents” with respect to the Gopher Acquisition and prior to the Gopher Effective Date, such documents shall not constitute Related Documents.

“ Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, trustees, officers, employees, agents and advisors (including attorneys, accountants and experts) of such Person and such Person’s Affiliates.

“ Release ” or “ Released ” has the meaning stated in Section 101(22) of CERCLA.

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

 

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“ Required Financial Information ” means, with respect to each fiscal period or quarter of the Borrower and its Subsidiaries, (a) the financial statements required to be delivered pursuant to Section 6.01(a) or (b)  for such fiscal period or quarter, and (b) the certificate of a Responsible Officer of the Borrower required by Section 6.01(d) to be delivered with the financial statements described in clause (a) above.

“ Required Lenders ” means, (i) at any time prior to the date on which the Commitments have been terminated, Lenders whose Credit Facility Exposure, Unused Revolving Commitments and Unused Delayed Draw Term Commitments constitute more than 50% of the sum of the Aggregate Credit Facility Exposure, the Unused Total Revolving Commitment and the Unused Total Delayed Draw Term Commitment, and (ii) at any time on or after the date on which the Commitments have been terminated, the Lender or Lenders that hold more than 50% of the sum of (A) the Aggregate Revolving Facility Exposure, (B) the outstanding principal amount of the Term Loans and (C) the outstanding principal amount of Swing Loans.

“ Responsible Officer ” means with respect to the Borrower or any Subsidiary, any of the following officers: the Chairman, the President, the Chief Executive Officer, the Chief Financial Officer, the Chief Operating Officer, the Treasurer, the Assistant Treasurer or the Corporate Controller, or in the case of a manager-managed limited liability company, the Manager or, in the case of any of the foregoing, such other Person as is authorized in writing to act on behalf of the Borrower or such Subsidiary and is reasonably acceptable to the Administrative Agent. Unless otherwise qualified, all references herein to a Responsible Officer shall refer to a Responsible Officer of the Borrower.

“ Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to any Person’s stockholders, partners or members (or the equivalent of any thereof), or any option, warrant or other right to acquire any such dividend or other distribution or payment; provided that, for the purposes of clarification, Restricted Payments shall not include any payment in respect of the Management Agreement permitted under Section 7.09 of this Agreement.

“ Revolving Borrowing ” means the incurrence of Revolving Loans consisting of one Type of Revolving Loan by the Borrower from all of the Lenders having Revolving Commitments in respect thereof on a pro rata basis on a given date (or resulting from Conversions or Continuations on a given date) in the same currency, having in the case of any Eurodollar Loans the same Interest Period.

“ Revolving Commitment ” means, with respect to each Revolving Lender, the obligation of such Lender to make Revolving Loans and to participate in Letters of Credit in the amount set forth opposite such Lender’s name in Schedule 1 as its “ Revolving Commitment ” or in the case of any Lender that becomes a party hereto pursuant to an Assignment and Assumption, the amount set forth in such Assignment and Assumption, as such commitment may be reduced from time to time pursuant to Section 2.12(c) or increased from time to time pursuant to Section 11.12 or adjusted from time to time as a result of assignments to or from such Lender pursuant to Section 11.06 . The aggregate of all Lenders’ Revolving Commitments equals the Total Revolving Commitment.

“ Revolving Facility Availability Period ” means the period from but excluding the Closing Date to but excluding the Revolving Facility Termination Date.

 

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“ Revolving Facility Exposure ” means, for any Lender at any time, the sum of (i) the principal amount of Revolving Loans made by such Lender and outstanding at such time, and (ii) such Lender’s share of the LC Exposure at such time.

“ Revolving Facility Note ” means a promissory note substantially in the form of Exhibit A-1 .

“ Revolving Facility Termination Date ” means the earlier of (i) November 3, 2011, or (ii) the date that the Commitments have been terminated pursuant to Section 8.02 .

“ Revolving Lender ” means, at any time, any Lender that has a Revolving Commitment. “Revolving Loan” means, with respect to each Lender, any loan made by such Lender pursuant to Section 2.02 .

“ Revolving Loan ” means, with respect to each Lender, any loan made by such Lender pursuant to Section 2.02(b) .

“ Sale Leaseback Transaction ” means any arrangement with any Person providing for the leasing by the Borrower or any Subsidiary of any property (except for temporary leases for a term, including any renewal thereof, of not more than one year and except for leases between the Borrower and a Subsidiary or between Subsidiaries), which property has been or is to be sold or transferred by the Borrower or such Subsidiary to such Person.

“ S&P ” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., and its successors.

“ Scheduled Payments of Principal ” has the meaning provided in the definition of Consolidated Scheduled Funded Debt Payments.

“ SEC ” means the United States Securities and Exchange Commission.

“ SEC Regulation D ” means Regulation D as promulgated under the Securities Act of 1933, as amended, as the same may be in effect from time to time.

“ Secured Creditors ” means, with respect to the Borrower Guaranteed Obligations pursuant to Article X , each of the Administrative Agent, the Lenders, each Issuing Bank, the Swing Line Lender, each Secured Swap Provider, and the respective successors and assigns of each of the foregoing.

“ Secured Swap Provider ” means (a) any Person that is a party to a Swap Agreement with the Borrower or any of its Subsidiaries and that is or becomes the Administrative Agent, an Arranger, a Lender or an Affiliate of any of the foregoing Persons, whether or not such Person at any time ceases to be the Administrative Agent, an Arranger, a Lender or an Affiliate of any of the foregoing Persons, as the case may be or (b) any assignee of any Person described in clause (a) above so long as such assignee is an Approved Counterparty.

“ Security Agreement ” means the Security and Pledge Agreement, dated as of the Closing Date, among the Credit Parties and the Administrative Agent.

“ Single-Employer Plan ” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, to which the Borrower or any ERISA Affiliate is making or accruing an obligation to make contributions or, if any such plan has been terminated, to which the Borrower or any ERISA Affiliate made or accrued an obligation to make contributions during any of the five plan years preceding the date of termination of such plan.

 

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

“ Special Indemnification Agreement ” means the Special Indemnification Agreement dated as of May 8, 2006 among the Parent, TPF InfrastruX, Inc., the Borrower, and Puget Energy, Inc.

“ Specified Transaction ” has the meaning provided in the definition of Pro Forma Basis.

“ Sponsor ” means Tenaska Power Fund, L.P., a Delaware limited partnership.

“ Standby Letter of Credit ” means any standby letter of credit issued for the purpose of supporting workers compensation, liability insurance, releases of contract retention obligations, contract performance guarantee requirements and other bonding obligations or for other lawful purposes.

“ Stated Amount ” of each Letter of Credit means the maximum amount available to be drawn thereunder (regardless of whether any conditions or other requirements for drawing could then be met).

“ Statutory Reserve Rate ” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent or any Lender (including any branch, Affiliate or other fronting office making or holding a Loan) is subject, with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

“ Subordinated Indebtedness ” means any Indebtedness that has been subordinated to the prior payment in full of all of the Obligations pursuant to a written agreement or written terms reasonably acceptable to the Administrative Agent (acting on instructions from the Required Lenders).

“ Subordinated Obligations ” has the meaning provided in Section 10.02 .

“ Subsidiary ” means, with respect to any Person (herein referred to in this definition as the “parent”), any corporation, partnership, limited liability company, trust, joint venture, association or other business entity (a) of which Equity Interests representing more than 50% of the equity or more than 50%

 

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of the ordinary voting power are, at the time any determination is being made, owned, Controlled or held by such Person, or (b) that is, at the time any determination is made, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless otherwise indicated herein, each reference to the term “Subsidiary” shall mean a Subsidiary of the Borrower.

“ Subsidiary Guarantor ” has the meaning provided in the first paragraph of this Agreement.

“ Surety Bonds ” has the meaning provided in Section 7.04(h) .

“ Surety Intercreditor Agreement ” means the Surety Intercreditor Agreement entered into on or before the Closing Date among Safeco Insurance Company of America and the Administrative Agent.

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

“ Swing Line Commitment ” means $7,500,000.

“ Swing Line Facility ” means the credit facility established under Section 2.04 pursuant to the Swing Line Commitment of the Swing Line Lender.

“ Swing Line Lender ” means Credit Suisse.

“ Swing Line Note ” means a promissory note substantially in the form of Exhibit A 3 .

“ Swing Loan ” means any loan made by the Swing Line Lender under the Swing Line Facility pursuant to Section 2.04 .

“ Swing Loan Participation ” has the meaning provided in Section 2.04(c) .

“ Swing Loan Participation Amount ” has the meaning provided in Section 2.04(c) .

“ Synthetic Lease ” means any lease (i) that is accounted for by the lessee as an Operating Lease, and (ii) under which the lessee is intended to be the “owner” of the leased property for federal income tax purposes.

“ Taxes ” has the meaning provided in Section 3.03(a) .

“ Temporary Staging Site ” means any location leased or otherwise occupied by a Credit Party for the purpose of locating equipment in connection with the staging and completion of a project and that will be leased or occupied by such Credit Party for a period of less than six months.

