EX-99.1 2 dex991.htm AGENCY SUCCESSION AND AMENDMENT AGREEMENT Agency Succession and Amendment Agreement

Exhibit 99.1

EXECUTION COPY

AGENCY SUCCESSION AND AMENDMENT AGREEMENT

THIS AGENCY SUCCESSION AND AMENDMENT AGREEMENT (this “Agreement”), dated as of March 30, 2011 by and among GATEHOUSE MEDIA HOLDCO, INC. (“Holdco”), GATEHOUSE MEDIA OPERATING, INC. (the “Company”), GATEHOUSE MEDIA MASSACHUSETTS I, INC. (“GateHouse I”), GATEHOUSE MEDIA MASSACHUSETTS II, INC. (“GateHouse II”) and ENHE ACQUISITION, LLC (“ENHE” and, together with GateHouse I and GateHouse II, collectively the “Subsidiary Borrowers” and individually a “Subsidiary Borrower”), those subsidiaries of Holdco party hereto as Guarantors (together with Holdco, collectively the “Guarantors” and individually a “Guarantor”; the Guarantors, together with the Company and the Subsidiary Borrowers, collectively the “Credit Parties” and individually a “Credit Party”), the Required Lenders party hereto, WELLS FARGO BANK, N.A. (“Wells Fargo”), successor-by-merger to Wachovia Bank, National Association, as the resigning Administrative Agent and Control Agent (in such capacities, the “Existing Agent”) under that certain Credit Agreement (as defined below), and the Successor Agent (as defined below). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement.

RECITALS

WHEREAS, the Credit Parties, the Lenders and the Existing Agent are parties to that certain Amended and Restated Credit Agreement dated as of February 27, 2007 (as amended, restated, supplemented or otherwise modified and in effect from time to time, the “Credit Agreement”);

WHEREAS, the Existing Agent desires to resign as Administrative Agent and Control Agent under the Credit Agreement and the other Credit Documents;

WHEREAS, the Required Lenders desire to appoint GLEACHER PRODUCTS CORP. (“Gleacher”), as successor Administrative Agent and successor Control Agent (in such capacities together, the “Successor Agent”) under the Credit Agreement and the other Credit Documents, the Company desires to approve such appointment, and the Successor Agent wishes to accept such appointment;

WHEREAS, the Credit Parties and the Existing Agent are parties to an Amended and Restated Security Agreement dated as of February 28, 2007 (as amended, supplemented or otherwise modified and in effect from time to time, the “Security Agreement”);

WHEREAS, the Credit Parties and the Existing Agent are parties to an Amended and Restated Pledge Agreement dated as of February 28, 2007 (as amended, supplemented or otherwise modified and in effect from time to time, the “Pledge Agreement”);

WHEREAS, the parties hereto wish now to amend the Credit Agreement, the Security Agreement and the Pledge Agreement in certain respects, as provided herein; and


NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto hereby agree as follows:

Section 1. Agency Succession.

1.01 Agency Resignation, Waiver, Consent and Appointment. As of the Effective Date (as defined below), (a) the Existing Agent hereby resigns as the Administrative Agent and Control Agent as provided under Section 8.9 (Successor Administrative Agent) of the Credit Agreement and shall have no further obligations under the Credit Documents in such capacities; (b) the Required Lenders hereby appoint Gleacher as successor Administrative Agent under the Credit Agreement and the other Credit Documents; (c) the Credit Parties and the Required Lenders hereby waive any notice requirement provided for under Section 8.9 (Successor Administrative Agent) of the Credit Agreement in respect of such resignation or appointment and the requirement in Section 8.9 (Successor Administrative Agent) of the Credit Agreement that the successor agent must be selected from among the Lenders; (d) the Company hereby consents to the appointment of the Successor Agent; and (e) Gleacher hereby accepts its appointment as Successor Agent.

1.02 Agent Rights and Obligations. The parties hereto hereby confirm that the Successor Agent succeeds to the rights and obligations of the Administrative Agent under the Credit Agreement and the other Credit Documents and becomes vested with all the rights, powers, privileges and duties of the Administrative Agent and Control Agent under each of the Credit Documents, and the Existing Agent is discharged from all its duties and obligations as the Administrative Agent and Control Agent under the Credit Agreement and the other Credit Documents, in each case, as of the Effective Date.

1.03. Assignment of Liens. The Existing Agent hereby assigns to the Successor Agent each of the Liens and security interests granted to the Existing Agent under the Credit Documents and the Successor Agent hereby assumes all such Liens and security interests, for its benefit and the benefit of the Secured Parties. The Successor Agent is hereby authorized to execute and file any and all documents necessary to effectuate the assignment of any and all Liens and security interests (including, without limitation, amendments under the Uniform Commercial Code, assignments of mortgages and deeds of trust, assignments of security interests in trademarks, patents and copyrights and assignments of control agreements with respect to the Credit Parties’ deposit accounts).

1.04 Post-Effective Date Cooperation. On and after the Effective Date, the Existing Agent hereby agrees to execute all documents, agreements or instruments (at the expense of the Credit Parties) as may be reasonably requested by the Successor Agent to transfer the rights and privileges of the Existing Agent under the Credit Documents (including, without limitation, the Existing Agent’s liens and security interests in the Collateral) to the Successor Agent and to deliver all Collateral in the possession of the Existing Agent to the Successor Agent. Without limiting the foregoing, the Existing Agent shall deliver to the Successor Agent each of the items specified in Section 5.04 of this Agreement that is not delivered on or prior to the Effective Date.

 

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1.05 Continuing Benefit of Credit Agreement. From and after the Effective Date the provisions of Article VIII (The Administrative Agent) and Section 9.5 (Payment of Expenses and Taxes) of the Credit Agreement as in effect immediately prior to the Effective Date shall continue in effect for the benefit of Wells Fargo and its Affiliates and their respective officers, directors, employees, partners, members, counsel, agents, representatives, trustees, advisors and affiliates (collectively, “Related Parties”) with respect to any actions taken or omitted to be taken by Wells Fargo or any of its Related Parties while Wells Fargo was Existing Agent. In addition to the foregoing, the parties to this Agreement agree that, on and after the Effective Date, the provisions of Article VIII (The Administrative Agent) and Section 9.5 (Payment of Expenses and Taxes) of the Credit Agreement of the Credit Agreement as in effect immediately prior to the Effective Date shall continue in effect for the benefit of Wells Fargo and its Related Parties with respect to any actions taken or omitted to be taken by Wells Fargo or any of its Related Parties (solely to the extent Wells Fargo or such Related Parties, as applicable, are acting in connection with Wells Fargo’s capacity as resigning administrative agent under the Credit Agreement) on and after the Effective Date in connection with the transactions contemplated hereby, including, without limitation, actions with respect to the execution and delivery of any documentation to transfer Collateral and the filing and recording of UCC financing statements, intellectual property notices, mortgage instruments and other collateral documentation.

1.06 Limitation of Liability of Agents. The parties hereto agree that Gleacher, in its individual capacity and in its capacity as Successor Agent, shall bear no responsibility or liability for (i) any actions taken or omitted to be taken by the Existing Agent while it served as Administrative Agent and Control Agent under the Credit Agreement and the other Credit Documents, or (ii) any event, circumstance, condition, or action, existing on or prior to the Effective Date, with respect to the Collateral, the Agreement, or any other Credit Document, or the transactions contemplated thereby. The parties hereto agree that Wells Fargo, in its capacity as Existing Agent, shall bear no responsibility or liability for (i) any actions taken or omitted to be taken by the Successor Agent as Administrative Agent or Control Agent under the Credit Agreement and the other Credit Documents, or (ii) any event, circumstance, condition, or action, existing after the Effective Date, with respect to the Collateral, the Agreement, or any other Credit Document, or the transactions contemplated thereby.

1.07 Acknowledgements Regarding Successor Agent. It is acknowledged and agreed by each of the parties hereto that Gleacher, in succeeding to the position of the Administrative Agent and Control Agent under the Credit Agreement and the other Credit Documents, (i) has undertaken no analysis of the Security Documents or the Collateral and (ii) has made no determination as to (x) the validity, enforceability, effectiveness or priority of any Liens granted or purported to be granted pursuant to the Security Documents or (y) the accuracy or sufficiency of the documents, filings, recordings and other actions taken to create, perfect or maintain the existence, perfection or priority of the Liens granted or purported to be granted pursuant to the Security Documents. Gleacher shall be entitled to assume that, as of the Effective Date, all Liens purported to be granted pursuant to the Security Documents are valid and perfected Liens having the priority intended by the Lenders and the Credit Documents.

 

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1.08 Possessory Collateral. On and after the Effective Date, all possessory collateral held by the Existing Agent for the benefit of the Lenders shall be deemed to be held by the Existing Agent as agent and bailee for the Successor Agent for the ratable benefit of the Lenders until such time as such possessory collateral has been delivered to the Successor Agent. Notwithstanding anything herein to the contrary or the effectiveness of the terms hereof, each Credit Party agrees that all of such Liens granted by any Credit Party, shall in all respects be continuing and in effect and are hereby ratified and reaffirmed by each Credit Party. Without limiting the generality of the foregoing, any reference to the Existing Agent in any publicly filed document, to the extent such filing relates to the liens and security interests in the Collateral assigned hereby and until such filing is modified to reflect the interests of the Successor Agent, shall, with respect to such liens and security interests, constitute a reference to the Existing Agent as collateral representative of the Successor Agent (provided, that the parties hereto agree that the Existing Agent’s role as such collateral representative shall impose no duties, obligations, or liabilities on the Existing Agent, including, without limitation, any duty to take any type of direction regarding any action to be taken against such Collateral, whether such direction comes from the Successor Agent, the Required Lenders, or otherwise and the Existing Agent shall have the full benefit of the protective provisions of the Credit Agreement, including, without limitation, Article VIII (The Administrative Agent), and Section 9.5 (Payment of Expenses and Taxes), while serving in such capacity). The Successor Agent agrees to take possession of any possessory collateral delivered to the Successor Agent following the Effective Date upon tender thereof by the Existing Agent.

Section 2. Amendments to the Credit Agreement. Effective as of the Effective Date, the Credit Agreement is hereby amended as follows:

2.01. References Generally. References in the Credit Agreement (including references to the Credit Agreement as amended hereby) to (i) “this Agreement” (and indirect references such as “hereunder”, “hereby”, “herein” and “hereof”) shall be deemed to be references to the Credit Agreement as amended hereby, (ii) the “Security Agreement” (including references to the Security Agreement as amended hereby and indirect references such as “therein” and “thereof”) shall be deemed to be references to the Security Agreement as amended hereby and (iii) “the Pledge Agreement” (including references to the Pledge Agreement as amended hereby and indirect references such as “therein” and “thereof”) shall be deemed to be references to the Pledge Agreement as amended hereby.

2.02. Amended Language. The Credit Agreement is hereby amended to delete the bold, stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold, double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto.

Section 3. Amendments to the Security Agreement. Effective as of the Effective Date, the Security Agreement is hereby amended as follows:

3.01. References Generally. References in the Security Agreement (including references to the Security Agreement as amended hereby) to (i) “this Agreement” (and

 

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indirect references such as “hereunder”, “hereby”, “herein” and “hereof”) shall be deemed to be references to the Security Agreement as amended hereby, (ii) “the Credit Agreement” (including references to the Credit Agreement as amended hereby and indirect references such as “therein” and “thereof”) shall be deemed to be references to the Credit Agreement as amended hereby and (iii) “the Pledge Agreement” (including references to the Pledge Agreement as amended hereby and indirect references such as “therein” and “thereof”) shall be deemed to be references to the Pledge Agreement as amended hereby.

3.02. Amended Language. The Security Agreement is hereby amended to delete the bold, stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold, double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Security Agreement attached as Exhibit B hereto.

Section 4. Amendments to the Pledge Agreement. Effective as of the Effective Date, the Pledge Agreement is hereby amended as follows:

4.01. References Generally. References in the Pledge Agreement (including references to the Pledge Agreement as amended hereby) to (i) “this Agreement” (and indirect references such as “hereunder”, “hereby”, “herein” and “hereof”) shall be deemed to be references to the Pledge Agreement as amended, (ii) “the Credit Agreement” (including references to the Credit Agreement as amended hereby and indirect references such as “therein” and “thereof”) shall be deemed to be references to the Credit Agreement as amended hereby and (iii) “the Security Agreement” (including references to the Security Agreement as amended hereby and indirect references such as “therein” and “thereof”) shall be deemed to be references to the Security Agreement as amended hereby.

4.02. Amended Language. The Pledge Agreement is hereby amended to delete the bold, stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold, double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Pledge Agreement attached as Exhibit C hereto.

Section 5. Conditions Precedent to Effectiveness. For the purposes of this Agreement, the term “Effective Date” means the first date on which all of the following conditions have been satisfied:

5.01. Execution. Each of the Required Lenders, the Credit Parties, the Existing Agent and the Successor Agent shall have executed and delivered a counterpart to this Agreement.

5.02. Payments to Agents. (a) The Existing Agent shall have received from the Company payment in immediately available funds of all costs, expenses, accrued and

 

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unpaid fees and other amounts payable to it as the Existing Agent pursuant to the Credit Documents (including fees and expenses of counsel), to the extent invoiced to the Company at least one Business Day prior to the Effective Date, and (b) the Successor Agent shall have received from the Company payment in immediately available funds of all costs, expenses, accrued and unpaid fees and other amounts payable to it as the Successor Agent (including fees and expenses of counsel) pursuant to the fee letter dated as of February 15, 2011 entered into between the Company and the Successor Agent in the case of expenses, to the extent invoiced to the Company at least one Business Day prior to the Effective Date.

5.03. Possessory Collateral. The Successor Agent shall received the items set forth on Schedule 1 hereto.

5.04. Agency Deliverables. The Successor Agent (except as otherwise agreed by it) shall have received the following documents from the Existing Agent:

 

  a) copies of the Credit Documents existing as of the date hereof, together with all amendments and supplements thereto;

 

  b) a list of all of the Lenders and their respective commitments as of the close of business on the Business Day prior to the date of this Agreement;

 

  c) an executed assignment of mortgage or deed of trust (as applicable and if reasonably necessary) with regard to each of the mortgages and deeds of trust in its capacity as Administrative Agent (provided that neither the Existing Agent nor the Successor Agent shall be responsible for the form, content or filing of any such assignments or the applicable mortgages);

 

  d) (i) copies of all of the Existing Agent’s books and records concerning the Loans (including without limitation all of those books and records that evidence the amount of principal, interest and other sums due under the Credit Documents), (ii) such other information and data as shall be reasonably necessary for the Successor Agent to establish an IntraLinks website (or substantially similar electronic transmission system) for purposes of general communications with the parties to the Credit Documents;

 

  e) an executed assignment of each instrument that grants a Lien in Trademarks, Patents and Copyrights (provided that the Existing Agent shall not be responsible for the form or content of any such assignment); and

 

  f) an executed assignment of each control agreement that perfects a Lien over security accounts or deposit accounts (provided that the Existing Agent shall not be responsible for the form or content of any such assignment).

 

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Section 6. Representations and Warranties. Each Credit Party represents and warrants to the Lenders and the Successor Agent, that it is legally authorized to enter into and has duly executed and delivered this Agreement.

Section 7. Existing Agent Expenses. The Company shall reimburse the Existing Agent for all reasonable, documented out-of-pocket costs and expenses incurred by the Existing Agent in connection with the actions required to be taken by it pursuant to this Agreement on and after the Effective Date. The Existing Agent estimates that the aggregate amount of such costs and expenses will not exceed $20,000, which estimate shall be nonbinding and not limit the obligations of the Company pursuant to this Section 7.

Section 8. Confirmation of Credit Documents. Each Credit Party, by its execution of this Agreement, hereby consents to this Agreement and confirms and ratifies that all of its respective obligations under the Credit Documents to which it is a party shall continue in full force and effect for the benefit of the Secured Parties with respect to the Credit Documents as amended hereby. Each Credit Party, by its execution of this Agreement, hereby confirms that the security interests granted by it under each of the Security Documents to which it is a party shall continue in full force and effect in favor of the Secured Parties with respect to the Credit Documents as amended hereby.

Section 9. Release. Each Lender acknowledges that it has no Claims against the Existing Agent or the Successor Agent or any of their respective directors, officers, employees, agents, attorneys, financial advisors, legal representatives, affiliates, shareholders, partners, successors and assigns (the Existing Agent, the Successor Agent and their respective directors, officers, employees, agents, attorneys, financial advisors, legal representatives, affiliates, shareholders, partners, successors and assigns are jointly and severally referred to as the “Agent Group”), that directly or indirectly arise out of or are based upon or in any manner connected with any Prior Event (as defined below) and each Lender hereby releases each member of the Agent Group from any liability whatsoever should any Claims nonetheless exist. As used herein the term “Prior Event” means any transaction, event, circumstances, action, failure to act or occurrence of any sort or type, whether known or unknown, which occurred, existed, was taken, permitted or begun prior to the execution of this Agreement and occurred, existed, was taken, permitted or begun in accordance with, pursuant to or by virtue of any terms of the Credit Agreement, this Agreement, any other Loan Document or any of the transactions contemplated herein or therein or any oral or written agreement relating to any of the foregoing, including without limitation any approval or acceptance given or denied.

Section 10. Return of Payments.

10.01. To the Lenders or Successor Agent. In the event that, after the Effective Date, the Existing Agent receives any principal, interest or other amount owing to any Lender or the Successor Agent under the Credit Agreement or any other Credit Document, the Existing Agent agrees that such payment shall be held in trust for the Successor Agent, and the Existing Agent shall return such payment to the Successor Agent for payment to the Person entitled thereto.

 

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10.02. To the Existing Agent. In the event that, after the Effective Date, the Successor Agent receives any principal, interest or other amount owing to Existing Agent under the Credit Agreement or any other Credit Document, the Successor Agent agrees that such payment shall be held in trust for the Existing Agent, and the Successor Agent shall return such payment to the Existing Agent.

Section 11. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties hereto.

Section 12. Headings. The paragraph headings used in this Agreement are for convenience only and shall not affect the interpretation of any of the provisions hereof.

Section 13. Miscellaneous. Except as herein provided, the Credit Agreement, the Security Agreement and the Pledge Agreement shall remain unchanged and in full force and effect. This Agreement is a Credit Document for all purposes of the Credit Agreement. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same amendatory instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. This Agreement shall be governed by, and construed in accordance with, the law of the State of New York.

[signature pages follow]

 

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

 

WELLS FARGO BANK, N.A., successor-by- merger to Wachovia Bank, National Association, as Existing Agent
By:   /s/ Russ Lyons
  Name:   Russ Lyons
  Title:   Director


GLEACHER PRODUCTS CORP., as Successor Agent
By:   /s/ Joanna Anderson
  Name:   Joanna Anderson
  Title:   Authorized Signatory


Abrams Capital Partners I, LP

Abrams Capital Partners II, LP

Great Hollow International, L.P.

Whitecrest Partners, LP

By: Abrams Capital Management, LP

By: Abrams Capital Management, LLC

 

______________________________,

as a Lender

By:   /s/ Travis Rhodes
  Name:   Travis Rhodes
  Title:   Authorized Signatory

 

ACA CLO 2006-1, LTD.

ACA CLO 2006-2, LTD.

ACA CLO 2007-1, LTD.

Apidos CDO I

Apidos CDO II

Apidos CDO III

Apidos CDO IV

Apidos CDO V

Apidos Cinco CDO

Apidos Quattro CDO,

 

By their investment adviser Apidos Capital

Management, LLC.

 

San Gabriel CLO I, LTD

Shasta CLO I, LTD

 

By Apidos Capital Management, LLC on behalf of Resource Capital Asset Management (RCAM)

 

as a Lender

By:   /s/ Gretchen Bergstresser
  Name:   Gretchen Bergstresser
  Title:   Managing Director


American International Group, Inc.

By: PineBridge Investment LLC.,

Its Investment Manager

  

Saturn CLO, Ltd.

By: PineBridge Investment LLC.,

Its Collateral Manager

PineBridge Bank Loan Fund Ltd.

By: PineBridge Investment LLC.,

Its Investment Manager

  

Galaxy CLO 2003-1, Ltd.

By: PineBridge Investment LLC.,

Its Collateral Manager

Galaxy III CLO, Ltd.

By: PineBridge Investment LLC.,

Its Collateral Manager

  

Galaxy IV CLO, Ltd.

By: PineBridge Investment LLC.,

Its Collateral Manager

Galaxy V CLO, Ltd.

By: PineBridge Investment LLC.,

Its Collateral Manager

  

Galaxy VI CLO, Ltd.

By: PineBridge Investment LLC.,

Its Collateral Manager

Galaxy VII CLO, Ltd.

By: PineBridge Investment LLC.,

Its Collateral Manager

  

Galaxy VIII CLO, Ltd.

By: PineBridge Investment LLC.,

Its Collateral Manager

Galaxy X CLO, Ltd.

By: PineBridge Investment LLC.,

Its Collateral Manager

  

 

                                                                                  ,
as a Lender
By:   /s/ John Wesley Burgess
  Name:   John Wesley Burgess
  Title:   Vice President
By:    
  Name:  
  Title:  


ARES ENHANCED LOAN INVESTMENT

STRATEGY III, LTD., as a Lender

ARES ENHANCED LOAN INVESTMENT

STRATEGY III, LTD.

BY: ARES ENHANCED LOAN

MANAGEMENT III, L.P., ITS

PORTFOLIO MANAGER

BY: ARES ENHANCED LOAN III GP,

LLC, ITS GENERAL PARTNER

By:   /s/ Americo Cascella
  Name:   Americo Cascella
  Title:   Authorized Signatory
ARES IIIR/IVR CLO LTD., as a Lender
ARES IIIR/IVR CLO LTD.

BY: ARES CLO MANAGEMENT

IIIR/IVR, L.P., ITS ASSET MANAGER

BY: ARES CLO GP IIIR/IVR, LLC, ITS

GENERAL PARTNER

By:   /s/ Americo Cascella
  Name:   Americo Cascella
  Title:   Authorized Signatory

ARES IX CLO LTD., as a Lender

ARES IX CLO LTD.

BY: ARES CLO MANAGEMENT IX, L.P.,

ITS INVESTMENT MANAGER

BY: ARES CLO GP IX, LLC, ITS

GENERAL PARTNER

By:   /s/ Americo Cascella
  Name:   Americo Cascella
  Title:   Authorized Signatory


Ares NF CLO XIII Ltd., as a Lender

Ares NF CLO XIII Ltd

BY: Ares NF CLO XIII Management, L.P.,

its collateral manager

BY: Ares NF CLO XIII Management LLC,

its general partner

By:   /s/ Americo Cascella
  Name:   Americo Cascella
  Title:   Authorized Signatory

Ares NF CLO XIV Ltd., as a Lender

Ares NF CLO XIV Ltd

By: Ares NF CLO XIV Management, L.P.,

its collateral manager

BY: Ares NF CLO XIV Management LLC,

its general partner

By:   /s/ Americo Cascella
  Name:   Americo Cascella
  Title:   Authorized Signatory
Ares NF CLO XV Ltd., as a Lender
Ares NF CLO XV Ltd

By: Ares NF CLO XV Management, L.P.,

its collateral manager

By: Ares NF CLO XV Management LLC,

its general partner

By:   /s/ Americo Cascella
  Name:   Americo Cascella
  Title:   Authorized Signatory


ARES VIR CLO LTD., as a Lender
ARES VIR CLO LTD.

BY: ARES CLO MANAGEMENT VIR,

L.P., ITS INVESTMENT MANAGER

BY: ARES CLO GP VIR, LLC, ITS

GENERAL PARTNER

By:   /s/ Americo Cascella
  Name:   Americo Cascella
  Title:   Authorized Signatory
Ares VR CLO Ltd., as a Lender
ARES VR CLO LTD.

BY: ARES CLO MANAGEMENT VR,

L.P., ITS INVESTMENT MANAGER

BY: ARES CLO GP VR, LLC, ITS

GENERAL PARTNER

By:   /s/ Americo Cascella
  Name:   Americo Cascella
  Title:   Authorized Signatory
ARES XI CLO LTD., as a Lender
ARES XI CLO LTD.

By: ARES CLO MANAGEMENT XI, L.P.,

ITS ASSET MANAGER

By: ARES CLO GP XI, LLC, ITS

GENERAL PARTNER

By:   /s/ Americo Cascella
  Name:   Americo Cascella
  Title:   Authorized Signatory


ARES XII CLO LTD., as a Lender
ARES XII CLO LTD.

BY: ARES CLO MANAGEMENT XII,

L.P., ITS ASSET MANAGER

BY: ARES CLO GP XII, LLC, ITS

GENERAL PARTNER

By:   /s/ Americo Cascella
  Name:   Americo Cascella
  Title:   Authorized Signatory
ATLANTIS FUNDING LTD.
By:   INVESCO Senior Secured Management, Inc.
  As Collateral Manager
as a Lender
By:   /s/ Kevin Egan
  Name:   Kevin Egan
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  
AVALON CAPITAL LTD. 3
By:   INVESCO Senior Secured Management, Inc.
  As Asset Manager
                                                                          ,
as a Lender
By:   /s/ Kevin Egan
  Name:   Kevin Egan
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  


BELHURST CLO LTD.
By:  

INVESCO Senior Secured Management, Inc.

As Collateral Manager

as a Lender
By:   /s/ Kevin Egan
  Name: Kevin Egan
  Title: Authorized Signatory
By:    
 

Name:

Title:

Bank of America, N.A.,

as a Lender

By:   /s/ Erik S. Grossman
 

Name: Erik S. Grossman

Title: Vice President

BIG SKY III SENIOR LOAN TRUST
By:  

EATON VANCE MANAGEMENT

AS INVESTMENT ADVISOR

                                                                                                        ,

as a Lender

By:   /s/ Michael B. Botthof
 

Name: Michael B. Botthof

Title: Vice President

By:    
 

Name:

Title:


BLT 2009-1 LTD.
By:  

INVESCO Senior Secured Management, Inc.

As Collateral Manager

                                                                                                        ,

as a Lender

By:   /s/ Kevin Egan
 

Name: Kevin Egan

Title: Authorized Signatory

By:    
 

Name:

Title:

BLT 38 LLC.

as a Lender

By:   /s/ Ronald Gotz
 

Name: Ronald Gotz

Title: Authorized Signatory

THE BANK OF NEW YORK MELLON

as a Lender

By:   /s/ EDWARD J. DeSALVIO
 

Name: EDWARD J. DeSALVIO

Title: MANAGING DIRECTOR

BOSTON HARBOR CLO 2004-1, Ltd.
By:   /s/ Beth Mazor
 

By: Beth Mazor

Title: V.P.


CELTS CLO 2007-1 LTD
By:  

INVESCO Senior Secured Management, Inc.

As Portfolio Manager

                                                                                                        ,

as a Lender

By:   /s/ Kevin Egan
 

Name: Kevin Egan

Title: Authorized Signatory

By:    
 

Name:

Title:

CHAMPLAIN CLO, LTD.
By:  

INVESCO Senior Secured Management, Inc.

As Collateral Manager

                                                                                                        ,

as a Lender

By:   /s/ Kevin Egan
 

Name: Kevin Egan

Title: Authorized Signatory

By:    
 

Name:

Title:

Confluent 3 Limited.
By:  

Invesco Senior Secured Management, Inc.

As Investment Manager

as a Lender
By:   /s/ Kevin Egan
 

Name: Kevin Egan

Title: Authorized Signatory

By:    
 

Name:

Title:


Cornerstone CLO Ltd.

By: Stone Tower Debt Advisors LLC

As Its Collateral Manager,

as a Lender

By:   /s/ Michael W. DelPercio
 

Name: Michael W. DelPercio

Title: Authorized Signatory

By:    
 

Name:

Title:

CREDIT SUISSE LOAN FUNDING LLC

as a Lender

By:   /s/ Ronald Gotz
 

Name: Ronald Gotz

Title: Authorized Signatory

By:   /s/ Dan Sullivan
 

Name: Dan Sullivan

Title: Authorized Signatory

DIVERSIFIED CREDIT PORTFOLIO LTD.
By:  

INVESCO Senior Secured Management, Inc.

as Investment Adviser

                                                                                                        ,

as a Lender

By:   /s/ Kevin Egan
 

Name: Kevin Egan

Title: Authorized Signatory

By:    
 

Name:

Title:


Dryden IX – Senior Loan Fund 2005 p.l.c

By: Prudential Investment Management,

Inc., Collateral Manager, as a Lender

By:   /s/ Joseph Lemanowicz
 

Name: Joseph Lemanowicz

Title: Vice President

Dryden XI – Leveraged Loan CDO 2006

By: Prudential Investment Management,

Inc., Collateral Manager, as a Lender

By:   /s/ Joseph Lemanowicz
 

Name: Joseph Lemanowicz

Title: Vice President

Dryden VIII – Leveraged Loan CDO 2005

By: Prudential Investment Management,

Inc., as Collateral Manager, as a Lender

By:   /s/ Joseph Lemanowicz
 

Name: Joseph Lemanowicz

Title: Vice President

Dryden XVIII – Leveraged Loan 2007 Ltd.

By: Prudential Investment Management,

Inc., as Collateral Manager, as a Lender

By:   /s/ Joseph Lemanowicz
 

Name: Joseph Lemanowicz

Title: Vice President

Dryden XVI – Leveraged Loan CDO 2006

By: Prudential Investment Management,

Inc., as Collateral Manager, as a Lender

By:   /s/ Joseph Lemanowicz
 

Name: Joseph Lemanowicz

Title: Vice President


Eaton Vance CDO VII PLC

By: Eaton Vance Management

as Interim Investment Advisor

 

__________________________,

as a Lender

By:   /s/ Michael B. Botthof
  Name:   Michael B. Botthof
  Title:   Vice President
By:    
  Name:  
  Title:  

 

Eaton Vance CDO VIII, Ltd.

By: Eaton Vance Management

As Investment Advisor

 

__________________________,

as a Lender

By:   /s/ Michael B. Botthof
  Name:   Michael B. Botthof
  Title:   Vice President
By:    
  Name:  
  Title:  

 

Eaton Vance CDO IX Ltd.

By: Eaton Vance Management

as Investment Advisor

 

__________________________,

as a Lender

By:   /s/ Michael B. Botthof
  Name:   Michael B. Botthof
  Title:   Vice President
By:    
  Name:  
  Title:  


Eaton Vance CDO X PLC

By: Eaton Vance Management

as Investment Advisor

__________________________,

as a Lender

By:   /s/ Michael B. Botthof
  Name:   Michael B. Botthof
  Title:   Vice President
By:    
  Name:  
  Title:  

 

EATON VANCE SENIOR FLOATING-RATE TRUST
BY:  

EATON VANCE MANAGEMENT

AS INVESTMENT ADVISOR

__________________________,

as a Lender

By:   /s/ Michael B. Botthof
  Name:   Michael B. Botthof
  Title:   Vice President
By:    
  Name:  
  Title:  

 

EATON VANCE FLOATING-RATE INCOME TRUST

BY:   EATON VANCE MANAGEMENT AS INVESTMENT ADVISOR

__________________________,

as a Lender

By:   /s/ Michael B. Botthof
  Name:   Michael B. Botthof
  Title:   Vice President
By:    
  Name:  
  Title:  


Eaton Vance Medallion Floating-Rate Income Portfolio
By:  

Eaton Vance Management

as Investment Advisor

__________________________,

as a Lender

By:   /s/ Michael B. Botthof
  Name:   Michael B. Botthof
  Title:   Vice President
By:    
  Name:  
  Title:  

 

EATON VANCE SENIOR INCOME TRUST
BY:  

EATON VANCE MANAGEMENT

AS INVESTMENT ADVISOR

__________________________,

as a Lender

By:   /s/ Michael B. Botthof
  Name:   Michael B. Botthof
  Title:   Vice President
By:    
  Name:  
  Title:  

 

EATON VANCE SHORT DURATION DIVERSIFIED INCOME FUND
BY:  

EATON VANCE MANAGEMENT

AS INVESTMENT ADVISOR

__________________________,

as a Lender

By:   /s/ Michael B. Botthof
  Name:   Michael B. Botthof
  Title:   Vice President
By:    
  Name:  
  Title:  


EATON VANCE INSTITUTIONAL SENIOR LOAN FUND
BY:   EATON VANCE MANAGEMENT AS INVESTMENT ADVISOR

__________________________,

as a Lender

By:   /s/ Michael B. Botthof
  Name:   Michael B. Botthof
  Title:   Vice President
By:    
  Name:  
  Title:  

 

EATON VANCE LIMITED DURATION INCOME FUND
BY:   EATON VANCE MANAGEMENT AS INVESTMENT ADVISOR

__________________________,

as a Lender

By:   /s/ Michael B. Botthof
  Name:   Michael B. Botthof
  Title:   Vice President
By:    
  Name:  
  Title:  


EATON VANCE VT FLOATING-RATE INCOME FUND
BY:  

EATON VANCE MANAGEMENT

AS INVESTMENT ADVISOR

__________________________________________,

as a Lender

By:   /s/ Michael B. Botthof
  Name:   Michael B. Botthof
  Title:   Vice President
By:    
  Name:  
  Title:  

 

G FML I LLC,

as a Lender

By:   /s/ Julian Weldon
  Name:   Julian Weldon
  Title:   Secretary

 

Garrison Credit Opportunities Holdings, L.P,

as a Lender

By:   /s/ Julian Weldon
  Name:   Julian Weldon
  Title:   Secretary

 

Garrison Funding 2008-1 Ltd.,

as a Lender

By:   /s/ Julian Weldon
  Name:   Julian Weldon
  Title:   Secretary


Gateway CLO Limited

By: Prudential Investment Management,

Inc., as Collateral Manager, as a Lender

By:   /s/ Joseph Lemanowicz
  Name: Joseph Lemanowicz
  Title: Vice President

General Electric Capital Corporation,

as a Lender

By:   /s/ Karen A. Austin
  Name: Karen A. Austin
  Title: Duly Authorized Signatory

GOLDMAN SACHS LENDING PARTNERS LLC,

as a Lender

By:   /s/ Lawrence DeCamillo
  Name: Lawrence DeCamillo
  Title: Authorized Signatory
By:    
  Name:
  Title:

Granite Ventures I Ltd.

By Stone Tower Debt Advisors LLC

As Its Collateral Manager,

as a Lender

By:   /s/ Michael W. DelPercio
  Name: Michael W. DelPercio
  Title: Authorized Signatory
By:    
  Name:
  Title:


Granite Ventures II Ltd.

By Stone Tower Debt Advisors LLC

As Its Collateral Manager,

as a Lender

By:   /s/ Michael W. DelPercio
  Name: Michael W. DelPercio
  Title: Authorized Signatory
By:    
  Name:
  Title:

Granite Ventures III Ltd.

By Stone Tower Debt Advisors LLC

As Its Collateral Manager,

as a Lender

By:   /s/ Michael W. DelPercio
  Name: Michael W. DelPercio
  Title: Authorized Signatory
By:    
  Name:
  Title:

GRAYSON & CO

By: Boston Management and Research as

Investment Advisor

                                                                                                        ,
as a Lender
By:   /s/ Michael B. Botthof
  Name: Michael B. Botthof
  Title: Vice President
By:    
  Name:
  Title:


HARCH CLO II LIMITED
                                                                                                        ,
as a Lender
By:   /s/ Michael E. Lewitt
  Name: Michael E. Lewitt
  Title: Authorized Signatory
HARCH CLO III LIMITED
                                                                                                        ,
as a Lender
By:   /s/ Michael E. Lewitt
  Name: Michael E. Lewitt
  Title: Authorized Signatory

The Hartford Mutual Funds, Inc., on behalf of

The Hartford Floating Rate Fund

                                                                                                        ,
as a Lender
By:   /s/ Michael J. Bacevich
  Name: Michael J. Bacevich
  Title: Managing Director
By:    
  Name:
  Title:


HUDSON CANYON FUNDING II SUBSIDARY HOLDING COMPANY II LLC
By:   INVESCO Senior Secured Management, Inc.
  As Collateral Manager & Attorney InFact
                                                                                                        ,
as a Lender
By:   /s/ Kevin Egan
  Name: Kevin Egan
  Title: Authorized Signatory
By:    
  Name:
  Title:

THE PUTNAM ADVISORY COMPANY, LLC

ON BEHALF OF IG PUTNAM HIGH YIELD INCOME FUND

/s/ S. Deshaies
Name: Suzanne Deshaies
Title: VP

THE PUTNAM ADVISORY COMPANY, LLC ON BEHALF OF INTERPOLIS PENSIOENEN GLOBAL HIGH YIELD POOL

/s/ S. Deshaies

Name: Suzanne Deshaies
Title: VP


Invesco Floating Rate Fund
By:   INVESCO Senior Secured Management, Inc.
  As Sub-Adviser
                                                                                                        ,
as a Lender
By:   /s/ Kevin Egan
  Name: Kevin Egan
  Title: Authorized Signatory
By:    
  Name:
  Title:
Invesco Funds III – Invesco US Senior Loan Fund
By:   Invesco Asset Management S.A.
  As Investment Manager
                                                                                                        ,
as a Lender
By:   /s/ Kevin Egan
  Name: Kevin Egan
  Title: Authorized Signatory
By:    
  Name:
  Title:
Invesco Prime Income Trust
By:   Invesco Senior Secured Management, Inc.
  as Sub-Adviser
                                                                                                        ,
as a Lender
By:   /s/ Kevin Egan
  Name: Kevin Egan
  Title: Authorized Signatory
By:    
  Name:
  Title:


Invesco Van Kampen Dynamic Credit Opportunities Fund
By:  

Invesco Senior Secured Management, Inc.

as Sub-Adviser

___________________________________________,
as a Lender
By:   /s/ Kevin Egan
  Name:   Kevin Egan
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  
Invesco Van Kampen Senior Income Trust
By:  

Invesco Senior Secured Management, Inc.

as Sub-Adviser

___________________________________________,
as a Lender
By:   /s/ Kevin Egan
  Name:   Kevin Egan
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  
Invesco Van Kampen Senior Loan Fund
By:  

Invesco Senior Secured Management, Inc.

as Sub-Adviser

___________________________________________,
as a Lender
By:   /s/ Kevin Egan
  Name:   Kevin Egan
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  


KATONAH V, LTD.
By:   INVESCO Senior Secured Management, Inc. As Investment Manager
___________________________________________,
as a Lender
By:   /s/ Kevin Egan
  Name:   Kevin Egan
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  
LIMEROCK CLO I
By:   INVESCO Senior Secured Management, Inc. As Investment Manager
___________________________________________,
as a Lender
By:   /s/ Kevin Egan
  Name:   Kevin Egan
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  
Marsh & McLennan Companies, Inc. U.S. Retirement Plan – High Yield by Putnam Fiduciary Trust Company
/s/ Kerry O’Donnell
Name: Kerry O’Donnell
Title: Manager


MORGAN STANLEY SENIOR FUNDING, INC.,

as a Lender

By:   /s/ Donna Souza
  Name:   Donna Souza
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  
MSIM Peconic Bay, Ltd.
By:  

Invesco Senior Secured Management, Inc.

As Collateral Manager

___________________________________________,
as a Lender
By:   /s/ Kevin Egan
  Name:   Kevin Egan
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  
NAUTIQUE FUNDING LTD.
By:  

INVESCO Senior Secured Management, Inc.

As Collateral Manager

___________________________________________,
as a Lender
By:   /s/ Kevin Egan
  Name:   Kevin Egan
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  


Newcastle CDO VIII 1, Limited, as a Lender
By:   Newcastle Investment Corp., as collateral manager
By:   /s/ Phillip J. Evanski
  Name:   Phillip J. Evanski
  Title:   Chief Investment Officer
  Newcastle Investment Corp.
Newcastle CDO IX 1, Limited, as a Lender
By:   Newcastle Investment Corp., as collateral manager
By:   /s/ Phillip J. Evanski
  Name:   Phillip J. Evanski
  Title:   Chief Investment Officer
  Newcastle Investment Corp.
Newcastle CDO X, Limited, as a Lender
By:   Newcastle Investment Corp., as collateral manager
By:   /s/ Phillip J. Evanski
  Name:   Phillip J. Evanski
  Title:   Chief Investment Officer
  Newcastle Investment Corp.
PUTNAM DIVERSIFIED INCOME TRUST
By:   /s/ Beth Mazor
  By: Beth Mazor
  Title: V.P.


PUTNAM DIVERSIFIED INCOME TRUST (CAYMAN) MASTER FUND
By The Putnam Advisory Company, LLC
/s/ Angela Patel
Name: Angela Patel
Title: Vice President
PUTNAM FLOATING RATE INCOME FUND
By:   /s/ Beth Mazor
  By: Beth Mazor
  Title: V.P.
PUTNAM HIGH YIELD ADVANTAGE FUND
By:   /s/ Beth Mazor
  By: Beth Mazor
  Title: V.P.
PUTNAM HIGH YIELD TRUST
By:   /s/ Beth Mazor
  By: Beth Mazor
  Title: V.P.
PUTNAM MASTER INTERMEDIATE INCOME TRUST
By:   /s/ Beth Mazor
  By: Beth Mazor
  Title: V.P.
PUTNAM PREMIER INCOME TRUST
By:   /s/ Beth Mazor
  By: Beth Mazor
  Title: V.P.


PUTNAM VARIABLE TRUST – PVT

HIGH YIELD FUND

By:   /s/ Beth Mazor
  By:   Beth Mazor
  Title:   V.P.

PUTNAM VARIABLE TRUST – PVT

DIVERSIFIED INCOME FUND

By:   /s/ Beth Mazor
  By:   Beth Mazor
  Title:   V.P.
The Putnam Advisory Company, LLC on behalf of Putnam Global Funds – Putnam Worldwide Income Fund
/s/ Lauren Silk
Name: Lauren Silk
Title: Vice President

Qualcomm Global Trading, Inc.

By: Invesco Senior Secured Management, Inc. As Investment Manager

                                                                          ,
as a Lender
By:   /s/ Kevin Egan
  Name:   Kevin Egan
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  


Rampart CLO 2007 Ltd.

By Stone Tower Debt Advisors LLC

As Its Collateral Manager,

as a Lender

By:   /s/ Michael W. DelPercio
  Name:   Michael W. DelPercio
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  

Rampart CLO 2006-1 Ltd.

By Stone Tower Debt Advisors LLC

As Its Collateral Manager,

as a Lender

By:   /s/ Michael W. DelPercio
  Name:   Michael W. DelPercio
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  

SAGAMORE CLO LTD.

