\n| \n K<\/p>\n<\/td>\n | \n Form of Borrowing Notice<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n
\n<\/p>\n CREDIT AGREEMENT (this “Agreement<\/u>“), dated as of November 30, 2011,
\namong ADVENT SOFTWARE, INC., a Delaware corporation (the “Borrower<\/u>“), the
\nseveral banks and other financial institutions or entities from time to time
\nparties to this Agreement (the “Lenders<\/u>“), U.S. BANK NATIONAL
\nASSSOCIATION as documentation agent (in such capacity, the “Documentation
\nAgent<\/u>“), WELLS FARGO BANK, NATIONAL ASSOCIATION, as syndication agent (in
\nsuch capacity, the “Syndication Agent<\/u>“), and JPMORGAN CHASE BANK, N.A.,
\nas administrative agent.<\/p>\n The parties hereto hereby agree as follows:<\/p>\n SECTION 1. DEFINITIONS<\/p>\n 1.1 Defined Terms<\/u>. As used in this Agreement, the terms listed in this
\nSection 1.1 shall have the respective meanings set forth in this Section 1.1.\n<\/p>\n “ABR<\/u>“: for any day, a rate per annum (rounded upwards, if necessary,
\nto the next 1\/100 of 1%) equal to the greatest of (a) the Prime Rate in effect
\non such day, (b) the Federal Funds Effective Rate in effect on such day
\nplus<\/u> 1\/2 of 1% and (c) the Eurodollar Rate that would be calculated as of
\nsuch day (or, if such day is not a Business Day, as of the next preceding
\nBusiness Day) in respect of a proposed Eurodollar Loan with a one-month Interest
\nPeriod plus<\/u> 1.0%. Any change in the ABR due to a change in the Prime
\nRate, the Federal Funds Effective Rate or such Eurodollar Rate shall be
\neffective as of the opening of business on the day of such change in the Prime
\nRate, the Federal Funds Effective Rate or such Eurodollar Rate, respectively.\n<\/p>\n “ABR Loans<\/u>“: Loans the rate of interest applicable to which is based
\nupon the ABR.<\/p>\n “Adjustment Date<\/u>“: as defined in the Applicable Pricing Grid.<\/p>\n “Administrative Agent<\/u>“: JPMorgan Chase Bank, N.A., together with its
\nAffiliates, as the arranger of the Commitments and as the administrative agent
\nfor the Lenders under this Agreement and the other Loan Documents, together with
\nany of its successors.<\/p>\n “Affiliate<\/u>“: as to any Person, any other Person that, directly or
\nindirectly, is in control of, is controlled by, or is under common control with,
\nsuch Person. For purposes of this definition, “control” of a Person means the
\npower, directly or indirectly, either to (a) vote 10% or more of the securities
\nhaving ordinary voting power for the election of directors (or persons
\nperforming similar functions) of such Person or (b) direct or cause the
\ndirection of the management and policies of such Person, whether by contract or
\notherwise.<\/p>\n “Affiliated Lender<\/u>“: any of the Sponsor and its Affiliates other than
\nthe Borrower and its Subsidiaries.<\/p>\n “Affiliated Lender Assignment and Assumption<\/u>“: as defined in Section
\n10.6(f).<\/p>\n “Agents<\/u>“: the collective reference to the Documentation Agent, the
\nSyndication Agent and the Administrative Agent.<\/p>\n “Aggregate Exposure<\/u>“: with respect to any Lender at any time, an
\namount equal to (a) until the Closing Date, the aggregate amount of such
\nLender’s Commitments at such time and (b) thereafter, the sum of (i) the
\naggregate then unpaid principal amount of such Lender’s Term Loans, (ii) the
\namount of such Lender’s Revolving Commitment then in effect or, if the Revolving
\nCommitments<\/p>\n
\n <\/p>\n have been terminated, the amount of such Lender’s Revolving Extensions of
\nCredit then outstanding and (iii) during the Delayed Draw Term Loan Commitment
\nPeriod, the amount of such Lender’s unutilized Delayed Draw Term Commitment.\n<\/p>\n “Aggregate Exposure Percentage<\/u>“: with respect to any Lender at any
\ntime, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure
\nat such time to the Aggregate Exposure of all Lenders at such time.<\/p>\n “Agreement<\/u>“: as defined in the preamble hereto.<\/p>\n “Applicable Margin<\/u>“: (a) for each Type of Loan other than Incremental
\nTerm Loans, a rate per annum equal to (i) 1.25% in the case of ABR Loans and
\n(ii) 2.25% in the case of Eurodollar Loans; provided<\/u>, that on and after
\nthe first Adjustment Date occurring after the completion of the first full
\nfiscal quarter of the Borrower after the Closing Date, the Applicable Margin
\nwill be determined pursuant to the Applicable Pricing Grid; and<\/p>\n (b) for Incremental Term Loans, such per annum rates as shall be agreed to by
\nthe Borrower and the applicable Incremental Term Lenders as shown in the
\napplicable Increased Facility Activation Notice.<\/p>\n “Applicable Pricing Grid<\/u>“: the table set forth below:<\/p>\n\n\n\n| \n Level<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n Consolidated
\nLeverage Ratio<\/strong><\/p>\n<\/td>\n<\/td>\n | \n Applicable Margin
\nfor Eurodollar Loans<\/strong><\/p>\n<\/td>\n<\/td>\n | \n Applicable Margin
\nfor ABR Loans<\/strong><\/p>\n<\/td>\n<\/td>\n | \n Commitment Fee
\nRate<\/strong><\/p>\n<\/td>\n<\/td>\n<\/tr>\n | \n| \n Level I<\/p>\n<\/td>\n | <\/td>\n | \n ><\/u> 2.5x<\/p>\n<\/td>\n | <\/td>\n | \n 2.75<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n | \n 1.75<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n | \n 0.45<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n | \n| \n Level II<\/p>\n<\/td>\n | <\/td>\n | \n ><\/u> 2.0x and < 2.5x<\/p>\n<\/td>\n | <\/td>\n | \n 2.50<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n | \n 1.50<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n | \n 0.40<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n | \n| \n Level III<\/p>\n<\/td>\n | <\/td>\n | \n ><\/u> 1.5x and < 2.0x<\/p>\n<\/td>\n | <\/td>\n | \n 2.25<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n | \n 1.25<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n | \n 0.35<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n | \n| \n Level IV<\/p>\n<\/td>\n | <\/td>\n | \n ><\/u> 1.0x and < 1.5x<\/p>\n<\/td>\n | <\/td>\n | \n 2.00<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n | \n 1.00<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n | \n 0.30<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n | \n| \n Level V<\/p>\n<\/td>\n | <\/td>\n | \n < 1.0x<\/p>\n<\/td>\n | <\/td>\n | \n 1.75<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n | \n 0.75<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n | \n 0.25<\/p>\n<\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n ; provided<\/u>, that Levels IV and V shall be unavailable in determining
\nthe Applicable Margin until the Borrower has delivered the financial statements
\nfor the fiscal quarter ended June 30, 2012 in accordance with Section 6.1.<\/p>\n For the purposes of the Applicable Pricing Grid, changes in the Applicable
\nMargin resulting from changes in the Consolidated Leverage Ratio shall become
\neffective on the date (the “Adjustment Date<\/u>“) that is three Business Days
\nafter the date on which financial statements are delivered to the Lenders
\npursuant to Section 6.1 and shall remain in effect until the next change to be
\neffected pursuant to this paragraph. If any financial statements referred to
\nabove are not delivered within the time periods specified in Section 6.1, then,
\nuntil the date that is three Business Days after the date on which such
\nfinancial statements are delivered, the highest rate set forth in each column of
\nthe Applicable Pricing Grid shall apply. In addition, at all times while an
\nEvent of Default shall have occurred and be continuing, the highest rate set
\nforth in each column of the Applicable Pricing Grid shall apply following a
\nwritten request delivered by the Administrative Agent to the Borrower on behalf
\nof the Required Lenders. Each determination of the Consolidated Leverage Ratio
\npursuant to the Applicable Pricing Grid shall be made in a manner consistent
\nwith the determination thereof pursuant to Section 7.1.<\/p>\n 2<\/p>\n
\n<\/p>\n “Application<\/u>“: an application, in such form as the Issuing Lender may
\nspecify from time to time, requesting the Issuing Lender to open a Letter of
\nCredit.<\/p>\n “Approved Fund<\/u>“: as defined in Section 10.6(b).<\/p>\n “Asset Sale<\/u>“: any Disposition of property or series of related
\nDispositions of property (excluding any such Disposition permitted by clauses
\n(a) through (k) of Section 7.5) that yields gross proceeds to any Group Member
\n(valued at the initial principal amount thereof in the case of non-cash proceeds
\nconsisting of notes or other debt securities and valued at fair market value in
\nthe case of other non-cash proceeds) in excess of $1,000,000.<\/p>\n “Assignee<\/u>“: as defined in Section 10.6(b).<\/p>\n “Assignment and Assumption<\/u>“: an Assignment and Assumption,
\nsubstantially in the form of Exhibit D.<\/p>\n “Available Revolving Commitment<\/u>“: as to any Revolving Lender at any
\ntime, an amount equal to the excess, if any, of (a) such Lender’s Revolving
\nCommitment then in effect over<\/u> (b) such Lender’s Revolving Extensions of
\nCredit then outstanding; provided<\/u>, that in calculating any Lender’s
\nRevolving Extensions of Credit for the purpose of determining such Lender’s
\nAvailable Revolving Commitment pursuant to Section 2.8(a), the aggregate
\nprincipal amount of Swingline Loans then outstanding shall be deemed to be zero.\n<\/p>\n “Available Delayed Draw Term Commitment<\/u>“: as to any Delayed Draw Term
\nLender at any time, an amount equal to the excess, if any, of (a) such Lender’s
\nDelayed Draw Term Commitment then in effect over<\/u> (b) the aggregate
\nprincipal amount of Delayed Draw Term Loans previously made by such Delayed Draw
\nTerm Lender.<\/p>\n “Bankruptcy Event<\/u>“: with respect to any Person, such Person becomes
\nthe subject of a bankruptcy or insolvency proceeding, or has had a receiver,
\nconservator, trustee, administrator, custodian, assignee for the benefit of
\ncreditors or similar Person charged with the reorganization or liquidation of
\nits business appointed for it, or, in the good faith determination of the
\nAdministrative Agent, has taken any action in furtherance of, or indicating its
\nconsent to, approval of, or acquiescence in, any such proceeding or appointment,
\nprovided that a Bankruptcy Event shall not result solely by virtue of any
\nownership interest, or the acquisition of any ownership interest, in such Person
\nby a Governmental Authority or instrumentality thereof, provided, further, that
\nsuch ownership interest does not result in or provide such Person with immunity
\nfrom the jurisdiction of courts within the United States or from the enforcement
\nof judgments or writs of attachment on its assets or permit such Person (or such
\nGovernmental Authority or instrumentality) to reject, repudiate, disavow or
\ndisaffirm any contracts or agreements made by such Person.<\/p>\n “Benefitted Lender<\/u>“: as defined in Section 10.7(a).<\/p>\n “Board<\/u>“: the Board of Governors of the Federal Reserve System of the
\nUnited States (or any successor).<\/p>\n “Borrower<\/u>“: as defined in the preamble hereto.<\/p>\n “Borrowing Date<\/u>“: any Business Day specified by the Borrower as a date
\non which the Borrower requests the relevant Lenders to make Loans hereunder.\n<\/p>\n 3<\/p>\n
\n<\/p>\n “Business<\/u>“: as defined in Section 4.17(b).<\/p>\n “Business Day<\/u>“: a day other than a Saturday, Sunday or other day on
\nwhich commercial banks in New York City are authorized or required by law to
\nclose, provided<\/u>, that with respect to notices and determinations in
\nconnection with, and payments of principal and interest on, Eurodollar Loans,
\nsuch day is also a day for trading by and between banks in Dollar deposits in
\nthe interbank eurodollar market.<\/p>\n “Capital Lease Obligations<\/u>“: as to any Person, the obligations of such
\nPerson to pay rent or other amounts under any lease of (or other arrangement
\nconveying the right to use) real or personal property, or a combination thereof,
\nwhich obligations are required to be classified and accounted for as capital
\nleases on a balance sheet of such Person under GAAP and, for the purposes of
\nthis Agreement, the amount of such obligations at any time shall be the
\ncapitalized amount thereof at such time determined in accordance with GAAP.<\/p>\n “Capital Stock<\/u>“: any and all shares, interests, participations or
\nother equivalents (however designated) of capital stock of a corporation, any
\nand all equivalent ownership interests in a Person (other than a corporation)
\nand any and all warrants, rights or options to purchase any of the foregoing.\n<\/p>\n “Cash Equivalents<\/u>“: (a) marketable direct obligations issued by, or
\nunconditionally guaranteed by, the United States Government or issued by any
\nagency thereof, subject to clause (g) below, and backed by the full faith and
\ncredit of the United States, in each case maturing within one year from the date
\nof acquisition; (b) certificates of deposit, time deposits, eurodollar time
\ndeposits or overnight bank deposits having maturities of six months or less from
\nthe date of acquisition issued by any Lender or by any commercial bank organized
\nunder the laws of the United States or any state thereof having combined capital
\nand surplus of not less than $500,000,000; (c) commercial paper of an issuer
\nrated at least A-1 by Standard & Poor’s Ratings Services (“S&P<\/u>“)
\nor P-1 by Moody’s Investors Service, Inc. (“Moody’s<\/u>“), or carrying an
\nequivalent rating by a nationally recognized rating agency, if both of the two
\nnamed rating agencies cease publishing ratings of commercial paper issuers
\ngenerally, and maturing within six months from the date of acquisition; (d)
\nrepurchase obligations of any Lender or of any commercial bank satisfying the
\nrequirements of clause (b) of this definition, having a term of not more than 30
\ndays, with respect to securities issued or fully guaranteed or insured by the
\nUnited States government; (e) securities with maturities of one year or less
\nfrom the date of acquisition issued or fully guaranteed by any state,
\ncommonwealth or territory of the United States, by any political subdivision or
\ntaxing authority of any such state, commonwealth or territory or by any foreign
\ngovernment, the securities of which state, commonwealth, territory, political
\nsubdivision, taxing authority or foreign government (as the case may be) are
\nrated at least A by S&P, A by Moody’s or F-1 or A by Fitch Ratings, or carry
\nan equivalent rating by a nationally recognized rating agency; (f) securities
\nwith maturities of six months or less from the date of acquisition backed by
\nstandby letters of credit issued by any Lender or any commercial bank satisfying
\nthe requirements of clause (b) of this definition; (g) marketable direct
\nobligations not to exceed $10,000,000 at any time issued by the Federal National
\nMortgage Association (Fannie Mae), the Federal Home Loan Mortgage Corporation
\n(Freddie Mac), the Federal Home Loan Bank and the Federal Farm Credit Bank,
\nmaturing within one year from the date of acquisition; (h) money market mutual
\nor similar funds that invest exclusively in assets satisfying the requirements
\nof clauses (a) through (g) of this definition; or (i) money market funds that
\n(i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment
\nCompany Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by
\nMoody’s or carry an equivalent rating by a nationally recognized rating agency
\nand (iii) have portfolio assets of at least $5,000,000,000.<\/p>\n “Closing Date<\/u>“: the date on which the conditions precedent set forth
\nin Section 5.1 shall have been satisfied, which date is November 30, 2011.<\/p>\n 4<\/p>\n
\n<\/p>\n “Code<\/u>“: the Internal Revenue Code of 1986, as amended.<\/p>\n “Collateral<\/u>“: all property of the Loan Parties, now owned or hereafter
\nacquired, upon which a Lien is purported to be created by any Security Document.\n<\/p>\n “Commitment<\/u>“: as to any Lender, the sum of the Tranche A Term
\nCommitment, the Delayed Draw Term Commitment and the Revolving Commitment of
\nsuch Lender.<\/p>\n “Commitment Fee Rate<\/u>“: 0.35% per annum; provided<\/u>, that on and
\nafter the first Adjustment Date occurring after the completion of the first full
\nfiscal quarter of the Borrower after the Closing Date, the Commitment Fee Rate
\nwill be determined pursuant to the Applicable Pricing Grid.<\/p>\n “Compliance Certificate<\/u>“: a certificate duly executed by a Responsible
\nOfficer substantially in the form of Exhibit B.<\/p>\n “Confidential Information Memorandum<\/u>“: the Confidential Information
\nMemorandum dated October 2011 and furnished to certain Lenders.<\/p>\n “Consolidated EBITDA<\/u>“: for any period, Consolidated Net Income for
\nsuch period plus<\/u>, without duplication and to the extent reflected as a
\ncharge in the statement of such Consolidated Net Income for such period, the sum
\nof (a) expense for taxes paid or accrued, (b) interest expense, amortization or
\nwriteoff of debt discount and debt issuance costs and commissions, discounts and
\nother fees and charges associated with Indebtedness (including the Loans), (c)
\ndepreciation and amortization expense, (d) amortization of intangibles
\n(including, but not limited to, goodwill) and organization costs, (e) any
\nextraordinary, unusual or non-recurring expenses or losses (including, whether
\nor not otherwise includable as a separate item in the statement of such
\nConsolidated Net Income for such period, non-cash losses on sales of assets
\noutside of the ordinary course of business), provided<\/u>, that the amounts
\nreferred to in this clause (e) shall not, in the aggregate, exceed 5% of
\nConsolidated EBITDA for any period, (f) non-cash expense related to stock based
\ncompensation and (g) non-cash losses, charges or expenses, including non-cash
\nimpairment of goodwill and intangible assets (excluding any such non-cash
\nlosses, charges or expenses to the extent that such loss, charge or expense
\nrepresents an accrual of or reserve for a future loss, charge or expense for a
\nfuture period), and minus<\/u>, (a) to the extent included in the statement of
\nsuch Consolidated Net Income for such period, the sum of (i) interest income,
\n(ii) any extraordinary, unusual or non-recurring income or gains (including,
\nwhether or not otherwise includable as a separate item in the statement of such
\nConsolidated Net Income for such period, gains on the sales of assets outside of
\nthe ordinary course of business), (iii) income tax credits (to the extent not
\nnetted from income tax expense) and (iv) any other non-cash income (excluding
\nany non-cash gains which represent the reversal of any accrual of, or cash
\nreserve for, anticipated cash charges that reduced Consolidated EBITDA in any
\nprior period) and (b) any cash payments made during such period in respect of
\nitems described in clause (e) above subsequent to the fiscal quarter in which
\nthe relevant non-cash expenses or losses were reflected as a charge in the
\nstatement of Consolidated Net Income, all as determined on a consolidated basis.
\nFor the purposes of calculating Consolidated EBITDA for any Test Period pursuant
\nto any determination of the Consolidated Leverage Ratio, (i) if at any time
\nduring such Test Period the Borrower or any Subsidiary shall have made any
\nMaterial Disposition, the Consolidated EBITDA for such Test Period shall be
\nreduced by an amount equal to the Consolidated EBITDA (if positive) attributable
\nto the property that is the subject of such Material Disposition for such Test
\nPeriod or increased by an amount equal to the Consolidated EBITDA (if negative)
\nattributable thereto for such Test Period and (ii) if during such Test Period
\nthe Borrower or any Subsidiary shall have made a Material Acquisition,
\nConsolidated EBITDA for such Test Period shall be calculated after giving
\npro<\/u> forma<\/u> effect thereto as if such Material Acquisition occurred
\non the first day of such Test Period.<\/p>\n 5<\/p>\n
\n<\/p>\n Notwithstanding the foregoing, Consolidated EBITDA shall not include the
\nresults of Second Street at any time Second Street is not a Subsidiary
\nGuarantor.<\/p>\n Notwithstanding the foregoing but subject to adjustment in accordance with
\nSection 1.3, Consolidated EBITDA for the fiscal quarter (i) ended December 31,
\n2010 shall be deemed to be $19,200,000, (ii) ended March 31, 2011 shall be
\ndeemed to be $18,500,000, (ii) ended June 30, 2011 shall be deemed to be
\n$18,500,000 and (iii) ended September 30, 2011 shall be deemed to be
\n$20,100,000.<\/p>\n “Consolidated Interest Coverage Ratio<\/u>“: for any period, the ratio of
\n(a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense for
\nsuch period.<\/p>\n “Consolidated Interest Expense<\/u>“: for any period, (i) total cash
\ninterest expense (including that attributable to Capital Lease Obligations) of
\nthe Borrower and its Subsidiaries for such period with respect to all
\noutstanding Indebtedness of the Borrower and its Subsidiaries (including all
\ncommissions, discounts and other fees and charges owed with respect to letters
\nof credit and bankers’ acceptance financing and net costs under Swap Agreements
\nin respect of interest rates to the extent such net costs are allocable to such
\nperiod in accordance with GAAP), minus<\/u> (ii) all interest payments
\nreceived by the Borrower and its Subsidiaries under outstanding Swap Agreements
\nof the Borrower and its Subsidiaries allocable to such period in accordance with
\nGAAP.<\/p>\n “Consolidated Leverage Ratio<\/u>“: as at the last day of any period, the
\nratio of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA for
\nsuch period.<\/p>\n “Consolidated Net Income<\/u>“: for any period, the consolidated net income
\n(or loss) of the Borrower and its Subsidiaries, determined on a consolidated
\nbasis in accordance with GAAP; provided<\/u> that there shall be excluded (a)
\nthe income (or deficit) of any Person accrued prior to the date it becomes a
\nSubsidiary of the Borrower or is merged into or consolidated with the Borrower
\nor any of its Subsidiaries, (b) the income (or deficit) of any Person (other
\nthan a Subsidiary of the Borrower) in which the Borrower or any of its
\nSubsidiaries has an ownership interest, except to the extent that any such
\nincome is actually received by the Borrower or such Subsidiary in the form of
\ndividends or similar distributions and (c) the undistributed earnings of any
\nSubsidiary of the Borrower to the extent that the declaration or payment of
\ndividends or similar distributions by such Subsidiary is not at the time
\npermitted by the terms of any Contractual Obligation (other than under any Loan
\nDocument) or Requirement of Law applicable to such Subsidiary.<\/p>\n “Consolidated Total Debt<\/u>“: at any date the sum of (i) the aggregate
\nprincipal amount of all Indebtedness of the Borrower and its Subsidiaries at
\nsuch date, determined on a consolidated basis in accordance with GAAP and (ii)
\nthe aggregate drawable amount of undrawn letters of credit issued for the
\naccount of the Borrower and its Subsidiaries to the extent such letters of
\ncredit have not been cash collateralized. For the avoidance of doubt, unutilized
\nDelayed Draw Term Commitments and unutilized Revolving Commitments shall be
\nexcluded in calculating Consolidated Total Debt.<\/p>\n “Continuing Directors<\/u>“: the directors of the Borrower on the Closing
\nDate, and each other director, if, in each case, such other director’s
\nnomination for election to the board of directors of the Borrower is recommended
\nby at least 50% of the then Continuing Directors.<\/p>\n “Contractual Obligation<\/u>“: as to any Person, any provision of any
\nsecurity issued by such Person or of any agreement, instrument or other
\nundertaking to which such Person is a party or by which it or any of its
\nproperty is bound.<\/p>\n 6<\/p>\n
\n<\/p>\n “Credit Party<\/u>“: the Administrative Agent, the Issuing Lender, the
\nSwingline Lender or any other Lender.<\/p>\n “Default<\/u>“: any of the events specified in Section 8, whether or not
\nany requirement for the giving of notice, the lapse of time, or both, has been
\nsatisfied.<\/p>\n “Defaulting Lender<\/u>“: any Lender that (a) has failed, within two
\nBusiness Days of the date required to be funded or paid, to (i) fund any portion
\nof its Loans, (ii) fund any portion of its participations in Letters of Credit
\nor Swingline Loans or (iii) pay over to any Credit Party any other amount
\nrequired to be paid by it hereunder, unless, in the case of clause (i) above,
\nsuch Lender notifies the Administrative Agent in writing that such failure is
\nthe result of such Lender’s good faith determination that a condition precedent
\nto funding (specifically identified and including the particular default, if
\nany) has not been satisfied, (b) has notified the Borrower or any Credit Party
\nin writing, or has made a public statement to the effect, that it does not
\nintend or expect to comply with any of its funding obligations under this
\nAgreement (unless such writing or public statement indicates that such position
\nis based on such Lender’s good faith determination that a condition precedent
\n(specifically identified and including the particular default, if any) to
\nfunding a loan under this Agreement cannot be satisfied) or generally under
\nother agreements in which it commits to extend credit, (c) has failed, within
\nthree Business Days after request by a Credit Party, acting in good faith, to
\nprovide a certification in writing from an authorized officer of such Lender
\nthat it will comply with its obligations (and is financially able to meet such
\nobligations) to fund prospective Loans and participations in then outstanding
\nLetters of Credit and Swingline Loans under this Agreement, provided that such
\nLender shall cease to be a Defaulting Lender pursuant to this clause (c) upon
\nsuch Credit Party’s receipt of such certification in form and substance
\nsatisfactory to it and the Administrative Agent, or (d) has become the subject
\nof a Bankruptcy Event.<\/p>\n “Delayed Draw Term Commitment<\/u>“: as to any Lender, the obligation of
\nsuch Lender, if any, to make a Delayed Draw Term Loan to the Borrower in a
\nprincipal amount not to exceed the amount set forth under the heading “Delayed
\nDraw Term Commitment” opposite such Lender’s name on Schedule 1.1. The original
\naggregate amount of the Delayed Draw Term Commitments is $50,000,000.<\/p>\n “Delayed Draw Term Lender<\/u>“: each Lender that has a Delayed Draw Term
\nCommitment or that holds a Delayed Draw Term Loan.<\/p>\n “Delayed Draw Term Loan<\/u>“: as defined in Section 2.1.<\/p>\n “Delayed Draw Term Loan Commitment Period<\/u>“: the period commencing on
\nthe Closing Date and ending on the first anniversary of the Closing Date.<\/p>\n “Delayed Draw Term Percentage<\/u>“: as to any Delayed Draw Term Lender at
\nany time, the percentage which such Lender’s Delayed Draw Term Commitment then
\nconstitutes of the aggregate Delayed Draw Term Commitments or, at any time after
\nthe Delayed Draw Term Commitments shall have expired or terminated, the
\npercentage which the aggregate principal amount of such Lender’s Delayed Draw
\nTerm Loans then outstanding constitutes of the aggregate principal amount of the
\nDelayed Draw Term Loans then outstanding.<\/p>\n “Disclosure Letter<\/u>“: the disclosure letter, dated the date hereof, as
\namended or supplemented from time to time by the Borrower with the written
\nconsent of the Administrative Agent (or as supplemented by the Borrower pursuant
\nto the terms of this Agreement or the other Loan Documents), delivered by the
\nBorrower to the Administrative Agent for the benefit of the Lenders.<\/p>\n 7<\/p>\n
\n<\/p>\n “Disposition<\/u>“: with respect to any property, any sale, lease, sale and
\nleaseback, assignment, conveyance, transfer or other disposition thereof. The
\nterms “Dispose<\/u>” and “Disposed of<\/u>” shall have correlative meanings.\n<\/p>\n “Documentation Agent<\/u>“: as defined in the preamble hereto.<\/p>\n “Dollars<\/u>” and “$<\/u>“: dollars in lawful currency of the United
\nStates.<\/p>\n “Domestic Subsidiary<\/u>“: any Subsidiary of the Borrower organized under
\nthe laws of any jurisdiction within the United States.<\/p>\n “Environmental Laws<\/u>“: any and all foreign, Federal, state, local or
\nmunicipal laws, rules, orders, regulations, statutes, ordinances, codes,
\ndecrees, requirements of any Governmental Authority or other Requirements of Law
\n(including common law) regulating, relating to or imposing liability or
\nstandards of conduct concerning protection of the environment or, to the extent
\nrelating to exposure to hazardous or deleterious materials, human health, as now
\nor may at any time hereafter be in effect.<\/p>\n “ERISA<\/u>“: the Employee Retirement Income Security Act of 1974, as
\namended from time to time.<\/p>\n “ERISA Affiliate<\/u>“: any trade or business (whether or not incorporated)
\nthat, together with any Group Member, is treated as a single employer under
\nSection 414 of the Code.<\/p>\n “ERISA Event<\/u>“: (a) the existence with respect to any Plan of a
\nnon-exempt Prohibited Transaction; (b) any Reportable Event; (c) the failure of
\nany Group Member or ERISA Affiliate to make by its due date a required
\ninstallment under Section 430(j) of the Code with respect to any Pension Plan or
\nany failure by any Pension Plan to satisfy the minimum funding standards (within
\nthe meaning of Section 412 of the Code or Section 302 of ERISA) applicable to
\nsuch Pension Plan, whether or not waived; (d) a determination that any Pension
\nPlan is, or is expected to be, in “at risk” status (within the meaning of
\nSection 430 of the Code or Section 303 of ERISA); (e) the filing pursuant to
\nSection 412 of the Code or Section 302 of ERISA of an application for a waiver
\nof the minimum funding standard with respect to any Pension Plan; (f) the
\noccurrence of any event or condition which might constitute grounds under ERISA
\nfor the termination of, or the appointment of a trustee to administer, any
\nPension Plan or the incurrence by any Group Member or any ERISA Affiliate of any
\nliability under Title IV of ERISA with respect to the termination of any Pension
\nPlan, including but not limited to the imposition of any Lien in favor of the
\nPBGC or any Pension Plan; (g) the receipt by any Group Member or any ERISA
\nAffiliate from the PBGC or a plan administrator of any notice relating to an
\nintention to terminate any Pension Plan or to appoint a trustee to administer
\nany Pension Plan under Section 4042 of ERISA; (h) the failure by any Group
\nMember or any of its ERISA Affiliates to make any required contribution to a
\nMultiemployer Plan pursuant to Sections 431 or 432 of the Code; (i) the
\nincurrence by any Group Member or any ERISA Affiliate of any liability with
\nrespect to the withdrawal or partial withdrawal from any Pension Plan or
\nMultiemployer Plan; (j) the receipt by any Group Member or any ERISA Affiliate
\nof any notice, or the receipt by any Multiemployer Plan from a Group Member or
\nany ERISA Affiliate of any notice, concerning the imposition of Withdrawal
\nLiability or a determination that a Multiemployer Plan is, or is expected to be,
\nInsolvent, in Reorganization, in “endangered” or “critical” status (within the
\nmeaning of Section 432 of the Code or Section 305 of ERISA), or terminated
\n(within the meaning of Section 4041A of ERISA); or (k) the failure by any Group
\nMember or any of its ERISA Affiliates to pay when due (after expiration of any
\napplicable grace period) any installment payment with respect to Withdrawal
\nLiability under Section 4201 of ERISA.<\/p>\n 8<\/p>\n
\n<\/p>\n “Eurocurrency Reserve Requirements<\/u>“: for any day as applied to a
\nEurodollar Loan, the aggregate (without duplication) of the maximum rates
\n(expressed as a decimal) of reserve requirements in effect on such day
\n(including basic, supplemental, marginal and emergency reserves) under any
\nregulations of the Board or other Governmental Authority having jurisdiction
\nwith respect thereto dealing with reserve requirements prescribed for
\neurocurrency funding (currently referred to as “Eurocurrency Liabilities” in
\nRegulation D of the Board) maintained by a member bank of the Federal Reserve
\nSystem.<\/p>\n “Eurodollar Base Rate<\/u>“: with respect to each day during each Interest
\nPeriod pertaining to a Eurodollar Loan, the rate per annum determined on the
\nbasis of the rate for deposits in Dollars for a period equal to such Interest
\nPeriod commencing on the first day of such Interest Period appearing on the
\nReuters Screen LIBOR01 Page as of 11:00 A.M., London time, two Business Days
\nprior to the beginning of such Interest Period. In the event that such rate does
\nnot appear on such page (or otherwise on such screen), the “Eurodollar Base
\nRate<\/u>” shall be determined by reference to such other comparable publicly
\navailable service for displaying eurodollar rates as may be selected by the
\nAdministrative Agent or, in the absence of such availability, by reference to
\nthe rate at which the Administrative Agent is offered Dollar deposits at or
\nabout 11:00 A.M., New York City time, two Business Days prior to the beginning
\nof such Interest Period in the interbank eurodollar market where its eurodollar
\nand foreign currency and exchange operations are then being conducted for
\ndelivery on the first day of such Interest Period for the number of days
\ncomprised therein.<\/p>\n “Eurodollar Loans<\/u>“: Loans the rate of interest applicable to which is
\nbased upon the Eurodollar Rate.<\/p>\n “Eurodollar Rate<\/u>“: with respect to each day during each Interest
\nPeriod pertaining to a Eurodollar Loan, a rate per annum determined for such day
\nin accordance with the following formula:<\/p>\n\n\n\n| <\/td>\n | <\/td>\n | \n Eurodollar Base Rate<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n 1.00 – Eurocurrency Reserve Requirements<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n “Eurodollar Tranche<\/u>“: the collective reference to Eurodollar Loans
\nunder a particular Facility the then current Interest Periods with respect to
\nall of which begin on the same date and end on the same later date (whether or
\nnot such Loans shall originally have been made on the same day).<\/p>\n “Event of Default<\/u>“: any of the events specified in Section 8,
\nprovided<\/u> that any requirement for the giving of notice, the lapse of
\ntime, or both, has been satisfied.<\/p>\n “Excluded Subsidiary<\/u>“: (i) any Foreign Subsidiary and (ii) Second
\nStreet, to the extent Second Street is a registered broker-dealer under the
\nSecurities Exchange Act of 1934, as amended, and, as a result, is prohibited by
\napplicable Requirements of Law from becoming a Subsidiary Guarantor.<\/p>\n “Excluded Taxes<\/u>“: with respect to any payment made by any Loan Party
\nunder any Loan Document, any of the following Taxes imposed on or with respect
\nto a Credit Party: (a) income or franchise Taxes imposed on (or measured by) net
\nincome by any jurisdiction under the laws of which such Credit Party is
\norganized or in which its principal office is located or, in the case of any
\nLender, in which its applicable lending office is located or with which such
\nCredit Party has a present or former connection (other than any such connection
\narising from having executed, delivered, become a party to, performed its
\nobligations under, received payments under, received or perfected a security
\ninterest under, or enforced any Loan Document), (b) any branch profits Taxes or
\nsimilar Taxes imposed by any jurisdiction described in clause (a) above and (c)
\nin the case of a Non-U.S. Lender (other than an assignee pursuant to a request
\nby the Borrower under Section 2.22(a)), any U.S. Federal withholding Taxes (i)
\nresulting from any Requirement of Law in effect (including FATCA) on the date
\nsuch Non-U.S. Lender<\/p>\n 9<\/p>\n
\n<\/p>\n becomes a party to this Agreement (or designates a new lending office),
\nexcept to the extent that such Non-U.S. Lender (or its assignor, if any) was
\nentitled, at the time of designation of a new lending office (or assignment), to
\nreceive additional amounts from any Loan Party with respect to such withholding
\nTaxes pursuant to Section 2.19(a), or (ii) is attributable to such Non-U.S.
\nLender’s failure to comply with Section 2.19(f).<\/p>\n “Facility<\/u>“: each of (a) the Tranche A Term Commitments and the Tranche
\nA Term Loans made thereunder (the “Tranche A Term Facility<\/u>“), (b) the
\nDelayed Draw Term Commitments and the Delayed Draw Term Loans made thereunder
\n(the “Delayed Draw Term Facility<\/u>“), (c) the Revolving Commitments and the
\nextensions of credit made thereunder (the “Revolving Facility<\/u>“) and (d)
\nthe Incremental Term Loans (the “Incremental Term Facility<\/u>“).<\/p>\n “FATCA<\/u>“: Sections 1471 through 1474 of the Code, as of the date of
\nthis Agreement (or any amended or successor version that is substantively
\ncomparable and not materially more burdensome to comply with), and any current
\nor future regulations issued thereunder or official interpretations thereof.\n<\/p>\n “Federal Funds Effective Rate<\/u>“: for any day, the weighted average of
\nthe rates on overnight federal funds transactions with members of the Federal
\nReserve System arranged by federal funds brokers, as published on the next
\nsucceeding Business Day by the Federal Reserve Bank of New York, or, if such
\nrate is not so published for any day that is a Business Day, the average of the
\nquotations for the day of such transactions received by JPMorgan Chase Bank,
\nN.A. from three federal funds brokers of recognized standing selected by it.\n<\/p>\n “Fee Payment Date<\/u>“: (a) the last day of each March, June, September
\nand December and (b) the last day of the Revolving Commitment Period.<\/p>\n “Financial Covenants<\/u>“: the covenants set forth in Section 7.1.<\/p>\n “Foreign Plan<\/u>“: each employee benefit plan (within the meaning of
\nSection 3(3) of ERISA, whether or not subject to ERISA) which provides
\nretirement income, a deferral of income in contemplation of retirement or
\npayments upon termination of employment that is not subject to US law and is
\nmaintained or contributed to by any Group Member primarily for the benefit of
\nnon-U.S. employees.<\/p>\n “Foreign Plan Event<\/u>“: with respect to any Foreign Plan, (a) the
\nfailure to make or, if applicable, accrue in accordance with normal accounting
\npractices, any employer or employee contributions required by applicable law or
\nby the terms of such Foreign Plan; (b) the failure to register or loss of good
\nstanding with applicable regulatory authorities of any such Foreign Plan
\nrequired to be registered; or (c) the failure of any Foreign Plan to comply with
\nany material provisions of applicable law and regulations or with the material
\nterms of such Foreign Plan, other than any failure of the foregoing clauses that
\ncould not reasonably be expected to result in a Material Adverse Effect.<\/p>\n “Foreign Subsidiary<\/u>“: any Subsidiary of the Borrower that is not a
\nDomestic Subsidiary.<\/p>\n “Funding Office<\/u>“: the office of the Administrative Agent specified in
\nSection 10.2 or such other office as may be specified from time to time by the
\nAdministrative Agent as its funding office by written notice to the Borrower and
\nthe Lenders.<\/p>\n “GAAP<\/u>“: generally accepted accounting principles in the United States
\nas in effect from time to time, except that for purposes of Section 7.1, GAAP
\nshall be determined on the basis of such principles in effect on the date hereof
\nand consistent with those used in the preparation of the most recent<\/p>\n 10<\/p>\n
\n<\/p>\n audited financial statements referred to in Section 4.1(b). In the event that
\nany “Accounting Change” (as defined below) shall occur and such change results
\nin a change in the method of calculation of financial covenants, standards or
\nterms in this Agreement, then the Borrower and the Administrative Agent agree to
\nenter into negotiations in order to amend such provisions of this Agreement so
\nas to reflect equitably such Accounting Changes with the desired result that the
\ncriteria for evaluating the Borrower’s financial condition shall be the same
\nafter such Accounting Changes as if such Accounting Changes had not been made.