“ Term Borrowing ” means the incurrence of Term Loans consisting of one Type of Term Loan by the Borrower from all of the Lenders having Term Commitments in respect thereof on a pro rata basis on a given date (or resulting from Conversions or Continuations on a given date) in the same currency, having in the case of any Eurodollar Loans the same Interest Period.

 

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“ Term Commitment ” means, with respect to each Lender, a collective reference to such Lender’s Closing Date Term Commitment and such Lender’s Delayed Draw Term Commitment.

“ Term Lender ” means (a) at any time on or after the Closing Date, any Lender that has a Term Commitment at such time, (b) at any time during the Delayed Draw Availability Period, any Lender that has a Delayed Draw Term Commitment and/or holds Term Loans at such time, and (c) thereafter, any Lender that holds Term Loans at such time.

“ Term Loan ” has the meaning specified in Section 2.02(a) .

“ Term Loan Termination Date ” means the earlier of (i) November 3, 2012 or (ii) the date that the Commitments have been terminated pursuant to Section 8.02 .

“ Term Note ” means a promissory note substantially in the form of Exhibit A-2 .

“ Termination Charge ” has the meaning specified in the Joint Venture Partnership Agreement and shall also be deemed to include each other termination fee or payment received by any Joint Venture Party as a result of the termination of the Master Framework Agreement or any Field Services Agreement, any portion of any of the foregoing or any reduction in the services provided thereunder.

“ Texas Administrative Code ” means the Texas Administrative Code, as such is amended or interpreted pursuant to any official ruling with respect thereto.

“ Testing Period ” means a single period consisting of the four consecutive fiscal quarters of the Borrower then last ended (whether or not such quarters are all within the same fiscal year), except that if a particular provision of this Agreement indicates that a Testing Period shall be of a different specified duration, such Testing Period shall consist of the particular fiscal quarter or quarters then last ended that are so indicated in such provision.

“ Total Delayed Draw Term Commitment ” means the sum of the Delayed Draw Term Commitments of the Lenders. As of the Closing Date, the amount of the Total Delayed Draw Term Commitment is $21,000,000.

“ Total Leverage Ratio ” means, for any Testing Period, the ratio of (i) Consolidated Funded Indebtedness to (ii) Consolidated EBITDA.

“ Total Revolving Commitment ” means the sum of the Revolving Commitments of the Revolving Lenders. As of the Closing Date, the amount of the Total Revolving Commitment is $100,000,000 and as of the Joint Venture Effective Date and thereafter the amount of the Total Revolving Commitment shall be $75,000,000.

“ Total Term Draw ” means the sum of (a) $309,000,000 and (b) the amount of the Delayed Draw Term Loan advanced.

“ Transaction ” means, collectively, (a) the consummation of the acquisition of the Hawkeye Companies, (b) the entering into by the Credit Parties and their applicable Subsidiaries of the Loan Documents to which they are or are intended to be a party, (c) the refinancing of certain outstanding Indebtedness of the Borrower and its Subsidiaries, including without limitation the Existing Credit

 

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Agreement, and the termination of all commitments with respect thereto, (d) the payment of the fees and expenses incurred in connection with the consummation of the foregoing and (e) on and after the Gopher Effective Date, for purposes of Article V only, the consummation of the acquisition of Gopher.

“ TXU ” means TXU Corp., a Texas corporation.

“ TXU ED ” means TXU Electric Delivery Company, a Texas corporation.

“ TXU GP ” means TXU Asset Services Group Management Company LLC, a Delaware limited liability company.

“ TXU LP ” means TXU Asset Services Group Investment Company LLC, a Delaware limited liability company.

“ TXU Owner ” means either (a) TXU or (b) TXU ED or the Controlling owner of TXU ED so long as TXU ED is a regulated utility in the State of Texas that owns and controls an electric power transmission and distribution system serving approximately 2,750,000 or more customers.

“ Type ”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Alternate Base Rate or the Adjusted LIBO Rate.

“ UCC ” means the Uniform Commercial Code as in effect from time to time. Unless otherwise specified, the UCC shall refer to the UCC as in effect in the State of New York.

“ Unfunded Pension Liability ” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets determined by the Pension Plan’s actuary as of the last day of the plan year in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

“ United States ” and “ U.S .” each means United States of America.

“ Unreimbursed Drawing ” means, with respect to any Letter of Credit, the aggregate amount of LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower or the applicable LC Obligor or Converted to a Revolving Loan pursuant to Section 2.05(e) , and, in each case, all interest that accrues thereon pursuant to this Agreement.

“ Unused Delayed Draw Term Commitment ” means, for any Lender at any time, the excess of (i) such Lender’s Delayed Draw Term Commitment at such time over (ii) the principal amount of the Delayed Draw Term Loans made by such Lender regardless of whether such principal remains outstanding at such time.

“ Unused Revolving Commitment ” means, for any Lender at any time, the excess of (i) such Lender’s Revolving Commitment at such time over (ii) such Lender’s Revolving Facility Exposure at such time.

“ Unused Total Delayed Draw Term Commitment ” means, at any time, the excess of (i) the sum of the Delayed Draw Term Commitments of all the Lenders at such time over (ii) the aggregate principal amount of all Delayed Draw Term Loans made by the Lenders regardless of whether such principal remains outstanding at such time.

 

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“ Unused Total Revolving Commitment ” means, at any time, the excess of (i) the Total Revolving Commitment at such time over (ii) the Aggregate Revolving Facility Exposure at such time.

“ USA Patriot Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001.

Section 1.02 Computation of Time Periods . In this Agreement in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including,” the words “to” and “until” each means “to but excluding” and the word “through” means “through and including.”

Section 1.03 Accounting Terms . Except as otherwise specifically provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time.

Section 1.04 Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Sections, Schedules and Exhibits shall be construed to refer to Sections of, and Schedules and Exhibits to, this Agreement, (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all Real Property, tangible and intangible assets and properties, including cash, securities, accounts and contract rights, and interests in any of the foregoing and (f) any reference to a statute, rule or regulation is to that statute, rule or regulation as now enacted or as the same may from time to time be amended, re-enacted or expressly replaced.

Section 1.05 Changes in GAAP . If at any time there is (a) a change in whether the Joint Venture or its Subsidiaries are consolidated into the Borrower or its Subsidiaries, (b) an accounting change or interpretation (regardless of the source) that affects the consolidation of the Joint Venture or its Subsidiaries by the Borrower or its Subsidiaries or (c) any change in GAAP, which in the case of any of the foregoing, would affect the computation of any financial ratio or requirement set forth in any Loan Document and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change.

 

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ARTICLE II

THE TERMS OF THE CREDIT FACILITIES

Section 2.01 Establishment of the Credit Facilities . On the Closing Date, and subject to and upon the terms and conditions set forth in this Agreement and the other Loan Documents, the Administrative Agent, the Lenders, the Swing Line Lender and each Issuing Bank agree to establish the Credit Facilities for the benefit of the Borrower; provided, however, that at no time will (i) the Aggregate Credit Facility Exposure exceed the Aggregate Commitments, (ii) the Aggregate Revolving Facility Exposure exceed the Total Revolving Commitment or (iii) the Credit Facility Exposure of any Lender exceed the aggregate amount of such Lender’s Commitment.

Section 2.02 Revolving Loans and Term Loans .

(a)(i) The Term Loan. Subject to the terms and conditions set forth herein, (A) each Term Lender with a Closing Date Term Commitment severally agrees to make its portion of a term loan to the Borrower on the Closing Date (the “ Closing Date Term Loan ”) in an aggregate amount not to exceed such Term Lender’s Closing Date Term Commitment, and (B) subject to satisfaction of the conditions set forth in Section 2.02(a)(ii) below and Section 4.02 and 4.03 , each Lender with a Delayed Draw Term Commitment severally agrees to make its portion of additional term loans (the “ Delayed Draw Term Loans ” and, collectively with the Closing Date Term Loan, the “ Term Loan ”) to the Borrower from time to time, on any Business Day during the Delayed Draw Availability Period, in an aggregate amount not to exceed such Term Lender’s Delayed Draw Term Commitment. Term Loans may, at the option of the Borrower, be incurred and maintained as, or Converted into, Term Loans that are ABR Loans or Eurodollar Loans; provided that all Terms Loans made as part of the same Term Borrowing shall consist of Term Loans of the same Type. Amounts borrowed under this Section 2.02(a) and repaid or prepaid may not be reborrowed.

(ii) Conditions to Borrowing of Delayed Draw Term Loans. Notwithstanding any other provision- of this Agreement to the contrary, including, without limitation the minimum borrowing requirements of Section 2.06 , the obligation of each Lender to honor any Borrowing Request delivered by the Borrower in respect of a Delayed Draw Term Loan is subject to the following conditions precedent (in addition to the conditions precedent set forth in Sections 4.02 and 4.03 ):

(A) if so requested by any Person providing a Delayed Draw Term Loan, the execution and delivery by the Borrower of an appropriate Term Note to such Person (which, in the case of an existing Lender shall replace the Term Note previously issued to such Lender, if any);

(B) receipt by the Administrative Agent of evidence that (i) the proceeds of such Delayed Draw Term Loan will be used by the Borrower solely for the purpose of funding the Gopher Acquisition and expenses related thereto, and (ii) the Borrower shall have otherwise complied with the requirements of Section 7.06(c) in respect thereof; and

(C) the Delayed Draw Term Loan shall be funded in a single draw in an aggregate principal amount of up to $21,000,000, as shall be set forth in the applicable Borrowing Request delivered in accordance with Section 2.06 .