By: INVESCO Senior Secured Management, Inc. As Collateral Manager

                                                                                          ,
as a Lender
By:   /s/ Kevin Egan
  Name:   Kevin Egan
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  


SARATOGA CLO I, LIMITED

By: INVESCO Senior Secured Management, Inc. As Asset Manager

                                                                                          ,
as a Lender
By:   /s/ Kevin Egan
  Name:   Kevin Egan
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  

SENIOR DEBT PORTFOLIO

By: Boston Management and Research as Investment Advisor

                                                                                          ,
as a Lender
By:   /s/ Michael B. Botthof
  Name:   Michael B. Botthof
  Title:   Vice President
By:    
  Name:  
  Title:  

Stone Tower CDO Ltd.

By Stone Tower Debt Advisors LLC

As Its Collateral Manager,

as a Lender

By:   /s/ Michael W. DelPercio
  Name:   Michael W. DelPercio
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  


Stone Tower CLO III Ltd.

By Stone Tower Debt Advisors LLC

As Its Collateral Manager,

as a Lender

By:   /s/ Michael W. DelPercio
  Name:   Michael W. DelPercio
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  

Stone Tower CLO IV Ltd.

By Stone Tower Debt Advisors LLC

As Its Collateral Manager,

as a Lender

By:   /s/ Michael W. DelPercio
  Name:   Michael W. DelPercio
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  

Stone Tower CLO V Ltd.

By Stone Tower Debt Advisors LLC

As Its Collateral Manager,

as a Lender

By:   /s/ Michael W. DelPercio
  Name:   Michael W. DelPercio
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  


Stone Tower CLO VI Ltd.

By Stone Tower Debt Advisors LLC

As Its Collateral Manager,

as a Lender

By:   /s/ Michael W. DelPercio
  Name:   Michael W. DelPercio
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  

Stone Tower CLO VII Ltd.

By Stone Tower Debt Advisors LLC

As Its Collateral Manager,

as a Lender

By:   /s/ Michael W. DelPercio
  Name:   Michael W. DelPercio
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  
SunAmerica Senior Floating Rate Fund, Inc., as Lender

By: Wellington Management Company, LLP,

as its Investment Adviser

By:   /s/ Robert J. Toner
  Robert J. Toner
  Vice President and Counsel


WASATCH CLO LTD

By: INVESCO Senior Secured Management, Inc.

As Portfolio Manager

_________________________________________,
as a Lender
By:   /s/ Kevin Egan
  Name:   Kevin Egan
  Title:   Authorized Signatory
By:    
  Name:  
  Title:  

Wells Fargo Capital Finance, Inc.

as a Lender

By:   /s/ James Belanger
  Name:   James Belanger
  Title:   Sr. Account Officer, VP
By:    
  Name:  
  Title:  


COMPANY:    

GATEHOUSE MEDIA OPERATING, INC.,

a Delaware corporation

      By:   /s/ Michael E. Reed
      Name:   Michael E. Reed
      Title:   Chief Executive Officer
SUBSIDIARY BORROWERS:    

GATEHOUSE MEDIA MASSACHUSETTS I, INC.,

a Delaware corporation

      By:   /s/ Michael E. Reed
      Name:   Michael E. Reed
      Title:   Chief Executive Officer
   

GATEHOUSE MEDIA MASSACHUSETTS II, INC.,

a Delaware corporation

      By:   /s/ Michael E. Reed
      Name:   Michael E. Reed
      Title:   Chief Executive Officer
   

ENHE ACQUISITION, LLC,

a Delaware limited liability company

      By:   /s/ Michael E. Reed
      Name:   Michael E. Reed
      Title:   Chief Executive Officer
HOLDCO:    

GATEHOUSE MEDIA HOLDCO, INC.,

a Delaware corporation

      By:   /s/ Michael E. Reed
      Name:   Michael E. Reed
      Title:   Chief Executive Officer


GUARANTORS:     GATEHOUSE MEDIA DIRECTORIES HOLDINGS, INC., a Delaware corporation
      By:   /s/ Michael E. Reed
      Name:   Michael E. Reed
      Title:   Chief Executive Officer
   

GATEHOUSE MEDIA ARIZONA HOLDINGS, INC.,

a Delaware corporation

      By:   /s/ Michael E. Reed
      Name:   Michael E. Reed
      Title:   Chief Executive Officer
   

GATEHOUSE MEDIA ARKANSAS HOLDINGS, INC.,

a Delaware corporation

      By:   /s/ Michael E. Reed
      Name:   Michael E. Reed
      Title:   Chief Executive Officer
   

GATEHOUSE MEDIA CALIFORNIA HOLDINGS, INC.,

a Delaware corporation

      By:   /s/ Michael E. Reed
      Name:   Michael E. Reed
      Title:   Chief Executive Officer
   

GATEHOUSE MEDIA COLORADO HOLDINGS, INC.,

a Delaware corporation

      By:   /s/ Michael E. Reed
      Name:   Michael E. Reed
      Title:   Chief Executive Officer


GATEHOUSE MEDIA CORNING HOLDINGS, INC., a Nevada corporation
By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

GATEHOUSE MEDIA FREEPORT HOLDINGS,

INC., a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer
GATEHOUSE MEDIA ILLINOIS HOLDINGS, INC., a Delaware corporation
By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer
GATEHOUSE MEDIA IOWA HOLDINGS, INC., a Delaware corporation
By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer
GATEHOUSE MEDIA KANSAS HOLDINGS, INC., a Delaware corporation
By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer


GATEHOUSE MEDIA LANSING PRINTING, INC., a Delaware corporation
By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

GATEHOUSE MEDIA LOUISIANA HOLDINGS,

INC., a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer
GATEHOUSE MEDIA MANAGEMENT SERVICES, INC., a Delaware corporation
By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

GATEHOUSE MEDIA MICHIGAN HOLDINGS,

INC., a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer
GATEHOUSE MEDIA MINNESOTA HOLDINGS, INC., a Delaware corporation
By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer


GATEHOUSE MEDIA MISSOURI HOLDINGS,

INC., a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

GATEHOUSE MEDIA NEBRASKA HOLDINGS,

INC., a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

GATEHOUSE MEDIA NEVADA HOLDINGS,

INC., a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

GATEHOUSE MEDIA NEW YORK HOLDINGS,

INC., a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

GATEHOUSE MEDIA NORTH DAKOTA

HOLDINGS, INC., a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer


GATEHOUSE MEDIA PENNSYLVANIA

HOLDINGS, INC., a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

GATEHOUSE MEDIA SUBURBAN

NEWSPAPERS, INC., a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

LIBERTY SMC, L.L.C.,

a Delaware limited liability company

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

MINERAL DAILY NEWS TRIBUNE, INC.,

a West Virginia corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

NEWS LEADER, INC.,

a Louisiana corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer


TERRY NEWSPAPERS, INC.,

an Iowa corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

ENTERPRISE NEWSMEDIA HOLDING, LLC,

a Delaware limited liability company

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

ENTERPRISE NEWSMEDIA, LLC,

a Delaware limited liability company

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

LRT FOUR HUNDRED, LLC,

a Delaware limited liability company

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

GEORGE W. PRESCOTT PUBLISHING

COMPANY, LLC, a Delaware limited liability

company

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer


LOW REALTY, LLC,

a Delaware limited liability company

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

ENTERPRISE PUBLISHING COMPANY, LLC,

a Delaware limited liability company

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

SUREWEST DIRECTORIES,

a California corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

COPLEY OHIO NEWSPAPERS, INC.,

an Illinois corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

THE PEORIA JOURNAL STAR, INC.,

an Illinois corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer


GATEHOUSE MEDIA CONNECTICUT

HOLDINGS, INC.,

a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

GATEHOUSE MEDIA DELAWARE

HOLDINGS, INC.,

a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer
By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

GATEHOUSE MEDIA FLORIDA

HOLDINGS, INC.,

a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

GATEHOUSE MEDIA ILLINOIS

HOLDINGS II, INC.,

a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer


GATEHOUSE MEDIA KANSAS

HOLDINGS II, INC.,

a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

GATEHOUSE MEDIA MICHIGAN

HOLDINGS II, INC.,

a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

GATEHOUSE MEDIA MISSOURI

HOLDINGS II, INC.,

a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

GATEHOUSE MEDIA NEBRASKA

HOLDINGS II, INC.,

a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer


GATEHOUSE MEDIA OHIO HOLDINGS,

INC.,

a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

GATEHOUSE MEDIA OKLAHOMA

HOLDINGS, INC.,

a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer

GATEHOUSE MEDIA TENNESSEE

HOLDINGS, INC.,

a Delaware corporation

By:   /s/ Michael E. Reed
Name:   Michael E. Reed
Title:   Chief Executive Officer


EXHIBIT A

[Please see attached]


 

[COMPOSITE COPY THROUGH THE SECOND AMENDMENT. THIS IS NOT A LEGAL DOCUMENT. IT IS TO BE USED AS A REFERENCE ONLY]

$960,000,000

AMENDED AND RESTATED CREDIT AGREEMENT

among

GATEHOUSE MEDIA HOLDCO, INC.,

as Holdco,

GATEHOUSE MEDIA OPERATING, INC.

as the Company,

GATEHOUSE MEDIA MASSACHUSETTS I, INC.,

GATEHOUSE MEDIA MASSACHUSETTS II, INC.,

and

ENHE ACQUISITION, LLC,

as Subsidiary Borrowers,

THE DOMESTIC SUBSIDIARIES OF HOLDCO

FROM TIME TO TIME PARTIES HERETO,

as Guarantors,

THE LENDERS PARTIES HERETO,

GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Syndication Agent,

MORGAN STANLEY SENIOR FUNDING, INC.,

and

BMO CAPITAL MARKETS FINANCING, INC.,

as Co-Documentation Agents

and

WACHOVIA BANK, NATIONAL ASSOCIATION,

GLEACHER PRODUCTS CORP.,

as Administrative Agent

Dated as of February 27, 2007

WACHOVIA CAPITAL MARKETS, LLC,

GOLDMAN SACHS CREDIT PARTNERS L.P.,

GENERAL ELECTRIC CAPITAL CORPORATION,

and

MORGAN STANLEY SENIOR FUNDING, INC.,

as Joint Lead Arrangers and Joint Book Runners

 

 


TABLE OF CONTENTS

 

          Page  

ARTICLE I DEFINITIONS

     61   

Section 1.1

   Defined Terms      61   

Section 1.2

   Other Definitional Provisions      3999   

Section 1.3

   Accounting Terms      99   

Section 1.4

   Resolution of Drafting Ambiguities      100   

Section 1.5

   Time References      40100   

ARTICLE II THE LOANS; AMOUNT AND TERMS

     100   

Section 2.1

   Revolving Loans      100   

Section 2.2

   Initial Term Loan and Add-On Term Loan      102   

Section 2.3

   Delayed Draw Term Loan      104   

Section 2.4

   Letter of Credit Subfacility      106   

Section 2.5

   Swingline Loan Subfacility [Intentionally Omitted]      110   

Section 2.6

   Incremental Term Facility      52112   

Section 2.7

   Fees      53113   

Section 2.8

   Commitment Reductions      54114   

Section 2.9

   Prepayments      54115   

Section 2.10

   Default Rate and Payment Dates      61121   

Section 2.11

   Conversion Options      62122   

Section 2.12

   Computation of Interest and Fees; Usury      62123   

Section 2.13

   Pro Rata Treatment and Payments      64124   

Section 2.14

   Non-Receipt of Funds by the Administrative Agent      66126   

Section 2.15

   Inability to Determine Interest Rate      67127   

Section 2.16

   Illegality      67127   

Section 2.17

   Requirements of Law      68128   

Section 2.18

   Indemnity      69130   

Section 2.19

   Taxes      70130   

Section 2.20

   Indemnification; Nature of Issuing Lender’s Duties      72132   

Section 2.21

   Obligation to Mitigate      73134   

Section 2.22

   Replacement of Lenders      74134   

ARTICLE III REPRESENTATIONS AND WARRANTIES

     74135   

Section 3.1

   Financial Condition      75135   

Section 3.2

   No Change      76136   

Section 3.3

   Corporate Existence; Compliance with Law      76137   

Section 3.4

   Corporate Power; Authorization; Enforceable Obligations      77137   

Section 3.5

   No Legal Bar; No Default      77137   

Section 3.6

   No Material Litigation      77138   

Section 3.7

   Investment Company Act, Etc.      78138   

Section 3.8

   Margin Regulations      78138   

Section 3.9

   ERISA      78138   

 

i


Section 3.10

   Environmental Matters      78139   

Section 3.11

   Use of Proceeds      79140   

Section 3.12

   Subsidiaries      80140   

Section 3.13

   Ownership      80140   

Section 3.14

   Indebtedness      80141   

Section 3.15

   Taxes      80141   

Section 3.16

   Intellectual Property Rights      81141   

Section 3.17

   Solvency      81142   

Section 3.18

   Investments      81142   

Section 3.19

   Location of Collateral      82142   

Section 3.20

   No Burdensome Restrictions      82142   

Section 3.21

   Brokers’ Fees      82142   

Section 3.22

   Labor Matters      82143   

Section 3.23

   Accuracy and Completeness of Information      82143   

Section 3.24

   Insurance      83143   

Section 3.25

   Security Documents      83143   

Section 3.26

   Classification of Senior Indebtedness      83144   

Section 3.27

   Anti-Terrorism Laws      83144   

Section 3.28

   Compliance with OFAC Rules and Regulations      83144   

Section 3.29

   Directors; Capitalization      84144   

Section 3.30

   Consummation of Acquisition; Representations and Warranties from Other Documents      84144   

Section 3.31

   Compliance with FCPA      84144   

ARTICLE IV CONDITIONS PRECEDENT

     84145   

Section 4.1

   Conditions to Effective Date      84145   

Section 4.2

   Conditions to All Extensions of Credit      90150   

ARTICLE V AFFIRMATIVE COVENANTS

     91151   

Section 5.1

   Financial Statements      91151   

Section 5.2

   Certificates; Other Information      92153   

Section 5.3

   Payment of Taxes and Other Obligations      94154   

Section 5.4

   Conduct of Business and Maintenance of Existence      94154   

Section 5.5

   Maintenance of Property; Insurance      94155   

Section 5.6

   Inspection of Property; Books and Records; Discussions      95155   

Section 5.7

   Notices      95156   

Section 5.8

   Environmental Laws      96157   

Section 5.9

   Financial Covenant      97158   

Section 5.10

   Additional Guarantors      98159   

Section 5.11

   Compliance with Law      98159   

Section 5.12

   Pledged Assets      99159   

Section 5.13

   Hedging Agreements      99160   

Section 5.14

   Covenants Regarding Patents, Trademarks and Copyrights      99160   

Section 5.15

   Credit Facility Ratings      101162   

Section 5.16

   Public/Private Designation      101162   

Section 5.17

   Post-Closing Covenants; Further Assurances      101162   

 

ii


ARTICLE VI NEGATIVE COVENANTS

     102163   

Section 6.1

   Indebtedness      103163   

Section 6.2

   Liens      104165   

Section 6.3

   Nature of Business      104165   

Section 6.4

   Consolidation, Merger, Sale or Purchase of Assets, etc.      104165   

Section 6.5

   Advances, Investments and Loans      107167   

Section 6.6

   Transactions with Affiliates      107168   

Section 6.7

   Ownership of Subsidiaries; Restrictions      107168   

Section 6.8

   Corporate Changes; Accounting Methods      107168   

Section 6.9

   Limitation on Restricted Actions      108168   

Section 6.10

   Restricted Payments      108169   

Section 6.11

   Amendment to Subordinated Debt      109170   

Section 6.12

   Sale Leasebacks      109170   

Section 6.13

   No Further Negative Pledges      110170   

Section 6.14

   Account Control Agreements; Additional Accounts      110171   

ARTICLE VII EVENTS OF DEFAULT

     111171   

Section 7.1

   Events of Default      111171   

Section 7.2

   Acceleration; Remedies      114175   

ARTICLE VIII THE ADMINISTRATIVE AGENT

     116177   

Section 8.1

   Appointment      116177   

Section 8.2

   Delegation of Duties      116177   

Section 8.3

   Exculpatory Provisions      117177   

Section 8.4

   Reliance by Administrative Agent      117178   

Section 8.5

   Notice of Default      118178   

Section 8.6

   Non-Reliance on Administrative Agent and Other Lenders      118179   

Section 8.7

   Indemnification      119180   

Section 8.8

   Administrative Agent in Its Individual Capacity      119180   

Section 8.9

   Successor Administrative Agent      119180   

Section 8.10

   Nature of Duties      120181   

Section 8.11

   Releases      120181   

ARTICLE IX MISCELLANEOUS

     120181   

Section 9.1

   Amendments, Waivers and Release of Collateral      120181   

Section 9.2

   Notices      123184   

Section 9.3

   No Waiver; Cumulative Remedies      124186   

Section 9.4

   Survival of Representations and Warranties      125186   

Section 9.5

   Payment of Expenses and Taxes      125186   

Section 9.6

   Successors and Assigns; Participations      126187   

Section 9.7

   Adjustments; Set-off      129191   

Section 9.8

   Table of Contents and Section Headings      131192   

Section 9.9

   Counterparts      131192   

Section 9.10

   Effectiveness      131192   

 

iii


Section 9.11

   Severability      131192   

Section 9.12

   Integration      131192   

Section 9.13

   Governing Law      131192   

Section 9.14

   Consent to Jurisdiction and Service of Process      132192   

Section 9.15

   Confidentiality      132192   

Section 9.16

   Acknowledgments      133194   

Section 9.17

   Waivers of Jury Trial; Waiver of Consequential Damages      133195   

Section 9.18

   Patriot Act Notice      134195   

Section 9.19

   Joint and Several Liability of Borrowers; Company as Agent      134195   

Section 9.20

   Determinations of Satisfaction by the Lenders      196   

ARTICLE X GUARANTY

     135196   

Section 10.1

   The Guaranty      135196   

Section 10.2

   Bankruptcy      135197   

Section 10.3

   Nature of Liability      136197   

Section 10.4

   Independent Obligation      136198   

Section 10.5

   Authorization      136198   

Section 10.6

   Reliance      136198   

Section 10.7

   Waiver      137198   

Section 10.8

   Limitation on Enforcement      138200   

Section 10.9

   Confirmation of Payment      138200   

 

iv


Schedules

 

Schedule 1.1(a)

   Account Designation Letter

Schedule 1.1(b)

   Investments

Schedule 1.1(c)

   Liens

Schedule 1.1(d)

   Cost Savings

Schedule 1.1(e)

   Consolidated Historical Fixed Charges

Schedule 1.1(f)

   Consolidated Historical EBITDA

Schedule 1.1(g)

   Existing Letters of Credit

Schedule 1.1(h)

   Form of Tax Sharing Agreement

Schedule 2.1(b)(i)

   Form of Notice of Borrowing

Schedule 2.1(e)

   Form of Revolving Note

Schedule 2.2(d)

   Form of Term Loan Note

Schedule 2.2(e)

   Form of Add-On Term Loan Note

Schedule 2.3(e)

   Form of Delayed Draw Term Loan Note

Schedule 2.5(d)2.6

   Form of SwinglinePromissory Note

Schedule 2.9(a)(1)

   Form of Company Assignment Agreement

Schedule 2.9(a)(2)

   Notice of an Offer to Purchase

Schedule 2.11

   Form of Notice of Conversion/Extension

Schedule 2.19

   Tax Exempt Certificate

Schedule 3.3

   Jurisdictions of Organization and Qualification

Schedule 3.12

   Subsidiaries

Schedule 3.16

   Intellectual Property

Schedule 3.19(a)

   Location of Real Property

Schedule 3.19(b)

   Location of Collateral

Schedule 3.19(c)

   Chief Executive Offices

Schedule 3.22

   Labor Matters

Schedule 3.24

   Insurance

Schedule 3.29

   Directors; Capitalization

Schedule 4.1(a)

   Form of Lender Consent

Schedule 4.1(b)

   Form of Secretary’s Certificate

Schedule 4.1(i)

   Form of Solvency Certificate

Schedule 5.2(b)

   Form of Officer’s Compliance Certificate

Schedule 5.10

   Form of Joinder Agreement

Schedule 6.1(b)

   Indebtedness

Schedule 9.6(c)

   Form of Assignment Agreement

Schedule 9.19

   Non-Joint and Several Borrowers

 

v


AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 27, 2007, among GATEHOUSE MEDIA HOLDCO, INC., a Delaware corporation (“Holdco”), GATEHOUSE MEDIA OPERATING, INC., a Delaware corporation (the “Company”), GATEHOUSE MEDIA MASSACHUSETTS I, INC., a Delaware corporation (“GateHouse I”), GATEHOUSE MEDIA MASSACHUSETTS II, INC., a Delaware corporation (“GateHouse II”), and ENHE ACQUISITION, LLC, a Delaware limited liability company (“ENHE” and, together with GateHouse I and GateHouse II, collectively the “Subsidiary Borrowers” and individually a “Subsidiary Borrower”), each of those Domestic Subsidiaries of Holdco identified as a “Guarantor” on the signature pages hereto and such other Domestic Subsidiaries of Holdco as may from time to time become a party hereto (together with Holdco, collectively the “Guarantors” and individually a “Guarantor”), the several banks and other financial institutions from time to time parties to this Credit Agreement (collectively the “Lenders” and individually a “Lender”), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking associationGLEACHER PRODUCTS CORP., a Delaware corporation, as administrative agent for the Lenders hereunder (in such capacity, the “Administrative Agent” or the “Agent”).

W I T N E S S E T H:

WHEREAS, the Company has requested that the Lenders make loans and other financial accommodations to the Borrowers in the amount of up to $960,000,000, as more particularly described herein;

WHEREAS, the Lenders have agreed to make such loans and other financial accommodations to the Credit Parties on the terms and conditions contained herein; and

WHEREAS, this Credit Agreement shall amend and restate the Existing Credit Agreement (as defined below).

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, such parties hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1 Defined Terms.

As used in this Credit Agreement, terms defined in the preamble to this Credit Agreement have the meanings therein indicated, and the following terms have the following meanings:

ABR Default Rate” shall have the meaning set forth in Section 2.10.

 

61


Accessible Borrowing Availability” shall mean, as of any date of determination, the amount that the Borrowers are able to borrow on such date under the Revolving Committed Amount without a Default or Event of Default occurring or existing after giving pro forma effect to such borrowing.

Account Control Agreement” shall mean an agreement among a Credit Party, a depository institution or securities intermediary, and the Administrative Agent, which agreement is in a form acceptable to the Administrative Agent and which provides the Administrative Agent with “control” (as such term is used in Article 8 or Article 9 (as applicable) of the Uniform Commercial Code) over the deposit accounts or securities accounts described therein, as the same may be amended, restated, supplemented, extended, replaced or otherwise modified from time to time.

Account Designation Letter” shall mean the Account Designation Letter dated as of the Closing Date from the Company to the Administrative Agent in substantially the form attached hereto as Schedule 1.1(a).

Acquisition” shall mean the acquisition by the Company of the outstanding capital stock of the Acquired Company pursuant to the Acquisition Documents.

Acquired Company” shall mean SureWest Directories, a California corporation.

Acquisition Documents” shall mean (a) that certain Share Purchase Agreement, dated as of January 28, 2007 by and among the Parent, as the purchaser, the Acquired Company, and SureWest Communications, Inc., as the seller, and (b) any other material agreement, document, instrument or opinion executed in connection with the foregoing, in each case as amended, modified, extended, restated, replaced, or supplemented from time to time.

Add-On Term Loan” shall have the meaning set forth in Section 2.2(a).

Add-On Term Loan Commitment” shall mean, with respect to each Add-On Term Loan Lender, the commitment of such Add-On Term Loan Lender to make its portion of the Add-On Term Loan in a principal amount equal to such Add-On Term Loan Lender’s Add-On Term Loan Commitment Percentage of the Add-On Term Loan Committed Amount.

Add-On Term Loan Commitment Percentage” shall mean, for any Add-On Term Loan Lender, the percentage identified as its Add-On Term Loan Commitment Percentage in its Lender Commitment Letter or in the Register.

Add-On Term Loan Committed Amount” shall have the meaning set forth in Section 2.2(a).

Add-On Term Loan Lender” shall mean a Lender that makes an Add-On Term Loan.

Add-On Term Loan Note” or “Add-On Term Loan Notes” shall mean the promissory notes of the Company (if any) in favor of any of the Add-On Term Loan Lenders evidencing the portion of the Add-On Term Loan provided by any such Add-On Term Loan Lender pursuant to

 

62


Section 2.2(e), as such promissory notes may be amended, modified, restated, amended and restated, supplemented, extended, renewed or replaced from time to time.

Additional Credit Party” shall mean each Person that becomes a Guarantor by execution of a Joinder Agreement in accordance with Section 5.10.

Additional Term Loan” shall have the meaning set forth in Section 2.6.

Administrative Agent” or “Agent” shall have the meaning set forth in the first paragraph of this Credit Agreement and any successors in such capacity.

Administrative Details Form” shall mean, with respect to any Lender, a document containing such Lender’s contact information for purposes of notices provided under this Credit Agreement and account details for purposes of payments made to such Lender under this Credit Agreement.

Affected Lender” shall have the meaning set forth in Section 2.16.

Affiliate” shall mean, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise.

Agreement” or “Credit Agreement” shall mean this Credit Agreement, as amended, restated, amended and restated, modified or supplemented from time to time in accordance with its terms.

Alternate Base Rate” shall mean, 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%. For purposes hereof: “Prime Rate” shall mean, at any time, the rate of interest per annum publicly announced or otherwise identified from time to time by Wachovia at its principal office in Charlotte, North Carolina as its prime rate. The parties hereto acknowledge that the rate announced publicly by Wachovia as its Prime Rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other bankswhich is identified as the Prime Rate and normally published in the Money Rates section of The Wall Street Journal (or, if such rate ceases to be so published, as quoted from such other generally available and recognizable source as the Administrative Agent may select); and “Federal Funds Effective Rate” shall mean, 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 on the next succeeding Business Day, the average of the quotations for the day of such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it. If for any reason the Administrative Agent shall have determined (which determination shall be conclusive in the absence of manifest error) that it is unable to ascertain the Federal Funds Effective Rate including the inability or

 

63


ailure of the Administrative Agent to obtain sufficient quotations in accordance with the terms above, the Alternate Base Rate shall be determined without regard to clause (b) of the first sentence of this definition 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 on the opening of business on the date of such change.

Alternate Base Rate Loans” shall mean Loans that bear interest at an interest rate based on the Alternate Base Rate.

Applicable Percentage” shall mean, for any day, the following:

(a) (i) with respect to the Initial Term Loans and the Delayed Draw Term Loans, (A) 2.00% in the case of LIBOR Rate Loans and (B) 1.00% in the case of Alternate Base Rate Loans and (ii) with respect to the Add-On Term Loans, (A) if the corporate family ratings and the corporate credit ratings of the Company by Moody’s and S&P, respectively, as of such date are at least B1 and B+ (stable outlook), respectively (or the equivalent rating given by a successor rating agency chosen by the Company as set forth below), (y) 2.00% in the case of LIBOR Rate Loans and (z) 1.00% in the case of Alternate Base Rate Loans and (B) if the ratings condition set forth in clause (a)(ii)(A) is not met (including as a result of the Company not being rated), (y) 2.25% in the case of LIBOR Rate Loans and (z) 1.25% in the case of Alternate Base Rate Loans; and

(b) with respect to Revolving Loans and the Commitment Fee, the rate per annum set forth below opposite the applicable Level then in effect, it being understood that the Applicable Percentage for (i) Revolving Loans that are Alternate Base Rate Loans shall be the percentage set forth under the column “Revolving Loans” and “Base Rate Margin”, (ii) Revolving Loans that are LIBOR Rate Loans shall be the percentage set forth under the column “Revolving Loans” and “LIBOR Margin & L/C Fee” and (iii) the Commitment Fee shall be the percentage set forth under the column “Revolving Loans” and “Commitment Fee”:

Applicable Percentage

 

          Revolving Loans  

Level

  

Total

Leverage Ratio

   LIBOR
Margin

& L/C  Fee
    Base Rate
Margin
    Commitment
Fee
 

I

   > 5.50 to 1.0      2.00     1.00     0.500

II

   <5.50 to 1.0 but > 5.00 to 1.0      1.75     0.75     0.375

III

   < 5.00 to 1.0      1.50     0.50     0.250

For the purposes of calculating the Total Leverage Ratio for purposes of determining the Applicable Percentage only, Consolidated Indebtedness shall be calculated net of cash and Cash Equivalents of Holdco and its Restricted Subsidiaries if the total amount of such cash and Cash Equivalents exceeds $10,000,000; provided, however, the total amount of such cash and Cash

 

64


Equivalents deducted from Consolidated Indebtedness shall not exceed a total amount of $25,000,000. In the case of Revolving Loans and the Commitment Fee, the Applicable Percentage shall, in each case, be determined and adjusted quarterly on the date three (3) Business Days after the date on which the Administrative Agent has received from the Credit Parties the quarterly financial information (in the case of the first three fiscal quarters of the Company), the annual financial information (in the case of the fourth fiscal quarter of the Company) and the certifications required to be delivered to the Administrative Agent and the Lenders in accordance with the provisions of Sections 5.1(a), 5.1(b) and 5.2(b) (each an “Interest Determination Date”). Such Applicable Percentage shall be effective from such Interest Determination Date until the next such Interest Determination Date. After the Effective Date, if the Credit Parties shall fail to provide the financial information or certifications in accordance with the provisions of Sections 5.1(a), 5.1(b) and 5.2(b), the Applicable Percentage for Revolving Loans and the Commitment Fee shall, on the date three (3) Business Days after the date by which the Credit Parties were so required to provide such financial information or certifications to the Administrative Agent and the Lenders, be based on Level I until such time as such information or certifications are provided, whereupon the Level shall be determined by the then current Total Leverage Ratio. Notwithstanding the foregoing, the Applicable Percentage for Revolving Loans and the Commitment Fee shall be as set forth above opposite Level I until the Interest Determination Date occurring after the end of the first complete fiscal quarter after the Effective Date.

In the event that any financial statement, calculation or certification delivered pursuant to Section 5.1(a), 5.1(b) or 5.2(b) is shown to be inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Percentage for any period (an “Applicable Period”) than the Applicable Percentage applied for such Applicable Period, and only in such case, then the Company shall immediately (i) deliver to the Administrative Agent a corrected compliance certificate for such Applicable Period, (ii) determine the Applicable Percentage for such Applicable Period based upon the corrected financial statement, calculation or certificate, and (iii) immediately pay to the Agent the accrued additional interest owing as a result of such increased Applicable Percentage for such Applicable Period. It is acknowledged and agreed that nothing contained herein shall limit the rights of the Administrative Agent and Lenders with respect to Sections 2.10 and 7.1 and other of their respective rights under this Agreement.

In the case of the Add-On Term Loans, the Applicable Percentage shall be determined and adjusted on the Effective Date and on the date of any change in the corporate family ratings or the corporate credit ratings of the Company by Moody’s and S&P, respectively (or their successors). The Company shall promptly notify the Administrative Agent of any change in the corporate family ratings or the corporate credit ratings of the Company by Moody’s and S&P, respectively (or their successors). For purposes of determining the Applicable Percentage, to the extent that the corporate family ratings or the corporate credit ratings of the Company by Moody’s and S&P, respectively, are unavailable, the Company shall select a successor rating agency that is recognized by the Securities and Exchange Commission, subject to the reasonable approval of the Administrative Agent. Any reduction in the stated rate of interest on the Add-On Term Loan shall only require the written consent of each Lender holding a portion of the

 

65


outstanding Add-On Term Loan. Notwithstanding any of the foregoing, if the Applicable Percentage for any Additional Term Loan at any time is more than 0.25% higher than the Applicable Percentage for the Initial Term Loans, the Delayed Draw Term Loans and/or the Add-On Term Loans, as applicable, the Applicable Percentage for the Initial Term Loans, the Delayed Draw Term Loans and/or the Add-On Term Loans, as applicable, shall be automatically increased to be 0.25% less than the Applicable Percentage for such Additional Term Loan without any action or consent of any Credit Party, any Lender or the Administrative Agent, and any further reduction of the Applicable Percentage for the Add-On Term Loans contemplated above as a result of the corporate credit ratings and the corporate family ratings of the Company shall no longer apply.

Approved Fund” shall mean, with respect to any Lender, any fund or trust or entity that invests in commercial bank loans in the ordinary course and is advised or managed by (a) such Lender, (b) an Affiliate of such Lender, (c) any other Lender or any Affiliate thereof or (d) the same investment advisor as any Person described in clauses (a) – (c).

Arrangers” shall mean Wachovia Capital Markets, LLC, Goldman Sachs Credit Partners L.P., Morgan Stanley Senior Funding, Inc. and General Electric Capital Corporation, together with their respective successors and assigns.

Asset Disposition” shall mean the disposition of any or all of the assets (including, without limitation, the Capital Stock of a Subsidiary or any ownership interest in a joint venture) of any Credit Party or any Subsidiary whether by sale, lease, transfer or otherwise including, without limitation, any such transaction permitted by Section 6.12. The term “Asset Disposition” shall not include (a) the sale, lease or transfer of assets permitted by Subsections 6.4(a)(i) through (xiii), or (b) any Equity Issuance.

Assignment Agreement” shall mean an Assignment Agreement, in substantially the form of Schedule 9.6(c).

Attributable EBITDA” means, for any period and as to any assets or Subsidiaries of Holdco, that portion of Consolidated EBITDA that was produced by the business in which such assets were used or generated or the business conducted by such Subsidiary.

Attributable Revenues” shall mean, for any period and as to any assets or Subsidiaries of Holdco, that portion of the revenues of Holdco and its Restricted Subsidiaries that was earned by or derived from the business in which such assets were used or generated or the business conducted by such Subsidiary.

Bankruptcy Code” shall mean the Bankruptcy Code in Title 11 of the United States Code, as amended, modified, succeeded or replaced from time to time.

Bankruptcy Event” shall mean any of the events described in Section 7.1(e).

Borrowers” shall mean the Company and each Subsidiary Borrower, and “Borrower” shall mean any one of them.

 

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Borrowing Date” shall mean, in respect of any Loan, the date such Loan is made.

Business” shall have the meaning set forth in Section 3.10.

Business Day” shall mean a day other than a Saturday, Sunday or other day on which commercial banks in Charlotte, North Carolina or New York, New York are authorized or required by law to close; provided, however, that when used in connection with a rate determination, borrowing or payment in respect of a LIBOR Rate Loan, the term “Business Day” shall also exclude any day on which banks in London, England are not open for dealings in Dollar deposits in the London interbank market.

Capital Lease” shall mean any lease of property, real or personal, the obligations with respect to which are required to be capitalized on a balance sheet of the lessee in accordance with GAAP.

Capital Lease Obligations” shall mean the capitalized lease obligations relating to a Capital Lease determined in accordance with GAAP.

Capital Stock” shall mean (a) in the case of a corporation, capital stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether general or limited), (d) in the case of a limited liability company, membership interests and (e) 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, the issuing Person (excluding fees in the nature of brokers or finders fees).

Cash Equivalents” shall mean (a) marketable securities (i) issued or directly and unconditionally guaranteed as to interest and principal by the United States or (ii) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within one year after such date; (b) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within one year after such date and having, at the time of the acquisition thereof, the highest rating obtainable from either S&P or Moody’s; (c) commercial paper maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (d) certificates of deposit or bankers’ acceptances maturing within one year after such date and issued or accepted by any Lender or by any commercial bank organized under the laws of the United States or any state thereof or the District of Columbia that (i) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator) and (ii) has Tier 1 capital (as defined in such regulations) of not less than $100,000,000; and (e) shares of any money market mutual fund that (i) has at least 95% of its assets invested continuously in the types of investments referred to in clauses (a) and (b) above, (ii) has net assets of not less than $500,000,000, and (iii) has the highest rating obtainable from either S&P or Moody’s.

 

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Change of Control” shall mean the occurrence of one or more of the following events: (a) the Parent shall fail, directly or indirectly, to own and control 100% of the Capital Stock of Holdco, (b) Holdco shall fail, directly or indirectly, to own and control 100% of the Capital Stock of the Company, (c) any “person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) other than Fortress is or becomes the “beneficial owner” (as defined in Rule l3d-3 under the Securities Exchange Act of 1934) of 35% or more of the outstanding Voting Stock of the Parent and such percentage of the outstanding Voting Stock of the Parent is equal to or more than the Voting Stock then owned or controlled directly or indirectly by Fortress, or (d) any “Change of Control”, as defined in any document evidencing any Subordinated Debt.

Clearing Price” shall have the meaning set forth in the Offer Document.

Closing Date” shall mean the date of this Credit Agreement.

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

Collateral” shall mean a collective reference to the collateral which is identified in, and at any time will be covered by, the Security Documents and any other property or assets of a Credit Party, whether tangible or intangible and whether real or personal, that may from time to time secure the Credit Party Obligations.

Commitment” shall mean the Revolving Commitments, the LOC Commitments, the Initial Term Loan Commitments, the Add-On Term Loan Commitments, and the Delayed Draw Term Loan Commitments and the Swingline Commitments, individually or collectively, as appropriate.

Commitment Fee” shall have the meaning set forth in Section 2.7(a).

Commitment Percentage” shall mean the Revolving Commitment Percentage, the Initial Term Loan Commitment Percentage, the Add-On Term Loan Commitment Percentage and/or the Delayed Draw Term Loan Commitment Percentage, as appropriate.

Commitment Period” shall mean (a) with respect to Revolving Loans, the period from and including the Effective Date to but excluding the Revolver Maturity Date and (b) with respect to Letters of Credit, the period from and including the Effective Date to but excluding the date that is fifteen (15) days prior to the Revolver Maturity Date.

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

Company” shall have the meaning set forth in the first paragraph of this Credit Agreement.

 

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Company Assignment Agreement” shall mean, with respect to any assignment to the Company pursuant to Section 2.9(a)(ii) hereof, an Assignment Agreement substantially in the form of Schedule 2.9(a)(1), with such amendments or modifications as may be approved by the Administrative Agent and the Company.

Company Assignment Effective Date” shall have the meaning set forth in Section 2.9(a)(ii)(D).

Company Loan Purchase” shall mean any purchase of an Initial Term Loan, Add-On Term Loan or Delayed Draw Term Loan by the Company pursuant to Section 2.9(a)(ii).

Consolidated Capital Expenditures” shall mean, as of any date of determination for the four quarter period ending on such date, the sum of the aggregate of all expenditures (whether paid in cash or other consideration or accrued as a liability and including that portion of Capital Leases which is capitalized on the consolidated balance sheet of Holdco and its Restricted Subsidiaries) by Holdco and its Restricted Subsidiaries during that period that, in conformity with GAAP, are included in “additions to property, plant or equipment” or comparable items reflected in the consolidated statement of cash flows of Holdco and its Restricted Subsidiaries. Notwithstanding the foregoing, the term “Consolidated Capital Expenditures” shall not include (i) Permitted Acquisitions, (ii) the Acquisition, (iii) capital expenditures financed with the proceeds of equity contributions to Holdco and (iv) up to $150,000, in the aggregate, of capital expenditures incurred after the Effective Date in connection with the relocation of the corporate headquarters of Holdco and the Company to Rochester, New York. For purposes of determining Consolidated Fixed Charges, the Credit Parties may elect to exclude Non-Maintenance Capital Expenditures during any period from the calculation of Consolidated Capital Expenditures for such period, in an aggregate amount not to exceed $15,000,000 during the term of this Agreement. For purposes of this definition, the purchase price of equipment that is purchased simultaneously with the trade-in of existing equipment or with Net Cash Proceeds from Asset Dispositions or Recovery Events in accordance with the terms of Section 2.9(b)(iii) or (vi), respectively, shall be included in Consolidated Capital Expenditures only to the extent of the gross amount of such purchase price less the credit granted by the seller of such equipment for the equipment being traded in at such time or the amount of such Net Cash Proceeds, as the case may be.

Consolidated Cash Taxes” shall mean, as of any date of determination for the four quarter period ending on such date, the aggregate of all taxes based on income (including, without limitation, any federal, state, local and foreign taxes) actually paid by Holdco and its Restricted Subsidiaries on a consolidated basis during such period.

Consolidated EBITDA” shall mean, as of any date of determination for any period ending on such date, (a) Consolidated Net Income for such period plus (b) the sum of the following to the extent deducted in calculating Consolidated Net Income, without duplication: (i) Consolidated Interest Expense for such period, (ii) Consolidated Income Tax Expense for such period, (iii) depreciation and amortization expense of Holdco and its Restricted Subsidiaries for such period, (iv) all other non-cash items of Holdco and its Restricted Subsidiaries (other than any such non-cash item incurred in the ordinary course of business to the extent it represents

 

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an accrual of or reserve for cash expenditures in any future period) including, without limitation, non-cash items of Holdco and its Restricted Subsidiaries arising from changes in the values of the assets of any pension and post-retirement benefit plans; provided, that cash payments made in such period or in any future period in respect of such non-cash items (other than any such non-cash item incurred in the ordinary course of business to the extent it represents an accrual of or reserve for cash expenditures in any future period) shall be subtracted from Consolidated Net Income in calculating Consolidated EBITDA in the period when such payments are made, (v) fees, costs and expenses payable by Holdco or any of its Restricted Subsidiaries in connection with the Transactions not to exceed $6,000,000, (vi) any non-recurring out-of-pocket expenses or charges relating to any offering of Capital Stock of Holdco or any of its Restricted Subsidiaries or any direct or indirect parent corporation of Holdco, any Asset Sale, any Permitted Investment under clause (n) of the definition thereof, or Permitted Acquisitions made by Holdco or any of its Restricted Subsidiaries, or any Indebtedness incurred by Holdco or any of its Restricted Subsidiaries permitted to be incurred hereunder including any refinancing thereof (in each case in this clause (vi), whether or not successful), (vii) extraordinary losses and unusual or non-recurring charges, severance costs, relocation costs and curtailments or modifications to pension and post-retirement employee benefit plans, (viii) amounts charged in respect of discontinued operations or restructuring activities, (ix) losses from early extinguishments of Indebtedness or Hedging Agreements of Holdco or any of its Restricted Subsidiaries, (x) non-recurring fees, costs and expenses incurred prior to the date of this Agreement and set forth on Schedule 1.1(f), and (xi) non-recurring fees, costs and expenses in connection with the relocation of the corporate headquarters of Holdco and the Borrower to Rochester, New York in an aggregate amount not to exceed $150,000, plus (c) cost savings and adjustments for such period set forth on Schedule 1.1(d) minus (d) the sum of the following to the extent included in calculating Consolidated Net Income, without duplication: (i) non-cash charges of Holdco and its Restricted Subsidiaries previously added back to Consolidated Net Income in determining Consolidated EBITDA to the extent such non-cash charges have become cash charges during such period, (ii) any extraordinary and unusual or non-recurring gains and (iii) gains from early extinguishment of Indebtedness or Hedging Agreements of Holdco or any of its Restricted Subsidiaries. Notwithstanding the foregoing, (A) for purposes of calculating Consolidated EBITDA for any fiscal quarter ending prior to the Effective Date, Consolidated EBITDA for such fiscal quarter shall be the amount set forth on Schedule 1.1(f) and (B) for all purposes of calculating Consolidated EBITDA hereunder, the effects of purchase accounting with respect to the Acquired Company shall be ignored.