\nUntil such time as such an amendment shall have been executed and delivered by
\nthe Borrower, the Administrative Agent and the Required Lenders, all financial
\ncovenants, standards and terms in this Agreement shall continue to be calculated
\nor construed as if such Accounting Changes had not occurred. “Accounting
\nChanges” refers to changes in accounting principles required by the promulgation
\nof any rule, regulation, pronouncement or opinion by the Financial Accounting
\nStandards Board of the American Institute of Certified Public Accountants or, if
\napplicable, the SEC.<\/p>\n “Governmental Authority<\/u>“: any nation or government, any state or other
\npolitical subdivision thereof, any agency, authority, instrumentality,
\nregulatory body, court, central bank or other entity exercising executive,
\nlegislative, judicial, taxing, regulatory or administrative functions of or
\npertaining to government, any securities exchange and any self-regulatory
\norganization (including the National Association of Insurance Commissioners).\n<\/p>\n “Group Members<\/u>“: the collective reference to the Borrower and its
\nSubsidiaries.<\/p>\n “Guarantee and Collateral Agreement<\/u>“: the Guarantee and Collateral
\nAgreement to be executed and delivered by the Borrower and each Subsidiary
\nGuarantor, substantially in the form of Exhibit A.<\/p>\n “Guarantee Obligation<\/u>“: as to any Person (the “guaranteeing
\nperson<\/u>“), any obligation, including a reimbursement, counterindemnity or
\nsimilar obligation, of the guaranteeing Person that guarantees or has the
\neconomic effect of guaranteeing, or which is given to induce the creation of a
\nseparate obligation by another Person (including any bank under any letter of
\ncredit) that guarantees or in effect guarantees, any Indebtedness, leases,
\ndividends or other obligations (the “primary obligations<\/u>“) of any other
\nthird Person (the “primary obligor<\/u>“) in any manner, whether directly or
\nindirectly, including any obligation of the guaranteeing person, whether or not
\ncontingent, (i) to purchase any such primary obligation or any property
\nconstituting direct or indirect security therefor, (ii) to advance or supply
\nfunds (1) for the purchase or payment of any such primary obligation or (2) to
\nmaintain working capital or equity capital of the primary obligor or otherwise
\nto maintain the net worth or solvency of the primary obligor, (iii) to purchase
\nproperty, securities or services primarily for the purpose of assuring the owner
\nof any such primary obligation of the ability of the primary obligor to make
\npayment of such primary obligation or (iv) otherwise to assure or hold harmless
\nthe beneficiary of any such primary obligation against loss in respect thereof;
\nprovided<\/u>, however<\/u>, that the term Guarantee Obligation shall not
\ninclude endorsements of instruments for deposit or collection in the ordinary
\ncourse of business. The amount of any Guarantee Obligation of any guaranteeing
\nperson shall be deemed to be the lower of (a) an amount equal to the stated or
\ndeterminable amount of the primary obligation in respect of which such Guarantee
\nObligation is made and (b) the maximum amount for which such guaranteeing person
\nmay be liable pursuant to the terms of the instrument embodying such Guarantee
\nObligation, unless such primary obligation and the maximum amount for which such
\nguaranteeing person may be liable are not stated or determinable, in which case
\nthe amount of such Guarantee Obligation shall be such guaranteeing person’s
\nmaximum reasonably anticipated liability in respect thereof as determined by the
\nBorrower in good faith.<\/p>\n “Increased Facility Activation Date<\/u>“: any Business Day on which any
\nLender shall execute and deliver to the Administrative Agents an Increased
\nFacility Activation Notice pursuant to Section 2.24(a).<\/p>\n 11<\/p>\n
\n<\/p>\n “Increased Facility Activation Notice<\/u>“: a notice substantially in the
\nform of Exhibit G.<\/p>\n “Increased Facility Closing Date<\/u>“: any Business Day designated as such
\nin an Increased Facility Activation Notice.<\/p>\n “Incremental Term Facility<\/u>“: as defined in the definition of
\n“Facility”.<\/p>\n “Incremental Term Lenders<\/u>“: (a) on any Increased Facility Activation
\nDate relating to Incremental Term Loans, the Lenders signatory to the relevant
\nIncreased Facility Activation Notice and (b) thereafter, each Lender that is a
\nholder of an Incremental Term Loan.<\/p>\n “Incremental Term Loans<\/u>“: any term loans made pursuant to Section
\n2.24(a).<\/p>\n “Incremental Term Maturity Date<\/u>“: with respect to the Incremental Term
\nLoans to be made pursuant to any Increased Facility Activation Notice, the
\nmaturity date specified in such Increased Facility Activation Notice, which date
\nshall not be earlier than the final maturity of the Tranche A Term Loans and the
\nDelayed Draw Term Loans.<\/p>\n “Indebtedness<\/u>“: of any Person at any date, without duplication, (a)
\nall indebtedness of such Person for borrowed money, (b) all obligations of such
\nPerson for the deferred purchase price of property or services (other than (i)
\ntrade payables incurred in the ordinary course of such Person’s business, (ii)
\naccounts payable incurred in the ordinary course of business and (iii)
\nobligations which are being contested in good faith by appropriate proceedings
\nand for which adequate reserves have been set aside in accordance with GAAP),
\n(c) all obligations of such Person evidenced by notes, bonds, debentures or
\nother similar instruments, (d) all indebtedness created or arising under any
\nconditional sale or other title retention agreement with respect to property
\nacquired by such Person (even though the rights and remedies of the seller or
\nlender under such agreement in the event of default are limited to repossession
\nor sale of such property), (e) all Capital Lease Obligations of such Person, (f)
\nall obligations of such Person, contingent or otherwise, as an account party or
\napplicant under or in respect of acceptances, letters of credit (whether or not
\ndrawn), surety bonds or similar arrangements, (g) the liquidation value of all
\nmandatorily redeemable preferred Capital Stock of such Person, (h) all Guarantee
\nObligations of such Person in respect of obligations of the kind referred to in
\nclauses (a) through (g) above, (i) all obligations of the kind referred to in
\nclauses (a) through (h) above secured by (or for which the holder of such
\nobligation has an existing right, contingent or otherwise, to be secured by) any
\nLien on property (including accounts and contract rights) owned by such Person,
\nwhether or not such Person has assumed or become liable for the payment of such
\nobligation, and (j) for the purposes of Section 8(e) only, all obligations of
\nsuch Person in respect of Swap Agreements. The Indebtedness of any Person shall
\ninclude the Indebtedness of any other entity (including any partnership in which
\nsuch Person is a general partner) to the extent such Person is liable therefor
\nas a result of such Person’s ownership interest in or other relationship with
\nsuch entity, except to the extent the terms of such Indebtedness expressly
\nprovide that such Person is not liable therefor. For purposes of determining
\nIndebtedness, the “obligations” of the Borrower or any Subsidiary in respect of
\nany Swap Agreement at any time shall be the maximum aggregate amount (giving
\neffect to any netting agreements and set-off rights) that the Borrower or such
\nSubsidiary would be required to pay if such Swap Agreement were terminated at
\nsuch time. Notwithstanding anything to the contrary in the foregoing, in
\nconnection with any Permitted Acquisition or any other acquisition by the
\nBorrower or any Subsidiary permitted hereunder (or any sale, transfer or other
\ndisposition by the Borrower or any Subsidiary permitted hereunder), the term
\n“Indebtedness” shall not include contingent post-closing purchase price
\nadjustments (excluding earn-outs and similar payments) to which the seller in
\nsuch Permitted Acquisition or such other acquisition (or the buyer in such sale,
\ntransfer or other disposition, as the case may be) may become entitled or
\ncontingent indemnity obligations that may be owed to such seller (or buyer, if
\napplicable) in respect thereof. The amount of<\/p>\n 12<\/p>\n
\n<\/p>\n Indebtedness of any Person which is recourse solely to an item of property
\nand not to such Person for purposes of clause (i) above shall (unless such
\nIndebtedness has been assumed by such Person) be deemed to be equal to the
\nlesser of (i) the aggregate unpaid amount of such Indebtedness and (ii) the fair
\nmarket value of the property encumbered thereby as determined by such Person in
\ngood faith.<\/p>\n “Indemnified Taxes<\/u>“: (a) Taxes, other than Excluded Taxes, imposed on
\nor with respect to any payment made by any Loan Party under any Loan Document
\nand (b) Other Taxes.<\/p>\n “Insolvent<\/u>“: with respect to any Multiemployer Plan, the condition
\nthat such plan is insolvent within the meaning of Section 4245 of ERISA.<\/p>\n “Intellectual Property<\/u>“: the collective reference to all rights,
\npriorities and privileges relating to intellectual property, whether arising
\nunder United States, multinational or foreign laws or otherwise, including
\ncopyrights, copyright licenses, patents, patent licenses, trademarks, trademark
\nlicenses, technology, know-how and processes, and all rights to sue at law or in
\nequity for any infringement or other impairment thereof, including the right to
\nreceive all proceeds and damages therefrom.<\/p>\n “Interest Payment Date<\/u>“: (a) as to any ABR Loan (other than any
\nSwingline Loan), the last day of each March, June, September and December (or,
\nif an Event of Default is in existence, the last day of each calendar month) to
\noccur while such Loan is outstanding and the final maturity date of such Loan,
\n(b) as to any Eurodollar Loan having an Interest Period of three months or less,
\nthe last day of such Interest Period, (c) as to any Eurodollar Loan having an
\nInterest Period longer than three months, each day that is three months, or a
\nwhole multiple thereof, after the first day of such Interest Period and the last
\nday of such Interest Period, (d) as to any Loan (other than any Revolving Loan
\nthat is an ABR Loan and any Swingline Loan), the date of any repayment or
\nprepayment made in respect thereof and (e) as to any Swingline Loan, the day
\nthat such Loan is required to be repaid.<\/p>\n “Interest Period<\/u>“: as to any Eurodollar Loan, (a) initially, the
\nperiod commencing on the borrowing or conversion date, as the case may be, with
\nrespect to such Eurodollar Loan and ending one, two, three or six (or, if agreed
\nto by all Lenders under the relevant Facility, nine or twelve) months
\nthereafter, as selected by the Borrower in its notice of borrowing or notice of
\nconversion, as the case may be, given with respect thereto; and (b) thereafter,
\neach period commencing on the last day of the next preceding Interest Period
\napplicable to such Eurodollar Loan and ending one, two, three or six (or, if
\nagreed to by all Lenders under the relevant Facility, nine or twelve) months
\nthereafter, as selected by the Borrower by irrevocable notice to the
\nAdministrative Agent not later than 1:00 P.M., New York City time, on the date
\nthat is three Business Days prior to the last day of the then current Interest
\nPeriod with respect thereto; provided<\/u> that, all of the foregoing
\nprovisions relating to Interest Periods are subject to the following:<\/p>\n (i) if any Interest Period would otherwise end on a day that is not a
\nBusiness Day, such Interest Period shall be extended to the next succeeding
\nBusiness Day unless the result of such extension would be to carry such Interest
\nPeriod into another calendar month in which event such Interest Period shall end
\non the immediately preceding Business Day;<\/p>\n (ii) the Borrower may not select an Interest Period under a particular
\nFacility that would extend beyond the Revolving Termination Date or beyond the
\ndate final payment is due on the relevant Term Loans, as the case may be; and\n<\/p>\n 13<\/p>\n
\n<\/p>\n (iii) any Interest Period that begins on the last Business Day of a calendar
\nmonth (or on a day for which there is no numerically corresponding day in the
\ncalendar month at the end of such Interest Period) shall end on the last
\nBusiness Day of a calendar month.<\/p>\n “Investments<\/u>“: as defined in Section 7.7.<\/p>\n “IRS<\/u>“: the United States Internal Revenue Service.<\/p>\n “Issuing Lender<\/u>“: JPMorgan Chase Bank, N.A., or any Affiliate thereof,
\nin its capacity as issuer of any Letter of Credit.<\/p>\n “L\/C Commitment<\/u>“: $25,000,000.<\/p>\n “L\/C Exposure<\/u>“: at any time, the total L\/C Obligations. The L\/C
\nExposure of any Revolving Lender at any time shall be its Revolving Percentage
\nof the total L\/C Exposure at such time.<\/p>\n “L\/C Obligations<\/u>“: at any time, an amount equal to the sum of (a) the
\naggregate then undrawn and unexpired amount of the then outstanding Letters of
\nCredit and (b) the aggregate amount of drawings under Letters of Credit that
\nhave not then been reimbursed pursuant to Section 3.5.<\/p>\n “L\/C Participants<\/u>“: the collective reference to all the Revolving
\nLenders other than the Issuing Lender.<\/p>\n “Lender Parent<\/u>“: with respect to any Lender, any Person as to which
\nsuch Lender is, directly or indirectly, a Subsidiary.<\/p>\n “Lenders<\/u>“: as defined in the preamble hereto.<\/p>\n “Letters of Credit<\/u>“: as defined in Section 3.1(a).<\/p>\n “Lien<\/u>“: any mortgage, pledge, hypothecation, collateral assignment,
\ndeposit arrangement, encumbrance, lien (statutory or other), charge or other
\nsecurity interest or any security agreement of any kind or nature whatsoever
\n(including any conditional sale or other title retention agreement and any
\ncapital lease having substantially the same economic effect as any of the
\nforegoing).<\/p>\n “Liquidity<\/u>“: at any time the sum of (i) undrawn Revolving Commitments
\nthen available to be drawn, (ii) unrestricted domestic cash and Cash Equivalents
\nheld by the domestic Loan Parties, (iii) unrestricted domestic short-term
\ninvestments held by the domestic Loan Parties and (iv) up to $20,000,000 of
\nunrestricted United States Treasury securities held by the domestic Loan Parties
\nhaving a maturity no later than 24 months from such time. As used herein with
\nrespect to any item, “unrestricted” means that such item is not subject to any
\ncontractual restrictions on the application thereof by the Borrower and its
\nSubsidiaries and not subject to any Lien (other than Liens created by the Loan
\nDocuments and Liens permitted by Section 7.3(j).<\/p>\n “Loan<\/u>“: any loan made by any Lender pursuant to this Agreement.<\/p>\n “Loan Documents<\/u>“: this Agreement, the Security Documents, the Notes
\nand any amendment, waiver, supplement or other modification to any of the
\nforegoing.<\/p>\n “Loan Parties<\/u>“: the Borrower and each Subsidiary Guarantor.<\/p>\n 14<\/p>\n
\n<\/p>\n “Majority Facility Lenders<\/u>“: subject to Section 2.23(b), with respect
\nto any Facility, the holders of more than 50% of the aggregate unpaid principal
\namount of the Term Loans or the Total Revolving Extensions of Credit, as the
\ncase may be, outstanding under such Facility (or, in the case of the Revolving
\nFacility, prior to any termination of the Revolving Commitments, the holders of
\nmore than 50% of the Total Revolving Commitments).<\/p>\n “Material Acquisition<\/u>“: any acquisition of property or series of
\nrelated acquisitions of property that (a) constitutes assets comprising all or
\nsubstantially all of an operating unit of a business or constitutes all or
\nsubstantially all of the common stock of a Person and (b) involves the payment
\nof consideration by the Borrower and its Subsidiaries in excess of $10,000,000.\n<\/p>\n “Material Adverse Effect<\/u>“: a material adverse effect on (a) the
\nbusiness, property, operations or condition (financial or otherwise) of the
\nBorrower and its Subsidiaries taken as a whole or (b) the validity or
\nenforceability of this Agreement or any of the other Loan Documents or the
\nrights or remedies of the Administrative Agent or the Lenders hereunder or
\nthereunder.<\/p>\n “Material Disposition<\/u>“: any Disposition of property or series of
\nrelated Dispositions of property that yields gross proceeds to the Borrower or
\nany of its Subsidiaries in excess of $10,000,000.<\/p>\n “Material Indebtedness<\/u>“: Indebtedness (other than Indebtedness
\nconstituting Obligations) in an aggregate principal amount exceeding
\n$10,000,000.<\/p>\n “Materials of Environmental Concern<\/u>“: any gasoline or petroleum
\n(including crude oil or any fraction thereof) or petroleum products or any
\nhazardous or toxic substances, materials or wastes, defined or regulated as such
\nin or under any Environmental Law, including asbestos, polychlorinated biphenyls
\nand urea-formaldehyde insulation.<\/p>\n “Maturity Date<\/u>“: November 30, 2016.<\/p>\n “Mortgaged Properties<\/u>“: any real properties on which the
\nAdministrative Agent for the benefit of the Lenders shall be granted a Lien
\npursuant to the Mortgages.<\/p>\n “Mortgages<\/u>“: each of the mortgages and deeds of trust made by any Loan
\nParty in favor of, or for the benefit of, the Administrative Agent for the
\nbenefit of the Lenders, substantially in the form of the Administrative Agent’s
\nform therefor customarily used in syndicated loan financings, (with such changes
\nthereto as shall be advisable under the law of the jurisdiction in which such
\nmortgage or deed of trust is to be recorded).<\/p>\n “MNPI<\/u>“: any material Nonpublic Information regarding Borrower and its
\nSubsidiaries or the Loans or securities of any of them that has not been
\ndisclosed to the Lenders generally (other than Lenders who elect not to receive
\nsuch information). For purposes of this definition (i) “Nonpublic Information”
\nmeans information which has not been disseminated in a manner making it
\navailable to investors generally, within the meaning of Regulation FD, and (ii)
\n“material Nonpublic Information” shall mean Nonpublic Information that would
\nreasonably be expected to be material to a decision by any Lender to acquire any
\nTerm Loans or Delayed Draw Term Commitments or to enter into any of the
\ntransactions contemplated thereby or would otherwise be material for purposes of
\nUnited States Federal and state securities laws.<\/p>\n “Multiemployer Plan<\/u>“: a multiemployer plan as defined in Section
\n4001(a)(3) of ERISA.<\/p>\n 15<\/p>\n
\n<\/p>\n “Net Cash Proceeds<\/u>“: (a) in connection with any Asset Sale or any
\nRecovery Event, the proceeds thereof in the form of cash and Cash Equivalents
\n(including any such proceeds received by way of deferred payment of principal
\npursuant to a note or installment receivable or purchase price adjustment
\nreceivable or otherwise, but only as and when received), net of attorneys’ fees,
\naccountants’ fees, investment banking fees, amounts required to be applied to
\nthe repayment of Indebtedness secured by a Lien expressly permitted hereunder on
\nany asset that is the subject of such Asset Sale or Recovery Event (other than
\nany Lien pursuant to a Security Document) and other customary fees and expenses
\nactually incurred in connection therewith and net of taxes paid or reasonably
\nestimated to be payable as a result thereof (after taking into account any
\navailable tax credits or deductions and any tax sharing arrangements) and (b) in
\nconnection with any issuance or sale of Capital Stock or any incurrence of
\nIndebtedness, the cash proceeds received from such issuance or incurrence, net
\nof attorneys’ fees, investment banking fees, accountants’ fees, underwriting
\ndiscounts and commissions and other customary fees and expenses actually
\nincurred in connection therewith.<\/p>\n “New Lender Supplement<\/u>“: as defined in Section 2.24(b).<\/p>\n “No MNPI Representation<\/u>“: by a Person, a representation that such
\nPerson is not in possession of any MNPI.<\/p>\n “Non-U.S. Lender<\/u>“: any Lender that is not a U.S. Person.<\/p>\n “Notes<\/u>“: the collective reference to any promissory note evidencing
\nLoans.<\/p>\n “Obligations<\/u>“: the unpaid principal of and interest on (including
\ninterest accruing after the maturity of the Loans and Reimbursement Obligations
\nand interest accruing after the filing of any petition in bankruptcy, or the
\ncommencement of any insolvency, reorganization or like proceeding, relating to
\nthe Borrower, whether or not a claim for post-filing or post-petition interest
\nis allowed in such proceeding) the Loans and all other obligations and
\nliabilities of the Borrower to the Administrative Agent or to any Lender (or, in
\nthe case of Specified Swap Agreements and Specified Cash Management Agreements,
\nany Affiliate of any Lender), whether direct or indirect, absolute or
\ncontingent, due or to become due, or now existing or hereafter incurred, which
\nmay arise under, out of, or in connection with, this Agreement, any other Loan
\nDocument, the Letters of Credit, any Specified Swap Agreement, any Specified
\nCash Management Agreement or any other document made, delivered or given in
\nconnection herewith or therewith, whether on account of principal, interest,
\nreimbursement obligations, fees, indemnities, costs, expenses (including all
\nfees, charges and disbursements of counsel to the Administrative Agent or to any
\nLender that are required to be paid by the Borrower pursuant hereto) or
\notherwise.<\/p>\n “Other Taxes<\/u>“: any present or future stamp, court, documentary,
\nintangible, recording, filing or similar excise or property Taxes that arise
\nfrom any payment made under, from the execution, delivery, performance,
\nenforcement or registration of, or from the registration, receipt or perfection
\nof a security interest under, or otherwise with respect to, any Loan Document.\n<\/p>\n “Participant<\/u>“: as defined in Section 10.6(c).<\/p>\n “Participant Register<\/u>“: as defined in Section 10.6(c).<\/p>\n “PBGC<\/u>“: the Pension Benefit Guaranty Corporation established pursuant
\nto ERISA any successor entity performing similar functions.<\/p>\n 16<\/p>\n
\n<\/p>\n “Pension Plan<\/u>“: any Plan subject to the provisions of Title IV of
\nERISA or Section 412 of the Code or Section 302 of ERISA.<\/p>\n “Permitted Acquisition<\/u>“: any acquisition by the Borrower or a
\nSubsidiary of a company or line of business that is similar or reasonably
\nrelated, complementary, ancillary or incidental to the business conducted or
\nproposed to be conducted by the Borrower and its Subsidiaries on the Closing
\nDate (each, an “Acquired Business<\/u>“); provided<\/u> that such
\nacquisition shall only constitute a Permitted Acquisition to the extent (i) no
\nDefault or Event of Default shall be in effect immediately prior to or after
\ngiving effect to such acquisition, (ii) immediately after giving effect to the
\nmaking of such acquisition, the Consolidated Leverage Ratio, determined on a Pro
\nForma Basis as of the last day of the Relevant Reference Period, shall be less
\nthan the maximum Consolidated Leverage Ratio permitted by Section 7.1(a) for the
\nRelevant Reference Period and (iii) such acquisition shall not be a “hostile”
\nacquisition and shall have been approved by the board of directors and\/or the
\nshareholders of the target.<\/p>\n “Person<\/u>“: an individual, partnership, corporation, limited liability
\ncompany, business trust, joint stock company, trust, unincorporated association,
\njoint venture, Governmental Authority or other entity of whatever nature.<\/p>\n “Plan<\/u>“: any employee benefit plan as defined in Section 3(3) of ERISA,
\nincluding any employee welfare benefit plan (as defined in Section 3(1) of
\nERISA), any employee pension benefit plan (as defined in Section 3(2) of ERISA
\nbut excluding any Multiemployer Plan), and any plan which is both an employee
\nwelfare benefit plan and an employee pension benefit plan, and in respect of
\nwhich any Group Member or any ERISA Affiliate is (or, if such Plan were
\nterminated, would under Section 4069 of ERISA be deemed to be) an “employer” as
\ndefined in section 3(5) of ERISA.<\/p>\n “Prime Rate<\/u>“: the rate of interest per annum publicly announced from
\ntime to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its
\nprincipal office in New York City (the Prime Rate not being intended to be the
\nlowest rate of interest charged by JPMorgan Chase Bank, N.A. in connection with
\nextensions of credit to debtors).<\/p>\n “Pro Forma Basis<\/u>“: with respect to compliance with any test or
\ncovenant or calculation of any ratio hereunder, the determination or calculation
\nof such test, covenant or ratio (including in connection with Pro Forma
\nTransactions) in accordance with Section 1.3.<\/p>\n “Pro Forma Compliance<\/u>“: with respect to the Financial Covenants,
\ncompliance on a Pro Forma Basis with the Financial Covenants in accordance with
\nSection 1.3.<\/p>\n “Pro Forma Financial Statements<\/u>“: as defined in Section 5.1(b).<\/p>\n “Pro Forma Transaction<\/u>“: any incurrence of Indebtedness under an
\nIncremental Facility pursuant to Section 2.24(a), any incurrence of Indebtedness
\n(other than for working capital purposes or in the ordinary course of business)
\npursuant to Section 7.2(f), the making of any Restricted Payment pursuant to
\nSection 7.6(d), the making of any Permitted Acquisition pursuant to Section
\n7.7(g), the making of any Investment pursuant to Section 7.7(n), the repayment
\nof any Material Indebtedness pursuant to Section 7.8(a) and the making of a
\nMaterial Acquisition or Material Disposition.<\/p>\n “Prohibited Transaction<\/u>“: as defined in Section 406 of ERISA and
\nSection 4975(f)(3) of the Code.<\/p>\n “Projections<\/u>“: as defined in Section 6.2(b).<\/p>\n 17<\/p>\n
\n<\/p>\n “Properties<\/u>“: as defined in Section 4.17(a).<\/p>\n “Recovery Event<\/u>“: any settlement of or payment in respect of any
\nproperty or casualty insurance claim or any condemnation proceeding relating to
\nany asset of any Group Member.<\/p>\n “Refunded Swingline Loans<\/u>“: as defined in Section 2.7.<\/p>\n “Register<\/u>“: as defined in Section 10.6(b).<\/p>\n “Regulation U<\/u>“: Regulation U of the Board as in effect from time to
\ntime.<\/p>\n “Reimbursement Obligation<\/u>“: the obligation of the Borrower to
\nreimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
\nLetters of Credit.<\/p>\n “Reinvestment Deferred Amount<\/u>“: with respect to any Reinvestment
\nEvent, the aggregate Net Cash Proceeds received by any Group Member in
\nconnection therewith that are not applied to prepay the Term Loans pursuant to
\nSection 2.11(b) as a result of the delivery of a Reinvestment Notice.<\/p>\n “Reinvestment Event<\/u>“: any Asset Sale or Recovery Event in respect of
\nwhich the Borrower has delivered a Reinvestment Notice.<\/p>\n “Reinvestment Notice<\/u>“: a written notice executed by a Responsible
\nOfficer stating that no Event of Default has occurred and is continuing and that
\nthe Borrower (directly or indirectly through a Subsidiary) intends and expects
\nto use all or a specified portion of the Net Cash Proceeds of an Asset Sale or
\nRecovery Event to acquire or repair assets useful in its business.<\/p>\n “Reinvestment Prepayment Amount<\/u>“: with respect to any Reinvestment
\nEvent, the Reinvestment Deferred Amount relating thereto less any amount
\nexpended prior to the relevant Reinvestment Prepayment Date to acquire or repair
\nassets useful in the Borrower’s business.<\/p>\n “Reinvestment Prepayment Date<\/u>“: with respect to any Reinvestment
\nEvent, the earlier of (a) the date occurring twelve months after such
\nReinvestment Event and (b) the date on which the Borrower shall have determined
\nnot to, or shall have otherwise ceased to, acquire or repair assets useful in
\nthe Borrower’s business with all or any portion of the relevant Reinvestment
\nDeferred Amount.<\/p>\n “Relevant Reference Period<\/u>“: with respect to a Pro Forma Transaction,
\nthe Test Period then most recently ended for which financial statements have
\nbeen delivered pursuant to Section 6.1(a) or (b).<\/p>\n “Reorganization<\/u>“: with respect to any Multiemployer Plan, the
\ncondition that such plan is in reorganization within the meaning of Section 4241
\nof ERISA.<\/p>\n “Reportable Event<\/u>“: any of the events set forth in Section 4043(c) of
\nERISA or the regulations issued thereunder, with respect to a Pension Plan,
\nother than those events as to which notice is waived pursuant to DOL Reg.
\nSection 4043 as in effect on the date hereof (no matter how such notice
\nrequirement may be changed in the future).<\/p>\n “Required Lenders<\/u>“: subject to Section 2.23(b), at any time, the
\nholders of more than 50% of (a) until the Closing Date, the Commitments then in
\neffect and (b) thereafter, the sum of (i) the aggregate unpaid principal amount
\nof the Tranche A Term Loans then outstanding, (ii) the sum of (x) prior to the
\nfirst anniversary of the Closing Date, the aggregate unutilized Delayed Draw
\nTerm<\/p>\n 18<\/p>\n
\n<\/p>\n Commitments and (y) the aggregate unpaid principal amount of the Delayed Draw
\nTerm Loans then outstanding and (iii) the Total Revolving Commitments then in
\neffect or, if the Revolving Commitments have been terminated, the Total
\nRevolving Extensions of Credit then outstanding.<\/p>\n “Requirement of Law<\/u>“: as to any Person, the Certificate of
\nIncorporation and By-Laws or other organizational or governing documents of such
\nPerson, and any law, treaty, rule or regulation or determination of an
\narbitrator or a court or other Governmental Authority, in each case binding upon
\nsuch Person or any of its property or to which such Person or any of its
\nproperty is subject.<\/p>\n “Responsible Officer<\/u>“: the chief executive officer, president or chief
\nfinancial officer of the Borrower, but in any event, with respect to financial
\nmatters, the chief financial officer of the Borrower.<\/p>\n “Restricted Payments<\/u>“: as defined in Section 7.6.<\/p>\n “Revolving Commitment<\/u>“: as to any Lender, the obligation of such
\nLender, if any, to make Revolving Loans and participate in Swingline Loans and
\nLetters of Credit in an aggregate principal and\/or face amount not to exceed the
\namount set forth under the heading “Revolving Commitment” opposite such Lender’s
\nname on Schedule 1.1 or in the Assignment and Assumption pursuant to which such
\nLender became a party hereto, as the same may be changed from time to time
\npursuant to the terms hereof. The original amount of the Total Revolving
\nCommitments is $50,000,000.<\/p>\n “Revolving Commitment Period<\/u>“: the period from and including the
\nClosing Date to the Revolving Termination Date.<\/p>\n “Revolving Extensions of Credit<\/u>“: as to any Revolving Lender at any
\ntime, an amount equal to the sum of (a) the aggregate principal amount of all
\nRevolving Loans held by such Lender then outstanding, (b) such Lender’s
\nRevolving Percentage of the L\/C Obligations then outstanding and (c) such
\nLender’s Revolving Percentage of the aggregate principal amount of Swingline
\nLoans then outstanding.<\/p>\n “Revolving Lender<\/u>“: each Lender that has a Revolving Commitment or
\nthat holds Revolving Loans.<\/p>\n “Revolving Loans<\/u>“: as defined in Section 2.4(a).<\/p>\n “Revolving Percentage<\/u>“: as to any Revolving Lender at any time, the
\npercentage which such Lender’s Revolving Commitment then constitutes of the
\nTotal Revolving Commitments or, at any time after the Revolving Commitments
\nshall have expired or terminated, the percentage which the aggregate principal
\namount of such Lender’s Revolving Loans then outstanding constitutes of the
\naggregate principal amount of the Revolving Loans then outstanding,
\nprovided<\/u>, that, in the event that the Revolving Loans are paid in full
\nprior to the reduction to zero of the Total Revolving Extensions of Credit, the
\nRevolving Percentages shall be determined in a manner designed to ensure that
\nthe other outstanding Revolving Extensions of Credit shall be held by the
\nRevolving Lenders on a comparable basis. Notwithstanding the foregoing, in the
\ncase of Section 2.23 when a Defaulting Lender shall exist, Revolving Percentages
\nshall be determined without regard to any Defaulting Lender’s Revolving
\nCommitment.<\/p>\n “Revolving Termination Date<\/u>“: November 30, 2016.<\/p>\n 19<\/p>\n
\n<\/p>\n “SEC<\/u>“: the Securities and Exchange Commission, any successor thereto
\nand any analogous Governmental Authority.<\/p>\n “Second Street<\/u>“: Second Street Securities, Inc., a Delaware
\ncorporation.<\/p>\n “Security Documents<\/u>“: the collective reference to the Guarantee and
\nCollateral Agreement, the Mortgages and all other security documents hereafter
\ndelivered to the Administrative Agent granting a Lien on any property of any
\nPerson to secure the obligations and liabilities of any Loan Party under any
\nLoan Document.<\/p>\n “Solvent<\/u>“: when used with respect to any Person, means that, as of any
\ndate of determination, (a) the amount of the “fair value” of the assets of such
\nPerson will, as of such date, exceed the amount of all “liabilities of such
\nPerson, contingent or otherwise”, as of such date, as such quoted terms are
\ndetermined in accordance with applicable federal and state laws governing
\ndeterminations of the insolvency of debtors, (b) the present fair saleable value
\nof the assets of such Person will, as of such date, be greater than the amount
\nthat will be required to pay the liability of such Person on its debts as such
\ndebts become absolute and matured, (c) such Person will not have, as of such
\ndate, an unreasonably small amount of capital with which to conduct its
\nbusiness, and (d) such Person will be able to pay its debts as they mature. For
\npurposes of this definition, (i) “debt” means liability on a “claim”, and (ii)
\n“claim” means any (x) right to payment, whether or not such a right is reduced
\nto judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
\ndisputed, undisputed, legal, equitable, secured or unsecured or (y) right to an
\nequitable remedy for breach of performance if such breach gives rise to a right
\nto payment, whether or not such right to an equitable remedy is reduced to
\njudgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
\nor unsecured.<\/p>\n “Specified Cash Management Agreement<\/u>“: any agreement providing for
\ntreasury, depositary, purchasing card or cash management services, including in
\nconnection with any automated clearing house transfers of funds or any similar
\ntransactions between the Borrower or any Subsidiary Guarantor and any Lender or
\nAffiliate thereof, which has been designated by such Lender and the Borrower, by
\nnotice to the Administrative Agent not later than 90 days after the execution
\nand delivery by the Borrower or such Subsidiary Guarantor, as a “Specified Cash
\nManagement Agreement”.<\/p>\n “Specified Change of Control<\/u>“: a “Change of Control” (or any other
\ndefined term having a similar purpose) as defined in the documents governing any
\nMaterial Indebtedness.<\/p>\n “Specified Swap Agreement<\/u>“: any Swap Agreement in respect of interest
\nrates, currency exchange rates or commodity prices entered into by the Borrower
\nor any Subsidiary Guarantor and any Person that is a Lender or an Affiliate of a
\nLender at the time such Swap Agreement is entered into.<\/p>\n “Sponsor<\/u>“: SPO Advisory Corp.<\/p>\n “Subsidiary<\/u>“: as to any Person, a corporation, partnership, limited
\nliability company or other entity of which shares of stock or other ownership
\ninterests having ordinary voting power (other than stock or such other ownership
\ninterests having such power only by reason of the happening of a contingency) to
\nelect a majority of the board of directors or other managers of such
\ncorporation, partnership or other entity are at the time owned, or the
\nmanagement of which is otherwise controlled, directly or indirectly through one
\nor more intermediaries, or both, by such Person. Unless otherwise qualified, all
\nreferences to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer
\nto a Subsidiary or Subsidiaries of the Borrower.<\/p>\n 20<\/p>\n
\n<\/p>\n “Subsidiary Guarantor<\/u>“: each Subsidiary of the Borrower other than any
\nExcluded Subsidiary.<\/p>\n “Swap Agreement<\/u>“: any agreement with respect to any swap, forward,
\nfuture or derivative transaction or option or similar agreement involving, or
\nsettled by reference to, one or more rates, currencies, commodities, equity or
\ndebt instruments or securities, or economic, financial or pricing indices or
\nmeasures of economic, financial or pricing risk or value or any similar
\ntransaction or any combination of these transactions; provided<\/u> that, for
\nthe avoidance of doubt, the following shall not be deemed a “Swap Agreement”:
\n(i) any stock option plan or any phantom stock or similar benefit plan, (ii) any
\noption or warrant agreement for the purchase of equity or debt securities of the
\nBorrower, (iii) the purchase of equity or debt securities of the Borrower
\npursuant to delayed delivery contracts or (iv) any of the foregoing to the
\nextent that it constitutes a derivative embedded in a convertible security
\nissued by the Borrower (such as the conversion feature of convertible
\nIndebtedness or convertible preferred stock).<\/p>\n “Swingline Commitment<\/u>“: the obligation of the Swingline Lender to make
\nSwingline Loans pursuant to Section 2.6 in an aggregate principal amount at any
\none time outstanding not to exceed $10,000,000.<\/p>\n “Swingline Exposure<\/u>“: at any time, the sum of the aggregate undrawn
\namount of all outstanding Swingline Loans at such time. The Swingline Exposure
\nof any Revolving Lender at any time shall be its Revolving Percentage of the
\ntotal Swingline Exposure at such time.<\/p>\n “Swingline Lender<\/u>“: JPMorgan Chase Bank, N.A., in its capacity as the
\nlender of Swingline Loans.<\/p>\n “Swingline Loans<\/u>“: as defined in Section 2.6.<\/p>\n “Swingline Participation Amount<\/u>“: as defined in Section 2.7.<\/p>\n “Syndication Agent<\/u>“: as defined in the preamble hereto.<\/p>\n “Taxes<\/u>“: any present or future taxes, levies, imposts, duties,
\ndeductions, withholdings, assessments, fees or other charges imposed by any
\nGovernmental Authority, including any interest, additions to tax or penalties
\napplicable thereto.<\/p>\n “Term Lenders<\/u>“: the collective reference to the Tranche A Term
\nLenders, the Delayed Draw Term Lenders and the Incremental Term Lenders.<\/p>\n “Term Loans<\/u>“: the collective reference to the Tranche A Term Loans,
\nthe Delayed Draw Term Loans and the Incremental Term Loans.<\/p>\n “Test Period<\/u>“: on any date of determination, the period of four
\nconsecutive fiscal quarters of the Borrower then most recently ended, taken as
\none accounting period.<\/p>\n “Total Revolving Commitments<\/u>“: at any time, the aggregate amount of
\nthe Revolving Commitments then in effect.<\/p>\n “Total Revolving Extensions of Credit<\/u>“: at any time, the aggregate
\namount of the Revolving Extensions of Credit of the Revolving Lenders
\noutstanding at such time.<\/p>\n 21<\/p>\n
\n<\/p>\n “Tranche A Term Commitment<\/u>“: as to any Lender, the obligation of such
\nLender, if any, to make a Tranche A Term Loan to the Borrower in a principal
\namount not to exceed the amount set forth under the heading “Tranche A Term
\nCommitment” opposite such Lender’s name on Schedule 1.1. The original aggregate
\namount of the Tranche A Term Commitments is $50,000,000.<\/p>\n “Tranche A Term Lender<\/u>“: each Lender that has a Tranche A Term
\nCommitment or that holds a Tranche A Term Loan.<\/p>\n “Tranche A Term Loan<\/u>“: as defined in Section 2.1.<\/p>\n “Tranche A Term Percentage<\/u>“: as to any Tranche A Term Lender at any
\ntime, the percentage which such Lender’s Tranche A Term Commitment then
\nconstitutes of the aggregate Tranche A Term Commitments (or, at any time after
\nthe Closing Date, the percentage which the aggregate principal amount of such
\nLender’s Tranche A Term Loans then outstanding constitutes of the aggregate
\nprincipal amount of the Tranche A Term Loans then outstanding).<\/p>\n “Transferee<\/u>“: any Assignee or Participant.<\/p>\n “Type<\/u>“: as to any Loan, its nature as an ABR Loan or a Eurodollar
\nLoan.<\/p>\n “United States<\/u>“: the United States of America.<\/p>\n “U.S. Person<\/u>“: a “United States person” within the meaning of Section
\n7701(a)(30) of the Code.<\/p>\n “U.S. Tax Certificate<\/u>“: as defined in Section 2.19(f)(ii)(D).<\/p>\n “Wholly Owned Subsidiary<\/u>“: as to any Person, any other Person all of
\nthe Capital Stock of which (other than directors’ qualifying shares required by
\nlaw) is owned by such Person directly and\/or through other Wholly Owned
\nSubsidiaries.<\/p>\n “Wholly Owned Subsidiary Guarantor<\/u>“: any Subsidiary Guarantor that is
\na Wholly Owned Subsidiary of the Borrower.<\/p>\n “Withdrawal Liability<\/u>“: any liability to a Multiemployer Plan as a
\nresult of a complete or partial withdrawal from such Multiemployer Plan, as such
\nterms are defined in Title IV of ERISA.<\/p>\n 1.2 Other Definitional Provisions<\/u>. (a) Unless otherwise specified
\ntherein, all terms defined in this Agreement shall have the defined meanings
\nwhen used in the other Loan Documents or any certificate or other document made
\nor delivered pursuant hereto or thereto.<\/p>\n (b) As used herein and in the other Loan Documents, and any certificate or
\nother document made or delivered pursuant hereto or thereto, accounting terms
\nrelating to any Group Member not defined in Section 1.1 and accounting terms
\npartly defined in Section 1.1, to the extent not defined, shall have the
\nrespective meanings given to them under GAAP (provided that all terms of an
\naccounting or financial nature used herein shall be construed, and all
\ncomputations of amounts and ratios referred to herein shall be made without
\ngiving effect to (i) any election under Accounting Standards Codification
\n825-10-25 (previously referred to as Statement of Financial Accounting Standards
\n159) (or any other Accounting Standards Codification or Financial Accounting
\nStandard having a similar result or effect) to value any Indebtedness or other
\nliabilities of the Borrower or any Subsidiary at “fair value”, as defined
\ntherein and (ii) any treatment of Indebtedness in respect of convertible debt
\ninstruments under<\/p>\n 22<\/p>\n
\n<\/p>\n Accounting Standards Codification 470-20 (or any other Accounting Standards
\nCodification or Financial Accounting Standard having a similar result or effect)
\nto value any such Indebtedness in a reduced or bifurcated manner as described
\ntherein, and such Indebtedness shall at all times be valued at the full stated
\nprincipal amount thereof); provided<\/u>, that, if the Borrower notifies the
\nAdministrative Agent that the Borrower requests an amendment to any provision
\nhereof to eliminate the effect of any change occurring after the date hereof in
\nGAAP or in the application thereof on the operation of such provision (or if the
\nAdministrative Agent notifies the Borrower that the Required Lenders request an
\namendment to any provision hereof for such purpose), regardless of whether any
\nsuch notice is given before or after such change in GAAP or in the application
\nthereof, then such provision shall be interpreted on the basis of GAAP as in
\neffect and applied immediately before such change shall have become effective
\nuntil such notice shall have been withdrawn or such provision amended in
\naccordance herewith; provided<\/u> further<\/u> that the Borrower, the
\nAdministrative Agent and the Required Lenders shall negotiate in good faith to
\nevaluate such proposed amendment.<\/p>\n (c) (i) The words “include”, “includes” and “including” shall be deemed to be
\nfollowed by the phrase “without limitation”, (ii) the word “incur” shall be
\nconstrued to mean incur, create, issue, assume, become liable in respect of or
\nsuffer to exist (and the words “incurred” and “incurrence” shall have
\ncorrelative meanings), (iii) the words “asset” and “property” shall be construed
\nto have the same meaning and effect and to refer to any and all tangible and
\nintangible assets and properties, including cash, Capital Stock, securities,
\nrevenues, accounts, leasehold interests and contract rights, and (iv) references
\nto agreements or other Contractual Obligations shall, unless otherwise
\nspecified, be deemed to refer to such agreements or Contractual Obligations as
\namended, supplemented, restated or otherwise modified from time to time.<\/p>\n (d) The words “hereof”, “herein” and “hereunder” and words of similar import,
\nwhen used in this Agreement, shall refer to this Agreement as a whole and not to
\nany particular provision of this Agreement, and Section, Schedule and Exhibit
\nreferences are to this Agreement unless otherwise specified.<\/p>\n (e) The meanings given to terms defined herein shall be equally applicable to
\nboth the singular and plural forms of such terms.<\/p>\n 1.3 Pro Forma Calculations<\/u>. (a) Notwithstanding anything to the
\ncontrary herein, the Consolidated Leverage Ratio, the Consolidated Interest
\nCoverage Ratio and Liquidity shall be calculated in the manner prescribed by
\nthis Section 1.3; provided<\/u> that notwithstanding anything to the contrary
\nin clauses (b), (c) or (d) of this Section 1.3, when calculating the
\nConsolidated Leverage Ratio, the Consolidated Interest Coverage Ratio and
\nLiquidity for the purposes of (i) determining actual compliance (not Pro Forma
\nCompliance or compliance on a Pro Forma Basis) with the Financial Covenants and
\n(ii) determining the Applicable Margin, the events described in this Section 1.3
\nthat occurred subsequent to the end of the applicable Test Period shall not be
\ngiven pro forma<\/u> effect.<\/p>\n (b) For purposes of calculating the Consolidated Leverage Ratio, the
\nConsolidated Interest Coverage Ratio and Liquidity, Pro Forma Transactions (and
\nthe incurrence or repayment of any Indebtedness in connection therewith) that
\nhave been made (i) during the applicable Test Period or (ii) subsequent to such
\nTest Period and prior to or simultaneously with the event for which the
\ncalculation of any such ratio is made shall be calculated on a pro<\/u>
\nforma<\/u> basis assuming that all such Pro Forma Transactions (and any
\nincrease or decrease in Consolidated EBITDA and the component financial
\ndefinitions used therein attributable to any Pro Forma Transaction) had occurred
\non the first day of the applicable Test Period. If since the beginning of any
\napplicable Test Period any Person that subsequently became a Subsidiary or was
\nmerged, amalgamated or consolidated with or into the Borrower or any of its
\nSubsidiaries since the beginning of such Test Period shall have made any Pro\n<\/p>\n 23<\/p>\n
\n<\/p>\n Forma Transaction that would have required adjustment pursuant to this
\nSection 1.3, then the Consolidated Leverage Ratio, the Consolidated Interest
\nCoverage Ratio and Liquidity shall be calculated to give pro<\/u> forma<\/u>
\neffect thereto in accordance with this Section 1.3.<\/p>\n (c) Whenever pro<\/u> forma<\/u> effect is to be given to a Pro Forma
\nTransaction, the pro<\/u> forma<\/u> calculations shall be made in good
\nfaith by a Responsible Officer of the Borrower (and approved by the
\nAdministrative Agent, such approval not to be unreasonably withheld, conditioned
\nor delayed) in a manner consistent with Article 11 of Regulation S-X of the
\nSecurities Act of 1933, as amended, as interpreted by the SEC, and take into
\naccount with respect to any acquisition or disposition, without duplication, the
\nConsolidated EBITDA (as determined in good faith by the Borrower) of any Person