 

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(b) Revolving Loans . During the Revolving Facility Availability Period, each Lender severally agrees, on the terms and conditions set forth in this Agreement, to make a Revolving Loan or Revolving Loans to the Borrower from time to time pursuant to and in an amount not to exceed such Lender’s Revolving Commitment, which Revolving Loans (i) may, except as set forth herein, at the option of the Borrower, be incurred and maintained as, or Converted into, Revolving Loans that are ABR Loans or Eurodollar Loans, provided that all Revolving Loans made as part of the same Revolving Borrowing shall consist of Revolving Loans of the same Type; (ii) may be repaid or prepaid and reborrowed in accordance with the provisions hereof; and (iii) shall not be made if, after giving effect to any such Revolving Loan, (A) the Revolving Facility Exposure of any Lender would exceed such Lender’s Revolving Commitment, (B) the sum of (1) the Aggregate Revolving Facility Exposure, and (2) the outstanding principal amount of Swing Loans, would exceed the Total Revolving Commitment, or (C) the Borrower would be required on the date of such Borrowing to prepay Loans or cash collateralize Letters of Credit pursuant to Section 2.13(b) .

Section 2.03 [ Intentionally Omitted ].

Section 2.04 Swing Line Facility .

(a) Swing Loans . During the Revolving Facility Availability Period, the Swing Line Lender agrees, on the terms and conditions set forth in this Agreement, to make a Swing Loan or Swing Loans to the Borrower from time to time, which Swing Loans (i) shall be payable on the Revolving Facility Termination Date; (ii) shall be made only in U.S. Dollars; (iii) may be repaid or prepaid and reborrowed in accordance with the provisions hereof; (iv) may only be made if after giving effect thereto (A) the aggregate principal amount of Swing Loans outstanding does not exceed the Swing Line Commitment, and (B) the sum of (1) the Aggregate Revolving Facility Exposure, and (2) the outstanding principal amount of Swing Loans, would exceed the Total Revolving Commitment; (v) shall not be made if, after giving effect thereto, the Borrower would be required on the date of such Borrowing to prepay Loans or cash collateralize Letters of Credit pursuant to Section 2.13(b) ; and (vi) shall not be made if the proceeds thereof would be used to repay, in whole or in part, any outstanding Swing Loan.

(b) Swing Loan Refunding . The Swing Line Lender may at any time, in its sole and absolute discretion, direct that the Swing Loans owing to it be refunded by delivering a notice to such effect to the Administrative Agent, specifying the aggregate principal amount thereof (a “ Notice of Swing Loan Refunding ”). Promptly upon (but in any event within two Business Days) receipt of a Notice of Swing Loan Refunding, the Administrative Agent shall give notice of the contents thereof to the Lenders with Revolving Commitments and, unless an Event of Default specified in Section 8.01(h) in respect of the Borrower has occurred, the Borrower. Each such Notice of Swing Loan Refunding shall be deemed to constitute delivery by the Borrower of a Borrowing Request requesting Revolving Loans consisting of ABR Loans in the amount of the Swing Loans to which it relates. Each Lender with a Revolving Commitment (including the Swing Line Lender) hereby unconditionally agrees (notwithstanding that any of the conditions specified in Section 4.02 or elsewhere in this Agreement shall not have been satisfied, but subject to the provisions of paragraph (d) below) to make a Revolving Loan to the Borrower in the amount of such Lender’s Applicable Percentage of the aggregate amount of the Swing Loans to which such Notice of Swing Loan Refunding relates. Promptly following receipt of such notice, each Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the Borrower, in the same manner as provided in Section 2.07 with respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis , to the payment obligations of the Lenders). The proceeds of such Revolving Loans shall be made immediately available to the Swing Line Lender and applied by it to repay the principal amount of the Swing Loans to which such Notice of Swing Loan Refunding relates.

 

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(c) Swing Loan Participation . If prior to the time a Revolving Loan would otherwise have been made as provided above as a consequence of a Notice of Swing Loan Refunding, any of the events specified in Section 8.01(h) shall have occurred in respect of the Borrower or one or more of the Lenders with Revolving Commitments shall determine that it is legally prohibited from making a Revolving Loan under such circumstances, each Lender (other than the Swing Line Lender), or each Lender (other than such Swing Line Lender) so prohibited, as the case may be, shall, on the date such Revolving Loan would have been made by it (the “ Purchase Date ”), purchase an undivided participating interest (a “ Swing Loan Participation ”) in the outstanding Swing Loans to which such Notice of Swing Loan Refunding relates, in an amount (the “ Swing Loan Participation Amount ”) equal to such Lender’s Applicable Percentage of such outstanding Swing Loans. On the Purchase Date, each such Lender or each such Lender so prohibited, as the case may be, shall pay to the Swing Line Lender, in immediately available funds, such Lender’s Swing Loan Participation Amount, and promptly upon receipt thereof the Swing Line Lender shall, if requested by such other Lender, deliver to such Lender a participation certificate, dated the date of the Swing Line Lender’s receipt of the funds from, and evidencing such Lender’s Swing Loan Participation in, such Swing Loans and its Swing Loan Participation Amount in respect thereof. If any amount required to be paid by a Lender to the Swing Line Lender pursuant to the above provisions in respect of any Swing Loan Participation is not paid on the date such payment is due, such Lender shall pay to the Swing Line Lender on demand interest on the amount not so paid at the overnight Federal Funds Effective Rate from the due date until such amount is paid in full. Whenever, at any time after the Swing Line Lender has received from any other Lender such Lender’s Swing Loan Participation Amount, the Swing Line Lender receives any payment from or on behalf of the Borrower on account of the related Swing Loans, the Swing Line Lender will promptly distribute to such Lender its ratable share of such amount based on its Applicable Percentage of such amount on such date on account of its Swing Loan Participation (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); provided, however, that if such payment received by the Swing Line Lender is required to be returned, such Lender will return to the Swing Line Lender any portion thereof previously distributed to it by the Swing Line Lender.

(d) Obligations Unconditional . Each Lender’s obligation to make Revolving Loans pursuant to Section 2.04(b) and/or to purchase Swing Loan Participations in connection with a Notice of Swing Loan Refunding shall be subject to the conditions that (i) such Lender shall have received a Notice of Swing Loan Refunding complying with the provisions hereof and (ii) at the time the Swing Loans that are the subject of such Notice of Swing Loan Refunding were made, the Swing Line Lender making the same had no actual written notice from another Lender that an Event of Default had occurred and was continuing, but otherwise shall be absolute and unconditional, shall be solely for the benefit of the Swing Line Lender, and shall not be affected by any circumstance, including, without limitation, (A) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against any other Lender, any Credit Party, or any other Person, or any Credit Party may have against any Lender or other Person, as the case may be, for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of Default; (C) any event or circumstance involving a Material Adverse Effect; (D) any breach of any Loan Document by any party thereto; or (E) any other circumstance, happening or event, whether or not similar to any of the foregoing.

Section 2.05 Letters of Credit .

(a) General . Subject to the terms and conditions set forth herein, the Borrower may request the issuance of Letters of Credit for the account of any LC Obligor, in a form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, at any time and from time to time from the Closing Date until the date that is thirty (30) days prior to the Revolving Facility Termination Date, provided, however that the aggregate LC Exposure on the Closing Date after giving effect to all Letters of Credit issued on such date shall not exceed $20,000,000. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the

 

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applicable Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.

(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions . To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the applicable Issuing Bank) to the applicable Issuing Bank and the Administrative Agent (not less than five Business Days (in advance of the requested date of issuance, amendment, renewal or extension or such shorter time agreed to by the applicable Issuing Bank) a notice:

(i) requesting the issuance of a Letter of Credit or identifying the Letter of Credit to be amended, renewed or extended;

(ii) specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day);

(iii) specifying the date on which such Letter of Credit is to expire (which shall comply with Section 2.05(c) );

(iv) specifying the amount of such Letter of Credit;

(v) specifying the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit; and

(vi) specifying the amount of the current Aggregate Revolving Facility Exposure (without regard to the requested Letter of Credit or the requested amendment, renewal or extension of an outstanding Letter of Credit) and the pro forma Aggregate Revolving Facility Exposure (giving effect to the requested Letter of Credit or the requested amendment, renewal or extension of an outstanding Letter of Credit), which when taking into account the pro forma Aggregate Revolving Facility Exposure, the Revolving Facility Exposure of any Lender shall not exceed such Lender’s Revolving Commitment.

Each notice shall constitute a representation that after giving effect to the requested issuance, amendment, renewal or extension, as applicable, (i) the LC Exposure shall not exceed the LC Commitment Amount, and (ii) the Aggregate Credit Facility Exposure shall not exceed the Total Revolving Commitment.

If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of credit application on the applicable Issuing Bank’s standard form in connection with any request for a Letter of Credit.