Consolidated Fixed Charges” shall mean, as of any date of determination for any period ending on such date, the sum of (a) Consolidated Interest Expense paid in cash during such period plus (b) Consolidated Scheduled Debt Payments for such period plus (c) Consolidated Cash Taxes for such period plus (d) Consolidated Capital Expenditures for such period plus (e) dividends paid by the Credit Parties (other than dividends paid to Holdco or a wholly-owned Restricted Subsidiary of Holdco that is a Credit Party), in each case for Holdco and its Restricted Subsidiaries on a consolidated basis. Notwithstanding the foregoing, for purposes of calculating Consolidated Fixed Charges for any fiscal quarter ending prior to the Effective Date, Consolidated Fixed Charges for such fiscal quarter shall be the amounts set forth on Schedule 1.1(e).

 

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Consolidated Income Tax Expense” shall mean, for any period, the income tax expense of Holdco and its Restricted Subsidiaries on a consolidated basis.

Consolidated Indebtedness” shall mean, on any date of calculation, the aggregate stated balance sheet amount of all Indebtedness (other than Indebtedness of the types set forth in clauses (c), (e), (g), (i), (j) (to the extent undrawn) and (k) of the definition thereof) of Holdco and its Restricted Subsidiaries on a consolidated basis.

Consolidated Interest Expense” shall mean, as of any date of determination for any period ending on such date, all interest expense (excluding amortization of debt discount and premium, but including the interest component under Capital Leases and synthetic leases, tax retention operating leases, off-balance sheet loans and similar off-balance sheet financing products) for such period of Holdco and its Restricted Subsidiaries on a consolidated basis. For purposes hereof, Consolidated Interest Expense for the first three complete fiscal quarters to occur after the Effective Date shall be determined by annualizing Consolidated Interest Expense such that for the first complete fiscal quarter to occur after the Effective Date such components would be multiplied by four (4), the first two complete fiscal quarters would be multiplied by two (2) and the first three fiscal quarters would be multiplied by one and one-third (1 1/3).

Consolidated Net Income” shall mean, as of any date of determination for any period ending on such date, the net income (or loss) of Holdco and its Restricted Subsidiaries on a consolidated basis for such period taken as a single accounting period; provided, that there shall be excluded (a) the income (or loss) of any Person (other than a Restricted Subsidiary of Holdco) in which any other Person (other than Holdco or any of its Restricted Subsidiaries) has a joint interest, except to the extent of the amount of dividends or other distributions actually paid to Holdco or any of its Restricted Subsidiaries by such Person during such period, (b) the income (or loss) of any Person accrued prior to the date it becomes a Restricted Subsidiary of Holdco or is merged into or consolidated with Holdco or any of its Restricted Subsidiaries or that Person’s assets are acquired by Holdco or any of its Restricted Subsidiaries, (c) the income of any Subsidiary (other than a Restricted Subsidiary) of Holdco to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary, (d) any after-tax gains or losses attributable to asset sales or returned surplus assets of any Plan, and (e) (to the extent not included in clauses (a) through (d) above) any net extraordinary gains or net extraordinary losses.

Consolidated Scheduled Debt Payments” shall mean, as of any date of determination for any period ending on such date, the sum of all scheduled payments of principal on Consolidated Indebtedness for such period (including the principal component of payments due on Capital Leases during the applicable period ending on such date); it being understood that Consolidated Scheduled Debt Payments shall not include optional prepayments or the mandatory prepayments required pursuant to Section 2.9.

Consolidated Working Capital” shall mean, as of any date of determination, the sum (which may be a negative number) of (a) the total assets of Holdco and its Restricted

 

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Subsidiaries on a consolidated basis which may properly be classified as current assets in conformity with GAAP, except cash and Cash Equivalents and the current portion of deferred tax assets, minus (b) the total liabilities of Holdco and its Restricted Subsidiaries on a consolidated basis which may properly be classified as current liabilities in conformity with GAAP, except the current portion of long-term debt and the current portion of deferred tax liabilities.

Consolidated Working Capital Adjustment” shall mean, as of any date of determination for any period ending on such date, on a consolidated basis, the amount (which may be a negative number) by which Consolidated Working Capital as of the beginning of such period exceeds (or is less than) Consolidated Working Capital as of the end of such period, adjusted to exclude the effects of (a) reclassification of (i) current assets or liabilities as deferred assets or liabilities or (ii) deferred assets or liabilities as current assets or liabilities and (b) acquisitions and divestitures.

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

Control Agent” shall mean Wachovia Bank, National AssociationGleacher Products Corp., in its capacity as control agent pursuant to the Security Agreement.

Copyright Licenses” shall mean any agreement, whether written or oral, providing for the grant by or to a Person of any right under any Copyright, including, without limitation, any thereof referred to in Schedule 3.16 to this Credit Agreement.

Copyrights” shall mean all copyrights of the Credit Parties and their Restricted Subsidiaries in all works, now existing or hereafter created or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Copyright Office or in any similar office or agency of the United States, any state thereof or any other country or any political subdivision thereof, or otherwise, including, without limitation, any thereof referred to in Schedule 3.16 and all renewals thereof.

Credit Documents” shall mean this Credit Agreement, each of the Notes, any Joinder Agreement, the Letters of Credit, LOC Documents and the Security Documents and all other agreements, documents, certificates and instruments delivered to the Administrative Agent or any Lender by any Credit Party in connection therewith (other than any agreement, document, certificate or instrument related to a Hedging Agreement).

Credit Parties” shall mean Holdco, the Borrowers and the Guarantors and “Credit Party” shall mean any one of the foregoing.

Credit Party Obligations” shall mean, without duplication, (a) all of the obligations, indebtedness and liabilities of the Credit Parties to the Lenders (including the Issuing Lender) and the Administrative Agent, whenever arising, under this Credit Agreement, the Notes or any of the other Credit Documents, including principal, interest, fees, reimbursements and indemnification obligations and other amounts (including, but not limited to, any interest

 

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accruing after the occurrence of a filing of a petition of bankruptcy under the Bankruptcy Code with respect to any Credit Party, regardless of whether such interest is an allowed claim under the Bankruptcy Code) and (b) all liabilities and obligations, whenever arising, owing from Holdco or any of its Restricted Subsidiaries to any Hedging Agreement Provider arising under any Secured Hedging Agreement.

Debt Issuance” shall mean the issuance of any Indebtedness by Holdco or any of its Restricted Subsidiaries (excluding any Equity Issuance or any Indebtedness of Holdco and its Restricted Subsidiaries permitted to be incurred pursuant to Section 6.1(b)(i)–(xi) hereof).

Default” shall mean any of the events specified in Section 7.1, whether or not any requirement for the giving of notice or the lapse of time, or both, or any other condition, has been satisfied.

Defaulting Lender” shall mean, at any time, any Lender that, at such time (a) has failed to make a Loan or fund a Participation Interest required pursuant to the terms of this Credit Agreement, (b) has failed to pay to the Administrative Agent or any Lender an amount owed by such Lender pursuant to the terms of this Credit Agreement and such default remains uncured, or (c) has been deemed insolvent or has become subject to a bankruptcy or insolvency proceeding or to a receiver, trustee or similar official.

“Delayed Draw Commitment Termination Date” shall mean the date that is six (6) months following the Effective Date.

Delayed Draw Funding Date” shall mean any Business Day occurring on or after the Effective Date but prior to the Delayed Draw Commitment Termination Date in which the Borrowers deliver a Notice of Borrowing in accordance with Section 2.3(b).

Delayed Draw Term Loan” shall have the meaning set forth in Section 2.3(a).

Delayed Draw Term Loan Commitment” shall mean, with respect to each Delayed Draw Term Loan Lender, the commitment of such Delayed Draw Term Loan Lender to make its portion of the Delayed Draw Term Loan in a principal amount equal to such Delayed Draw Term Loan Lender’s Delayed Draw Term Loan Commitment Percentage of the Delayed Draw Term Loan Committed Amount, as appropriate.

Delayed Draw Term Loan Commitment Percentage” shall mean, for any Delayed Draw Term Loan Lender, the percentage identified as its Delayed Draw Term Loan Commitment Percentage as specified in its Lender Commitment Letter or in the Assignment Agreement pursuant to which such Delayed Draw Term Loan Lender became a Lender hereunder, as such percentage may be modified in connection with any assignment made in accordance with the provisions of Section 9.6.

Delayed Draw Term Loan Committed Amount” shall have the meaning set forth in Section 2.3(a).

 

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Delayed Draw Term Loan Lender” shall mean, as of any date of determination, any Lender that holds a Delayed Draw Term Loan Commitment and/or a portion of the outstanding Delayed Draw Term Loan on such date.

Delayed Draw Term Note” or “Delayed Draw Term Notes” shall mean the promissory notes of the Company in favor of any of the Delayed Draw Term Loan Lenders evidencing the portion of the Delayed Draw Term Loan provided pursuant to Section 2.3(e), individually or collectively, as appropriate, as such promissory notes may be amended, modified, restated, supplemented, extended, renewed or replaced from time to time.

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

Domestic Lending Office” shall mean, initially, the office of each Lender designated as such Lender’s Domestic Lending Office shown in such Lender’s Administrative Details Form; and thereafter, such other office of such Lender as such Lender may from time to time specify to the Administrative Agent and the Company as the office of such Lender at which Alternate Base Rate Loans of such Lender are to be made.

Domestic Subsidiary” shall mean any Subsidiary that is organized and existing under the laws of the United States or any state or commonwealth thereof or under the laws of the District of Columbia.

Effective Date” shall mean the date upon which all the conditions precedent to funding under Article IV shall have been satisfied, and the initial Extensions of Credit are made hereunder, which in any event, shall occur no later than February 28, 2007.

Effective Date Material Adverse Change” shall have the meaning set forth in Section 4.1(r).

Eligible Assignee” means (i) any Lender, any Affiliate of any Lender and any Approved Fund of any Lender; and (ii) (a) a commercial bank organized under the laws of the United States or any state thereof; (b) a savings and loan association or savings bank organized under the laws of the United States or any state thereof; (c) a commercial bank organized under the laws of any other country or a political subdivision thereof; provided that (1) such bank is acting through a branch or agency located in the United States or (2) such bank is organized under the laws of a country that is a member of the Organization for Economic Cooperation and Development or a political subdivision of such country; (d) any other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act) that extends credit or buys loans in the ordinary course including insurance companies, mutual funds and lease financing companies; and (e) solely for purposes of any purchases of Term Loans in accordance with Section 2.9(a)(ii) of this Agreement, the Company; provided, other than as set forth in clause (e) of this definition, neither the Company nor any Subsidiary of the Company shall be an Eligible Assignee.

ENHE” shall have the meaning set forth in the first paragraph of this Credit Agreement.

 

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Environmental Laws” shall mean any and all applicable foreign, federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental Authority or other Requirement of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning protection of human health or the environment, as now or may at any time be in effect during the term of this Credit Agreement.

Equity Issuance” shall mean any issuance by the Parent, Holdco, any Borrower or any Restricted Subsidiary to any Person which is not a Credit Party of (a) shares of its Capital Stock, (b) any shares of its Capital Stock pursuant to the exercise of options or warrants, (c) any shares of its Capital Stock pursuant to the conversion of any debt securities to equity or (d) warrants or options that are exercisable for shares of its Capital Stock. The term “Equity Issuance” shall not include (i) any Capital Stock issuance constituting consideration for a Permitted Acquisition, (ii) proceeds of any Capital Stock which are used as consideration for such Permitted Acquisition, (iii) any Asset Disposition, (iv) any Debt Issuance, (v) any Capital Stock issued in connection with any exercise of any options or warrants by officers, directors and employees of the Parent, Holdco or any Restricted Subsidiary under any employee equity subscription agreement, stock option agreement or similar agreements or plans or (vi) any Capital Stock issued by a Subsidiary to its parent company.

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

Eurodollar Reserve Percentage” shall mean for any day, the percentage (expressed as a decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%) which is in effect for such day as prescribed by the Federal Reserve Board (or any successor) for determining the maximum reserve requirement (including without limitation any basic, supplemental or emergency reserves) in respect of Eurocurrency liabilities, as defined in Regulation D of such Board as in effect from time to time, or any similar category of liabilities for a member bank of the Federal Reserve System in New York City.

Event of Default” shall mean any of the events specified in Section 7.1; provided, however, that any requirement for the giving of notice or the lapse of time, or both, or any other condition, has been satisfied.

Excess Cash Flow” shall mean, with respect to any fiscal year period of Holdco and its Restricted Subsidiaries on a consolidated basis, an amount equal to (without duplication) (a) Consolidated EBITDA for such period plus/minus (b) the Consolidated Working Capital Adjustment for such period minus (c) Consolidated Capital Expenditures to the extent not financed through the incurrence of Indebtedness for such period minus (d) Consolidated Interest Expense for such period to the extent paid or payable in cash minus (e) Consolidated Cash Taxes paid during such period minus (f) Consolidated Scheduled Debt Payments and optional prepayments or mandatory prepayments of the Loans (excluding repayments of Revolving Loans except to the extent the Revolving Loan Committed Amount is permanently reduced in connection with such repayments) required pursuant to Section 2.9 made during such period minus (g) all expenses, fees, charges and amounts to the extent added back to Consolidated

 

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EBITDA minus (h) the purchase price paid in cash during such period with respect to Permitted Acquisitions to the extent not financed minus (i) cash dividends paid by the Credit Parties (other than dividends paid to Holdco or a wholly-owned Restricted Subsidiary of Holdco that is a Credit Party) to the extent permitted by Section 6.10 minus (j) cash payments made by the Credit Parties and their Restricted Subsidiaries in respect of Investments permitted pursuant to clause (j) of the definition of Permitted Investments, except for (i) Investments funded from the reinvestment of Net Cash Proceeds of Assets Dispositions or Recovery Events pursuant to Section 2.9(b)(iii)(B) and 2.9(b)(vi)(B) and (ii) Investments in Subsidiaries, minus (k) the aggregate net amount of non-cash gains and non-cash credits accrued by Holdco and its Restricted Subsidiaries during such fiscal year, to the extent included in Consolidated Net Income minus (l) any nonrecurring cash charges to the extent added back to Consolidated EBITDA minus (m) other cash capital expenditures set forth in clauses (iii) and (iv) of the definition of Consolidated Capital Expenditures.

Existing Credit Agreement” shall mean that certain First Lien Credit Agreement, dated as of June 6, 2006, as amended, by and among Holdco, the Company, GateHouse I (successor by merger to Gatehouse Media Massachusetts III, Inc., ENM, Inc. and ENM Merger Sub, Inc.), GateHouse II (successor by merger to Heritage Partners Media, Inc. and HPM Merger Sub, Inc.), ENHE, certain Domestic Subsidiaries of Holdco as guarantors, the lenders party thereto, and the Administrative Agent.

Existing Letter of Credit” shall mean each of the letters of credit described by date of issuance, amount, purpose and the date of expiry on Schedule 1.1(g) hereto.

Expiration Time” shall have the meaning set forth in the Offer Document.

Extension of Credit” shall mean, as to any Lender, the making of a Loan by such Lender or the issuance of, or participation in, a Letter of Credit by such Lender.

Federal Funds Effective Rate” shall have the meaning set forth in the definition of “Alternate Base Rate”.

Fee Letter” shall mean the letter agreement dated February 5, 2007,15, 2011, addressed to the Company from Wachovia, Wachovia Capital Markets, LLC, Goldman, Sachs Credit Partners, L.P. and Morgan Stanley Senior Funding, Inc.Gleacher, as amended, modified or otherwise supplemented.

Financial Covenant” shall mean the financial covenant set forth in Section 5.9.

First Amendment Effective Date” shall mean May 7, 2007.

Fixed Charge Coverage Ratio” shall mean, as of any date of determination, for Holdco and its Restricted Subsidiaries on a consolidated basis for the four consecutive quarters ending on or immediately prior to such date, the ratio of (i) Consolidated EBITDA for such four fiscal quarter period to (ii) Consolidated Fixed Charges for such four fiscal quarter period.

 

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Flow-Through Entity” shall mean any Person that is not treated as a separate tax paying entity for United States federal income tax purposes.

Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.

Fortress” shall mean Fortress Investment Group, LLC, or any one or more of its Affiliates, or any entity managed exclusively by Fortress Investment Group LLC, or one or more of its Affiliates.

GAAP” shall mean generally accepted accounting principles in effect in the United States of America applied on a consistent basis, subject, however, in the case of determination of compliance with the financial covenant set out in Section 5.9 to the provisions of Section 1.3.

GateHouse I” shall have the meaning set forth in the first paragraph of this Credit Agreement.

GateHouse II” shall have the meaning set forth in the first paragraph of this Credit Agreement.

Gleacher shall mean Gleacher Products Corp., a Delaware corporation, together with its successors and assigns.

Governing Body” shall mean the board of directors or other body having the power to direct or cause the direction of the management and policies of a Person that is a corporation, partnership, trust or limited liability company.

Government Acts” shall have the meaning set forth in Section 2.20.

Governmental Approvals” shall mean all authorizations, consents, approvals, permits, licenses and exemptions of, registrations and filings with, and reports to, all Governmental Authorities.

Governmental Authority” shall mean any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

Guarantor” shall have the meaning set forth in the first paragraph of this Credit Agreement.

Guaranty” shall mean the guaranty of the Credit Parties set forth in Article X.

Guaranty Obligations” shall mean, with respect to any Person, without duplication, any obligations of such Person (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) guaranteeing or intended to guarantee any Indebtedness of any other Person in any manner, whether direct or indirect, and including without limitation any obligation, whether or not contingent, (i) to purchase any such Indebtedness or any property constituting security therefor, (ii) to advance or provide funds or other support for the payment or

 

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purchase of any such Indebtedness or to maintain working capital, solvency or other balance sheet condition of such other Person (including without limitation keep well agreements, maintenance agreements, comfort letters or similar agreements or arrangements) for the benefit of any holder of Indebtedness of such other Person, (iii) to lease or purchase property, securities or services primarily for the purpose of assuring the holder of such Indebtedness, or (iv) to otherwise assure or hold harmless the holder of such Indebtedness against loss in respect thereof. The amount of any Guaranty Obligation hereunder shall (subject to any limitations set forth therein) be deemed to be an amount equal to the outstanding principal amount (or maximum principal amount, if larger) of the Indebtedness in respect of which such Guaranty Obligation is made.

Hedging Agreement Provider” shall mean (a) with respect to the Hedging Agreements entered into between the Company and Goldman Sachs Capital Markets, L.P. as of May 10, 2006 and May 30, 2006, Goldman Sachs Capital Markets, L.P., and (b) with respect to any other Hedging Agreement that is permitted by Section 6.1(b)(iii) (including Secured Hedging Agreements outstanding as of the Effective Date), any Person that is party to a Secured Hedging Agreement with a Credit Party or any of its Restricted Subsidiaries to the extent such Person is (i) the Administrative Agent, (ii) an Arranger, (iii) a Lender, (iv) an Affiliate of the Administrative Agent, an Arranger or a Lender or (v) any other Person that was the Administrative Agent, an Arranger or a Lender (or an Affiliate of any such Person) at any time such Secured Hedging Agreement was outstanding but has ceased to be the Administrative Agent, an Arranger or a Lender (or whose Affiliate has ceased to be the Administrative Agent, an Arranger or a Lender) under the Credit Agreement.

Hedging Agreements” shall mean, with respect to any Person, any agreement entered into to protect such Person against fluctuations in interest rates, or currency or raw materials values, including, without limitation, any interest rate swap, cap or collar agreement or similar arrangement between such Person and one or more counterparties, any foreign currency exchange agreement, currency protection agreements, commodity purchase or option agreements or other interest or exchange rate hedging agreements.

Holdco” shall have the meaning set forth in the first paragraph of this Credit Agreement.

Incurrence Test” shall mean, with respect to any incurrence of Indebtedness, any payment or any other event as the context may require, the requirement that the Total Leverage Ratio, after giving effect to such Indebtedness, payment or event on a Pro Forma Basis, shall be less than 6.5 to 1.0.

Indebtedness” shall mean, with respect to any Person, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (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 of such Person incurred, issued or assumed as the deferred purchase price of property or services purchased by such Person, which purchase price is (i) due more than six months after the incurrence of the obligation in respect thereof or (ii) evidenced by note or similar written instrument thereof, (e) all obligations of such Person under

 

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take-or-pay or similar arrangements or under commodities agreements, (f) all Indebtedness of others secured by any Lien on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (g) all Guaranty Obligations of such Person with respect to Indebtedness of another Person, (h) the principal portion of all Capital Lease Obligations of such Person, (i) all obligations of such Person under Hedging Agreements, excluding any portion thereof which would be accounted for as interest expense under GAAP, (j) the maximum amount of all letters of credit issued or bankers’ acceptances facilities created for the account of such Person and, without duplication, all drafts drawn thereunder (to the extent unreimbursed), (k) all preferred Capital Stock issued by such Person and which by the terms thereof could be (at the request of the holders thereof or otherwise) subject to mandatory sinking fund payments, redemption or other acceleration, (l) the principal balance outstanding under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product and (m) the attributable portion of any Indebtedness of any partnership or unincorporated joint venture in which such Person is a general partner or a joint venturer, except to the extent such Indebtedness is expressly non-recourse to such Person.

Initial Term Loan” shall have the meaning set forth in Section 2.2(a).

Initial Term Loan Commitment” shall mean, with respect to each Initial Term Loan Lender, the commitment of such Initial Term Loan Lender to make its portion of the Initial Term Loan in a principal amount equal to such Initial Term Loan Lender’s Initial Term Loan Commitment Percentage of the Initial Term Loan Committed Amount.

Initial Term Loan Commitment Percentage” shall mean, for any Initial Term Loan Lender, the percentage identified as its Initial Term Loan Commitment Percentage in its Lender Commitment Letter.

Initial Term Loan Committed Amount” shall have the meaning set forth in Section 2.2(a).

Initial Term Loan Lender” shall mean a Lender holding an Initial Term Loan Commitment or a portion of the outstanding Initial Term Loan.

Initial Term Loan Note” or “Initial Term Loan Notes” shall mean the promissory notes of the Company (if any) in favor of any of the Initial Term Loan Lenders evidencing the portion of the Initial Term Loan provided by any such Initial Term Loan Lender pursuant to Section 2.2(a), as such promissory notes may be amended, modified, restated, amended and restated, supplemented, extended, renewed or replaced from time to time.

Insolvency” shall mean, with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of such term as used in Section 4245 of ERISA.

Intellectual Property” shall mean the Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses of the Credit Parties and their Restricted Subsidiaries, all goodwill associated therewith and all rights to sue for infringement thereof.

 

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Interest Payment Date” shall mean (a) as to any Alternate Base Rate Loan, the last day of each March, June, September and December and on the applicable Maturity Date, (b) as to any LIBOR Rate Loan having an Interest Period of three months or less, the last day of such Interest Period, (c) as to any LIBOR Rate Loan having an Interest Period longer than three months, (i) each three (3) month anniversary following the first day of such Interest Period and (ii) the last day of such Interest Period and (d) as to any Loan which is the subject of a mandatory prepayment required pursuant to Section 2.9(b), the date on which such mandatory prepayment is due.

Interest Period” shall mean, with respect to any LIBOR Rate Loan,

(a) initially, the period commencing on the Borrowing Date or conversion date, as the case may be, with respect to such LIBOR Rate Loan and ending one, two, three or six months thereafter (or, if available to all applicable Lenders, nine or twelve months thereafter), as selected by the Company in the Notice of Borrowing or Notice of Conversion given with respect thereto; and

(b) thereafter, each period commencing on the last day of the immediately preceding Interest Period applicable to such LIBOR Rate Loan and ending one, two, three or six months thereafter (or, if available to all applicable Lenders, nine or twelve months thereafter), as selected by the Company by irrevocable notice to the Administrative Agent not less than three (3) Business Days prior to the last day of the then current Interest Period with respect thereto; provided that the foregoing provisions are subject to the following:

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

(ii) any Interest Period pertaining to a LIBOR Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the relevant calendar month;

(iii) if the Company shall fail to give notice as provided above, the Company shall be deemed to have selected an Alternate Base Rate Loan to replace the affected LIBOR Rate Loan;

(iv) no Interest Period in respect of any Loan shall extend beyond the applicable Maturity Date and, further with regard to the Term Loans, no Interest Period shall extend beyond any principal amortization payment date with respect to such Term Loan unless the portion of such Term Loan consisting of Alternate Base Rate Loans together with the portion of such Term Loan consisting of LIBOR Rate Loans with Interest Periods expiring prior to or concurrently with the

 

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date such principal amortization payment date is due, is at least equal to the amount of such principal amortization payment due on such date; and

(v) no more than eight (8) LIBOR Rate Loans may be in effect at any time. For purposes hereof, LIBOR Rate Loans with different Interest Periods shall be considered as separate LIBOR Rate Loans, even if they shall begin on the same date, although borrowings, extensions and conversions may, in accordance with the provisions hereof, be combined at the end of existing Interest Periods to constitute a new LIBOR Rate Loan with a single Interest Period.

Investment” shall mean (a) the acquisition (whether for cash, property, services, assumption of Indebtedness, securities or otherwise) of shares of Capital Stock, other ownership interests or other securities of any Person or bonds, notes, debentures or all or substantially all of the assets of any Person or (b) any deposit with, or advance, loan or other extension of credit to, any Person (other than deposits made in the ordinary course of business) or (c) any other capital contribution to or investment in any Person, including, without limitation, any Guaranty Obligation (including any support for a letter of credit issued on behalf of such Person) incurred for the benefit of such Person.

Issuing Lender” shall mean Wachovia or any successor in such capacity.

Issuing Lender Fees” shall have the meaning set forth in Section 2.7(c).

Joinder Agreement” shall mean a Joinder Agreement in substantially the form of Schedule 5.10, executed and delivered by an Additional Credit Party in accordance with the provisions of Section 5.10.

Lender” shall have the meaning set forth in the first paragraph of this Credit Agreement and shall include the Issuing Lender and the Swingline Lender.

Lender Commitment Letter” shall mean, with respect to any Lender, the letter (or other correspondence) to such Lender from the Administrative Agent notifying such Lender of its LOC Commitment, Revolving Commitment Percentage, Initial Term Loan Commitment Percentage, Add-On Term Loan Commitment Percentage and/or Delayed Draw Term Loan Commitment Percentage.

Lender Percentage shall mean, for each Lender as of any date of determination, the percentage obtained by dividing (a)(i) the sum of such Lenders outstanding Revolving Commitments, Initial Term Loan, Add-On Term Loan and Delayed Draw Term Loan Commitments (to the extent such Delayed Draw Term Loan Commitments have not been funded and remain in effect) and outstanding Delayed Draw Term Loan, (ii) if the Revolving Commitments have been terminated, the sum of such Lenders outstanding Loans and Delayed Draw Term Loan Commitments (to the extent such Delayed Draw Term Loan Commitments have not been funded and remain in effect) or (iii) if all Commitments have been terminated, such Lenders outstanding Loans by (b)(i) the aggregate of the outstanding Revolving Commitments, Initial Term Loan, Add-On Term Loan and Delayed Draw Term Loan

 

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Commitments (to the extent such Delayed Draw Term Loan Commitments have not been funded and remain in effect) and the outstanding Delayed Draw Term Loan, (ii) if the Revolving Commitments have been terminated, the aggregate of the outstanding Loans, and Delayed Draw Term Loan Commitments (to the extent such Delayed Draw Term Loan Commitments have not been funded and remain in effect) or (iii) if all Commitments have been terminated, the outstanding Loans.

Letters of Credit” shall mean (a) any letter of credit issued by the Issuing Lender pursuant to the terms hereof and (b) any Existing Letter of Credit, in each case as such letter of credit may be amended, modified, extended, renewed or replaced from time to time.

Letter of Credit Facing Fee” shall have the meaning set forth in Section 2.7(c).

Letter of Credit Fee” shall have the meaning set forth in Section 2.7(b).

LIBOR” shall mean, for any LIBOR Rate Loan for any Interest Period therefor, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on TelerateReuters Page 3750LIBOR01 (or any successor page) as the London interbank offered rate for deposits in Dollars at approximately 11:00 A.M. (London time) two (2) Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period. If for any reason such rate is not available, the term LIBOR shall mean, for any LIBOR Rate Loan for any Interest Period therefor, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London interbank offered rate for deposits in Dollars at approximately 11:00 A.M. (London time) two (2) Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period; provided, however, if more than one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of all such rates (rounded upwards, if necessary, to the nearest 1/100 of 1%). If, for any reason, neither of such rates is available, then “LIBOR” shall mean the rate per annum at which, as determined by the Administrative Agent, Dollars in an amount comparable to the Loans then requested are being offered to leading banks at approximately 11:00 A.M. London time, two (2) Business Days prior to the commencement of the applicable Interest Period for settlement in immediately available funds by leading banks in the London interbank market for a period equal to the Interest Period selected.

LIBOR Lending Office” shall mean, initially, the office of each Lender designated as such Lender’s LIBOR Lending Office in such Lender’s Administrative Details Form; and thereafter, such other office of such Lender as such Lender may from time to time specify to the Administrative Agent and the Company as the office of such Lender at which the LIBOR Rate Loans of such Lender are to be made.

LIBOR Rate” shall mean a rate per annum (rounded upwards, if necessary, to the next higher 1/100th of 1%) determined by the Administrative Agent pursuant to the following formula:

 

LIBOR Rate =                            LIBOR             
   1.00 - Eurodollar Reserve Percentage

 

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LIBOR Rate Loan” shall mean Loans the rate of interest applicable to which is based on the LIBOR Rate.

Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement and any Capital Lease having substantially the same economic effect as any of the foregoing).

Loan” shall mean a Revolving Loan, the Initial Term Loan, the Add-On Term Loan and/or the Delayed Draw Term Loan and/or a Swingline Loan, as appropriate.

LOC Commitment” shall mean the commitment of the Issuing Lender to issue Letters of Credit and with respect to each Revolving Lender, the commitment of such Revolving Lender to purchase participation interests in the Letters of Credit up to such Lender’s LOC Committed Amount as specified in the Lender Commitment Letter or in the Register, as such amount may be reduced from time to time in accordance with the provisions hereof.

LOC Committed Amount” shall have the meaning set forth in Section 2.4(a).

LOC Documents” shall mean, with respect to any Letter of Credit, such Letter of Credit, any amendments thereto, any documents delivered in connection therewith, any application therefor, and any agreements, instruments, guarantees or other documents (whether general in application or applicable only to such Letter of Credit) governing or providing for (a) the rights and obligations of the parties concerned or (b) any collateral security for such obligations.

LOC Obligations” shall mean, at any time, the sum of (i) the maximum amount which is, or at any time thereafter may become, available to be drawn under Letters of Credit then outstanding, assuming compliance with all requirements for drawings referred to in such Letters of Credit plus (ii) the aggregate amount of all drawings under Letters of Credit honored by the Issuing Lender but not theretofore reimbursed.

Mandatory LOC Borrowing” shall have the meaning set forth in Section 2.4(e).

Mandatory Swingline Borrowing” shall have the meaning set forth in Section 2.5(b)(ii).

Massachusetts Acquisitions” shall mean the acquisitions of all of the equity interests of Enterprise NewsMedia, LLC and certain of its subsidiaries and Affiliates and substantially all the assets of CP Media, Inc.

Material Adverse Effect” shall mean a material adverse effect on (a) business, operations, property, assets or financial condition of Holdco and its Restricted Subsidiaries taken as a whole or (b) the validity or enforceability against any Credit Party of this Credit Agreement, any of the Notes or any of the other Credit Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder.

 

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Material Contract” shall mean any contract, license, covenant or other arrangement to which Holdco or any of its Restricted Subsidiaries is a party (other than the Credit Documents) and of which breach, nonperformance, cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect.

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

Maturity Date” shall mean the Revolver Maturity Date or the Term Loan Maturity Date, as applicable.

Maximum Offer Amount” shall have the meaning set forth in the Offer Document.

Maximum Permitted Offer” shall have the meaning set forth in Section 2.9(a)(ii)(A).

Maximum Purchase Price” shall have the meaning set forth in the Offer Document.

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

Mortgage Instrument” shall mean any mortgage, deed of trust or deed to secure debt executed by a Credit Party in favor of the Administrative Agent pursuant to the terms of Section 4.1(e), 5.10 or 5.12, as the same may be amended, modified, restated or supplemented from time to time.

Mortgaged Property” shall mean any owned or leased real property of a Credit Party with respect to which such Credit Party executes a Mortgage Instrument in favor of the Administrative Agent.

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

Net Cash Proceeds” shall mean the aggregate cash proceeds received by any Credit Party or any Restricted Subsidiary in respect of any Asset Disposition, Equity Issuance, Debt Issuance or Recovery Event, net of (a) bona fide direct costs paid or payable (including, without limitation, legal, accounting and investment banking fees, and sales commissions) associated therewith, (b) amounts held in escrow to be applied as part of the purchase price of any Asset Disposition, (c) taxes paid or payable as a result thereof, (d) a reasonable reserve for any indemnification payments (fixed or contingent) attributable to seller’s indemnities and representations and warranties to purchaser in respect of an Asset Disposition (it being understood such amounts held in reserve shall constitute Net Cash Proceeds upon the release of such indemnification liabilities) and (e) the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness (other than the Loans) that is (i) secured by a Lien on the stock or assets in question and that is required to be repaid under the terms thereof as a result of

 

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any such Asset Disposition or Recovery Event and (ii) actually paid at the time of receipt of such cash payment to a Person that is not a Credit Party; it being understood that “Net Cash Proceeds” shall include, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received by any Credit Party or any Restricted Subsidiary in any Asset Disposition, Equity Issuance, Debt Issuance or Recovery Event and any cash released from escrow as part of the purchase price in connection with any Asset Disposition. Notwithstanding the foregoing, Net Cash Proceeds shall not include proceeds of an Asset Disposition or Recovery Event to the extent the amount of such proceeds is equal to or less than $2,000,000.

Non-Maintenance Capital Expenditures” shall mean non-recurring capital expenditures not incurred for the maintenance, repair, restoration or refurbishment of existing assets of Holdco and its Restricted Subsidiaries.

Note” or “Notes” shall mean the Revolving Notes, the Initial Term Loan Notes, the Add-On Term Loan Notes, and/or the Delayed Draw Term Loan Notes and/or the Swingline Notes, collectively, separately or individually, as appropriate.

Notice of Borrowing” shall mean a request for a Revolving Loan borrowing pursuant to Section 2.1(b)(i), a request for a Delayed Draw Term Loan pursuant to Section 2.3(b)(i) or a request for a Swingline Loan borrowing pursuant to Section 2.5(b)(i), as appropriate. A Form of Notice of Borrowing is attached as Schedule 2.1(b)(i).

Notice of Conversion/Extension” shall mean the written notice of conversion of a LIBOR Rate Loan to an Alternate Base Rate Loan or an Alternate Base Rate Loan to a LIBOR Rate Loan, or extension of a LIBOR Rate Loan, in each case substantially in the form of Schedule 2.11.

Obligations” shall mean, collectively, Loans and LOC Obligations and all other obligations of the Credit Parties to the Administrative Agent and the Lenders under the Credit Documents.

OFAC” shall mean the U.S. Department of the Treasury’s Office of Foreign Assets Control.

Offer” shall have the meaning set forth in Section 2.9(a)(ii)(A).

Offer Document” shall mean a Notice of an Offer to Purchase by the Company, together with all attachments thereto, all in the form of Schedule 2.9(a)(2), as the same may be amended or modified from time to time.

Operating Lease” shall mean, as applied to any Person, any lease (including, without limitation, leases which may be terminated by the lessee at any time) of any property (whether real, personal or mixed) which is not a Capital Lease other than any such lease in which that Person is the lessor.

Parent” shall mean GateHouse Media, Inc., a Delaware corporation.

 

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Parent Acquisition Facilities” shall mean the credit facilities that the Parent may enter into from time to time to obtain financing for acquisitions by the Parent or any of the Credit Parties.

Partially-Owned Subsidiary” means any Subsidiary incorporated or organized in the United States of America for which less than 100% but more than 50% of the outstanding Capital Stock is beneficially owned solely by Holdco or a wholly-owned Subsidiary of Holdco.

Participant” shall have the meaning set forth in Section 9.6(b).

Participation Interest” shall mean a participation interest purchased by a Revolving Lender in LOC Obligations as provided in Section 2.4(c) and in Swingline Loans as provided in Section 2.5..

Patent Licenses” shall mean all agreements, whether written or oral, providing for the grant by or to a Person of any right to manufacture, use or sell any invention covered by a Patent, including, without limitation, any thereof referred to in Schedule 3.16 to the Credit Agreement.

Patents” shall mean (i) all letters patent of the United States or any other country, now existing or hereafter arising, and all improvement patents, reissues, reexaminations, patents of additions, renewals and extensions thereof, including, without limitation, any thereof referred to in Schedule 3.16 to this Credit Agreement, and (ii) all applications for letters patent of the United States or any other country, now existing or hereafter arising, and all provisionals, divisions, continuations and continuations-in-part and substitutes thereof, including, without limitation, any thereof referred to in Schedule 3.16 to this Credit Agreement, in each case of the Credit Parties and their Restricted Subsidiaries.

PBGC” shall mean the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA.

Permitted Acquisition” shall mean an acquisition or any series of related acquisitions by a Credit Party of (a) all or substantially all of the assets or a majority of the Voting Stock of a Person, (b) a Person by a merger, amalgamation or consolidation or any other combination with such Person or (c) any division, line of business or other business unit of a Person (such Person or such division, line of business or other business unit of such Person shall be referred to herein as the “Target”), in each case that is a type of business (or assets used in a type of business) permitted to be engaged in by the Credit Parties and their Restricted Subsidiaries pursuant to Section 6.3, so long as (i) no Default or Event of Default shall then exist or would exist after giving effect thereto, (ii) the Credit Parties shall have delivered to the Administrative Agent (A) at least five (5) Business Days prior to the consummation of the proposed acquisition, a Compliance Certificate evidencing compliance on a Pro Forma Basis with Section 5.9, together with all relevant financial information with respect to such acquired assets or acquired Target, including the aggregate consideration for such acquisition and any other information required to demonstrate compliance with Section 5.9; provided, however, the Credit Parties shall not be required to show compliance with Section 5.9 to the extent that, immediately prior to and immediately after giving effect to such Permitted Acquisition, there are no outstanding

 

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Extensions of Credit under the Revolving Facility, Swingline Loans or Letters of Credit, (iii) unless the Target shall be designated by the Company as an Unrestricted Subsidiary in compliance with the definition thereof, the Administrative Agent, on behalf of the Lenders, shall have received (or shall receive in connection with the closing of such acquisition) a first priority perfected security interest in all property (including, without limitation, Capital Stock) acquired with respect to the Target in accordance with the terms of Sections 5.10 and 5.12 and the Target, if a Person, shall have executed a Joinder Agreement in accordance with the terms of Section 5.10, (iv) such acquisition shall not be a “hostile” acquisition and shall have been approved by the Governing Body and/or shareholders of the applicable Credit Party and the Target, and (v) after giving effect to such acquisition, there shall be at least $5,000,000 of Accessible Borrowing Availability under the Revolving Committed Amount.

Permitted Investments” shall mean:

(a) cash and Cash Equivalents;

(b) Investments set forth on Schedule 1.1(b);

(c) receivables owing to the Credit Parties or any of their Restricted Subsidiaries or any receivables and advances to suppliers, in each case if created, acquired or made in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;

(d) Investments in and loans to any Credit Party;

(e) loans and advances to officers, directors and employees in an aggregate amount not to exceed $3,000,000 at any time outstanding; provided that such loans and advances shall comply with all applicable Requirements of Law;

(f) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;

(g) Investments, acquisitions or transactions permitted under Section 6.4(b) (including any Investments owned by a Person acquired in a Permitted Acquisition);

(h) Hedging Agreements to the extent permitted hereunder;

(i) capital expenditures to the extent permitted hereunder;

(j) Investments in promissory notes and other non-cash consideration received in connection with any Asset Disposition permitted by Section 6.4(a);

 

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(k) Investments in securities in connection with the satisfaction or enforcement of Indebtedness or claims due or owing to Holdco or any of its Restricted Subsidiaries or as security for any such Indebtedness or claim;

(l) loans and advances to Parent (or any direct or indirect parent thereof) in lieu of, and not in excess of the amount of (after giving effect to any other loans, advances or Restricted Payments in respect thereof), Restricted Payments to the extent permitted to be made to Parent (or such parent) in accordance with Section 6.10;

(m) loans to Partially-Owned Subsidiaries and Unrestricted Subsidiaries if (i) (A) a security interest in such loans has been granted to the Administrative Agent for the benefit of the Lenders and (B) if such loans are evidenced by a promissory note or other instrument, such promissory note or instrument has been pledged to the Administrative Agent pursuant to the Security Documents, (ii) after giving effect to such loan, no Event of Default has occurred and is continuing and (iii) the aggregate Unrecovered Investments to all Partially-Owned Subsidiaries and Unrestricted Subsidiaries does not exceed the sum of (the “Adjusted Investment Amount”): (A) $35,000,000 plus (B) 50% of the aggregate amount of capital contributions received by Holdco after the Effective Date (excluding (y) any Specified Equity Contribution and (z) any other proceeds that are used to fund Permitted Acquisitions or capital expenditures); and

(n) other Investments in an aggregate amount not to exceed the Adjusted Investment Amount less Unrecovered Investments to Partially-Owned Subsidiaries and Unrestricted Subsidiaries made pursuant to clause (m) above.