\nor line of business acquired or disposed of. Any such pro<\/u> forma<\/u>
\ncalculation shall be certified by such Responsible Officer of the Borrower to
\nthe Administrative Agent as being (i) factually supportable and reasonably
\nidentifiable, reasonably attributable to the actions specified and reasonably
\nanticipated to result from such actions and (ii) reasonably anticipated to be
\nrealized within twelve months after the closing date of such Pro Forma
\nTransaction (calculated on a pro<\/u> forma<\/u> basis as though realized on
\nthe first day of the relevant Test Period).<\/p>\n (d) In the event that the Borrower or any Subsidiary (i) incurs (including by
\nassumption or guarantees) or (ii) repays, redeems, defeases, retires,
\nextinguishes or is released from or otherwise no longer obligated in respect of
\n(each, a “Repayment<\/u>“) any Indebtedness included in the calculations of
\nthe Consolidated Leverage Ratio and the Consolidated Interest Coverage Ratio, as
\nthe case may be (in each case, other than Indebtedness incurred or repaid under
\nany revolving credit facility in the ordinary course of business for working
\ncapital purposes), (i) during the applicable Test Period or (ii) subsequent to
\nthe end of the applicable Test Period and prior to or simultaneously with the
\nevent for which the calculation of any such ratio is made, then the Consolidated
\nLeverage Ratio and the Consolidated Interest Coverage Ratio shall be calculated
\ngiving pro<\/u> forma<\/u> effect to such incurrence or Repayment of
\nIndebtedness, to the extent required, as if the same had occurred on (A) the
\nlast day of the applicable Test Period in the case of the Consolidated Leverage
\nRatio and (B) the first day of the applicable Test Period in the case of the
\nConsolidated Interest Coverage Ratio. If any Indebtedness bears a floating rate
\nof interest and is being given pro<\/u> forma<\/u> effect, the interest on
\nsuch Indebtedness shall be calculated as if the rate in effect on the date of
\nthe event for which the calculation of the Consolidated Interest Coverage Ratio
\nis made had been the applicable rate for the entire period (taking into account
\nany hedging obligations applicable to such Indebtedness). If interest on a
\nCapital Lease Obligation is being given pro<\/u> forma<\/u> effect, it shall
\nbe deemed to accrue at an interest rate reasonably determined by a Responsible
\nOfficer of the Borrower to be the rate of interest implicit in such Capital
\nLease Obligation in accordance with GAAP. To the extent it is being given
\npro<\/u> forma<\/u> effect, interest on Indebtedness that may optionally be
\ndetermined at an interest rate based upon a factor of a prime or similar rate, a
\nLondon interbank offered rate, or other rate, shall be determined to have been
\nbased upon the rate actually chosen, or if none, then based upon such optional
\nrate chosen as the Borrower may designate.<\/p>\n (e) To the extent that the Borrower is required to demonstrate Pro Forma
\nCompliance with the Financial Covenants at any time prior to the date on which
\nfinancial statements for December 31, 2011 are required to be delivered, the
\nBorrower will be required to demonstrate compliance with the covenant levels
\nthen in effect for December 31, 2011 with respect to the most recent Test Period
\nprior to such time.<\/p>\n SECTION 2. AMOUNT AND TERMS OF COMMITMENTS<\/p>\n 2.1 Term Commitments<\/u>. (a) Subject to the terms and conditions hereof,
\neach Tranche A Term Lender severally agrees to make a term loan (a “Tranche A
\nTerm Loan<\/u>“) to the<\/p>\n 24<\/p>\n
\n<\/p>\n Borrower on the Closing Date in an amount not to exceed the amount of the
\nTranche A Term Commitment of such Lender.<\/p>\n (b) Subject to the terms and conditions hereof, each Delayed Draw Term Lender
\nseverally agrees to make term loans (each, a “Delayed Draw Term Loan<\/u>“) to
\nthe Borrower during the Delayed Draw Term Loan Availability Period in an
\naggregate amount not to exceed the amount of the Delayed Draw Term Commitment of
\nsuch Lender.<\/p>\n (c) The Term Loans may from time to time be Eurodollar Loans or ABR Loans, as
\ndetermined by the Borrower and notified to the Administrative Agent in
\naccordance with Sections 2.2 and 2.12.<\/p>\n 2.2 Procedure for Term Loan Borrowing<\/u>. (a) The Borrower shall give the
\nAdministrative Agent irrevocable notice substantially in the form of Exhibit K
\n(which notice must be received by the Administrative Agent prior to 1:00 P.M.,
\nNew York City time, (i) three Business Days prior to the anticipated Closing
\nDate, in the case of Eurodollar Loans or (ii) one Business Day prior to the
\nanticipated Closing Date, in the case of ABR Loans) requesting that the Tranche
\nA Term Lenders make the Tranche A Term Loans on the Closing Date and specifying
\nthe amount to be borrowed. Upon receipt of such notice the Administrative Agent
\nshall promptly notify each Tranche A Term Lender thereof. Not later than 12:00
\nNoon, New York City time, on the Closing Date each Tranche A Term Lender shall
\nmake available to the Administrative Agent at the Funding Office an amount in
\nimmediately available funds equal to the Tranche A Term Loan to be made by such
\nLender. The Administrative Agent shall credit the account of the Borrower on the
\nbooks of such office of the Administrative Agent with the aggregate of the
\namounts made available to the Administrative Agent by the Tranche A Term Lenders
\nin immediately available funds.<\/p>\n (b) The Borrower may borrow under the Delayed Draw Term Commitment during the
\nDelayed Draw Term Loan Commitment Period on any Business Day, provided that the
\nBorrower shall give the Administrative Agent irrevocable notice substantially in
\nthe form of Exhibit K (which notice must be received by the Administrative Agent
\nprior to 1:00 P.M., New York City time, (i) three Business Days prior to the
\nrequested Borrowing Date, in the case of Eurodollar Loans, or (ii) one Business
\nDay prior to the requested Borrowing Date, in the case of ABR Loans), specifying
\n(x) the amount of Delayed Draw Term Loans to be borrowed, (y) the requested
\nBorrowing Date and (z) in the case of Eurodollar Loans, the respective amounts
\nof each such Type of Loan and the respective lengths of the initial Interest
\nPeriod therefor. Any Delayed Draw Term Loans made on the Closing Date shall
\ninitially be ABR Loans. Each borrowing under the Delayed Draw Term Commitments
\nshall be in an amount equal to $5,000,000 or a whole multiple thereof (or, if
\nthe then aggregate Available Delayed Draw Term Commitments are less than
\n$5,000,000, such lesser amount). Upon receipt of any such notice from the
\nBorrower, the Administrative Agent shall promptly notify each Delayed Draw Term
\nLender thereof. Each Delayed Draw Term Lender will make the amount of its pro
\nrata share of each borrowing available to the Administrative Agent for the
\naccount of the Borrower at the Funding Office prior to 12:00 Noon, New York City
\ntime, on the Borrowing Date requested by the Borrower in funds immediately
\navailable to the Administrative Agent. Such borrowing will then be made
\navailable to the Borrower by the Administrative Agent crediting the account of
\nthe Borrower on the books of such office with the aggregate of the amounts made
\navailable to the Administrative Agent by the Delayed Draw Term Lenders and in
\nlike funds as received by the Administrative Agent.<\/p>\n 2.3 Repayment of Term Loans<\/u>. (a) The Tranche A Term Loan of each
\nTranche A Lender shall mature in 20 consecutive quarterly installments, each of
\nwhich shall be in an amount equal to such Lender’s Tranche A Term Percentage
\nmultiplied by the amount set forth below opposite such installment:<\/p>\n 25<\/p>\n
\n\n\n\n| <\/p>\n Installment<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n Principal Amount<\/strong><\/p>\n<\/td>\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n March 31, 2012<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n June 30, 2012<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n September 30, 2012<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n December 31, 2012<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n March 31, 2013<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n June 30, 2013<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n September 30, 2013<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n December 31, 2013<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n March 31, 2014<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n June 30, 2014<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n September 30, 2014<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n December 31, 2014<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n March 31, 2015<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n June 30, 2015<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n September 30, 2015<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n December 31, 2015<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n March 31, 2016<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n June 30, 2016<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n September 30, 2016<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 1,250,000<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Maturity Date<\/p>\n<\/td>\n | <\/td>\n | \n Balance of Tranche A Term Loan.<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n (b) The Delayed Draw Term Loans made by each Delayed Draw Term Lender on any
\nBorrowing Date shall mature in consecutive quarterly installments on each March
\n31, June 30, September 30 and December 31, beginning on the last day of the
\nfirst full fiscal quarter of the Borrower following such Borrowing Date, each of
\nwhich shall be in an amount equal to such Lender’s Delayed Draw Term Percentage
\nof 2.5% of the aggregate amount of Delayed Draw Term Loans made on such
\nBorrowing Date, with the balance of the Delayed Draw Term Loans being payable on
\nthe Maturity Date. Upon the making of any Delayed Draw Term Loans, the
\nAdministrative Agent shall prepare an amortization schedule in connection
\ntherewith, which schedule shall be updated from time to time upon the making of
\nany subsequent Delayed Draw Term Loans.<\/p>\n (c) The Incremental Term Loans of each Incremental Term Lender shall mature
\nin consecutive installments (which shall be no more frequent than quarterly) as
\nspecified in the Increased Facility Activation Notice pursuant to which such
\nIncremental Term Loans were made, provided<\/u> that, prior to the final
\nmaturity of the Tranche A Term Loans and the Delayed Draw Term Loans, the
\naggregate amount of such installments for any four consecutive fiscal quarters
\nshall not exceed 2.5% of the aggregate principal amount of such Incremental Term
\nLoans on the date such Loans were first made.<\/p>\n 2.4 Revolving Commitments<\/u>. (a) Subject to the terms and conditions
\nhereof, each Revolving Lender severally agrees to make revolving credit loans
\n(“Revolving Loans<\/u>“) to the Borrower from time to time during the
\nRevolving Commitment Period in an aggregate principal amount at any one time
\noutstanding which, when added to such Lender’s Revolving Percentage of the sum
\nof (i) the L\/C Obligations then outstanding and (ii) the aggregate principal
\namount of the Swingline Loans then outstanding, does not exceed the amount of
\nsuch Lender’s Revolving Commitment. During the Revolving Commitment Period the
\nBorrower may use the Revolving Commitments by borrowing, prepaying the Revolving
\nLoans in whole or in part, and reborrowing, all in accordance with the terms and
\nconditions hereof. The Revolving Loans may from time to time be Eurodollar Loans
\nor ABR Loans, as determined by the Borrower and notified to the Administrative
\nAgent in accordance with Sections 2.5 and 2.12.<\/p>\n 26<\/p>\n
\n<\/p>\n (b) The Borrower shall repay all outstanding Revolving Loans on the Revolving
\nTermination Date.<\/p>\n 2.5 Procedure for Revolving Loan Borrowing<\/u>. The Borrower may borrow
\nunder the Revolving Commitments during the Revolving Commitment Period on any
\nBusiness Day, provided<\/u> that the Borrower shall give the Administrative
\nAgent irrevocable notice substantially in the form of Exhibit K (which notice
\nmust be received by the Administrative Agent prior to 11:00 A.M., New York City
\ntime, (a) three Business Days prior to the requested Borrowing Date, in the case
\nof Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing
\nDate, in the case of ABR Loans) (provided<\/u> that any such notice of a
\nborrowing of ABR Loans under the Revolving Facility to finance payments required
\nby Section 3.5 may be given not later than 1:00 P.M., New York City time, on the
\ndate of the proposed borrowing), specifying (i) the amount and Type of Revolving
\nLoans to be borrowed, (ii) the requested Borrowing Date and (iii) in the case of
\nEurodollar Loans, the respective amounts of each such Type of Loan and the
\nrespective lengths of the initial Interest Period therefor. Any Revolving Loans
\nmade on the Closing Date shall initially be ABR Loans. Each borrowing under the
\nRevolving Commitments shall be in an amount equal to (x) in the case of ABR
\nLoans, $1,000,000 or a whole multiple thereof (or, if the then aggregate
\nAvailable Revolving Commitments are less than $1,000,000, such lesser amount)
\nand (y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of
\n$1,000,000 in excess thereof; provided<\/u>, that the Swingline Lender may
\nrequest, on behalf of the Borrower, borrowings under the Revolving Commitments
\nthat are ABR Loans in other amounts pursuant to Section 2.7. Upon receipt of any
\nsuch notice from the Borrower, the Administrative Agent shall promptly notify
\neach Revolving Lender thereof. Each Revolving Lender will make the amount of its
\npro<\/u> rata<\/u> share of each borrowing available to the Administrative
\nAgent for the account of the Borrower at the Funding Office prior to 12:00 Noon,
\nNew York City time, on the Borrowing Date requested by the Borrower in funds
\nimmediately available to the Administrative Agent. Such borrowing will then be
\nmade available to the Borrower by the Administrative Agent crediting the account
\nof the Borrower on the books of such office with the aggregate of the amounts
\nmade available to the Administrative Agent by the Revolving Lenders and in like
\nfunds as received by the Administrative Agent.<\/p>\n 2.6 Swingline Commitment<\/u>. (a) Subject to the terms and conditions
\nhereof, the Swingline Lender agrees to make a portion of the credit otherwise
\navailable to the Borrower under the Revolving Commitments from time to time
\nduring the Revolving Commitment Period by making swing line loans
\n(“Swingline Loans<\/u>“) to the Borrower; provided<\/u> that (i) the
\naggregate principal amount of Swingline Loans outstanding at any time shall not
\nexceed the Swingline Commitment then in effect (notwithstanding that the
\nSwingline Loans outstanding at any time, when aggregated with the Swingline
\nLender’s other outstanding Revolving Loans, may exceed the Swingline Commitment
\nthen in effect) and (ii) the Borrower shall not request, and the Swingline
\nLender shall not make, any Swingline Loan if, after giving effect to the making
\nof such Swingline Loan, the aggregate amount of the Available Revolving
\nCommitments would be less than zero. During the Revolving Commitment Period, the
\nBorrower may use the Swingline Commitment by borrowing, repaying and
\nreborrowing, all in accordance with the terms and conditions hereof. Swingline
\nLoans shall be ABR Loans only.<\/p>\n (b) The Borrower shall repay to the Swingline Lender the then unpaid
\nprincipal amount of each Swingline Loan on the earlier of the Revolving
\nTermination Date and the first date after such Swingline Loan is made that is
\nthe 15th or last day of a calendar month and is at least two Business Days after
\nsuch Swingline Loan is made; provided<\/u> that on each date that a Revolving
\nLoan is borrowed, the Borrower shall repay all Swingline Loans then outstanding.\n<\/p>\n 2.7 Procedure for Swingline Borrowing; Refunding of Swingline Loans<\/u>.
\n(a) Whenever the Borrower desires that the Swingline Lender make Swingline Loans
\nit shall give the Swingline Lender irrevocable telephonic notice confirmed
\npromptly in writing (which telephonic notice<\/p>\n 27<\/p>\n
\n<\/p>\n must be received by the Swingline Lender not later than 1:00 P.M., New York
\nCity time, on the proposed Borrowing Date), specifying (i) the amount to be
\nborrowed and (ii) the requested Borrowing Date (which shall be a Business Day
\nduring the Revolving Commitment Period). Each borrowing under the Swingline
\nCommitment shall be in an amount equal to $500,000 or a whole multiple of
\n$100,000 in excess thereof. Not later than 3:00 P.M., New York City time, on the
\nBorrowing Date specified in a notice in respect of Swingline Loans, the
\nSwingline Lender shall make available to the Administrative Agent at the Funding
\nOffice an amount in immediately available funds equal to the amount of the
\nSwingline Loan to be made by the Swingline Lender. The Administrative Agent
\nshall make the proceeds of such Swingline Loan available to the Borrower on such
\nBorrowing Date by depositing such proceeds in the account of the Borrower with
\nthe Administrative Agent on such Borrowing Date in immediately available funds.\n<\/p>\n (b) The Swingline Lender, at any time and from time to time in its sole and
\nabsolute discretion may, on behalf of the Borrower (which hereby irrevocably
\ndirects the Swingline Lender to act on its behalf), on one Business Day’s notice
\ngiven by the Swingline Lender no later than 12:00 Noon, New York City time,
\nrequest each Revolving Lender to make, and each Revolving Lender hereby agrees
\nto make, a Revolving Loan, in an amount equal to such Revolving Lender’s
\nRevolving Percentage of the aggregate amount of the Swingline Loans (the
\n“Refunded Swingline Loans<\/u>“) outstanding on the date of such notice, to
\nrepay the Swingline Lender. Each Revolving Lender shall make the amount of such
\nRevolving Loan available to the Administrative Agent at the Funding Office in
\nimmediately available funds, not later than 10:00 A.M., New York City time, one
\nBusiness Day after the date of such notice. The proceeds of such Revolving Loans
\nshall be immediately made available by the Administrative Agent to the Swingline
\nLender for application by the Swingline Lender to the repayment of the Refunded
\nSwingline Loans. The Borrower irrevocably authorizes the Swingline Lender to
\ncharge the Borrower’s accounts with the Administrative Agent (up to the amount
\navailable in each such account) in order to immediately pay the amount of such
\nRefunded Swingline Loans to the extent amounts received from the Revolving
\nLenders are not sufficient to repay in full such Refunded Swingline Loans.<\/p>\n (c) If prior to the time a Revolving Loan would have otherwise been made
\npursuant to Section 2.7(b), one of the events described in Section 8(f) shall
\nhave occurred and be continuing with respect to the Borrower or if for any other
\nreason, as determined by the Swingline Lender in its sole discretion, Revolving
\nLoans may not be made as contemplated by Section 2.7(b), each Revolving Lender
\nshall, on the date such Revolving Loan was to have been made pursuant to the
\nnotice referred to in Section 2.7(b), purchase for cash an undivided
\nparticipating interest in the then outstanding Swingline Loans by paying to the
\nSwingline Lender an amount (the “Swingline Participation Amount<\/u>“) equal
\nto (i) such Revolving Lender’s Revolving Percentage times<\/u> (ii) the sum of
\nthe aggregate principal amount of Swingline Loans then outstanding that were to
\nhave been repaid with such Revolving Loans.<\/p>\n (d) Whenever, at any time after the Swingline Lender has received from any
\nRevolving Lender such Lender’s Swingline Participation Amount, the Swingline
\nLender receives any payment on account of the Swingline Loans, the Swingline
\nLender will distribute to such Lender its Swingline Participation Amount
\n(appropriately adjusted, in the case of interest payments, to reflect the period
\nof time during which such Lender’s participating interest was outstanding and
\nfunded and, in the case of principal and interest payments, to reflect such
\nLender’s pro<\/u> rata<\/u> portion of such payment if such payment is not
\nsufficient to pay the principal of and interest on all Swingline Loans then
\ndue); provided<\/u>, however<\/u>, that in the event that such payment
\nreceived by the Swingline Lender is required to be returned, such Revolving
\nLender will return to the Swingline Lender any portion thereof previously
\ndistributed to it by the Swingline Lender.<\/p>\n (e) Each Revolving Lender’s obligation to make the Loans referred to in
\nSection 2.7(b) and to purchase participating interests pursuant to Section
\n2.7(c) shall be absolute and unconditional and shall not be affected by any
\ncircumstance, including (i) any setoff, counterclaim, recoupment, defense or\n<\/p>\n 28<\/p>\n
\n<\/p>\n other right that such Revolving Lender or the Borrower may have against the
\nSwingline Lender, the Borrower or any other Person for any reason whatsoever,
\n(ii) the occurrence or continuance of a Default or an Event of Default or the
\nfailure to satisfy any of the other conditions specified in Section 5, (iii) any
\nadverse change in the condition (financial or otherwise) of the Borrower, (iv)
\nany breach of this Agreement or any other Loan Document by the Borrower, any
\nother Loan Party or any other Revolving Lender or (v) any other circumstance,
\nhappening or event whatsoever, whether or not similar to any of the foregoing.\n<\/p>\n 2.8 Commitment Fees, etc.<\/u> (a) The Borrower agrees to pay to the
\nAdministrative Agent for the account of each Revolving Lender a commitment fee
\nfor the period from and including the date hereof to the last day of the
\nRevolving Commitment Period, computed at the Commitment Fee Rate on the average
\ndaily amount of the Available Revolving Commitment of such Lender during the
\nperiod for which payment is made, payable quarterly in arrears on each Fee
\nPayment Date, commencing on the first such date to occur after the date hereof.\n<\/p>\n (b) Subject to Section 2.23(a), the Borrower agrees to pay to the
\nAdministrative Agent for the account of each Delayed Draw Term Lender a
\ncommitment fee for the period from and including the date hereof to the last day
\nof the Delayed Draw Term Loan Commitment Period, computed at the Commitment Fee
\nRate on the average daily amount of the Available Delayed Draw Term Commitment
\nof such Lender during the period for which payment is made, payable quarterly in
\narrears on the Fee Payment Date, commencing on the first such date to occur
\nafter the date hereof.<\/p>\n (c) The Borrower agrees to pay to the Administrative Agent the fees in the
\namounts and on the dates as set forth in any fee agreements with the
\nAdministrative Agent and to perform any other obligations contained therein.\n<\/p>\n 2.9 Termination or Reduction of Revolving Commitments and Delayed Draw
\nTerm Commitments<\/u>. (a) The Borrower shall have the right, upon not less than
\nthree Business Days’ notice to the Administrative Agent, to terminate the
\nRevolving Commitments or, from time to time, to reduce the amount of the
\nRevolving Commitments; provided<\/u> that no such termination or reduction of
\nRevolving Commitments shall be permitted if, after giving effect thereto and to
\nany prepayments of the Revolving Loans and Swingline Loans made on the effective
\ndate thereof, the Total Revolving Extensions of Credit would exceed the Total
\nRevolving Commitments. Any such reduction shall be in an amount equal to
\n$1,000,000, or a whole multiple thereof, and shall reduce permanently the
\nRevolving Commitments then in effect.<\/p>\n (b) The Borrower shall have the right, upon not less than three Business
\nDays’ notice to the Administrative Agent, to terminate the Delayed Draw Term
\nCommitments or, from time to time, to reduce the amount of the unutilized
\nDelayed Draw Term Commitments. Any such reduction shall be in an amount equal to
\n$1,000,000, or a whole multiple thereof, and shall reduce permanently the
\nDelayed Draw Term Commitments then in effect.<\/p>\n (c) A notice of termination of the Commitments delivered by the Borrower
\nunder this Section 2.9 may state that such notice is conditioned upon the
\neffectiveness of other credit facilities or other transactions, in which case
\nsuch notice may, with the approval of the Administrative Agent (which approval
\nshall not be unreasonably withheld or delayed), be revoked by the Borrower (by
\nnotice to the Administrative Agent on or prior to the specified effective date)
\nif such condition is not satisfied.<\/p>\n 2.10 Optional Prepayments<\/u>. The Borrower may at any time and from time
\nto time prepay the Loans, in whole or in part, without premium or penalty, upon
\nnotice (which notice shall be irrevocable unless otherwise agreed by the
\nAdministrative Agent) delivered to the Administrative Agent<\/p>\n 29<\/p>\n
\n<\/p>\n no later than 1:00 P.M., New York City time, three Business Days prior
\nthereto, in the case of Eurodollar Loans, and no later than 1:00 P.M., New York
\nCity time, one Business Day prior thereto, in the case of ABR Loans, which
\nnotice shall specify the date and amount of prepayment and whether the
\nprepayment is of Eurodollar Loans or ABR Loans; provided<\/u>, that if a
\nEurodollar Loan is prepaid on any day other than the last day of the Interest
\nPeriod applicable thereto, the Borrower shall also pay any amounts owing
\npursuant to Section 2.20. Upon receipt of any such notice the Administrative
\nAgent shall promptly notify each relevant Lender thereof. If any such notice is
\ngiven, the amount specified in such notice shall be due and payable on the date
\nspecified therein, together with (except in the case of Revolving Loans that are
\nABR Loans and Swingline Loans) accrued interest to such date on the amount
\nprepaid. Partial prepayments of Term Loans and Revolving Loans shall be in an
\naggregate principal amount of $1,000,000 or a whole multiple thereof. Partial
\nprepayments of Swingline Loans shall be in an aggregate principal amount of
\n$100,000 or a whole multiple thereof. Amounts to be applied in connection with
\nprepayments made pursuant to Section 2.10 shall be applied to the prepayment of
\nthe Loans in accordance with Sections 2.17(b) and (c).<\/p>\n 2.11 Mandatory Prepayments<\/u>. (a) If any Indebtedness shall be incurred
\nby any Group Member (excluding any Indebtedness incurred in accordance with
\nSection 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be
\napplied on the date of such incurrence toward the prepayment of the Term Loans
\nas set forth in Section 2.11(c).<\/p>\n (b) If on any date any Group Member shall receive Net Cash Proceeds from any
\nAsset Sale or Recovery Event then, unless a Reinvestment Notice shall be
\ndelivered in respect thereof, such Net Cash Proceeds shall be applied on such
\ndate toward the prepayment of the Term Loans as set forth in Section 2.11(c);
\nprovided<\/u>, that, notwithstanding the foregoing, on each Reinvestment
\nPrepayment Date, an amount equal to the Reinvestment Prepayment Amount with
\nrespect to the relevant Reinvestment Event shall be applied toward the
\nprepayment of the Term Loans as set forth in Section 2.11(c).<\/p>\n (c) Amounts to be applied in connection with prepayments made pursuant to
\nSection 2.11 shall be applied to the prepayment of the Term Loans in accordance
\nwith Section 2.17(b). The application of any prepayment pursuant to Section 2.11
\nshall be made, first<\/u>, to ABR Loans and, second<\/u>, to Eurodollar
\nLoans. Each prepayment of the Loans under Section 2.11 (except in the case of
\nRevolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by
\naccrued interest to the date of such prepayment on the amount prepaid.<\/p>\n 2.12 Conversion and Continuation Options<\/u>. (a) The Borrower may elect
\nfrom time to time to convert Eurodollar Loans to ABR Loans by giving the
\nAdministrative Agent prior irrevocable notice of such election no later than
\n1:00 P.M., New York City time, on the Business Day preceding the proposed
\nconversion date, provided<\/u> that any such conversion of Eurodollar Loans
\nmay only be made on the last day of an Interest Period with respect thereto. The
\nBorrower may elect from time to time to convert ABR Loans to Eurodollar Loans by
\ngiving the Administrative Agent prior irrevocable notice of such election no
\nlater than 1:00 P.M., New York City time, on the third Business Day preceding
\nthe proposed conversion date (which notice shall specify the length of the
\ninitial Interest Period therefor), provided<\/u> that no ABR Loan under a
\nparticular Facility may be converted into a Eurodollar Loan when any Event of
\nDefault has occurred and is continuing and the Administrative Agent or the
\nMajority Facility Lenders in respect of such Facility have determined in its or
\ntheir sole discretion not to permit such conversions. Upon receipt of any such
\nnotice the Administrative Agent shall promptly notify each relevant Lender
\nthereof.<\/p>\n (b) Any Eurodollar Loan may be continued as such upon the expiration of the
\nthen current Interest Period with respect thereto by the Borrower giving
\nirrevocable notice to the Administrative Agent, in accordance with the
\napplicable provisions of the term “Interest Period” set<\/p>\n 30<\/p>\n
\n<\/p>\n forth in Section 1.1, of the length of the next Interest Period to be
\napplicable to such Loans, provided<\/u> that no Eurodollar Loan under a
\nparticular Facility may be continued as such when any Event of Default has
\noccurred and is continuing and the Administrative Agent has or the Majority
\nFacility Lenders in respect of such Facility have determined in its or their
\nsole discretion not to permit such continuations, and provided<\/u>,
\nfurther<\/u>, that if the Borrower shall fail to give any required notice as
\ndescribed above in this paragraph or if such continuation is not permitted
\npursuant to the preceding proviso such Loans shall be automatically converted to
\nABR Loans on the last day of such then expiring Interest Period. Upon receipt of
\nany such notice the Administrative Agent shall promptly notify each relevant
\nLender thereof.<\/p>\n 2.13 Limitations on Eurodollar Tranches<\/u>. Notwithstanding anything to
\nthe contrary in this Agreement, all borrowings, conversions and continuations of
\nEurodollar Loans and all selections of Interest Periods shall be in such amounts
\nand be made pursuant to such elections so that, after giving effect thereto, the
\naggregate principal amount of the Eurodollar Loans comprising each Eurodollar
\nTranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess
\nthereof.<\/p>\n 2.14 Interest Rates and Payment Dates<\/u>. (a) Each Eurodollar Loan shall
\nbear interest for each day during each Interest Period with respect thereto at a
\nrate per annum equal to the Eurodollar Rate determined for such day plus the
\nApplicable Margin.<\/p>\n (b) Each ABR Loan shall bear interest at a rate per annum equal to the ABR
\nplus the Applicable Margin.<\/p>\n (c) (i) If all or a portion of the principal amount of any Loan or
\nReimbursement Obligation shall not be paid when due (whether at the stated
\nmaturity, by acceleration or otherwise) after giving effect to any applicable
\ngrace period specified in paragraph (a) of Section 8, all outstanding Loans and
\nReimbursement Obligations (whether or not overdue) shall bear interest at a rate
\nper annum equal to (x) in the case of the Loans, the rate that would otherwise
\nbe applicable thereto pursuant to the foregoing provisions of this Section
\nplus<\/u> 2% or (y) in the case of Reimbursement Obligations, the rate
\napplicable to ABR Loans under the Revolving Facility plus<\/u> 2%, and (ii) if
\nall or a portion of any interest payable on any Loan or Reimbursement Obligation
\nor any commitment fee or other amount payable hereunder shall not be paid when
\ndue (whether at the stated maturity, by acceleration or otherwise), such overdue
\namount shall bear interest at a rate per annum equal to the rate then applicable
\nto ABR Loans under the relevant Facility plus<\/u> 2% (or, in the case of any
\nsuch other amounts that do not relate to a particular Facility, the rate then
\napplicable to ABR Loans under the Revolving Facility plus<\/u> 2%), in each
\ncase, with respect to clauses (i) and (ii) above, from the date of such
\nnon-payment until such amount is paid in full (as well after as before
\njudgment).<\/p>\n (d) Interest shall be payable in arrears on each Interest Payment Date,
\nprovided<\/u> that interest accruing pursuant to paragraph (c) of this Section
\nshall be payable from time to time on demand.<\/p>\n 2.15 Computation of Interest and Fees<\/u>. (a) Interest and fees payable
\npursuant hereto shall be calculated on the basis of a 360-day year for the
\nactual days elapsed, except that, with respect to ABR Loans the rate of interest
\non which is calculated on the basis of the Prime Rate, the interest thereon
\nshall be calculated on the basis of a 365- (or 366-, as the case may be) day
\nyear for the actual days elapsed. The Administrative Agent shall as soon as
\npracticable notify the Borrower and the relevant Lenders of each determination
\nof a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
\nchange in the ABR or the Eurocurrency Reserve Requirements shall become
\neffective as of the opening of business on the day on which such change becomes
\neffective. The Administrative Agent shall as soon as practicable notify the
\nBorrower and the relevant Lenders of the effective date and the amount of each
\nsuch change in interest rate.<\/p>\n 31<\/p>\n
\n<\/p>\n (b) Each determination of an interest rate by the Administrative Agent
\npursuant to any provision of this Agreement shall be conclusive and binding on
\nthe Borrower and the Lenders in the absence of manifest error. The
\nAdministrative Agent shall, at the request of the Borrower, deliver to the
\nBorrower a statement showing the quotations used by the Administrative Agent in
\ndetermining any interest rate pursuant to Section 2.14(a).<\/p>\n 2.16 Inability to Determine Interest Rate<\/u>. If prior to the first day
\nof any Interest Period:<\/p>\n (a) the Administrative Agent shall have determined (which determination shall
\nbe conclusive and binding upon the Borrower) that, by reason of circumstances
\naffecting the relevant market, adequate and reasonable means do not exist for
\nascertaining the Eurodollar Rate for such Interest Period, or<\/p>\n (b) the Administrative Agent shall have received notice from the Majority
\nFacility Lenders in respect of the relevant Facility that the Eurodollar Rate
\ndetermined or to be determined for such Interest Period will not adequately and
\nfairly reflect the cost to such Lenders (as conclusively certified by such
\nLenders) of making or maintaining their affected Loans during such Interest
\nPeriod,<\/p>\n the Administrative Agent shall give telecopy or telephonic notice thereof to
\nthe Borrower and the relevant Lenders as soon as practicable thereafter. If such
\nnotice is given (x) any Eurodollar Loans under the relevant Facility requested
\nto be made on the first day of such Interest Period shall be made as ABR Loans,
\n(y) any Loans under the relevant Facility that were to have been converted on
\nthe first day of such Interest Period to Eurodollar Loans shall be continued as
\nABR Loans and (z) any outstanding Eurodollar Loans under the relevant Facility
\nshall be converted, on the last day of the then-current Interest Period, to ABR
\nLoans. Until such notice has been withdrawn by the Administrative Agent, no
\nfurther Eurodollar Loans under the relevant Facility shall be made or continued
\nas such, nor shall the Borrower have the right to convert Loans under the
\nrelevant Facility to Eurodollar Loans.<\/p>\n 2.17 Pro Rata Treatment and Payments<\/u>. (a) Each borrowing by the
\nBorrower from the Lenders hereunder, each payment by the Borrower on account of
\nany commitment fee and any reduction of the Commitments of the Lenders shall be
\nmade pro<\/u> rata<\/u> according to the respective Tranche A Term
\nPercentages, Delayed Draw Term Percentages or Revolving Percentages, as the case
\nmay be, of the relevant Lenders.<\/p>\n (b) Mandatory prepayments of the Term Loans required by Section 2.11 shall be
\nmade pro<\/u> rata<\/u> according to the respective outstanding amounts of
\nthe Term Loans, provided that Incremental Term Loans may be prepaid on a less
\nfavorable basis if specified in the applicable Incremental Facility Activation
\nNotice. Each payment (including each prepayment) by the Borrower on account of
\nprincipal of and interest on the Tranche A Term Loans shall be made pro<\/u>
\nrata<\/u> according to the respective outstanding principal amounts of the
\nTranche A Term Loans then held by the Tranche A Term Lenders. Each payment
\n(including each prepayment) by the Borrower on account of principal of and
\ninterest on the Delayed Draw Term Loans shall be made pro<\/u> rata<\/u>
\naccording to the respective outstanding principal amount of the Delayed Draw
\nTerm Loans then held by the Delayed Draw Term Lenders. Each payment (including
\neach prepayment) by the Borrower on account of principal of and interest on the
\nIncremental Term Loans shall be made pro<\/u> rata<\/u> according to the
\nrespective outstanding principal amount of the Incremental Term Loans then held
\nby the Incremental Term Lenders. The amount of each mandatory principal
\nprepayment of the Term Loans shall be applied, first<\/u>, to reduce the then
\nremaining installments of the Tranche A Term Loans, Delayed Draw Term Loans and
\nIncremental Term Loans, as the case may be, occurring within the next 12 months,
\nin direct order of maturity, and second<\/u>, to reduce the remaining<\/p>\n 32<\/p>\n
\n<\/p>\n respective installments thereof, in each case pro<\/u> rata<\/u> based
\nupon the respective then remaining principal amounts thereof. The amount of each
\noptional principal prepayment of the Term Loans shall be applied to reduce the
\noutstanding principal amount of the Tranche A Term Loans, Delayed Draw Term
\nLoans and the Incremental Term Loans as directed by the Borrower. Amounts
\nprepaid on account of the Term Loans may not be reborrowed.<\/p>\n (c) Each payment (including each prepayment) by the Borrower on account of
\nprincipal of and interest on the Revolving Loans shall be made pro<\/u>
\nrata<\/u> according to the respective outstanding principal amounts of the
\nRevolving Loans then held by the Revolving Lenders.<\/p>\n (d) All payments (including prepayments) to be made by the Borrower
\nhereunder, whether on account of principal, interest, fees or otherwise, shall
\nbe made without setoff or counterclaim and shall be made prior to 1:00 P.M., New
\nYork City time, on the due date thereof to the Administrative Agent, for the
\naccount of the Lenders, at the Funding Office, in Dollars and in immediately
\navailable funds. The Administrative Agent shall distribute such payments to each
\nrelevant Lender promptly upon receipt in like funds as received, net of any
\namounts owing by such Lender pursuant to Section 9.7. If any payment hereunder
\n(other than payments on the Eurodollar Loans) becomes due and payable on a day
\nother than a Business Day, such payment shall be extended to the next succeeding
\nBusiness Day. If any payment on a Eurodollar Loan becomes due and payable on a
\nday other than a Business Day, the maturity thereof shall be extended to the
\nnext succeeding Business Day unless the result of such extension would be to
\nextend such payment into another calendar month, in which event such payment
\nshall be made on the immediately preceding Business Day. In the case of any
\nextension of any payment of principal pursuant to the preceding two sentences,
\ninterest thereon shall be payable at the then applicable rate during such
\nextension.<\/p>\n (e) Unless the Administrative Agent shall have been notified in writing by
\nany Lender prior to a borrowing that such Lender will not make the amount that
\nwould constitute its share of such borrowing available to the Administrative
\nAgent, the Administrative Agent may assume that such Lender is making such
\namount available to the Administrative Agent, and the Administrative Agent may,
\nin reliance upon such assumption, make available to the Borrower a corresponding
\namount. If such amount is not made available to the Administrative Agent by the
\nrequired time on the Borrowing Date therefor, such Lender shall pay to the
\nAdministrative Agent, on demand, such amount with interest thereon, at a rate
\nequal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate
\ndetermined by the Administrative Agent in accordance with banking industry rules
\non interbank compensation, for the period until such Lender makes such amount
\nimmediately available to the Administrative Agent. A certificate of the
\nAdministrative Agent submitted to any Lender with respect to any amounts owing
\nunder this paragraph shall be conclusive in the absence of manifest error. If
\nsuch Lender’s share of such borrowing is not made available to the
\nAdministrative Agent by such Lender within three Business Days after such
\nBorrowing Date, the Administrative Agent shall also be entitled to recover such
\namount with interest thereon at the rate per annum applicable to ABR Loans under
\nthe relevant Facility, on demand, from the Borrower.<\/p>\n (f) Unless the Administrative Agent shall have been notified in writing by
\nthe Borrower prior to the date of any payment due to be made by the Borrower
\nhereunder that the Borrower will not make such payment to the Administrative
\nAgent, the Administrative Agent may assume that the Borrower is making such
\npayment, and the Administrative Agent may, but shall not be required to, in
\nreliance upon such assumption, make available to the Lenders their respective
\npro<\/u> rata<\/u> shares of a corresponding amount. If such payment is not
\nmade to the Administrative Agent by the Borrower within three Business Days
\nafter such due date, the Administrative Agent shall be entitled to recover, on
\ndemand, from each Lender to which any amount which was made available pursuant
\nto the preceding sentence, such amount with interest thereon at the rate per
\nannum equal to the daily average Federal<\/p>\n 33<\/p>\n
\n<\/p>\n Funds Effective Rate. Nothing herein shall be deemed to limit the rights of
\nthe Administrative Agent or any Lender against the Borrower.<\/p>\n (g) If any Lender shall fail to make any payment required to be made by it
\npursuant to Section 2.7(b), 2.7(c), 2.17(e), 2.17(f), 2.19(e), 3.4(a) or 9.7,
\nthen the Administrative Agent may, in its discretion and notwithstanding any
\ncontrary provision hereof, (i) apply any amounts thereafter received by the
\nAdministrative Agent for the account of such Lender for the benefit of the
\nAdministrative Agent, the Swingline Lender or the Issuing Lender to satisfy such
\nLender’s obligations to it under such Section until all such unsatisfied
\nobligations are fully paid, and\/or (ii) hold any such amounts in a segregated
\naccount as cash collateral for, and application to, any future funding
\nobligations of such Lender under any such Section, in the case of each of
\nclauses (i) and (ii) above, in any order as determined by the Administrative
\nAgent in its discretion.<\/p>\n 2.18 Requirements of Law<\/u>. (a) If the adoption of or any change in any
\nRequirement of Law or in the interpretation or application thereof or compliance
\nby any Lender with any request or directive (whether or not having the force of
\nlaw) from any central bank or other Governmental Authority made subsequent to
\nthe date hereof:<\/p>\n (i) shall subject any Credit Party to any Taxes (other than Indemnified Taxes
\nand Excluded Taxes) on its loans, loan principal, letters of credit,
\ncommitments, or other obligations, or its deposits, reserves, other liabilities
\nor capital attributable thereto;<\/p>\n (ii) shall impose, modify or hold applicable any reserve, special deposit,
\ncompulsory loan, insurance charge or similar requirement against assets held by,
\ndeposits or other liabilities in or for the account of, advances, loans or other
\nextensions of credit (or participations therein) by, or any other acquisition of
\nfunds by, any office of such Lender that is not otherwise included in the
\ndetermination of the Eurodollar Rate; or<\/p>\n (iii) shall impose on such Lender any other condition, cost or expense;<\/p>\n and the result of any of the foregoing is to increase the cost to such Lender
\nor such other Credit Party, by an amount that such Lender or other Credit Party
\ndeems to be material, of making, converting into, continuing or maintaining
\nLoans or issuing or participating in Letters of Credit, or to reduce any amount
\nreceivable hereunder in respect thereof, then, in any such case, the Borrower
\nshall promptly, but in any event no later than 15 days, pay such Lender or such
\nother Credit Party, upon its demand, any additional amounts necessary to
\ncompensate such Lender or such other Credit Party for such increased cost or
\nreduced amount receivable. If any Lender or such other Credit Party becomes
\nentitled to claim any additional amounts pursuant to this paragraph, it shall
\npromptly notify the Borrower (with a copy to the Administrative Agent) of the
\nevent by reason of which it has become so entitled.<\/p>\n (b) If any Lender shall have determined that the adoption of or any change in
\nany Requirement of Law regarding capital adequacy or liquidity or in the
\ninterpretation or application thereof or compliance by such Lender or any
\ncorporation controlling such Lender with any request or directive regarding
\ncapital adequacy or liquidity (whether or not having the force of law) from any
\nGovernmental Authority made subsequent to the date hereof shall have the effect
\nof reducing the rate of return on such Lender’s or such corporation’s capital as
\na consequence of its obligations hereunder or under or in respect of any Letter
\nof Credit to a level below that which such Lender or such corporation could have
\nachieved but for such adoption, change or compliance (taking into consideration
\nsuch Lender’s or such corporation’s policies with respect to capital adequacy
\nand liquidity) by an amount deemed by such Lender to be material, then from time
\nto time, after submission by such Lender to the Borrower (with a copy to the
\nAdministrative Agent) of a written request therefor and the certificate referred
\nto in Section<\/p>\n 34<\/p>\n
\n<\/p>\n 2.18(d), the Borrower shall promptly, but in any event no later than 15 days
\nfollowing receipt thereof, pay to such Lender such additional amount or amounts
\nas will compensate such Lender or such corporation for such reduction.<\/p>\n (c) Notwithstanding anything herein to the contrary, (i) all requests, rules,
\nguidelines, requirements and directives promulgated by the Bank for
\nInternational Settlements, the Basel Committee on Banking Supervision (or any
\nsuccessor or similar authority) or by United States or foreign regulatory
\nauthorities, in each case pursuant to Basel III, and (ii) the Dodd-Frank Wall
\nStreet Reform and Consumer Protection Act and all requests, rules, guidelines,
\nrequirements and directives thereunder or issued in connection therewith or in
\nimplementation thereof, shall in each case be deemed to be a change in law,
\nregardless of the date enacted, adopted, issued or implemented.<\/p>\n (d) A certificate as to any additional amounts payable pursuant to this
\nSection submitted by any Lender to the Borrower (with a copy to the
\nAdministrative Agent) shall be conclusive in the absence of manifest error.