(c) Expiration Date . Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit and (ii) the date that is five Business Days prior to the Revolving Facility Termination Date; provided, however, that a Letter of Credit may, upon the request of the Borrower, include a provision whereby such Letter of Credit shall be renewed automatically for additional consecutive periods of 12 months or less unless the applicable Issuing Bank notifies the beneficiary thereof at least 30 days (or such longer period as may be specified in such Letter of Credit) prior to the then-applicable expiration date that such Letter of Credit will not be renewed, but in no event shall any Letter of Credit extend beyond the date that is five Business Days prior to the Revolving Facility Termination Date.

 

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(d) Participations . By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or the Lenders, the applicable Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from the applicable Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by the applicable Issuing Bank and not reimbursed by the Borrower on the date due as provided in Section 2.05(e) , or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this Section 2.05(d) in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.

(e) Reimbursement . If the applicable Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the applicable Issuing Bank an amount equal to such LC Disbursement not later than 12:00 noon, New York City time, on the date that such LC Disbursement is made, if the Borrower shall have received notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such notice has not been received by the Borrower prior to such time on such date, then not later than 12:00 noon, New York City time, on the Business Day immediately following the day that the Borrower receives such notice, if such notice is not received prior to such time on the day of receipt; the Borrower shall, subject to the conditions to Borrowing set forth herein, be deemed to have requested, and the Borrower does hereby request under such circumstances, that such payment be financed with an ABR Borrowing in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting Borrowing of ABR Loans. If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the Borrower, in the same manner as provided in Section 2.07 with respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis , to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by it from the Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this Section 2.05(e) , the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Lenders have made payments pursuant to this Section 2.05(e) to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their interests may appear. Any payment made by a Lender pursuant to this Section 2.05(e) to reimburse the applicable Issuing Bank for any LC Disbursement (other than the funding of ABR Loans as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.

(f) Obligations Absolute . The Borrower’s obligation to reimburse LC Disbursements as provided in Section 2.05(e) shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit, any Letter of Credit Agreement or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Issuing Bank under a Letter of

 

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Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit or any Letter of Credit Agreement, or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.05(f) , constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of their Related Parties shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the applicable Issuing Bank; provided that the foregoing shall not be construed to excuse the applicable Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the applicable Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of an Issuing Bank (as finally determined by a court of competent jurisdiction), such Issuing Bank shall be deemed to have exercised all requisite care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.

(g) Disbursement Procedures . The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. The applicable Issuing Bank shall promptly notify the Administrative Agent and the Borrower by telephone (confirmed by telecopy) of such demand for payment and whether the applicable Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse the applicable Issuing Bank and the Lenders with respect to any such LC Disbursement.

(h) Interim Interest . If an Issuing Bank shall make any LC Disbursement, then, until the Borrower shall have reimbursed the applicable Issuing Bank for such LC Disbursement, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement (either with its own funds or a Borrowing of Revolving Loans under Section 2.07 ), at the rate per annum then applicable to ABR Loans. Interest accrued pursuant to this Section 2.05(h) shall be for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to Section 2.05(e) to reimburse the applicable Issuing Bank shall be for the account of such Lender to the extent of such payment.

(i) Replacement of an Issuing Bank . An Issuing Bank may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement of an Issuing Bank. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.11(b) . From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be issued

 

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thereafter and (ii) references herein to the term “ Issuing Bank ” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required or permitted to issue additional Letters of Credit.

(j) Cash Collateralization . If (i) any Event of Default shall occur and be continuing and the Borrower receives notice from the Administrative Agent or the Required Lenders demanding the deposit of cash collateral pursuant to this Section 2.05(j) , or (ii) the Borrower is required to pay to the Administrative Agent the excess attributable to an LC Exposure in connection with any prepayment pursuant to Section 2.13(b) , then the Borrower shall deposit, in an account with the Administrative Agent (the “ LC Collection Account ”), in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal to, in the case of an Event of Default, the LC Exposure, and in the case of a payment required by Section 2.13(b) , the amount of such excess as provided in Section 2.13(b), as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower or any Subsidiary described in Section 8.01(h) . The Borrower hereby grants to the Administrative Agent, for the benefit of the Issuing Banks and the Lenders, an exclusive first priority and continuing perfected security interest in and Lien on the LC Collection Account and all cash, checks, drafts, certificates and instruments, if any, from time to time deposited or held in the LC Collection Account, all deposits or wire transfers made thereto, any and all investments purchased with funds deposited in such account, all interest, dividends, cash, instruments, financial assets and other Property from time to time received, receivable or otherwise payable in respect of, or in exchange for, any or all of the foregoing, and all proceeds, products, accessions, rents, profits, income and benefits therefrom, and any substitutions and replacements therefor. The Borrower’s obligation to deposit amounts pursuant to this Section 2.05(j) shall be absolute and unconditional, without regard to whether any beneficiary of any such Letter of Credit has attempted to draw down all or a portion of such amount under the terms of a Letter of Credit, and, to the fullest extent permitted by applicable law, shall not be subject to any defense or be affected by a right of set-off, counterclaim or recoupment which the Borrower or any of its Subsidiaries may now or hereafter have against any such beneficiary, the applicable Issuing Bank, the Administrative Agent, the Lenders or any other Person for any reason whatsoever. Such deposit shall be held as collateral securing the payment and performance of the Borrower’s and the Guarantors’ obligations under this Agreement and the other Loan Documents. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over the LC Collection Account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in the LC Collection Account. Moneys in the LC Collection Account shall be applied by the Administrative Agent to reimburse the Issuing Banks for LC Disbursements for which any of them has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated, be applied to satisfy other obligations of the Borrower and the Guarantors under this Agreement or the other Loan Documents. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the existence of an Event of Default, and the Borrower is not otherwise required to pay to the Administrative Agent the excess attributable to an LC Exposure in connection with any prepayment pursuant to Section 2.13(b) , then such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured, waived or otherwise cease to exist. If the Borrower is required to provide an amount in cash collateral hereunder as a result of any prepayment pursuant to Section 2.13(b) and the Borrower is not

 

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otherwise required to pay to the Administrative Agent an amount equal to the LC Exposure as a result of the occurrence of an Event of Default, then if the Aggregate Revolving Facility Exposure is reduced (whether pursuant to Section 2.13(a) , the expiration of Letters of Credit or otherwise), and at such time as no Default or Event of Default has occurred and is continuing, the Administrative Agent shall return to the Borrower the full amount of all such cash collateral then held, together with all accrued interest thereon.

(k) Issuing Bank Obligations . Each Issuing Bank shall promptly (i) notify the Administrative Agent in writing of the amount and expiry date of each Letter of Credit issued by it and (ii) provide a copy of each such Letter of Credit (and any amendments, renewals or extensions thereof) to the Administrative Agent. Within two Business Days following the last day of each calendar month, each Issuing Bank shall deliver to the Administrative Agent a report detailing all activity during the preceding month with respect to any Letters of Credit issued by such Issuing Bank, including the face amount, the account party, the beneficiary and the expiration date of such Letters of Credit and any other information with respect thereto as may be requested by the Administrative Agent.

Section 2.06 Borrowing Request .

(a) Borrowing Request . To request a Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone (i) in the case of Eurodollar Borrowing, not later than 2:00 p.m., New York City time, three Business Days before the date of the proposed Borrowing or (ii) in the case of an ABR Borrowing or a Borrowing under the Swing Line Facility, not later than noon, New York City time, one Business Day before the date of the proposed Borrowing; provided that no such notice shall be required for any deemed request of an ABR Borrowing to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e) or the refunding of a Swing Loan as provided in 2.04(b) . Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in substantially the form of Exhibit B-1 and signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the following information: (i) the aggregate amount of the requested Borrowing; (ii) the date of such Borrowing, which shall be a Business Day; (iii) whether such Borrowing is to be a Borrowing of ABR Loans or Eurodollar Loans; (iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “ Interest Period ”; (v) the location and number of the Borrower’s account to which funds are to be disbursed. If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Each Borrowing Request shall constitute a representation that the amount of the requested Borrowing shall not cause the Aggregate Revolving Facility Exposure to exceed the Total Revolving Commitment; provided that such Lender’s Loan shall not cause such Lender’s Credit Facility Exposure to exceed its Revolving Commitment. Promptly following receipt of a Borrowing Request in accordance with this Section 2.06 , the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

(b) Minimum Borrowing Amounts; Limitation on Number of Borrowings . At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less than $1,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $100,000 and not less than $1,000,000; provided that an ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Total Revolving Commitments or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e) . At the time that each Swing Loan is made, such Borrowing shall be in an aggregate amount that is an integral

 

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multiple of $100,000 and not less than $500,000. Borrowings of more than one Type may be outstanding at the same time; provided that there shall not at any time be more than a total of seven Eurodollar Borrowings outstanding. Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to Convert or Continue, any Borrowing if the Interest Period requested with respect thereto would end after the Revolving Facility Termination Date.

Section 2.07 Funding Obligations; Disbursement of Funds .