Permitted Liens” shall mean:

(a) Liens created by or otherwise existing under or in connection with this Credit Agreement or the other Credit Documents in favor of the Administrative Agent on behalf of the Secured Parties;

(b) Liens in favor of a Hedging Agreement Provider in connection with a Secured Hedging Agreement; provided that such Liens shall secure the Credit Party Obligations and the obligations under such Secured Hedging Agreement on a pari passu basis;

(c) Liens securing purchase money indebtedness and Capital Lease Obligations (and refinancings thereof) up to an aggregate amount not to exceed $30,000,000; provided, that (i) any such Lien attaches to such property concurrently with or within thirty (30) days after the acquisition thereof, (ii) such Lien attaches solely to the property so acquired in such transaction and (iii) such Lien secures only those obligations that it secures on the date of such acquisition or the date such Person becomes a restricted Subsidiary and any Permitted Refinancing thereof;

(d) Liens for taxes, assessments, charges or other governmental levies the payment of which is not at the time required by Section 5.3;

 

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(e) statutory Liens such as carriers’, warehousemen’s, mechanics’, materialmen’s, landlords’, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than ninety (90) days or which are being contested in good faith by appropriate proceedings; provided that a reserve or other appropriate provision shall have been made therefor;

(f) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;

(g) deposits to secure the performance of bids, tenders, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;

(h) easements, rights of way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;

(i) any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this definition (other than Liens set forth on Schedule 1.1(c)); provided that such extension, renewal or replacement Lien shall be limited to all or a part of the property which secured the Lien so extended, renewed or replaced (plus improvements on such property);

(j) Liens existing on the Effective Date and set forth on Schedule 1.1(c); provided that (i) no such Lien shall at any time be extended to cover property or assets other than the property or assets subject thereto on the Effective Date and improvements thereon and (ii) the principal amount of the Indebtedness secured by such Lien shall not be extended, renewed, refunded or refinanced;

(k) Liens arising in the ordinary course of business by virtue of any contractual, statutory or common law provision relating to banker’s Liens, rights of set-off or similar rights and remedies covering deposit or securities accounts (including funds or other assets credited thereto) or other funds maintained with a depository institution or securities intermediary;

(l) any zoning, building or similar laws or rights reserved to or vested in any Governmental Authority;

(m) restrictions on transfers of securities imposed by applicable securities laws or agreement (other than Capital Stock of a Subsidiary pledged pursuant to the Pledge Agreement);

 

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(n) Liens arising out of judgments or awards not resulting in an Event of Default; provided that the applicable Credit Party or Restricted Subsidiary shall in good faith be prosecuting an appeal or proceedings for review;

(o) Liens on the property of a Person existing at the time such Person becomes a Restricted Subsidiary of a Credit Party in a transaction permitted hereunder; provided, however, that any such Lien may not extend to any other property of any Credit Party or any other Restricted Subsidiary that is not a Subsidiary of such Person; provided, further, that any such Lien was not created in anticipation of or in connection with the transaction or series of transactions pursuant to which such Person became a Restricted Subsidiary of a Credit Party;

(p) any interest or title of a lessor, licensor or sublessor under any lease, license or sublease entered into by any Credit Party or any Restricted Subsidiary thereof in the ordinary course of its business and covering only the assets so leased, licensed or subleased;

(q) assignments of insurance or condemnation proceeds provided to landlords (or their mortgagees) pursuant to the terms of any lease and Liens or rights reserved in any lease for rent or for compliance with the terms of such lease;

(r) Liens arising from filing UCC financing statements relating solely to leases not prohibited hereunder;

(s) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;

(t) licenses (with respect to Intellectual Property and other property), leases or subleases granted to third parties to the extent permitted by the applicable terms of the Security Documents and not interfering in any material respect with the ordinary conduct of the business of Holdco or any of its Restricted Subsidiaries or resulting in a material diminution in the value of the collateral so licensed, leased or subleased;

(u) Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar agreements entered into in the ordinary course of business of Holdco and its Restricted Subsidiaries; and

(v) additional Liens so long as the principal amount of Indebtedness and other obligations secured thereby does not exceed $10,000,000 in the aggregate at any one time outstanding.

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

 

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Plan” shall mean, as of any date of determination, any employee benefit plan which is covered by Title IV of ERISA and in respect of which any Credit Party or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

Pledge Agreement” shall mean the Amended and Restated Pledge Agreement dated as of the Effective Date executed by the Credit Parties in favor of the Administrative Agent, for the benefit of the Secured Parties, as the same may from time to time be amended, restated, amended and restated, supplemented or otherwise modified in accordance with the terms hereof and thereof.

Prime Rate” shall have the meaning set forth in the definition of Alternate Base Rate.

Pro Forma Basis” shall mean, with respect to any transaction, that such transaction shall be deemed to have occurred as of the first day of the twelve-month period ending as of the most recent quarter end preceding the date of such transaction.

Pro Forma Revenues” shall mean, for any period, total revenues of Holdco and its Restricted Subsidiaries for such period determined on a consolidated basis, plus the amount by which such total revenues would have been increased for such period if each Permitted Acquisition that was consummated in such period had been consummated on the first day thereof.

Properties” shall have the meaning set forth in Section 3.10(a).

Purchase Notice” shall have the meaning set forth in Section 2.9(a)(ii)(A).

Purchase Termination Date” shall mean the earlier to occur of (a) December 31, 2011 and (b) the date upon which any Restricted Payment is made pursuant to the terms of Section 6.10(e) or Section 6.10(f).

Qualified Preferred Equity” shall mean any preferred Capital Stock issued by Holdco that, on or prior to the date that is 91 days after the Term Loan Maturity Date, is not convertible into Indebtedness or subject to mandatory sinking fund payments, redemption or other acceleration, and upon which all dividends or other distributions (if any) shall be payable solely in additional shares of such Capital Stock on terms and conditions reasonably satisfactory to the Administrative AgentRequired Lenders.

Recovery Event” shall mean the receipt by the Credit Parties or any of their Restricted 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 Restricted Subsidiaries.

Register” shall have the meaning set forth in Section 9.6(d).

 

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Reimbursement Obligation” shall mean the obligation of the Borrowers to reimburse the Issuing Lender pursuant to Section 2.4(d) for amounts drawn under Letters of Credit.

Related Parties means, with respect to any Person, such Persons Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Persons Affiliates.

Reorganization” shall mean, with respect to any Multiemployer Plan, the condition that such Plan is in reorganization within the meaning of such term as used in Section 4241 of ERISA.

Reportable Event” shall mean any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty-day notice period is waived under PBGC Reg. §4043.

Required Add-On Term Loan Lenders” shall mean, as of any date of determination, Add-On Term Loan Lenders holding at least a majority of the outstanding Add-On Term Loan; provided, however, that if any Lender shall be a Defaulting Lender at such time, then there shall be excluded from the determination of Required Add-On Term Loan Lenders, Obligations owing to such Defaulting Lender.

Required Delayed Draw Term Loan Lenders” shall mean, as of any date of determination, Delayed Draw Term Loan Lenders holding at least a majority of the outstanding Delayed Draw Term Loans and the outstanding Delayed Draw Term Loan Commitments (to the extent such Delayed Draw Term Loan Commitments have not been funded and remain in effect); provided, however, that if any Delayed Draw Term Loan Lender shall be a Defaulting Lender at such time, then there shall be excluded from the determination of Required Delayed Draw Term Loan Lenders, Obligations owing to such Defaulting Lender and such Defaulting Lender’s Delayed Draw Term Loan Commitments.

Required Lenders” shall mean, as of any date of determination, Lenders holding at least a majority of (a) the aggregate of the outstanding Revolving Commitments, Initial Term Loan, Add-On Term Loan and Delayed Draw Term Loan Commitments (to the extent such Delayed Draw Term Loan Commitments have not been funded and remain in effect) and the outstanding Delayed Draw Term Loan, (b) if the Revolving Commitments have been terminated, the aggregate of the outstanding Loans, Participation Interests and Delayed Draw Term Loan Commitments (to the extent such Delayed Draw Term Loan Commitments have not been funded and remain in effect) or (c) if all Commitments have been terminated, the outstanding Loans and Participation Interests; provided, however, that if any Lender shall be a Defaulting Lender at such time, then there shall be excluded from the determination of Required Lenders, Obligations (including Participation Interests) owing to such Defaulting Lender and such Defaulting Lender’s Commitments.

Required Revolving Lenders” shall mean, as of any date of determination, Revolving Lenders holding at least a majority of (a) the outstanding Revolving Commitments or (b) if the Revolving Commitments have been terminated, the outstanding Revolving Loans and

 

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Participation Interests; provided, however, that if any Revolving Lender shall be a Defaulting Lender at such time, then there shall be excluded from the determination of Required Revolving Lenders, Obligations (including Participation Interests) owing to such Defaulting Lender and such Defaulting Lender’s Revolving Commitments.

Required Term Loan Lenders” shall mean, as of any date of determination, Lenders holding at least a majority of the outstanding Initial Term Loans, Add-On Term Loans, Delayed Draw Term Loans and the Delayed Draw Term Loan Commitments (to the extent such Delayed Draw Term Loan Commitments have not been funded and remain in effect); provided, however, that if any such Lender shall be a Defaulting Lender at such time, then there shall be excluded from the determination of Required Term Loan Lenders, Obligations owing to such Defaulting Lender and such Defaulting Lender’s Term Loan Commitments.

Requirement of Law” shall mean, as to any Person, the articles or certificate of incorporation and by-laws or other organizational or governing documents of such Person, and each law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

Responsible Officer” shall mean, as to (a) the Company, the President, any Vice-President, the Chief Executive Officer, the Chief Financial Officer or the Chief Operating Officer or (b) any other Credit Party, any duly authorized officer thereof.

Restricted Payment” shall mean (a) any dividend or other distribution, direct or indirect, on account of any shares of any class of Capital Stock of any Credit Party or any of its Restricted Subsidiaries, now or hereafter outstanding (including, without limitation, any payments made by a Credit Party to the Parent in respect of interest obligations in connection with any Parent Acquisition Facilities), (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of Capital Stock of any Credit Party or any of its Restricted Subsidiaries, now or hereafter outstanding, (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Capital Stock of any Credit Party or any of its Restricted Subsidiaries, now or hereafter outstanding, (d) any payment or prepayment of principal of, premium, if any, or interest on, redemption, purchase, retirement, defeasance, sinking fund or similar payment with respect to, any Subordinated Debt of any Credit Party or any of its Restricted Subsidiaries and (e) the payment by any Credit Party or any of its Restricted Subsidiaries of any management, advisory or consulting fee to any Affiliate.

Restricted Subsidiary” shall mean each Subsidiary that is not an Unrestricted Subsidiary.

Revolver Maturity Date” shall mean February 28, 2014.

Revolving Commitment” shall mean, with respect to each Revolving Lender, the commitment of such Revolving Lender to make Revolving Loans in an aggregate principal amount at any time outstanding up to an amount equal to such Revolving Lender’s Revolving Commitment Percentage of the Revolving Committed Amount.

 

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Revolving Commitment Percentage” shall mean, for each Lender, the percentage identified as its Revolving Commitment Percentage in its Lender Commitment Letter or in the Assignment Agreement pursuant to which such Lender became a Lender hereunder, as such percentage may be modified in connection with any assignment made in accordance with the provisions of Section 9.6(c).

Revolving Committed Amount” shall have the meaning set forth in Section 2.1(a).

Revolving Facility” shall mean Revolving Commitments and the Extensions of Credit made pursuant to Sections 2.1, 2.42.1 and 2.5.2.4.

Revolving Lender” shall mean, as of any date of determination, a Lender holding a Revolving Commitment on such date.

Revolving Loan” shall have the meaning set forth in Section 2.1.

Revolving Note” or “Revolving Notes” shall mean the promissory notes of the Borrowers provided pursuant to Section 2.1(e) in favor of any of the Revolving Lenders evidencing the Revolving Loan provided by any such Revolving Lender pursuant to Section 2.1(a), individually or collectively, as appropriate, as such promissory notes may be amended, modified, restated, supplemented, extended, renewed or replaced from time to time.

S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw Hill Companies, Inc.

Sanctioned Country” shall mean a country subject to a sanctions program identified on the list maintained by OFAC and available at http://www.treas.gov/offices/eotffc/ofac/sanctions/index.html, or as otherwise published from time to time.

Sanctioned Person” shall mean (i) a Person named on the list of “Specially Designated Nationals and Blocked Persons” maintained by OFAC available at http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or as otherwise published from time to time, or (ii) (A) an agency of the government of a Sanctioned Country, (B) an organization controlled by a Sanctioned Country, or (C) a person resident in a Sanctioned Country, to the extent subject to a sanctions program administered by OFAC.

Secured Hedging Agreement” shall mean any Hedging Agreement between a Credit Party and a Hedging Agreement Provider, as amended, restated, amended and restated, modified, supplemented or extended from time to time.

Secured Hedging Obligations” shall mean, without duplication, all of the obligations, indebtedness and liabilities of the Credit Parties to the Hedging Agreement Providers, whenever arising, under the Secured Hedging Agreements, including principal, interest, fees, premiums, scheduled periodic payments, breakage, termination and other payments, reimbursements and

 

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indemnification obligations and other amounts (including, but not limited to, any interest accruing after the occurrence of a filing of a petition of bankruptcy under the Bankruptcy Code with respect to any Credit Party, regardless of whether such interest is an allowed claim under the Bankruptcy Code).

Secured Parties” shall mean the Administrative Agent, the Lenders and the Hedging Agreement Providers.

Securities Act” shall mean the Securities Act of 1933, as amended from time to time.

Security Agreement” shall mean the Amended and Restated Security Agreement dated as of the Effective Date executed by the Credit Parties in favor of the Administrative Agent, for the benefit of the Secured Parties, as amended, restated, amended and restated, modified or supplemented from time to time in accordance with its terms.

Security Documents” shall mean the Security Agreement, the Pledge Agreement, the Mortgage Instruments, the Account Control Agreements and all other agreements, documents and instruments relating to, arising out of, or in any way connected with any of the foregoing documents or granting to the Administrative Agent, Liens or security interests to secure, inter alia, the Credit Party Obligations whether now or hereafter executed and/or filed, each as may be amended from time to time in accordance with the terms hereof, executed and delivered in connection with the granting, attachment and perfection of the Administrative Agent’s security interests and liens arising thereunder, including, without limitation, UCC financing statements.

Senior Secured Consolidated Indebtedness” shall mean, as of any date of determination for Holdco and its Subsidiaries on a consolidated basis, all Consolidated Indebtedness (including, without limitation, Extensions of Credit hereunder) that is secured by one or more assets of a Credit Party and is not Subordinated Debt.

Senior Secured Incurrence Test” shall mean, with respect to any incurrence of Senior Secured Consolidated Indebtedness, any payment or any other event as the context may require, the requirement that the Senior Secured Leverage Ratio, after giving effect to such Senior Secured Consolidated Indebtedness, payment or event on a Pro Forma Basis shall be less than 4.00 to 1.0.

Senior Secured Leverage Ratio” shall mean, as of any date of determination, for Holdco and its Subsidiaries on a consolidated basis, the ratio of (i) Senior Secured Consolidated Indebtedness as of such date to (ii) Consolidated EBITDA for the four consecutive fiscal quarters ending on or immediately prior to such date.

Single Employer Plan” shall mean any Plan that is not a Multiemployer Plan.

Specified Equity Contribution” shall have the meaning set forth in the last paragraph of Section 5.9.

 

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Subordinated Debt” shall mean any Indebtedness incurred by any Credit Party which by its terms is specifically subordinated in right of payment to the prior payment of the Credit Party Obligations and contains subordination and other terms acceptable to the Administrative AgentRequired Lenders.

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

Subsidiary Borrower” and “Subsidiary Borrowers” shall have the meaning set forth in the first paragraph of this Credit Agreement.

Swingline Commitment” shall mean the commitment of the Swingline Lender to make Swingline Loans in an aggregate principal amount at any time outstanding up to the Swingline Committed Amount, and the commitment of the Revolving Lenders to purchase participation interests in the Swingline Loans as provided in Section 2.5(b)(ii), as such amounts may be reduced from time to time in accordance with the provisions hereof.

Swingline Committed Amount” shall mean the amount of the Swingline Lenders Swingline Commitment as specified in Section 2.5(a).

Swingline Lender” shall mean Wachovia and any successor in such capacity.

“Swingline Loan” shall have the meaning set forth in Section 2.5(a).

Swingline Note” shall mean the promissory note of the Borrowers in favor of the Swingline Lender evidencing the Swingline Loans provided pursuant to Section 2.5(d), as such promissory note may be amended, modified, supplemented, extended, renewed or replaced from time to time.

Tax Exempt Certificate” shall have the meaning set forth in Section 2.19.

Taxes” shall have the meaning set forth in Section 2.19.

Term Loan” shall mean, collectively, the Initial Term Loan, the Add-On Term Loan and the Delayed Draw Term Loan.

Term Loan Maturity Date” shall mean August 28, 2014.

Ticking Fee” shall have the meaning set forth in Section 2.7(e).

 

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Total Leverage Ratio” shall mean, as of any date of determination, for Holdco and its Restricted Subsidiaries on a consolidated basis, the ratio of (a) Consolidated Indebtedness as of such date to (b) Consolidated EBITDA for the four consecutive fiscal quarters ending on or immediately prior to such date.

Trademark License” shall mean any agreement, whether written or oral, providing for the grant by or to a Person of any right to use any Trademark, including, without limitation, any thereof referred to in Schedule 3.16 to this Credit Agreement.

Trademarks” shall mean (a) all trademarks, trade names, corporate names, company names, business names, fictitious business names, service marks, elements of package or trade dress of goods or services, logos and other source or business identifiers, together with the goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, including, without limitation, any thereof referred to in Schedule 3.16 to this Credit Agreement, and (b) all renewals thereof including, without limitation, any thereof referred to in Schedule 3.16 in each case of any of the Credit Parties.

Tranche” shall mean the collective reference to LIBOR Rate Loans whose Interest Periods begin and end on the same day.

Transactions” shall mean the closing of this Agreement and the other Credit Documents and the consummation of the Acquisition and the other transactions contemplated hereby to occur in connection with such closing and Acquisition (including, without limitation, the initial borrowings under the Credit Documents and the payment of fees and expenses in connection with all of the foregoing).

Transfer Effective Date” shall have the meaning set forth in each Assignment Agreement.

Type” shall mean, as to any Loan, its nature as an Alternate Base Rate Loan or LIBOR Rate Loan, as the case may be.

UCC” shall mean the Uniform Commercial Code from time to time in effect in any applicable jurisdiction.

Unasserted Obligations” shall mean, at any time, Obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities (except for (i) the principal of and interest on, and fees relating to, any Indebtedness and (ii) contingent reimbursement obligations in respect of amounts that may be drawn under Letters of Credit) in respect of which no claim or demand for payment has been made (or, in the case of Obligations for indemnification, no notice for indemnification has been issued by the indemnitee) at such time.

 

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Unrecovered Investment” means, at any time as to any Partially-Owned Subsidiary or any Unrestricted Subsidiary, the aggregate amount of consideration paid in connection with the acquisition of such Partially-Owned Subsidiary or Unrestricted Subsidiary and of all other Investments made in such Partially-Owned Subsidiary or Unrestricted Subsidiary at any time by any Credit Party, net of the aggregate amount received or recovered by any Credit Party or any Restricted Subsidiary in cash on account of such acquisition consideration or other Investments, as a return of the principal thereof and not on account of interest thereon or earnings or income attributable thereto.

Unrestricted Cash” shall mean, as of any date of determination, cash and Cash Equivalents of the Credit Parties that are readily available to the Credit Parties without causing any material adverse tax consequences and that are not subject to any Lien other than a Lien in favor of the Administrative Agent, on behalf of the Secured Parties.

Unrestricted Subsidiaries” shall mean (a) any Subsidiary of Holdco (other than the Company, a Subsidiary Borrower or a Guarantor) designated as such by the Company upon notice to the Administrative Agent, (b) any newly created or acquired Subsidiary of Holdco designated by the Company as an Unrestricted Subsidiary upon notice to the Administrative Agent or (c) any Subsidiary (other than the Company, a Subsidiary Borrower or a Guarantor) of an Unrestricted Subsidiary; provided, that (i) at no time shall any creditor of any such Subsidiary have any claim (whether pursuant to a Guaranty Obligation, by operation of law or otherwise) against Holdco, the Company or any of their Restricted Subsidiaries in respect of any Indebtedness or other obligation of any such Subsidiary; (ii) neither Holdco, the Company nor any of their Restricted Subsidiaries shall become a general partner of any such Subsidiary; (iii) no default with respect to any Indebtedness of any such Subsidiary (including any right which the holders thereof may have to take enforcement action against any such Subsidiary) shall permit (upon notice, lapse of time or both) any holder of any Indebtedness of Holdco, the Company or any of their Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its final scheduled maturity; (iv) no such Subsidiary shall own any Capital Stock of, or own or hold any Lien on any property of, Holdco, the Company or any of their Restricted Subsidiaries; (v) no Investments may be made in any such Subsidiary by Holdco, the Company or any of its Restricted Subsidiaries except in compliance with clauses (m) or (n) of the definition of Permitted Investments; (vi) at the time of such designation, no Default or Event of Default shall have occurred and be continuing or would result therefrom; and (vii) such Unrestricted Subsidiary shall have entered into a tax sharing agreement with Holdco and any applicable Subsidiaries of Holdco that own (directly or indirectly) the Capital Stock of such Unrestricted Subsidiary, substantially in the form of Schedule 1.1(h), or otherwise in form and substance reasonably satisfactory to the Administrative Agent, whereby such Unrestricted Subsidiary agrees to reimburse Holdco or the applicable Subsidiary for taxes paid on the income of such Unrestricted Subsidiary as a result of filing a consolidated tax return. It is understood that Unrestricted Subsidiaries shall be disregarded for purposes of any calculation pursuant to this Credit Agreement relating to financial matters with respect to any Credit Party. Any Subsidiary designated an “Unrestricted Subsidiary” by the Company may subsequently be designated a “Restricted Subsidiary” by notice from the Company of such designation to the Administrative Agent and certification by the Company to the Administrative Agent that, after giving effect to such designation on a Pro

 

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Forma Basis, the Credit Parties and their Restricted Subsidiaries are in compliance with the financial covenant set forth in Section 5.9, provided, however, the Company shall not be required to show compliance with Section 5.9 to the extent that, immediately prior to and immediately after giving effect to such designation, there are no outstanding Extensions of Credit under the Revolving Credit Facility.

Voting Stock” shall mean, with respect to any Person, Capital Stock issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right so to vote may be or have been suspended by the happening of such a contingency.

Wachovia” shall mean Wachovia Bank, National Association, a national banking association, together with its successors and/or assigns.

Works” shall mean all works which are subject to copyright protection pursuant to Title 17 of the United States Code.

Section 1.2 Other Definitional Provisions.

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

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

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

Section 1.3 Accounting Terms.

Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with GAAP applied on a basis consistent with the most recent audited consolidated financial statements of Holdco delivered to the Lenders; provided that, if the Company shall notify the Administrative Agent that it wishes amend any covenant in Section 5.9 to eliminate the effect of any change in GAAP on the operation of any such definition or provision (or if the Administrative Agent notifies the Company that the Required Lenders wish to amend any such definition or provision for such purpose), then the Credit Parties’ compliance with such provisions shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such definition or provision is amended in a manner satisfactory to the Company and the Required Lenders.

 

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The Company shall deliver to the Administrative Agent and each Lender at the same time as the delivery of any annual or quarterly financial statements given in accordance with the provisions of Section 5.1, (i) a description in reasonable detail of any material change in the application of accounting principles employed in the preparation of such financial statements from those applied in the most recently preceding quarterly or annual financial statements as to which no objection shall have been made in accordance with the provisions above and (ii) a reasonable estimate of the effect on the financial statements on account of such changes in application.

Section 1.4 Resolution of Drafting Ambiguities.

Each Credit Party acknowledges and agrees that it was represented by counsel in connection with the execution and delivery of this Credit Agreement and the other Credit Documents to which it is a party, that it and its counsel reviewed and participated in the preparation and negotiation hereof and thereof and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation hereof or thereof.

Section 1.5 Time References.

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

ARTICLE II

THE LOANS; AMOUNT AND TERMS

Section 2.1 Revolving Loans.

(a) Revolving Commitment. During the Commitment Period, subject to the terms and conditions hereof, each Revolving Lender severally agrees to make revolving credit loans in Dollars (“Revolving Loans”) to the Borrowers from time to time for the purposes hereinafter set forth; provided, however, that (i) with regard to each Revolving Lender individually, the sum of such Revolving Lender’s Revolving Commitment Percentage of the aggregate principal amount of outstanding Revolving Loans plus such Revolving Lender’s Revolving Commitment Percentage of outstanding Swingline Loans plus such Revolving Lender’s Revolving Commitment Percentage of outstanding LOC Obligations shall not exceed such Revolving Lender’s Revolving Commitment and (ii) with regard to the Revolving Lenders collectively, the sum of the aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding LOC Obligations shall not exceed the Revolving Committed Amount then in effect. For purposes hereof, the aggregate principal amount available hereunder for Revolving Loans shall be TWENTY MILLION DOLLARS ($20,000,000) (as such aggregate maximum amount may be reduced from time to time as provided in Section

 

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2.8, the “Revolving Committed Amount”). Revolving Loans may consist of Alternate Base Rate Loans or LIBOR Rate Loans, or a combination thereof, as the Company may request, and may be repaid and reborrowed in accordance with the provisions hereof; provided, however, the Revolving Loans made on the Effective Date and three (3) Business Days following the Effective Date may only consist of Alternate Base Rate Loans unless the Company delivers a funding indemnity letter reasonably acceptable to the Administrative Agent not less than three (3) Business Days prior to the Effective Date. LIBOR Rate Loans shall be made by each Revolving Lender at its LIBOR Lending Office and Alternate Base Rate Loans at its Domestic Lending Office.

(b) Revolving Loan Borrowings.

(i) Notice of Borrowing. The Company shall request a Revolving Loan borrowing by delivering a Notice of Borrowing (or telephone notice promptly confirmed in writing by delivery of a Notice of Borrowing, which delivery may be by facsimile) to the Administrative Agent not later than 11:00 A.M. on the Business Day that is the date of the requested borrowing in the case of Alternate Base Rate Loans, and on the third Business Day prior to the date of the requested borrowing in the case of LIBOR Rate Loans. Each such Notice of Borrowing shall be irrevocable and shall specify (A) the applicable Borrower to which such Loan is to be made, (B) that a Revolving Loan is requested, (C) the date of the requested borrowing (which shall be a Business Day), (D) the aggregate principal amount to be borrowed and (E) whether the borrowing shall be comprised of Alternate Base Rate Loans, LIBOR Rate Loans or a combination thereof, and if LIBOR Rate Loans are requested, the Interest Period(s) therefor. If the Company shall fail to specify in any such Notice of Borrowing (1) an applicable Interest Period in the case of a LIBOR Rate Loan, then such notice shall be deemed to be a request for an Interest Period of one month, (2) the Type of Revolving Loan requested, then such notice shall be deemed to be a request for an Alternate Base Rate Loan hereunder or (3) the applicable Borrower for such Loan, then such notice shall be deemed to be a request for a Revolving Loan for the Company. The Administrative Agent shall give notice to each Revolving Lender promptly upon receipt of each Notice of Borrowing, the contents thereof and each such Revolving Lender’s share thereof.

(ii) Minimum Amounts. Each Revolving Loan which is an Alternate Base Rate Loan shall be in a minimum aggregate amount of $500,000 and in integral multiples of $100,000 in excess thereof (or the remaining amount of the Revolving Committed Amount, if less). Each Revolving Loan which is a LIBOR Rate Loan shall be in a minimum aggregate amount of $500,000 and in integral multiples of $500,000 in excess thereof (or the remaining amount of the Revolving Committed Amount, if less).

(iii) Advances. Each Revolving Lender will make its Revolving Commitment Percentage of each Revolving Loan borrowing available to the Administrative Agent for the account of the applicable Borrower at the office of

 

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the Administrative Agent specified in Section 9.2, or at such other office as the Administrative Agent may designate in writing, upon reasonable advance notice by 1:00 P.M. on the date specified in the applicable Notice of Borrowing, in Dollars and in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the applicable Borrower by the Administrative Agent by crediting the account of the applicable Borrower on the books of such office with the aggregate of the amounts made available to the Administrative Agent by the Revolving Lenders and in like funds as received by the Administrative Agent.

(c) Repayment. Subject to the terms of this Credit Agreement, Revolving Loans may be borrowed, repaid and reborrowed during the Commitment Period. The principal amount of all Revolving Loans shall be due and payable in full on the Revolver Maturity Date, unless accelerated sooner pursuant to Section 7.2.

(d) Interest. Subject to the provisions of Section 2.10(b), Revolving Loans shall bear interest as follows:

(i) Alternate Base Rate Loans. During such periods as Revolving Loans shall be comprised of Alternate Base Rate Loans, each such Alternate Base Rate Loan shall bear interest at a per annum rate equal to the sum of the Alternate Base Rate plus the Applicable Percentage; and

(ii) LIBOR Rate Loans. During such periods as Revolving Loans shall be comprised of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear interest at a per annum rate equal to the sum of the LIBOR Rate plus the Applicable Percentage.

Interest on Revolving Loans shall be payable in arrears on each Interest Payment Date.

(e) Revolving Notes; Covenant to Pay. Each Revolving Lender’s Revolving Commitment shall be evidenced, upon such Revolving Lender’s request, by a duly executed promissory note of the Borrowers to such Revolving Lender in substantially the form of Schedule 2.1(e). The Borrowers covenant and agree to pay the Revolving Loans in accordance with the terms of this Credit Agreement and the Revolving Notes, if any.

Section 2.2 Initial Term Loan and Add-On Term Loan.

(a)(i) Initial Term Loan. Subject to the terms and conditions hereof and in reliance upon the representations and warranties set forth herein, each Initial Term Loan Lender severally agrees to make available to the Company and the Subsidiary Borrowers (as directed by the Company) (through the Administrative Agent) on the Effective Date such Initial Term Loan Lender’s Initial Term Loan Commitment Percentage of a term loan in Dollars (the “Initial Term Loan”) in the aggregate principal amount of SIX HUNDRED SEVENTY MILLION

 

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DOLLARS ($670,000,000) (the “Initial Term Loan Committed Amount”) for the purposes hereinafter set forth. Upon receipt by the Administrative Agent of the proceeds of the Initial Term Loan, such proceeds will then be made available to the Company and the applicable Subsidiary Borrower by the Administrative Agent by crediting the account of the Company on the books of the office of the Administrative Agent specified in Section 9.2, or at such other office as the Administrative Agent may designate in writing, with the aggregate of such proceeds made available to the Administrative Agent by the Initial Term Loan Lenders and in like funds as received by the Administrative Agent (or by crediting such other account(s) as directed by the Company). The Initial Term Loan may consist of Alternate Base Rate Loans or LIBOR Rate Loans, or a combination thereof, as the Company may request; provided, however, that on the Effective Date and on the three Business Days following the Effective Date, the Initial Term Loan may only consist of Alternate Base Rate Loans unless the Company delivers a funding indemnity letter reasonably acceptable to the Administrative Agent not less than three (3) Business Days prior to the Effective Date. Amounts repaid or prepaid on the Initial Term Loan may not be reborrowed.

(ii) Add-On Term Loan. Subject to the terms and conditions hereof and in reliance upon the representations and warranties set forth herein, each Add-On Term Loan Lender severally agrees to make available to the Company and the Subsidiary Borrowers (as directed by the Company) (through the Administrative Agent) on the First Amendment Effective Date such Add-On Term Loan Lender’s Add-On Term Loan Commitment Percentage of a term loan in Dollars (the “Add-On Term Loan”) in the aggregate principal amount of TWO HUNDRED SEVENTY-FIVE MILLION DOLLARS ($275,000,000) (the “Add-On Term Loan Committed Amount”) for the purposes hereinafter set forth. Upon receipt by the Administrative Agent of the proceeds of the Add-On Term Loan, such proceeds will then be made available to the Company and the applicable Subsidiary Borrower by the Administrative Agent by crediting the account of the Company on the books of the office of the Administrative Agent specified in Section 9.2, or at such other office as the Administrative Agent may designate in writing, with the aggregate of such proceeds made available to the Administrative Agent by the Add-On Term Loan Lenders and in like funds as received by the Administrative Agent (or by crediting such other account(s) as directed by the Company). The Add-On Term Loan may consist of Alternate Base Rate Loans or LIBOR Rate Loans, or a combination thereof, as the Company may request; provided, however, that on the First Amendment Effective Date and on the three Business Days following the First Amendment Effective Date, the Add-On Term Loan may only consist of Alternate Base Rate Loans unless the Company delivers a funding indemnity letter reasonably acceptable to the Administrative Agent not less than three (3) Business Days prior to the First Amendment Effective Date. Amounts repaid or prepaid on the Add-On Term Loan may not be reborrowed.

 

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(b) Repayment of Initial Term Loan and Add-On Term Loan. The principal amount of the Initial Term Loan and the Add-On Term Loan shall be repaid in full on the Term Loan Maturity Date, unless accelerated sooner pursuant to Section 7.2.

(c) Interest on the Initial Term Loan and the Add-On Term Loan. Subject to the provisions of Section 2.10(b), the Initial Term Loan and the Add-On Term Loan shall bear interest as follows:

(i) Alternate Base Rate Loans. During such periods as the Initial Term Loan or the Add-On Term Loan shall be comprised of Alternate Base Rate Loans, each such Alternate Base Rate Loan shall bear interest at a per annum rate equal to the sum of the Alternate Base Rate plus the Applicable Percentage; and

(ii) LIBOR Rate Loans. During such periods as the Initial Term Loan or the Add-On Term Loan shall be comprised of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear interest at a per annum rate equal to the sum of the LIBOR Rate plus the Applicable Percentage.

Interest on the Initial Term Loan and the Add-On Term Loan shall be payable in arrears on each Interest Payment Date.

(d) Initial Term Loan Notes. Each Initial Term Loan Lender’s Initial Term Loan Commitment shall be evidenced, upon such Initial Term Loan Lender’s request, by a duly executed promissory note of the Borrowers to such Initial Term Loan Lender in substantially the form of Schedule 2.2(d). The Borrowers covenants and agrees to pay the Initial Term Loan in accordance with the terms of this Credit Agreement and the Initial Term Loan Notes, if any.

(e) Add-On Term Loan Notes. Each Add-On Term Loan Lender’s Add-On Term Loan Commitment shall be evidenced, upon such Add-On Term Loan Lender’s request, by a duly executed promissory note of the Borrowers to such Add-On Term Loan Lender in substantially the form of Schedule 2.2(e). The Borrowers covenants and agrees to pay the Add-On Term Loan in accordance with the terms of this Credit Agreement and the Add-On Term Loan Notes, if any.

Section 2.3 Delayed Draw Term Loan.

(a) Delayed Draw Term Loan. Subject to the terms and conditions hereof and in reliance upon the representations and warranties set forth herein, each Delayed Draw Term Loan Lender severally agrees to make available to the Company and the Subsidiary Borrowers (as directed by the Company)(through the Administrative Agent) on each Delayed Draw Funding Date, in accordance with Section 2.3(b) below, such Delayed Draw Term Loan Lender’s Delayed Draw Term Loan Commitment Percentage of a term loan in Dollars (the “Delayed Draw Term Loan”) in the aggregate principal amount after giving effect to all Delayed Draw Term Loan borrowings of up to TWO HUNDRED FIFTY MILLION DOLLARS ($250,000,000) (the “Delayed Draw Term Loan

 

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Committed Amount”) for the purposes hereinafter set forth. A Delayed Draw Term Loan borrowing may consist of Alternate Base Rate Loans or LIBOR Rate Loans, or a combination thereof, as the Company may request; provided, however, that on the Effective Date and on the three (3) Business Days following the Effective Date, the Delayed Draw Term Loan may only consist of Alternate Base Rate Loans unless the Company delivers a funding indemnity letter reasonably acceptable to the Administrative Agent not less than three (3) Business Days prior to the Effective Date. LIBOR Rate Loans shall be made by each Delayed Draw Term Loan Lender at its LIBOR Lending Office and Alternate Base Rate Loans at its Domestic Lending Office. Amounts repaid or prepaid on a Delayed Draw Term Loan borrowing may not be reborrowed.

(b) Delayed Draw Term Loan Borrowings.

(i) Notice of Borrowing. The Company may request from time to time during the term of this Agreement prior to the Delayed Draw Commitment Termination Date a Delayed Draw Term Loan borrowing by delivering a Notice of Borrowing (or telephone notice promptly confirmed by delivery of a Notice of Borrowing, which delivery may be by fax) to the Administrative Agent not later than 11:00 AM (Charlotte, North Carolina time) on the date of the requested borrowing in the case of Alternate Base Rate Loans and on the third Business Day prior to the date of the requested borrowing in the case of LIBOR Rate Loans. Each such request for borrowing shall be irrevocable and shall specify (A) that a Delayed Draw Term Loan borrowing is requested, (B) the date of the requested borrowing (which shall be a Business Day), (C) the aggregate principal amount to be borrowed and (D) whether the borrowing shall be comprised of Alternate Base Rate Loans, LIBOR Rate Loans or a combination thereof, and if LIBOR Rate Loans are requested, the Interest Period(s). If the Company shall fail to specify in any such Notice of Borrowing (I) an applicable Interest Period in the case of a LIBOR Rate Loan, then such notice shall be deemed to be a request for an Interest Period of one (1) month, (II) the type of Loan requested, then such notice shall be deemed to be a request for an Alternate Base Rate Loan hereunder. The Administrative Agent shall give notice to each Delayed Draw Term Loan Lender promptly upon receipt of each Notice of Borrowing, the contents thereof and each such Delayed Draw Term Lender’s share thereof.

(ii) Minimum Amounts. Each Delayed Draw Term Loan borrowing (other than a borrowing on the Effective Date) that is made as an Alternate Base Rate Loan shall be in a minimum aggregate amount of $25,000,000 and in integral multiples of $1,000,000 in excess thereof. Each Delayed Draw Term Loan borrowing (other than a borrowing on the Effective Date) that is made as a LIBOR Rate Loan shall be in a minimum aggregate amount of $25,000,000 and in integral multiples of $1,000,000 in excess thereof.

(iii) Disbursements. Each Delayed Draw Term Loan Lender will make its Delayed Draw Term Loan Commitment Percentage of the Delayed Draw Term Loan borrowing available to the Administrative Agent, for the account of the

 

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applicable Borrower (as designated by the Company), at the office of the Administrative Agent specified in Section 9.2, or at such other office as the Administrative Agent may designate in writing, upon reasonable advance notice by 1:00 P.M. on the date specified in the applicable Notice of Borrowing, in Dollars and in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the applicable Borrower by the Administrative Agent by crediting the account of the applicable Borrower on the books of such office with the aggregate of the amounts made available to the Administrative Agent by the Delayed Draw Term Loan Lenders and in like funds as received by the Administrative Agent.

(c) Repayment of Delayed Draw Term Loan. The principal amount of the Delayed Draw Term Loan shall be repaid in full on the Term Loan Maturity Date, unless accelerated sooner pursuant to Section 7.2.

(d) Interest on the Delayed Draw Term Loan. Subject to the provisions of Section 2.10(b), the Delayed Draw Term Loan shall bear interest as follows:

(i) Alternate Base Rate Loans. During such periods as the Delayed Draw Term Loan shall be comprised of Alternate Base Rate Loans, each such Alternate Base Rate Loan shall bear interest at a per annum rate equal to the sum of the Alternate Base Rate plus the Applicable Percentage; and

(ii) LIBOR Rate Loans. During such periods as the Delayed Draw Term Loan shall be comprised of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear interest at a per annum rate equal to the sum of the LIBOR Rate plus the Applicable Percentage.

Interest on the Delayed Draw Term Loan shall be payable in arrears on each Interest Payment Date.

(e) Delayed Draw Term Loan Notes. Each Delayed Draw Term Loan Lender’s Delayed Draw Term Loan Commitment shall be evidenced, upon such Delayed Draw Term Loan Lender’s request, by a duly executed promissory note of the Borrowers to such Delayed Draw Term Loan Lender in substantially the form of Schedule 2.3(e). The Borrowers covenant and agree to pay the Delayed Draw Term Loan in accordance with the terms of this Credit Agreement and the Delayed Draw Term Loan Notes, if any.

Section 2.4 Letter of Credit Subfacility.

(a) Issuance. Subject to the terms and conditions hereof and of the LOC Documents, if any, and any other terms and conditions which the Issuing Lender may reasonably require, during the Commitment Period the Issuing Lender shall issue, and the Revolving Lenders shall participate in, standby Letters of Credit for the account of the Borrowers from time to time upon request in a form acceptable to the Issuing Lender; provided, however, that (i) the aggregate amount of LOC Obligations shall not at any

 

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time exceed FIVE MILLION DOLLARS ($5,000,000) (the “LOC Committed Amount”), (ii) the sum of the aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding LOC Obligations shall not at any time exceed the Revolving Committed Amount then in effect, (iii) all Letters of Credit shall be denominated in Dollars and (iv) Letters of Credit shall be issued for any lawful corporate purposes and may be issued as standby letters of credit, including in connection with workers’ compensation and other insurance programs. Except as otherwise expressly agreed upon by all the Revolving Lenders, no Letter of Credit shall have an original expiry date more than twelve (12) months from the date of issuance; provided, however, so long as no Default or Event of Default has occurred and is continuing and subject to the other terms and conditions to the issuance of Letters of Credit hereunder, the expiry dates of Letters of Credit may be extended annually or periodically from time to time on the request of the Company or by operation of the terms of the applicable Letter of Credit to a date not more than twelve (12) months from the date of extension; provided, further, that no Letter of Credit, as originally issued or as extended, shall have an expiry date extending beyond the date that is fifteen (15) days prior to the Revolver Maturity Date. Each Letter of Credit shall comply with the related LOC Documents. The issuance and expiry date of each Letter of Credit shall be a Business Day. Any Letters of Credit issued hereunder shall be in a minimum original face amount of $100,000 (or such lesser amount as agreed to by the Administrative Agent and the Issuing Lender). Each applicable Borrower’s reimbursement obligations in respect of each Existing Letter of Credit, and each Revolving Lender’s participation obligations in connection therewith, shall be governed by the terms of this Credit Agreement.

(b) Notice and Reports. The request for the issuance of a Letter of Credit shall be submitted to the Issuing Lender by the Company at least five (5) Business Days prior to the requested date of issuance. The Issuing Lender will promptly upon request provide to the Administrative Agent for dissemination to the Revolving Lenders a detailed report specifying the Letters of Credit which are then issued and outstanding and any activity with respect thereto which may have occurred since the date of any prior report, and including therein, among other things, the account party, the beneficiary, the face amount, expiry date as well as any payments or expirations which may have occurred. The Issuing Lender will further provide to the Administrative Agent promptly upon request copies of the Letters of Credit. The Issuing Lender will provide to the Administrative Agent promptly upon request a summary report of the nature and extent of LOC Obligations then outstanding.