\nNotwithstanding anything to the contrary in this Section, the Borrower shall not
\nbe required to compensate a Lender pursuant to this Section for any amounts
\nincurred more than nine months prior to the date that such Lender notifies the
\nBorrower of such Lender’s intention to claim compensation therefor;
\nprovided<\/u> that, if the circumstances giving rise to such claim have a
\nretroactive effect, then such nine-month period shall be extended to include the
\nperiod of such retroactive effect. The obligations of the Borrower pursuant to
\nthis Section shall survive the termination of this Agreement and the payment of
\nthe Loans and all other amounts payable hereunder.<\/p>\n 2.19 Taxes<\/u>. (a) Each payment by or on behalf of any Loan Party under
\nany Loan Document shall be made without withholding for any Taxes, unless such
\nwithholding is required by any law (as determined by the applicable withholding
\nagent in its sole discretion exercised in good faith), provided<\/u>, that (i)
\nif any Taxes are withheld by a Loan Party (or the Administrative Agent, as the
\ncase may be) and such Taxes are Indemnified Taxes, then the amount payable by
\nsuch Loan Party shall be increased as necessary so that, net of such withholding
\n(including such withholding applicable to additional amounts payable under this
\nSection), the applicable Credit Party receives the amount it would have received
\nhad no such withholding been made, and (ii) if the Taxes were withheld by a Loan
\nParty, such Loan Party shall timely pay the full amount of such Taxes to the
\nrelevant Governmental Authority in accordance with applicable law.<\/p>\n (b) The Borrower shall timely pay any Other Taxes to the relevant
\nGovernmental Authority in accordance with applicable law.<\/p>\n (c) As soon as practicable after any payment of Indemnified Taxes by any Loan
\nParty to a Governmental Authority, such Loan Party shall deliver to the
\nAdministrative Agent the original or a certified copy of a receipt issued by
\nsuch Governmental Authority evidencing such payment, a copy of the return
\nreporting such payment or other evidence of such payment reasonably satisfactory
\nto the Administrative Agent.<\/p>\n (d) The Loan Parties shall jointly and severally indemnify each Credit Party
\nfor any Indemnified Taxes that are paid or payable by such Credit Party in
\nconnection with any Loan Document (including amounts paid or payable under this
\nSection 2.19(d)) and any reasonable expenses arising therefrom or with respect
\nthereto, whether or not such Indemnified Taxes were correctly or legally imposed
\nor asserted by the relevant Governmental Authority. The indemnity under this
\nSection 2.19(d) shall be paid within 10 days after the Credit Party delivers to
\nthe Borrower a certificate stating the amount of any Indemnified Taxes so paid
\nor payable by such Credit Party and describing the basis for the indemnification
\nclaim. Such certificate shall be conclusive of the amount so paid or payable
\nabsent manifest error. Such Credit Party shall deliver a copy of such
\ncertificate to the Administrative Agent.<\/p>\n 35<\/p>\n
\n<\/p>\n (e) Each Lender shall severally indemnify the Administrative Agent for any
\nTaxes (but, in the case of any Indemnified Taxes, only to the extent that the
\nLoan Parties have not already indemnified the Administrative Agent for such
\nIndemnified Taxes and without limiting the obligation of the Loan Parties to do
\nso) attributable to such Lender that are paid or payable by the Administrative
\nAgent in connection with any Loan Document and any reasonable expenses arising
\ntherefrom or with respect thereto, whether or not such Taxes were correctly or
\nlegally imposed or asserted by the relevant Governmental Authority. The
\nindemnity under this Section 2.19(e) shall be paid within 10 days after the
\nAdministrative Agent delivers to the applicable Lender a certificate stating the
\namount of Taxes so paid or payable by the Administrative Agent. Such certificate
\nshall be conclusive of the amount so paid or payable absent manifest error.<\/p>\n (f) Any Lender that is entitled to an exemption from, or reduction of, any
\napplicable withholding Tax with respect to any payments under any Loan Document
\nshall deliver to the Borrower and the Administrative Agent, at the time or times
\nrequired by law or reasonably requested by the Borrower or the Administrative
\nAgent, such properly completed and executed documentation required by law or
\nreasonably requested by the Borrower or the Administrative Agent as will permit
\nsuch payments to be made without, or at a reduced rate of, withholding. In
\naddition, any Lender, if requested by the Borrower or the Administrative Agent,
\nshall deliver such other documentation prescribed by law or reasonably requested
\nby the Borrower or the Administrative Agent as will enable the Borrower or the
\nAdministrative Agent to determine whether or not such Lender is subject to any
\nwithholding (including backup withholding) or information reporting
\nrequirements. Notwithstanding anything to the contrary in the preceding two
\nsentences, the completion, execution and submission of such documentation (other
\nthan such documentation set forth in Sections 2.19(f)(ii)(A) through (E) below)
\nshall not be required if in the Lender’s judgment such completion, execution or
\nsubmission would subject such Lender to any material unreimbursed cost or
\nexpense (or, in the case of a Change in Law, any incremental material
\nunreimbursed cost or expense) or would materially prejudice the legal or
\ncommercial position of such Lender. Upon the reasonable request of such Borrower
\nor the Administrative Agent, any Lender shall update any form or certification
\npreviously delivered pursuant to this Section 2.19(f). If any form or
\ncertification previously delivered pursuant to this Section expires or becomes
\nobsolete or inaccurate in any respect with respect to a Lender, such Lender
\nshall promptly (and in any event within 10 days after such expiration,
\nobsolescence or inaccuracy) notify such Borrower and the Administrative Agent in
\nwriting of such expiration, obsolescence or inaccuracy and update the form or
\ncertification if it is legally eligible to do so.<\/p>\n (ii) Without limiting the generality of the foregoing, if the Borrower is a
\nU.S. Person, any Lender with respect to such Borrower shall, if it is legally
\neligible to do so, deliver to such Borrower and the Administrative Agent (in
\nsuch number of copies reasonably requested by such Borrower and the
\nAdministrative Agent) on or prior to the date on which such Lender becomes a
\nparty hereto, duly completed and executed copies of whichever of the following
\nis applicable:<\/p>\n (A) in the case of a Lender that is a U.S. Person, IRS Form W-9 certifying
\nthat such Lender is exempt from U.S. Federal backup withholding tax;<\/p>\n (B) in the case of a Non-U.S. Lender claiming the benefits of an income tax
\ntreaty to which the United States is a party (1) with respect to payments of
\ninterest under any Loan Document, IRS Form W-8BEN establishing an exemption
\nfrom, or reduction of, U.S. Federal withholding Tax pursuant to the “interest”
\narticle of such tax treaty and (2) with respect to any other applicable payments
\nunder any Loan Document, IRS Form W-8BEN establishing an exemption from, or
\nreduction of, U.S. Federal withholding Tax pursuant to the “business profits” or
\n“other income” article of such tax treaty;<\/p>\n 36<\/p>\n
\n<\/p>\n (C) in the case of a Non-U.S. Lender for whom payments under any Loan
\nDocument constitute income that is effectively connected with such Lender’s
\nconduct of a trade or business in the United States, IRS Form W-8ECI;<\/p>\n (D) in the case of a Non-U.S. Lender claiming the benefits of the exemption
\nfor portfolio interest under Section 881(c) of the Code both (1) IRS Form W-8BEN
\nand (2) a certificate substantially in the form of Exhibit F (a “U.S. Tax
\nCertificate<\/u>“) to the effect that such Lender is not (a) a “bank” within the
\nmeaning of Section 881(c)(3)(A) of the Code, (b) a “10 percent shareholder” of
\nthe Borrower within the meaning of Section 881(c)(3)(B) of the Code, and (c) a
\n“controlled foreign corporation” described in Section 881(c)(3)(C) of the Code;\n<\/p>\n (E) in the case of a Non-U.S. Lender that is not the beneficial owner of
\npayments made under any Loan Document (including a partnership or a
\nparticipating Lender) (1) an IRS Form W-8IMY on behalf of itself and (2) the
\nrelevant forms prescribed in clauses (A), (B), (C) and (D of this paragraph
\n(f)(ii) that would be required of each such beneficial owner or partner of such
\npartnership if such beneficial owner or partner were a Lender; provided<\/u>,
\nhowever<\/u>, that if the Lender is a partnership and one or more of its
\npartners are claiming the exemption for portfolio interest under Section 881(c)
\nof the Code, such Lender may provide a U.S. Tax Certificate on behalf of such
\npartners; or<\/p>\n (F) any other form prescribed by law as a basis for claiming exemption from,
\nor a reduction of, U.S. Federal withholding Tax together with such supplementary
\ndocumentation necessary to enable the Borrower or the Administrative Agent to
\ndetermine the amount of Tax (if any) required by law to be withheld.<\/p>\n (iii) If a payment made to a Lender under any Loan Document would be subject
\nto U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to
\ncomply with the applicable reporting requirements of FATCA (including those
\ncontained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender
\nshall deliver to the applicable Loan Party and the Administrative Agent, at the
\ntime or times prescribed by law and at such time or times reasonably requested
\nby the applicable Loan Party or the Administrative Agent, such documentation
\nprescribed by applicable law (including as prescribed by Section
\n1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
\nrequested by the applicable Loan Party or the Administrative Agent as may be
\nnecessary for the applicable Loan Party or the Administrative Agent to comply
\nwith its obligations under FATCA, to determine that such Lender has or has not
\ncomplied with such Lender’s obligations under FATCA or to determine the amount
\nto deduct and withhold from such payment. Solely for purposes of this Section
\n2.19(f)(iii), “FATCA” shall include any amendments made to FATCA after the date
\nof this Agreement.<\/p>\n (g) If any party determines, in its sole discretion exercised in good faith,
\nthat it has received a refund of any Taxes as to which it has been indemnified
\npursuant to this Section 2.19 (including additional amounts paid pursuant to
\nthis Section 2.19), it shall pay to the indemnifying party an amount equal to
\nsuch refund (but only to the extent of indemnity payments made under this
\nSection with respect to the Taxes giving rise to such refund), net of all
\nout-of-pocket expenses (including any Taxes) of such indemnified party and
\nwithout interest (other than any interest paid by the relevant Governmental
\nAuthority with respect to such refund). Such indemnifying party, upon the
\nrequest of such indemnified party, shall repay to such indemnified party the
\namount paid to such indemnified party pursuant to the previous sentence (plus
\nany penalties, interest or other charges imposed by the relevant Governmental
\nAuthority) in the event such indemnified party is required to repay such refund
\nto such Governmental Authority. Notwithstanding anything to the contrary in this
\nSection 2.19(g), in no event<\/p>\n 37<\/p>\n
\n<\/p>\n will any indemnified party be required to pay any amount to any indemnifying
\nparty pursuant to this Section 2.19(g) if such payment would place such
\nindemnified party in a less favorable position (on a net after-Tax basis) than
\nsuch indemnified party would have been in if the indemnification payments or
\nadditional amounts giving rise to such refund had never been paid. This Section
\n2.19(g) shall not be construed to require any indemnified party to make
\navailable its Tax returns (or any other information relating to its Taxes which
\nit deems confidential) to the indemnifying party or any other Person.<\/p>\n (h) Each party’s obligations under this Section 2.19 shall survive any
\nassignment of rights by, or the replacement of, a Lender, the termination of the
\nCommitments and the repayment, satisfaction or discharge of all other
\nobligations under the Loan Documents.<\/p>\n (i) For purposes of Sections 2.19(e) and (f), the term “Lender” includes the
\nIssuing Lender and the Swingline Lender.<\/p>\n 2.20 Indemnity<\/u>. The Borrower agrees to indemnify each Lender for, and
\nto hold each Lender harmless from, any loss or expense that such Lender may
\nsustain or incur as a consequence of (a) default by the Borrower in making a
\nborrowing of, conversion into or continuation of Eurodollar Loans after the
\nBorrower has given a notice requesting the same in accordance with the
\nprovisions of this Agreement, (b) default by the Borrower in making any
\nprepayment of or conversion from Eurodollar Loans after the Borrower has given a
\nnotice thereof in accordance with the provisions of this Agreement or (c) the
\nmaking of a prepayment of Eurodollar Loans on a day that is not the last day of
\nan Interest Period with respect thereto. Such indemnification may include an
\namount equal to the excess, if any, of (i) the amount of interest that would
\nhave accrued on the amount so prepaid, or not so borrowed, converted or
\ncontinued, for the period from the date of such prepayment or of such failure to
\nborrow, convert or continue to the last day of such Interest Period (or, in the
\ncase of a failure to borrow, convert or continue, the Interest Period that would
\nhave commenced on the date of such failure) in each case at the applicable rate
\nof interest for such Loans provided for herein (excluding, however, the
\nApplicable Margin included therein, if any) over<\/u> (ii) the amount of
\ninterest (as reasonably determined by such Lender) that would have accrued to
\nsuch Lender on such amount by placing such amount on deposit for a comparable
\nperiod with leading banks in the interbank eurodollar market. A certificate as
\nto any amounts payable pursuant to this Section submitted to the Borrower by any
\nLender shall be conclusive in the absence of manifest error. This covenant shall
\nsurvive the termination of this Agreement and the payment of the Loans and all
\nother amounts payable hereunder.<\/p>\n 2.21 Change of Lending Office<\/u>. Each Lender agrees that, upon the
\noccurrence of any event giving rise to the operation of Section 2.18 or 2.19(a)
\nwith respect to such Lender, it will, if requested by the Borrower, use
\nreasonable efforts (subject to overall policy considerations of such Lender) to
\ndesignate another lending office for any Loans affected by such event with the
\nobject of avoiding the consequences of such event; provided<\/u>, that such
\ndesignation is made on terms that, in the sole judgment of such Lender, cause
\nsuch Lender and its lending offices to suffer no economic, legal or regulatory
\ndisadvantage, and provided<\/u>, further<\/u>, that nothing in this Section
\nshall affect or postpone any of the obligations of the Borrower or the rights of
\nany Lender pursuant to Section 2.18 or 2.19(a).<\/p>\n 2.22 Replacement of Lenders<\/u>. The Borrower shall be permitted to
\nreplace any Lender that (a) requests reimbursement for amounts owing pursuant to
\nSection 2.18 or 2.19(a), (b) becomes a Defaulting Lender, or (c) does not
\nconsent to any proposed amendment, supplement, modification, consent or waiver
\nof any provision of this Agreement or any other Loan Document that requires the
\nconsent of each of the Lenders or each of the Lenders affected thereby (so long
\nas the consent of the Required Lenders has been obtained), with a replacement
\nfinancial institution; provided<\/u> that (i) such replacement does not
\nconflict with any Requirement of Law, (ii) no Event of Default shall have
\noccurred and be continuing at the time of such replacement, (iii) prior to any
\nsuch replacement, such Lender shall<\/p>\n 38<\/p>\n
\n<\/p>\n have taken no action under Section 2.21 so as to eliminate the continued need
\nfor payment of amounts owing pursuant to Section 2.18 or 2.19(a), (iv) the
\nreplacement financial institution shall purchase, at par, all Loans and other
\namounts owing to such replaced Lender on or prior to the date of replacement,
\n(v) the Borrower shall be liable to such replaced Lender under Section 2.20 if
\nany Eurodollar Loan owing to such replaced Lender shall be purchased other than
\non the last day of the Interest Period relating thereto, (vi) the replacement
\nfinancial institution shall be reasonably satisfactory to the Administrative
\nAgent, (vii) the replaced Lender shall be obligated to make such replacement in
\naccordance with the provisions of Section 10.6 (provided that the Borrower shall
\nbe obligated to pay the registration and processing fee referred to therein),
\n(viii) until such time as such replacement shall be consummated, the Borrower
\nshall pay all additional amounts (if any) required pursuant to Section 2.18 or
\n2.19(a), as the case may be, and (ix) any such replacement shall not be deemed
\nto be a waiver of any rights that the Borrower, the Administrative Agent or any
\nother Lender shall have against the replaced Lender. Each party hereto agrees
\nthat an assignment required pursuant to this paragraph may be effected pursuant
\nto an Assignment and Assumption executed by the Borrower, the Administrative
\nAgent and the assignee and that the Lender required to make such assignment need
\nnot be a party thereto.<\/p>\n 2.23 Defaulting Lenders<\/u>. Notwithstanding any provision of this
\nAgreement to the contrary, if any Lender becomes a Defaulting Lender, then the
\nfollowing provisions shall apply for so long as such Lender is a Defaulting
\nLender:<\/p>\n (a) fees shall cease to accrue on the unfunded portion of the Revolving
\nCommitment of such Defaulting Lender pursuant to Section 2.8(a), in the case of
\na Revolving Lender, or on the unfunded portion of the Delayed Draw Term
\nCommitment of such Defaulting Lender pursuant to Section 2.8(b), in the case of
\na Delayed Draw Term Lender;<\/p>\n (b) the Revolving Commitment, Revolving Extensions of Credit, the Delayed
\nDraw Term Commitments and Delayed Draw Term Loans of such Defaulting Lender
\nshall not be included in determining whether the Required Lenders or the
\nMajority Facility Lenders have taken or may take any action hereunder (including
\nany consent to any amendment, waiver or other modification pursuant to Section
\n10.1); provided<\/u>, that this clause (b) shall not apply to the vote of a
\nDefaulting Lender in the case of an amendment, waiver or other modification
\nrequiring the consent of such Lender or each Lender affected thereby;<\/p>\n (c) in the case of a Revolving Lender, if any Swingline Exposure or L\/C
\nExposure of such Lender exists at the time such Lender becomes a Defaulting
\nLender then:<\/p>\n (i) all or any part of the Swingline Exposure and L\/C Exposure of such
\nDefaulting Lender shall be reallocated among the non-Defaulting Lenders in
\naccordance with their respective Revolving Percentages but only to the extent
\nthe sum of all non-Defaulting Lenders’ Revolving Extensions of Credit plus such
\nDefaulting Lender’s Swingline Exposure and L\/C Exposure does not exceed the
\ntotal of all non-Defaulting Lenders’ Revolving Commitments;<\/p>\n (ii) if the reallocation described in clause (i) above cannot, or can only
\npartially, be effected, the Borrower shall within three Business Days following
\nnotice by the Administrative Agent (x) first, prepay such Swingline Exposure and
\n(y) second, cash collateralize for the benefit of the Issuing Lender only the
\nBorrower’s obligations corresponding to such Defaulting Lender’s L\/C Exposure
\n(after giving effect to any partial reallocation pursuant to clause (i) above)
\nin accordance with the procedures set forth in Section 8.1 for so long as such
\nL\/C Exposure is outstanding;<\/p>\n 39<\/p>\n
\n<\/p>\n (iii) if the Borrower cash collateralizes any portion of such Defaulting
\nLender’s L\/C Exposure pursuant to clause (ii) above, the Borrower shall not be
\nrequired to pay any fees to such Defaulting Lender pursuant to Section 3.3(a)
\nwith respect to such Defaulting Lender’s L\/C Exposure during the period such
\nDefaulting Lender’s L\/C Exposure is cash collateralized;<\/p>\n (iv) if the L\/C Exposure of the non-Defaulting Lenders is reallocated
\npursuant to clause (i) above, then the fees payable to the Lenders pursuant to
\nSection 2.8(a) and Section 3.3(a) shall be adjusted in accordance with such
\nnon-Defaulting Lenders’ Revolving Percentages; and<\/p>\n (v) if all or any portion of such Defaulting Lender’s L\/C Exposure is neither
\nreallocated nor cash collateralized pursuant to clause (i) or (ii) above, then,
\nwithout prejudice to any rights or remedies of the Issuing Lender or any other
\nLender hereunder, all fees payable under Section 3.3(a) with respect to such
\nDefaulting Lender’s L\/C Exposure shall be payable to the Issuing Lender until
\nand to the extent that such L\/C Exposure is reallocated and\/or cash
\ncollateralized; and<\/p>\n (d) in the case of a Revolving Lender, so long as such Lender is a Defaulting
\nLender, the Swingline Lender shall not be required to fund any Swingline Loan
\nand the Issuing Lender shall not be required to issue, amend or increase any
\nLetter of Credit, unless it is satisfied that the related exposure and the
\nDefaulting Lender’s then outstanding L\/C Exposure will be 100% covered by the
\nRevolving Commitments of the non-Defaulting Lenders and\/or cash collateral will
\nbe provided by the Borrower in accordance with Section 2.23(c), and
\nparticipating interests in any newly made Swingline Loan or any newly issued or
\nincreased Letter of Credit shall be allocated among non-Defaulting Lenders in a
\nmanner consistent with Section 2.23(c)(i) (and such Defaulting Lender shall not
\nparticipate therein).<\/p>\n In the case of a Revolving Lender, if (i) a Bankruptcy Event with respect to
\na Lender Parent of any Lender shall occur following the date hereof and for so
\nlong as such event shall continue or (ii) the Swingline Lender or the Issuing
\nLender has a good faith belief that any Lender has defaulted in fulfilling its
\nobligations under one or more other agreements in which such Lender commits to
\nextend credit, the Swingline Lender shall not be required to fund any Swingline
\nLoan and the Issuing Lender shall not be required to issue, amend or increase
\nany Letter of Credit, unless the Swingline Lender or the Issuing Lender, as the
\ncase may be, shall have entered into arrangements with the Borrower or such
\nLender, satisfactory to the Swingline Lender or the Issuing Lender, as the case
\nmay be, to defease any risk to it in respect of such Lender hereunder.<\/p>\n In the event that the Administrative Agent, the Borrower, the Swingline
\nLender and the Issuing Lender each agrees that a Defaulting Lender has
\nadequately remedied all matters that caused such Lender to be a Defaulting
\nLender, then the Swingline Exposure and L\/C Exposure of the Lenders shall be
\nreadjusted to reflect the inclusion of such Lender’s Revolving Commitment and on
\nsuch date such Lender shall purchase at par such of the Loans of the other
\nLenders (other than Swingline Loans) as the Administrative Agent shall determine
\nmay be necessary in order for such Lender to hold such Loans in accordance with
\nits Revolving Percentage.<\/p>\n 2.24 Incremental Facilities<\/u>. (a) The Borrower and any one or more
\nLenders (including New Lenders) may from time to time agree that such Lenders
\nshall make, obtain or increase the amount of their Incremental Term Loans or
\nRevolving Commitments, as applicable, by executing and delivering to the
\nAdministrative Agents an Increased Facility Activation Notice specifying (i) the
\namount of such increase and the Facility or Facilities involved, (ii) the
\napplicable Increased Facility Closing Date and (iii) in the case of Incremental
\nTerm Loans, (x) the applicable Incremental Term Maturity Date,<\/p>\n 40<\/p>\n
\n<\/p>\n (y) the amortization schedule for such Incremental Term Loans, which shall
\ncomply with Section 2.3(c), and (z) the Applicable Margin for such Incremental
\nTerm Loans; provided<\/u>, that (i) no Default or Event of Default exists or
\nshall exist immediately before or after giving effect to the making of such
\nIncremental Term Loans or such increase in Revolving Commitments or the making
\nof any Revolving Loans in respect of such increased Revolving Commitments, (ii)
\nafter giving effect to the making of such Incremental Term Loans or such
\nincrease in Revolving Commitments (assuming the full drawing of Revolving Loans
\nin respect of such increased Revolving Commitments), the Borrower shall be in
\nPro Forma Compliance with the Financial Covenants for the Relevant Reference
\nPeriod, (iii) if the total yield (calculated for both the Incremental Term Loans
\nand the Term Loans, including the upfront fees, any interest rate floors and any
\nOID (as defined below but excluding any arrangement, underwriting or similar fee
\npaid by the Borrower)) in respect of any Incremental Term Loans shall not exceed
\nthe total yield for the existing Term Loans by more than 0.50% per annum (it
\nbeing understood that any such increase may take the form of original issue
\ndiscount (“OID<\/u>“), with OID being equated to the interest rates in a
\nmanner determined by the Administrative Agent based on an assumed four-year life
\nto maturity or the Incremental Term Maturity Date, whichever is shorter), unless
\nthe Applicable Margin for the Term Loans has been increased pursuant to an
\namendment to this Agreement so that the total yield in respect of such
\nIncremental Term Loans is no higher than the total yield for the existing Term
\nLoans minus 0.50% per annum. Notwithstanding the foregoing, (i) without the
\nconsent of the Required Lenders, the aggregate amount of borrowings of
\nIncremental Term Loans and the aggregate amount of incremental Revolving
\nCommitments obtained pursuant to this paragraph shall not exceed $50,000,000 and
\n(ii) without the consent of the Administrative Agent, (x) each increase effected
\npursuant to this paragraph shall be in a minimum amount of at least $25,000,000
\nand (y) no more than two Increased Facility Closing Dates may be selected by the
\nBorrower after the Closing Date. No Lender shall have any obligation to
\nparticipate in any increase described in this paragraph unless it agrees to do
\nso in its sole discretion.<\/p>\n (b) Any additional bank, financial institution or other entity which, with
\nthe consent of the Borrower and the Administrative Agent (which consent shall
\nnot be unreasonably withheld), elects to become a “Lender” under this Agreement
\nin connection with any transaction described in Section 2.24(a) shall execute a
\nNew Lender Supplement (each, a “New Lender Supplement<\/u>“), substantially in
\nthe form of Exhibit H, whereupon such bank, financial institution or other
\nentity (a “New Lender<\/u>“) shall become a Lender for all purposes and to the
\nsame extent as if originally a party hereto and shall be bound by and entitled
\nto the benefits of this Agreement.<\/p>\n (c) Unless otherwise agreed by the Administrative Agent, on each Increased
\nFacility Closing Date with respect to the Revolving Facility, the Borrower shall
\nborrow Revolving Loans under the relevant increased Revolving Commitments from
\neach Lender participating in the relevant increase in an amount determined by
\nreference to the amount of each Type of Loan (and, in the case of Eurodollar
\nLoans, of each Eurodollar Tranche) which would then have been outstanding from
\nsuch Lender if (i) each such Type or Eurodollar Tranche had been borrowed or
\neffected on such Increased Facility Closing Date and (ii) the aggregate amount
\nof each such Type or Eurodollar Tranche requested to be so borrowed or effected
\nhad been proportionately increased. The Eurodollar Base Rate applicable to any
\nEurodollar Loan borrowed pursuant to the preceding sentence shall equal the
\nEurodollar Base Rate then applicable to the Eurodollar Loans of the other
\nLenders in the same Eurodollar Tranche (or, until the expiration of the
\nthen-current Interest Period, such other rate as shall be agreed upon between
\nthe Borrower and the relevant Lender.<\/p>\n (d) Notwithstanding anything to the contrary in this Agreement, each of the
\nparties hereto hereby agrees that, on each Increased Facility Activation Date,
\nthis Agreement shall be amended to the extent (but only to the extent) necessary
\nto reflect the existence and terms of the Incremental Term Loans evidenced
\nthereby. Any such deemed amendment may be effected in writing by the<\/p>\n 41<\/p>\n
\n<\/p>\n Administrative Agent with the Borrower’s consent (not to be unreasonably
\nwithheld) and furnished to the other parties hereto.<\/p>\n SECTION 3. LETTERS OF CREDIT<\/p>\n 3.1 L\/C Commitment<\/u>. (a) Subject to the terms and conditions hereof,
\nthe Issuing Lender, in reliance on the agreements of the other Revolving Lenders
\nset forth in Section 3.4(a), agrees to issue letters of credit (“Letters of
\nCredit<\/u>“) for the account of the Borrower on any Business Day during the
\nRevolving Commitment Period in such form as may be approved from time to time by
\nthe Issuing Lender; provided<\/u> that the Issuing Lender shall have no
\nobligation to issue any Letter of Credit if, after giving effect to such
\nissuance, (i) the L\/C Obligations would exceed the L\/C Commitment or (ii) the
\naggregate amount of the Available Revolving Commitments would be less than zero.