(a) Several Nature of Funding Obligations . The Commitments of each Lender hereunder and the obligation of each Lender to make Loans, acquire and fund Swing Loan Participations, and participations in Letters of Credit, as the case may be, are several and not joint obligations. No Lender shall be responsible for any default by any other Lender in its obligation to make Loans or fund any participation hereunder and each Lender shall be obligated to make the Loans provided to be made by it and fund its participations required to be funded by it hereunder, regardless of the failure of any other Lender to fulfill any of its Commitments hereunder. Nothing herein and no subsequent termination of the Commitments pursuant to Section 2.12 shall be deemed to relieve any Lender from its obligation to fulfill its commitments hereunder and in existence from time to time or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder.

(b) Borrowings Pro Rata . Except with respect to the making of Swing Loans by the Swing Line Lender, all Loans hereunder shall be made and participations in Letters of Credit acquired by each Lender on a pro rata basis based upon each Lender’s Applicable Percentage of the amount of such Borrowing or Letter of Credit in effect on the date the applicable Borrowing is to be made or the Letter of Credit is to be issued.

(c) Notice to Lenders . The Administrative Agent shall promptly give each Lender, as applicable, written notice (or telephonic notice promptly confirmed in writing) of each proposed Borrowing, or Conversion or Continuation thereof, and LC Issuance, and of such Lender’s proportionate share thereof or participation therein and of the other matters covered by the Borrowing Request, Interest Election Request, or request for a Letter of Credit, as the case may be, relating thereto.

(d) Funding of Loans .

(i) Loans Generally . Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 1:00 p.m., New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower designated by the Borrower in the applicable Borrowing Request; provided that (A) ABR Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be remitted by the Administrative Agent to the applicable Issuing Bank and (ii) ABR Loans made to finance the refunding of a Swing Loan shall be remitted by the Administrative Agent to the Swing Line Lender. Nothing herein shall be deemed to obligate any Lender to obtain the funds for its Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for its Loan in any particular place or manner.

(ii) Swing Loans . No later than 3:00 P.M. (New York City time) on the date specified in each Borrowing Request, the Swing Line Lender will make available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower designated by the Borrower in the applicable Borrowing Request, the aggregate of Swing Loans requested in such Borrowing Request.

 

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(e) Presumption of Funding by Lenders . Unless the Administrative Agent shall have received written notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.07(d) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then (i) the applicable Lender agrees to pay on demand, and (ii) the Borrower agrees to pay within 30 days of demand or such earlier date as the Borrower shall have unused and available Commitments in excess of such Lender’s share of such Borrowing, to the Administrative Agent such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.

Section 2.08 Evidence of Obligations .

(a) Loan Accounts of Lenders . Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the Obligations of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

(b) Loan Accounts of Administrative Agent . The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan and Borrowing made hereunder, the Type thereof, the currency in which such Loan is denominated, the Interest Period and applicable interest rate and, in the case of a Swing Loan, the Revolving Facility Termination Date, (ii) the amount and other details with respect to each Letter of Credit issued hereunder, (iii) the amount of any principal due and payable or to become due and payable from the Borrower to each Lender hereunder, (iv) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof, and (v) the other details relating to the Loans, Letters of Credit and other Obligations.

(c) Effect of Loan Accounts, etc . The entries made in the accounts maintained pursuant to Section 2.08(b) shall be prima facie evidence of the existence and amounts of the Obligations recorded therein; provided, that the failure of the Administrative Agent to maintain such accounts or any error (other than manifest error) therein shall not in any manner affect the obligation of any Credit Party to repay or prepay the Loans or the other Obligations in accordance with the terms of this Agreement.

(d) Notes . Upon request of any Lender or the Swing Line Lender, the Borrower will execute and deliver to such Lender or the Swing Line Lender, as the case may be, (i) a Revolving Facility Note with blanks appropriately completed in conformity herewith to evidence the Borrower’s obligation to pay the principal of, and interest on, the Revolving Loans made to it by such Lender, (ii) a Term Note with blanks appropriately completed in conformity herewith to evidence the Borrower’s obligation to pay the principal of, and interest on, the Term Loans made to it by such Lender and (iii) a Swing Line Note with blanks appropriately completed in conformity herewith to evidence the Borrower’s obligation to pay the principal of, and interest on, the Swing Loans made to it by the Swing Line Lender; provided, however, that the decision of any Lender or the Swing Line Lender to not request a Note shall in no way detract from the Borrower’s obligation to repay the Loans and other amounts owing by the Borrower to such Lender or the Swing Line Lender.

 

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Section 2.09 Interest; Default Rate .

(a) Interest on Revolving Loans . The outstanding principal amount of each Revolving Loan made by each Lender shall bear interest at a fluctuating rate per annum that shall at all times be equal to (i) during such periods as such Revolving Loan is an ABR Loan, the Alternate Base Rate plus 2.25%, and (ii) during such periods as such Revolving Loan is a Eurodollar Loan, the relevant Adjusted LIBO Rate for such Eurodollar Loan for the applicable Interest Period plus 3.25%.

(b) Interest on Term Loans . The outstanding principal amount of each Term Loan made by each Lender shall bear interest at a fluctuating rate per annum that shall at all times be equal to (i) during such periods as such Term Loan is an ABR Loan, the Alternate Base Rate plus 2.25%, and (ii) during such periods as such Term Loan is a Eurodollar Loan, the relevant Adjusted LIBO Rate for such Eurodollar Loan for the applicable Interest Period plus 3.25%.

(c) Interest on Swing Loans . The outstanding principal amount of each Swing Loan shall bear interest from the date of the Borrowing at a rate per annum that shall be equal to the Alternate Base Rate plus 2.25%. Each Swing Loan shall bear interest for a minimum of one day.

(d) Default Interest . Notwithstanding the above provisions, if an Event of Default is in existence, upon written notice by the Administrative Agent (which notice the Administrative Agent shall give at the direction of the Required Lenders), (i) all outstanding amounts of principal and, to the extent permitted by law, all overdue interest, in respect of each Loan shall bear interest, payable on demand, at a rate per annum equal to the Default Rate, and (ii) the LC Fees shall be increased by an additional 2% per annum in excess of the LC Fees otherwise applicable thereto. In addition, if any amount (other than amounts as to which the foregoing subparts (i) and (ii) are applicable) payable by the Borrower under the Loan Documents is not paid when due, upon written notice by the Administrative Agent (which notice the Administrative Agent shall give at the direction of the Required Lenders), such amount shall bear interest, payable on demand, at a rate per annum equal to the Default Rate.

(e) Accrual and Payment of Interest . Interest shall accrue from and including the date of any Borrowing to but excluding the date of any prepayment or repayment thereof and shall be payable by the Borrower as follows: (i) in respect of each ABR Loan including Swing Loans, quarterly in arrears on the last Business Day of each March, June, September and December, (ii) in respect of each Eurodollar Loan, on the last day of each Interest Period applicable thereto and, in the case of an Interest Period in excess of three months, on the dates that are successively three months after the commencement of such Interest Period, (iii) in respect of any interest not paid when due pursuant to any of the foregoing subparts, on demand, and (iv) in respect of any interest payable pursuant to Section 2.09(d) , on demand.

(f) Computations of Interest . All computations of interest on Eurodollar Loans hereunder shall be made on the actual number of days elapsed over a year of 360 days. All computations of interest on ABR Loans (including all Swing Loans) and Unreimbursed Drawings hereunder shall be made on the actual number of days elapsed over a year of 365 or 366 days, as applicable.

(g) Information as to Interest Rates . The Administrative Agent, upon determining the interest rate for any Borrowing, shall promptly notify the Borrower and the Lenders thereof. Any such determination by the Administrative Agent shall be conclusive and binding absent manifest error.

 

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Section 2.10 Interest Elections for Revolving Loans.

(a) Conversion and Continuance . Each Borrowing of Revolving Loans initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to Convert such Borrowing to a different Type or to Continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section 2.10 . The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.

(b) Interest Election Requests . To make an election pursuant to this Section 2.10 , the Borrower shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under Section 2.06 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in substantially the form of Exhibit B-2 and signed by the Borrower.

(c) Information in Interest Election Requests . Each telephonic and written Interest Election Request shall specify the following information:

(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to Section 2.10(c)(iii) and (iv)  shall be specified for each resulting Borrowing);

(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

(iii) whether the resulting Borrowing is to be a Eurodollar Borrowing or an ABR Borrowing; and

(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “ Interest Period ”.

If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. If such Interest Election Request does not specify a Type, then the Borrowing shall be deemed to have selected an ABR Borrowing.

(d) Notice to Lenders by the Administrative Agent . Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

(e) Effect of Failure to Deliver Timely Interest Election Request and Events of Default on Interest Election . If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be Converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default

 

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has occurred and is continuing: (i) no outstanding Borrowing may be Converted to or Continued as a Eurodollar Borrowing (and any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective) and (ii) unless repaid, each Borrowing of Eurodollar Loan shall be Converted to ABR Loans at the end of the Interest Period applicable thereto.

Section 2.11 Fees .