(c) Participations. Each Revolving Lender, (i) on the Effective Date with respect to each Existing Letter of Credit and (ii) upon issuance of any other Letter of Credit, shall be deemed to have purchased without recourse a risk participation from the Issuing Lender in such Letter of Credit and the obligations arising thereunder and any collateral relating thereto, in each case in an amount equal to its Revolving Commitment Percentage of the obligations under such Letter of Credit and shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and be obligated to pay to the Issuing Lender therefor and discharge when due, its Revolving

 

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Commitment Percentage of the obligations arising under such Letter of Credit. Without limiting the scope and nature of each Revolving Lender’s participation in any Letter of Credit, to the extent that the Issuing Lender has not been reimbursed as required hereunder or under any LOC Document, each such Revolving Lender shall pay to the Issuing Lender its Revolving Commitment Percentage of such unreimbursed drawing pursuant to and in accordance with the provisions of subsection (d) hereof. The obligation of each Revolving Lender to so reimburse the Issuing Lender shall be absolute and unconditional and shall not be affected by the occurrence of a Default, an Event of Default or any other occurrence or event. Any such reimbursement shall not relieve or otherwise impair the obligation of the Borrowers to reimburse the Issuing Lender under any Letter of Credit, together with interest as hereinafter provided.

(d) Reimbursement. In the event of any drawing under any Letter of Credit, the Issuing Lender will promptly notify the Company and the Administrative Agent. The applicable Borrower shall reimburse the Issuing Lender on or before the Business Day following the day such drawing is honored (either with the proceeds of a Revolving Loan obtained hereunder or otherwise) in same day funds as provided herein or in the LOC Documents. If the applicable Borrower shall fail to reimburse the Issuing Lender as provided herein, the unreimbursed amount of such drawing shall bear interest at a per annum rate equal to the ABR Default Rate. Unless the Company shall immediately notify the Issuing Lender and the Administrative Agent of its intent to otherwise reimburse the Issuing Lender, the applicable Borrower shall be deemed to have requested a Mandatory LOC Borrowing in the amount of the drawing as provided in subsection (e) hereof, the proceeds of which will be used to satisfy the Reimbursement Obligations. The Borrowers’ Reimbursement Obligations hereunder shall be absolute and unconditional under all circumstances irrespective of any rights of set-off, counterclaim or defense to payment the Borrowers may claim or have against the Issuing Lender, the Administrative Agent, the Lenders, the beneficiary of the Letter of Credit drawn upon or any other Person, including without limitation any defense based on any failure of the Borrowers to receive consideration or the legality, validity, regularity or unenforceability of the Letter of Credit. The Issuing Lender will promptly notify the other Revolving Lenders of the amount of any unreimbursed drawing and each Revolving Lender shall promptly pay to the Administrative Agent for the account of the Issuing Lender, in Dollars and in immediately available funds, the amount of such Revolving Lender’s Revolving Commitment Percentage of such unreimbursed drawing. Such payment shall be made on the day such notice is received by such Revolving Lender from the Issuing Lender if such notice is received at or before 2:00 P.M., otherwise such payment shall be made at or before 12:00 Noon on the Business Day next succeeding the day such notice is received. If such Revolving Lender does not pay such amount to the Issuing Lender in full upon such request, such Revolving Lender shall, on demand, pay to the Administrative Agent for the account of the Issuing Lender interest on the unpaid amount during the period from the date of such drawing until such Revolving Lender pays such amount to the Issuing Lender in full at a rate per annum equal to, if paid within two (2) Business Days of the date of drawing, the Federal Funds Effective Rate and thereafter at a rate equal to the Alternate Base Rate. Each Revolving Lender’s obligation to make such payment to the Issuing Lender, and the right of the Issuing Lender to receive the

 

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same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and without regard to the termination of this Credit Agreement or the Commitments hereunder, the existence of a Default or Event of Default or the acceleration of the Credit Party Obligations hereunder and shall be made without any offset, abatement, withholding or reduction whatsoever.

(e) Repayment with Revolving Loans. On any day on which a Borrower shall have requested, or been deemed to have requested, a Revolving Loan to reimburse a drawing under a Letter of Credit, the Administrative Agent shall give notice to the Revolving Lenders that a Revolving Loan has been requested or deemed requested in connection with a drawing under a Letter of Credit, in which case a Revolving Loan borrowing comprised entirely of Alternate Base Rate Loans (each such borrowing, a “Mandatory LOC Borrowing”) shall be made (without giving effect to any termination of the Commitments pursuant to Section 7.2) pro rata based on each Revolving Lender’s respective Revolving Commitment Percentage (determined before giving effect to any termination of the Commitments pursuant to Section 7.2) and the proceeds thereof shall be paid directly to the Issuing Lender for application to the respective LOC Obligations. Each Revolving Lender hereby irrevocably agrees to make such Revolving Loans on the day such notice is received by the Revolving Lenders from the Administrative Agent if such notice is received at or before 2:00 P.M., otherwise such payment shall be made at or before 12:00 Noon on the Business Day next succeeding the day such notice is received, in each case notwithstanding (i) the amount of Mandatory LOC Borrowing may not comply with the minimum amount for borrowings of Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Section 4.2 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) failure for any such request or deemed request for Revolving Loan to be made by the time otherwise required in Section 2.1(b), (v) the date of such Mandatory LOC Borrowing, or (vi) any reduction in the Revolving Committed Amount after any such Letter of Credit may have been drawn upon. In the event that any Mandatory LOC Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the occurrence of a Bankruptcy Event), then each such Revolving Lender hereby agrees that it shall forthwith fund (as of the date the Mandatory LOC Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrowers on or after such date and prior to such purchase) its Participation Interests in the outstanding LOC Obligations; provided, further, that in the event any Revolving Lender shall fail to fund its Participation Interest on the day the Mandatory LOC Borrowing would otherwise have occurred, then the amount of such Revolving Lender’s unfunded Participation Interest therein shall bear interest payable by such Revolving Lender to the Issuing Lender upon demand, at the rate equal to, if paid within two (2) Business Days of such date, the Federal Funds Effective Rate, and thereafter at a rate equal to the Alternate Base Rate.

(f) Modification, Extension. The issuance of any supplement, modification, amendment, renewal, or extension to any Letter of Credit shall, for purposes hereof, be treated in all respects the same as the issuance of a new Letter of Credit hereunder.

 

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(g) ISP98 and UCP. Unless otherwise expressly agreed by the Issuing Lender and the Company, when a Letter of Credit is issued, (i) the rules of the “International Standby Practices 1998,” as most recently published by the Institute of International Banking Law & Practice at the time of issuance shall apply to each standby Letter of Credit, and (ii) the rules of The Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance, shall apply to each commercial Letter of Credit.

(h) Conflict with LOC Documents. In the event of any conflict between this Credit Agreement and any LOC Document (including any letter of credit application), this Credit Agreement shall control.

(i) Designation of Restricted Subsidiaries as Account Parties. Notwithstanding anything to the contrary set forth in this Credit Agreement, including without limitation Section 2.4(a), a Letter of Credit issued hereunder may contain a statement to the effect that such Letter of Credit is issued for the account of a Restricted Subsidiary of a Borrower; provided that, notwithstanding such statement, the applicable Borrower shall be the actual account party for all purposes of this Credit Agreement for such Letter of Credit and such statement shall not affect the Borrowers’ Reimbursement Obligations hereunder with respect to such Letter of Credit.

Section Section 2.5 Swingline Loan Subfacility.[Intentionally Omitted].

(a) Swingline Commitment. During the Commitment Period, subject to the terms and conditions hereof, the Swingline Lender, in its individual capacity, agrees to make certain revolving credit loans to the Borrowers (each a “Swingline Loan” and, collectively, the “Swingline Loans”) for the purposes hereinafter set forth; provided, however, (i) the aggregate amount of Swingline Loans outstanding at any time shall not exceed FIVE MILLION DOLLARS ($5,000,000) (the “Swingline Committed Amount”), and (ii) the sum of the aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding LOC Obligations shall not exceed the Revolving Committed Amount then in effect. Swingline Loans hereunder may be repaid and reborrowed in accordance with the provisions hereof.

(b) Swingline Loan Borrowings.

(i) Notice of Borrowing and Disbursement. Upon receiving a Notice of Borrowing from the Company not later than 11:00 A.M. on any Business Day requesting a Swingline Loan, the Swingline Lender will make Swingline Loans available to the applicable Borrower on the same Business Day such request is received by the Administrative Agent. If the Company shall fail to specify in any such Notice of Borrowing the applicable Borrower for such Swingline Loan, then such notice shall be deemed to be a request for a Swingline Loan for the Company. Swingline Loan borrowings hereunder shall be made in minimum amounts of $100,000 and in integral amounts of $25,000 in excess thereof (or the remaining amount of the Swingline Committed Amount, if less).

 

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(ii) Repayment of Swingline Loans. Each Swingline Loan borrowing shall be due and payable on the Revolver Maturity Date. The Swingline Lender may, at any time, in its sole discretion, by written notice to the Company and the Administrative Agent, demand repayment of its Swingline Loans by way of a Revolving Loan borrowing, in which case the Company shall be deemed to have requested a Revolving Loan borrowing comprised entirely of Alternate Base Rate Loans in the amount of such Swingline Loans; provided, however, that, in the following circumstances, any such demand shall also be deemed to have been given one Business Day prior to each of (A) the Revolver Maturity Date, (B) the occurrence of any Bankruptcy Event, (C) upon acceleration of the Credit Party Obligations hereunder, whether on account of a Bankruptcy Event or any other Event of Default, and (D) the exercise of remedies in accordance with the provisions of Section 7.2 hereof (each such Revolving Loan borrowing made on account of any such deemed request therefor as provided herein being hereinafter referred to as Mandatory Swingline Borrowing”). Each Revolving Lender hereby irrevocably agrees to make such Revolving Loans promptly upon any such request or deemed request on account of each Mandatory Swingline Borrowing in the amount and in the manner specified in the preceding sentence on the date such notice is received by the Revolving Lenders from the Administrative Agent if such notice is received at or before 2:00 P.M., otherwise such payment shall be made at or before 12:00 Noon on the Business Day next succeeding the date such notice is received notwithstanding (1) the amount of Mandatory Swingline Borrowing may not comply with the minimum amount for borrowings of Revolving Loans otherwise required hereunder, (2) whether any conditions specified in Section 4.2 are then satisfied, (3) whether a Default or an Event of Default then exists, (4) failure of any such request or deemed request for Revolving Loans to be made by the time otherwise required in Section 2.1(b)(i), (5) the date of such Mandatory Swingline Borrowing, or (6) any reduction in the Revolving Committed Amount or termination of the Revolving Commitments immediately prior to such Mandatory Swingline Borrowing or contemporaneously therewith. In the event that any Mandatory Swingline Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code), then each Revolving Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Swingline Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrowers on or after such date and prior to such purchase) from the Swingline Lender such participations in the outstanding Swingline Loans as shall be necessary to cause each such Revolving Lender to share in such Swingline Loans ratably based upon its respective Revolving Commitment Percentage (determined before giving effect to any termination of the Commitments pursuant to Section 7.2); provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date as of which the respective participation is purchased, and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Revolving Lender shall be required to

 

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pay to the Swingline Lender interest on the principal amount of such participation purchased for each day from and including the day upon which the Mandatory Swingline Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate equal to, if paid within two (2) Business Days of the date of the Mandatory Swingline Borrowing, the Federal Funds Effective Rate, and thereafter at a rate equal to the Alternate Base Rate.

(c) Interest on Swingline Loans. Subject to the provisions of Section 2.10(b), Swingline Loans shall bear interest at a per annum rate equal to the Alternate Base Rate plus the Applicable Percentage for Revolving Loans that are Alternate Base Rate Loans. Interest on Swingline Loans shall be payable in arrears on each Interest Payment Date.

(d) Swingline Note. The Swingline Loans shall be evidenced by a duly executed promissory note of the Borrowers to the Swingline Lender in the original amount of the Swingline Committed Amount and substantially in the form of Schedule 2.5(d). The Borrowers covenant and agree to pay the Swingline Loans in accordance with the terms of this Credit Agreement and the Swingline Notes, if any

Section 2.6 Incremental Term Facility.

Subject to the terms and conditions set forth herein and so long as no Default or Event of Default has occurred and is continuing, the Company shall have the right at any time and from time to time, prior to the Maturity Date, to incur additional Indebtedness under this Credit Agreement in the form of term loans (each, an “Incremental Term Facility” and collectively the “Incremental Term Facilities”). The following terms and conditions shall apply to the Incremental Term Facilities: (i) the loans made under the Incremental Term Facilities (the “Additional Term Loans”) shall constitute Credit Party Obligations and will be secured and guaranteed with the other Credit Party Obligations on a pari passu basis, (ii) the interest rate margin and amortization schedule applicable to each Incremental Term Facility shall be determined at the time such Incremental Term Facility is made available, (iii) each Incremental Term Facility shall have a maturity date no sooner than the Term Loan Maturity Date, (iv) each Incremental Term Facility shall have a weighted average life to maturity equal to or greater than the weighted average life to maturity of the Initial Term Loan, (v) each Incremental Term Facility shall be entitled to the same voting rights as the existing Term Loan voting as one class except as to matters solely affecting the Incremental Term Facility and shall be entitled to receive proceeds of prepayments on the same basis as the existing Initial Term Loan, (vi) the Incremental Term Facilities shall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in each case in accordance with the terms set forth below, (vii) each Incremental Term Facility shall be in a minimum amount of $25,000,000 (and $5,000,000 increments in excess thereof), (viii) the proceeds of any Additional Term Loan will be used for the purposes set forth in Section 3.11, (ix) the Company shall execute a promissory note substantially in form and substance satisfactory to the Administrative Agentthe form of Schedule 2.6 in favor of any new Lender or any existing Lender requesting a note, (x) the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (xi) after giving effect to the borrowing of the Incremental Term Facility on a Pro Forma Basis, the Credit Parties shall be in compliance with the Incurrence Test and the Senior Secured Incurrence Test and (xii) the

 

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Administrative Agent shall have received from the Company (A) resolutions, legal opinions and other corporate authority documents with respect to such Incremental Term Facility reasonably requested by the Administrative Agent or the Required Lenders, substantially the same in form and substance as those delivered on the Effective Date pursuant to Section 4.1 and (B) updated financial projections and an officer’s certificate, in each case in form and substance reasonably satisfactory to the Administrative AgentRequired Lenders, demonstrating that, after giving effect to any such Incremental Term Facility on a Pro Forma Basis, (i) the Credit Parties shall be in compliance with the Incurrence Test and (ii) no Default or Event of Default shall exist. Participation in Incremental Term Facilities shall be offered first to each of the existing Lenders, but each such Lender shall have no obligation to provide all or any portion of the Incremental Term Facilities. If the amount of any Incremental Term Facility requested by the Company shall exceed the commitments which the existing Lenders are willing to provide with respect to such Incremental Term Facility, then the Company may invite other banks, financial institutions and investment funds reasonably acceptable to the Administrative AgentRequired Lenders to join this Credit Agreement as Lenders hereunder for the portion of such Incremental Term Facility not taken by existing Lenders, provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders,Notwithstanding anything to the contrary in Section 9.1, the Required Lenders and the Company may enter into any amendment to this Credit Agreement or any other Credit Document as may be necessary to solely incorporate the terms of any new Incremental Term Facility therein.

Section 2.7 Fees.

(a) Commitment Fee. In consideration of the Revolving Commitments, the Borrowers agree to pay to the Administrative Agent, for the ratable benefit of the Revolving Lenders, a commitment fee (the “Commitment Fee”) in an amount equal to the Applicable Percentage per annum on the average daily unused amount of the Revolving Committed Amount. For purposes of computation of the Commitment Fee, LOC Obligations shall be considered usage but Swingline Loans shall not be considered usage of the Revolving Committed Amount. The Commitment Fee shall be payable quarterly in arrears on the last Business Day of each calendar quarter.

(b) Letter of Credit Fees. In consideration of the LOC Commitments, the Borrowers agree to pay to the Administrative Agent, for the ratable benefit of the Revolving Lenders, a fee (the “Letter of Credit Fee”) equal to the Applicable Percentage for Revolving Loans that are LIBOR Rate Loans per annum on the average daily maximum amount available to be drawn under each Letter of Credit from the date of issuance to the date of expiration. The Letter of Credit Fee shall each be payable quarterly in arrears on the last Business Day of each calendar quarter.

(c) Issuing Lender Fees. In addition to the Letter of Credit Fees payable pursuant to subsection (b) hereof, the applicable Borrowers shall pay to the Issuing Lender for its own account without sharing by the other Lenders the reasonable and customary charges from time to time of the Issuing Lender with respect to the

 

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amendment, transfer, administration, cancellation and conversion of, and drawings under, such Letters of Credit (collectively, the “Issuing Lender Fees”). The Issuing Lender may charge, and retain for its own account without sharing by the other Lenders, an additional facing fee (the “Letter of Credit Facing Fee”) of one-eighth of one percent (.125%) per annum on the average daily maximum amount available to be drawn under each such Letter of Credit issued by it. The Issuing Lender Fees and the Letter of Credit Facing Fee shall be payable quarterly in arrears on the last Business Day of each calendar quarter.

(d) Administrative Fee. The Company agrees to pay to the Administrative Agent the annual administrative fee as described in the Fee Letter.

(e) Ticking Fee. The Company agrees to pay to the Administrative Agent, for the pro rata benefit of the Delayed Draw Term Loan Lenders, a ticking fee (the “Ticking Fee”) in an amount equal to (i) for the first three months following the Effective Date, 0.50% per annum and (ii) after the first three months following the Effective Date through the Delayed Draw Commitment Termination Date, 0.75% per annum on the aggregate unfunded amount of the Delayed Draw Term Loan Committed Amount (computed on the basis of the actual number of days elapsed over a 360-day year), which Ticking Fee shall accrue from the Effective Date to, and shall be payable in full to the Administrative Agent on the Delayed Draw Commitment Termination Date, regardless of whether any Delayed Draw Funding Date actually occurs; provided that if a Delayed Draw Funding Date shall occur, the Ticking Fee shall be payable at such time with respect to the aggregate amount of the Delayed Draw Term Loan Committed Amount funded on such Delayed Draw Funding Date with the remainder of the Ticking Fee payable on the unfunded portion of the Delayed Draw Term Loan Committed Amount in full to the Administrative Agent on the Delayed Draw Commitment Termination Date.

Section 2.8 Commitment Reductions.

(a) Voluntary Reductions. The Company shall have the right to terminate or permanently reduce the unused portion of the Revolving Committed Amount at any time or from time to time upon not less than five (5) Business Days’ prior written notice to the Administrative Agent (which shall notify the Lenders thereof as soon as practicable) of each such termination or reduction, which notice shall specify the effective date thereof and the amount of any such reduction which shall be in a minimum amount of $1,000,000 or a whole multiple of $100,000 in excess thereof (or the remaining unused portion) and shall be irrevocable and effective upon receipt by the Administrative Agent; provided that no such reduction or termination shall be permitted if after giving effect thereto, and to any prepayments of the Revolving Loans made on the effective date thereof, the sum of the aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding LOC Obligations would exceed the Revolving Committed Amount then in effect.

(b) Swingline Committed Amount. If the Revolving Committed Amount is reduced pursuant to Section 2.9(a) below the then current Swingline Committed Amount, the Swingline Committed Amount shall automatically be reduced by an amount such that

 

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the Swingline Committed Amount equals the Revolving Committed Amount.[Intentionally Omitted].

(c) Maturity Date. The Revolving Commitments, the Swingline Commitment and the LOC Commitment shall automatically terminate on the Revolver Maturity Date.

(d) Delayed Draw Commitment Termination Date. The Delayed Draw Term Loan Commitments shall automatically terminate on the Delayed Draw Commitment Termination Date.

Section 2.9 Prepayments.

(a) Optional Prepayments; Term Loan Repurchases.

(i) The Borrowers shall have the right to prepay Loans in whole or in part from time to time; provided, however, that each partial prepayment of (A) a Revolving Loan or a Term Loan shall be in a minimum principal amount of $1,000,000 and integral multiples of $100,000 in excess thereof (or the remaining outstanding principal amount) and (B) of a Swingline Loan shall be in a minimum principal amount of $100,000 and integral multiples of $25,000 in excess thereof (or the remaining outstanding principal amount). The Company shall give three (3) Business Days’ irrevocable notice in the case of LIBOR Rate Loans and same-day irrevocable notice on any Business Day in the case of Alternate Base Rate Loans, to the Administrative Agent (which shall notify the Lenders thereof as soon as practicable). Amounts prepaid under this Section 2.9(a) shall be applied as directed by the Company. All prepayments under this Section 2.9(a) shall be subject to Section 2.9(d) and Section 2.18, but otherwise without premium or penalty. Interest on the principal amount prepaid shall be payable on the next occurring Interest Payment Date that would have occurred had such loan not been prepaid or, at the request of the Administrative Agent or the Required Lenders, interest on the principal amount prepaid shall be payable on any date that a prepayment is made hereunder through the date of prepayment. Amounts prepaid on the Revolving Loans and the Swingline Loans may be reborrowed in accordance with the terms hereof. Amounts prepaid on the Term Loans may not be reborrowed.

(ii) Notwithstanding anything in this Agreement to the contrary, in addition to the prepayment rights set forth in Section 2.9(a)(i), so long as (x) no Default or Event of Default has occurred and is continuing or would result therefrom, (y) the sum of Unrestricted Cash and Accessible Borrowing Availability shall be greater than or equal to $20,000,000 before and after giving effect thereto and (z) no Extension of Credit is outstanding under the Revolving Facility before and after giving effect thereto, the Company shall have the right to voluntarily repurchase and prepay outstanding Term Loans on the following basis:

 

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(A) At any time prior to the Purchase Termination Date, the Company may notify the Administrative Agent in the form “Notice of an Offer to Purchase” set forth in Schedule 2.9(a)(2) hereto (each, a “Purchase Notice”) that it wishes to make (for itself or on behalf of a Subsidiary Borrower) one or more offers to Lenders to voluntarily repurchase and prepay one or more of the Initial Term Loans, Add-On Term Loans and Delayed Draw Term Loans pursuant to the Offer Document (each, an “Offer”) in an aggregate amount specified by the Company, with such Offer to be consummated pursuant to the terms of the Company Assignment Agreement; provided that (1) any Offer to repurchase and prepay Initial Term Loans, Add-On Term Loans or Delayed Draw Term Loans shall be made to all holders of the Initial Term Loans, Add-On Term Loans or Delayed Draw Term Loans, as applicable, at the time of such Offer and (2) each Offer shall be outstanding for at least three (3) Business Days. The Company shall have the right, in accordance with the procedures in the Offer Document, to purchase one or more of the Initial Term Loans, Add-On Term Loans and Delayed Draw Term Loans, for cash, at a purchase price determined in accordance with the Offer set forth in the Offer Document; provided that no Offer in accordance with the terms of this Section shall be (x) less than $10,000,000 in aggregate principal amount of the outstanding Term Loans for each Offer undertaken by the Company (or such lesser amount as shall constitute the aggregate unused amount of the Maximum Permitted Offer), and (y) when aggregated with all other outstanding offers undertaken by the Company, more than the aggregate principal amount of the outstanding Term Loans (the “Maximum Permitted Offer”); and provided further that, each of the Term Loans purchased pursuant to this Section shall be in an aggregate amount of not less than $500,000 (or such lesser amount (I) as may be agreed to by Company and the Administrative Agent, (II) as shall constitute the aggregate amount of the Term Loans of the assigning Lender, or (III) as shall constitute the aggregate pro rata share of the Term Loans of the assigning Lender in the event of a pro ration as contemplated in the Offer Document). In addition to the foregoing, at any time prior to the Purchase Termination Date, the Company shall have the right to voluntarily repurchase or otherwise extinguish one or more of the Initial Term Loans, Add-On Term Loans and Delayed Draw Term Loans held by an Affiliate of the Company solely by exchanging Capital Stock of the Parent for such Term Loans; provided that any such repurchase or other extinguishment shall not be made with any cash payments.

(B) In connection with any assignment pursuant to Section 2.9(a)(ii)(A), each of the assigning Lender and the Company in its capacity as purchaser of the tendered Term Loans acknowledges as of the Company Assignment Effective Date that (1) the Company Loan Purchase and the assignment are in accordance with the terms of Section 2.9(a)(ii)(A), (2) the other party to the Company Assignment Agreement

 

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currently may have, and later may come into possession of, information regarding the Credit Documents or the Credit Parties that is not known to it and that may be material to a decision to enter into the Company Assignment Agreement (“Excluded Information”), (3) it has independently and without reliance on the other party made its own analysis and determined to enter into the Company Assignment Agreement and to consummate the transactions contemplated thereby notwithstanding its lack of knowledge of the Excluded Information and (4) the other party shall have no liability to it, and it hereby to the extent permitted by law waives and releases any claims it may have against the other party under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information in connection with such assignment; provided that the Excluded Information shall not and does not affect the truth or accuracy of the representations or warranties of such party set forth in the Company Assignment Agreement with respect to such repurchase. Each of the assigning Lender and the Company in its capacity as purchaser of the tendered Term Loans further acknowledges that the Excluded Information may not be available to the Administrative Agent or the other Lenders. In connection with any Offer, the Company shall provide to all Lenders to whom such Offer is made all information that, together with any previously provided information, would satisfy the requirements of applicable law.

(C) The Company acknowledges and agrees that it will make payment of the purchase price for Term Loans (including principal and all accrued interest with respect to the Term Loans repurchased) accepted for payment pursuant to the Offer Documents by transmitting funds directly to the assigning Lender in accordance with the terms of the Offer Document.

(D) Assignment of any Company Loan Purchases shall be effective upon recordation in the Register by the Administrative Agent following receipt of a fully executed Company Assignment Agreement effecting the assignment thereof (as provided in Section 9.6(e)) and receipt by the Administrative Agent of the registration and processing fee set forth in Section 9.6(e). The date of such recordation of a transfer shall be referred to herein as the “Company Assignment Effective Date.” The provisions of Section 9.6(c) shall not be applicable to any Company Loan Purchases consummated pursuant to this Section.

(E) Following a Company Loan Purchase, no interest shall accrue from and after the Company Assignment Effective Date on any Term Loans purchased by the Company and such purchased Term Loans shall be deemed cancelled or retired for all purposes and no longer outstanding (and may not be resold by the Company), for all purposes of this Agreement and all other Credit Documents (notwithstanding any provisions herein or therein to the contrary), including, but not limited to (1) the making of, or the application of, any payments to the Lenders

 

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under this Agreement or any other Credit Document, (2) the making of any request, demand, authorization, direction, notice, consent or waiver under this Agreement or any other Credit Document, (3) the providing of any rights to the Company as a Lender under this Agreement or any other Credit Document and (4) the determination of Required Lenders.

(F) The Lenders hereby consent to the transactions described in this Section and waive the requirements of any provision of this Agreement (including, without limitation, Sections 2.9(a)(i), 9.6 and 9.7) and any other Credit Document that might otherwise result in a breach of this Agreement, a Default or an Event of Default as a result of or in connection with the consummation of any Company Loan Purchase. The Lenders acknowledge that repurchases made by the Company pursuant to this Section 2.9(a)(ii) may result in the prepayment of Term Loans on a non-pro rata basis.

(G) The provisions of this Section shall not require the Company to undertake and consummate any Offer; provided that to the extent the Company consummates any Offer, it shall purchase the principal amount of all validly tendered Term Loans at or below the Clearing Price up to the Maximum Offer Amount. Notwithstanding anything herein to the contrary, to the extent the Company terminates, cancels or withdraws any Offer, it shall not be permitted to submit another Purchase Notice to the Administrative Agent for a period of ten consecutive Business Days.

(H) With respect to all repurchases made by the Company pursuant to this Section 2.9(a)(ii), (1) the Company shall pay all accrued and unpaid interest, if any, on the repurchased Term Loans to the date of such repurchase and (2) such repurchases shall not be deemed to be voluntary prepayments pursuant to Section 2.9(a)(i).

(I) All references to repurchases and prepayments made by the Company pursuant to this Section 2.9(a)(ii) in this Agreement, in any Offer Document or in any other Credit Document shall include any repurchase and prepayment made by a Subsidiary Borrower or by the Company on behalf of any Subsidiary Borrower.

(b) Mandatory Prepayments.

(i) Revolving Committed Amount. If at any time after the Effective Date, the sum of the aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding LOC Obligations shall exceed the Revolving Committed Amount, the Borrowers shall immediately prepay the Loans in an amount sufficient to eliminate such excess (such prepayment to be applied as set forth in clause (vii) below).

 

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(ii) Excess Cash Flow. Concurrently with the delivery of the financial statements required by Section 5.1(a) (commencing with the delivery of financial statements for fiscal year ending December 31, 2007), the Borrowers shall prepay the Loans and/or cash collateralize the LOC Obligations in an amount equal to 50% of the Excess Cash Flow earned during such prior fiscal year; provided, that if the Total Leverage Ratio is less than or equal to 6.00 to 1.0 as of the end of any fiscal year, the Borrowers shall not be required to prepay the Loans and/or cash collateralize the LOC Obligations on account of the Excess Cash Flow earned during such prior fiscal year. Any payments of Excess Cash Flow shall be applied as set forth in clause (vii) below.

(iii) Asset Dispositions. No later than three (3) Business Days after the date of receipt by any Credit Party or any of its Restricted Subsidiaries of proceeds from any Asset Disposition (or related series of Asset Dispositions), the Borrowers shall prepay the Loans and/or cash collateralize the LOC Obligations in an aggregate amount equal to one hundred percent (100%) of the Net Cash Proceeds derived from such Asset Disposition (or related series of Asset Dispositions) (such prepayment to be applied as set forth in clause (vii) below); provided, however, that, (A) so long as no Default or Event of Default has occurred and is continuing, such Net Cash Proceeds shall not be required to be so applied to the extent (I) the Company delivers to the Administrative Agent a certificate stating that the Credit Parties intend to use such Net Cash Proceeds to reinvest in replacement assets or other assets useful to the business of the Credit Parties, (II) the applicable Credit Party commits, pursuant to an agreement entered into within 365 days after such Asset Disposition and binding on the Credit Parties or a letter of intent, to reinvest such proceeds, and (III) such proceeds are so reinvested within 180 days after such commitment, it being agreed that Net Cash Proceeds not so reinvested or committed to be reinvested shall be applied to prepay the Loans and/or cash collateralize the LOC Obligations immediately thereafter in accordance with clause (vii) below, and (B) the Borrowers shall be required to apply the Net Cash Proceeds of such Asset Disposition to prepay the Loans and/or cash collateralize the LOC Obligations pursuant to this clause (iii) only to the extent necessary to cause the Credit Parties to be in compliance with the Senior Secured Incurrence Test.

(iv) Debt Issuances. No later than three (3) Business Days after the date of receipt by any Credit Party or any of its Restricted Subsidiaries of proceeds from any Debt Issuance, the Borrowers shall prepay the Loans and/or cash collateralize the LOC Obligations in an aggregate amount equal to one hundred percent (100%) of the Net Cash Proceeds of such Debt Issuance (such prepayment to be applied as set forth in clause (vii) below); provided, that the Borrowers shall not be required (except as contemplated by the pro forma use of proceeds below) to repay the Loans and/or cash collateralize the LOC Obligations on account of the maximum portion of such Debt Issuance which could be incurred without causing the Total Leverage Ratio as of the most recently ended

 

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fiscal quarter of Holdco (determined on a Pro Forma Basis giving effect to such portion of such Debt Issuance and the application of the proceeds therefrom) to exceed 6.0 to 1.0 or allowing such ratio to remain above such level (it being understood that the Borrowers shall be required to repay the Loans and/or cash collateralize the LOC Obligations with the remaining Net Cash Proceeds of such Debt Issuance in accordance with this clause (iv)).

(v) Issuances of Equity. No later than three (3) Business Days after the date of receipt by the Parent or any Credit Party or any of their Restricted Subsidiaries of proceeds from any Equity Issuance (other than to fund operations or Permitted Acquisitions), the Borrowers shall prepay the Loans and/or cash collateralize the LOC Obligations in an aggregate amount equal to the lesser of (1) the amount by which fifty percent (50%) of such Net Cash Proceeds exceeds the amount (if any) required to repay the Parent Acquisition Facilities in full and (2) the amount of such Net Cash Proceeds required to reduce the Total Leverage Ratio (determined on a Pro Forma Basis after giving effect to such application) to 6.0 to 1.0.

(vi) Recovery Event. No later than three (3) Business Days after the date of receipt by any Credit Party or any of its Restricted Subsidiaries of proceeds from any Recovery Event, the Borrowers shall prepay the Loans and/or cash collateralize LOC Obligations in an aggregate amount equal to one hundred percent (100%) of the Net Cash Proceeds of such Recovery Event (such prepayment to be applied as set forth in clause (vii) below); provided, however, that, so long as no Default or Event of Default has occurred and is continuing, such Net Cash Proceeds shall not be required to be so applied to the extent (A) the Company delivers to the Administrative Agent a certificate stating that the Credit Parties intend to use such Net Cash Proceeds to reinvest in replacement assets or other assets useful to the business of the Credit Parties, (B) the applicable Credit Party commits, pursuant to an agreement entered into within 365 days after such Recovery Event and binding on the Credit Parties or a letter of intent, to reinvest such proceeds, and (C) such proceeds are so reinvested within 180 days after such commitment, it being agreed that Net Cash Proceeds not so reinvested or committed to be reinvested shall be applied to prepay the Loans and/or cash collateralize the LOC Obligations immediately thereafter in accordance with clause (vii) below.

(vii) Application of Mandatory Prepayments. All amounts required to be paid pursuant to this Section 2.9(b) shall be applied as follows:

(A) with respect to all amounts prepaid pursuant to Section 2.9(b)(i), (1) first to the outstanding Swingline Loans and (2) second to the outstanding Revolving Loans; and

(B) with respect to all amounts prepaid pursuant to Sections 2.9(b)(ii) through (vi), (1) first to the Term Loans (pro rata to the

 

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remaining scheduled principal payments of the Term Loan Lenders that accept such prepayment, it being understood that the Term Loan Lenders shall have the right to decline their portion of such prepayment (with any declined amount to be then applied ratably to the Term Loan Lenders accepting such payments)), (2) second to the SwinglineRevolving Loans (without a corresponding reduction of the SwinglineRevolving Committed Amount), (3) third to the Revolving Loans (without a corresponding reduction of the Revolving Committed Amount) and (4) fourth and (3) third to a cash collateral account in respect of LOC Obligations (without a corresponding reduction of the LOC Committed Amount). Within the parameters of the applications set forth above, prepayments shall be applied first to Alternate Base Rate Loans and then to LIBOR Rate Loans in direct order of Interest Period maturities. All prepayments under this Section 2.9(b) shall be subject to Section 2.9(d) and Section 2.18 and be accompanied by interest on the principal amount prepaid through the date of prepayment.

(c) Hedging Obligations Unaffected. Any repayment or prepayment made pursuant to this Section 2.9 shall not affect the Borrower’s obligation to continue to make payments under any Secured Hedging Agreement, which shall remain in full force and effect notwithstanding such repayment or prepayment, subject to the terms of such Secured Hedging Agreement.

(d) Prepayments Prior to First Anniversary of the Effective Date and the First Amendment Effective Date. Notwithstanding the foregoing any voluntary or mandatory prepayment of all, but not less than all, (i) of the outstanding Initial Term Loans or Delayed Draw Term Loans made prior to the first anniversary of the Effective Date with the proceeds of a new term loan (including a new term loan under this Agreement) entered into for the primary purpose of benefiting from an applicable percentage that is less than the Applicable Percentage for the Initial Term Loans or Delayed Draw Term Loans as of the Effective Date, shall be subject to an additional premium equal to the amount of such prepayment multiplied by 1% and (ii) of the outstanding Add-On Term Loans made prior to the first anniversary of the First Amendment Effective Date with the proceeds of a new term loan (including a new term loan under this Agreement) entered into for the primary purpose of benefiting from an applicable percentage that is less than the Applicable Percentage for the Add-On Term Loans as of the First Amendment Effective Date, shall be subject to an additional premium equal to the amount of such prepayment multiplied by 1%.

Section 2.10 Default Rate and Payment Dates.

(a) If all or a portion of the principal amount of any Loan which is a LIBOR Rate Loan shall not be paid when due or continued as a LIBOR Rate Loan in accordance with the provisions of Section 2.11 (whether at the stated maturity, by acceleration or otherwise), such overdue principal amount of such Loan shall be converted to an Alternate Base Rate Loan at the end of the Interest Period applicable thereto.

 

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(b)(i) If all or a portion of the principal amount of any LIBOR Rate Loan shall not be paid when due, such overdue amount shall, at the discretion of the Required Lenders or the Administrative Agent, bear interest at a rate per annum which is equal to the rate that would otherwise be applicable thereto plus 2%, until the end of the Interest Period applicable thereto, and thereafter at a rate per annum which is equal to the Alternate Base Rate plus the sum of the Applicable Percentage then in effect for Alternate Base Rate Loans and, at the discretion of the Required Lenders or the Administrative Agent, 2% (the “ABR Default Rate”) or (ii) if any interest payable on the principal amount of any Loan or any fee or other amount, including the principal amount of any Alternate Base Rate Loan, payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue amount shall, at the discretion of the Required Lenders or the Administrative Agent, bear interest at a rate per annum which is equal to the ABR Default Rate, in each case from the date of such non-payment until such amount is paid in full (after as well as before judgment).

(c) Interest on each Loan shall be payable in arrears on each Interest Payment Date; provided that interest accruing pursuant to paragraph (b) of this Section 2.10 shall be payable from time to time on demand.

Section 2.11 Conversion Options.

(a) The Company may, in the case of Revolving Loans and the Term Loans, elect from time to time to convert Alternate Base Rate Loans to LIBOR Rate Loans, by delivering a Notice of Conversion/Extension to the Administrative Agent at least three (3) Business Days prior to the proposed date of conversion. In addition, the Company may elect from time to time to convert all or any portion of a LIBOR Rate Loan to an Alternate Base Rate Loan by giving the Administrative Agent irrevocable written notice thereof by 11:00 A.M. one Business Day prior to the proposed date of conversion. If the date upon which an Alternate Base Rate Loan is to be converted to a LIBOR Rate Loan is not a Business Day, then such conversion shall be made on the next succeeding Business Day and during the period from such last day of an Interest Period to such succeeding Business Day such Loan shall bear interest as if it were an Alternate Base Rate Loan. LIBOR Rate Loans may only be converted to Alternate Base Rate Loans on the last day of the applicable Interest Period. If the date upon which a LIBOR Rate Loan is to be converted to an Alternate Base Rate Loan is not a Business Day, then such conversion shall be made on the next succeeding Business Day and during the period from such last day of an Interest Period to such succeeding Business Day such Loan shall bear interest as if it were an Alternate Base Rate Loan. All or any part of outstanding Alternate Base Rate Loans may be converted as provided herein; provided that (i) no Loan may be converted into a LIBOR Rate Loan when any Event of Default has occurred and is continuing and (ii) partial conversions shall be in an aggregate principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. All or any part of outstanding LIBOR Rate Loans may be converted as provided herein; provided that partial conversions shall be in an aggregate principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof.

 

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(b) Any LIBOR Rate Loans may be continued as such upon the expiration of an Interest Period with respect thereto by compliance by the Company with the notice provisions contained in Section 2.11(a); provided, that no LIBOR Rate Loan may be continued as such when any Event of Default has occurred and is continuing, in which case such Loan shall be automatically converted to an Alternate Base Rate Loan at the end of the applicable Interest Period with respect thereto. If the Company shall fail to give timely notice of an election to continue a LIBOR Rate Loan, or the continuation of LIBOR Rate Loans is not permitted hereunder, such LIBOR Rate Loans shall be automatically converted to Alternate Base Rate Loans at the end of the applicable Interest Period with respect thereto.

Section 2.12 Computation of Interest and Fees; Usury.

(a) Interest payable hereunder with respect to any Alternate Base Rate Loan based on the Prime Rate shall be calculated on the basis of a year of 365 days (or 366 days, as applicable) for the actual days elapsed. All other fees, interest and all other amounts payable hereunder shall be calculated on the basis of a 360 day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Company and the Lenders of each determination of a LIBOR Rate on the Business Day of the determination thereof. Any change in the interest rate on a Loan resulting from a change in the Alternate Base Rate shall become effective as of the opening of business on the day on which such change in the Alternate Base Rate shall become effective. The Administrative Agent shall as soon as practicable notify the Company and the Lenders of the effective date and the amount of each such change.

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

(c) It is the intent of the Lenders and the Credit Parties to conform to and contract in strict compliance with applicable usury law from time to time in effect. All agreements between the Lenders and the Credit Parties are hereby limited by the provisions of this subsection which shall override and control all such agreements, whether now existing or hereafter arising and whether written or oral. In no way, nor in any event or contingency (including but not limited to prepayment or acceleration of the maturity of any Credit Party Obligation), shall the interest taken, reserved, contracted for, charged, or received under this Credit Agreement, under the Notes or otherwise, exceed the maximum nonusurious amount permissible under applicable law. If, from any possible construction of any of the Credit Documents or any other document, interest would otherwise be payable in excess of the maximum nonusurious amount, any such construction shall be subject to the provisions of this paragraph and such interest shall be automatically reduced to the maximum nonusurious amount permitted under applicable law, without the necessity of execution of any amendment or new document. If any

 

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Lender shall ever receive anything of value which is characterized as interest on the Loans under applicable law and which would, apart from this provision, be in excess of the maximum nonusurious amount, an amount equal to the amount which would have been excessive interest shall, without penalty, be applied to the reduction of the principal amount owing on the Loans and not to the payment of interest, or refunded to the applicable Borrower or the other payor thereof if and to the extent such amount which would have been excessive exceeds such unpaid principal amount of the Loans. The right to demand payment of the Loans or any other Indebtedness evidenced by any of the Credit Documents does not include the right to receive any interest which has not otherwise accrued on the date of such demand, and the Lenders do not intend to charge or receive any unearned interest in the event of such demand. All interest paid or agreed to be paid to the Lenders with respect to the Loans shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term (including any renewal or extension) of the Loans so that the amount of interest on account of such Indebtedness does not exceed the maximum nonusurious amount permitted by applicable law.