\nEach Letter of Credit shall (i) be denominated in Dollars and (ii) expire no
\nlater than the earlier of (x) the first anniversary of its date of issuance and
\n(y) the date that is five Business Days prior to the Revolving Termination Date,
\nprovided<\/u> that any Letter of Credit with a one-year term may provide for
\nthe renewal thereof for additional one-year periods (which shall in no event
\nextend beyond the date referred to in clause (y) above).<\/p>\n (b) The Issuing Lender shall not at any time be obligated to issue any Letter
\nof Credit if such issuance would conflict with, or cause the Issuing Lender or
\nany L\/C Participant to exceed any limits imposed by, any applicable Requirement
\nof Law.<\/p>\n 3.2 Procedure for Issuance of Letter of Credit<\/u>. The Borrower may from
\ntime to time request that the Issuing Lender issue a Letter of Credit by
\ndelivering to the Issuing Lender at its address for notices specified herein an
\nApplication therefor, completed to the satisfaction of the Issuing Lender, and
\nsuch other certificates, documents and other papers and information as the
\nIssuing Lender may request. Upon receipt of any Application, the Issuing Lender
\nwill process such Application and the certificates, documents and other papers
\nand information delivered to it in connection therewith in accordance with its
\ncustomary procedures and shall promptly issue the Letter of Credit requested
\nthereby (but in no event shall the Issuing Lender be required to issue any
\nLetter of Credit earlier than three Business Days after its receipt of the
\nApplication therefor and all such other certificates, documents and other papers
\nand information relating thereto) by issuing the original of such Letter of
\nCredit to the beneficiary thereof or as otherwise may be agreed to by the
\nIssuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
\nLetter of Credit to the Borrower promptly following the issuance thereof. The
\nIssuing Lender shall promptly furnish to the Administrative Agent, which shall
\nin turn promptly furnish to the Lenders, notice of the issuance of each Letter
\nof Credit (including the amount thereof).<\/p>\n 3.3 Fees and Other Charges<\/u>. (a) The Borrower will pay a fee on all
\noutstanding Letters of Credit at a per annum rate equal to the Applicable Margin
\nthen in effect with respect to Eurodollar Loans under the Revolving Facility,
\nshared ratably among the Revolving Lenders and payable quarterly in arrears on
\neach Fee Payment Date after the issuance date. In addition, the Borrower shall
\npay to the Issuing Lender for its own account a fronting fee of 0.25% per annum
\non the undrawn and unexpired amount of each Letter of Credit, payable quarterly
\nin arrears on each Fee Payment Date after the issuance date.<\/p>\n (b) In addition to the foregoing fees, the Borrower shall pay or reimburse
\nthe Issuing Lender for such normal and customary costs and expenses as are
\nincurred or charged by the Issuing Lender in issuing, negotiating, effecting
\npayment under, amending or otherwise administering any Letter of Credit.<\/p>\n 42<\/p>\n
\n<\/p>\n 3.4 L\/C Participations<\/u>. (a) The Issuing Lender irrevocably agrees to
\ngrant and hereby grants to each L\/C Participant, and, to induce the Issuing
\nLender to issue Letters of Credit, each L\/C Participant irrevocably agrees to
\naccept and purchase and hereby accepts and purchases from the Issuing Lender, on
\nthe terms and conditions set forth below, for such L\/C Participant’s own account
\nand risk an undivided interest equal to such L\/C Participant’s Revolving
\nPercentage in the Issuing Lender’s obligations and rights under and in respect
\nof each Letter of Credit and the amount of each draft paid by the Issuing Lender
\nthereunder. Each L\/C Participant agrees with the Issuing Lender that, if a draft
\nis paid under any Letter of Credit for which the Issuing Lender is not
\nreimbursed in full by the Borrower in accordance with the terms of this
\nAgreement (or in the event that any reimbursement received by the Issuing Lender
\nshall be required to be returned by it at any time), such L\/C Participant shall
\npay to the Issuing Lender upon demand at the Issuing Lender’s address for
\nnotices specified herein an amount equal to such L\/C Participant’s Revolving
\nPercentage of the amount that is not so reimbursed (or is so returned). Each L\/C
\nParticipant’s obligation to pay such amount shall be absolute and unconditional
\nand shall not be affected by any circumstance, including (i) any setoff,
\ncounterclaim, recoupment, defense or other right that such L\/C Participant may
\nhave against the Issuing Lender, the Borrower or any other Person for any reason
\nwhatsoever, (ii) the occurrence or continuance of a Default or an Event of
\nDefault or the failure to satisfy any of the other conditions specified in
\nSection 5, (iii) any adverse change in the condition (financial or otherwise) of
\nthe Borrower, (iv) any breach of this Agreement or any other Loan Document by
\nthe Borrower, any other Loan Party or any other L\/C Participant or (v) any other
\ncircumstance, happening or event whatsoever, whether or not similar to any of
\nthe foregoing<\/p>\n (b) If any amount required to be paid by any L\/C Participant to the Issuing
\nLender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any
\npayment made by the Issuing Lender under any Letter of Credit is paid to the
\nIssuing Lender within three Business Days after the date such payment is due,
\nsuch L\/C Participant shall pay to the Issuing Lender on demand an amount equal
\nto the product of (i) such amount, times (ii) the daily average Federal Funds
\nEffective Rate during the period from and including the date such payment is
\nrequired to the date on which such payment is immediately available to the
\nIssuing Lender, times (iii) a fraction the numerator of which is the number of
\ndays that elapse during such period and the denominator of which is 360. If any
\nsuch amount required to be paid by any L\/C Participant pursuant to Section
\n3.4(a) is not made available to the Issuing Lender by such L\/C Participant
\nwithin three Business Days after the date such payment is due, the Issuing
\nLender shall be entitled to recover from such L\/C Participant, on demand, such
\namount with interest thereon calculated from such due date at the rate per annum
\napplicable to ABR Loans under the Revolving Facility. A certificate of the
\nIssuing Lender submitted to any L\/C Participant with respect to any amounts
\nowing under this Section shall be conclusive in the absence of manifest error.\n<\/p>\n (c) Whenever, at any time after the Issuing Lender has made payment under any
\nLetter of Credit and has received from any L\/C Participant its pro<\/u>
\nrata<\/u> share of such payment in accordance with Section 3.4(a), the Issuing
\nLender receives any payment related to such Letter of Credit (whether directly
\nfrom the Borrower or otherwise, including proceeds of collateral applied thereto
\nby the Issuing Lender), or any payment of interest on account thereof, the
\nIssuing Lender will distribute to such L\/C Participant its pro<\/u>
\nrata<\/u> share thereof; provided<\/u>, however<\/u>, that in the event
\nthat any such payment received by the Issuing Lender shall be required to be
\nreturned by the Issuing Lender, such L\/C Participant shall return to the Issuing
\nLender the portion thereof previously distributed by the Issuing Lender to it.\n<\/p>\n 3.5 Reimbursement Obligation of the Borrower<\/u>. If any draft is paid
\nunder any Letter of Credit, the Borrower shall reimburse the Issuing Lender for
\nthe amount of (a) the draft so paid and (b) any taxes, fees, charges or other
\ncosts or expenses incurred by the Issuing Lender in connection with such
\npayment, not later than 1:00 P.M., New York City time, on (i) the Business Day
\nthat the Borrower receives notice of such draft, if such notice is received on
\nsuch day prior to 10:00 A.M., New York City time, or (ii) if clause (i) above
\ndoes not apply, the Business Day immediately following the day that the<\/p>\n 43<\/p>\n
\n<\/p>\n Borrower receives such notice. Each such payment shall be made to the Issuing
\nLender at its address for notices referred to herein in Dollars and in
\nimmediately available funds. Interest shall be payable on any such amounts from
\nthe date on which the relevant draft is paid until payment in full at the rate
\nset forth in (x) until the Business Day next succeeding the date of the relevant
\nnotice, Section 2.14(b) and (y) thereafter, Section 2.14(c).<\/p>\n 3.6 Obligations Absolute<\/u>. The Borrower’s obligations under this
\nSection 3 shall be absolute and unconditional under any and all circumstances
\nand irrespective of any setoff, counterclaim or defense to payment that the
\nBorrower may have or have had against the Issuing Lender, any beneficiary of a
\nLetter of Credit or any other Person. The Borrower also agrees with the Issuing
\nLender that the Issuing Lender shall not be responsible for, and the Borrower’s
\nReimbursement Obligations under Section 3.5 shall not be affected by, among
\nother things, the validity or genuineness of documents or of any endorsements
\nthereon, even though such documents shall in fact prove to be invalid,
\nfraudulent or forged, or any dispute between or among the Borrower and any
\nbeneficiary of any Letter of Credit or any other party to which such Letter of
\nCredit may be transferred or any claims whatsoever of the Borrower against any
\nbeneficiary of such Letter of Credit or any such transferee. The Issuing Lender
\nshall not be liable for any error, omission, interruption or delay in
\ntransmission, dispatch or delivery of any message or advice, however
\ntransmitted, in connection with any Letter of Credit, except for errors or
\nomissions found by a final and nonappealable decision of a court of competent
\njurisdiction to have resulted from the gross negligence or willful misconduct of
\nthe Issuing Lender. The Borrower agrees that any action taken or omitted by the
\nIssuing Lender under or in connection with any Letter of Credit or the related
\ndrafts or documents, if done in the absence of gross negligence or willful
\nmisconduct, shall be binding on the Borrower and shall not result in any
\nliability of the Issuing Lender to the Borrower.<\/p>\n 3.7 Letter of Credit Payments<\/u>. If any draft shall be presented for
\npayment under any Letter of Credit, the Issuing Lender shall promptly notify the
\nBorrower of the date and amount thereof. The responsibility of the Issuing
\nLender to the Borrower in connection with any draft presented for payment under
\nany Letter of Credit shall, in addition to any payment obligation expressly
\nprovided for in such Letter of Credit, be limited to determining that the
\ndocuments (including each draft) delivered under such Letter of Credit in
\nconnection with such presentment are substantially in conformity with such
\nLetter of Credit.<\/p>\n 3.8 Applications<\/u>. To the extent that any provision of any Application
\nrelated to any Letter of Credit is inconsistent with the provisions of this
\nSection 3, the provisions of this Section 3 shall apply.<\/p>\n SECTION 4. REPRESENTATIONS AND WARRANTIES<\/p>\n To induce the Administrative Agent and the Lenders to enter into this
\nAgreement and to make the Loans and issue or participate in the Letters of
\nCredit, the Borrower hereby represents and warrant to the Administrative Agent
\nand each Lender that:<\/p>\n 4.1 Financial Condition<\/u>. (a) The Pro Forma Financial Statements have
\nbeen prepared in good faith on the basis of the assumptions stated therein,
\nwhich assumptions were based on the conditions and facts known to the Borrower
\nat the time of delivery of such Pro Forma Financial Statements and believed by
\nthe Borrower to be reasonable.<\/p>\n (b) The audited consolidated balance sheets of the Borrower as at December
\n31, 2010, December 31, 2009 and December 31, 2008, and the related consolidated
\nstatements of operations, of stockholders’ equity and comprehensive income and
\nof cash flows for the fiscal years ended on such dates, reported on by and
\naccompanied by an unqualified report from PricewaterhouseCoopers LLP,<\/p>\n 44<\/p>\n
\n<\/p>\n present fairly in all material respects the consolidated financial condition
\nof the Borrower at such date, and the consolidated results of its operations,
\nits consolidated stockholders’ equity and comprehensive income and its
\nconsolidated cash flows for the respective fiscal years then ended. The
\nunaudited condensed consolidated balance sheet of the Borrower as at September
\n30, 2011, and the related unaudited condensed consolidated statements of
\noperations and condensed cash flows for the nine-month period ended on such
\ndate, present fairly in all material respects the consolidated financial
\ncondition of the Borrower as at such date, and the consolidated results of its
\noperations and its consolidated cash flows for the nine-month period then ended
\n(subject to normal year-end audit adjustments and the absence of footnotes). All
\nsuch financial statements, including the related schedules and notes thereto,
\nhave been prepared in accordance with GAAP applied consistently throughout the
\nperiods involved (except as approved by the aforementioned firm of accountants
\nand disclosed therein). As of the Closing Date, except as set forth on Schedule
\n4.1(b) to the Disclosure Letter, no Group Member has any material Guarantee
\nObligations, contingent liabilities and liabilities for taxes, or any long-term
\nleases or unusual forward or long-term commitments, including any interest rate
\nor foreign currency swap or exchange transaction or other obligation in respect
\nof derivatives, that are not reflected in the most recent financial statements
\nreferred to in this paragraph.<\/p>\n 4.2 No Change<\/u>. Since December 31, 2010, there has been no development
\nor event that has had or could reasonably be expected to have a Material Adverse
\nEffect.<\/p>\n 4.3 Existence; Compliance with Law<\/u>. Each Group Member (a) is duly
\norganized, validly existing and in good standing under the laws of the
\njurisdiction of its organization, (b) has the power and authority, and the legal
\nright, to own and operate its property, to lease the property it operates as
\nlessee and to conduct the business in which it is currently engaged, except to
\nthe extent that the failure to possess such power, authority or legal right
\ncould not reasonably be expected to have a Material Adverse Effect, (c) is duly
\nqualified as a foreign corporation or other organization and in good standing
\nunder the laws of each jurisdiction where its ownership, lease or operation of
\nproperty or the conduct of its business requires such qualification, except to
\nthe extent that the failure to so qualify could not reasonably be expected to
\nhave a Material Adverse Effect, and (d) is in compliance with all Requirements
\nof Law except to the extent that the failure to comply therewith could not, in
\nthe aggregate, reasonably be expected to have a Material Adverse Effect.<\/p>\n 4.4 Power; Authorization; Enforceable Obligations<\/u>. Each Loan Party has
\nthe power and authority, and the legal right, to make, deliver and perform the
\nLoan Documents to which it is a party and, in the case of the Borrower, to
\nobtain extensions of credit hereunder. Each Loan Party has taken all necessary
\norganizational action to authorize the execution, delivery and performance of
\nthe Loan Documents to which it is a party and, in the case of the Borrower, to
\nauthorize the extensions of credit on the terms and conditions of this
\nAgreement. No consent or authorization of, filing with, notice to or other act
\nby or in respect of, any Governmental Authority or any other Person is required
\nin connection with the extensions of credit hereunder or with the execution,
\ndelivery, performance, validity or enforceability of this Agreement or any of
\nthe Loan Documents, except (i) consents, authorizations, filings and notices
\nthat have been obtained or made and are in full force and effect and (ii) the
\nfilings referred to in Section 4.19. Each Loan Document has been duly executed
\nand delivered on behalf of each Loan Party party thereto. This Agreement
\nconstitutes, and each other Loan Document upon execution will constitute, a
\nlegal, valid and binding obligation of each Loan Party party thereto,
\nenforceable against each such Loan Party in accordance with its terms, except as
\nenforceability may be limited by applicable bankruptcy, insolvency,
\nreorganization, moratorium or similar laws affecting the enforcement of
\ncreditors’ rights generally and by general equitable principles (whether
\nenforcement is sought by proceedings in equity or at law).<\/p>\n 4.5 No Legal Bar<\/u>. The execution, delivery and performance of this
\nAgreement and the other Loan Documents, the issuance of Letters of Credit, the
\nborrowings hereunder and the use of the<\/p>\n 45<\/p>\n
\n<\/p>\n proceeds thereof will not violate any Requirement of Law or any Contractual
\nObligation of any Group Member, except as could not reasonably be expected to
\nhave a Material Adverse Effect, and will not result in, or require, the creation
\nor imposition of any Lien on any of their respective properties or revenues
\npursuant to any Requirement of Law or any such Contractual Obligation (other
\nthan the Liens created by the Security Documents).<\/p>\n 4.6 Litigation<\/u>. No litigation, investigation or proceeding of or
\nbefore any arbitrator or Governmental Authority is pending or, to the knowledge
\nof the Borrower, threatened by or against any Group Member or against any of
\ntheir respective properties or revenues (a) with respect to any of the Loan
\nDocuments or any of the transactions contemplated hereby or thereby, or (b) that
\ncould reasonably be expected to have a Material Adverse Effect.<\/p>\n 4.7 No Default<\/u>. No Group Member is in default under or with respect to
\nany of its Contractual Obligations in any respect that could reasonably be
\nexpected to have a Material Adverse Effect. No Default or Event of Default has
\noccurred and is continuing.<\/p>\n 4.8 Ownership of Property; Liens<\/u>. Each Group Member has title in fee
\nsimple to, or a valid leasehold interest in, all its real property, and good
\ntitle to, or a valid leasehold interest in, all its other property, and none of
\nsuch property is subject to any Lien except as permitted by Section 7.3.<\/p>\n 4.9 Intellectual Property<\/u>. Each Group Member owns, or is licensed to
\nuse, all Intellectual Property necessary for the conduct of its business as
\ncurrently conducted. No material claim has been asserted in writing and is
\npending by any Person challenging or questioning the use of any Intellectual
\nProperty or the validity or effectiveness of any Intellectual Property that
\ncould reasonably be expected to have a Material Adverse Effect. The use of
\nIntellectual Property by each Group Member does not infringe on the rights of
\nany Person in any material respect.<\/p>\n 4.10 Taxes<\/u>. Each Group Member has filed or caused to be filed all
\nFederal and state income and other material Tax returns that are required to be
\nfiled and has paid all Taxes shown to be due and payable on said returns or on
\nany material assessments made against it or any of its property and all other
\nmaterial Taxes, fees or other charges imposed on it or any of its property by
\nany Governmental Authority (other than any the amount or validity of which are
\ncurrently being contested in good faith by appropriate proceedings and with
\nrespect to which reserves in conformity with GAAP have been provided on the
\nbooks of the relevant Group Member).<\/p>\n 4.11 Federal Regulations<\/u>. No part of the proceeds of any Loans, and no
\nother extensions of credit hereunder, will be used (a) for “buying” or
\n“carrying” any “margin stock” within the respective meanings of each of the
\nquoted terms under Regulation U as now and from time to time hereafter in effect
\nfor any purpose that violates the provisions of the Regulations of the Board or
\n(b) for any purpose that violates the provisions of the Regulations of the
\nBoard. No more than 25% of the assets of the Group Members consist of “margin
\nstock” as so defined. If requested by any Lender or the Administrative Agent,
\nthe Borrower will furnish to the Administrative Agent and each Lender a
\nstatement to the foregoing effect in conformity with the requirements of FR Form
\nG-3 or FR Form U-1, as applicable, referred to in Regulation U.<\/p>\n 4.12 Labor Matters<\/u>. Except as, in the aggregate, could not reasonably
\nbe expected to have a Material Adverse Effect: (a) there are no strikes or other
\nlabor disputes against any Group Member pending or, to the knowledge of the
\nBorrower, threatened; (b) hours worked by and payment made to employees of each
\nGroup Member have not been in violation of the Fair Labor Standards Act or any
\nother applicable Requirement of Law dealing with such matters; and (c) all
\npayments due from any<\/p>\n 46<\/p>\n
\n<\/p>\n Group Member on account of employee health and welfare insurance have been
\npaid or accrued as a liability on the books of the relevant Group Member.<\/p>\n 4.13 ERISA<\/u>. (a) Each Group Member and each of their respective ERISA
\nAffiliates is in compliance with the applicable provisions of ERISA and the
\nprovisions of the Code relating to Plans and the regulations and published
\ninterpretations thereunder, except where any failure to comply would not
\nreasonably be expected to have a Material Adverse Effect; (b) no material ERISA
\nEvent or Foreign Plan Event has occurred or is reasonably expected to occur; and
\n(c) all amounts required by applicable law with respect to, or by the terms of,
\nany retiree welfare benefit arrangement maintained by any Group Member or any
\nERISA Affiliate or to which any Group Member or any ERISA Affiliate has an
\nobligation to contribute have been accrued in accordance with Statement of
\nFinancial Accounting Standards No. 106. The present value of all accumulated
\nbenefit obligations under each Pension Plan (based on the assumptions used for
\npurposes of Accounting Standards Codification No. 715: Compensation-Retirement
\nBenefits) did not, as of the date of the most recent financial statements
\nreflecting such amounts, exceed by more than an immaterial amount the fair
\nmarket value of the assets of such Pension Plan allocable to such accrued
\nbenefits, and the present value of all accumulated benefit obligations of all
\nunderfunded Pension Plans (based on the assumptions used for purposes of
\nAccounting Standards Codification No. 715: Compensation-Retirement Benefits) did
\nnot, as of the date of the most recent financial statements reflecting such
\namounts, exceed by more than an immaterial amount the fair market value of the
\nassets of all such underfunded Pension Plans.<\/p>\n 4.14 Investment Company Act; Other Regulations<\/u>. No Loan Party is an
\n“investment company”, or a company “controlled” by an “investment company”,
\nwithin the meaning of the Investment Company Act of 1940, as amended. No Loan
\nParty is subject to regulation under any Requirement of Law (other than
\nRegulation X of the Board) that limits its ability to incur Indebtedness under
\nthis Agreement or the other Loan Documents.<\/p>\n 4.15 Subsidiaries<\/u>. Except as disclosed to the Administrative Agent by
\nthe Borrower in writing from time to time after the Closing Date, (a) Schedule
\n4.15 to the Disclosure Schedule sets forth the name and jurisdiction of
\nincorporation of each Subsidiary and, as to each such Subsidiary, the percentage
\nof each class of Capital Stock owned by any Loan Party (excluding directors’
\nqualifying shares as required by law or shares held by nominees on behalf of the
\nBorrower or any Subsidiary as required by law) and (b) there are no outstanding
\nsubscriptions, options, warrants, calls, rights or other agreements or
\ncommitments (other than stock options granted to employees or directors and
\ndirectors’ qualifying shares) of any nature relating to any Capital Stock of any
\nSubsidiary, except as created by the Loan Documents.<\/p>\n 4.16 Use of Proceeds<\/u>. The proceeds of the Term Loans, the Revolving
\nLoans and the Swingline Loans, and the Letters of Credit, shall be used for
\ngeneral corporate purposes, including the payment of fees and expenses in
\nconnection with this Agreement.<\/p>\n 4.17 Environmental Matters<\/u>. Except as, in the aggregate, could not
\nreasonably be expected to have a Material Adverse Effect:<\/p>\n (a) the facilities and properties owned, leased or operated by any Group
\nMember (the “Properties<\/u>“) do not contain, and have not previously
\ncontained, any Materials of Environmental Concern in amounts or concentrations
\nor under circumstances that constitute or constituted a violation of, or could
\ngive rise to liability under, any Environmental Law;<\/p>\n (b) no Group Member has received or is aware of any notice of violation,
\nalleged violation, non-compliance, liability or potential liability regarding
\nenvironmental matters or compliance<\/p>\n 47<\/p>\n
\n<\/p>\n with Environmental Laws with regard to any of the Properties or the business
\noperated by any Group Member (the “Business<\/u>“), nor does the Borrower have
\nknowledge or reason to believe that any such notice will be received or is being
\nthreatened;<\/p>\n (c) Materials of Environmental Concern have not been transported or disposed
\nof from the Properties in violation of, or in a manner or to a location that
\ncould give rise to liability under, any Environmental Law, nor have any
\nMaterials of Environmental Concern been generated, treated, stored or disposed
\nof at, on or under any of the Properties in violation of, or in a manner that
\ncould give rise to liability under, any applicable Environmental Law;<\/p>\n (d) no judicial proceeding or governmental or administrative action is
\npending or, to the knowledge of the Borrower, threatened, under any
\nEnvironmental Law to which any Group Member is or will be named as a party with
\nrespect to the Properties or the Business, nor are there any consent decrees or
\nother decrees, consent orders, administrative orders or other orders, or other
\nadministrative or judicial requirements outstanding under any Environmental Law
\nwith respect to the Properties or the Business;<\/p>\n (e) there has been no release or threat of release of Materials of
\nEnvironmental Concern at or from the Properties, or arising from or related to
\nthe operations of any Group Member in connection with the Properties or
\notherwise in connection with the Business, in violation of or in amounts or in a
\nmanner that could give rise to liability under Environmental Laws;<\/p>\n (f) the Properties and all operations at the Properties are in compliance,
\nand have in the last five years been in compliance, with all applicable
\nEnvironmental Laws, and there is no contamination at, under or about the
\nProperties or violation of any Environmental Law with respect to the Properties
\nor the Business; and<\/p>\n (g) no Group Member has assumed any liability of any other Person under
\nEnvironmental Laws.<\/p>\n 4.18 Accuracy of Information, etc.<\/u> No statement or information (other
\nthan projections, budgets, other estimates and general market data) contained in
\nthis Agreement, any other Loan Document, the Confidential Information Memorandum
\nor any other document, certificate or written statement furnished by or on
\nbehalf of any Loan Party to the Administrative Agent or the Lenders, or any of
\nthem, for use in connection with the transactions contemplated by this Agreement
\nor the other Loan Documents (as modified or supplemented by other information so
\nfurnished), taken as a whole with all other such statements, information,
\ndocuments, certificates or the Borrower’s public filings with the SEC,
\ncontained, as of the date such statement, information, document or certificate
\nwas so furnished (or, in the case of the Confidential Information Memorandum, as
\nof the date of this Agreement), any untrue statement of a material fact or
\nomitted to state a material fact necessary to make the statements contained
\nherein or therein, in light of the circumstances under which they were made, not
\nmisleading. The projections and pro<\/u> forma<\/u> financial information
\ncontained in the materials referenced above are based upon good faith estimates
\nand assumptions believed by management of the Borrower to be reasonable at the
\ntime made, it being recognized by the Lenders that such financial information as
\nit relates to future events is not to be viewed as fact and that actual results
\nduring the period or periods covered by such financial information may differ
\nfrom the projected results set forth therein by a material amount.<\/p>\n 4.19 Security Documents<\/u>. (a) The Guarantee and Collateral Agreement is
\neffective to create in favor of the Administrative Agent, for the benefit of the
\nLenders, a legal, valid and enforceable security interest in the Collateral
\ndescribed therein and proceeds thereof. In the case of the Pledged Stock
\ndescribed in the Guarantee and Collateral Agreement, when stock certificates
\nrepresenting such Pledged<\/p>\n 48<\/p>\n
\n<\/p>\n Stock are delivered to the Administrative Agent (together with a properly
\ncompleted and signed stock power or endorsement), and in the case of the other
\nCollateral described in the Guarantee and Collateral Agreement, when financing
\nstatements and other filings specified on Schedule 4.19(a) to the Disclosure
\nLetter in appropriate form are filed in the offices specified on Schedule
\n4.19(a) to the Disclosure Letter, the Guarantee and Collateral Agreement shall
\nconstitute a fully perfected Lien on, and security interest in, all right, title
\nand interest of the Loan Parties in such Collateral and the proceeds thereof, as
\nsecurity for the Obligations (as defined in the Guarantee and Collateral
\nAgreement), in each case prior and superior in right to any other Person
\n(except, in the case of Collateral other than Pledged Stock, Liens permitted by
\nSection 7.3), in each case to the extent the security interest in the Collateral
\ncan be perfected by taking such actions.<\/p>\n (b) Each of the Mortgages, if any, is effective to create in favor of the
\nAdministrative Agent, for the benefit of the Lenders, a legal, valid and
\nenforceable Lien on the Mortgaged Properties described therein and proceeds
\nthereof, and when the Mortgages are filed in the offices specified on Schedule
\n4.19(b) to the Disclosure Letter, each such Mortgage shall constitute a fully
\nperfected Lien on, and security interest in, all right, title and interest of
\nthe Loan Parties in the Mortgaged Properties and the proceeds thereof, as
\nsecurity for the Obligations (as defined in the relevant Mortgage), in each case
\nprior and superior in right to any other Person. Schedule 4.19(b) to the
\nDisclosure Letter lists, as of the Closing Date, each parcel of owned real
\nproperty located in the United States and held by the Borrower or any of its
\nSubsidiaries that has a value, in the reasonable opinion of the Borrower, in
\nexcess of $5,000,000.<\/p>\n 4.20 Solvency<\/u>. The Borrower and its Subsidiaries on a consolidated
\nbasis are Solvent.<\/p>\n 4.21 Material Indebtedness<\/u>. As of the Closing Date, the Borrower has
\ndelivered to the Administrative Agent a complete and correct copy of the
\nagreements governing Material Indebtedness, including any amendments,
\nsupplements or modifications with respect to any of the foregoing.<\/p>\n 4.22 Registered Broker-Dealer<\/u>. As of the Closing Date, Second Street
\nis a registered broker-dealer under the Securities Exchange Act of 1934, as
\namended.<\/p>\n SECTION 5. CONDITIONS PRECEDENT<\/p>\n 5.1 Conditions to Initial Extension of Credit<\/u>. The agreement of each
\nLender to make the initial extension of credit requested to be made by it is
\nsubject to the satisfaction, on or prior to December 15, 2011 and prior to or
\nconcurrently with the making of such extension of credit on the Closing Date, of
\nthe following conditions precedent (subject to the extended delivery period set
\nforth in Section 6.10):<\/p>\n (a) Credit Agreement; Guarantee and Collateral Agreement<\/u>. The
\nAdministrative Agent shall have received (i) this Agreement, executed and
\ndelivered by the Administrative Agent, the Borrower and each Person listed on
\nSchedule 1.1A and (ii) the Guarantee and Collateral Agreement, executed and
\ndelivered by, the Borrower and each Subsidiary Guarantor.<\/p>\n (b) Financial Statements<\/u>. The Administrative Agent shall have received
\n(i) an unaudited pro<\/u> forma<\/u> consolidated balance sheet of the
\nBorrower and its consolidated Subsidiaries as at September 30, 2011, and the
\nrelated pro<\/u> forma<\/u> consolidated statements of operations and cash
\nflows for the period of four consecutive fiscal quarters then ended (including
\nthe notes thereto, the “Pro Forma Financial Statements<\/u>“), giving effect
\n(as if such events had occurred on such date or the first day of such period, as
\napplicable) to (A) the Loans to be made on the Closing Date and the use of
\nproceeds thereof and (B) the payment of fees and expenses in connection with the
\nforegoing, (ii) audited consolidated financial statements of the Borrower and
\nits consolidated<\/p>\n 49<\/p>\n
\n<\/p>\n Subsidiaries for the 2008, 2009 and 2010 fiscal years and (iii) unaudited
\ninterim consolidated financial statements of the Borrower and its consolidated
\nSubsidiaries for the fiscal quarters ended March 31, 2011, June 30, 2011 and
\nSeptember 30, 2011, and such financial statements shall not, in the reasonable
\njudgment of the Administrative Agent, reflect any material adverse change in the
\nconsolidated financial condition of the Borrower and its consolidated
\nSubsidiaries, as reflected in the financial statements or projections contained
\nin the Confidential Information Memorandum.<\/p>\n (c) Projections<\/u>. The Administrative Agent shall have received
\nsatisfactory projections through 2016.<\/p>\n (d) Approvals<\/u>. All governmental and third party approvals (including
\nlandlords’ and other consents) necessary in connection with the continuing
\noperations of the Group Members and the transactions contemplated hereby shall
\nhave been obtained and be in full force and effect.<\/p>\n (e) Lien Searches<\/u>. The Administrative Agent shall have received the
\nresults of a recent Lien search with respect to each Loan Party, and such search
\nshall reveal no Liens on any of the assets of the Loan Parties except for Liens
\npermitted by Section 7.3 or discharged on or prior to the Closing Date pursuant
\nto documentation satisfactory to the Administrative Agent.<\/p>\n (f) Fees<\/u>. The Lenders and the Administrative Agent shall have received
\nall fees required to be paid, and all expenses for which invoices have been
\npresented (including the reasonable and (if requested) documented fees and
\nout-of-pocket expenses of legal counsel), on or before the Closing Date. All
\nsuch amounts will be paid with proceeds of Loans made on the Closing Date and
\nwill be reflected in the funding instructions given by the Borrower to the
\nAdministrative Agent on or before the Closing Date.<\/p>\n (g) Closing Certificate; Certified Certificate of Incorporation; Good
\nStanding Certificates<\/u>. The Administrative Agent shall have received (i) a
\ncertificate of each Loan Party, dated the Closing Date, substantially in the
\nform of Exhibit C, with appropriate insertions and attachments, including the
\ncertificate of incorporation of each Loan Party that is a corporation certified
\nby the relevant authority of the jurisdiction of organization of such Loan
\nParty, and (ii) a long form good standing certificate for each Loan Party from
\nits jurisdiction of organization.<\/p>\n (h) Legal Opinion<\/u>. The Administrative Agent shall have received the
\nexecuted legal opinion of Wilson Sonsini Goodrich & Rosati, P.C., counsel to
\nthe Borrower and its Subsidiaries, substantially in the form of Exhibit E. Such
\nlegal opinion shall cover such other matters incident to the transactions
\ncontemplated by this Agreement as the Administrative Agent may reasonably
\nrequire.<\/p>\n (i) Pledged Stock; Stock Powers; Pledged Notes<\/u>. The Administrative
\nAgent shall have received (i) the certificates representing the shares of
\nCapital Stock pledged pursuant to the Guarantee and Collateral Agreement,
\ntogether with an undated stock power for each such certificate executed in blank
\nby a duly authorized officer of the pledgor thereof and (ii) each promissory
\nnote (if any) pledged to the Administrative Agent pursuant to the Guarantee and
\nCollateral Agreement endorsed (without recourse) in blank (or accompanied by an
\nexecuted transfer form in blank) by the pledgor thereof.<\/p>\n (j) Filings, Registrations and Recordings<\/u>. Each document (including
\nany Uniform Commercial Code financing statement) required by the Security
\nDocuments or under law or reasonably requested by the Administrative Agent to be
\nfiled, registered or recorded in order to<\/p>\n 50<\/p>\n
\n<\/p>\n create in favor of the Administrative Agent, for the benefit of the Lenders,
\na perfected Lien on the Collateral described therein, prior and superior in
\nright to any other Person (other than with respect to Liens expressly permitted
\nby Section 7.3), shall be in proper form for filing, registration or
\nrecordation.<\/p>\n (k) Solvency Certificate<\/u>. The Administrative Agent shall have received
\na solvency certificate signed by the chief financial officer of the Borrower,
\nsubstantially in the form of Exhibit I.<\/p>\n (l) Insurance<\/u>. The Administrative Agent shall have received insurance
\ncertificates satisfying the requirements of Section 5.2(b) of the Guarantee and
\nCollateral Agreement.<\/p>\n (m) USA Patriot Act<\/u>. The Lenders shall have received from each of the
\nLoan Parties documentation and other information required by regulatory
\nauthorities under applicable “know your customer” and anti-money laundering
\nrules and regulations, including, without limitation, the USA Patriot Act, to
\nthe extent requested not later than five days prior to the Closing Date.<\/p>\n For the purpose of determining compliance with the conditions specified in
\nthis Section 5.1, each Lender that has signed this Agreement shall be deemed to
\nhave accepted, and to be satisfied with, each document or other matter required
\nunder this Section 5.1 unless the Administrative Agent shall have received
\nwritten notice from such Lender prior to the proposed Closing Date specifying
\nits objection thereto.<\/p>\n 5.2 Conditions to Each Extension of Credit<\/u>. The agreement of each
\nLender to make any extension of credit requested to be made by it on any date
\n(including its initial extension of credit) is subject to the satisfaction of
\nthe following conditions precedent:<\/p>\n (a) Representations and Warranties<\/u>. Each of the representations and
\nwarranties made by any Loan Party in or pursuant to the Loan Documents shall be
\ntrue and correct in all material respects on and as of such date as if made on
\nand as of such date, except to the extent such representations and warranties
\nspecifically refer to an earlier date, in which case it shall be true and
\ncorrect in all material respects as if made on and as of such earlier date.<\/p>\n (b) No Default<\/u>. No Default or Event of Default shall have occurred and
\nbe continuing on such date or after giving effect to the extensions of credit
\nrequested to be made on such date.<\/p>\n (c) Compliance with Financial Covenants<\/u>. After giving effect to the
\nextensions of credit requested to be made on such date, the Borrower shall be in
\nPro Forma Compliance with the Financial Covenants for the fiscal quarter of the
\nBorrower then most recently ended for which financial statements have been
\ndelivered to the Administrative Agent pursuant to Section 6.1.<\/p>\n Each borrowing by and issuance of a Letter of Credit on behalf of the
\nBorrower hereunder shall constitute a representation and warranty by the
\nBorrower as of the date of such extension of credit that the conditions
\ncontained in this Section 5.2 have been satisfied.<\/p>\n SECTION 6. AFFIRMATIVE COVENANTS<\/p>\n The Borrower hereby agrees that, so long as the Commitments remain in effect,
\nany Letter of Credit remains outstanding (or has been cash collateralized in a
\nmanner satisfactory to the Administrative Agent) or any Loan or other amount is
\nowing to any Lender or the Administrative Agent hereunder (other than
\nobligations under or in respect of Specified Swap Agreements or Specified Cash\n<\/p>\n 51<\/p>\n
\n<\/p>\n Management Agreements and unasserted contingent indemnification obligations),
\nthe Borrower shall and, except with respect to Sections 6.1, 6.2, and 6.7, shall
\ncause each of its Subsidiaries to:<\/p>\n 6.1 Financial Statements<\/u>. Furnish to the Administrative Agent:<\/p>\n (a) as soon as available, but in any event within 90 days after the end of
\neach fiscal year of the Borrower, a copy of the audited consolidated balance
\nsheet of the Borrower and its consolidated Subsidiaries as at the end of such
\nyear and the related audited consolidated statements of operations, of
\nstockholders’ equity and comprehensive income and of cash flows for such year,
\nsetting forth in each case in comparative form the figures for the previous
\nyear, reported on without a “going concern” or like qualification, commentary or
\nexception, or qualification, commentary or exception arising out of the scope of
\nthe audit, by PricewaterhouseCoopers LLP or other independent certified public
\naccountants of nationally recognized standing; and<\/p>\n (b) as soon as available, but in any event not later than 45 days after the
\nend of each of the first three quarterly periods of each fiscal year of the
\nBorrower, the unaudited consolidated condensed balance sheet of the Borrower and
\nits consolidated Subsidiaries as at the end of such quarter and the related
\nunaudited consolidated condensed statements of operations and of cash flows for
\nsuch quarter and the portion of the fiscal year through the end of such quarter,
\nsetting forth in each case in comparative form the figures for the previous
\nyear, certified by a Responsible Officer as being fairly stated in all material
\nrespects (subject to normal year-end audit adjustments and the absence of
\nfootnotes).<\/p>\n All such financial statements shall fairly present in all material respects
\nthe consolidated financial condition of the Borrower and its consolidated
\nSubsidiaries in accordance with GAAP applied (except as approved by such
\naccountants or officer, as the case may be, and disclosed in reasonable detail
\ntherein) consistently throughout the periods reflected therein and with prior
\nperiods.<\/p>\n Notwithstanding the foregoing, (i) in the event that the Borrower delivers to
\nthe Administrative Agent an Annual Report for the Borrower on Form 10-K for a
\nfiscal year, as filed with the SEC, within 90 days after the end of such fiscal
\nyear, such Form 10-K shall satisfy all requirements of paragraph (a) of this
\nSection to the extent that it contains the information required by such
\nparagraph (a) and does not contain any “going concern” or like qualification,
\nexception or explanatory paragraph or qualification or any exception or
\nexplanatory paragraph as to the scope of such audit and (ii) in the event that
\nthe Borrower delivers to the Administrative Agent a Quarterly Report for the
\nBorrower on Form 10-Q for a fiscal quarter, as filed with the SEC, within 45
\ndays after the end of such fiscal quarter, such Form 10-Q shall satisfy all
\nrequirements of paragraph (b) of this Section to the extent that it contains the
\ninformation required by such paragraph (b); in each case to the extent that
\ninformation contained in such 10-K or 10-Q satisfies the requirements of
\nparagraphs (a) or (b) of this Section, as the case may be. Documents required to
\nbe delivered pursuant to this Section 6.1 may be delivered electronically and,
\nif so delivered, shall be deemed to have been delivered on the date on which the
\nBorrower provides notice to the Administrative Agent that such documents are
\nfiled for public availability on the SEC’s Electronic Data Gathering and
\nRetrieval System.<\/p>\n 6.2 Certificates; Other Information<\/u>. Furnish to the Administrative
\nAgent:<\/p>\n (a) concurrently with the delivery of any financial statements pursuant to
\nSection 6.1, (i) a certificate of a Responsible Officer stating that such
\nResponsible Officer has obtained no knowledge of any Default or Event of Default
\nexcept as specified in such certificate and (ii) in the case of quarterly or
\nannual financial statements, (x) a Compliance Certificate setting forth<\/p>\n 52<\/p>\n
\n<\/p>\n reasonably detailed calculations demonstrating compliance with Section 7.1,
\nand (y) to the extent not previously disclosed to the Administrative Agent, (1)
\na description of any change in the jurisdiction of organization of any Loan
\nParty, (2) a list of any Intellectual Property applications and registrations
\nmade or acquired by any Loan Party and any U.S. Intellectual Property
\napplications and registrations to which any Grantor (as defined in the Guarantee
\nand Collateral Agreement) becomes an exclusive licensee and (3) a description of
\nany Person that has become a Group Member, in each case since the date of the
\nmost recent report delivered pursuant to this clause (y) (or, in the case of the
\nfirst such report so delivered, since the Closing Date);<\/p>\n (b) as soon as available, and in any event no later than 90 days after the
\nend of each fiscal year of the Borrower, a copy of the Borrower’s business plan
\nfor the following fiscal year (including a projected consolidated balance sheet
\nof the Borrower and its consolidated Subsidiaries as of the end of the following
\nfiscal year, the related consolidated statements of projected cash flow and
\nprojected income and a description of the underlying assumptions applicable
\nthereto) (collectively, the “Projections<\/u>“);<\/p>\n (c) within five Business Days after the same are sent, copies of all
\nfinancial statements and reports that the Borrower sends to the holders of any
\nclass of its debt securities or public equity securities and, within five
\nBusiness Days after the same are filed, copies of all financial statements and
\nreports that the Borrower may make to, or file with, the SEC (it being
\nunderstood that documents required to be delivered pursuant to this clause (c)
\nmay be delivered electronically and, if so delivered, shall be deemed to have
\nbeen delivered on the date on which the Borrower provides notice to the
\nAdministrative Agent that such documents are filed for public availability on
\nthe SEC’s Electronic Data Gathering and Retrieval System);<\/p>\n (d) promptly following receipt thereof, copies of (i) any documents described
\nin Section 101(k) or 101(l) of ERISA that any Group Member or any ERISA
\nAffiliate may request with respect to any Multiemployer Plan; provided<\/u>,
\nthat if the relevant Group Members or ERISA Affiliates have not requested such
\ndocuments or notices from the administrator or sponsor of the applicable
\nMultiemployer Plans, then, upon reasonable request of the Administrative Agent,
\nsuch Group Member or the ERISA Affiliate shall promptly make a request for such
\ndocuments or notices from such administrator or sponsor and the Borrower shall
\nprovide copies of such documents and notices to the Administrative Agent
\npromptly after receipt thereof; and<\/p>\n (e) promptly, such additional information regarding the operations, business
\naffairs and financial condition of any Group Member, or compliance with the
\nterms of this Agreement, as the Administrative Agent may from time to time
\nreasonably request and that is reasonably available to Borrower.<\/p>\n 6.3 Payment of Obligations<\/u>. Pay, discharge or otherwise satisfy at or
\nbefore maturity or before they become delinquent, as the case may be, all its
\nobligations of whatever nature, except where (i) the amount or validity thereof
\nis currently being contested in good faith by appropriate proceedings and
\nreserves in conformity with GAAP with respect thereto have been provided on the
\nbooks of the relevant Group Member or (ii) the failure to do so could not
\nreasonably be expected to have a Material Adverse Effect.<\/p>\n 6.4 Maintenance of Existence; Compliance<\/u>. (a)(i) Preserve, renew and
\nkeep in full force and effect its organizational existence and (ii) take all
\nreasonable action to maintain all rights, privileges and franchises necessary or
\ndesirable in the normal conduct of its business, except, in each case, as
\notherwise permitted by Section 7.4 and except, in the case of clause (ii) above,
\nto the extent that failure to do so could not reasonably be expected to have a
\nMaterial Adverse Effect; and (b) comply with<\/p>\n 53<\/p>\n
\n<\/p>\n all Contractual Obligations and Requirements of Law except to the extent that
\nfailure to comply therewith could not, in the aggregate, reasonably be expected
\nto have a Material Adverse Effect.<\/p>\n 6.5 Maintenance of Property; Insurance<\/u>. (a) Except as could not
\nreasonably be expected to have a Material Adverse Effect, keep all property
\nuseful and necessary in its business in good working order and condition,
\nordinary wear and tear excepted, and (b) maintain with financially sound and
\nreputable insurance companies insurance on all its property in at least such
\namounts and against at least such risks (but including in any event public
\nliability, product liability and business interruption) as are usually insured
\nagainst by companies engaged in the same or a similar business and operating in
\nthe same or a similar geographic location.<\/p>\n 6.6 Inspection of Property; Books and Records; Discussions<\/u>. (a) Keep
\nproper books of records and account in which entries are made that are true and
\ncorrect in all material respects and are sufficient to prepare financial
\nstatements in conformity with GAAP and (b) permit representatives of the
\nAdministrative Agent or any Lender to visit and inspect any of its properties
\nand examine and make abstracts from any of its books and records and to discuss
\nthe business, operations, properties and financial and other condition of the
\nGroup Members with officers and employees of the Group Members and with their
\nindependent certified public accountants, in each case at any reasonable time
\nand as often as may reasonably be desired (but not more than once per fiscal
\nyear unless an Event of Default has occurred and is continuing). Notwithstanding
\nthe foregoing, neither the Borrower nor its Subsidiaries shall be required to
\ndisclose or discuss, or permit the inspection, examination or making of extracts
\nof, any document, book, record or other matter that (i) constitutes