(a) Commitment Fees . (i) The Borrower agrees to pay to the Administrative Agent for the account of each Lender a commitment fee, which shall accrue at 0.50% per annum on the average daily amount of the unused amount of each Lender’s Revolving Commitment during the period from and including the date this Agreement is executed and delivered by each of the parties hereto but excluding the Revolving Facility Termination Date. Accrued commitment fees shall be payable in arrears on the last day of March, June, September and December of each year and on the Revolving Facility Termination Date, commencing on the first such date to occur after the date hereof. All commitment fees shall be computed on the basis of a year of 360 days, and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

(ii) Delayed Draw Commitments . The Borrower shall pay to the Administrative Agent for the account of each Term Lender with a Delayed Draw Term Commitment in accordance with its Applicable Percentage, a commitment fee accruing at 3.25% per annum times the actual daily amount by which the Total Delayed Draw Commitments exceeds the outstanding amount of the Delayed Draw Term Loans. Such commitment fee shall accrue at all times during the Delayed Draw Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the last Business Day of the Delayed Draw Availability Period.

(b) LC Fees; Fronting Fees, Etc . The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue at a rate per annum equal to 3.25% on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the date of this Agreement to but excluding the later of the date on which such Lender’s Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure, (ii) to each applicable Issuing Bank a fronting fee, which shall accrue at the rate of 0.125% per annum on the average daily amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the date of this Agreement to but excluding the later of the date of termination of the Revolving Commitments and the date on which there ceases to be any LC Exposure, and (iii) to each applicable Issuing Bank, for its own account, its standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting fees accrued through, but excluding the last Business Day of March, June, September and December of each year, commencing on the first such date to occur after the date of this Agreement; provided that all such accrued fees shall be payable on the Revolving Facility Termination Date and any such fees accruing after the Revolving Facility Termination Date shall be payable on demand. Any other fees payable to any Issuing Bank pursuant to this Section 2.11(b) shall be payable within 10 days after demand. All participation fees and fronting fees shall be computed on the basis of a year of 360 days, and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

(c) Administrative Agent Fees . The Borrower shall pay to the Administrative Agent, on the Closing Date and thereafter, for its own account, the fees set forth in the Fee Letter.

 

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Section 2.12 Termination and Reduction of Commitments .

(a) Mandatory Termination of Revolving Commitments . All of the Revolving Commitments shall terminate on the Revolving Facility Termination Date.

(b) Voluntary Termination of the Total Revolving Commitment . Upon at least three Business Days’ prior irrevocable written notice (or telephonic notice confirmed in writing) to the Administrative Agent (and Administrative Agent shall promptly notify each of the Lenders), the Borrower shall have the right to terminate in whole the Total Revolving Commitment, provided that (i) all outstanding Revolving Loans and Unreimbursed Drawings are contemporaneously prepaid in accordance with Section 2.13 and (ii) either there are no outstanding Letters of Credit or the Borrower shall contemporaneously cause all outstanding Letters of Credit to be surrendered for cancellation (any such Letters of Credit to be replaced by letters of credit issued by other financial institutions reasonably acceptable to the Issuing Banks and the Revolving Lenders), provided further, that a notice of termination of the Total Revolving Commitment may state that such notice is conditioned on the effectiveness of other credit facilities, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.

(c) Partial Reduction of Total Revolving Commitment . Upon at least three Business Days’ prior irrevocable written notice (or telephonic notice confirmed in writing) to the Administrative Agent (which notice the Administrative Agent shall promptly transmit to each of the Lenders), the Borrower shall have the right to partially and permanently reduce the Unused Total Revolving Commitment; provided, however, that (i) any such reduction shall apply to proportionately (based on each Lender’s Applicable Percentage) and permanently reduce the Revolving Commitment of each Lender, (ii) such reduction shall apply to proportionately and permanently reduce the LC Commitment Amount, but only to the extent that the Unused Total Revolving Commitment would be reduced below any such limits, (iii) no such reduction shall be permitted if the Borrower would be required on the proposed date of such reduction to make a mandatory prepayment of Loans or cash collateralize Letters of Credit pursuant to Section 2.13 , and (iv) any partial reduction shall be in the amount of at least $5,000,000 (or, if greater, in integral multiples of $1,000,000).

(d) Mandatory Reduction of Total Revolving Commitments . If after giving effect to any reduction of the Total Revolving Commitments the LC Commitment Amount exceeds the Total Revolving Commitments at such time, the LC Commitment Amount shall be automatically reduced by the amount of such excess.

(e) Closing Date Term Commitments . The aggregate Closing Date Term Commitments shall be automatically and permanently reduced to zero on the date of the Term Borrowing on the Closing Date.

(f) Delayed Draw Term Commitments . The aggregate Delayed Draw Term Commitments shall be automatically and permanently reduced to zero immediately after the last day of the Delayed Draw Availability Period.

Section 2.13 Voluntary, Scheduled and Mandatory Prepayments of Loans .

(a) Voluntary Prepayments . The Borrower shall have the right to prepay from time to time any of the Loans owing by it, in whole or in part, without premium or penalty (except as specified in subparts (c) and (d) below). The Borrower shall give the Administrative Agent irrevocable written or telephonic notice (in the case of telephonic notice, promptly confirmed in writing if so requested by the

 

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Administrative Agent) of its intent to prepay the Loans, the amount of such prepayment and (in the case of Eurodollar Loans) the specific Borrowing(s) pursuant to which the prepayment is to be made, which notice shall be received by the Administrative Agent by (y) 1:00 P.M. (New York City time) three Business Days prior to the date of such prepayment, in the case of any prepayment of Eurodollar Loans, or (z) 1:00 P.M. (New York City time) one Business Day prior to the date of such prepayment, in the case of any prepayment of ABR Loans, and which the Administrative Agent shall promptly notify each of the affected Lenders, provided that:

(i) each partial prepayment shall be in an aggregate principal amount of (A) at least in the case of any prepayment of a Eurodollar Loan, $1,000,000 (or, if less, the full amount of such Borrowing), or an integral multiple of $500,000 in excess thereof (or, if less, the full amount of such Borrowing), (B) at least in the case of any prepayment of an ABR Loan, $500,000 (or, if less, the full amount of such Borrowing), or an integral multiple of $100,000 in excess thereof (or, if less, the full amount of such Borrowing), and (C) the outstanding Swing Loan or a portion thereof;

(ii) no partial prepayment of any Loans made pursuant to a Borrowing shall reduce the aggregate principal amount of such Loans outstanding pursuant to such Borrowing to an amount less than the minimum borrowing amount applicable thereto, set forth in Section 2.06 , except in accordance with Section 2.13(a)(iv) ;

(iii) each voluntary prepayment of the Term Loans shall be applied to the remaining principal amortization payments thereof on a pro rata basis, and each such prepayment shall be paid the Lenders in accordance with their respective Applicable Percentages thereof;

(iv) with respect to any such voluntary prepayment, the Borrower shall designate the Types of Loans that are to be repaid or prepaid and the specific Borrowing(s) pursuant to which such repayment or prepayment is to be made; provided, however, that (i) the Borrower shall first so designate all Loans that are ABR Loans and Eurodollar Loans with Interest Periods ending on the date of repayment or prepayment prior to designating any other Eurodollar Loans for repayment or prepayment, and (ii) if the outstanding principal amount of Eurodollar Loans made pursuant to a Borrowing is reduced below the applicable minimum borrowing amount, set forth in Section 2.06 , as a result of any such repayment or prepayment, then all the Loans outstanding pursuant to such Borrowing shall, in the case of Eurodollar Loans, be Converted into ABR Loans. In the absence of a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, apply such voluntary prepayment first to ABR Loans to the full extent thereof before application to Eurodollar Loans, in each case in a manner that attempts to minimize, but without obligation to minimize, the amount of any breakage payments required to be made by the Borrower pursuant to Article III .

(b) Mandatory Payments . The Loans shall be subject to mandatory repayment or prepayment (in the case of any partial prepayment conforming to the requirements as to the amounts of partial prepayments set forth in Section 2.13(a) above), and the LC Exposure shall be subject to cash collateralization requirements, in accordance with the following provisions:

(i) Maturity . The entire principal amount of all outstanding Loans shall be repaid in full (i) in the case of Revolving Loans, on the Revolving Facility Termination Date, and (ii) in the case of Term Loans, on the Term Loan Termination Date.

 

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(ii) Revolving Loans Exceed the Revolving Commitments . If on any date (after giving effect to any other payments on such date) (A) the Revolving Facility Exposure of any Lender (plus, solely with respect to the Swingline Lender, the outstanding principal amount of Swing Loans) exceeds such Lender’s Revolving Commitment, (B) the sum of (1) the Aggregate Revolving Facility Exposure, and (2) the outstanding principal amount of Swing Loans, exceeds the Total Revolving Commitment, or (C) the aggregate principal amount of Swing Loans outstanding exceeds the Swing Line Commitment, then, in the case of each of the foregoing, the Borrower shall, on such day, prepay on such date the principal amount of Loans and, after the Loans have been paid in full, Unreimbursed Drawings, in an aggregate amount at least equal to such excess.