Section 2.13 Pro Rata Treatment and Payments.

(a) Allocation of Payments Prior to Exercise of Remedies. Each borrowing of Revolving Loans and any reduction of the Revolving Commitments shall be made pro rata according to the respective Revolving Commitment Percentages of the Revolving Lenders. Unless otherwise required by the terms of this Credit Agreement, each payment under this Credit Agreement or any Note shall be applied, first, to any fees then due and owing by the Borrowers pursuant to Section 2.7, second, to interest then due and owing hereunder and under the Notes of the Borrowers and, third, to principal then due and owing hereunder and under the Notes of the Borrowers. Each payment on account of any fees pursuant to Section 2.7 shall be made pro rata in accordance with the respective amounts due and owing (except as to the Letter of Credit Facing Fees and the Issuing Lender Fees). Each payment (other than prepayments) by the Borrowers on account of principal of and interest on the Revolving Loans and on the Term Loans, as applicable, shall be applied to such Loans, as applicable, on a pro rata basis in accordance with the terms of Section 2.9(a) hereof. Each optional prepayment on account of principal of the Loans shall be applied in accordance with Section 2.9(a). Each mandatory prepayment on account of principal of the Loans shall be applied in accordance with Section 2.9(b). All payments (including prepayments) to be made by the Borrowers on account of principal, interest and fees shall be made without defense, set-off or counterclaim (except as provided in Section 2.19(b)) and shall be made to the Administrative Agent for the account of the Lenders at the Administrative Agent’s office specified on Section 9.2 in Dollars and in immediately available funds not later than 1:00 P.M. on the date when due. The Administrative Agent shall distribute such payments to the Lenders entitled thereto promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the LIBOR Rate Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. If any payment on a LIBOR Rate Loan becomes

 

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due and payable on a day other than a Business Day, such payment date shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day.

(b) Allocation of Payments After Exercise of Remedies. Notwithstanding any other provisions of this Credit Agreement to the contrary, after the exercise of remedies (other than the invocation of default interest pursuant to Section 2.10(b)) by the Administrative Agent or the Lenders pursuant to Section 7.2 (or after the Commitments shall automatically terminate and the Loans (with accrued interest thereon) and all other amounts under the Credit Documents (including without limitation the maximum amount of all contingent liabilities under Letters of Credit) shall automatically become due and payable in accordance with the terms of such Section), all amounts collected or received by the Administrative Agent or any Lender on account of the Credit Party Obligations or any other amounts outstanding under any of the Credit Documents or in respect of the Collateral shall be paid over or delivered as follows (irrespective of whether the following costs, expenses, fees, interest, premiums, scheduled periodic payments or Credit Party Obligations are allowed, permitted or recognized as a claim in any proceeding resulting from the occurrence of a Bankruptcy Event):

FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including without limitation reasonable attorneys’ fees) of the Administrative Agent in connection with enforcing the rights of the Lenders under the Credit Documents and any protective advances made by the Administrative Agent with respect to the Collateral under or pursuant to the terms of the Security Documents;

SECOND, to the payment of any fees owed to the Administrative Agent (in its capacity as such);

THIRD, to the payment of all reasonable out-of-pocket costs and expenses (including without limitation, reasonable attorneys’ fees) of each of the Lenders in connection with enforcing its rights under the Credit Documents or otherwise with respect to the Credit Party Obligations owing to such Lender;

FOURTH, to the payment of all of the Credit Party Obligations consisting of accrued fees and interest, and including, with respect to any Secured Hedging Agreement, any fees, premiums and scheduled periodic payments due under such Secured Hedging Agreement and any interest accrued thereon;

FIFTH, to the payment of the outstanding principal amount of the Credit Party Obligations and the payment or cash collateralization of the outstanding LOC Obligations, and including with respect to any Secured Hedging Agreement, any breakage, termination or other payments due under such Secured Hedging Agreement and any interest accrued thereon;

 

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SIXTH, to all other Credit Party Obligations and other obligations which shall have become due and payable under the Credit Documents or otherwise and not repaid pursuant to clauses “FIRST” through “FIFTH” above; and

SEVENTH, to the payment of the surplus, if any, to whoever may be lawfully entitled to receive such surplus.

In carrying out the foregoing, (i) amounts received shall be applied in the numerical order provided until exhausted prior to application to the next succeeding category; (ii) each of the Lenders shall receive an amount equal to its pro rata share (based on the proportion that the then outstanding Loans and LOC Obligations held by such Lender bears to the aggregate then outstanding Loans and LOC Obligations) of amounts available to be applied pursuant to clauses “THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above; and (iii) to the extent that any amounts available for distribution pursuant to clause “FIFTH” above are attributable to the issued but undrawn amount of outstanding Letters of Credit, such amounts shall be held by the Administrative Agent in a cash collateral account and applied (A) first, to reimburse the Issuing Lender from time to time for any drawings under such Letters of Credit and (B) then, following the expiration of all Letters of Credit, to all other obligations of the types described in clauses “FIFTH” and “SIXTH” above in the manner provided in this Section 2.13. Notwithstanding the foregoing terms of this Section 2.13, only Collateral proceeds and payments under the Guaranty (as opposed to ordinary course principal, interest and fee payments hereunder) shall be applied to obligations under any Secured Hedging Agreement.

Section 2.14 Non-Receipt of Funds by the Administrative Agent.

(a) Unless the Administrative Agent shall have been notified in writing by a Lender prior to the date a Loan is to be made by such Lender (which notice shall be effective upon receipt) that such Lender does not intend to make the proceeds of such Loan available to the Administrative Agent, the Administrative Agent may assume that such Lender has made such proceeds available to the Administrative Agent on such date, and the Administrative Agent may in reliance upon such assumption (but shall not be required to) make available to the applicable Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent, the Administrative Agent shall be able to recover such corresponding amount from such Lender. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent will promptly notify the Company, and the Borrowers shall immediately pay such corresponding amount to the Administrative Agent. The Administrative Agent shall also be entitled to recover from the Lender or the Borrowers, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the applicable Borrower to the date such corresponding amount is recovered by the Administrative Agent at a per annum rate equal to (i) from the Borrowers at the applicable rate for the applicable borrowing

 

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pursuant to the Notice of Borrowing and (ii) from a Lender at the Federal Funds Effective Rate.

(b) Unless the Administrative Agent shall have been notified in writing by the Company, prior to the date on which any payment is due from a Borrower hereunder (which notice shall be effective upon receipt) that the applicable Borrower does not intend to make such payment, the Administrative Agent may assume that the applicable Borrower has made such payment when due, and the Administrative Agent may in reliance upon such assumption (but shall not be required to) make available to each Lender on such payment date an amount equal to the portion of such assumed payment to which such Lender is entitled hereunder, and if the applicable Borrower has not in fact made such payment to the Administrative Agent, such Lender shall, on demand, repay to the Administrative Agent the amount made available to such Lender. If such amount is repaid to the Administrative Agent on a date after the date such amount was made available to such Lender, such Lender shall pay to the Administrative Agent on demand interest on such amount in respect of each day from the date such amount was made available by the Administrative Agent to such Lender to the date such amount is recovered by the Administrative Agent at a per annum rate equal to the Federal Funds Effective Rate.

(c) A certificate of the Administrative Agent submitted to the Company or any Lender with respect to any amount owing under this Section 2.14 shall be conclusive in the absence of manifest error.

Section 2.15 Inability to Determine Interest Rate.

Notwithstanding any other provision of this Credit Agreement, if the Administrative Agent shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that, by reason of circumstances affecting the relevant market, reasonable and adequate means do not exist for ascertaining LIBOR for such Interest Period, the Administrative Agent shall forthwith give telephone notice of such determination, confirmed in writing, to the Company, and the Lenders at least two (2) Business Days prior to the first day of such Interest Period. Unless the Company shall have notified the Administrative Agent upon receipt of such telephone notice that it wishes to rescind or modify its request regarding such LIBOR Rate Loans, any Loans that were requested to be made as LIBOR Rate Loans shall be made as Alternate Base Rate Loans and any Loans that were requested to be converted into or continued as LIBOR Rate Loans shall remain as or be converted into Alternate Base Rate Loans. Until any such notice has been withdrawn by the Administrative Agent, no further Loans shall be made as, continued as, or converted into, LIBOR Rate Loans for the Interest Periods so affected.

Section 2.16 Illegality.

Notwithstanding any other provision of this Credit Agreement, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof by the relevant Governmental Authority to any Lender shall make it unlawful for such Lender or its LIBOR Lending Office to make or maintain LIBOR Rate Loans as contemplated by this Credit

 

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Agreement or to obtain in the interbank eurodollar market through its LIBOR Lending Office the funds with which to make such Loans, (a) such Lender (an “Affected Lender”) shall on that date notify the Administrative Agent and the Company thereof, (b) the commitment of such Affected Lender hereunder to make LIBOR Rate Loans or continue LIBOR Rate Loans as such shall forthwith be suspended until the Administrative AgentAffected Lender shall give notice that the condition or situation which gave rise to the suspension shall no longer exist, and (c) such Affected Lender’s Loans then outstanding as LIBOR Rate Loans, if any, shall be converted on the last day of the Interest Period for such Loans or within such earlier period as required by law as Alternate Base Rate Loans. Notwithstanding the forgoing, to the extent a determination by an Affected Lender as described above relates to LIBOR Rate Loans then being requested by the Company pursuant to a Notice of Borrowing or a Notice of Continuation/Conversion, the Company shall have the option, subject to the provisions of Section 2.18, to rescind such Notice of Borrowing or Notice of Continuation/Conversion to all Lenders by giving notice (by facsimile or telephone confirmed in writing) to the Administrative Agent of such rescission on the date on which the Affected Lender gives notice of a determination as described above. The Borrowers hereby agree promptly to pay any Affected Lender, upon its demand, any additional amounts necessary to compensate such Lender for actual and direct costs (but not including anticipated profits) reasonably incurred by such Lender in making any repayment in accordance with this Section including, but not limited to, any interest or fees payable by such Affected Lender to lenders of funds obtained by it in order to make or maintain its LIBOR Rate Loans hereunder. A certificate as to any additional amounts payable pursuant to this Section submitted by such Affected Lender, through the Administrative Agent, to the Company shall be conclusive in the absence of manifest error. Nothing in this Section 2.16 shall affect the obligation of any Lender other than the Affected Lender to make or maintain LIBOR Rate Loans, or to convert Alternate Base Rate Loans to LIBOR Rate Loans in accordance with the terms hereof.

Section 2.17 Requirements of Law.

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

(i) shall subject such Lender to any tax of any kind whatsoever with respect to any Letter of Credit or any application relating thereto, any LIBOR Rate Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof (except for changes in the rate of tax on the overall net income of such Lender);

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

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

 

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and the result of any of the foregoing is to increase the cost to such Lender of making or maintaining LIBOR Rate Loans or the Letters of Credit or the Participation Interests therein or to reduce any amount receivable hereunder or under any Note, then, in any such case, the Credit Parties shall promptly pay such Lender, upon its demand, any additional amounts necessary to compensate such Lender for such additional cost or reduced amount receivable which such Lender reasonably deems to be material as determined by such Lender with respect to its LIBOR Rate Loans or Letters of Credit. A certificate as to any additional amounts payable pursuant to this Section (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender, through the Administrative Agent, to the Company shall be conclusive in the absence of manifest error.

(b) If any Lender shall have reasonably determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any central bank or Governmental Authority made subsequent to the date hereof does or shall have the effect of reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy) by an amount reasonably deemed by such Lender to be material, then from time to time, within fifteen (15) days after demand by such Lender, the Credit Parties shall pay to such Lender such additional amount as shall be certified by such Lender as being required to compensate it for such reduction. Such a certificate as to any additional amounts payable under this Section submitted by a Lender (which certificate shall include a description of the basis for the computation), through the Administrative Agent, to the Company shall be conclusive absent manifest error.

(c) Failure or delay on the part of any Lender to demand compensation pursuant to this Section 2.17 shall not constitute a waiver of such Lender’s right to demand such compensation; provided, that the Company shall not be required to compensate a Lender pursuant to this Section 2.17 for any increased costs or reductions to the extent that such Lender notifies the Company of such increased costs or reductions and of such Lender’s intention to claim compensation therefore more than ninety (90) days after such Lender becomes aware of such right to additional compensation; provided, further, that if the law, treaty or governmental rule, regulation or order, or any change therein or in the interpretation, administration or application thereof (including the introduction of any new law, treaty or governmental rule, regulation or order), or any determination of a court or Governmental Authority giving rise to such increased costs or reductions is retroactive, then the ninety (90) day period referred to above shall be extended to include the period of retroactive effect thereof.

 

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(d) The agreements in this Section 2.17 shall survive the termination of this Credit Agreement and payment of the Credit Party Obligations.

Section 2.18 Indemnity.

The Credit Parties hereby agree to indemnify each Lender and to hold such Lender harmless from any funding loss or expense (but not any anticipated profits or other consequential losses) which such Lender may sustain or incur as a consequence of (a) default by the Borrowers in payment of the principal amount of or interest on any Loan by such Lender in accordance with the terms hereof, (b) default by the Borrowers in accepting a borrowing after the Company has given a notice in accordance with the terms hereof, (c) default by the Borrowers in making any prepayment after the Company has given a notice in accordance with the terms hereof, and/or (d) the making by the Borrowers of a prepayment of a Loan, or the conversion thereof, on a day which is not the last day of the Interest Period with respect thereto, in each case including, but not limited to, any such loss or expense arising from interest or fees payable by such Lender to lenders of funds obtained by it in order to maintain its Loans hereunder. A certificate as to any additional amounts payable pursuant to this Section submitted by any Lender, through the Administrative Agent, to the Company (which certificate must be delivered to the Administrative Agent within thirty (30) days following such default, prepayment or conversion) shall be conclusive in the absence of manifest error. The agreements in this Section shall survive termination of this Credit Agreement and payment of the Credit Party Obligations.

Section 2.19 Taxes.

(a) All payments made by the Credit Parties hereunder or under any Note shall be, except as provided in Section 2.19(b), made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any Governmental Authority or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding (i) any tax imposed on or measured by the net income or profits of a Lender pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or applicable lending office of such Lender is located or any subdivision thereof or therein and (ii) any branch profits tax within the meaning of Code Section 884 or any similar tax) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”). If any Taxes are so levied or imposed, the Credit Parties agree to pay the full amount of such Taxes, and such additional amounts as may be necessary, so that every payment of all amounts due under this Credit Agreement or under any Note, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Note. The Credit Parties will furnish to the Administrative Agent as soon as practicable after the date the payment of any Taxes is due pursuant to applicable law certified copies (to the extent reasonably available and required by law) of tax receipts evidencing such payment by the Credit Parties. The Credit Parties agree to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender.

 

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(b) Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) agrees to deliver to the Company and the Administrative Agent on or prior to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest under this Credit Agreement pursuant to Section 9.6(d) (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer), on the date of such assignment or transfer to such Lender (i) if the Lender is a “bank” within the meaning of Section 881(c)(3)(A) of the Code, two accurate and complete original signed copies of Internal Revenue Service Forms W-8BEN, W-8ECI or W-8IMY with appropriate attachments (or successor forms) certifying such Lender’s entitlement to a complete exemption from United States withholding tax with respect to payments to be made under this Credit Agreement and under any Note, or (ii) if the Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (A) Internal Revenue Service Forms W-8BEN, W-8ECI or W-8IMY with appropriate attachments as set forth in clause (i) above, or (B) a certificate in substantially the form of Schedule 2.19 (any such certificate, a “Tax Exempt Certificate”) and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (or successor form) certifying such Lender’s entitlement to an exemption from United States withholding tax with respect to payments of interest to be made under this Credit Agreement and under any Note. In addition, each Lender agrees that it will deliver upon the Company’s request updated versions of the foregoing, as applicable, whenever the previous certification has become obsolete or inaccurate in any material respect, together with such other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax with respect to payments under this Credit Agreement and any Note. Notwithstanding anything to the contrary contained in Section 2.19(a), but subject to the immediately succeeding sentence, (A) the Borrowers shall be entitled, to the extent they are required to do so by law, to deduct or withhold Taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable hereunder for the account of any Lender which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that such Lender has not provided to the Company U.S. Internal Revenue Service Forms that establish a complete exemption from such deduction or withholding and (B) the Borrowers shall not be obligated pursuant to Section 2.19(a) hereof to gross-up payments to be made to a Lender in respect of Taxes imposed by the United States if (I) such Lender has not provided to the Company the Internal Revenue Service forms required to be provided pursuant to this Section 2.19(b) or (II) in the case of a payment, other than interest, to a Lender described in clause (ii) above, to the extent that such forms do not establish a complete exemption from withholding of such Taxes. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere in this Section 2.19, the Credit Parties agree to pay additional amounts and to indemnify each Lender in the manner set forth in Section 2.19(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any amounts deducted or withheld by it as described in the immediately preceding sentence as a result of any changes after the Closing Date in any

 

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applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of Taxes.

(c) Each Lender agrees to use reasonable efforts (including reasonable efforts to change its Domestic Lending Office or LIBOR Lending Office, as the case may be) to avoid or to minimize any amounts which might otherwise be payable pursuant to this Section; provided, however, that such efforts shall not cause the imposition on such Lender of any additional costs or legal or regulatory burdens deemed by such Lender in its sole discretion to be material.

(d) If the Credit Parties pay any additional amount pursuant to this Section 2.19 with respect to a Lender, such Lender shall use reasonable efforts to obtain a refund of tax or credit against its tax liabilities on account of such payment; provided that such Lender shall have no obligation to use such reasonable efforts if either (i) it is in an excess foreign tax credit position or (ii) it believes in good faith, in its sole discretion, that claiming a refund or credit would cause adverse tax consequences to it. In the event that such Lender receives such a refund or credit, such Lender shall pay to the Credit Parties an amount that such Lender reasonably determines is equal to the net tax benefit obtained by such Lender as a result of such payment by the Credit Parties. In the event that no refund or credit is obtained with respect to the Credit Parties’ payments to such Lender pursuant to this Section 2.19, then such Lender shall upon request provide a certification that such Lender has not received a refund or credit for such payments. Nothing contained in this Section 2.19 shall require a Lender to disclose or detail the basis of its calculation of the amount of any tax benefit or any other amount or the basis of its determination referred to in the proviso to the first sentence of this Section 2.19 to the Credit Parties or any other party.

(e) The agreements in this Section 2.19 shall survive the termination of this Credit Agreement and the payment of the Credit Party Obligations.

Section 2.20 Indemnification; Nature of Issuing Lender’s Duties.

(a) In addition to its other obligations under Section 2.4, the Credit Parties hereby agree to protect, indemnify, pay and save the Issuing Lender harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees) that the Issuing Lender may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit or (ii) the failure of the Issuing Lender to honor a drawing under a Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority (all such acts or omissions, herein called “Government Acts”).

(b) As between the Credit Parties and the Issuing Lender, the Credit Parties shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof. The Issuing Lender shall not be responsible: (i) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by

 

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any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (iii) for failure of the beneficiary of a Letter of Credit to comply fully with conditions required in order to draw upon a Letter of Credit; (iv) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) for errors in interpretation of technical terms; (vi) for any loss or delay in the transmission or otherwise of any document required in order to make a drawing under a Letter of Credit or of the proceeds thereof; and (vii) for any consequences arising from causes beyond the control of the Issuing Lender, including, without limitation, any Government Acts. None of the above shall affect, impair, or prevent the vesting of the Issuing Lender’s rights or powers hereunder.

(c) In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by the Issuing Lender, under or in connection with any Letter of Credit or the related certificates, if taken or omitted in the absence of gross negligence or willful misconduct, shall not put such Issuing Lender under any resulting liability to the Credit Parties. It is the intention of the parties that this Credit Agreement shall be construed and applied to protect and indemnify the Issuing Lender against any and all risks involved in the issuance of the Letters of Credit, all of which risks are hereby assumed by the Credit Parties, including, without limitation, any and all risks of the acts or omissions, whether rightful or wrongful, of any Government Authority. The Issuing Lender shall not, in any way, be liable for any failure by the Issuing Lender or anyone else to pay any drawing under any Letter of Credit as a result of any Government Acts or any other cause beyond the control of the Issuing Lender.

(d) Nothing in this Section 2.20 is intended to limit the Reimbursement Obligation of the Borrowers contained in Section 2.4(d) hereof. The obligations of the Credit Parties under this Section 2.20 shall survive the termination of this Credit Agreement. No act or omissions of any current or prior beneficiary of a Letter of Credit shall in any way affect or impair the rights of the Issuing Lender to enforce any right, power or benefit under this Credit Agreement.

(e) Notwithstanding anything to the contrary contained in this Section 2.20, the Credit Parties shall have no obligation to indemnify the Issuing Lender in respect of any liability incurred by the Issuing Lender arising out of the gross negligence or willful misconduct of the Issuing Lender (including action not taken by the Issuing Lender), as determined by a court of competent jurisdiction.

 

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Section 2.21 Obligation to Mitigate.

Each Lender agrees that, as promptly as practicable after such Lender becomes aware of the occurrence of an event or the existence of a condition that would cause such lender to become an Affected Lender or that would entitle such Lender to receive payments under Section 2.16, 2.17, 2.18 or 2.19, it will use reasonable efforts to (a) make, issue, fund or maintain its Loans through another lending office of such Lender, or (b) take such other measures as such Lender may deem reasonable, if (i) as a result, the circumstances which would cause such Lender to be an Affected Lender would cease to exist or the additional amounts which would otherwise be required to be paid to such Lender pursuant to Section 2.16, 2.17, 2.18 or 2.19 would be avoided or materially reduced, and (ii) if such Lender determines in its sole discretion, the making, issuing, funding or maintaining of such Loans through such other lending office or in accordance with such other measures, as the case may be, would not otherwise adversely affect such Loans or the interests of such Lender; provided that such Lender will not be obligated to utilize such other office pursuant to this Section 2.21 unless the Company agrees to pay all incremental expenses incurred by such Lender as a result of utilizing such other office as described above. A certificate as to the amount of any such expenses payable by the Company pursuant to this Section 2.21 (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender to the Company (with a copy to Administrative Agent) shall be conclusive absent manifest error.

Section 2.22 Replacement of Lenders.

The Company shall be permitted to replace any Lender that (a) is an Affected Lender, (b) requests (or requests on behalf of a Participant) reimbursement for amounts owing, or payment of any amount required, pursuant to Section 2.17 or 2.19, (c) defaults in its obligation to make Loans hereunder or (d) fails to approve any amendment, waiver or consent requiring the consent of all the Lenders or of any Lender adversely affected thereby (and the Company has received approval to such amendment, waiver or consent from the Required Lenders), then the Company shall be permitted to replace any such Lender (any such Lender, a “Subject Lender”) with one or more replacement financial institutions; provided, that (i) no Event of Default shall have occurred and be continuing at the time of such replacement, (ii) such replacement does not conflict with any Requirement of Law, (iii) each replacement financial institution shall purchase, at par, all Loans and other amounts owing to such Subject Lender on or prior to the date of replacement, (iv) the Borrowers shall be liable to such Subject Lender under Section 2.18 if any LIBOR Rate Loan owing to such Subject Lender shall be purchased other than on the last day of the Interest Period relating thereto, (v) each replacement financial institution, if not already a Lender, shall be reasonably satisfactory to the Administrative AgentRequired Lenders (determined for this purpose by excluding the Loans and Commitments of the Subject Lender from the numerator and the denominator of the calculation of Required Lenders) and the Company (such approvals not to be unreasonably withheld), (vi) if applicable, such replacement Lender must consent to such amendment, waiver or consent or must not be subject to such increased costs, (vii) such Subject Lender shall be obligated to make such replacement in accordance with the provisions of Section 9.6 (provided, that the Company shall be obligated to pay the registration and processing fee referred to therein), (viii) such Subject Lender is not an Issuing Lender with respect to any Letters of Credit outstanding (unless all such Letters of Credit

 

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are terminated or arrangements reasonably acceptable to such Issuing Lender (such as a “back-to-back” letter of credit) are made) and (ix) if applicable, the Subject Lender must be unwilling to withdraw the notice delivered to Company pursuant to Section 2.16, 2.17 or 2.19 (as applicable) upon ten (10) days prior written notice to the Subject Lender and Administrative Agent and/or must be unwilling to remedy its default upon three (3) days prior written notice to the Subject Lender and Administrative Agent. It is understood and agreed that if any Lender replaced hereunder fails to execute an Assignment Agreement, it shall be deemed to have entered into such Assignment Agreement. Upon the payment of all amounts owing to any Subject Lender, such Subject Lender shall no longer constitute a “Lender” for purposes hereof; provided, that any rights of such Subject Lender to indemnification hereunder shall survive as to such Subject Lender.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

To induce the Lenders to enter into this Credit Agreement and to make the Extensions of Credit herein provided for, the Credit Parties hereby represent and warrant to the Administrative Agent and to each Lender that:

Section 3.1 Financial Condition.

(a) The Company has delivered to the Administrative Agent and the Lenders:

(i) audited consolidated financial statements of the Parent and its Subsidiaries (including reconciliation information consistent with historical practices for the Company and its Restricted Subsidiaries) for the fiscal years ended December 31, 2003, 2004 and 2005, together with the related consolidated statements of income or operations, equity and cash flows for the fiscal years ended on such dates;

(ii) unaudited consolidated financial statements of the Parent and its Subsidiaries (including reconciliation information consistent with historical practices for the Company and its Restricted Subsidiaries) for each fiscal quarter of 2006 through the most recently ended fiscal quarter prior to the Effective Date for which financial statements are available, together with the related consolidated statements of income or operations, equity and cash flows for each such fiscal quarter;

(iii) pro forma consolidated financial statements of the Parent and its Restricted Subsidiaries (including reconciliation information consistent with historical practices for the Company and its Restricted Subsidiaries), after giving effect to the Acquisition, for the most recent four quarter period for which financial statements are available; and

 

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(iv) a pro forma balance sheet of the Parent and its Restricted Subsidiaries (including reconciliation information consistent with historical practices for the Company and its Restricted Subsidiaries), after giving effect to the Acquisition, as of the Effective Date.

Each of the financial statements described in the foregoing clauses (i) and (ii):

(A) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein;

(B) fairly present the financial condition of the applicable entities as of the date thereof and results of operations for the period covered thereby (subject, in the case of the unaudited financial statements, to (i) the absence of footnotes (except as required by applicable law) and (ii) normal year-end adjustments); and

(C) show all material Indebtedness and other material liabilities, direct or contingent, of the applicable entities as of the date thereof, including liabilities for taxes, material commitments and contingent obligations.

The financial statements described in the foregoing clauses (iii) and (iv) have been prepared in good faith based on assumptions believed by the Company to be reasonable as of the date of delivery thereof (it being understood that such assumptions are based on good faith estimates of certain items and that the actual amount of such items on the Effective Date is subject to change) and present fairly in all material respects on a Pro Forma Basis the financial position of the applicable entities as of the date thereof, assuming the occurrence of the Acquisition on the first day of such period.

(b) The eight-year projections (including quarterly projections for fiscal year 2007 and annual projections for each fiscal year thereafter) of balance sheets, income statements and cash flows of Parent and its Restricted Subsidiaries delivered to the Lenders on or prior to the Effective Date have been prepared in good faith based upon good faith estimates and assumptions believed by the Credit Parties to be reasonable at the time made, it being recognized by the Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from projected results.

Section 3.2 No Change.

(a) Since December 31, 2005, no Effective Date Material Adverse Change has occurred; provided that the representation and warranty in this sentence shall only be effective on the Effective Date.

 

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(b) Since December 31, 2005, there has been no development or event which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect; provided that the representation and warranty in this sentence shall only be effective after the Effective Date.

Section 3.3 Corporate Existence; Compliance with Law.

Each of the Credit Parties (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has the requisite power and authority and the legal right to own and operate all its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, (c) is duly qualified to conduct business and in good standing under the laws of (i) the jurisdiction of its organization, (ii) the jurisdiction where its chief executive office is located and (iii) each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification except to the extent that the failure to so qualify or be in good standing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the business or operations of the Credit Parties and their Restricted Subsidiaries in such jurisdiction and (d) is in compliance with all Requirements of Law, government permits and government licenses except to the extent that the failure to comply therewith could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The jurisdictions in which the Credit Parties as of the Effective Date are organized and qualified to do business are described on Schedule 3.3.

Section 3.4 Corporate Power; Authorization; Enforceable Obligations.

Each of the Credit Parties has full power and authority and the legal right to make, deliver and perform the Credit Documents to which it is party and has taken all necessary limited liability company or corporate action to authorize the execution, delivery and performance by it of the Credit Documents to which it is party. No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the borrowings hereunder or with the execution, delivery or performance of any Credit Document by any of the Credit Parties (other than those that have been obtained) or with the validity or enforceability of any Credit Document against any of the Credit Parties (except such filings as are necessary in connection with the perfection of the Liens created by such Credit Documents). Each Credit Document to which it is a party has been duly executed and delivered on behalf of each Credit Party. Each Credit Document to which it is a party constitutes a legal, valid and binding obligation of each Credit Party, enforceable against such Credit Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).

Section 3.5 No Legal Bar; No Default.

The execution, delivery and performance of the Credit Documents, the borrowings thereunder and the use of the proceeds of the Loans will not violate any Requirement of Law or

 

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any Contractual Obligation of any Credit Party (except those as to which waivers or consents have been obtained), and will not result in, or require, the creation or imposition of any Lien on any Credit Party’s properties or revenues pursuant to any Requirement of Law or Contractual Obligation other than the Liens arising under or contemplated in connection with the Credit Documents. Except to the extent such matters could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no Credit Party is in default under or with respect to any of its material Contractual Obligations. No Default or Event of Default has occurred and is continuing.

Section 3.6 No Material Litigation.

No litigation, investigation, claim, criminal prosecution, civil investigative demand, imposition of criminal or civil fines and penalties, or any other proceeding of or before any arbitrator or Governmental Authority is pending or, to the best knowledge of the Credit Parties, threatened by or against any Credit Party or any of its Subsidiaries or against any of its or their respective properties or revenues (a) with respect to the Credit Documents or any Loan or any of the transactions contemplated hereby, or (b) which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 3.7 Investment Company Act, Etc.

No Credit Party is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. No Credit Party is subject to regulation the Federal Power Act, the Interstate Commerce Act, or any federal or state statute or regulation limiting its ability to incur the Credit Party Obligations.

Section 3.8 Margin Regulations.

No part of the proceeds of any Extension of Credit hereunder will be used directly or indirectly for any purpose that violates, or that would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System as now and from time to time hereafter in effect. The Credit Parties and their Subsidiaries (a) are not engaged, principally or as one of their important activities, in the business of extending credit for the purpose of “purchasing” or “carrying” “margin stock” within the respective meanings of each of such terms under Regulation U and (b) taken as a group do not own “margin stock” except as identified in the financial statements referred to in Section 3.1 and the aggregate value of all “margin stock” owned by the Credit Parties and their Subsidiaries taken as a group does not exceed 25% of the value of their assets.

Section 3.9 ERISA.

Neither a Reportable Event nor an “accumulated funding deficiency” (within the meaning of Section 412 of the Code or Section 302 of ERISA) has occurred during the five (5) year period prior to the date on which this representation is made or deemed made with respect to any Plan, and each Plan has complied in all material respects with the applicable provisions of

 

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ERISA and the Code. No termination of a Single Employer Plan has occurred resulting in any liability that has remained underfunded, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period. The present value of all accrued benefits under each Single Employer Plan (based on those assumptions used to fund such Plans) did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Plan allocable to such accrued benefits, except to the extent such deficiency of assets could not reasonably be expected to have a Material Adverse Effect. Neither any Credit Party nor any Commonly Controlled Entity is currently subject to any liability for a complete or partial withdrawal from a Multiemployer Plan.

Section 3.10 Environmental Matters.

Except as, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect:

(a) The facilities and properties owned, leased or operated by the Credit Parties or any of their Subsidiaries (the “Properties”) do not contain any Materials of Environmental Concern in amounts or concentrations which (i) constitute a violation of, or (ii) could reasonably be expected to give rise to liability under, any Environmental Law.

(b) The Properties and all operations of the Credit Parties and/or their Subsidiaries at the Properties are in compliance, and have in the last five years been in compliance, with all applicable Environmental Laws, and there is no contamination at, under or about the Properties or violation of any Environmental Law with respect to the Properties or the business operated by the Credit Parties or any of their Subsidiaries (the “Business”).

(c) Neither the Credit Parties nor their Subsidiaries have received any written or actual notice of violation, alleged violation, non-compliance, liability or potential liability with respect to environmental matters or Environmental Laws regarding any of the Properties or the Business.

(d) Materials of Environmental Concern have not been transported or disposed of from the Properties in violation of, or in a manner or to a location that could reasonably be expected to give rise to liability under any Environmental Law, and no Materials of Environmental Concern have been generated, treated, stored or disposed of at, on or under any of the Properties in violation of, or in a manner that could reasonably be expected to give rise to liability under, any applicable Environmental Law.

(e) No judicial proceeding or governmental or administrative action is pending or, to the knowledge of the Credit Parties and their Subsidiaries, threatened, under any Environmental Law to which any Credit Party or any Subsidiary is or will be named as a party with respect to the Properties or the Business, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other

 

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administrative or judicial requirements outstanding under any Environmental Law with respect to the Properties or the Business.

(f) There has been no release or threat of release of Materials of Environmental Concern at or from the Properties, or arising from or related to the operations of any Credit Party or any Subsidiary in connection with the Properties or otherwise in connection with the Business, in violation of or in amounts or in a manner that could reasonably be expected to give rise to liability under Environmental Laws.

Section 3.11 Use of Proceeds.

The proceeds of the Extensions of Credit shall be used by the Borrowers solely (a) to finance the Acquisition, (b) to pay certain costs, fees and expenses in connection with the Acquisition, (c) to refinance certain existing Indebtedness of the Credit Parties and their Subsidiaries (including the Existing Credit Agreement), (d) to pay any fees and expenses associated with the Transactions on the Effective Date and (e) for working capital and other general corporate purposes of the Credit Parties and their Restricted Subsidiaries, including, without limitation for Permitted Acquisitions and for the financing of any dividends or distributions permitted pursuant to this Agreement.

Section 3.12 Subsidiaries.

Set forth on Schedule 3.12 is a complete and accurate list of all Subsidiaries of the Credit Parties. Information on the attached Schedule includes the following: (a) the number of shares of each class of Capital Stock or other equity interests outstanding; (b) the number and percentage of outstanding shares of each class of Capital Stock owned by the Credit Parties or any of their Subsidiaries; (c) the number and effect, if exercised, of all outstanding options, warrants, rights of conversion or purchase and similar rights; and (d) if applicable, the designation of any such Subsidiary as an Unrestricted Subsidiary. The outstanding Capital Stock and other equity interests of all such Subsidiaries is validly issued, fully paid and non-assessable and is owned free and clear of all Liens (other than those arising under or contemplated in connection with the Credit Documents). The Company shall update Schedule 3.12 from time to time by providing a replacement Schedule 3.12 to the Administrative Agent.

Section 3.13 Ownership.

Each of the Credit Parties and its Restricted Subsidiaries has (a) good, sufficient and legal title to (in the case of the fee interests in real property), (b) valid leasehold interests in (in the case of leasehold interests in real or personal property), (c) licensed rights (in the case of licensed rights in intellectual property) and (d) good title to (in the case of all other personal property) all of its assets, except where the failure to have any of the foregoing could not reasonably be expected to have a Material Adverse Effect, and none of such assets is subject to any Lien other than Permitted Liens.

 

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Section 3.14 Indebtedness.

Except as otherwise permitted under Section 6.1, the Credit Parties and their Restricted Subsidiaries have no Indebtedness.

Section 3.15 Taxes.

Each of the Credit Parties and their Restricted Subsidiaries has filed, or caused to be filed, all federal and state tax returns and all material local and foreign tax returns required to be filed and paid (a) all amounts of taxes shown thereon to be due (including interest and penalties) and (b) all other material taxes, fees, assessments and other governmental charges (including mortgage recording taxes, documentary stamp taxes and intangibles taxes) owing by it, except for such taxes (i) that are not yet delinquent or (ii) that are being contested in good faith and by proper proceedings, and against which adequate reserves are being maintained in accordance with GAAP; provided, that in the case of a tax, fee, assessment or other governmental charge or claim which has or may become a Lien against any of the Collateral, the Lien is not being enforced by foreclosure or sale of any portion of the Collateral to satisfy such charge or claim. None of the Credit Parties or their Restricted Subsidiaries is aware as of the Effective Date of any material proposed tax assessments against it or any of its Restricted Subsidiaries.

Section 3.16 Intellectual Property Rights.

Each of the Credit Parties and their Restricted Subsidiaries owns, or has the legal right to use, all Intellectual Property, tradenames, technology, know-how and processes necessary for each of them to conduct its business as currently conducted, except to the extent the failure to own or have such right could not reasonably be expected to have a Material Adverse Effect. Set forth on Schedule 3.16 is a list of all applications and registrations pertaining to Intellectual Property owned by each of the Credit Parties and their Restricted Subsidiaries, as well as all license agreements (other than agreements with respect to off-the-shelf software) pertaining to Copyright Licenses, Patent Licenses and Trademark Licenses with respect to which annual payments in excess of $50,000 are made or received, as of the Effective Date or as of the last date such Schedule was last updated in accordance with the terms of Section 5.2(c). Except as disclosed in Schedule 3.16 hereto, (a) the specified Credit Party has the right to use the Intellectual Property disclosed in Schedule 3.16 hereto without payment of royalties, (b) all registrations with and applications to Governmental Authorities in respect of such Intellectual Property are valid and in full force and effect and (c) there are no restrictions on the direct or indirect transfer of any Contractual Obligation, or any interest therein, held by any of the Credit Parties in respect of such Intellectual Property, in each case except as could not reasonably be expected to have a Material Adverse Effect. Except as provided on Schedule 3.16, no claim has been asserted and is pending by any Person challenging or questioning the use of any such Intellectual Property or the validity or effectiveness of any such Intellectual Property, nor do the Credit Parties or any of their Restricted Subsidiaries know of any such claim, in each case which could reasonably be expected to have a Material Adverse Effect; and, to the knowledge of the Credit Parties and their Restricted Subsidiaries, the use of such Intellectual Property by the Credit Parties or any of their Restricted Subsidiaries does not infringe on the rights of any Person

 

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which could reasonably be expected to have a Material Adverse Effect. The Company shall update Schedule 3.16 from time to time in accordance with the terms of Section 5.2(c).

Section 3.17 Solvency.

After giving effect to the Transactions, the fair saleable value of the assets of the Credit Parties, taken as a whole, measured on a going concern basis, exceeds all probable liabilities of the Credit Parties, taken as a whole, including those to be incurred pursuant to this Credit Agreement. The Credit Parties, taken as a whole, (a) do not have unreasonably small capital in relation to the business in which they are or propose to be engaged or (b) have not incurred, or believe that they will not incur after giving effect to the Acquisition and the other transactions contemplated by this Credit Agreement, debts beyond their ability to pay such debts as they become due. In executing the Credit Documents and consummating the Transactions, none of the Credit Parties intends to hinder, delay or defraud either present or future creditors or other Persons to which one or more of the Credit Parties is or will become indebted.

Section 3.18 Investments.

All Investments of each of the Credit Parties and their Restricted Subsidiaries are Permitted Investments.

Section 3.19 Location of Collateral.

Set forth on Schedule 3.19(a) is a list of all Properties of the Credit Parties and their Restricted Subsidiaries as of the Effective Date with street address, county and state where located. Set forth on Schedule 3.19(b) is a list of all locations where any tangible personal property of the Credit Parties and their Restricted Subsidiaries is located as of the Effective Date, including county and state where located. Set forth on Schedule 3.19(c) is the state of incorporation or organization, the chief executive office and the principal place of business of each of the Credit Parties and their Restricted Subsidiaries as of the Effective Date.

Section 3.20 No Burdensome Restrictions.

None of the Credit Parties or their Subsidiaries is a party to any agreement or instrument or subject to any other obligation or any charter or corporate restriction or any provision of any applicable law, rule or regulation which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

Section 3.21 Brokers’ Fees.

None of the Credit Parties or their Restricted Subsidiaries has any obligation to any Person in respect of any finder’s, broker’s, investment banking or other similar fee in connection with any of the transactions contemplated under the Credit Documents other than the closing and other fees payable pursuant to this Credit Agreement and the as set forth in the Fee Letter.

 

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Section 3.22 Labor Matters.

There are no collective bargaining agreements or Multiemployer Plans covering the employees of the Credit Parties or any of their Restricted Subsidiaries as of the Effective Date, other than as set forth in Schedule 3.22 hereto, and none of the Credit Parties or their Restricted Subsidiaries (i) has suffered any strikes, walkouts, work stoppages or other material labor difficulty within the last five years, other than as set forth in Schedule 3.22 hereto, or (ii) has knowledge of any potential or pending strike, walkout or work stoppage, in each case that could reasonably be expected to have a Material Adverse Effect. Other than as set forth on Schedule 3.22, no unfair labor practice complaint is pending against any Credit Party or any of its Restricted Subsidiaries that could reasonably be expected to have a Material Adverse Effect.

Section 3.23 Accuracy and Completeness of Information.

All factual information heretofore, contemporaneously or hereafter furnished in writing by or on behalf of any Credit Party or any of its Subsidiaries to the Administrative Agent, the Arrangers or any Lender for purposes of or in connection with this Credit Agreement or any other Credit Document, or any transaction contemplated hereby or thereby, when taken as a whole, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances in which the same were made.

Section 3.24 Insurance.

The present insurance coverage of the Credit Parties and their Restricted Subsidiaries is outlined as to carrier, policy number, expiration date, type and amount on Schedule 3.24 and such insurance coverage complies with the requirements set forth in Section 5.5(b). Schedule 3.24 may be updated from time to time by the Company to include additional insurance coverage by giving written notice thereof to the Administrative Agent.

Section 3.25 Security Documents.

The Security Documents create valid security interests in, and Liens on, the Collateral purported to be covered thereby. Except as set forth in the Security Documents, such security interests and Liens are currently (or will be, upon (a) the filing of appropriate financing statements with the Secretary of State of the state of incorporation for each Credit Party, the filing of appropriate assignments or notices with the United States Patent and Trademark Office and the United States Copyright Office, and the recordation of the applicable Mortgage Instruments, in each case in favor of the Administrative Agent, on behalf of the Lenders, and (b) the Administrative Agent obtaining Control (as defined in the Security Agreement) over those items of Collateral in which a security interest is perfected through Control) perfected security interests and Liens, prior to all other Liens other than Permitted Liens.