\nnon-financial trade secrets or non-financial proprietary information, (ii) in
\nrespect of which disclosure to the Administrative Agent, such Lender or their
\nrepresentatives is then prohibited by applicable law or any agreement binding on
\nBorrower or its Subsidiaries or (iii) is protected from disclosure by the
\nattorney-client privilege or the attorney work product privilege.<\/p>\n 6.7 Notices<\/u>. Promptly give notice to the Administrative Agent of:<\/p>\n (f) the occurrence of any Default or Event of Default;<\/p>\n (g) any (i) default or event of default under any Contractual Obligation of
\nany Group Member that, if not cured, could reasonably be expected to have a
\nMaterial Adverse Efect, or (ii) litigation, investigation or proceeding that may
\nexist at any time between any Group Member and any Governmental Authority that
\ncould reasonably be expected to have a Material Adverse Effect;<\/p>\n (h) any litigation or proceeding brought against any Group Member (i) in
\nwhich the amount involved is $5,000,000 or more and not covered by insurance,
\n(ii) in which material injunctive or similar relief is sought or (iii) which
\nrelates to any Loan Document;<\/p>\n (i) the occurrence of any ERISA Event or Foreign Plan Event that, alone or
\ntogether with any other ERISA Events and\/or Foreign Plan Events that have
\noccurred, could reasonably be expected to result in liability of any Group
\nMember or any ERISA Affiliate in an aggregate amount exceeding $5,000,000, as
\nsoon as possible and in any event within 10 days after the Borrower knows or has
\nreason to know thereof; and<\/p>\n (j) any development or event that has had or could reasonably be expected to
\nhave a Material Adverse Effect.<\/p>\n 54<\/p>\n
\n<\/p>\n Each notice pursuant to this Section 6.7 shall be accompanied by a statement
\nof a Responsible Officer setting forth details of the occurrence referred to
\ntherein and stating what action the relevant Group Member proposes to take with
\nrespect thereto.<\/p>\n 6.8 Environmental Laws<\/u>. (a) Comply with, and ensure compliance by all
\ntenants and subtenants, if any, with, all applicable Environmental Laws, and
\nobtain and comply with and maintain, and ensure that all tenants and subtenants
\nobtain and comply with and maintain, any and all licenses, approvals,
\nnotifications, registrations or permits required by applicable Environmental
\nLaws, except, in each case, to the extent that the failure to do so could
\nreasonably be expected to have a Material Adverse Effect.<\/p>\n (b) Conduct and complete in all material respects all investigations,
\nstudies, sampling and testing, and all remedial, removal and other actions
\nrequired under Environmental Laws and promptly comply in all material respects
\nwith all lawful orders and directives of all Governmental Authorities regarding
\nEnvironmental Laws.<\/p>\n 6.9 Additional Collateral, etc<\/u>. (a) With respect to any property
\nacquired after the Closing Date by any Loan Party (other than (x) any property
\ndescribed in paragraph (b), (c) or (d) below, (y) any property subject to a Lien
\nexpressly permitted by Section 7.3(g) and (z) any property that is excluded from
\nthe definition of “Collateral”) as to which the Administrative Agent, for the
\nbenefit of the Lenders, does not have a perfected Lien, promptly (i) execute and
\ndeliver to the Administrative Agent such amendments to the Guarantee and
\nCollateral Agreement or such other documents as the Administrative Agent deems
\nnecessary or reasonably advisable to grant to the Administrative Agent, for the
\nbenefit of the Lenders, a security interest in such property and (ii) take all
\nactions necessary or reasonably advisable to grant to the Administrative Agent,
\nfor the benefit of the Lenders, a perfected first priority security interest in
\nsuch property (subject to Liens permitted by Section 7.3), including the filing
\nof Uniform Commercial Code financing statements in such jurisdictions as may be
\nrequired by the Guarantee and Collateral Agreement or by law or as may be
\nrequested by the Administrative Agent.<\/p>\n (b) With respect to any fee interest in any real property having a value
\n(together with improvements thereof) of at least $5,000,000 acquired after the
\nClosing Date by any Loan Party (other than any such real property subject to a
\nLien expressly permitted by Section 7.3(g)), promptly (i) execute and deliver a
\nfirst priority Mortgage, in favor of the Administrative Agent, for the benefit
\nof the Lenders, covering such real property, (ii) if requested by the
\nAdministrative Agent, provide the Lenders with (x) title and extended coverage
\ninsurance covering such real property in an amount at least equal to the
\npurchase price of such real property (or such other amount as shall be
\nreasonably specified by the Administrative Agent) as well as a current ALTA
\nsurvey thereof, together with a surveyor’s certificate and (y) any consents or
\nestoppels reasonably deemed necessary or advisable by the Administrative Agent
\nin connection with such Mortgage, each of the foregoing in form and substance
\nreasonably satisfactory to the Administrative Agent and (iii) if requested by
\nthe Administrative Agent, deliver to the Administrative Agent legal opinions
\nrelating to the matters described above, which opinions shall be in form and
\nsubstance, and from counsel, reasonably satisfactory to the Administrative
\nAgent.<\/p>\n (c) With respect to any new Subsidiary (other than an Excluded Subsidiary)
\ncreated or acquired after the Closing Date by any Loan Party, promptly (i)
\nexecute and deliver to the Administrative Agent such amendments to the Guarantee
\nand Collateral Agreement as the Administrative Agent deems reasonably necessary
\nor advisable to grant to the Administrative Agent, for the benefit of the
\nLenders, a perfected first priority security interest in the Capital Stock of
\nsuch new Subsidiary that is owned by such Loan Party, (ii) deliver to the
\nAdministrative Agent the certificates representing such Capital Stock, together
\nwith undated stock powers, in blank, executed and delivered by a duly authorized
\nofficer of the relevant Loan Party, (iii) cause such new Subsidiary (A) to
\nbecome a<\/p>\n 55<\/p>\n
\n<\/p>\n party to the Guarantee and Collateral Agreement, (B) to take such actions
\nnecessary or advisable to grant to the Administrative Agent for the benefit of
\nthe Lenders a perfected first priority security interest in the Collateral
\ndescribed in the Guarantee and Collateral Agreement with respect to such new
\nSubsidiary, including the filing of Uniform Commercial Code financing statements
\nin such jurisdictions as may be required by the Guarantee and Collateral
\nAgreement or by law or as may be requested by the Administrative Agent and (C)
\nto deliver to the Administrative Agent a certificate of such Subsidiary,
\nsubstantially in the form of Exhibit C, with appropriate insertions and
\nattachments, and (iv) if requested by the Administrative Agent, deliver to the
\nAdministrative Agent legal opinions relating to the matters described above,
\nwhich opinions shall be in form and substance, and from counsel, reasonably
\nsatisfactory to the Administrative Agent.<\/p>\n (d) With respect to any new Excluded Subsidiary created or acquired after the
\nClosing Date by any Loan Party, promptly (i) execute and deliver to the
\nAdministrative Agent such amendments to the Guarantee and Collateral Agreement
\nas the Administrative Agent deems necessary or advisable to grant to the
\nAdministrative Agent, for the benefit of the Lenders, a perfected first priority
\nsecurity interest in the Capital Stock of such new Subsidiary that is owned by
\nany such Loan Party (provided that in no event shall more than 66% of the total
\noutstanding voting Capital Stock of any such new Subsidiary be required to be so
\npledged), (ii) deliver to the Administrative Agent the certificates representing
\nsuch Capital Stock, together with undated stock powers, in blank, executed and
\ndelivered by a duly authorized officer of the relevant Loan Party, and take such
\nother action as may be necessary or, in the opinion of the Administrative Agent,
\ndesirable to perfect the Administrative Agent’s security interest therein, and
\n(iii) if requested by the Administrative Agent, deliver to the Administrative
\nAgent legal opinions relating to the matters described above, which opinions
\nshall be in form and substance, and from counsel, reasonably satisfactory to the
\nAdministrative Agent.<\/p>\n (e) Notwithstanding anything contained in this Section 6.9 to the contrary,
\nthe Administrative Agent shall not require any Group Member to take any action
\nwith respect to the Collateral or the security interest granted therein to the
\nextent the Administrative Agent determines, in its sole discretion, that the
\ncost of taking such action is excessive in relation to the value of the security
\nto be afforded thereby.<\/p>\n 6.10 Post-Closing Delivery Items<\/u>.<\/p>\n Notwithstanding the provisions of Section 5.1, cause the following to be
\ndelivered to the Administrative Agent within thirty (30) Business Days (or such
\nlonger period approved by the Administrative Agent) following the Closing Date:\n<\/p>\n (a) an executed stock power with respect to the Capital Stock of Second
\nStreet pledged as Collateral;<\/p>\n (b) the stock certificate(s) with respect to the Capital Stock of Advent
\nEurope Limited pledged as Collateral; and<\/p>\n (c) a Certificate of the Secretary of State of the State of California, dated
\nwithin thirty Business Days following the Closing Date, with respect to the
\nstanding of the Borrower as a foreign corporation qualified to do business in
\nthe State of California.<\/p>\n SECTION 7. NEGATIVE COVENANTS<\/p>\n The Borrower hereby agrees that, so long as the Commitments remain in effect,
\nany Letter of Credit remains outstanding (or has been cash collateralized in a
\nmanner satisfactory to the<\/p>\n 56<\/p>\n
\nAdministrative Agent) or any Loan or other amount is owing to any Lender or
\nthe Administrative Agent hereunder (other than obligations under or in respect
\nof Specified Swap Agreements or Specified Cash Management Agreements and
\nunasserted contingent indemnification obligations), the Borrower shall not, and
\nshall not permit any of its Subsidiaries to:<\/p>\n 7.1 Financial Condition Covenants<\/u>.<\/p>\n (a) Consolidated Leverage Ratio<\/u>. As at the last day of any fiscal
\nquarter, permit the Consolidated Leverage Ratio for the period of four
\nconsecutive fiscal quarters of the Borrower then ending to exceed 2.50:1.00;
\nprovided<\/u> that, if the Borrower so elects by delivering a written notice
\nto the Administrative Agent at the time of consummation of a Permitted
\nAcquisition, as at the last day of the fiscal quarter during which such
\nPermitted Acquisition was consummated and as at the last day of each of the
\nsubsequent three fiscal quarters, the maximum Consolidated Leverage Ratio for
\nthe immediately preceding four consecutive fiscal quarter period of the Borrower
\nshall be 2.75:1.00, and thereafter the maximum Consolidated Leverage Ratio shall
\nbe 2.50:1.00 for each four fiscal quarter period of the Borrower ending
\nthereafter, provided further, that the foregoing election may only be made once
\nduring the term of this Agreement.<\/p>\n (b) Consolidated Interest Coverage Ratio<\/u>. As at the last day of any
\nfiscal quarter, permit the Consolidated Interest Coverage Ratio for the period
\nof four consecutive fiscal quarters of the Borrower then ending to be less than
\n3.5:1.0.<\/p>\n (c) Liquidity<\/u>. Permit Liquidity to be less than $50,000,000 as at the
\nlast day of any fiscal quarter.<\/p>\n 7.2 Indebtedness<\/u>. Create, issue, incur, assume, become liable in
\nrespect of or suffer to exist any Indebtedness, except:<\/p>\n (a) Indebtedness of any Loan Party pursuant to any Loan Document;<\/p>\n (b) Indebtedness of (i) the Borrower to any Subsidiary, (ii) of any Wholly
\nOwned Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) of any
\nSubsidiary that is not a Wholly Owned Subsidiary Guarantor to the Borrower or
\nany Wholly Owned Subsidiary Guarantor to the extent necessary to fund operating
\nexpenses (including on a “cost plus” basis) in accordance with past practice or
\n(iv) of any Subsidiary that is not a Subsidiary Guarantor to any other
\nSubsidiary that is not a Subsidiary Guarantor;<\/p>\n (c) Guarantee Obligations incurred in the ordinary course of business by the
\nBorrower or any of its Subsidiaries of obligations of any Wholly Owned
\nSubsidiary Guarantor;<\/p>\n (d) Indebtedness outstanding on the date hereof and listed on Schedule 7.2(d)
\nto the Disclosure Schedule and any refinancings, refundings, replacements,
\nrenewals or extensions thereof (without (x) increasing the principal amount
\nthereof except by an amount equal to a reasonable premium or other reasonable
\namount paid, and fees and expenses reasonably incurred, (y) shortening the
\nmaturity date thereof if the new maturity date would occur prior to the latest
\nmaturity date of the Term Loans then in effect or (z) adding obligors which are
\nnot obligors on the date hereof);<\/p>\n (e) Indebtedness (including, without limitation, Capital Lease Obligations)
\nsecured by Liens permitted by Section 7.3(g) in an aggregate principal amount
\nnot to exceed $15,000,000 at any one time outstanding;<\/p>\n 57<\/p>\n
\n<\/p>\n (f) unsecured Indebtedness of the Borrower (which may be guaranteed by the
\nSubsidiary Guarantors), provided<\/u> that (i) immediately after giving effect
\nto the incurrence of such Indebtedness (assuming full utilization in the case of
\nrevolving Indebtedness), the Borrower shall be in Pro Forma Compliance with the
\nFinancial Covenants for the Relevant Reference Period, (ii) no Default or Event
\nof Default shall have occurred and be continuing at the time of incurrence of
\nsuch Indebtedness or would result therefrom, (iii) such Indebtedness does not
\nhave any scheduled payment of principal (including pursuant to a sinking fund
\nobligation) or mandatory redemption or redemption at the option of the holders
\nthereof or similar prepayment (other than (x) upon the occurrence of an Asset
\nSale or Recovery Event (subject to reinvestment rights that are in the aggregate
\nno less favorable to the Borrower than those under this Agreement and to rights
\nin respect of the application of the Net Cash Proceeds thereof to the prior
\nrepayment of, or offer to repay, the Term Loans), (y) upon the occurrence of a
\nchange of control event and (z) customary acceleration rights following an event
\nof default) prior to the date that is 180 days after the then latest maturity
\ndate of the Term Loans and the weighted average life to maturity of such
\nIndebtedness is not less than 180 days longer than the weighted average life to
\nmaturity of the then outstanding Term Loans (as determined on the date of
\nincurrence of such Indebtedness) and (iv) the terms of such Indebtedness provide
\nfor covenants and events of default (x) that are, taken as a whole, customary
\nfor Indebtedness of a similar nature as such Indebtedness and financial
\ncovenants that are no more restrictive than the financial covenants set forth
\nherein or (y) to which the Administrative Agent has not objected after being
\nafforded a period of five Business Days to review the terms of such
\nIndebtedness;<\/p>\n (g) unsecured Indebtedness of the Borrower or any of its Subsidiaries as an
\naccount party in respect of trade or standby letters of credit, bank guarantees
\nand bankers’ acceptances in an aggregate principal amount not to exceed
\n$5,000,000 at any time;<\/p>\n (h) unsecured Indebtedness (other than for borrowed money) with respect to
\nsurety, appeal, indemnity, performance or other similar bonds in the ordinary
\ncourse of business;<\/p>\n (i) Indebtedness arising in connection with customary cash management
\nservices and from the honoring by a bank or financial institution of a check,
\ndraft or similar instrument drawn against insufficient funds, in each case in
\nthe ordinary course of business;<\/p>\n (j) Indebtedness of any Person that becomes a Subsidiary after the date
\nhereof pursuant to a Permitted Acquisition not to exceed $10,000,000 in the
\naggregate for all such Subsidiaries; provided<\/u> that such Indebtedness
\nexists at the time such Person becomes a Subsidiary and is not created in
\ncontemplation of or in connection with such Person becoming a Subsidiary, and
\nany refinancings, refundings, replacements, renewals or extensions thereof
\n(without (x) increasing the principal amount thereof except by an amount equal
\nto a reasonable premium or other reasonable amount paid, and fees and expenses
\nreasonably incurred, (y) shortening the maturity date thereof if the new
\nmaturity date would occur prior to the latest maturity date of the Term Loans
\nthen in effect or (z) adding obligors which are not obligors on the date such
\nSubsidiary is acquired by the Borrower); and<\/p>\n (k) additional Indebtedness of the Borrower or any of its Subsidiaries in an
\naggregate principal amount (for the Borrower and all Subsidiaries) not to exceed
\n$10,000,000 at any one time outstanding; provided<\/u> that no more than
\n$5,000,000 at any one time outstanding of such Indebtedness may be incurred by
\nSubsidiaries which are not Loan Parties.<\/p>\n 7.3 Liens<\/u>. Create, incur, assume or suffer to exist any Lien upon any
\nof its property, whether now owned or hereafter acquired, except:<\/p>\n 58<\/p>\n
\n<\/p>\n (a) Liens for Taxes not yet due or that are being contested in good faith by
\nappropriate proceedings, provided<\/u> that adequate reserves with respect
\nthereto are maintained on the books of the Borrower or its Subsidiaries, as the
\ncase may be, in conformity with GAAP;<\/p>\n (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s,
\nlandlord’s or other like Liens arising in the ordinary course of business that
\nare not overdue for a period of more than 30 days or that are being contested in
\ngood faith by appropriate proceedings;<\/p>\n (c) pledges or deposits in connection with workers’ compensation,
\nunemployment insurance and other social security legislation;<\/p>\n (d) deposits to secure the performance of bids, trade contracts (other than
\nfor borrowed money), leases, statutory obligations, surety and appeal bonds,
\nperformance bonds and other obligations of a like nature incurred in the
\nordinary course of business;<\/p>\n (e) easements, rights-of-way, restrictions and other similar encumbrances
\nincurred in the ordinary course of business or imposed by law that, in the
\naggregate, do not materially detract from the value of the property subject
\nthereto or materially interfere with the ordinary conduct of the business of the
\nBorrower or any of its Subsidiaries;<\/p>\n (f) Liens in existence on the date hereof listed on Schedule 7.3(f) to the
\nDisclosure Schedule, securing Indebtedness permitted by Section 7.2(d),
\nprovided<\/u> that no such Lien is spread to cover any additional property
\n(other than any additions, accessions, parts, improvements and attachments
\nthereto and proceeds thereof) after the Closing Date and that the amount of
\nIndebtedness secured thereby is not increased;<\/p>\n (g) Liens securing Indebtedness of the Borrower or any Subsidiary incurred
\npursuant to Section 7.2(e) to finance the acquisition, construction or
\nimprovement of fixed or capital assets (and any additions, accessions, parts,
\nimprovements and attachments thereto and proceeds thereof), provided<\/u>
\nthat (i) such Liens and the Indebtedness secured thereby shall be created and
\nincurred prior to or within 180 days after such acquisition or the completion of
\nsuch construction or improvement of such fixed or capital assets, (ii) such
\nLiens do not at any time encumber any property other than the property financed
\nby such Indebtedness and (iii) the amount of Indebtedness secured thereby does
\nnot exceed the cost of acquiring, constructing or improving such fixed or
\ncapital assets;<\/p>\n (h) Liens created pursuant to the Security Documents;<\/p>\n (i) any interest or title of a lessor or sublessor under any lease or
\nsublease entered into by the Borrower or any Subsidiary in the ordinary course
\nof its business and covering only the assets or property so leased or subleased;\n<\/p>\n (j) Liens consisting of customary and ordinary course rights of setoff
\nagainst deposits of cash and Cash Equivalents in favor of banks or other
\nfinancial institutions in the ordinary course of business;<\/p>\n (k) Liens in favor of customs and revenue authorities arising as a matter of
\nlaw to secure payment of customs duties in connection within the importation of
\ngoods;<\/p>\n (l) judgment Liens in respect of judgments that do not constitute an Event of
\nDefault under clause (h) of Section 8;<\/p>\n 59<\/p>\n
\n<\/p>\n (m) Liens on insurance proceeds securing the premium of financed insurance
\nproceeds;<\/p>\n (n) licenses and sublicenses of Intellectual Property in the ordinary course
\nof business (including, intercompany licensing of Intellectual Property between
\nthe Borrower and any Subsidiary and between Subsidiaries in connection with
\ncost-sharing arrangements, distribution, marketing, make-sell or other similar
\narrangements, and, for the avoidance of doubt, cost-sharing arrangements shall
\nbe considered to be transactions in the ordinary course of business);<\/p>\n (o) any customary encumbrance or restriction with respect to the transfer of
\nthe Capital Stock in any joint venture or similar arrangement pursuant to the
\norganizational documents with respect to such joint venture or arrangement;<\/p>\n (p) Liens on specific items of inventory or other goods and the proceeds
\nthereof securing obligations in respect of documentary letters of credit or
\nbankers’ acceptances issued or created for the account of the Borrower or any
\nSubsidiary in the ordinary course of business to facilitate the purchase,
\nshipment or storage of such inventory or other goods;<\/p>\n (q) Liens of a collecting bank arising in the ordinary course of business
\nunder Section 4-208 of the Uniform Commercial Code in effect in the State of New
\nYork (or, if applicable, the corresponding section of the Uniform Commercial
\nCode in effect in the relevant jurisdiction), in each case covering only the
\nitems being collected upon; and<\/p>\n (r) Liens on assets other than Collateral not otherwise permitted by this
\nSection so long as the aggregate outstanding principal amount of the obligations
\nsecured thereby does not exceed (as to the Borrower and all Subsidiaries)
\n$10,000,000 at any one time.<\/p>\n 7.4 Fundamental Changes<\/u>. Consummate any merger, consolidation or
\namalgamation, or liquidate, wind up or dissolve itself (or suffer any
\nliquidation or dissolution), or Dispose of all or substantially all of its
\nproperty or business, except that:<\/p>\n (a) any Subsidiary of the Borrower may be merged or consolidated with or into
\nthe Borrower (provided<\/u> that the Borrower shall be the continuing or
\nsurviving corporation) or with or into any Wholly Owned Subsidiary Guarantor
\n(provided<\/u> that either the Wholly Owned Subsidiary Guarantor shall be the
\ncontinuing or surviving corporation or the continuing or surviving corporation
\nshall become a Subsidiary Guarantor);<\/p>\n (b) any Subsidiary of the Borrower that is not a Loan Party may be merged or
\nconsolidated with or into any other Subsidiary of the Borrower that is not a
\nLoan Party;<\/p>\n (c) any Subsidiary Guarantor may liquidate or dissolve so long as all
\nmaterial assets are transferred to a Loan Party, and any Subsidiary of the
\nBorrower that is not a Loan Party may liquidate or dissolve so long as all
\nmaterial assets are transferred to the Borrower or any Subsidiary of the
\nBorrower;<\/p>\n (d) any Subsidiary of the Borrower may Dispose of any or all of its assets
\n(i) to the Borrower or any Wholly Owned Subsidiary Guarantor (upon voluntary
\nliquidation or otherwise), (ii) pursuant to a Disposition permitted by Section
\n7.5, or (iii) if such Subsidiary is not a Loan Party, to any other Subsidiary of
\nthe Borrower that is not a Loan Party; and<\/p>\n (e) any Investment expressly permitted by Section 7.7 may be structured as a
\nmerger, consolidation or amalgamation.<\/p>\n 60<\/p>\n
\n<\/p>\n 7.5 Disposition of Property<\/u>. Dispose of any of its property, whether
\nnow owned or hereafter acquired, or, in the case of any Subsidiary, issue or
\nsell any shares of such Subsidiary’s Capital Stock to any Person, except:<\/p>\n (a) the Disposition of obsolete or worn out property in the ordinary course
\nof business;<\/p>\n (b) the sale of inventory in the ordinary course of business;<\/p>\n (c) the Disposition of used equipment for value in the ordinary course of
\nbusiness;<\/p>\n (d) Dispositions permitted by clause (i) or (iii) of Section 7.4(d) and
\nDispositions of property of the Borrower to Wholly Owned Subsidiary Guarantors;\n<\/p>\n (e) the sale or issuance of any Subsidiary’s Capital Stock to the Borrower or
\nany Wholly Owned Subsidiary Guarantor;<\/p>\n (f) the licensing and sublicensing of technology in the ordinary course of
\nbusiness (including, intercompany licensing of Intellectual Property between the
\nBorrower and any Subsidiary and between Subsidiaries in connection with
\ncost-sharing arrangements, distribution, marketing, make-sell or other similar
\narrangements, and, for the avoidance of doubt, cost-sharing arrangements shall
\nbe considered to be transactions in the ordinary course of business);<\/p>\n (g) the sale or discount, in each case without recourse, of overdue or
\ndoubtful account receivables arising in the ordinary course of business shall be
\npermitted but only in connection with the compromise or collection thereof;<\/p>\n (h) the Borrower and its applicable Subsidiaries may transfer to any
\nSubsidiary any property acquired pursuant to a Permitted Acquisition to
\nfacilitate internal reorganizations; provided<\/u> the aggregate value of such
\nproperty transferred to Subsidiaries which are not Loan Parties, together with
\nthe aggregate amount of Investments pursuant to Section 7.7(g) in assets not
\nacquired by Loan Parties or in Capital Stock of Persons that do not become Loan
\nParties, shall not exceed $10,000,000;<\/p>\n (i) leases or subleases granted in the ordinary course of business that do
\nnot interfere in any material respect with the business of the Borrower or its
\nSubsidiaries;<\/p>\n (j) Dispositions, to the extent constituting Liens permitted by Section 7.3,
\nResticted Payments permitted by Section 7.6, Investments permitted by Section
\n7.7 or transactions permitted by Section 7.9;<\/p>\n (k) Dispositions consisting of involuntary loss, damage or destruction of
\nproperty; and<\/p>\n (l) the Disposition of other property to Persons which are not Affiliates of
\nor affiliated with the Borrower having a fair market value not to exceed
\n$7,500,000 in the aggregate for any fiscal year of the Borrower; provided<\/u>
\nthat (i) the Borrower receives consideration at the time of such Disposition at
\nleast equal to the fair market value (as determined in good faith by the
\nBorrower) of the property disposed of, (ii) 75% of the consideration therefor
\nreceived by the Borrower is in the form of cash or Cash Equivalents and (iii)
\nthe Net Cash Proceeds resulting from such Disposition are reinvested pursuant to
\nthe terms of a Reinvestment Notice or applied to prepay the Term Loans pursuant
\nto Section 2.11(b).<\/p>\n 61<\/p>\n
\n<\/p>\n 7.6 Restricted Payments<\/u>. Declare or pay any dividend (other than
\ndividends payable solely in common stock of the Person making such dividend) on,
\nor make any payment on account of, or set apart assets for a sinking or other
\nanalogous fund for, the purchase, redemption, defeasance, retirement or other
\nacquisition of, any Capital Stock of any Group Member, whether now or hereafter
\noutstanding, or make any other distribution in respect thereof, either directly
\nor indirectly, whether in cash or property or in obligations of any Group Member
\n(collectively, “Restricted Payments<\/u>“), except that:<\/p>\n (a) any Subsidiary may make Restricted Payments to (i) the Borrower, (ii) any
\nWholly Owned Subsidiary Guarantor or (iii) ratably to the holders of its Capital
\nStock;<\/p>\n (b) the Borrower may purchase, redeem or otherwise acquire Capital Stock
\nissued by it with the Net Cash Proceeds received from the substantially
\nconcurrent issuance of its Capital Stock to the extent such Net Cash Proceeds
\nhave not been used for another purpose;<\/p>\n (c) provided that no Default or Event of Default is continuing or would
\nresult therefrom, the Borrower may make Restricted Payments in an aggregate
\namount not to exceed $10,000,000; and<\/p>\n (d) provided that no Default or Event of Default is continuing or would
\nresult therefrom, the Borrower may make Restricted Payments in an aggregate
\namount such that, after giving effect to the making of any such Restricted
\nPayments, the Consolidated Leverage Ratio, determined on a Pro Forma Basis as of
\nthe last day of the Relevant Reference Period, shall be less than or equal to
\n2.0:1.0.<\/p>\n 7.7 Investments<\/u>. Make any advance, loan, extension of credit (by way
\nof guaranty or otherwise) or capital contribution to, or purchase any Capital
\nStock, bonds, notes, debentures or other debt securities of, or any assets
\nconstituting a business unit of, or make any other similar investment in, any
\nPerson (all of the foregoing, “Investments<\/u>“), except:<\/p>\n (a) extensions of trade credit in the ordinary course of business;<\/p>\n (b) Investments in Cash Equivalents;<\/p>\n (c) Guarantee Obligations permitted by Section 7.2;<\/p>\n (d) loans and advances to employees of any Group Member in the ordinary
\ncourse of business (including for travel, entertainment and relocation expenses)
\nin an aggregate amount for all Group Members not to exceed $2,000,000 at any one
\ntime outstanding;<\/p>\n (e) Investments in assets useful in the business of the Borrower and its
\nSubsidiaries made by the Borrower or any of its Subsidiaries with the proceeds
\nof any Reinvestment Deferred Amount;<\/p>\n (f) intercompany Investments by (i) any Subsidiary in the Borrower or any
\nPerson that, prior to such investment, is a Wholly Owned Subsidiary Guarantor,
\n(ii) by the Borrower or a Wholly Owned Subsidiary Guarantor in any Person that,
\nprior to such investment, is a Wholly Owned Subsidiary to the extent necessary
\nto fund operating expenses (including on a “cost plus” basis) consistent with
\npast practice and (iii) by any Subsidiary that is not a Loan Party in any other
\nSubsidiary that is not a Loan Party;<\/p>\n 62<\/p>\n
\n<\/p>\n (g) Permitted Acquisitions, including the formation of any Subsidiary in
\nconnection with such Permitted Acquisition and the capitalization of such
\nSubsidiary whether by capital contribution or intercompany loans;
\nprovided<\/u> that the aggregate amount of such Investments in assets that are
\nnot acquired by a Loan Party or in Capital Stock of Persons that do not become
\nLoan Parties, together with the aggregate value of assets transferred to
\nSubsidiaries which are not Loan Parties pursuant to Section 7.5(h), shall not
\nexceed $10,000,000;<\/p>\n (h) Investments by any Group Member existing on the date hereof in the
\nCapital Stock of its Subsidiaries;<\/p>\n (i) Investments existing as of the date hereof and set forth in Schedule
\n7.7(i) to the Disclosure Letter;<\/p>\n (j) Investments consisting of extensions of credit in the nature of accounts
\nreceivable or notes receivable arising from the grant of trade credit in the
\nordinary course of business and any prepayments and other credits to suppliers
\nor vendors made in the ordinary course of business, and Investments received in
\nsatisfaction or partial satisfaction thereof from financially troubled account
\ndebtors to the extent reasonably necessary in order to prevent or limit loss or
\nin connection with a bankruptcy or reorganization;<\/p>\n (k) Investments arising out of the receipt of non-cash consideration for any
\ndisposition permitted by Section 7.5;<\/p>\n (l) Investments arising under Swap Agreement permitted pursuant to Section
\n7.11;<\/p>\n (m) Investments of any Person that becomes a Subsidiary after the date
\nhereof, provided that (i) such Investments exist at the time that such Person
\nbecomes a Subsidiary and (ii) such Investments were not made in anticipation of
\nsuch Person becoming a Subsidiary;<\/p>\n (n) additional Investments in an aggregate amount such that, immediately
\nafter giving effect to the making of any such Investments, the Consolidated
\nLeverage Ratio, determined on a Pro Forma Basis as of the last day of the
\nRelevant Reference Period, shall be less than 2.25:1.0; and<\/p>\n (o) in addition to Investments otherwise expressly permitted by this Section,
\nInvestments by the Borrower or any of its Subsidiaries in an aggregate amount
\n(valued at cost) not to exceed $10,000,000 during the term of this Agreement.\n<\/p>\n 7.8 Optional Payments and Modifications of Certain Debt Instruments<\/u>.
\n(a) Make any optional or voluntary payment, prepayment, repurchase or redemption
\nof or otherwise optionally or voluntarily defease or segregate funds with
\nrespect to Material Indebtedness (other than from the Net Cash Proceeds of
\nIndebtedness permitted by Section 7.2(f) or (g)); (b) make any payment,
\nprepayment, repurchase or redemption of or otherwise defease or segregate funds
\nwith respect to Material Indebtedness consisting of long-term Indebtedness
\nissued pursuant to Section 7.2(f) (other than from the Net Cash Proceeds of
\nIndebtedness issued pursuant to Section 7.2(f)) unless, after giving effect
\nthereto, the Consolidated Leverage Ratio, determined on a Pro Forma Basis as of
\nthe last day of the Relevant Reference Period, shall be less than or equal to
\n2.0:1.0; (c) amend, modify, waive or otherwise change, or consent or agree to
\nany amendment, modification, waiver or other change to, any of the terms of
\nMaterial Indebtedness in a manner that is materially adverse to the Lenders; (d)
\namend, modify, waive or otherwise change any of the terms of any preferred stock
\nissued by a Group Member to a Person other than a Group Member in a manner that
\nis materially adverse to the Lenders; or (e) designate any subordinated<\/p>\n 63<\/p>\n
\n<\/p>\n Indebtedness (other than obligations of the Loan Parties pursuant to the Loan
\nDocuments) as “Designated Senior Indebtedness” (or any other defined term having
\na similar purpose).<\/p>\n 7.9 Transactions with Affiliates<\/u>. Enter into any transaction,
\nincluding any purchase, sale, lease or exchange of property, the rendering of
\nany service or the payment of any management, advisory or similar fees, with any
\nAffiliate (other than the Borrower or any Wholly Owned Subsidiary) unless such
\ntransaction is (i)(a) otherwise permitted under this Agreement, (b) in the
\nordinary course of business of the relevant Group Member, and (c) upon fair and
\nreasonable terms no less favorable to the relevant Group Member than it would
\nobtain in a comparable arm’s length transaction with a Person that is not an
\nAffiliate, (ii) a Restricted Payment permitted by Section 7.8, (iii) an
\nindemnification arrangement, employee agreement, compensation arrangement
\n(including equity-based compensation) or reimbursement expense of current or
\nformer officers and directors, (iv) a retention, bonus or similar arrangement
\napproved by the Borrower’s board of directors (or a committee thereof), (v)
\nseverance arrangements entered into in the ordinary course of business, or (vi)
\ntransactions with joint ventures, in each case in the ordinary course of
\nbusiness and not otherwise prohibited by the Loan Documents.<\/p>\n 7.10 Sales and Leasebacks<\/u>. Enter into any arrangement with any Person
\nproviding for the leasing by any Group Member of real or personal property that
\nhas been or is to be sold or transferred by such Group Member to such Person or
\nto any other Person to whom funds have been or are to be advanced by such Person
\non the security of such property or rental obligations of such Group Member.\n<\/p>\n 7.11 Swap Agreements<\/u>. Enter into any Swap Agreement, except (a) Swap
\nAgreements entered into to hedge or mitigate risks to which the Borrower or any
\nSubsidiary has actual exposure (other than those in respect of Capital Stock)
\nand (b) Swap Agreements entered into in order to effectively cap, collar or
\nexchange interest rates (from fixed to floating rates, from one floating rate to
\nanother floating rate or otherwise) with respect to any interest-bearing
\nliability or investment of the Borrower or any Subsidiary.<\/p>\n 7.12 Changes in Fiscal Periods<\/u>. Permit the fiscal year of the Borrower
\nto end on a day other than December 31 or change the Borrower’s method of
\ndetermining fiscal quarters.<\/p>\n 7.13 Negative Pledge Clauses<\/u>. Enter into or suffer to exist or become
\neffective any agreement that prohibits or limits the ability of any Loan Party
\nto create, incur, assume or suffer to exist any Lien upon any of its property or
\nrevenues, whether now owned or hereafter acquired, to secure obligations under
\nthe Loan Documents to which it is a party, other than (a) this Agreement and the
\nother Loan Documents, (b) any agreements governing any purchase money Liens or
\nCapital Lease Obligations otherwise permitted hereby (in which case, any
\nprohibition or limitation shall only be effective against the assets financed
\nthereby, any additions, accessions, parts, improvements and attachments thereto
\nand proceeds thereof), (c) agreements relating to secured Indebtedness (or other
\nsecured obligations) permitted by this Agreement if such restrictions or
\nconditions apply only to the property or assets securing such Indebtedness (or
\nobligations, as the case may be), (d) customary provisions in leases, licenses
\nand other contracts restricting the assignment, subletting or encumbrance
\nthereof and (e) customary provisions in joint venture agreements (and other
\nsimilar agreements) (provided that such provisions apply only to such joint
\nventure and to the Capital Stock of such joint venture).<\/p>\n 7.14 Clauses Restricting Subsidiary Distributions<\/u>. Enter into or
\nsuffer to exist or become effective any consensual encumbrance or restriction on
\nthe ability of any Subsidiary of the Borrower to (a) make Restricted Payments in
\nrespect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness
\nowed to, the Borrower or any other Subsidiary of the Borrower, (b) make loans or
\nadvances to, or other Investments in, the Borrower or any other Subsidiary of
\nthe Borrower or (c) transfer any of its assets to the Borrower or any other
\nSubsidiary of the Borrower, except for such encumbrances<\/p>\n 64<\/p>\n
\n<\/p>\n or restrictions existing under or by reason of (i) any restrictions existing
\nunder the Loan Documents, (ii) any restrictions with respect to a Subsidiary
\nimposed pursuant to an agreement that has been entered into in connection with
\nthe Disposition (including by way of merger or consolidation) of all or
\nsubstantially all of the Capital Stock or all or a portion of the assets of such
\nSubsidiary, (iii) customary restrictions and conditions contained in agreements
\nrelating to the sale of a Subsidiary or assets pending such sale,
\nprovided<\/u> that such restrictions and conditions apply only to the
\nSubsidiary that is, or the assets that are, to be sold and such sale is
\npermitted hereunder, (iv) agreements relating to Indebtedness permitted by
\nclause (f) of Section 7.2 as long as the applicable restrictions are no more
\nrestrictive than the restrictions and conditions in the Loan Documents, (v)
\nagreements relating to secured Indebtedness (or other secured obligations)
\npermitted by this Agreement to the extent the applicable restriction applies
\nonly to the property securing such Indebtedness, (vi) any indenture, agreement,
\ndocument, instrument or other arrangement relating to the assets or business of
\nany Subsidiary existing prior to the consummation of a Permitted Acquisition in
\nwhich such Subsidiary was acquired (and not created in contemplation of such
\nPermitted Acquisition) as long as the applicable restriction applies only to
\nsuch Subsidiary, (vii) customary provisions in joint venture agreements (and
\nother similar agreements) (provided that such provisions apply only to such
\njoint venture and to the Capital Stock of such joint venture) and (viii)
\ncustomary net worth provisions or similar financial maintenance provisions
\ncontained in real property leases entered into by a Subsidiary, so long as the
\nBorrower has determined in good faith that such net worth provisions could not
\nreasonably be expected to impair the ability of the Borrower and the
\nSubsidiaries to meet their ongoing obligations under the Loan Documents.<\/p>\n 7.15 Lines of Business<\/u>. Enter into any material line of business,
\neither directly or through any Subsidiary, except for those businesses in which
\nthe Borrower and its Subsidiaries are engaged on the date of this Agreement or
\nthat are reasonably related, complementary, ancillary or incidental thereto.\n<\/p>\n 7.16 Amendments to Organizational Documents<\/u>. Amend, modify or
\notherwise change the charter, articles of incorporation, partnership agreement,
\nby-laws or other organizational documents of the Loan Parties to the extent such
\namendment, modification, waiver or other change would reasonably be expected to
\nimpair the ability of the Loan Parties to perform their obligations under the
\nLoan Documents.<\/p>\n SECTION 8. EVENTS OF DEFAULT<\/p>\n If any of the following events shall occur and be continuing:<\/p>\n (a) the Borrower shall fail to pay any principal of any Loan or Reimbursement
\nObligation when due in accordance with the terms hereof; or the Borrower shall
\nfail to pay any interest on any Loan or Reimbursement Obligation or any fees or
\nother amounts required under Section 2.8 or Section 3.3 within five days after
\nany such interest, fees or other amounts become due in accordance with the terms
\nhereof; or the Borrower shall fail to pay any other amount payable hereunder or
\nunder any other Loan Document within ten days after any such amount becomes due
\nin accordance with the terms hereof; or<\/p>\n (b) any representation or warranty made or deemed made by any Loan Party
\nherein or in any other Loan Document or that is contained in any certificate,
\ndocument or financial or other statement furnished by it at any time under or in
\nconnection with this Agreement or any such other Loan Document shall prove to
\nhave been inaccurate in any material respect on or as of the date made or deemed
\nmade; or<\/p>\n 65<\/p>\n
\n<\/p>\n (c) any Loan Party shall default in the observance or performance of any
\nagreement contained in clause (i) or (ii) of Section 6.4(a) (with respect to the
\nBorrower only), Section 6.7(a) or Section 7 of this Agreement or Section 5.7(b)
\nof the Guarantee and Collateral Agreement; or<\/p>\n (d) any Loan Party shall default in the observance or performance of any
\nother agreement contained in this Agreement or any other Loan Document (other
\nthan as provided in paragraphs (a) through (c) of this Section), and such
\ndefault shall continue unremedied for a period of 30 days after notice to the
\nBorrower from the Administrative Agent or the Required Lenders; or<\/p>\n (e) any Group Member shall (i) default in making any payment of any principal
\nof any Indebtedness (including any Guarantee Obligation in respect of
\nIndebtedness, but excluding the Loans) on the scheduled or original due date
\nwith respect thereto; or (ii) default in making any payment of any interest on
\nany such Indebtedness beyond the period of grace, if any, provided in the
\ninstrument or agreement under which such Indebtedness was created; or (iii)
\ndefault in the observance or performance of any other agreement or condition
\nrelating to any such Indebtedness or contained in any instrument or agreement
\nevidencing, securing or relating thereto, or any other event shall occur or
\ncondition exist, the effect of which default or other event or condition is to
\ncause, or to permit the holder or beneficiary of such Indebtedness (or a trustee
\nor agent on behalf of such holder or beneficiary) to cause, with the giving of
\nnotice if required, such Indebtedness to become due prior to its stated maturity
\nor (in the case of any such Indebtedness constituting a Guarantee Obligation) to
\nbecome payable; provided<\/u>, that a default, event or condition described in
\nclause (i), (ii) or (iii) of this paragraph (e) shall not at any time constitute
\nan Event of Default unless, at such time, one or more defaults, events or
\nconditions of the type described in clauses (i), (ii) and (iii) of this
\nparagraph (e) shall have occurred and be continuing with respect to Indebtedness
\nthe aggregate outstanding principal amount of which is $10,000,000 or more;
\nprovided<\/u> further<\/u>, that clause (iii) of this paragraph (e) shall
\nnot be triggered by secured Indebtedness that becomes due as a result of the
\nvoluntary sale or transfer of the property or assets securing such Indebtedness;
\nor<\/p>\n (f) (i) any Group Member shall commence any case, proceeding or other action
\n(A) under any existing or future law of any jurisdiction, domestic or foreign,
\nrelating to bankruptcy, insolvency, reorganization or relief of debtors, seeking
\nto have an order for relief entered with respect to it, or seeking to adjudicate
\nit a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
\nwinding-up, liquidation, dissolution, composition or other relief with respect
\nto it or its debts, or (B) seeking appointment of a receiver, trustee,
\ncustodian, conservator or other similar official for it or for all or any
\nsubstantial part of its assets; or (ii) there shall be commenced against any
\nGroup Member any case, proceeding or other action of a nature referred to in
\nclause (i) above that (A) results in the entry of an order for relief or any
\nsuch adjudication or appointment or (B) remains undismissed or undischarged for
\na period of 60 days; or (iii) there shall be commenced against any Group Member
\nany case, proceeding or other action seeking issuance of a warrant of
\nattachment, execution, distraint or similar process against all or any
\nsubstantial part of its assets that results in the entry of an order for any
\nsuch relief that shall not have been vacated, discharged, or stayed or bonded
\npending appeal within 60 days from the entry thereof; or (iv) any Group Member
\nshall take any action in furtherance of, or indicating its consent to, approval
\nof, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
\nabove; or (v) any Group Member shall generally not, or shall be unable to, or
\nshall admit in writing its inability to, pay its debts as they become due; or
\n(vi) or any Group Member shall make a general assignment for the benefit of its
\ncreditors; or<\/p>\n 66<\/p>\n
\n<\/p>\n (g) (i) an ERISA Event shall have occurred; (ii) a trustee shall be appointed
\nby a United States district court to administer any Pension Plan; (iii) the PBGC
\nshall institute proceedings to terminate any Pension Plan; or (iv) any Group
\nMember or any of their respective ERISA Affiliates shall have been notified by
\nthe sponsor of a Multiemployer Plan that it has incurred or will be assessed
\nWithdrawal Liability to such Multiemployer Plan and such entity does not have
\nreasonable grounds for contesting such Withdrawal Liability or is not contesting
\nsuch Withdrawal Liability in a timely and appropriate manner; and in each case
\nin clauses (i) through (iv) above, such event or condition, together with all
\nother such events or conditions, if any, could, in the sole judgment of the
\nRequired Lenders, reasonably be expected to result in a Material Adverse Effect;
\nor<\/p>\n (h) one or more judgments or decrees shall be entered against any Group
\nMember involving in the aggregate a liability (to the extent not covered by
\ninsurance as to which the relevant insurance company has not denied coverage) of
\n$10,000,000 or more, and all such judgments or decrees shall not have been
\nvacated, discharged, stayed or bonded pending appeal within 30 days from the
\nentry thereof; or<\/p>\n (i) any material provision of the Security Documents shall cease, for any
\nreason, to be in full force and effect, or any Loan Party shall so assert in
\nwriting, or any Lien created by any of the Security Documents on property having
\nan aggregate value in excess of $1,000,000 shall cease to be enforceable and of
\nthe same effect and priority purported to be created thereby; or<\/p>\n (j) the guarantee contained in Section 2 of the Guarantee and Collateral
\nAgreement shall cease, for any reason, to be in full force and effect or any
\nLoan Party shall so assert in writing; or<\/p>\n (k) (i) any “person” or “group” (as such terms are used in Sections 13(d) and
\n14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
\nAct<\/u>“)) shall become the “beneficial owner” (as defined in Rules 13(d)-3 and
\n13(d)-5 under the Exchange Act), directly or indirectly, of more than 50% of the
\noutstanding common stock of the Borrower; (ii) the board of directors of the
\nBorrower shall cease to consist of a majority of Continuing Directors; or (iii)
\na Specified Change of Control shall occur;<\/p>\n then, and in any such event, (A) if such event is an Event of Default
\nspecified in clause (i) or (ii) of paragraph (f) above with respect to the
\nBorrower, the Commitments shall immediately terminate and the Loans (with
\naccrued interest thereon) and all other amounts owing under this Agreement and
\nthe other Loan Documents (including all amounts of L\/C Obligations, whether or
\nnot the beneficiaries of the then outstanding Letters of Credit shall have
\npresented the documents required thereunder) shall immediately become due and
\npayable, and (B) if such event is any other Event of Default, either or both of
\nthe following actions may be taken: (i) with the consent of the Required
\nLenders, the Administrative Agent may, or upon the request of the Required
\nLenders, the Administrative Agent shall, by notice to the Borrower declare the
\nRevolving Commitments to be terminated forthwith, whereupon the Revolving
\nCommitments shall immediately terminate; and (ii) with the consent of the
\nRequired Lenders, the Administrative Agent may, or upon the request of the
\nRequired Lenders, the Administrative Agent shall, by notice to the Borrower,
\ndeclare the Loans (with accrued interest thereon) and all other amounts owing
\nunder this Agreement and the other Loan Documents (including all amounts of L\/C
\nObligations, whether or not the beneficiaries of the then outstanding Letters of
\nCredit shall have presented the documents required thereunder) to be due and
\npayable forthwith, whereupon the same shall immediately become due and payable.