(iii) LC Exposure Exceed LC Commitment . If on any date the LC Exposure exceeds the LC Commitment Amount, then the applicable LC Obligor or the Borrower shall, on such day, pay to the Administrative Agent an amount in cash equal to such excess and the Administrative Agent shall hold such payment as security for the reimbursement obligations of the applicable LC Obligors hereunder in respect of Letters of Credit pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Administrative Agent, each Issuing Bank and the Borrower (which shall permit certain investments in Cash Equivalents reasonably satisfactory to the Administrative Agent, each Issuing Bank and the Borrower until the proceeds are applied to any Unreimbursed Drawing or to any other Obligations in accordance with any such cash collateral agreement and which shall provide for regular remittance to the Borrower of any interest accrued on such cash collateral amount).

(iv) Excess Cash Flow . Within 120 days after the end of each fiscal year (commencing with the fiscal year ending December 31, 2006, but solely for the period from and including the Closing Date to and including December 31, 2006 and for all subsequent fiscal years, the full fiscal year), the Borrower shall prepay the Loans and/or cash collateralize the reimbursement obligations of the Borrower hereunder in respect of Letters of Credit in an amount equal to 75% (if the Total Leverage Ratio as of the end of such fiscal year is equal to or greater than 2.50 to 1.00) or 50% (if the Total Leverage Ratio as of the end of such fiscal year is less than 2.50 to 1.00) of the Excess Cash Flow earned during such prior fiscal year (such prepayment to be applied as set forth in clause (xii) below).

(v) Asset Sales . Promptly following any Asset Sale or related series of Asset Sales (other than any Asset Sale permitted by Section 7.02 , except as provided in Section 7.02(b) , (f)  or (g) ), the Borrower shall prepay the Loans and/or cash collateralize the reimbursement obligations of the Borrower hereunder in respect of Letters of Credit in an aggregate amount equal to 100% of the Net Cash Proceeds derived from such Asset Sale (or related series of Asset Sales) (such prepayment to be applied as set forth in clause (x) below); provided, however, that such Net Cash Proceeds shall not be required to be so applied to the extent (i) such Net Cash Proceeds are less than $500,000 in the aggregate for the applicable fiscal year or (ii) the Borrower delivers to the Administrative Agent a certificate stating that it intends to use such Net Cash Proceeds to acquire fixed or capital assets (which will become Collateral if the assets sold or disposed were Collateral) in replacement of the disposed assets within 180 days of the receipt of such Net Cash Proceeds, it being expressly agreed that any Net Cash Proceeds not reinvested within such 180 day period shall be paid and applied to repay the Loans and/or cash collateralize the LC Exposure immediately thereafter.

(vi) Debt Issuances . Immediately upon receipt by any Credit Party or any of its Subsidiaries of proceeds from any Debt Issuance, the Borrower shall prepay the Loans and/or cash collateralize the reimbursement obligations of the Borrower hereunder in respect of Letters of Credit in an aggregate amount equal to 100% of the Net Cash Proceeds of such Debt Issuance (such prepayment to be applied as set forth in clause (xii) below).

 

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(vii) Equity Issuances . Immediately upon receipt by any Credit Party or any of its Subsidiaries of proceeds from any Equity Issuance, other than an initial public offering of the Borrower, the Borrower shall prepay the Loans and/or cash collateralize the reimbursement obligations of the Borrower hereunder in respect of Letters of Credit in an aggregate amount equal to 50% of the Net Cash Proceeds of such Equity Issuance (such prepayment to be applied as set forth in clause (xii) below).

(viii) Extraordinary Receipt . Immediately upon receipt by any Credit Party or any of its Subsidiaries of any Extraordinary Receipt, the Borrower shall prepay the Loans and/or cash collateralize the LC Exposure in an aggregate amount equal to 100% of all Net Cash Proceeds received therefrom (such prepayment to be applied as set forth in clause (xii) below); provided, however, with respect to the proceeds received in connection with a Recovery Event (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of receipt of such proceeds or indemnity payments, and so long as no Default or Event of Default shall have occurred and be continuing, the applicable Credit Party or Subsidiary may apply within 180 days after the receipt of such cash proceeds to repair, replace or acquire fixed or capital assets in replacement of the equipment, fixed assets or real property in respect of which such cash proceeds were received; provided further that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans and/or cash collateralization of the reimbursement obligations of the Borrower hereunder as set forth in clause (xii) below.

(ix) Certain Distributions from Joint Venture . Immediately upon receipt by any Credit Party of distributions pursuant to Section 4.1(b) of the Joint Venture Partnership Agreement or proceeds of a distribution from the Joint Venture consisting of the proceeds of an Asset Sale or Debt Issuance by the Joint Venture or any of its Subsidiaries, the Borrower shall prepay the Loans and/or cash collateralize the reimbursement obligations of the Borrower hereunder in respect of Letters of Credit in an aggregate amount equal to 100% of the proceeds of such distribution (such prepayment to be applied as set forth in clause (xii) below); provided, however, that the proceeds of such distributions shall not be required to be so applied to the extent such proceeds of such distributions are less than $500,000 in the aggregate for the applicable fiscal year.

(x) Termination Charge from Joint Venture . Immediately upon receipt by any Credit Party of proceeds of any Termination Charge, but in no event more than seven (7) Business Days after the date on which any Joint Venture Party received any proceeds of any Termination Charge, the Borrower shall prepay the Loans and/or cash collateralize the reimbursement obligations of the Borrower hereunder in respect of Letters of Credit in an aggregate amount equal to 100% of the proceeds of such distribution (such prepayment to be applied as set forth in clause (xii) below); provided that notwithstanding clause (xii) below, there shall be a corresponding reduction to the Total Revolving Commitments with respect to any prepayments applied to Revolving Loans

(xi) Joint Venture Effective Date Reduction . On the Joint Venture Effective Date, the Borrower shall prepay the Revolving Loans, the Swing Loans and/or reduce the LC Exposure to cause the aggregate amount thereof to be $75,000,000 or less, the Borrower shall prepay the Loans and such prepayment to be applied to Revolving Loans and/or Swing Loans; provided that notwithstanding clause (xii) below, there shall be a reduction in the Total Revolving Commitments such that the Total Revolving Commitments after the Joint Venture Effective Date shall not exceed $75,000,000.

 

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(xii) Application of Mandatory Prepayments . All amounts required to be prepaid pursuant to clause (iv), (v), (vi), (vii), (viii), (ix) or (x) of this Section 2.13(b) shall be applied as follows: (A) first to the Term Loan, pro rata to the remaining amortization payments set forth in Section 2.13(d) , (B) second to outstanding Swing Line Loans, (C) third to outstanding Revolving Loans, and (D) fourth, to any outstanding LC Disbursement, then to the Administrative Agent to cash collateralize the aggregate amount of LC Exposure at such time in the same manner as provided in Section 2.05(j) (and Section 2.05(j) (other than the last sentence thereof) shall apply, mutatis mutandis , to such obligation to cash collateralize). Subject to Section 2.05(j) , such amounts shall be held as security for the reimbursement obligations of the Borrower hereunder in respect of Letters of Credit pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Administrative Agent, each L/C Issuer and the Borrower until the proceeds are applied to any Unreimbursed Drawing or to any other Obligations in accordance with any such cash collateral agreement and which shall provide for monthly remittance to the Borrower of any interest accrued on such cash collateral amount. All such prepayments of the Term Loans shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurodollar Loans; provided that if no Lenders exercise the right to waive a given mandatory prepayment of the Term Loans pursuant to Section 2.13(xiii) , then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are Eurodollar Loans in a manner that attempts to minimize, but without obligation to minimize, the amount of any breakage payments required to be made by the Borrower pursuant to Article III . All such prepayments of the Revolving Loans shall be applied on a pro rata basis to the then outstanding Revolving Loans being prepaid irrespective of whether such outstanding Revolving Loans are ABR Loans or Eurodollar Loans; provided that if no Lenders exercise the right to waive a given mandatory prepayment of the Revolving Loans pursuant to Section 2.13(xiii) , then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Revolving Loans that are ABR Loans to the full extent thereof before application to Revolving Loans that are Eurodollar Loans in a manner that attempts to minimize, but without obligation to minimize, the amount of any breakage payments required to be made by the Borrower pursuant to Article III . If the outstanding principal amount of Eurodollar Loans made pursuant to a Borrowing is reduced below $1,000,000 as a result of any such repayment or prepayment, then all the Loans outstanding pursuant to such Borrowing shall, in the case of Eurodollar Loans, be Converted into ABR Loans.

(xiii) Prepayment Opt-out . Notwithstanding anything in this Agreement, with respect to any mandatory prepayment of any Loan pursuant to Section 2.13(b) , any Term Lender, at its option, by notice to the Administrative Agent, at or prior to the time (and in the manner specified by the Administrative Agent) any prepayment of Term Loans is required to be made by the Borrower, may decline all (but not a portion) of its pro rata share of such prepayment (such declined amounts, the “ Declined Amounts ”). Any Declined Amounts shall be offered to the Term Lenders not so declining such prepayment for the Term Loans held by them (with such non-declining Term Lenders having the right to decline any prepayment with Declined Amounts at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their pro rata shares of such Declined Amounts, any remaining Declined Amounts in addition to any mandatory prepayment is to be applied to the Revolving Loans pursuant to Section 2.13(b) , and thereafter shall be applied first to prepay any outstanding LC Disbursements and then to cash collateralize the aggregate amount of LC Exposure as of the date of such application in the same manner as provided in Section 2.05(i) (and Section 2.05(j) (other than the last sentence thereof) shall apply, mutatis mutandis , to such obligation to cash collateralize.