 

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Section 3.26 Classification of Senior Indebtedness.

The Credit Party Obligations constitute “Senior Indebtedness” under and as defined in any agreement governing any Subordinated Debt and the subordination provisions set forth in each such agreement are legally valid and enforceable against the parties thereto.

Section 3.27 Anti-Terrorism Laws.

Neither any Credit Party nor any of its Subsidiaries is an “enemy” or an “ally of the enemy” within the meaning of Section 2 of the Trading with the Enemy Act of the United States of America (50 U.S.C. App. §§ 1 et seq.), as amended. Neither any Credit Party nor any or its Subsidiaries is in violation of (a) the Trading with the Enemy Act, as amended, (b) any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto or (c) the Patriot Act (as defined in Section 9.18). None of the Credit Parties (i) is a blocked person described in section 1 of the Anti-Terrorism Order or (ii) to the best of its knowledge, engages in any dealings or transactions, or is otherwise associated, with any such blocked person.

Section 3.28 Compliance with OFAC Rules and Regulations.

None of the Credit Parties or their Subsidiaries or their respective Affiliates (a) is a Sanctioned Person, (b) has more than 15% of its assets in Sanctioned Countries, or (c) derives more than 15% of its operating income from investments in, or transactions with Sanctioned Persons or Sanctioned Countries. No part of the proceeds of any Extension of Credit hereunder will be used directly or indirectly to fund any operations in, finance any investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned Country.

Section 3.29 Directors; Capitalization.

Set forth on Schedule 3.29 is a list of the directors of Holdco’s Governing Body as of the Effective Date. As of the Effective Date, the capitalization of the Parent shall be as set forth on Schedule 3.29.

Section 3.30 Consummation of Acquisition; Representations and Warranties from Other Documents.

The Acquisition and related transactions have been consummated substantially in accordance with the terms of the Acquisition Documents as of the Effective Date. As of the Effective Date, the Acquisition Documents have not been altered, amended or otherwise modified or supplemented in any material respect or any material condition thereof waived without the prior written consent of the Administrative Agent.

Section 3.31 Compliance with FCPA.

Each of the Credit Parties and their Subsidiaries is in compliance with the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq., and any foreign counterpart thereto, except

 

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to the extent that the failure to comply therewith could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. None of the Credit Parties and their Subsidiaries has made a payment, offering, or promise to pay, or authorized the payment of, money or anything of value (a) in order to assist in obtaining or retaining business for or with, or directing business to, any foreign official, foreign political party, party official or candidate for foreign political office, (b) to a foreign official, foreign political party or party official or any candidate for foreign political office, and (c) with the intent to induce the recipient to misuse his or her official position to direct business wrongfully to such Credit Party or its Subsidiary or to any other Person, in violation of the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq, except to the extent that the same could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

ARTICLE IV

CONDITIONS PRECEDENT

Section 4.1 Conditions to Effective Date.

This Credit Agreement shall become effective upon, and the obligation of each Lender to make the initial Revolving Loans and Term Loans on the Effective Date is subject to, the satisfaction of the following conditions precedent:

(a) Execution of Credit Agreement; Credit Documents and Lender Consents. The Administrative Agent shall have received (i) counterparts of this Credit Agreement, executed by a duly authorized officer of each party hereto, (ii) for the account of each Lender with a Revolving Commitment requesting a promissory note, a Revolving Note, (iii) for the account of each Lender with an Initial Term Loan Commitment requesting a promissory note, an Initial Term Loan Note, (iv) for the account of each Lender with a Delayed Draw Term Loan Commitment requesting a promissory note, a Delayed Draw Term Loan Note, (v) for the account of the Swingline Lender, the Swingline Note, (vi) counterparts of the Security Agreement, the Pledge Agreement and each Mortgage Instrument, in each case conforming to the requirements of this Credit Agreement and executed by duly authorized officers of the Credit Parties or other Person, as applicable, (viivi) executed consents, in the form of Schedule 4.1(a), from each Lender authorizing the Administrative Agent to enter this Credit Agreement on their behalf, and (viiivii) counterparts of any other Credit Document, executed by the duly authorized officers of the parties thereto.

(b) Authority Documents. The Administrative Agent shall have received the following:

(i) Articles of Incorporation. Copies of the articles of incorporation or other charter documents, as applicable, of each Credit Party certified (A) by a secretary or assistant secretary of such Credit Party (pursuant to a secretary’s certificate in substantially the form of Schedule 4.1(b) attached hereto) as of the

 

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Effective Date to be true and correct and in force and effect as of such date, and (B) to be true and complete as of a recent date by the appropriate Governmental Authority of the state of its incorporation or organization, as applicable.

(ii) Resolutions. Copies of resolutions of the Governing Body of each Credit Party approving and adopting the Credit Documents, the transactions contemplated therein and authorizing execution and delivery thereof, certified by a secretary or assistant secretary of such Credit Party (pursuant to a secretary’s certificate in substantially the form of Schedule 4.1(b) attached hereto) as of the Effective Date to be true and correct and in force and effect as of such date.

(iii) Bylaws. A copy of the bylaws or comparable operating agreement of each Credit Party certified by a secretary or assistant secretary of such Credit Party (pursuant to a secretary’s certificate in substantially the form of Schedule 4.1(b) attached hereto) as of the Effective Date to be true and correct and in force and effect as of such date.

(iv) Good Standing. Copies of certificates of good standing, existence or its equivalent with respect to each Credit Party certified as of a recent date by the appropriate Governmental Authorities of the state of incorporation and each other state in which the failure to so qualify and be in good standing could reasonably be expected to have a Material Adverse Effect on the business or operations of the Credit Parties and their Restricted Subsidiaries in such state.

(v) Incumbency. An incumbency certificate of each Credit Party certified by a secretary or assistant secretary (pursuant to a secretary’s certificate in substantially the form of Schedule 4.1(b) attached hereto) to be true and correct as of the Effective Date.

(c) Legal Opinion of Counsel. The Administrative Agent shall have received an opinion or opinions of counsel (including special and local counsel, to the extent reasonably required by the Administrative Agent) for the Credit Parties, dated the Effective Date and addressed to the Administrative Agent and the Lenders, in form and substance acceptable to the Administrative Agent (which shall include, without limitation, opinions with respect to the valid existence of each Credit Party, opinions as to perfection of the Liens granted to the Administrative Agent pursuant to the Security Documents and opinions as to the non-contravention of the Credit Parties’ organizational documents and scheduled Material Contracts).

(d) Personal Property Collateral. The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent:

(i) (A) searches of Uniform Commercial Code filings in the jurisdiction of the chief executive office of each Credit Party and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Lenders’ security interest in the Collateral, copies of the financing

 

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statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and (B) tax lien, judgment and pending litigation searches;

(ii) searches of ownership of Intellectual Property of the Credit Parties in the appropriate governmental offices and such patent/trademark/copyright filings as requested by the Administrative Agent in order to perfect the Administrative Agent’s security interest in the Intellectual Property;

(iii) completed UCC financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s sole discretion, to perfect the Lenders’ security interest in the Collateral;

(iv) with respect to the stock or membership certificates, if any, evidencing the Capital Stock pledged to the Administrative Agent pursuant to the Pledge Agreement, duly executed in blank undated stock or transfer powers;

(v) in the case of any personal property Collateral located at premises leased by a Credit Party and set forth on Schedule 3.19(a), such estoppel letters, consents and waivers from the landlords of such real property, to the extent the Company is able to secure such letters, consents and waivers after using commercially reasonable efforts (such letters, consents and waivers shall be in form and substance satisfactory to the Administrative Agent);

(vi) duly executed consents as are necessary, in the Administrative Agent’s sole discretion, to perfect the Lenders’ security interest in the Collateral.

(e) Real Property Collateral. The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and the Lenders, fully executed and notarized amendments to the existing Mortgage Instruments encumbering the Mortgaged Properties listed in Schedule 3.19(a) as properties owned by the Credit Parties (other than the Mortgaged Property located at 9 Long Pond Road, Plymouth, Massachusetts) and, to the extent required by the Administrative Agent, the leasehold interest in the Mortgaged Properties listed in Schedule 3.19(a) as properties that are warehouses, plants or other real properties material to the conduct of the Credit Parties’ business and are leased by the Credit Parties, along with any additional documentation relating to the Mortgaged Properties as the Administrative Agent deems appropriate;

(f) Liability, Casualty, Property and Business Interruption Insurance. The Administrative Agent shall have received copies of insurance policies or certificates of insurance evidencing liability, casualty, property and business interruption insurance meeting the requirements set forth herein or in the Security Documents. The Administrative Agent shall be named as loss payee/mortgagee and/or additional insured (with respect to Collateral only) with respect to any covered loss in excess of $250,000 under any such insurance providing liability coverage or coverage in respect of any Collateral, and each provider of any such insurance shall agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to the

 

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Administrative Agent, that it will give thirty (30) days prior written notice before any such policy or policies shall be altered or cancelled.

(g) Reports. The Administrative Agent shall have received a copy of each material report required to be delivered pursuant to the Acquisition Documents in connection with the Acquisition and related transactions (and the Company will use reasonable efforts to obtain evidence that the Administrative Agent and the Lenders have been authorized to rely on each such report), all in form and substance reasonably satisfactory to the Administrative Agent.

(h) Litigation. There shall not exist any pending litigation or investigation affecting or relating to any Credit Party or any of its Restricted Subsidiaries that in the reasonable judgment of the Administrative Agent, individually or in the aggregate, restrains, prevents or otherwise imposes materially adverse conditions on the Transactions or that could reasonably be expected to have a Material Adverse Effect.

(i) Solvency Certificate. The Administrative Agent shall have received an officer’s certificate prepared by the chief financial officer of the Company as to the financial condition, solvency and related matters of the Credit Parties and their Restricted Subsidiaries, after giving effect to the Acquisition and the initial borrowings under the Credit Documents, in substantially the form of Schedule 4.1(i) hereto.

(j) Account Designation Letter. The Administrative Agent shall have received the executed Account Designation Letter in the form of Schedule 1.1(a) hereto.

(k) Notice of Borrowing. The Administrative Agent shall have received a Notice of Borrowing with respect to the Revolving Loans and Delayed Draw Term Loans to be made on the Effective Date.

(l) Corporate Structure. The pro forma capital and ownership structure and the shareholding arrangements of Holdco and its Subsidiaries (and all agreements relating thereto) shall be reasonably satisfactory to the Arrangers (it being understood that such structure and arrangements that have been disclosed to the Arrangers as of February 5, 2007 are satisfactory). The Arrangers shall be satisfied that there are no material restrictions on the ability of any subsidiary of the Company to pay dividends or distributions to, or otherwise advance, directly or indirectly, funds to the Company other than those restrictions set forth herein. The Arrangers shall be satisfied with the terms and amounts of any intercompany loans among the Credit Parties and the flow of funds in connection with the closing.

(m) Acquisition Documents. The Arrangers shall have received, in form and substance reasonably satisfactory to the Arrangers, copies of documentation for the Acquisition and other aspects of the Transactions, including the Acquisition Documents and all schedules thereto (it being understood that the documentation provided to the Arrangers in draft form as of February 5, 2007 is satisfactory). The Acquisition shall have been consummated in accordance with the terms and conditions of the Acquisition

 

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Documents (including, without limitation, the receipt of all applicable consents necessary in connection therewith) without any waiver, modification or consent thereunder that is materially adverse to the Lenders (as reasonably determined by the Arrangers) unless approved by the Arrangers. Simultaneously with the closing of this Agreement, the Parent shall contribute or assign the Capital Stock of the Acquired Company or its rights under the Acquisition Documents to any of the Credit Parties other than Holdco.

(n) Compliance with Laws. The financings and other Transactions shall be in compliance with all applicable laws and regulations (including all applicable securities and banking laws, rules and regulations).

(o) Bankruptcy. There shall be no bankruptcy or insolvency proceedings with respect to Credit Parties or any of their Subsidiaries.

(p) Existing Indebtedness of the Credit Parties. All of the existing Indebtedness for borrowed money of the Parent, the Credit Parties and their Restricted Subsidiaries (other than Indebtedness permitted to exist pursuant to Section 6.1) shall be repaid in full and all security interests related thereto shall be terminated on the Effective Date.

(q) Financial Statements. The Administrative Agent and the Lenders shall have received copies of the financial statements referred to in Section 3.1 hereof, each in form and substance satisfactory to it.

(r) No Material Adverse Change. Since December 31, 2005, there shall not have occurred any material adverse condition or material adverse change in or affecting, or the occurrence of any circumstance or condition that could reasonably be expected to result in a material adverse change in or affecting, the business, operations, financial condition or assets of the Parent and its Subsidiaries (after giving effect to the Acquisition), taken as a whole (an “Effective Date Material Adverse Change”); provided that in no event shall any of the following be an Effective Date Material Adverse Change or be taken into account in the determination of whether any Effective Date Material Adverse Change has occurred for purposes of this Agreement: (i) any change resulting from conditions affecting the industry in which the Parent or any of its Subsidiaries (after giving effect to the Acquisition) operates or from changes in general business or economic conditions; (ii) any change resulting from the announcement or pendency of the Acquisition; or (iii) changes in generally accepted accounting principals in the United States after the date hereof, except for such changes, events, circumstances or developments, in the case of clause (i) or (iii), which adversely affect the Parent and its Subsidiaries (after giving effect to the Acquisition) in a materially disproportionate manner relative to other participants in the industry or industries in which the Parent and/or such Subsidiaries operate.

(s) Financial Condition Certificate. The Administrative Agent shall have received a certificate or certificates executed by a Responsible Officer of the Company as of the Effective Date stating that immediately after giving effect to this Credit

 

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Agreement, the other Credit Documents, and all the Transactions contemplated to occur on the Effective Date, (i) no Default or Event of Default exists and (ii) all representations and warranties contained herein and in the other Credit Documents (A) that contain a materiality qualification are true and correct and (B) that do not contain a materiality qualification are true and correct in all material respects.

(t) Patriot Act Certificate. The Administrative Agent shall have received a certificate satisfactory thereto, for benefit of itself and the Lenders, provided by the Company that sets forth information required by the Patriot Act (as defined in Section 9.18) including, without limitation, the identity of the Credit Parties, the name and address of the Credit Parties and other information that will allow the Administrative Agent or any Lender, as applicable, to identify the Credit Parties in accordance with the Patriot Act.

(u) Fees. The Administrative Agent and the Lenders shall have received all fees, if any, owing pursuant to the Fee Letter and Section 2.7.

Section 4.2 Conditions to All Extensions of Credit.

The obligation of each Lender to make any Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent on the date of making such Extension of Credit:

(a) Representations and Warranties. The representations and warranties made by the Credit Parties herein and in the other Credit Documents shall (i) with respect to representations and warranties that contain a materiality qualification, be true and correct and (ii) with respect to representations and warranties that do not contain a materiality qualification, be true and correct in all material respects, in each case on and as of the date of such Extension of Credit as if made on and as of such date (except for those which expressly relate to an earlier date).

(b) No Default or Event of Default. No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the Extension of Credit to be made on such date unless such Default or Event of Default shall have been waived in accordance with this Credit Agreement.

(c) Total Leverage Ratio. The Administrative Agent shall have received evidence that, after giving pro forma effect to such Extension of Credit, the Credit Parties are in compliance with the Incurrence Test, such evidence to include calculations in reasonable detail required to demonstrate the Total Leverage Ratio.

(d) Compliance with Commitments. Immediately after giving effect to the making of any such Extension of Credit (and the application of the proceeds thereof), (i) the sum of the aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding LOC Obligations shall not exceed the Revolving Committed Amount then in effect, and (iiii) the LOC Obligations shall not

 

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exceed the LOC Committed Amount and (iii) the Swingline Loans shall not exceed the SwinglineLOC Committed Amount.

(e) Additional Conditions to Revolving Loans. If a Revolving Loan is requested, all conditions set forth in Section 2.1 shall have been satisfied.

(f) Additional Conditions to Initial Term Loan. If the Initial Term Loan is requested, all conditions set forth in Section 2.2 shall have been satisfied.

(g) Additional Conditions to Delayed Draw Term Loan. If a Delayed Draw Term Loan is requested, all conditions set forth in Section 2.3 shall have been satisfied.

(h) Additional Conditions to Letters of Credit. If the issuance of a Letter of Credit is requested, all conditions set fort in Section 2.4 shall have been satisfied.

(i) Additional Conditions to Swingline Loans. If a Swingline Loan is requested, all conditions set forth in Section 2.5 shall have been satisfied.(j) Additional Conditions to Incremental Facility. If an Additional Loan is requested, all conditions set forth in Section 2.6 shall have been satisfied.

Each request for an Extension of Credit and each acceptance by the Borrowers of any such Extension of Credit shall be deemed to constitute representations and warranties by the Credit Parties as of the date of such Extension of Credit that the conditions set forth above in paragraphs (a) through (ji), as applicable, have been satisfied.

ARTICLE V

AFFIRMATIVE COVENANTS

The Credit Parties hereby covenant and agree that on the Effective Date, and thereafter for so long as this Credit Agreement is in effect and until the Commitments have terminated, no Note remains outstanding and unpaid and the Credit Party Obligations (other than Unasserted Obligations) owing to the Administrative Agent or any Lender hereunder are paid in full, the Credit Parties shall, and shall cause each of their Restricted Subsidiaries (other than in the case of Sections 5.1 or 5.2 hereof), to:

Section 5.1 Financial Statements.

Furnish to the Administrative Agent (and the Administrative Agent shall promptly distribute to each of the Lenders):

(a) Annual Financial Statements. As soon as available and in any event no later than the earlier of (i) to the extent applicable, the date the Parent is required by the SEC to deliver its Form 10-K for any fiscal year of the Parent and (ii) one hundred twenty (120) days after the end of each fiscal year of the Parent, a copy of the

 

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consolidated balance sheet of the Parent and its consolidated Restricted Subsidiaries (including reconciliation information consistent with historical practices for the Company and its Restricted Subsidiaries) as at the end of such fiscal year and the related consolidated statements of income and retained earnings and of cash flows of the Parent and its consolidated Restricted Subsidiaries (including reconciliation information consistent with historical practices for the Company and its Restricted Subsidiaries) for such year, which (in the case of the Parent and its Restricted Subsidiaries) shall be audited by a firm of independent certified public accountants of nationally recognized standing reasonably acceptable to the Administrative Agent, setting forth in each case in comparative form the figures for the previous year, reported on without a “going concern” or like qualification or exception, or qualification indicating that the scope of the audit was inadequate to permit such independent certified public accountants to certify such financial statements without such qualification;

(b) Quarterly Financial Statements. As soon as available and in any event no later than the earlier of (i) to the extent applicable, the date the Parent is required by the SEC to deliver its Form 10-Q for any fiscal quarter of the Parent and (ii) sixty (60) days after the end of each fiscal quarter of the Parent, a copy of the consolidated balance sheet of the Parent and its consolidated Restricted Subsidiaries (including reconciliation information consistent with historical practices for the Company and its Restricted Subsidiaries) as at the end of such period and related consolidated statements of income and retained earnings and of cash flows of the Parent and its consolidated Restricted Subsidiaries (including reconciliation information consistent with historical practices for the Company and its Restricted Subsidiaries) for such quarterly period and for the portion of the fiscal year ending with such period, in each case setting forth in comparative form consolidated figures for the corresponding period or periods of the preceding fiscal year (subject to normal recurring year-end audit adjustments); and

(c) Annual Operating Budget and Cash Flow. As soon as available, but in any event within forty-five (45) days after the end of each fiscal year, a copy of the detailed annual operating budget or plan of the Parent and its Restricted Subsidiaries for the next four fiscal quarter period prepared on a quarterly basis, in form and detail reasonably acceptable to the Administrative Agent,Required Lenders (it being agreed that (i) the foregoing does not require the substance of such annual operating budget or plan to be acceptable to the Required Lenders and (ii) from and after the time that Gleacher becomes Administrative Agent, the form and detail of such annual budget or plan as has been previously delivered pursuant to this paragraph (c) prior to the time that Gleacher was Administrative Agent shall be deemed to be acceptable to the Required Lenders) together with a summary of the material assumptions made in the preparation of such annual budget or plan;

all such financial statements to be complete and correct in all material respects (subject, in the case of interim statements, to the absence of footnotes (except as required by applicable law) and normal recurring year-end audit adjustments) and to be prepared in reasonable detail and, in the case of the annual and quarterly financial statements provided in accordance with subsections (a) and (b) above, in accordance with GAAP applied consistently throughout the periods reflected

 

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therein and further accompanied by a description of, and an estimation of the effect on the financial statements on account of, a change, if any, in the application of accounting principles as provided in Section 1.3.

Section 5.2 Certificates; Other Information.

Furnish to the Administrative Agent and each of the Lenders:

(a) concurrently with the delivery of the financial statements referred to in Section 5.1(a) above, a certificate of the independent certified public accountants reporting on such financial statements stating that in making the examination necessary therefor no knowledge was obtained of any Default or Event of Default, except as specified in such certificate;

(b) concurrently with the delivery of the financial statements referred to in Sections 5.1(a) and 5.1(b) above, a certificate of a Responsible Officer stating that such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate and such certificate shall include the calculations in reasonable detail required to demonstrate the Total Leverage Ratio for purposes of determining the Applicable Percentage and to indicate compliance, to the extent that there are outstanding Extensions of Credit under the Revolving Facility, with Section 5.9 as of the last day of such period;

(c) concurrently with or prior to the delivery of the financial statements referred to in Sections 5.1(a) and 5.1(b) above, (i) an updated copy of Schedule 3.12 if the Credit Parties or any of their Subsidiaries have formed or acquired a new Subsidiary since the Effective Date or since Schedule 3.12 was last updated, as applicable and (ii) an updated copy of Schedule 3.16 if the Credit Parties or any of their Restricted Subsidiaries have registered, applied for registration of, acquired or otherwise obtained ownership of any new applications or registrations pertaining to Intellectual Property, or have entered into any license agreements (other than agreements with respect to off-the-shelf software) pertaining to Copyright Licenses, Patent Licenses or Trademark Licenses with respect to which annual payments in excess of $50,000 are made or received, since the Effective Date or since Schedule 3.16 was last updated, as applicable;

(d) promptly upon their becoming available, (i) copies of all reports (other than those otherwise provided pursuant to Section 5.1 and those which are of a promotional nature) and other financial information which the Parent and the Credit Parties send to their shareholders, (ii) copies of all reports and all registration statements and prospectuses, if any, which a Credit Party may make to, or file with, the Securities and Exchange Commission (or any successor or analogous Governmental Authority) or any securities exchange or other private regulatory authority and (iii) all press releases and other statements made available by the Parent or any of the Credit Parties to the public concerning material developments in the business of any of the Credit Parties; provided, that all such deliveries pursuant to this paragraph (d) shall be deemed satisfied

 

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if such reports, press releases or other information are readily available from public sources;

(e) concurrently with or prior to the delivery of the financial statements referred to in Sections 5.1(a) above, a certificate containing information regarding the amount of all Asset Dispositions, Debt Issuances, and Equity Issuances that were made during the prior fiscal year and amounts received in connection with any Recovery Event during the prior fiscal year together with a statement demonstrating a calculation of Excess Cash Flow;

(f) promptly upon receipt thereof, a copy or summary of any other report, or “management letter” or similar report submitted by independent accountants to the Credit Parties or any of their Restricted Subsidiaries in connection with any annual, interim or special audit of the books of such Person (to the extent the Credit Parties are authorized to deliver such management letter); and

(g) promptly, such additional financial and other information as the Administrative Agent, on behalf of any Lender, may from time to time reasonably request.

Section 5.3 Payment of Taxes and Other Obligations.

Pay all material taxes, assessments and other governmental charges imposed upon it or any of its properties or assets or in respect of any of its income, businesses or franchises before any material penalty accrues thereon, and all material claims (including claims for labor, services, materials and supplies) for sums that have become due and payable and that by law have or may become a Lien upon any of the Collateral, prior to the time when any material penalty or fine shall be incurred with respect thereto; provided, that no such tax, assessment, charge or claim need be paid if it is being contested in good faith by appropriate proceedings, so long as (a) such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefore and (b) in the case of a tax, assessment, charge or claim which has or may become a Lien against any of the Collateral, the Lien is not being enforced by foreclosure or sale of any portion of the Collateral to satisfy such charge or claim.

Section 5.4 Conduct of Business and Maintenance of Existence.

(a) Except as permitted under Section 6.4, continue to engage in business of the same general type as now conducted by it on the Effective Date and preserve, renew and keep in full force and effect its corporate existence and take all reasonable action to maintain all rights, privileges, licenses, consents, approvals and franchises material to the conduct of its business; provided, however that neither Holdco nor any of its Restricted Subsidiaries shall be required to preserve any such right, privilege, license, consent, approval or franchise if such entity shall determine that the preservation thereof is no longer desirable in the conduct of its business and that the loss thereof could not reasonably be expected to result in a Material Adverse Effect.

 

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(b) Comply in all material respects with all Contractual Obligations except to the extent that failure to comply therewith could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 5.5 Maintenance of Property; Insurance.

(a) Keep all tangible material property useful and necessary in its business in good working order and condition (ordinary wear and tear and obsolescence excepted).

(b) Maintain with financially sound and reputable insurance companies (i) liability, casualty, property and business interruption insurance (including, without limitation, insurance with respect to its tangible Collateral) in at least such amounts and against at least such risks as are usually insured against in the same general area by companies engaged in the same or a similar business and (ii) flood insurance with respect to any Property located in a flood plain to the extent required by law; and in each case furnish to the Administrative Agent, upon the request of the Administrative Agent or the Required Lenders, full information as to the insurance carried. The Administrative Agent shall be named as loss payee or mortgagee, as its interest may appear, and/or additional insured (with respect to Collateral only) with respect to any covered loss in excess of $250,000 under any such casualty, property and liability insurance, as applicable, and each provider of any such insurance shall agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to the Administrative Agent, that it will give the Administrative Agent thirty (30) days prior written notice before any such policy or policies shall be altered or canceled, and such policies shall provide that no act or default (other than nonpayment of policy premiums and fees) of the Credit Parties or any of their Restricted Subsidiaries or any other Person shall affect the rights of the Administrative Agent or the Lenders under such policy or policies.

Section 5.6 Inspection of Property; Books and Records; Discussions.

Keep proper books of records and account in which full, true and correct entries in material conformity with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to its businesses and activities; and permit, during regular business hours and upon reasonable notice by the Administrative Agent, the Administrative Agenta third party designated by the Required Lenders (which may include the Administrative Agent or any Lender; provided that if such designee is not the Administrative Agent or a Lender, such designee shall have delivered a confidentiality undertaking to the Company substantially consistent with that given by the Administrative Agent and the Lenders in Section 9.15 (as though such designee were a Lender and which shall permit disclosure to the Administrative Agent, Lenders and Participants)) (or after the occurrence and during the continuance of an Event of Default, any Lender) to visit and inspect any of its properties and examine and make abstracts from any of its books and records at any reasonable time and as often as may reasonably be desired, and to discuss the business, operations, property, assets or financial condition of the Credit Parties or any of their Restricted Subsidiaries with officers and employees of the Credit Parties or any of their Restricted Subsidiaries and with their independent certified public accountants; provided, that so long as no Event of Default has occurred and is continuing,

 

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the Credit Parties shall only be required to pay the fees and expenses of a designee of the Administrative AgentRequired Lenders for one such inspection in any fiscal year.

Section 5.7 Notices.

Give notice in writing to the Administrative Agent (which shall promptly transmit such notice to each Lender) of:

(a) promptly, but in any event within two (2) Business Days after any Responsible Officer of the Company obtains knowledge thereof, the occurrence of any Default or Event of Default;

(b) promptly, any default or event of default under any Contractual Obligation of any Credit Party or any of their Subsidiaries which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect;

(c) promptly upon any officer of the Company obtaining knowledge of (i) the institution of, or non-frivolous threat of, any litigation, investigation or proceeding against or affecting Holdco or any of its Restricted Subsidiaries or any property of Holdco or any of its Restricted Subsidiaries not previously disclosed in writing by the Company to Lenders or (ii) any material development in any litigation, investigation or proceeding that, in any case:

(A) if adversely determined, after giving effect to the coverage and policy limits of insurance policies issued to Holdco and its Restricted Subsidiaries, could reasonably be expected to result in a Material Adverse Effect; or

(B)(B) seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the making, securing or repayment of the Credit Party Obligations hereunder or the application of proceeds thereof;

written notice thereof together with such other information as may be reasonably available to the Company to enable Lenders and their counsel to evaluate such matters;

(d) promptly, any labor controversy that has resulted in, or threatens to result in, a strike or other work action against any Credit Party which could reasonably be expected to have a Material Adverse Effect;

(e) as soon as possible and in any event within thirty (30) days after any Responsible Officer of the Company obtains knowledge thereof: (i) the occurrence or expected occurrence of any Reportable Event with respect to any Plan, a failure to make any required contribution to a Plan, the creation of any Lien in favor of the PBGC (other than a Permitted Lien) or a Plan or any withdrawal from, or the termination, Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or the taking of any other action by the PBGC or any Credit Party, any

 

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Commonly Controlled Entity or any Multiemployer Plan, with respect to the withdrawal from, or the terminating, Reorganization or Insolvency of, any Plan;

(f) promptly, upon any Responsible Officer of the Company obtaining knowledge of any notice of any material violation received by any Credit Party from any Governmental Authority including, without limitation, any notice of material violation of Environmental Laws; and

(g) promptly, any other development or event which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action the Credit Parties propose to take with respect thereto. In the case of any notice of a Default or Event of Default, the Company shall specify that such notice is a Default or Event of Default notice on the face thereof.

Section 5.8 Environmental Laws.

(a) Except to the extent such failure could not be reasonably expected to have a Material Adverse Effect, comply in all material respects with, and ensure compliance in all material respects by all tenants and subtenants, if any, with, all applicable Environmental Laws and obtain and comply in all material respects with and maintain, and ensure that all tenants and subtenants obtain and comply in all material respects with and maintain, any and all licenses, approvals, notifications, registrations or permits required by applicable Environmental Laws;

(b) Except to the extent such failure could not be reasonably expected to have a Material Adverse Effect, conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under Environmental Laws and promptly comply in all material respects with all lawful orders and directives of all Governmental Authorities regarding Environmental Laws except to the extent that the same are being contested in good faith by appropriate proceedings; and

(c) Defend, indemnify and hold harmless the Administrative Agent and the Lenders, and their respective employees, agents, officers and directors, from and against any and all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature known or unknown, contingent or otherwise, arising out of, or in any way relating to the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of the Credit Parties or any of their Restricted Subsidiaries or the Properties, or any orders, requirements or demands of Governmental Authorities related thereto, including, without limitation, reasonable attorney’s and consultant’s fees, investigation and laboratory fees, response costs, court costs and litigation expenses, except to the extent that any of the foregoing arise out of the gross negligence or willful misconduct of the party seeking indemnification therefor. The agreements in this paragraph shall survive repayment of the Credit Party Obligations

 

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and all other amounts payable hereunder and termination of the Commitments and the Credit Documents.

Section 5.9 Financial Covenant.

At any time an Extension of Credit is outstanding under the Revolving Facility, maintain a Total Leverage Ratio of less than or equal to 6.5:1.0.

Notwithstanding the above, the parties hereto acknowledge and agree that, for purposes of all calculations made in determining compliance with this Section 5.9, (a) after consummation of any Permitted Acquisition, (i) income statement items and other balance sheet items (whether positive or negative) attributable to the Target acquired in such transaction shall be included in such calculations to the extent relating to such applicable period, subject to adjustments in accordance with Regulation S-X promulgated under the Securities Act or otherwise reasonably acceptable to the Company and the Administrative AgentRequired Lenders, and (ii) Indebtedness of a Target which is retired in connection with a Permitted Acquisition shall be excluded from such calculations and deemed to have been retired as of the first day of such applicable period and (b) any cash equity contribution (which equity shall be common equity, Qualified Preferred Equity or other equity having terms reasonably satisfactory to the Administrative AgentRequired Lenders) made to Holdco after the end of a fiscal quarter and on or prior to the day that is ten (10) Business Days after the day on which financial statements are required to be delivered with respect to such fiscal quarter will, at the request of the Company, be included in the calculation of Consolidated EBITDA for the purposes of determining compliance with the financial covenant contained herein at the end of such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA or applied to reduce Consolidated Indebtedness, a “Specified Equity Contribution”); provided that (i) in each four fiscal quarter period, there shall be at least one fiscal quarter in respect of which no Specified Equity Contribution is made, (ii) in each eight fiscal quarter period, there shall be a period of at least four consecutive fiscal quarters in respect of which no Specified Equity Contribution is made, (iii) the amount of any Specified Equity Contribution shall be no greater than the amount required to cause the Credit Parties to be in compliance with the financial covenant set forth above, (iv) a Specified Equity Contribution shall only be included in the computation of the financial covenant for purposes of determining compliance by the Credit Parties with this Section 5.9 and not for any other purpose under this Agreement (including, without limitation, any determination of the Applicable Percentage) and (v) any Consolidated Indebtedness repaid with the proceeds of a Specified Equity Contribution shall not be deemed repaid for purposes of calculating the Total Leverage Ratio if, for purposes of calculating the Total Leverage Ratio, such Specified Equity Contribution has been included in the calculation of Consolidated EBITDA. Upon the making of a Specified Equity Contribution, the financial covenant in this Section 5.9 shall be recalculated giving effect to the increase in Consolidated EBITDA or reduction in Consolidated Indebtedness. If, after giving effect to such recalculation, Holdco is in compliance with the financial covenant, Holdco shall be deemed to have satisfied the requirements of the financial covenant as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date.

 

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Section 5.10 Additional Guarantors.

The Credit Parties will cause each of their Domestic Subsidiaries (other than Subsidiaries designated as Unrestricted Subsidiaries and transitory merger Subsidiaries), whether newly formed, after acquired or otherwise existing, to promptly (and in any event within thirty (30) days after such Domestic Subsidiary is formed or acquired (or such longer period of time as agreed to by the Administrative Agent in its reasonable discretion)) become a Guarantor hereunder by way of execution of a Joinder Agreement. In connection therewith, the Credit Parties shall give notice to the Administrative Agent not less than ten (10) days prior to creating a Domestic Subsidiary (other than an Unrestricted Subsidiary) (or such shorter period of time as agreed to by the Administrative Agent in its reasonable discretion), or acquiring the Capital Stock of any other Person. The Credit Party Obligations shall be secured by, among other things, a first priority perfected security interest in the Collateral of such new Guarantor and a pledge of 100% of the Capital Stock of such new Guarantor and its Domestic Subsidiaries (other than Unrestricted Subsidiaries) and 66% (or such higher percentage that would not result in material adverse tax consequences for such new Guarantor) of the voting Capital Stock and 100% of the non-voting Capital Stock of its first-tier Foreign Subsidiaries. In connection with the foregoing, the Credit Parties shall deliver to the Administrative Agent, with respect to each new Guarantor to the extent applicable, substantially the same documentation required pursuant to Sections 4.1(b)-(f) and 5.12 and such other documents or agreements as the Administrative Agent or the Required Lenders may reasonably request.

Section 5.11 Compliance with Law.

Comply with all Requirements of Laws and all restrictions imposed by Governmental Authorities applicable to it and its Property if noncompliance with any such Requirement of Law or restriction could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

Section 5.12 Pledged Assets.

(a) Cause 100% of the Capital Stock in each of its direct or indirect Domestic Subsidiaries (other than Unrestricted Subsidiaries) and 66% of the Capital Stock in each of its first tier Foreign Subsidiaries to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Security Documents or such other security documents as the Administrative Agent or the Required Lenders shall reasonably request.

(b) If, subsequent to the Effective Date, a Credit Party shall acquire a fee interest in any real property with a fair market value in excess of $1,000,000 or any securities, instruments, chattel paper or other personal property and required for perfection to be delivered to the Administrative Agent as Collateral hereunder or under any of the Security Documents, notify the Administrative Agent of same concurrently with the delivery of the next financial statement referred to in Section 5.1(b). Each Credit Party shall, and shall cause each of its Restricted Subsidiaries to, take such action at its own expense as requested by the Administrative Agent or the Required Lenders

 

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(including, without limitation, any of the actions described in Section 4.1(d) or (e) hereof) in accordance with the Security Documents to ensure that the Administrative Agent has a first priority perfected Lien to secure the Credit Party Obligations in (i) all personal property of the Credit Parties located in the United States and (ii) to the extent deemed to be material by the Administrative Agent or the Required Lenders in its or their sole reasonable discretion, all other personal property of the Credit Parties, subject in each case only to Permitted Liens. To the extent any Credit Party acquires real property located in the United States having a fair market value in excess of $1,000,000 after the Effective Date, such Credit Party shall deliver a Mortgage Instrument in form and substance satisfactory to the Administrative Agent granting a perfected Lien upon recording in the appropriate office to secure the Credit Party Obligations. Each Credit Party shall, and shall cause each of its Restricted Subsidiaries to, adhere to the covenants regarding the location of personal property as set forth in the Security Documents.

Section 5.13 Hedging Agreements.

Within ninety (90) days following the Effective Date, cause at least 40% of the aggregate Term Loans then outstanding, and projected to be outstanding, to be hedged pursuant to Hedging Agreements for a term of at least three (3) years with a counterparty and on terms acceptable to the Administrative Agent.

Section 5.14 Covenants Regarding Patents, Trademarks and Copyrights.

(a) Notify the Administrative Agent promptly if it knows that any application, letters patent or registration relating to any Patent, Patent License (to the extent the granting of a security interest therein is not prohibited by any Requirement of Law, contract or otherwise), Trademark or Trademark License (to the extent the granting of a security interest therein is not prohibited by any Requirement of Law, contract or otherwise) of the Credit Parties or any of their Restricted Subsidiaries may become abandoned, or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office or any court) regarding any Credit Party’s or any of its Restricted Subsidiary’s ownership of any Patent or Trademark, its right to patent or register the same, or to enforce, keep and maintain the same, or its rights under any Patent License or Trademark License, in each case, if such abandonment, determination or development could reasonably be expected to have a Material Adverse Effect.

(b) Notify the Administrative Agent promptly after it knows of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in any court) regarding any Copyright or Copyright License (to the extent the granting of a security interest therein is not prohibited by any Requirement of Law, contract or otherwise) of the Credit Parties or any of their Restricted Subsidiaries, whether (i) such Copyright or Copyright License may become invalid or unenforceable prior to its expiration or termination, or (ii) any Credit Party’s or any of its Restricted Subsidiary’s ownership of such Copyright, its right

 

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to register the same or to enforce, keep and maintain the same, or its rights under such Copyright License, may become affected, in each case, if such adverse determination or development could reasonably be expected to have a Material Adverse Effect.

(c) (i) Concurrently with the delivery of the next financial statement referred to in Section 5.1(b), notify the Administrative Agent of any filing by any Credit Party or any of its Restricted Subsidiaries, either itself or through any agent, employee, licensee or designee (but in no event later than the fifteenth day following such filing), of any application for registration of any Intellectual Property with the United States Copyright Office or United States Patent and Trademark Office or any similar office or agency in any other country or any political subdivision thereof.

(ii) Concurrently with the delivery of the next financial statement referred to in Section 5.1(b), provide the Administrative Agent and its counsel a complete and correct list of all registrations and applications pertaining to Intellectual Property owned by the Credit Parties or any of their Restricted Subsidiaries and all license agreements (other than agreements with respect to off-the-shelf software) pertaining to Copyright Licenses, Patent Licenses and Trademark Licenses of the Credit Parties or any of their Restricted Subsidiaries with respect to which annual payments in excess of $50,000 are made or received, in each case that have not been set forth as annexes of such documents and instruments showing all filings and recordings for the protection of the security interest of the Administration Agent therein pursuant to the agreements of the United States Patent and Trademark Office or the United States Copyright Office.

(iii) Upon request of the Administrative Agent or the Required Lenders, execute and deliver any and all agreements, instruments, documents, and papers as the Administrative Agent may reasonably request to evidence the Administrative Agent’s security interest in the Intellectual Property and the general intangibles referred to in clauses (i) and (ii), including, without limitation, the goodwill of the Credit Parties and their Restricted Subsidiaries relating thereto or represented thereby (or such other Intellectual Property or the general intangibles relating thereto or represented thereby as the Administrative Agent or the Required Lenders may reasonably request).

(d) Take all necessary actions, including, without limitation, in any proceeding before the United States Patent and Trademark Office or the United States Copyright Office, to maintain each item of Intellectual Property of the Credit Parties and their Restricted Subsidiaries, including, without limitation, payment of maintenance fees, filing of applications for renewal, affidavits of use, affidavits of incontestability and opposition, interference and cancellation proceedings, except where failure to take such actions could not reasonably be expected to have a Material Adverse Effect.

(e) In the event that any Credit Party becomes aware that any Intellectual Property is infringed, misappropriated or diluted by a third party in any material respect,

 

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notify the Administrative Agent promptly after it learns thereof and, unless the Credit Parties shall reasonably determine that such Intellectual Property is not material to the business of the Credit Parties and their Restricted Subsidiaries taken as a whole, promptly sue for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as the Credit Parties shall reasonably deem appropriate under the circumstances to protect such Intellectual Property.

Section 5.15 Credit Facility Ratings.

Cause the credit facilities set forth in this Credit Agreement to be rated by each of Moody’s and S&P.

Section 5.16 Public/Private Designation.

Cooperate with the reasonable requests of the Administrative Agent or the Required Lenders in connection with the publication of certain materials and/or information provided by or on behalf of the Credit Parties to the Administrative Agent and Lenders (collectively, “Information Materials”) pursuant to Article V hereof (including Sections 5.1, 5.2 and 5.7) and designate Information Materials (a) that are either available to the public or not material with respect to the Company and its Subsidiaries or any of their respective securities for purposes of United States federal and state securities laws, as “Public Information” and (b) that are not Public Information as “Private Information”.

Section 5.17 Post-Closing Covenants; Further Assurances.

(a) Within thirty (30) days after the Effective Date (or such extended period of time as agreed to by the Administrative Agent), the Credit Parties shall deliver to the Administrative Agent replacement stock certificates and corresponding stock powers with respect to each stock certificate delivered on the Effective Date pursuant to Section 4.1(d)(iv) that does not accurately reflect the legal name of the issuer or the owner of such stock certificate on the Effective Date.