\nWith respect to all Letters of Credit with respect to which presentment for
\nhonor shall not have occurred at the time of an acceleration pursuant to this
\nparagraph, the Borrower shall at such time deposit in a cash collateral account
\nopened by the Administrative Agent an amount equal to the aggregate then undrawn
\nand unexpired amount of such Letters of Credit. Amounts held in such cash
\ncollateral<\/p>\n 67<\/p>\n
\n<\/p>\n account shall be applied by the Administrative Agent to the payment of drafts
\ndrawn under such Letters of Credit, and the unused portion thereof after all
\nsuch Letters of Credit shall have expired or been fully drawn upon, if any,
\nshall be applied to repay other obligations of the Borrower hereunder and under
\nthe other Loan Documents. After all such Letters of Credit shall have expired or
\nbeen fully drawn upon, all Reimbursement Obligations shall have been satisfied
\nand all other obligations of the Borrower hereunder and under the other Loan
\nDocuments shall have been paid in full, the balance, if any, in such cash
\ncollateral account shall be returned to the Borrower (or such other Person as
\nmay be lawfully entitled thereto). Except as expressly provided above in this
\nSection, presentment, demand, protest and all other notices of any kind are
\nhereby expressly waived by the Borrower.<\/p>\n SECTION 9. THE AGENTS<\/p>\n 9.1 Appointment<\/u>. Each Lender hereby irrevocably designates and
\nappoints the Administrative Agent as the agent of such Lender under this
\nAgreement and the other Loan Documents, and each such Lender irrevocably
\nauthorizes the Administrative Agent, in such capacity, to take such action on
\nits behalf under the provisions of this Agreement and the other Loan Documents
\nand to exercise such powers and perform such duties as are expressly delegated
\nto the Administrative Agent by the terms of this Agreement and the other Loan
\nDocuments, together with such other powers as are reasonably incidental thereto.
\nNotwithstanding any provision to the contrary elsewhere in this Agreement, the
\nAdministrative Agent shall not have any duties or responsibilities, except those
\nexpressly set forth herein, or any fiduciary relationship with any Lender, and
\nno implied covenants, functions, responsibilities, duties, obligations or
\nliabilities shall be read into this Agreement or any other Loan Document or
\notherwise exist against the Administrative Agent.<\/p>\n 9.2 Delegation of Duties<\/u>. The Administrative Agent may execute any of
\nits duties under this Agreement and the other Loan Documents by or through
\nagents or attorneys-in-fact and shall be entitled to advice of counsel
\nconcerning all matters pertaining to such duties. The Administrative Agent shall
\nnot be responsible for the negligence or misconduct of any agents or attorneys
\nin-fact selected by it with reasonable care.<\/p>\n 9.3 Exculpatory Provisions<\/u>. Neither any Agent nor any of their
\nrespective officers, directors, employees, agents, advisors, attorneys-in-fact
\nor Affiliates shall be (i) liable for any action lawfully taken or omitted to be
\ntaken by it or such Person under or in connection with this Agreement or any
\nother Loan Document (except to the extent that any of the foregoing are found by
\na final and nonappealable decision of a court of competent jurisdiction to have
\nresulted from its or such Person’s own gross negligence or willful misconduct)
\nor (ii) responsible in any manner to any of the Lenders for any recitals,
\nstatements, representations or warranties made by any Loan Party or any officer
\nthereof contained in this Agreement or any other Loan Document or in any
\ncertificate, report, statement or other document referred to or provided for in,
\nor received by the Agents under or in connection with, this Agreement or any
\nother Loan Document or for the value, validity, effectiveness, genuineness,
\nenforceability or sufficiency of this Agreement or any other Loan Document or
\nfor any failure of any Loan Party a party thereto to perform its obligations
\nhereunder or thereunder. The Agents shall not be under any obligation to any
\nLender to ascertain or to inquire as to the observance or performance of any of
\nthe agreements contained in, or conditions of, this Agreement or any other Loan
\nDocument, or to inspect the properties, books or records of any Loan Party.<\/p>\n 9.4 Reliance by Administrative Agent<\/u>. The Administrative Agent shall
\nbe entitled to rely, and shall be fully protected in relying, upon any
\ninstrument, writing, resolution, notice, consent, certificate, affidavit,
\nletter, telecopy or email message, statement, order or other document or
\nconversation believed by it to be genuine and correct and to have been signed,
\nsent or made by the proper Person or Persons and upon advice and statements of
\nlegal counsel (including counsel to the Borrower), independent accountants and
\nother experts selected by the Administrative Agent. The Administrative<\/p>\n 68<\/p>\n
\n<\/p>\n Agent may deem and treat the payee of any Note as the owner thereof for all
\npurposes unless a written notice of assignment, negotiation or transfer thereof
\nshall have been filed with the Administrative Agent. The Administrative Agent
\nshall be fully justified in failing or refusing to take any action under this
\nAgreement or any other Loan Document unless it shall first receive such advice
\nor concurrence of the Required Lenders (or, if so specified by this Agreement,
\nall Lenders) as it deems appropriate or it shall first be indemnified to its
\nsatisfaction by the Lenders against any and all liability and expense that may
\nbe incurred by it by reason of taking or continuing to take any such action. The
\nAdministrative Agent shall in all cases be fully protected in acting, or in
\nrefraining from acting, under this Agreement and the other Loan Documents in
\naccordance with a request of the Required Lenders (or, if so specified by this
\nAgreement, all Lenders), and such request and any action taken or failure to act
\npursuant thereto shall be binding upon all the Lenders and all future holders of
\nthe Loans.<\/p>\n 9.5 Notice of Default<\/u>. The Administrative Agent shall not be deemed to
\nhave knowledge or notice of the occurrence of any Default or Event of Default
\nunless the Administrative Agent has received notice from a Lender or the
\nBorrower referring to this Agreement, describing such Default or Event of
\nDefault and stating that such notice is a “notice of default”. In the event that
\nthe Administrative Agent receives such a notice, the Administrative Agent shall
\ngive notice thereof to the Lenders. The Administrative Agent shall take such
\naction with respect to such Default or Event of Default as shall be reasonably
\ndirected by the Required Lenders (or, if so specified by this Agreement, all
\nLenders); provided<\/u> that unless and until the Administrative Agent shall
\nhave received such directions, the Administrative Agent may (but shall not be
\nobligated to) take such action, or refrain from taking such action, with respect
\nto such Default or Event of Default as it shall deem advisable in the best
\ninterests of the Lenders.<\/p>\n 9.6 Non-Reliance on Agents and Other Lenders<\/u>. Each Lender expressly
\nacknowledges that neither the Agents nor any of their respective officers,
\ndirectors, employees, agents, advisors, attorneys-in-fact or Affiliates have
\nmade any representations or warranties to it and that no act by any Agent
\nhereafter taken, including any review of the affairs of a Loan Party or any
\nAffiliate of a Loan Party, shall be deemed to constitute any representation or
\nwarranty by any Agent to any Lender. Each Lender represents to the Agents that
\nit has, independently and without reliance upon any Agent or any other Lender,
\nand based on such documents and information as it has deemed appropriate, made
\nits own appraisal of and investigation into the business, operations, property,
\nfinancial and other condition and creditworthiness of the Loan Parties and their
\nAffiliates and made its own decision to make its Loans hereunder and enter into
\nthis Agreement. Each Lender also represents that it will, independently and
\nwithout reliance upon any Agent or any other Lender, and based on such documents
\nand information as it shall deem appropriate at the time, continue to make its
\nown credit analysis, appraisals and decisions in taking or not taking action
\nunder this Agreement and the other Loan Documents, and to make such
\ninvestigation as it deems necessary to inform itself as to the business,
\noperations, property, financial and other condition and creditworthiness of the
\nLoan Parties and their Affiliates. Except for notices, reports and other
\ndocuments expressly required to be furnished to the Lenders by the
\nAdministrative Agent hereunder, the Administrative Agent shall not have any duty
\nor responsibility to provide any Lender with any credit or other information
\nconcerning the business, operations, property, condition (financial or
\notherwise), prospects or creditworthiness of any Loan Party or any Affiliate of
\na Loan Party that may come into the possession of the Administrative Agent or
\nany of its officers, directors, employees, agents, advisors, attorneys-in-fact
\nor Affiliates.<\/p>\n 9.7 Indemnification<\/u>. The Lenders agree to indemnify each Agent and its
\nofficers, directors, employees, Affiliates, agents, advisors and controlling
\npersons (each, an “Agent Indemnitee<\/u>“) (to the extent not reimbursed by
\nthe Borrower and without limiting the obligation of the Borrower to do so),
\nratably according to their respective Aggregate Exposure Percentages in effect
\non the date on which indemnification is sought under this Section (or, if
\nindemnification is sought after the date upon which the Commitments shall have
\nterminated and the Loans shall have been paid in full, ratably in accordance
\nwith<\/p>\n 69<\/p>\n
\n<\/p>\n such Aggregate Exposure Percentages immediately prior to such date), from and
\nagainst any and all liabilities, obligations, losses, damages, penalties,
\nactions, judgments, suits, costs, expenses or disbursements of any kind
\nwhatsoever that may at any time (whether before or after the payment of the
\nLoans) be imposed on, incurred by or asserted against such Agent Indemnitee in
\nany way relating to or arising out of, the Commitments, this Agreement, any of
\nthe other Loan Documents or any documents contemplated by or referred to herein
\nor therein or the transactions contemplated hereby or thereby or any action
\ntaken or omitted by such Agent Indemnitee under or in connection with any of the
\nforegoing; provided<\/u> that no Lender shall be liable for the payment of any
\nportion of such liabilities, obligations, losses, damages, penalties, actions,
\njudgments, suits, costs, expenses or disbursements that are found by a final and
\nnonappealable decision of a court of competent jurisdiction to have resulted
\nfrom such Agent Indemnitee’s gross negligence or willful misconduct. The
\nagreements in this Section shall survive the termination of this Agreement and
\nthe payment of the Loans and all other amounts payable hereunder.<\/p>\n 9.8 Agent in Its Individual Capacity<\/u>. Each Agent and its Affiliates
\nmay make loans to, accept deposits from and generally engage in any kind of
\nbusiness with any Loan Party as though such Agent were not an Agent. With
\nrespect to its Loans made or renewed by it and with respect to any Letter of
\nCredit issued or participated in by it, each Agent shall have the same rights
\nand powers under this Agreement and the other Loan Documents as any Lender and
\nmay exercise the same as though it were not an Agent, and the terms “Lender” and
\n“Lenders” shall include each Agent in its individual capacity.<\/p>\n 9.9 Successor Administrative Agent<\/u>. The Administrative Agent may
\nresign as Administrative Agent upon 15 days’ notice to the Lenders and the
\nBorrower. If the Administrative Agent shall resign as Administrative Agent under
\nthis Agreement and the other Loan Documents, then the Required Lenders shall
\nappoint from among the Lenders a successor agent for the Lenders, which
\nsuccessor agent shall (unless an Event of Default under Section 8(a) or Section
\n8(f) with respect to the Borrower shall have occurred and be continuing) be
\nsubject to approval by the Borrower (which approval shall not be unreasonably
\nwithheld or delayed), whereupon such successor agent shall succeed to the
\nrights, powers and duties of the Administrative Agent, and the term
\n“Administrative Agent” shall mean such successor agent effective upon such
\nappointment and approval, and the former Administrative Agent’s rights, powers
\nand duties as Administrative Agent shall be terminated, without any other or
\nfurther act or deed on the part of such former Administrative Agent or any of
\nthe parties to this Agreement or any holders of the Loans. If no successor agent
\nhas accepted appointment as Administrative Agent by the date that is 15 days
\nfollowing a retiring Administrative Agent’s notice of resignation, the retiring
\nAdministrative Agent’s resignation shall nevertheless thereupon become
\neffective, and the Lenders shall assume and perform all of the duties of the
\nAdministrative Agent hereunder until such time, if any, as the Required Lenders
\nappoint a successor agent as provided for above. After any retiring
\nAdministrative Agent’s resignation as Administrative Agent, the provisions of
\nthis Section 9 and of Section 10.5 shall continue to inure to its benefit.<\/p>\n 9.10 Documentation Agent and Syndication Agent<\/u>. Neither the
\nDocumentation Agent nor the Syndication Agent shall have any duties or
\nresponsibilities hereunder in its capacity as such.<\/p>\n SECTION 10. MISCELLANEOUS<\/p>\n 10.1 Amendments and Waivers<\/u>. Neither this Agreement, any other Loan
\nDocument, nor any terms hereof or thereof may be amended, supplemented or
\nmodified except in accordance with the provisions of this Section 10.1. The
\nRequired Lenders and each Loan Party party to the relevant Loan Document may,
\nor, with the written consent of the Required Lenders, the Administrative Agent
\nand each Loan Party party to the relevant Loan Document may, from time to time,
\n(a) enter into written amendments, supplements or modifications hereto and to
\nthe other Loan Documents for the purpose of adding any provisions to this
\nAgreement or the other Loan Documents or changing in any manner the rights of
\nthe Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such
\nterms and<\/p>\n 70<\/p>\n
\n<\/p>\n conditions as the Required Lenders or the Administrative Agent, as the case
\nmay be, may specify in such instrument, any of the requirements of this
\nAgreement or the other Loan Documents or any Default or Event of Default and its
\nconsequences; provided<\/u>, however<\/u>, that no such waiver and no such
\namendment, supplement or modification shall (i) forgive the principal amount or
\nextend the final scheduled date of maturity of any Loan, extend the scheduled
\ndate of any amortization payment in respect of any Term Loan, reduce the stated
\nrate of any interest or fee payable hereunder (except (x) in connection with the
\nwaiver of applicability of any post-default increase in interest rates (which
\nwaiver shall be effective with the consent of the Majority Facility Lenders of
\neach adversely affected Facility) and (y) that any amendment or modification of
\ndefined terms used in the financial covenants in this Agreement shall not
\nconstitute a reduction in the rate of interest or fees for purposes of this
\nclause (i)) or extend the scheduled date of any payment thereof, or increase the
\namount or extend the expiration date of any Lender’s Revolving Commitment, in
\neach case without the written consent of each Lender directly affected thereby;
\n(ii) eliminate or reduce the voting rights of any Lender under this Section 10.1
\nwithout the written consent of such Lender; (iii) reduce any percentage
\nspecified in the definition of Required Lenders, consent to the assignment or
\ntransfer by the Borrower of any of its rights and obligations under this
\nAgreement and the other Loan Documents, release all or substantially all of the
\nCollateral or, except as permitted by Section 7.4, release all or substantially
\nall of the Subsidiary Guarantors from their obligations under the Guarantee and
\nCollateral Agreement, in each case without the written consent of all Lenders;
\n(iv) amend, modify or waive any provision of Section 2.17 without the written
\nconsent of the Majority Facility Lenders in respect of each Facility adversely
\naffected thereby; (v) reduce the amount of Net Cash Proceeds required to be
\napplied to prepay Loans under this Agreement without the written consent of the
\nMajority Facility Lenders with respect to each Facility adversely affected
\nthereby; (vi) reduce the percentage specified in the definition of Majority
\nFacility Lenders with respect to any Facility without the written consent of all
\nLenders under such Facility; (vii) amend, modify or waive any provision of
\nSection 9 or any other provision of any Loan Document that affects the
\nAdministrative Agent without the written consent of the Administrative Agent;
\n(viii) amend, modify or waive any provision of Section 2.6 or 2.7 without the
\nwritten consent of the Swingline Lender; (ix) amend, modify or waive any
\nprovision of Section 3 without the written consent of the Issuing Lender; or (x)
\namend, modify or waive any provision of Section 2.18 in a manner that is
\nmaterially adverse to a Lender without the written consent of such Lender. Any
\nsuch waiver and any such amendment, supplement or modification shall apply
\nequally to each of the Lenders and shall be binding upon the Loan Parties, the
\nLenders, the Administrative Agent and all future holders of the Loans. In the
\ncase of any waiver, the Loan Parties, the Lenders and the Administrative Agent
\nshall be restored to their former position and rights hereunder and under the
\nother Loan Documents, and any Default or Event of Default waived shall be deemed
\nto be cured and not continuing; but no such waiver shall extend to any
\nsubsequent or other Default or Event of Default, or impair any right consequent
\nthereon.<\/p>\n Notwithstanding the foregoing, this Agreement may be amended (or amended and
\nrestated) with the written consent of the Required Lenders, the Administrative
\nAgent and the Borrower (a) to add one or more additional credit facilities to
\nthis Agreement and to permit the extensions of credit from time to time
\noutstanding thereunder and the accrued interest and fees in respect thereof to
\nshare in the benefits of this Agreement and the other Loan Documents with the
\nTerm Loans and Revolving Extensions of Credit and the accrued interest and fees
\nin respect thereof and (b) to include appropriately the Lenders holding such
\ncredit facilities in any determination of the Required Lenders and Majority
\nFacility Lenders.<\/p>\n In addition, notwithstanding the foregoing, this Agreement may be amended
\nwith the written consent of the Administrative Agent, the Borrower and the
\nLenders providing the relevant Replacement Term Loans (as defined below) to
\npermit the refinancing, replacement or modification of all outstanding Tranche A
\nTerm Loans or all outstanding Delayed Draw Term Loans (“Replaced Term
\nLoans<\/u>“) with a replacement term loan tranche hereunder (“Replacement Term
\nLoans<\/u>“), provided<\/u> that (a)<\/p>\n 71<\/p>\n
\n<\/p>\n the aggregate principal amount of such Replacement Term Loans shall not
\nexceed the aggregate principal amount of such Replaced Term Loans, (b) the
\nApplicable Margin for such Replacement Term Loans shall not be higher than the
\nApplicable Margin for such Replaced Term Loans and (c) the weighted average life
\nto maturity of such Replacement Term Loans shall not be shorter than the
\nweighted average life to maturity of such Replaced Term Loans at the time of
\nsuch refinancing.<\/p>\n Notwithstanding anything to the contrary contained in this Section 10.1, the
\nAdministrative Agent and the Borrower, in their sole discretion, may amend,
\nmodify or supplement any provision of this Agreement or any other Loan Document
\nto (i) amend, modify or supplement such provision or cure any ambiguity,
\nomission, mistake, error, defect or inconsistency, and (ii) to permit additional
\nAffiliates of the Borrower to guarantee the Obligations and\/or provide
\nCollateral therefor. Such amendments shall become effective without any further
\naction or consent of any other party to any Loan Document.<\/p>\n Notwithstanding anything in this Agreement or any other Loan Document to the
\ncontrary, the Borrower may enter into amendments to this Agreement and the other
\nLoan Documents in accordance with Section 2.24, and such amendments shall be
\neffective to amend the terms of this Agreement and the other applicable Loan
\nDocuments, in each case, without any further action or consent of any other
\nparty to any Loan Document.<\/p>\n 10.2 Notices<\/u>. All notices, requests and demands to or upon the
\nrespective parties hereto to be effective shall be in writing (including by
\ntelecopy), and, unless otherwise expressly provided herein, shall be deemed to
\nhave been duly given or made when delivered, or three Business Days after being
\ndeposited in the mail, postage prepaid, or, in the case of telecopy notice, when
\nreceived, addressed as follows in the case of the Borrower and the
\nAdministrative Agent, and as set forth in an administrative questionnaire
\ndelivered to the Administrative Agent in the case of the Lenders, or to such
\nother address as may be hereafter notified by the respective parties hereto:\n<\/p>\n\n\n\n| \n Borrower:<\/p>\n<\/td>\n | <\/td>\n | \n Advent Software, Inc.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n 600 Townsend Street<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n 5th Floor<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n San Francisco, CA 94103<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Attention: James S. Cox, Chief Financial Officer<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Telecopy: (415) 543-5070<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Telephone: (415) 543-7696<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Administrative Agent:<\/p>\n<\/td>\n | <\/td>\n | \n JPMorgan Chase Bank, N.A.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Loan Operations<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n 30 South Dearborn Street<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n 7th Floor<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Chicago, IL 60603<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Attention: April Yebd<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Telecopy: (312) 385-7096<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Telephone: (312) 732-2628<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n With a copy to:<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n JPMorgan Chase Bank, N.A.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 72<\/p>\n
\n\n\n\n| <\/td>\n | <\/td>\n | \n Corporate Client Banking<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n 560 Mission Street<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n 19th Floor<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n San Francisco, CA 94105<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Attention: Gerardo B. Loera<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Telecopy: (310) 975-1334<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Telephone: (415) 315-8802<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n If in connection with any Letter of Credit, with a copy to:<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n JPMorgan Chase Bank, N.A.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Loan Operations<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n 30 South Dearborn Street<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n 7th Floor<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Chicago, IL 60603<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Attention: Jetuan Patterson<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Telecopy: (312) 385-7107<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Telephone: (312) 732-2473<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n provided<\/u> that any notice, request or demand to or upon the
\nAdministrative Agent or the Lenders shall not be effective until received.<\/p>\n Notices and other communications to the Lenders hereunder may be delivered or
\nfurnished by electronic communications pursuant to procedures approved by the
\nAdministrative Agent; provided<\/u> that the foregoing shall not apply to
\nnotices pursuant to Section 2 unless otherwise agreed by the Administrative
\nAgent and the applicable Lender. The Administrative Agent or the Borrower may,
\nin its discretion, agree to accept notices and other communications to it
\nhereunder by electronic communications pursuant to procedures approved by it;
\nprovided<\/u> that approval of such procedures may be limited to particular
\nnotices or communications.<\/p>\n 10.3 No Waiver; Cumulative Remedies<\/u>. No failure to exercise and no
\ndelay in exercising, on the part of the Administrative Agent or any Lender, any
\nright, remedy, power or privilege hereunder or under the other Loan Documents
\nshall operate as a waiver thereof; nor shall any single or partial exercise of
\nany right, remedy, power or privilege hereunder preclude any other or further
\nexercise thereof or the exercise of any other right, remedy, power or privilege.
\nThe rights, remedies, powers and privileges herein provided are cumulative and
\nnot exclusive of any rights, remedies, powers and privileges provided by law.\n<\/p>\n 10.4 Survival of Representations and Warranties<\/u>. All representations
\nand warranties made hereunder, in the other Loan Documents and in any document,
\ncertificate or statement delivered pursuant hereto or in connection herewith
\nshall survive the execution and delivery of this Agreement and the making of the
\nLoans and other extensions of credit hereunder.<\/p>\n 10.5 Payment of Expenses and Taxes<\/u>. The Borrower agrees (a) to pay or
\nreimburse the Administrative Agent for all its reasonable and (if requested)
\ndocumented costs and out-of-pocket expenses incurred in connection with the
\ndevelopment, preparation and execution of, and any amendment, supplement or
\nmodification to, this Agreement and the other Loan Documents and any other
\ndocuments prepared in connection herewith or therewith, and the consummation and
\nadministration of the<\/p>\n 73<\/p>\n
\n<\/p>\n transactions contemplated hereby and thereby, including the reasonable and
\n(if requested) documented fees and disbursements of one firm of counsel to the
\nAdministrative Agent and filing and recording fees and expenses, with statements
\nwith respect to the foregoing to be submitted to the Borrower prior to the
\nClosing Date (in the case of amounts to be paid on the Closing Date) and from
\ntime to time thereafter on a quarterly basis or such other periodic basis as the
\nAdministrative Agent shall deem appropriate, (b) to pay or reimburse each
\nLender, the Issuing Lender, the Swingline Lender and the Administrative Agent
\nfor all its reasonable and (if requested) documented costs and out-of-pocket
\nexpenses incurred in connection with the enforcement or preservation of any
\nrights under this Agreement, the other Loan Documents and any such other
\ndocuments, including the reasonable and (if requested) documented fees and
\ndisbursements of one firm of counsel to the Lenders, Issuing Lender, Swingline
\nLender and Administrative Agent, one local counsel, as necessary, in each
\nappropriate jurisdiction and, in the case of an actual or perceived conflict of
\ninterest where the Person affected by such conflict informs the Borrower of such
\nconflict and thereafter retains its own counsel, of another firm of counsel for
\neach such affected Person, (c) to pay, indemnify, and hold each Lender, the
\nIssuing Lender, the Swingline Lender and the Administrative Agent harmless from,
\nany and all recording and filing fees and any and all liabilities with respect
\nto, or resulting from any delay in paying, stamp, excise and other Taxes, if
\nany, that may be payable or determined to be payable in connection with the
\nexecution and delivery of, or consummation or administration of any of the
\ntransactions contemplated by, or any amendment, supplement or modification of,
\nor any waiver or consent under or in respect of, this Agreement, the other Loan
\nDocuments and any such other documents, and (d) to pay, indemnify, and hold each
\nLender, the Issuing Lender, the Swingline Lender and the Administrative Agent
\nand their respective officers, directors, employees, Affiliates, agents,
\nadvisors and controlling persons (each, an “Indemnitee<\/u>“) harmless from
\nand against any and all other liabilities, obligations, losses, damages,
\npenalties, actions, judgments, suits, costs, expenses or disbursements of any
\nkind or nature whatsoever with respect to the execution, delivery, enforcement,
\nperformance and administration of this Agreement, the other Loan Documents and
\nany such other documents, including any claim, litigation, investigation or
\nproceeding regardless of whether any Indemnitee is a party thereto and whether
\nor not the same are brought by the Borrower, its equity holders, Affiliates or
\ncreditors or any other Person, including any of the foregoing relating to the
\nuse of proceeds of the Loans or the violation of, noncompliance with or
\nliability under, any Environmental Law applicable to the operations of any Group
\nMember or any of the Properties and the reasonable and (if requested) documented
\nfees and disbursements of one firm of counsel to all Indemnitees, one local
\ncounsel, as necessary, in each appropriate jurisdiction and, in the case of an
\nactual or perceived conflict of interest where the Indemnitee affected by such
\nconflict informs the Borrower of such conflict and thereafter retains its own
\ncounsel, of another firm of counsel for each such affected Indemnitee, in
\nconnection with claims, actions or proceedings by any Indemnitee against any
\nLoan Party under any Loan Document (all the foregoing in this clause (d),
\ncollectively, the “Indemnified Liabilities<\/u>“), provided<\/u>, that the
\nBorrower shall have no obligation hereunder to any Indemnitee with respect to
\nIndemnified Liabilities to the extent such Indemnified Liabilities are found by
\na final and nonappealable decision of a court of competent jurisdiction to have
\nresulted from the gross negligence or willful misconduct of such Indemnitee, and
\nprovided<\/u>, further<\/u>, that this Section 10.5(d) shall not apply with
\nrespect to Taxes other than any Taxes that represent losses or damages arising
\nfrom any non-Tax claim and shall in no event apply with respect to Excluded
\nTaxes. All amounts due under this Section 10.5 shall be payable not later than
\n10 days after written demand therefor. Statements payable by the Borrower
\npursuant to this Section 10.5 shall be submitted to James S. Cox, Chief
\nFinancial Officer (Telephone No. (415) 543-7696) (Telecopy No. (415) 543-5070),
\nat the address of the Borrower set forth in Section 10.2, or to such other
\nPerson or address as may be hereafter designated by the Borrower in a written
\nnotice to the Administrative Agent. The agreements in this Section 10.5 shall
\nsurvive the termination of this Agreement and the repayment of the Loans and all
\nother amounts payable hereunder.<\/p>\n 10.6 Successors and Assigns; Participations and Assignments<\/u>. (a) The
\nprovisions of this Agreement shall be binding upon and inure to the benefit of
\nthe parties hereto and their respective<\/p>\n 74<\/p>\n
\n<\/p>\n successors and assigns permitted hereby (including any Affiliate of the
\nIssuing Lender that issues any Letter of Credit), except that (i) the Borrower
\nmay not assign or otherwise transfer any of its rights or obligations hereunder
\nwithout the prior written consent of each Lender (and any attempted assignment
\nor transfer by the Borrower without such consent shall be null and void) and
\n(ii) no Lender may assign or otherwise transfer its rights or obligations
\nhereunder except in accordance with this Section.<\/p>\n (b)(i) Subject to the conditions set forth in paragraph (b)(ii) below, any
\nLender may assign to one or more assignees (each, an “Assignee<\/u>“), other
\nthan a natural person or a holding company, investment vehicle, trust or similar
\nPerson operated for the primary benefit of a natural person, all or a portion of
\nits rights and obligations under this Agreement (including all or a portion of
\nits Commitments and the Loans at the time owing to it) with the prior written
\nconsent of:<\/p>\n (A) the Borrower (such consent not to be unreasonably withheld),
\nprovided<\/u> that no consent of the Borrower shall be required for an
\nassignment to a Lender, an Affiliate of a Lender, an Approved Fund (as defined
\nbelow) or, if an Event of Default under Section 8(a) or (f) has occurred and is
\ncontinuing, any other Person; and provided<\/u>, further<\/u>, that the
\nBorrower shall be deemed to have consented to any such assignment unless the
\nBorrower shall object thereto by written notice to the Administrative Agent
\nwithin five Business Days after having received written notice thereof; and<\/p>\n (B) the Administrative Agent, provided<\/u> that no consent of the
\nAdministrative Agent shall be required for an assignment of all or any portion
\nof a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund.<\/p>\n (ii) Assignments shall be subject to the following additional conditions:\n<\/p>\n (A) except in the case of an assignment to a Lender, an Affiliate of a Lender
\nor an Approved Fund or an assignment of the entire remaining amount of the
\nassigning Lender’s Commitments or Loans under any Facility, the amount of the
\nCommitments or Loans of the assigning Lender subject to each such assignment
\n(determined as of the date the Assignment and Assumption with respect to such
\nassignment is delivered to the Administrative Agent) shall not be less than
\n$5,000,000 (or, in the case of the Delayed Draw Term Facility or the Incremental
\nTerm Facility, $1,000,000) unless each of the Borrower and the Administrative
\nAgent otherwise consent, provided<\/u> that (1) no such consent of the
\nBorrower shall be required if an Event of Default has occurred and is continuing
\nand (2) such amounts shall be aggregated in respect of each Lender and its
\nAffiliates or Approved Funds, if any;<\/p>\n (B) (1) the parties to each assignment shall execute and deliver to the
\nAdministrative Agent an Assignment and Assumption, together with a processing
\nand recordation fee of $3,500 and (2) the assigning Lender shall have paid in
\nfull any amounts owing by it to the Administrative Agent; and<\/p>\n (C) the Assignee, if it shall not be a Lender, shall deliver to the
\nAdministrative Agent an administrative questionnaire in which the Assignee
\ndesignates one or more credit contacts to whom all syndicate-level information
\n(which may contain material non-public information about the Borrower and its
\nAffiliates and their related parties or their respective securities) will be
\nmade available and who may receive such information in accordance with the
\nassignee’s compliance procedures and applicable laws, including Federal and
\nstate securities laws.<\/p>\n For the purposes of this Section 10.6, “Approved Fund<\/u>” means any
\nPerson (other than a natural person) that is engaged in making, purchasing,
\nholding or investing in bank loans and similar<\/p>\n 75<\/p>\n
\n<\/p>\n extensions of credit in the ordinary course of its business and that is
\nadministered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
\nentity or an Affiliate of an entity that administers or manages a Lender.<\/p>\n (iii) Subject to acceptance and recording thereof pursuant to paragraph
\n(b)(iv) below, from and after the effective date specified in each Assignment
\nand Assumption the Assignee thereunder shall be a party hereto and, to the
\nextent of the interest assigned by such Assignment and Assumption, have the
\nrights and obligations of a Lender under this Agreement, and the assigning
\nLender thereunder shall, to the extent of the interest assigned by such
\nAssignment and Assumption, be released from its obligations under this Agreement
\n(and, in the case of an Assignment and Assumption covering all of the assigning
\nLender’s rights and obligations under this Agreement, such Lender shall cease to
\nbe a party hereto but shall continue to be entitled to the benefits of Sections
\n2.18, 2.19, 2.20 and 10.5). Any assignment or transfer by a Lender of rights or
\nobligations under this Agreement that does not comply with this Section 10.6
\nshall be treated for purposes of this Agreement as a sale by such Lender of a
\nparticipation in such rights and obligations in accordance with paragraph (c) of
\nthis Section.<\/p>\n (iv) The Administrative Agent, acting for this purpose as an agent of the
\nBorrower, shall maintain at one of its offices a copy of each Assignment and
\nAssumption delivered to it and a register for the recordation of the names and
\naddresses of the Lenders, and the Commitments of, and principal amount of the
\nLoans and L\/C Obligations owing to, each Lender pursuant to the terms hereof
\nfrom time to time (the “Register<\/u>“). The entries in the Register shall be
\nconclusive, and the Borrower, the Administrative Agent, the Issuing Lender and
\nthe Lenders shall treat each Person whose name is recorded in the Register
\npursuant to the terms hereof as a Lender hereunder for all purposes of this
\nAgreement, notwithstanding notice to the contrary.<\/p>\n (v) Upon its receipt of a duly completed Assignment and Assumption executed
\nby an assigning Lender and an Assignee, the Assignee’s completed administrative
\nquestionnaire (unless the Assignee shall already be a Lender hereunder), the
\nprocessing and recordation fee referred to in paragraph (b) of this Section and
\nany written consent to such assignment required by paragraph (b) of this
\nSection, the Administrative Agent shall accept such Assignment and Assumption
\nand record the information contained therein in the Register. No assignment
\nshall be effective for purposes of this Agreement unless it has been recorded in
\nthe Register as provided in this paragraph.<\/p>\n (c) Any Lender may, without the consent of the Borrower or the Administrative
\nAgent, sell participations to one or more banks or other entities (a
\n“Participant<\/u>“), other than a natural person or a holding company,
\ninvestment vehicle, trust or similar Person for the primary benefit of a natural
\nperson, in all or a portion of such Lender’s rights and obligations under this
\nAgreement (including all or a portion of its Commitments and the Loans owing to
\nit); provided<\/u> that (i) such Lender’s obligations under this Agreement
\nshall remain unchanged, (ii) such Lender shall remain solely responsible to the
\nother parties hereto for the performance of such obligations, and (iii) the
\nBorrower, the Administrative Agent, the Issuing Lender and the other Lenders
\nshall continue to deal solely and directly with such Lender in connection with
\nsuch Lender’s rights and obligations under this Agreement. Any agreement
\npursuant to which a Lender sells such a participation shall provide that such
\nLender shall retain the sole right to enforce this Agreement and to approve any
\namendment, modification or waiver of any provision of this Agreement;
\nprovided<\/u> that such agreement may provide that such Lender will not,
\nwithout the consent of the Participant, agree to any amendment, modification or
\nwaiver that (i) requires the consent of each Lender directly affected thereby
\npursuant to the proviso to the second sentence of Section 10.1 and (ii) directly
\naffects such Participant. The Borrower agrees that each Participant shall be
\nentitled to the benefits of Sections 2.18, 2.19 and 2.20 (subject to the
\nrequirements and limitations therein, including the requirements under Section
\n2.19(f) (it being understood that the documentation required under Section
\n2.19(f) shall be delivered to the participating Lender)) to the same extent as
\nif it were a Lender and had<\/p>\n 76<\/p>\n
\n<\/p>\n acquired its interest by assignment pursuant to paragraph (b) of this
\nSection; provided<\/u> that such Participant (i) agrees to be subject to the
\nprovisions of Sections 2.18 and 2.19 as if it were an assignee under paragraph
\n(b) of this Section and (ii) shall not be entitled to receive any greater
\npayment under Sections 2.18 or 2.19, with respect to any participation, than its
\nparticipating Lender would have been entitled to receive, except to the extent
\nsuch entitlement to receive a greater payment results from an adoption of or any
\nchange in any Requirement of Law or in the interpretation or application thereof
\nor compliance by any Lender with any request or directive (whether or not having
\nthe force of law) from any central bank or other Governmental Authority made
\nsubsequent to the date hereof that occurs after the Participant acquired the
\napplicable participation. To the extent permitted by law, each Participant also
\nshall be entitled to the benefits of Section 10.7(b) as though it were a Lender,
\nprovided such Participant shall be subject to Section 10.7(a) as though it were
\na Lender. Each Lender that sells a participation shall, acting solely for this
\npurpose as an agent of the Borrower, maintain a register on which it enters the
\nname and address of each Participant and the principal amounts (and stated
\ninterest) of each Participant’s interest in the Loans or other obligations under
\nthis Agreement (the “Participant Register<\/u>“); provided<\/u> that no
\nLender shall have any obligation to disclose all or any portion of the
\nParticipant Register to any Person (including the identity of any Participant or
\nany information relating to a Participant’s interest in any Commitments, Loans,
\nLetters of Credit or its other obligations under any Loan Document) except to
\nthe extent that such disclosure is necessary to establish that such Commitment,
\nLoan, Letter of Credit or other obligation is in registered form under Section
\n5f.103-1(c) of the United States Treasury Regulations. The entries in the
\nParticipant Register shall be conclusive absent manifest error, and such Lender
\nshall treat each Person whose name is recorded in the Participant Register as
\nthe owner of such participation for all purposes of this Agreement
\nnotwithstanding any notice to the contrary. Sales to Affiliated Lenders shall be
\nsubject to the restrictions set forth in this Section 10.6(c) with respect to
\nassignments of Loans and Commitments, mutatis mutandis<\/em>. Participations
\nmay not be sold to the Borrower or its Subsidiaries.<\/p>\n(d) Any Lender may at any time pledge or assign a security interest in all or
\nany portion of its rights under this Agreement to secure obligations of such
\nLender, including any pledge or assignment to secure obligations to a Federal
\nReserve Bank, and this Section shall not apply to any such pledge or assignment
\nof a security interest; provided<\/u> that no such pledge or assignment of a
\nsecurity interest shall release a Lender from any of its obligations hereunder
\nor substitute any such pledgee or Assignee for such Lender as a party hereto.\n<\/p>\n (e) The Borrower, upon receipt of written notice from the relevant Lender,
\nagrees to issue Notes to any Lender requiring Notes to facilitate transactions
\nof the type described in paragraph (d) above.<\/p>\n (f) (i) Commitments and Loans may not be assigned to any Affiliated Lender or
\nthe Borrower or its Subsidiaries except in accordance with this paragraph (f).