 

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(c) Breakage and Other Compensation . Any prepayment made pursuant to this Section 2.13 shall be accompanied by any amounts payable in respect thereof under Article III .

(d) Scheduled Payments of Term Loan . The principal amount of the Term Loan shall be repaid in consecutive calendar quarterly installments due on the last Business Day of each fiscal quarter in an amount equal to (i) for each fiscal quarter ending prior to the Gopher Effective Date, $772,500 and (ii) for each fiscal quarter ending on or after the Gopher Effective Date, the product of 0.25% multiplied by the Total Term Draw, unless accelerated sooner pursuant to Section 8.02 . The balance of the Term Loan shall be due on the Term Loan Termination Date.

Section 2.14 Method and Place of Payment .

(a) Generally . All payments made by the Borrower hereunder (including any payments made with respect to the Borrower Guaranteed Obligations) under any Note or any other Loan Document, shall be made without setoff, counterclaim or other defense.

(b) Application of Payments . Except as specifically set forth elsewhere in this Agreement and subject to Section 8.03 , (i) all payments and prepayments of Loans and Unreimbursed Drawings with respect to Letters of Credit shall be applied by the Administrative Agent on a pro rata basis based upon each Lender’s Applicable Percentage of the amount of such prepayment, and (ii) all payments or prepayments of Swing Loans shall be applied by the Administrative Agent to pay or prepay such Swing Loans.

(c) Payment of Obligations . Except as specifically set forth elsewhere in this Agreement, all payments under this Agreement with respect to any of the Obligations shall be made to the Administrative Agent on the date when due at its offices specified in Section 11.05 in immediately available funds and shall be made in Dollars.

(d) Timing of Payments . Any payments under this Agreement that are made later than 1:00 P.M. (New York City time) shall be deemed to have been made on the next succeeding Business Day, in the Administrative Agent’s sole discretion. Except as otherwise provided, whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest shall be payable during such extension at the applicable rate in effect immediately prior to such extension.

(e) Distribution to Lenders . Upon the Administrative Agent’s receipt of payments hereunder, the Administrative Agent shall promptly distribute to each Lender or the applicable Issuing Bank, as the case may be, its ratable share, if any, of the amount of principal, interest, and Fees received by it for the account of such Lender or Issuing Bank. Payments received by the Administrative Agent in Dollars shall be delivered to the Lenders or the applicable Issuing Bank, as the case may be, in Dollars in immediately available funds; provided , however, that if at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, Unreimbursed Drawings, interest and Fees then due hereunder then, except as specifically set forth elsewhere in this Agreement and subject to Section 8.03 , such funds shall be applied, first , towards payment of interest and Fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and Fees then due to such parties, and second , towards payment of principal and Unreimbursed Drawings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and Unreimbursed Drawings then due to such parties.

 

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Section 2.15 Guaranty by the Borrower .

(a) Borrower Guaranteed Obligations . The Borrower hereby unconditionally guarantees, for the benefit of the Secured Creditors, all of the following (collectively, the “ Borrower Guaranteed Obligations ”): all amounts, indemnities and reimbursement obligations, direct or indirect, contingent or absolute, of every type or description, and at any time owing by any Subsidiary Guarantor and arising under any Swap Agreement or any other document or agreement executed and delivered in connection therewith to any Secured Swap Provider, in all cases whether now existing or hereafter incurred or arising, including any such interest or other amounts incurred or arising during the pendency of any bankruptcy, insolvency, reorganization, receivership or similar proceeding, regardless of whether allowed or allowable in such proceeding or subject to an automatic stay under Section 362(a) of the Bankruptcy Code). Upon failure by any Credit Party to pay punctually when and as due any of the Borrower Guaranteed Obligations, the Borrower shall forthwith on demand by the Administrative Agent pay the amount not so paid at the place and in the currency and otherwise in the manner specified in this Agreement or any other applicable agreement or instrument.

(b) Additional Undertaking . As a separate, additional and continuing obligation, the Borrower unconditionally and irrevocably undertakes and agrees, for the benefit of the Secured Creditors that, should any Borrower Guaranteed Obligations when due and payable not be recoverable from the Borrower under Section 2.15(a) for any reason whatsoever (including, without limitation, by reason of any provision of any Loan Document or any other agreement or instrument executed in connection therewith being or becoming void, unenforceable, or otherwise invalid under any applicable law) then, notwithstanding any notice or knowledge thereof by any Lender, the Administrative Agent, any of their respective Affiliates, or any other person, at any time, the Borrower as sole, original and independent obligor, upon demand by the Administrative Agent, will make payment to the Administrative Agent, for the account of the Secured Creditors, of all such obligations not so recoverable by way of full indemnity, in such currency and otherwise in such manner as is provided in the Loan Documents or any other applicable agreement or instrument.

(c) Guaranty Unconditional . The obligations of the Borrower under this Section 2.15 shall be unconditional and absolute and, without limiting the generality of the foregoing shall not be released, discharged or otherwise affected by the occurrence, one or more times, of any of the following:

(i) any extension, renewal, settlement, compromise, waiver or release in respect to the Borrower Guaranteed Obligations under any agreement or instrument, by operation of law or otherwise;

(ii) any modification or amendment of or supplement to this Agreement, any Note, any other Loan Document, or any agreement or instrument evidencing or relating to any Borrower Guaranteed Obligation;

(iii) any release, non-perfection or invalidity of any direct or indirect security for the Borrower Guaranteed Obligations under any agreement or instrument evidencing or relating to any Borrower Guaranteed Obligations;

(iv) any change in the corporate existence, structure or ownership of any Credit Party or other Subsidiary or any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Credit Party or other Subsidiary or its assets or any resulting release or discharge of any obligation of any Credit Party or other Subsidiary contained in any agreement or instrument evidencing or relating to any of the Borrower Guaranteed Obligations;

 

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(v) the existence of any claim, set-off or other rights which the Borrower may have at any time against any other Credit Party, the Administrative Agent, any Lender, any Affiliate of any Lender or any other Person, whether in connection herewith or any unrelated transactions;

(vi) any invalidity or unenforceability relating to or against any other Credit Party for any reason of any agreement or instrument evidencing or relating to any of the Borrower Guaranteed Obligations, or any provision of applicable law or regulation purporting to prohibit the payment by any Credit Party of any of the Borrower Guaranteed Obligations; or

(vii) any other act or omission of any kind by any other Credit Party, the Administrative Agent, any Lender or any other Person or any other circumstance whatsoever which might, but for the provisions of this Section 2.15 , constitute a legal or equitable discharge of the Borrower’s obligations under this Section other than the irrevocable payment in full of all Borrower Guaranteed Obligations.

(d) Borrower Obligations to Remain in Effect; Restoration . The Borrower’s obligations under this Section 2.15 shall remain in full force and effect until the Commitments shall have terminated, and the principal of and interest on the Notes and other Borrower Guaranteed Obligations, and all other amounts payable by the Borrower, any other Credit Party or other Subsidiary, under the Loan Documents or any other agreement or instrument evidencing or relating to any of the Borrower Guaranteed Obligations, shall have been paid in full. If at any time any payment of any of the Borrower Guaranteed Obligations is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of such Credit Party, the Borrower’s obligations under this Section 2.15 with respect to such payment shall be reinstated at such time as though such payment had been due but not made at such time.

(e) Waiver of Acceptance, etc . The Borrower irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for herein, as well as any requirement that at any time any action be taken by any person against any other Credit Party or any other Person, or against any collateral or guaranty of any other Person.

(f) Subrogation . Until the indefeasible payment in full of all of the Obligations (other than contingent indemnification obligations) and the termination of the Commitments hereunder, the Borrower shall have no rights, by operation of law or otherwise, upon making any payment under this Section to be subrogated to the rights of the payee against any other Credit Party with respect to such payment or otherwise to be reimbursed, indemnified or exonerated by any such Credit Party in respect thereof.

(g) Effect of Stay . If acceleration of the time for payment of any amount payable by any Credit Party under any of the Borrower Guaranteed Obligations is stayed upon insolvency, bankruptcy or reorganization of such Credit Party, all such amounts otherwise subject to acceleration under the terms of any applicable agreement or instrument evidencing or relating to any of the Borrower Guaranteed Obligations shall nonetheless be payable by the Borrower under this Section 2.15 forthwith on demand by the Administrative Agent.

 

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ARTICLE III

INCREASED COSTS, ILLEGALITY AND TAXES

Section 3.01 Increased Costs, Illegality, etc .

(a) Subject to Section 3.05 , if (y) in the case of clause (i) below, the Administrative Agent or (z) in the case of clauses (ii) and (iii) below, any Lender, shall have determined on a reasonable basis (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):

(i) on any date for determining the interest rate applicable to any Eurodollar Loan for any Interest Period, the Required Lenders determine