(b) Within ninety (90) days after the Effective Date (or such extended period of time as agreed to by the Administrative Agent), to the extent reasonably required by the Administrative Agent, the Credit Parties shall provide evidence reasonably satisfactory to the Administrative Agent that all material chain of title issues (including unreleased filings related to Liens that have previously been terminated) with respect to the Intellectual Property of the Credit Parties registered with the United States Patent and Trademark Office have been corrected in the appropriate records of the United States Patent and Trademark Office.

(c) Within ten (10) days after the Effective Date (or such extended period of time as agreed to by the Administrative Agent), the Credit Parties shall deliver to the Administrative Agent copies of the articles of incorporation of the Acquired Company,

 

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certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state of California.

(d) Within thirty (30) days after the Effective Date (or such extended period of time as agreed to by the Administrative Agent), the Credit Parties shall deliver insurance certificates reasonably satisfactory to the Administrative Agent as required by Section 4.1(f) hereof with respect to each insurance policy reflected on Schedule 3.24 as reasonably requested by the Administrative Agent.

(e) Upon the reasonable request of the Administrative Agent or the Required Lenders, promptly perform or cause to be performed any and all acts and execute or cause to be executed any and all documents for filing under the provisions of the Uniform Commercial Code or any other Requirement of Law which are necessary or advisable to maintain in favor of the Administrative Agent, for the benefit of the Secured Parties, Liens on the Collateral that are duly perfected in accordance with the requirements of, or the obligations of the Credit Parties under, the Credit Documents and all applicable Requirements of Law.

ARTICLE VI

NEGATIVE COVENANTS

The Credit Parties hereby covenant and agree that on the Effective Date, and thereafter for so long as this Credit Agreement is in effect and until the Commitments have terminated, no Note remains outstanding and unpaid and the Credit Party Obligations (other than Unasserted Obligations) owing to the Administrative Agent or any Lender hereunder are paid in full, that:

Section 6.1 Indebtedness.

(a) The Credit Parties shall not, and shall not cause or permit any of their Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise, in any manner become directly or indirectly liable for the payment of, or otherwise incur, contingently or otherwise, any Indebtedness, unless after giving effect to such Indebtedness on a Pro Forma Basis, the Credit Parties and their Restricted Subsidiaries will be in compliance with the Incurrence Test.

(b) Notwithstanding the foregoing, the Credit Parties and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each of the following:

(i) Indebtedness arising or existing under this Credit Agreement and the other Credit Documents;

(ii) Indebtedness of the Credit Parties and their Restricted Subsidiaries existing as of the Effective Date as referenced in the financial statements referenced in Section 3.1 (and set out more specifically in Schedule 6.1(b)) hereto

 

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and renewals, refinancings or extensions thereof in a principal amount not in excess of that outstanding as of the date of such renewal, refinancing or extension;

(iii) Indebtedness and obligations owing under Secured Hedging Agreements and other Hedging Agreements entered into in order to manage existing or anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes;

(iv) Guaranty Obligations in respect of Indebtedness of a Credit Party to the extent such Indebtedness is permitted to exist or be incurred pursuant to this Section 6.1;

(v) unsecured intercompany Indebtedness among the Credit Parties and their Subsidiaries and joint ventures to the extent permitted pursuant to Section 6.5; provided, that (A) a security interest in all such intercompany Indebtedness owed to a Credit Party shall have been granted to Administrative Agent for the benefit of Lenders and (B) if such intercompany Indebtedness is evidenced by a promissory note or other instrument, such promissory note or instrument shall have been pledged to Administrative Agent pursuant to the Security Documents;

(vi) Indebtedness arising from agreements providing for indemnification and purchase price adjustment obligations or similar obligations, or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of any Credit Party or its Restricted Subsidiaries pursuant to such agreements, in connection with Asset Dispositions, other sales of assets or Permitted Acquisitions;

(vii) Indebtedness incurred in respect of workers’ compensation claims or self-insurance obligations of Holdco and its Restricted Subsidiaries in the ordinary course of business;

(viii) Indebtedness consisting of the financing of insurance premiums in the ordinary course of business;

(ix) Indebtedness representing deferred compensation to employees of any Credit Party and its Restricted Subsidiaries incurred in the ordinary course of business;

(x) Indebtedness incurred under credit cards issued to employees, agents, officers, directors or other Affiliates of any Credit Party or its Restricted Subsidiaries in the ordinary course of business;

(xi) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts; and

 

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(xii) other Indebtedness of which does not exceed $10,000,000 in the aggregate at any time outstanding.

Section 6.2 Liens.

The Credit Parties will not, nor will they permit any Restricted Subsidiary to, contract, create, incur, assume or permit to exist any Lien with respect to any of their respective property or assets of any kind (whether real or personal, tangible or intangible), whether now owned or hereafter acquired, except for Permitted Liens. Notwithstanding the foregoing, if a Credit Party shall grant a Lien on any of its assets in violation of this Section 6.2, then it shall be deemed to have simultaneously granted an equal and ratable Lien on any such assets in favor of the Administrative Agent for the benefit of the Lenders.

Section 6.3 Nature of Business.

From and after the Effective Date, the Credit Parties shall not, and shall not permit any of their Restricted Subsidiaries to, engage in any material business other than (a) the businesses engaged in by the Credit Parties and their Restricted Subsidiaries on the Effective Date and businesses reasonably related thereto and reasonable extensions thereof and (b) other related media businesses.

Section 6.4 Consolidation, Merger, Sale or Purchase of Assets, etc.

The Credit Parties will not, nor will they permit any Restricted Subsidiary to,

(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:

(i) any Restricted Subsidiary of the Company may be liquidated, wound up or dissolved, and all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of to any Credit Party;

(ii) (A) the sale, transfer, lease or other disposition of inventory and materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;

(iii) Recovery Events;

(iv) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their Restricted Subsidiaries;

(v) the sale, lease or transfer of property or assets from a Credit Party to another Credit Party;

 

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(vi) in order to resolve disputes that occur in the ordinary course of business, Holdco and its Restricted Subsidiaries may discount or otherwise compromise for less than the face value thereof, notes or accounts receivable;

(vii) Holdco and its Restricted Subsidiaries may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of such Subsidiary if required by applicable law;

(viii) the grant by Holdco or any of its Restricted Subsidiaries in the ordinary course of business of a license to any Person for the use of any Intellectual Property owned by Holdco or any of its Restricted Subsidiaries;

(ix) the unwinding of any derivative instruments or agreements;

(x) the sale or disposition of Investments under clauses (f), (j), (k) and (n) of the definition of Permitted Investments (other than Investments received in connection with any Asset Disposition permitted by subsection (xv) below);

(xi) the sublease of any real or personal property in the ordinary course of business;

(xii) sales, assignments, transfers or dispositions of accounts receivable in the ordinary course of business for purposes of collection;

(xiii) the sale of the real property and improvements located at 9 Long Pond Road, Plymouth, Massachusetts; provided that if such sale is not consummated within ninety (90) days after the Effective Date, the applicable Credit Party shall execute and deliver to the Administrative Agent an amendment to the Mortgage Instrument with respect to such property in form and substance reasonably satisfactory to the Administrative Agent; [Intentionally Omitted];

(xiv) the sale, lease or transfer of any property or assets acquired pursuant to a Permitted Acquisition or contributed to a Credit Party by the Parent at any time after the Effective Date; or

(xv) sales of revenue-producing assets (or of all of the outstanding Capital Stock of a Subsidiary that owns such assets):

(A) to the extent the Attributable Revenues of all such assets (and Subsidiaries) transferred in all such asset sales during any period of 365 consecutive days does not exceed 16.5% of Pro Forma Revenues for the most recent four fiscal quarter period for which Pro Forma Revenues can then be determined; provided that (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof and (2) the proceeds of such asset sales shall be applied as required by subsection 2.9(b)(iii); or

 

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(B) to the extent the Attributable Revenues of all assets (and Subsidiaries) transferred in all such asset sales during any period of 365 consecutive days exceeds 16.5% but does not exceed 33% of Pro Forma Revenues for the most recent four fiscal quarter period for which Pro Forma Revenues can then be determined; provided that (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof, (2) the consideration received in connection with all asset sales made pursuant to this clause (B), when added to the consideration received in connection with all asset sales made pursuant to clause (A) above, shall be not less than a multiple of 7 times the Attributable EBITDA of all assets (and Subsidiaries) transferred in all such asset sales in the aggregate during such 365-day period and (45) the proceeds of such asset sales shall be applied as required by subsection 2.9(b)(iii);

provided that after giving effect to any Asset Disposition pursuant to clause (xv) above, (1) to the extent that there are Extensions of Credit outstanding under the Revolving Facility, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenant set forth in Section 5.9 hereof, recalculated for the most recently ended month for which information is available, and (2) no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of the Required Lenders, to release its Liens relating to the particular assets sold; or

(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) Permitted Acquisitions and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business, or (ii) enter into any transaction of merger or consolidation, except for (A) Investments or acquisitions permitted pursuant to Section 6.5, (B) the merger or consolidation of a Credit Party with and into another Credit Party; provided that (1) if a Borrower is a party thereto, such Borrower will be the surviving entity (other than in respect of any such transaction between two or more Borrowers, in which case one such Borrower shall be the surviving entity; provided that (x) such surviving Borrower hereby agrees to assume and be directly liable for all Credit Party Obligations of the Borrower that is merged with and into it upon the consummation of such merger and (y) if the Company is one of the Borrowers involved in the merger, it shall be the surviving entity) and (2) if the Company is a party thereto, the Company will be the surviving entity, (C) the merger or consolidation of a Subsidiary that is not a Credit Party with and into a Credit Party; provided, that such Credit Party will be the surviving entity and (D) the merger or consolidation of a Subsidiary that is not a Credit Party with and into a Subsidiary that is not a Credit Party.

Section 6.5 Advances, Investments and Loans.

The Credit Parties will not, nor will they permit any Restricted Subsidiary to, make any Investment except for Permitted Investments.

 

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Section 6.6 Transactions with Affiliates.

The Credit Parties will not, nor will they permit any Restricted Subsidiary to, enter into any transaction or series of transactions, whether or not in the ordinary course of business, with any officer, director, shareholder or Affiliate (other than a Credit Party) other than: (a) on terms and conditions that are less favorable as would be obtainable in a comparable arm’s-length transaction with a Person other than an officer, director, shareholder or Affiliate; (b) Restricted Payments specifically permitted by Section 6.10; and (c) reasonable and customary fees, expense reimbursement and indemnities paid to members of the Governing Bodies of Holdco and its Restricted Subsidiaries.

Section 6.7 Ownership of Subsidiaries; Restrictions.

The Credit Parties will not, nor will they permit any Restricted Subsidiary to, create, form or acquire any Subsidiaries, except for Unrestricted Subsidiaries and Domestic Subsidiaries that are joined as Additional Credit Parties as required by the terms hereof. The Credit Parties will not sell, transfer, pledge or otherwise dispose of any Capital Stock or other equity interests in any of their Subsidiaries, nor will they permit any of their Restricted Subsidiaries to issue, sell, transfer, pledge or otherwise dispose of any of their Capital Stock or other equity interests, except in a transaction permitted by Section 6.4.

Section 6.8 Corporate Changes; Accounting Methods.

No Credit Party will, nor will it permit any of its Restricted Subsidiaries to, (a) change its fiscal year (unless changing it to a calendar fiscal year), (b) amend, modify or change its articles of incorporation, certificate of designation (or corporate charter or other similar organizational document) operating agreement or bylaws (or other similar document) in any respect materially adverse to the interests of the Lenders without the prior written consent of the Required Lenders, (c) change its state of incorporation, organization or formation, without giving the Administrative Agent at least thirty (30) days’ prior notice of such action to, or have more than one state of incorporation, organization or formation or (d) materially change its accounting method (except in accordance with GAAP) in any manner materially adverse to the interests of the Lenders without the prior written consent of the Required Lenders.

Section 6.9 Limitation on Restricted Actions.

The Credit Parties will not, nor will they permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any such Person to (a) pay dividends or make any other distributions to any Credit Party on its Capital Stock or with respect to any other interest or participation in, or measured by, its profits, (b) pay any Indebtedness or other obligation owed to any Credit Party, (c) make loans or advances to any Credit Party, (d) sell, lease or transfer any of its properties or assets to any Credit Party, or (e) act as a Guarantor and pledge its assets pursuant to the Credit Documents or any renewals, refinancings, exchanges, refundings or extension thereof, except (in respect of any of the matters referred to in clauses (a)-(d) above) for such encumbrances or

 

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restrictions existing under or by reason of (i) this Credit Agreement and the other Credit Documents, (ii) applicable law, (iii) any document or instrument governing purchase money Indebtedness or Capital Leases permitted by Section 6.1; provided that any such restriction contained therein relates only to the asset or assets constructed or acquired in connection therewith, (iv) any Permitted Lien or any document or instrument governing any Permitted Lien; provided that any such restriction contained therein relates only to the asset or assets subject to such Permitted Lien, (v) any agreement relating to permitted Indebtedness incurred by a Restricted Subsidiary prior to the date on which such Restricted Subsidiary was acquired by a Credit Party or its Restricted Subsidiary and outstanding on such acquisition date or (vi) customary restrictions on subletting or assigning leasehold interests of a Credit Party or a Restricted Subsidiary.

Section 6.10 Restricted Payments.

The Credit Parties will not, nor will they permit any Restricted Subsidiary to, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, except the following:

(a) the Credit Parties may make Restricted Payments payable solely in shares of Capital Stock of such Person (except preferred Capital Stock that is not Qualified Preferred Equity);

(b) the Credit Parties may make dividends or other distributions payable to a Credit Party (directly or indirectly through its Subsidiaries);

(c) Holdco may make Restricted Payments to the Parent, the proceeds of which shall be used to (i) pay operating expenses and other corporate overhead costs and expenses of the Parent, in each case which are reasonable and customary and incurred in the ordinary course of business or (ii) pay expenses of the Parent incurred in connection with any offering of securities of the Parent (whether or not successful);

(d) any Credit Party and Restricted Subsidiary may make Restricted Payments to the Parent for taxes paid or payable by the Parent to the extent of the amount that such Credit Party or Restricted Subsidiary would be required to pay in respect to taxes were it to pay such taxes as a stand-alone taxpayer;

(e) any Credit Party and any Restricted Subsidiary may make additional Restricted Payments so long as, after giving effect to any such Restricted Payment on a Pro Forma Basis, (i) the Fixed Charge Coverage Ratio is equal to or greater than 1.0:1.0 and (ii) the Credit Parties and their Restricted Subsidiaries would be able to incur at least $1 of additional Indebtedness and be in compliance with the Incurrence Test, in each case as demonstrated in an officer’s certificate delivered to the Administrative Agent containing reasonably detailed calculations thereof, satisfactory to the Administrative AgentRequired Lenders; and

 

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(f) any Credit Party and any Restricted Subsidiary may make Restricted Payments to the Parent with proceeds from any Asset Disposition permitted pursuant to Section 6.4(a)(xiv), to the extent such proceeds are (i) not required to be used to prepay the Loans and/or cash collateralize the LOC Obligations pursuant to Section 2.9(b)(iii) and (ii) used by the Parent to prepay the Parent Acquisition Facilities.

Notwithstanding the foregoing, any Restricted Payments made to the Parent from any Credit Party shall be reduced by any Investments made pursuant to clause (l) of the definition of “Permitted Investments”.

Section 6.11 Amendment to Subordinated Debt.

No Credit Party will, nor will any Credit Party permit any Restricted Subsidiary to, amend, modify, waive or extend or permit the amendment, modification, waiver or extension of any term of any document governing or relating to any Subordinated Debt in a manner that is materially adverse to the interests of the Lenders.

Section 6.12 Sale Leasebacks.

The Credit Parties will not, nor will they permit any Restricted Subsidiary to, directly or indirectly, become or remain liable as lessee or as guarantor or other surety with respect to any lease, whether an Operating lease or a Capital Lease, of any property (whether real, personal or mixed), whether now owned or hereafter acquired, (a) which any Credit Party or any Restricted Subsidiary has sold or transferred or is to sell or transfer to a Person which is not a Credit Party or a Restricted Subsidiary or (b) which any Credit Party or any Restricted Subsidiary intends to use for substantially the same purpose as any other property which has been sold or is to be sold or transferred by a Credit Party or a Restricted Subsidiary to another Person which is not a Credit Party or a Restricted Subsidiary in connection with such lease; provided, that the Credit Parties and their Restricted Subsidiaries may become and remain liable as lessee, guarantor or other surety with respect to any such lease if and to the extent that the Credit Party or any of its Restricted Subsidiaries would be permitted to enter into, and remain liable under, such lease to the extent that the transaction would be permitted under Section 6.1, assuming the sale and leaseback constituted Indebtedness in a principal amount equal to the gross proceeds of the sale.

Section 6.13 No Further Negative Pledges.

The Credit Parties will not, nor will they permit any Restricted Subsidiary to, enter into, assume or become subject to any agreement prohibiting or otherwise restricting the creation or assumption of any Lien upon any of their properties or assets, whether now owned or hereafter acquired, or requiring the grant of any security for such obligation if security is given for some other obligation, except (a) pursuant to this Credit Agreement and the other Credit Documents, (b) pursuant to any document or instrument governing purchase money Indebtedness or Capital Leases permitted pursuant to Section 6.1; provided that any such restriction contained therein relates only to the asset or assets constructed or acquired in connection therewith, (c) in connection with any Permitted Lien or any document or instrument governing any Permitted Lien; provided that any such restriction contained therein relates only to the asset or assets

 

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subject to such Permitted Lien, (d) specific property to be sold pursuant to an executed agreement with respect to a permitted Asset Disposition, and (e) restrictions by reason of customary provisions restricting assignments, subletting or other transfers contained in leases, licenses and similar agreements entered into in the ordinary course of business (provided that such restrictions are limited to the property or assets secured by such Liens or the property or assets subject to such leases, licenses or similar agreements, as the case may be).

Section 6.14 Account Control Agreements; Additional Accounts.

Each of the Credit Parties will not, nor will it permit any Restricted Subsidiary to, open, maintain or otherwise have any checking, savings or other accounts at any bank or other financial institution, or any other account where money is or may be deposited or maintained with any Person, other than (a) demand deposit accounts and securities accounts that are subject to an Account Control Agreement, (b) other demand deposit accounts established after the Effective Date solely as (i) payroll, (ii) 401(k) and other retirement plans and employee benefits including rabbi trusts for deferred compensation, (iii) health care benefits and (iv) escrow arrangements (e.g., environmental and indemnity amounts) and other zero balance accounts or for which (i) any Credit Party or any Restricted Subsidiary, the depository bank and the Administrative Agent have entered into a cash collateral agreement specifically negotiated among such Credit Party or Restricted Subsidiary, the depository bank and the Administrative Agent for the specific purpose set forth therein or (ii) the Administrative Agent is the depository bank and (c)other deposit accounts and securities accounts, so long as at any time the aggregate balance (including the fair market value of any investment property) in all such accounts does not exceed $5,000,000.

ARTICLE VII

EVENTS OF DEFAULT

Section 7.1 Events of Default.

An Event of Default shall exist upon the occurrence of any of the following specified events (each an, “Event of Default”):

(a) Payment. (i) The Borrowers shall fail to pay any principal on any Loan when due in accordance with the terms hereof; or (ii) the Borrowers shall fail to reimburse the Issuing Lender for any LOC Obligations when due in accordance with the terms hereof; or (iii) the Borrowers shall fail to pay any interest on any Loan or any fee or other amount payable hereunder when due in accordance with the terms hereof and such failure shall continue unremedied for five (5) days; or (iv) or any Credit Party shall fail to pay on the Guaranty in respect of any of the foregoing or in respect of any other Guaranty Obligations hereunder (after giving effect to the grace period in clause (iii)); provided that the failure by the Borrowers or any other Credit Party to pay or reimburse any principal, interest, fee or other amount payable hereunder to the Issuing Lender, any Revolving Lender or the Administrative Agent on behalf of the Issuing Lender or any

 

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Revolving Lender shall not constitute an Event of Default with respect to the Term Loan unless the Required Revolving Lenders or the Administrative Agent on behalf of the Required Revolving Lenders exercise any remedy pursuant to the terms of Section 7.2 and/or the Revolving Commitments are terminated and the outstanding Revolving Loans and LOC Obligations are accelerated as a result of such non-payment in accordance with the terms of Section 7.2; or

(b) Misrepresentation. Any representation or warranty made or deemed made herein, in the Security Documents or in any of the other Credit Documents or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with this Credit Agreement shall (i) with respect to representations and warranties that contain a materiality qualifier prove to have been incorrect, false or misleading and (ii) with respect to any representations and warranties that do not contain a materiality qualifier, prove to have been incorrect, false or misleading in any material respect, in each case on or as of the date made or deemed made; or

(c) Covenant Default. (i) Any Credit Party shall fail to perform, comply with or observe any term, covenant or agreement applicable to it contained in Sections 5.4 (with respect to maintaining the existence, rights and franchises of Holdco and the Company), 5.7, 5.9, 5.13 or Article VI hereof; provided that any breach by a Credit Party of the Financial Covenant shall only constitute an Event of Default with respect to the Revolving Facility and shall not constitute an Event of Default with respect to the Term Loan unless the Required Revolving Lenders or the Administrative Agent on behalf of the Required Revolving Lenders exercise any remedy pursuant to the terms of Section 7.2 and/or the Revolving Commitments are terminated and the outstanding Revolving Loans and LOC Obligations are accelerated as a result of such breach in accordance with the terms of Section 7.2; or (ii) any Credit Party shall fail to comply with any other covenant contained in this Credit Agreement or the other Credit Documents or any other agreement, document or instrument among any Credit Party, the Administrative Agent and the Lenders or executed by any Credit Party in favor of the Administrative Agent or the Lenders (other than as described in Sections 7.1(a) or 7.1(c)(i) above), and such breach or failure to comply is not cured within thirty (30) days of its occurrence; or

(d) Debt Cross-Default. (i) Any Credit Party shall default in any payment of principal of or interest on any Indebtedness (other than the Loans, Reimbursement Obligations and the Guaranty) in a principal amount outstanding of at least $10,000,000 for the Credit Parties and any of their Restricted Subsidiaries in the aggregate beyond any applicable grace period (not to exceed thirty (30) days), if any, provided in the instrument or agreement under which such Indebtedness was created; (ii) any Credit Party shall default in the observance or performance of any other agreement or condition relating to any Indebtedness (other than the Loans, Reimbursement Obligations and the Guaranty) in a principal amount outstanding of at least $10,000,000 in the aggregate for the Credit Parties and their Restricted Subsidiaries or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder

 

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or holders of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity; or (iii) any Credit Party shall breach or default any Secured Hedging Agreement and such breach or default shall not have been remedied or waived within thirty (30) days; provided that any default by a Credit Party of any such Indebtedness shall only constitute an Event of Default with respect to the Revolving Facility and shall not constitute an Event of Default with respect to the Term Loan unless the Required Revolving Lenders or the Administrative Agent on behalf of the Required Revolving Lenders exercise any remedy pursuant to the terms of Section 7.2 as a result of such default and/or such Indebtedness becomes due prior to its stated maturity as a result of such default; or

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

(f) Judgment Default. One or more judgments or decrees shall be entered against a Credit Party or any of its Restricted Subsidiaries involving in the aggregate a liability (to the extent not covered by insurance) of $10,000,000 or more and all such judgments or decrees shall not have been paid and satisfied, vacated, discharged, stayed or bonded pending appeal within sixty (60) days from the entry thereof or any injunction, temporary restraining order or similar decree shall be issued against a Credit Party or any of its Subsidiaries that, individually or in the aggregate, could result in a Material Adverse Effect; or

 

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(g) ERISA Default. To the extent any of the following results in a Material Adverse Effect, (i) Any Person shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated funding deficiency” (as defined in Section 302 of ERISA), shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan (other than a Permitted Lien) shall arise on the assets of the Credit Parties or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee could reasonably result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, or (v) a Credit Party, any of its Restricted Subsidiaries or any Commonly Controlled Entity shall incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization of, any Multiemployer Plan; or

(h) Change of Control. There shall occur a Change of Control; or

(i) Invalidity of Guaranty. At any time after the execution and delivery thereof, the Guaranty, for any reason other than the satisfaction in full of all Credit Party Obligations, shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared to be null and void, or any Credit Party shall contest the validity or enforceability of the Guaranty or any Credit Document in writing or deny in writing that it has any further liability, including with respect to future advances by the Lenders, under any Credit Document to which it is a party; or

(j) Invalidity of Credit Documents. Any other Credit Document shall fail to be in full force and effect or to give the Administrative Agent and/or the Lenders the security interests, liens, rights, powers and privileges purported to be created thereby (except as such documents may be terminated or no longer in force and effect in accordance with the terms thereof, other than those indemnities and provisions which by their terms shall survive), or any Credit Party shall contest, in writing, the validity or enforceability of any Lien granted to the Administrative Agent for the benefit of the Lenders or any Lien shall fail to be a first priority, perfected Lien on a material portion of the personal property Collateral; or

(k) Subordinated Debt. The subordination provisions contained in any Subordinated Debt shall cease to be in full force and effect or to give the Lenders the rights, powers and privileges purported to be created thereby; or the Credit Party Obligations shall cease to be classified as “Senior Indebtedness,” “Designated Senior Indebtedness” or any similar designation under any Subordinated Debt instrument, in each case except to the extent such Subordinated Debt, if classified as a type of Indebtedness other than Subordinated Debt, would be permitted by the terms of Section 6.1.

 

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Section 7.2 Acceleration; Remedies.

Upon the occurrence and during the continuance of an Event of Default, then, and in any such event:

(a) if such event is an Event of Default specified in Section 7.1(e) above, automatically the Commitments shall immediately terminate and the Loans (with accrued interest thereon), and all other amounts under the Credit Documents (including without limitation the maximum amount of all contingent liabilities under Letters of Credit) shall immediately become due and payable;

(b) if such event is an Event of Default specified in Section 7.1(a), (c) or (d) that only applies to the Revolving Facility in accordance with the terms thereof, any or all of the following actions may be taken:

(i) with the written consent of the Required Revolving Lenders, the Administrative Agent may, or upon the written request of the Required Revolving Lenders, the Administrative Agent shall, declare the Revolving Commitments to be terminated forthwith, whereupon the Revolving Commitments shall immediately terminate;

(ii) with the written consent of the Required Revolving Lenders, the Administrative Agent may, or upon the written request of the Required Revolving Lenders, the Administrative Agent shall, declare the Revolving Loans, Swingline Loans and LOC Obligations (with accrued interest on any of the foregoing) and all other amounts owing under this Credit Agreement and the Revolving Notes with respect to the Revolving Facility to be due and payable forthwith and direct the Borrowers to pay to the Administrative Agent cash collateral as security for the LOC Obligations for subsequent drawings under then outstanding Letters of Credit an amount equal to the maximum amount of which may be drawn under Letters of Credit then outstanding, whereupon the same shall immediately become due and payable; and/or

(iii) with the written consent of the Required Revolving Lenders, the Administrative Agent may, or upon the written request of the Required Revolving Lenders, the Administrative Agent shall, exercise such other rights and remedies as provided under the Credit Documents and under applicable law;

provided that if the Administrative Agent exercises any remedy pursuant to this subsection (b), (Athe Required Initial Term Loan Lenders shall have the right to direct in writing the Administrative Agent to exercise any such remedy with respect to the Initial Term Loan, (B) the Required Add-On Term Loan Lenders shall have the right to direct in writing the Administrative Agent to exercise any such remedy with respect to the Add-On Term Loan and (C) the Required Delayed Draw Term Loan Lenders shall have the right to direct in writing the Administrative Agent to exercise any such remedy

 

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with respect to the Delayed Draw Term Loan Commitment and Delayed Draw Term Loan; and

(c) if such event is any other Event of Default (including, without limitation, any Event of Default under Section 7.1(a), (c) or (d) that applies to the Revolving Facility and the Term Loan), any or all of the following actions may be taken:

(iv) with the written consent of the Required Lenders, the Administrative Agent may, or upon the written request of the Required Lenders, the Administrative Agent shall, declare the Commitments to be terminated forthwith, whereupon the Commitments shall immediately terminate;

(v) with the written consent of the Required Lenders, the Administrative Agent may, or upon the written request of the Required Lenders, the Administrative Agent shall, declare the Loans (with accrued interest thereon) and all other amounts owing under this Credit Agreement and the Notes to be due and payable forthwith and direct the Borrowers to pay to the Administrative Agent cash collateral as security for the LOC Obligations for subsequent drawings under then outstanding Letters of Credit an amount equal to the maximum amount of which may be drawn under Letters of Credit then outstanding, whereupon the same shall immediately become due and payable; and/or

(vi) with the written consent of the Required Lenders, the Administrative Agent may, or upon the written request of the Required Lenders, the Administrative Agent shall, exercise such other rights and remedies as provided under the Credit Documents and under applicable law.

Notwithstanding anything contained in the preceding provisions of this Section 7.2, if at any time within sixty (60) days after an acceleration of the Loans pursuant to such paragraph the Borrowers shall pay all arrears of interest and all payments on account of principal which shall have become due otherwise than as a result of such acceleration (with interest on principal and, to the extent permitted by law, on overdue interest, at the rates specified in this Agreement) and all Defaults and Events of Default (other than non-payment of the principal of and accrued interest on the Loans, in each case which is due and payable solely by virtue of acceleration) shall be remedied or waived pursuant to Section 9.1, then the Required Lenders, by written notice to the Company, may at their option rescind and annul such acceleration and its consequences; but such action shall not affect any subsequent Default or Event of Default or impair any right consequent thereon. The provisions of this paragraph are intended merely to bind Lenders to a decision which may be made at the election of Required Lenders and are not intended, directly or indirectly, to benefit the Company, and such provisions shall not at any time be construed so as to grant the Company the right to require the Lenders to rescind or annul any acceleration hereunder or to preclude the Administrative Agent or the Lenders from exercising any of the rights or remedies available to them under any of the Credit Documents, even if the conditions set forth in this paragraph are met.

 

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ARTICLE VIII

THE ADMINISTRATIVE AGENT

Section 8.1 Appointment.

Each Lender hereby irrevocably designates and appoints WachoviaGleacher as the Administrative Agent of such Lender under this Credit Agreement and the other Credit Documents, and each such Lender irrevocably authorizes WachoviaGleacher, as the Administrative Agent for such Lender, to take such action on its behalf under the provisions of this Credit Agreement and the other Credit Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms of this Credit Agreement and the other Credit Documents, together with such other actions and powers as are reasonably incidental thereto. Each Lender acknowledges that the Credit Parties may rely on each action taken by the Administrative Agent on behalf of the Lenders hereunder. Notwithstanding any provision to the contrary elsewhere in this Credit Agreement or the other Credit Documents, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no fiduciary or other implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Credit Agreement or the other Credit Documents or otherwise exist against the Administrative Agent, regardless of whether a Default has occurred and is continuing.

Section 8.2 Delegation of Duties.

The Administrative Agent may execute any of its duties and exercise any of its rights under this Credit Agreement and the other Credit Documents by or through one or more agents or attorneys-in-fact appointed by it and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent and any such agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such agent and to the Related Parties of the Administrative Agent and any such agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. Without limiting the foregoing, the Administrative Agent may appoint one of its affiliates as its agent to perform the functions of the Administrative Agent hereunder relating to the advancing of funds to the Borrowers and distribution of funds to the Lenders and to perform such other related functions of the Administrative Agent hereunder as are reasonably incidental to such functions.

Section 8.3 Exculpatory Provisions.

Neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact, Subsidiaries or affiliates shall be (a) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Credit Agreement and the other Credit Documents (except for its or such Person’s own gross negligence or willful misconduct) or (b) responsible in any manner to any of the Lenders for any recitals, statements,

 

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representations or warranties made by any Credit Party or any officer thereof contained in this Credit Agreement or any of the other Credit Documents or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Credit Agreement or any of the other Credit Documents or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of any of the Credit Documents or for any failure of any Credit Party to perform its obligations hereunder or thereunder. The Administrative Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance by any Credit Party of any of the agreements contained in, or conditions of, this Credit Agreement or any of the other Credit Documents, or to inspect the properties, books or records of any Credit Party.

Section 8.4 Reliance by Administrative Agent.

(a) The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document (including any electronic message, Internet or intranet website posting or other distribution) or conversation believed by it in good faith to be genuine and correct and to have been signed, sent or made or authenticated by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Credit Parties), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless an executed Assignment Agreement has been filed with the Administrative Agent pursuant to Section 9.6(c) with respect to the Loans evidenced by such Note. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Credit Agreement unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under any of the Credit Documents in accordance with a request of the Required Lenders or all of the Lenders, as may be required under this Credit Agreement, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Notes.

(b) For purposes of determining compliance with the conditions specified in Section 4.1, each Lender that has signed this Credit Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender.

Section 8.5 Notice of Default.

The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless the Administrative Agent has received notice

 

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from a Lender or the Company referring to this Credit Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders; provided, however, that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders except to the extent that this Credit Agreement expressly requires that such action be taken, or not taken, only with the consent or upon the authorization of the Required Lenders, or all of the Lenders, as the case may be or approved or consented to by the Required Lenders. The foregoing sentence is intended solely to define the relationship between the Lenders and the Administrative Agent and shall not create any limitation on the ability of the Administrative Agent vis-à-vis the Credit Parties to exercise its rights and remedies under the Credit Documents and shall not afford any right to, or constitute a defense available to, any Credit Party.

Section 8.6 Non-Reliance on Administrative Agent and Other Lenders.

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

 

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Section 8.7 Indemnification.

The Lenders agree to indemnify the Administrative Agent, the Issuing Lender and their Affiliates and their respective officers, directors, agents and employees (to the extent not reimbursed by the Borrowers and without limiting the obligation of the Borrowers to do so), ratably according to their respective Revolving CommitmentLender Percentages in effect on the date on which indemnification is sought under this Section, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including, without limitation, at any time following the payment of the Credit Party Obligations) be imposed on, incurred by or asserted against any such indemnitee in any way relating to or arising out of any Credit Document or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by any such indemnitee under or in connection with any of the foregoing; provided, however, that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements to the extent resulting from such indemnitee’s gross negligence or willful misconduct, as determined by a court of competent jurisdiction. The agreements in this Section 8.7 shall survive the termination of this Credit Agreement and payment of the Notes and all other amounts payable hereunder.

Section 8.8 Administrative Agent in Its Individual Capacity.

The Person serving as the Administrative Agent and its affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Borrowers as though the Administrative Agentit were not the Administrative Agent hereunder. With respect to its Loans made or renewed by it and any Note issued to it, the Person serving as the Administrative Agent shall have the same rights and powers under this Credit Agreement as any Lender and may exercise the same as though it were not the Administrative Agent, and the terms “Lender” and “Lenders” shall include the Person serving as the Administrative Agent in its individual capacity.

Section 8.9 Successor Administrative Agent.

The Administrative Agent may resign as Administrative Agent upon thirty (30) days’ prior notice to the Company and the Lenders. In addition, the Administrative Agent may be removed by the Required Lenders upon thirty (30) days prior notice to the Administrative Agent, the Company and the Lenders. If the Administrative Agent shall resign or be removed as Administrative Agent under this Credit Agreement and the Notesother Credit Documents or if the Administrative Agent enters or becomes subject to receivership, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall be approved by the Company with such approval not to be unreasonably withheld (provided, however if an Event of Default shall exist at such time, no approval of the Company shall be required hereunder), whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term “Administrative Agent” shall mean such successor agent effective upon such appointment and approval, and the former Administrative Agent’s rights, powers and duties as Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to

 

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this Credit Agreement or any holders of the Notes. After any retiring Administrative Agent’s resignation as Administrative Agent, the provisions of this Section 8.9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Credit Agreement and the other Credit Documents.

Section 8.10 Nature of Duties.

Except as otherwise expressly stated herein, any agent (other than the Administrative Agent) or co-lead arranger listed from time to time on the cover page of this Credit Agreement shall have no obligations, responsibilities or duties under this Credit Agreement or under any other Credit Document other than obligations, responsibilities and duties applicable to all Lenders in their capacity as Lenders; provided, however, that such agents and co-lead arrangers shall be entitled to the same rights, protections, exculpations and indemnifications granted to the Administrative Agent under this Article VIII in their capacity as an agent or co-lead arranger.

Section 8.11 Releases.

The Administrative Agent will release any Guarantor and any Lien on any Collateral, which is sold as permitted by the Credit Agreement or as otherwise permitted by the Lenders or Required Lenders, as applicable.

ARTICLE IX

MISCELLANEOUS

Section 9.1 Amendments, Waivers and Release of Collateral.

Neither this Credit Agreement nor any of the other Credit Documents, nor any terms hereof or thereof may be amended, supplemented, waived or modified (by amendment, waiver, consent or otherwise) except in accordance with the provisions of this Section nor may Collateral be released except as specifically provided herein or in the Security Documents or in accordance with the provisions of this Section 9.1. The Required Lenders may or, with the written consent of the Required Lenders, the Administrative Agent may, from time to time, (a) enter into with the Credit Parties written amendments, supplements or modifications hereto and to the other Credit Documents for the purpose of adding any provisions to this Credit Agreement or the other Credit Documents or changing in any manner the rights of the Lenders or of the Credit Parties hereunder or thereunder or (b) waive or consent to the departure from, on such terms and conditions as the Required Lenders may specify in such instrument, any of the requirements of this Credit Agreement or the other Credit Documents or any Default or Event of Default and its consequences; provided, however, that no such amendment, supplement, modification, release, waiver or consent shall:

(i) reduce the amount or extend the scheduled date of maturity of any Loan or Note or any installment thereon, or reduce the stated rate of any interest or fee payable hereunder (except in connection with a waiver of interest at the

 

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increased post-default rate set forth in Section 2.10 which shall be determined by a vote of the Required Lenders) or extend the scheduled date of any payment thereof or increase the amount or extend the expiration date of any Lender’s Commitment, in each case without the written consent of each Lender directly affected thereby; provided that, it is understood and agreed that (A) no waiver, reduction or deferral of a mandatory prepayment required pursuant to Section 2.9(b), nor any amendment of Section 2.9(b) or the definitions of Asset Disposition, Debt Issuance, Equity Issuance, Excess Cash Flow, or Recovery Event, shall constitute a reduction of the amount of, or an extension of the scheduled date of, the scheduled date of maturity of, or any installment of, any Loan or Note, (B) any reduction in the stated rate of interest on Revolving Loans shall only require the written consent of each Lender holding a Revolving Commitment, (C) any reduction in the stated rate of interest on the Initial Term Loan shall only require the written consent of each Lender holding a portion of the outstanding Initial Term Loan and (D) any reduction in the Ticking Fee or the stated rate of interest on the Delayed Draw Term Loan shall only require the written consent of each Lender holding a portion of the outstanding Delayed Draw Term Loan; or

(ii) amend, modify or waive any provision of this Section 9.1 or reduce the percentage specified in the definition of Required Lenders, without the written consent of all the Lenders; or

(iii) release any Borrower or all or substantially all of the Guarantors from obligations under the Guaranty, without the written consent of all of the Lenders and Hedging Agreement Providers; or

(iv) release all or substantially all of the Collateral without the written consent of all of the Lenders and Hedging Agreement Providers; or

(v) subordinate the Loans to any other Indebtedness without the written consent of all of the Lenders; or

(vi) permit a Letter of Credit to have an original expiry date more than twelve (12) months from the date of issuance without the consent of each of the Revolving Lenders; provided, that the expiry date of any Letter of Credit may be extended in accordance with the terms of Section 2.4(a); or

(vii) permit any Borrower to assign or transfer any of its rights or obligations under this Credit Agreement or other Credit Documents without the written consent of all of the Lenders; or

(viii) amend Section 2.9(b)(vii) or Section 2.13 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender; or

 

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(ix) amend, modify or waive any provision of the Credit Documents requiring consent, approval or request of the Required Lenders or all Lenders without the written consent of the Required Lenders or all the Lenders as appropriate; or

(x) amend, modify or waive any provision of the Credit Documents affecting the rights or duties of the Administrative Agent, the Issuing Lender or the Swingline Lender under any Credit Document without the written consent of the Administrative Agent, the Issuing Lender and/or the Swingline Lender, as applicable, in addition to the Lenders required hereinabove to take such action; or

(xi) amend, modify or waive the order in which Credit Party Obligations are paid in Section 2.13(b) without the written consent of each Lender and each Hedging Agreement Provider directly affected thereby; or

(xii) amend the definitions of “Hedging Agreement,” “Secured Hedging Agreement,” or “Hedging Agreement Provider” without the consent of any Hedging Agreement Provider that would be adversely affected thereby.

Any such waiver, any such amendment, supplement or modification and any such release shall apply equally to each of the Lenders and shall be binding upon the Borrowers, the other Credit Parties, the Lenders, the Administrative Agent and all future holders of the Notes. In the case of any waiver, the Borrowers, the other Credit Parties, the Lenders and the Administrative Agent shall be restored to their former position and rights hereunder and under the outstanding Loans and Notes and other Credit Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon.

Notwithstanding the foregoing, (i) any amendment to or waiver of (A) any funding condition with respect to the Revolving Loan (including the conditions set forth in Section 4.2) or (B) any other provision of the Credit Documents that affects only the Revolving Loan shall only require the consent of the Required Revolving Lenders, (ii) any amendment or waiver of any provision of the Credit Documents (other than an amendment or waiver described in clause (i) above) where the effect of such amendment or waiver is to require Revolving Lenders to fund Revolving Loans when such Revolving Lenders would otherwise not be required to do so shall require the consent of the Required Lenders and the Required Revolving Lenders, (iii) any amendment to or waiver of any funding condition (other than any condition to the initial extensions of credit under the Facilities) to the Delayed Draw Term Loan shall only require the consent of the Required Delayed Draw Term Loan Lenders and (iv) any amendment to or waiver of any provision of the Credit Documents that affects only the Term Loan shall require the consent of Required Term Loan Lenders.

Notwithstanding any of the foregoing to the contrary, the consent of the Borrowers and the other Credit Parties shall not be required for any amendment, modification or waiver of the provisions of Article VIII (other than the provisions of Section 8.9).

 

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Notwithstanding the fact that the consent of all the Lenders is required in certain circumstances as set forth above, (x) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set forth herein and (y) the Required Lenders may consent to allow a Credit Party to use cash collateral in the context of a bankruptcy or insolvency proceeding.

Section 9.2 Notices.

(a) Except as otherwise provided in Article II, all notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by telecopy or other electronic communications as provided below), and, unless otherwise expressly provided herein, shall be deemed to ha