\nAny Lender may assign (or sell a participation in) all or any portion of its
\nTerm Loans and Delayed Draw Term Commitments to any Affiliated Lender (other
\nthan the Borrower and its Subsidiaries) in accordance with Sections 10.6(b) and
\n10.6(c); provided<\/u> that:<\/p>\n (A) no Default or Event of Default has occurred and is continuing or would
\nresult therefrom;<\/p>\n (B) the assigning Lender and Affiliated Lender purchasing such Lender’s Term
\nLoans and\/or Delayed Draw Term Commitments shall execute and deliver to the
\nAdministrative Agent an assignment agreement substantially in the form of
\nExhibit J (an “Affiliated Lender Assignment and Assumption<\/u>“);<\/p>\n 77<\/p>\n
\n<\/p>\n (C) for the avoidance of doubt, Lenders shall not be permitted to assign (i)
\nRevolving Commitments or Revolving Loans to any Affiliated Lender or (ii) any
\nCommitments or Loans to the Borrower or its Subsidiaries;<\/p>\n (D) no Term Loan or Delayed Draw Term Commitment may be assigned to an
\nAffiliated Lender pursuant to this Section 10.6(f) if, after giving effect to
\nsuch assignment, Affiliated Lenders in the aggregate would own in excess of 5%
\nof the principal amount of all Term Loans and Delayed Draw Term Commitments then
\noutstanding;<\/p>\n (E) the applicable Affiliated Lender shall at each of the time of its
\nexecution of a written trade confirmation in respect of, and at the time of
\nconsummation of, such assignment either (1) affirm the No MNPI Representation or
\n(2) if it is not able to affirm the No MNPI Representation, inform the assignor
\nand the assignor will deliver to such Affiliated Lender customary written
\nassurance that it is a sophisticated investor and is willing to proceed with the
\nassignment; and<\/p>\n (F) if an Affiliated Lender subsequently assigns the Term Loans and Delayed
\nDraw Term Commitments acquired by it in accordance with this Section 10.6(f),
\nsuch Affiliated Lender shall at the time of such assignment of such Term Loans
\nand Delayed Draw Term Commitments held by it either (1) affirm the No MNPI
\nRepresentation or (2) if it is not able to affirm the No MNPI Representation,
\nthe assignee will deliver to such Affiliated Lender customary written assurance
\nthat it is a sophisticated investor and is willing to proceed with the
\nassignment.<\/p>\n To the extent not previously disclosed to the Administrative Agent, the
\nBorrower shall, upon reasonable request of the Administrative Agent (but not
\nmore frequently than once per calendar quarter) report to the Administrative
\nAgent the amount of Term Loans (by Facility) and Delayed Draw Commitments held
\nby Affiliated Lenders and the identity of such holders.<\/p>\n (ii) Notwithstanding anything in Section 10.1 or the definition of “Required
\nLenders” to the contrary, for purposes of determining whether the Required
\nLenders, all affected Lenders or all Lenders have (A) consented (or not
\nconsented) to any amendment, modification, waiver, consent or other action with
\nrespect to any of the terms of any Loan Document or any departure by any Loan
\nParty therefrom, (B) otherwise acted on any matter related to any Loan Document,
\nor (C) directed or required the Administrative Agent or any Lender to undertake
\nany action (or refrain from taking any action) with respect to or under any Loan
\nDocument (collectively, “Required Lender Consent Items<\/u>“), an Affiliated
\nLender shall be deemed to have voted its interest as a Term Lender in the same
\nproportion as the allocation of voting with respect to such matter by Term
\nLenders who are not Affiliated Lenders, unless the result of such Required
\nLender Consent Item would reasonably be expected to deprive such Affiliated
\nLender of its pro rata share (compared to Term Lenders which are not Affiliated
\nLenders) of any payments to which such Affiliated Lender is entitled under the
\nLoan Documents without such Affiliated Lender providing its consent or such
\nAffiliated Lender is otherwise adversely affected thereby compared to Term
\nLenders which are not Affiliated Lenders (in which case for purposes of such
\nvote such Affiliated Lender shall have the same voting rights as other Term
\nLenders which are not Affiliated Lenders).<\/p>\n (iii) Notwithstanding anything to the contrary in this Agreement, no
\nAffiliated Lender shall have any right to (x) attend (including by telephone)
\nany meeting or discussions (or portion thereof) among the Administrative Agent
\nand any Lenders or among Lenders to which representatives of the Loan Parties
\nare not invited, (y) receive any information or material prepared by the
\nAdministrative Agent or any Lender or any communication by or among the
\nAdministrative Agent and\/or one or more Lenders, except to the extent such
\ninformation or material has been made available to any Loan Party or its<\/p>\n 78<\/p>\n
\n<\/p>\n representatives (and in any case, other than the right to receive notices of
\nprepayments and other administrative notices in respect of its Loans required to
\nbe delivered to Lenders pursuant to Section 2) or (z) make or bring (or
\nparticipate in, other than as a passive participation in or recipient of its pro
\nrata share of benefits of) any claim, in its capacity as a Lender, against the
\nAdministrative Agent or any other Lender with respect to any duties or
\nobligations or alleged duties or obligations of the Administrative Agent or such
\nother Lender under the Loan Documents.<\/p>\n (iv) The Loan Parties and each Affiliated Lender hereby agree that if a case
\nunder Title 11 of the United States Code is commenced against any Loan Party,
\nsuch Loan Party shall seek (and each Affiliated Lender shall consent) to provide
\nthat the vote of any Affiliated Lender (in its capacity as a Lender) with
\nrespect to any plan of reorganization of such Loan Party shall not be counted
\nexcept that such Affiliated Lender’s vote (in its capacity as a Lender) may be
\ncounted to the extent any such plan of reorganization proposes to treat the
\nObligations held by such Affiliated Lender in a manner that is less favorable in
\nany material respect to such Affiliated Lender than the proposed treatment of
\nsimilar Obligations held by Lenders that are not Affiliates of the Borrower.
\nEach Affiliated Lender hereby irrevocably appoints the Administrative Agent
\n(such appointment being coupled with an interest) as such Affiliated Lender’s
\nattorney-in-fact, with full authority in the place and stead of such Affiliated
\nLender and in the name of such Affiliated Lender, from time to time in the
\nAdministrative Agent’s discretion to take any action and to execute any
\ninstrument that the Administrative Agent may deem reasonably necessary to carry
\nout the provisions of this paragraph.<\/p>\n 10.7 Adjustments; Set-off<\/u>. (a) Except to the extent that this
\nAgreement or a court order expressly provides for payments to be allocated to a
\nparticular Lender or to the Lenders under a particular Facility, if any Lender
\n(a “Benefitted Lender<\/u>“) shall receive any payment of all or part of the
\nObligations owing to it (other than in connection with an assignment made
\npursuant to Section 10.6), or receive any collateral in respect thereof (whether
\nvoluntarily or involuntarily, by set-off, pursuant to events or proceedings of
\nthe nature referred to in Section 8(f), or otherwise), in a greater proportion
\nthan any such payment to or collateral received by any other Lender, if any, in
\nrespect of the Obligations owing to such other Lender, such Benefitted Lender
\nshall purchase for cash from the other Lenders a participating interest in such
\nportion of the Obligations owing to each such other Lender, or shall provide
\nsuch other Lenders with the benefits of any such collateral, as shall be
\nnecessary to cause such Benefitted Lender to share the excess payment or
\nbenefits of such collateral ratably with each of the Lenders; provided<\/u>,
\nhowever<\/u>, that if all or any portion of such excess payment or benefits is
\nthereafter recovered from such Benefitted Lender, such purchase shall be
\nrescinded, and the purchase price and benefits returned, to the extent of such
\nrecovery, but without interest.<\/p>\n (b) In addition to any rights and remedies of the Lenders provided by law,
\neach Lender shall have the right, without notice to the Borrower, any such
\nnotice being expressly waived by the Borrower to the extent permitted by
\napplicable law, upon any Obligations becoming due and payable by the Borrower
\n(whether at the stated maturity, by acceleration or otherwise), to apply to the
\npayment of such Obligations, by setoff or otherwise, any and all deposits
\n(general or special, time or demand, provisional or final), in any currency, and
\nany other credits, indebtedness or claims, in any currency, in each case whether
\ndirect or indirect, absolute or contingent, matured or unmatured, at any time
\nheld or owing by such Lender, any Affiliate thereof or any of their respective
\nbranches or agencies to or for the credit or the account of the Borrower;
\nprovided<\/u> that if any Defaulting Lender shall exercise any such right of
\nsetoff, (i) all amounts so set off shall be paid over immediately to the
\nAdministrative Agent for further application in accordance with the provisions
\nof this Agreement and, pending such payment, shall be segregated by such
\nDefaulting Lender from its other funds and deemed held in trust for the benefit
\nof the Administrative Agent, the Issuing Lender, the Swingline Lender and the
\nLenders and (ii) the Defaulting Lender shall provide promptly to the
\nAdministrative Agent a statement describing in reasonable detail the obligations
\nowing to such Defaulting Lender as to which it exercised such right of<\/p>\n 79<\/p>\n
\n<\/p>\n set-off. Each Lender agrees promptly to notify the Borrower and the
\nAdministrative Agent after any such application made by such Lender,
\nprovided<\/u> that the failure to give such notice shall not affect the
\nvalidity of such application.<\/p>\n 10.8 Counterparts<\/u>. This Agreement may be executed by one or more of
\nthe parties to this Agreement on any number of separate counterparts, and all of
\nsaid counterparts taken together shall be deemed to constitute one and the same
\ninstrument. Delivery of an executed signature page of this Agreement by email or
\nfacsimile transmission shall be effective as delivery of a manually executed
\ncounterpart hereof. A set of the copies of this Agreement signed by all the
\nparties shall be lodged with the Borrower and the Administrative Agent.<\/p>\n 10.9 Severability<\/u>. Any provision of this Agreement that is prohibited
\nor unenforceable in any jurisdiction shall, as to such jurisdiction, be
\nineffective to the extent of such prohibition or unenforceability without
\ninvalidating the remaining provisions hereof, and any such prohibition or
\nunenforceability in any jurisdiction shall not invalidate or render
\nunenforceable such provision in any other jurisdiction.<\/p>\n 10.10 Integration<\/u>. This Agreement and the other Loan Documents
\nrepresent the entire agreement of the Borrower, the Administrative Agent and the
\nLenders with respect to the subject matter hereof and thereof, and there are no
\npromises, undertakings, representations or warranties by the Administrative
\nAgent or any Lender relative to the subject matter hereof not expressly set
\nforth or referred to herein or in the other Loan Documents.<\/p>\n 10.11 GOVERNING LAW<\/u><\/strong>. THIS AGREEMENT AND THE
\nRIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY,
\nAND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
\nYORK.<\/strong><\/p>\n10.12 Submission To Jurisdiction; Waivers<\/u>. Each party hereto hereby
\nirrevocably and unconditionally:<\/p>\n (a) submits for itself and its property in any legal action or proceeding
\nrelating to this Agreement and the other Loan Documents to which it is a party,
\nor for recognition and enforcement of any judgment in respect thereof, to the
\nexclusive jurisdiction of the courts of the State of New York, the courts of the
\nUnited States for the Southern District of New York, and appellate courts from
\nany thereof; provided<\/u>, that nothing contained herein or in any other Loan
\nDocument will prevent any Lender or the Administrative Agent from bringing any
\naction to enforce any award or judgment or exercise any right under the Security
\nDocuments or against any Collateral or any other property of any Loan Party in
\nany other forum in which jurisdiction can be established;<\/p>\n (b) consents that any such action or proceeding may be brought in such courts
\nand waives any objection that it may now or hereafter have to the venue of any
\nsuch action or proceeding in any such court or that such action or proceeding
\nwas brought in an inconvenient court and agrees not to plead or claim the same;\n<\/p>\n (c) agrees that service of process in any such action or proceeding may be
\neffected by mailing a copy thereof by registered or certified mail (or any
\nsubstantially similar form of mail), postage prepaid, if to the Administrative
\nAgent or the Borrower, at its address set forth in Section 10.2 or at such other
\naddress of which the Administrative Agent shall have been notified pursuant
\nthereto, and if to any other Credit Party, in accordance with Section 10.2;<\/p>\n 80<\/p>\n
\n<\/p>\n (d) agrees that nothing herein shall affect the right to effect service of
\nprocess in any other manner permitted by law; and<\/p>\n (e) waives, to the maximum extent not prohibited by law, any right it may
\nhave to claim or recover in any legal action or proceeding referred to in this
\nSection any special, exemplary, punitive or consequential damages.<\/p>\n 10.13 Acknowledgements<\/u>. The Borrower hereby acknowledges that:<\/p>\n (a) it has been advised by counsel in the negotiation, execution and delivery
\nof this Agreement and the other Loan Documents;<\/p>\n (b) neither the Administrative Agent nor any Lender has any fiduciary
\nrelationship with or duty to the Borrower arising out of or in connection with
\nthis Agreement or any of the other Loan Documents, and the relationship between
\nAdministrative Agent and Lenders, on one hand, and Borrower, on the other hand,
\nin connection herewith or therewith is solely that of debtor and creditor; and\n<\/p>\n (c) no joint venture is created hereby or by the other Loan Documents or
\notherwise exists by virtue of the transactions contemplated hereby among the
\nLenders or among the Borrower and the Lenders.<\/p>\n 10.14 Releases of Guarantees and Liens<\/u>. (a) Notwithstanding anything
\nto the contrary contained herein or in any other Loan Document, the
\nAdministrative Agent is hereby irrevocably authorized by each Lender (without
\nrequirement of notice to or consent of any Lender except as expressly required
\nby Section 10.1) to take any action requested by the Borrower having the effect
\nof releasing any Collateral or guarantee obligations (i) to the extent necessary
\nto permit consummation of any transaction not prohibited by any Loan Document or
\nthat has been consented to in accordance with Section 10.1 or (ii) under the
\ncircumstances described in paragraph (b) below.<\/p>\n (b) At such time as the Loans, the Reimbursement Obligations and the other
\nobligations under the Loan Documents (other than obligations under or in respect
\nof Specified Swap Agreements or Specified Cash Management Agreements and
\nunasserted contingent indemnification obligations) shall have been paid in full,
\nthe Commitments have been terminated and no Letters of Credit shall be
\noutstanding (or shall have been cash collateralized in a manner satisfactory to
\nthe Administrative Agent), the Collateral shall be released from the Liens
\ncreated by the Security Documents, and the Security Documents and all
\nobligations (other than those expressly stated to survive such termination) of
\nthe Administrative Agent and each Loan Party under the Security Documents shall
\nterminate, all without delivery of any instrument or performance of any act by
\nany Person.<\/p>\n 10.15 Confidentiality<\/u>. Each Credit Party agrees to keep confidential
\nall non-public information provided to it by any Loan Party or any Credit Party
\npursuant to or in connection with this Agreement that is designated by the
\nprovider thereof as confidential; provided<\/u> that nothing herein shall
\nprevent a Credit Party from disclosing any such information (a) to any other
\nCredit Party or any Affiliate thereof, (b) subject to an agreement to comply
\nwith the provisions of this Section, to any actual or prospective Transferee or
\nany direct or indirect counterparty to any Swap Agreement (or any professional
\nadvisor to such counterparty), (c) to its employees, directors, agents,
\nattorneys, accountants and other professional advisors (collectively, its
\n“Representatives<\/u>“) or those of any of its Affiliates on a need-to-know
\nbasis who are informed of the confidential nature of such information and are or
\nhave been advised of their obligation to keep information of this type
\nconfidential, (d) upon the request or demand of any Governmental Authority
\nhaving jurisdiction over such Credit Party (in which case such Credit Party
\nshall<\/p>\n 81<\/p>\n
\n<\/p>\n promptly notify the Borrower in advance to the extent practicable and
\npermitted by law), (e) in response to any order of any court or other
\nGovernmental Authority or as may otherwise be required pursuant to any
\nRequirement of Law, (f) if requested or required to do so in connection with any
\nlitigation or similar proceeding, (g) that has been publicly disclosed other
\nthan by reason of disclosure by such Credit Party, its Affiliates or its
\nRepresentatives in breach of this Section, (h) to the National Association of
\nInsurance Commissioners or any similar organization or any nationally recognized
\nrating agency that requires access to information about a Lender’s investment
\nportfolio in connection with ratings issued with respect to such Lender, or (i)
\nin connection with the exercise of any remedy hereunder or under any other Loan
\nDocument, or (j) if agreed by the Borrower in its sole discretion, to any other
\nPerson.<\/p>\n Each Lender acknowledges that information furnished to it pursuant to this
\nAgreement or the other Loan Documents may include material non-public
\ninformation concerning the Borrower and its Affiliates and their related parties
\nor their respective securities, and confirms that it has developed compliance
\nprocedures regarding the use of material non-public information and that it will
\nhandle such material non-public information in accordance with those procedures
\nand applicable law, including Federal and state securities laws.<\/p>\n All information, including requests for waivers and amendments, furnished by
\nthe Borrower or the Administrative Agent pursuant to, or in the course of
\nadministering, this Agreement or the other Loan Documents will be
\nsyndicate-level information, which may contain material non-public information
\nabout the Borrower and its Affiliates and their related parties or their
\nrespective securities. Accordingly, each Lender represents to the Borrower and
\nthe Administrative Agent that it has identified in its administrative
\nquestionnaire a credit contact who may receive information that may contain
\nmaterial non-public information in accordance with its compliance procedures and
\napplicable law, including Federal and state securities laws.<\/p>\n 10.16 WAIVERS OF JURY TRIAL<\/u><\/strong>. THE BORROWER,
\nTHE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
\nWAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
\nOR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.<\/strong><\/p>\n10.17 USA Patriot Act<\/u>. Each Lender hereby notifies the Borrower that
\npursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
\n(signed into law October 26, 2001)) (the “Patriot Act”), it is required to
\nobtain, verify and record information that identifies the Borrower, which
\ninformation includes the name and address of the Borrower and other information
\nthat will allow such Lender to identify the Borrower in accordance with the
\nPatriot Act.<\/p>\n 82<\/p>\n
\n<\/p>\n IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
\nexecuted and delivered by their proper and duly authorized officers as of the
\nday and year first above written.<\/p>\n \n\n\n| <\/td>\n | \n ADVENT SOFTWARE, INC.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ James S. Cox<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name: James S. Cox<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Chief Financial Officer<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n JPMORGAN CHASE BANK, N.A.,<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n as Administrative Agent and as a Lender<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Gerardo B. Loera<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name: Gerardo B. Loera<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Authorized Officer<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n WELLS FARGO BANK, NATIONAL ASSOCIATION,<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n as Syndication Agent and as a Lender<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Caroline Peyton<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name: Caroline Peyton<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Assistant Vice President<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n U.S. BANK NATIONAL ASSOCIATION,<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n as Documentation Agent and as a Lender<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Matthew D. Murray<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name: Matthew D. Murray<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Assistant Vice President and Portfolio Manager<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n UNION BANK, N.A.,<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n as a Lender<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Michael J. McCutchin<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name: Michael J. McCutchin<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Vice President<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n COMPASS BANK, an Alabama banking corporation,<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n as a Lender<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Mark Sunderland<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name: Mark Sunderland<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Senior Vice President<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 83<\/p>\n
\n\n\n\n| <\/td>\n | \n COMERICA BANK,<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n as a Lender<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ Kim Crosslin<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name: Kim Crosslin<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Vice President<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n BANK OF THE WEST,<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n as a Lender<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | \n \/s\/ William Pope<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name: William Pope<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title: Vice President<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 84<\/p>\n
\n<\/p>\n SCHEDULE 1.1<\/u><\/strong><\/p>\nCOMMITMENTS<\/strong><\/p>\n\n\n\n| \n Lender<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n Revolving
\nCommitment<\/strong><\/p>\n<\/td>\n<\/td>\n | \n Tranche A Term
\nCommitment<\/strong><\/p>\n<\/td>\n<\/td>\n | \n Delayed Draw
\nTerm
\nCommitment<\/strong><\/p>\n<\/td>\n<\/td>\n | \n Total Allocation<\/strong><\/p>\n<\/td>\n| <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n JPMorgan Chase Bank, N.A.<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 10,000,000.00<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 10,000,000.00<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 10,000,000.00<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 30,000,000.00<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Wells Fargo Bank, National Association<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 8,333,333.33<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 8,333,333.34<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 8,333,333.33<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 25,000,000.00<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n U.S. Bank National Association<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 7,833,333.33<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 7,833,333.34<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 7,833,333.33<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 23,500,000.00<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Union Bank, N.A.<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 6,333,333.34<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 6,333,333.33<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 6,333,333.33<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 19,000,000.00<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n COMPASS BANK<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 5,833,333.34<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 5,833,333.33<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 5,833,333.33<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 17,500,000.00<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Comerica Bank<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 5,833,333.33<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 5,833,333.33<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 5,833,333.34<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 17,500,000.00<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n Bank of the West<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 5,833,333.33<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 5,833,333.33<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 5,833,333.34<\/p>\n<\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | \n 17,500,000.00<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n TOTAL<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n $<\/strong><\/p>\n<\/td>\n| \n 50,000,000.00<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n $<\/strong><\/p>\n<\/td>\n| \n 50,000,000.00<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n $<\/strong><\/p>\n<\/td>\n| \n 50,000,000.00<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n $<\/strong><\/p>\n<\/td>\n| \n 150,000,000.00<\/strong><\/p>\n<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n
\n<\/p>\n EXHIBIT A<\/p>\n FORM OF<\/p>\n GUARANTEE AND COLLATERAL AGREEMENT<\/p>\n [See fully executed Guarantee and Collateral Agreement]<\/p>\n
\n<\/p>\n EXHIBIT B<\/p>\n FORM OF<\/p>\n COMPLIANCE CERTIFICATE<\/p>\n This Compliance Certificate is delivered pursuant to Section 6.2(b) of the
\nCredit Agreement, dated as of November 30, 2011 (as amended, supplemented or
\notherwise modified from time to time (the “Credit Agreement<\/u>“), among
\nADVENT SOFTWARE, INC., a Delaware corporation (the “Borrower<\/u>“), the
\nLenders party thereto, the Documentation Agent and the Syndication Agent named
\ntherein and JPMORGAN CHASE BANK, N.A., as administrative agent (in such
\ncapacity, the “Administrative Agent<\/u>“). Unless otherwise defined herein,
\nterms defined in the Credit Agreement and used herein shall have the meanings
\ngiven to them in the Credit Agreement.<\/p>\n 1. I am the duly elected, qualified and acting [Chief Financial Officer] of
\nthe Borrower.<\/p>\n 2. I have reviewed and am familiar with the contents of this Certificate.\n<\/p>\n 3. I have reviewed the terms of the Credit Agreement and the Loan Documents
\nand have made or caused to be made under my supervision, a review in reasonable
\ndetail of the transactions and condition of the Borrower during the accounting
\nperiod covered by the financial statements attached hereto as Attachment
\n1<\/u> (the “Financial Statements<\/u>“). Such review did not disclose the
\nexistence during or at the end of the accounting period covered by the Financial
\nStatements, and I have no knowledge of the existence, as of the date of this
\nCertificate, of any condition or event which constitutes a Default or Event of
\nDefault[, except as set forth below].<\/p>\n 4. Attached hereto as Attachment 2<\/u> are the computations showing
\ncompliance with the covenants set forth in Section 7.1 of the Credit Agreement.\n<\/p>\n 5. [Attached hereto as Attachment 3<\/u> is certain other information
\nrequired by Section 6.2(b) of the Credit Agreement.](1)<\/p>\n IN WITNESS WHEREOF, I have executed this Certificate, in my capacity as an
\nofficer of the Borrower and not in any individual capacity, this day of , 201 .\n<\/p>\n \n\n\n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n
\n(1) If applicable, to the extent not previously disclosed to the
\nAdministrative Agent, include (1) a description of any change in the
\njurisdiction of organization of any Loan Party, (2) a list of any Intellectual
\nProperty applications and registrations made or acquired by any Loan Party and
\nany U.S. Intellectual Property applications and registrations to which any
\nGrantor (as defined in the Guarantee and Collateral Agreement) becomes an
\nexclusive licensee, and (3) a description of any Person that has become a Group
\nMember, in each case since the date of the most recent Compliance Certificate.\n<\/p>\n
\n<\/p>\n Attachment 1<\/p>\n to Compliance Certificate<\/p>\n [Attach Financial Statements]<\/p>\n
\n<\/p>\n Attachment 2
\nto Compliance Certificate<\/p>\n The information described herein is as of , , and pertains to the period from
\n, to , .<\/p>\n [Set forth Covenant Calculations]<\/p>\n
\n<\/p>\n EXHIBIT C-1<\/p>\n FORM OF
\nCLOSING CERTIFICATE<\/p>\n Pursuant to Section 5.1(g) of the Credit Agreement, dated as of November 30,
\n2011 (as amended, supplemented or otherwise modified from time to time (the
\n“Credit Agreement<\/u>“), among ADVENT SOFTWARE, INC., a Delaware corporation
\n(the “Borrower<\/u>“), the Lenders party thereto, the Documentation Agent and
\nthe Syndication Agent named therein and JPMORGAN CHASE BANK, N.A., as
\nadministrative agent (in such capacity, the “Administrative Agent<\/u>“), the
\nundersigned Chief Executive Officer of the Borrower hereby certifies, in his
\ncapacity as an officer of the Borrower and not in any individual capacity, as
\nfollows:<\/p>\n 1. The representations and warranties of each Loan Party set forth in each of
\nthe Loan Documents to which it is a party or which are contained in any
\ncertificate furnished by or on behalf of such Loan Party pursuant to any of the
\nLoan Documents to which it is a party are true and correct in all material
\nrespects on and as of the date hereof with the same effect as if made on the
\ndate hereof, except for representations and warranties expressly stated to
\nrelate to a specific earlier date, in which case such representations and
\nwarranties were true and correct in all material respects as of such earlier
\ndate.<\/p>\n 2. No Default or Event of Default has occurred and is continuing as of the
\ndate hereof or after giving effect to the Loans to be made on the date hereof
\nand the use of proceeds thereof.<\/p>\n 3. The conditions precedent set forth in Section 5.1 of the Credit Agreement
\nwere satisfied as of the Closing Date.<\/p>\n IN WITNESS WHEREOF, the undersigned has hereunto set his name as of the date
\nset forth below.<\/p>\n \n\n\n| <\/td>\n | \n By:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Date:<\/p>\n<\/td>\n | \n , 2011<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n
\n<\/p>\n EXHIBIT C-2<\/p>\n FORM OF
\nSECRETARY’S CERTIFICATE<\/p>\n The undersigned, being the duly elected, qualified and acting Secretary of
\n[LOAN PARTY] (the “Company<\/u>“), does hereby certify, as of November [ ],
\n2011, pursuant to the Credit Agreement, dated as of the date hereof (the
\n“Credit Agreement<\/u>“) by and among Advent Software, Inc., the lenders from
\ntime to time party thereto and JPMorgan Chase Bank, N.A., as administrative
\nagent, that:<\/p>\n 1. Attached hereto as Exhibit A<\/u> is a true and complete copy of the
\n[Certificate\/Articles] of [Incorporation\/Formation], including all amendments
\nthereto, of the Company, certified by the [CERTIFYING AUTHORITY], as in effect
\non and as of the date hereof;<\/p>\n 2. Attached hereto as Exhibit B<\/u> is a true and complete copy of the
\n[Bylaws\/Operating Agreement] of the Company, as in effect on and as of the date
\nhereof;<\/p>\n 3. Attached hereto as Exhibit C<\/u> is a true and complete copy of the
\nresolutions adopted by the [Board of Directors\/Sole Member] of the Company
\nrelating to the authorization, execution, delivery and performance of the Loan
\nDocuments to which the Company is a party, and such resolutions have not been
\namended, annulled, rescinded or revoked and remain in full force and effect; and\n<\/p>\n 4. Each of the following persons is, on and as of the date hereof, a duly
\nelected officer of the Company holding the offices set opposite his or her name,
\nand is authorized to sign the Loan Documents to which the Company is a party,
\nand the signature set opposite his name is the true signature of said officer:\n<\/p>\n \n\n\n| \n Name<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n Office<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n Signature<\/strong><\/p>\n<\/td>\n<\/tr>\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n IN WITNESS WHEREOF, the undersigned has executed this certificate, solely as
\nan officer of the Company and not in any individual capacity, as of the date
\nfirst written above.<\/p>\n \n\n\n| <\/td>\n | \n By:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n The undersigned, being the [TITLE] of the Company, hereby certifies that
\n[NAME] is the duly elected, qualified and acting [TITLE] of the Company and that
\nthe above signature is his genuine signature.<\/p>\n IN WITNESS WHEREOF, the undersigned has executed this certificate, solely as
\nan officer of the Company and not in any individual capacity, as of the date
\nfirst written above.<\/p>\n \n\n\n| <\/td>\n | \n By:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n
\n<\/p>\n EXHIBIT D<\/p>\n FORM OF
\nASSIGNMENT AND ASSUMPTION<\/p>\n This Assignment and Assumption (the “Assignment and Assumption<\/u>“) is
\ndated as of the Effective Date set forth below and is entered into between the
\nAssignor named below (the “Assignor<\/u>“) and the Assignee named below (the
\n“Assignee<\/u>“). Capitalized terms used but not defined herein shall have the
\nmeanings given to them in the Credit Agreement identified below (as amended, the
\n“Credit Agreement<\/u>“), receipt of a copy of which is hereby acknowledged by
\nthe Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
\nhereto are hereby agreed to and incorporated herein by reference and made a part
\nof this Assignment and Assumption as if set forth herein in full.<\/p>\n For an agreed consideration, the Assignor hereby irrevocably sells and
\nassigns to the Assignee, and the Assignee hereby irrevocably purchases and
\nassumes from the Assignor, subject to and in accordance with the Standard Terms
\nand Conditions and the Credit Agreement, as of the Effective Date inserted by
\nthe Administrative Agent below (i) all of the Assignor’s rights and obligations
\nin its capacity as a Lender under the Credit Agreement and any other documents
\nor instruments delivered pursuant thereto to the extent related to the amount
\nand percentage interest identified below of all of such outstanding rights and
\nobligations of the Assignor under the respective facilities identified below
\n(including any letters of credit, guarantees, and swingline loans included in
\nsuch facilities) and (ii) to the extent permitted to be assigned under
\napplicable law, all claims, suits, causes of action and any other right of the
\nAssignor (in its capacity as a Lender) against any Person, whether known or
\nunknown, arising under or in connection with the Credit Agreement, any other
\ndocuments or instruments delivered pursuant thereto or the loan transactions
\ngoverned thereby or in any way based on or related to any of the foregoing,
\nincluding contract claims, tort claims, malpractice claims, statutory claims and
\nall other claims at law or in equity related to the rights and obligations sold
\nand assigned pursuant to clause (i) above (the rights and obligations sold and
\nassigned pursuant to clauses (i) and (ii) above being referred to herein
\ncollectively as the “Assigned Interest<\/u>“). Such sale and assignment is
\nwithout recourse to the Assignor and, except as expressly provided in this
\nAssignment and Assumption, without representation or warranty by the Assignor.\n<\/p>\n\n\n\n| \n 1.<\/p>\n<\/td>\n | <\/td>\n | \n Assignor:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n 2.<\/p>\n<\/td>\n | <\/td>\n | \n Assignee:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n [and is a Lender or an Affiliate\/Approved Fund of [identify Lender<\/em>]\n<\/p>\n<\/td>\n<\/tr>\n\n| \n (1)]<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n 3.<\/p>\n<\/td>\n | <\/td>\n | \n Borrower:<\/p>\n<\/td>\n | <\/td>\n | \n ADVENT SOFTWARE, INC.<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n 4.<\/p>\n<\/td>\n | <\/td>\n | \n Administrative Agent:<\/p>\n<\/td>\n | <\/td>\n | \n JPMORGAN CHASE BANK, N.A., as administrative agent under the Credit Agreement\n<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n 5.<\/p>\n<\/td>\n | <\/td>\n | \n Credit Agreement:<\/p>\n<\/td>\n | <\/td>\n | \n The Credit Agreement, dated as of November 30, 2011, among Advent Software,
\nInc., the Lenders parties thereto, JPMorgan Chase Bank, N.A., as Administrative
\nAgent, and the other agents parties thereto<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n
\n(1) Select as applicable.<\/p>\n
\n\n\n\n| <\/p>\n 6.<\/p>\n<\/td>\n | <\/td>\n | \n Assigned Interest:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n \n\n\n| \n Facility Assigned(2)<\/strong><\/p>\n<\/td>\n| <\/td>\n | \n Aggregate Amount of
\nCommitment\/Loans for
\nall Lenders<\/strong><\/p>\n<\/td>\n<\/td>\n | \n Amount of
\nCommitment\/Loans
\nAssigned<\/strong><\/p>\n<\/td>\n<\/td>\n | \n Percentage Assigned of
\nCommitment\/Loans(3)<\/strong><\/p>\n<\/td>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | \n $<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n %<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Effective Date: , 201 [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
\nBE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]<\/p>\n The Assignee agrees to deliver to the Administrative Agent a completed
\nadministrative questionnaire in which the Assignee designates one or more credit
\ncontacts to whom all syndicate-level information (which may contain material
\nnon-public information about the Borrower, the Loan Parties and their Affiliates
\nor their respective securities) will be made available and who may receive such
\ninformation in accordance with the Assignee’s compliance procedures and
\napplicable laws, including Federal and state securities laws.<\/p>\n [Signature pages follow]<\/p>\n
\n\n\n\n| \n (2)<\/p>\n<\/td>\n | \n Fill in the appropriate terminology for the types of facilities under the
\nCredit Agreement that are being assigned under this Assignment (e.g. “Revolving
\nCommitment,” “Tranche A Term Commitment,” “Delayed Draw Term Commitment”).<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n (3)<\/p>\n<\/td>\n | \n Set forth, to at least 9 decimals, as a percentage of the Commitment\/Loans of
\nall Lenders.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 2<\/p>\n
\n<\/p>\n The terms set forth in this Assignment and Assumption are hereby agreed to:\n<\/p>\n \n\n\n| <\/td>\n | \n ASSIGNOR<\/u><\/p>\n<\/td>\n<\/tr>\n\n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n NAME OF ASSIGNOR<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n ASSIGNEE<\/u><\/p>\n<\/td>\n<\/tr>\n\n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n NAME OF ASSIGNEE<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n By:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 3<\/p>\n
\n\n\n\n| <\/p>\n [Consented to and](4) Accepted:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n JPMORGAN CHASE BANK, N.A.,<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n as Administrative Agent<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Title:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n [Consented to:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n ADVENT SOFTWARE, INC.,<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| \n as Borrower<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n<\/tr>\n | \n| \n By<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Title:] (5)<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n
\n(4) To be added only if the consent of the Administrative Agent is required
\nby the terms of the Credit Agreement.<\/p>\n (5) To be added only if the consent of the Borrower is required by the terms
\nof the Credit Agreement.<\/p>\n 4<\/p>\n
\n<\/p>\n ANNEX 1<\/p>\n RE: The Credit Agreement, dated as of November 30, 2011,
\namong Advent Software, Inc., the Lenders parties thereto,
\nJPMorgan Chase Bank, N.A., as Administrative Agent,
\nand the other agents parties thereto<\/p>\n STANDARD TERMS AND CONDITIONS FOR<\/p>\n ASSIGNMENT AND ASSUMPTION<\/p>\n 1. Representations and Warranties<\/u>.<\/p>\n 1.1 Assignor<\/u>. The Assignor (a) represents and warrants that (i) it is
\nthe legal and beneficial owner of the Assigned Interest, (ii) the Assigned
\nInterest is free and clear of any lien, encumbrance or other adverse claim and
\n(iii) it has full power and authority, and has taken all action necessary, to
\nexecute and deliver this Assignment and Assumption and to consummate the
\ntransactions contemplated hereby and (b) assumes no responsibility with respect
\nto (i) any statements, warranties or representations made in or in connection
\nwith the Credit Agreement or any other Loan Document, (ii) the execution,
\nlegality, validity, enforceability, genuineness, sufficiency or value of the
\nLoan Documents or any collateral thereunder, (iii) the financial condition of
\nthe Borrower, any of its Subsidiaries or Affiliates or any other Person
\nobligated in respect of any Loan Document or (iv) the performance or observance
\nby the Borrower, any of its Subsidiaries or Affiliates or any other Person of
\nany of their respective obligations under any Loan Document.<\/p>\n 1.2. Assignee<\/u>. The Assignee (a) represents and warrants that (i) it
\nhas full power and authority, and has taken all action necessary, to execute and
\ndeliver this Assignment and Assumption and to consummate the transactions
\ncontemplated hereby and to become a Lender under the Credit Agreement, (ii) it
\nsatisfies the requirements, if any, specified in the Credit Agreement that are
\nrequired to be satisfied by it in order to acquire the Assigned Interest and
\nbecome a Lender, (iii) from and after the Effective Date, it shall be bound by
\nthe provisions of the Credit Agreement as a Lender thereunder and, to the extent
\nof the Assigned Interest, shall have the obligations of a Lender thereunder,
\n(iv) it has received a copy of the Credit Agreement, together with copies of the
\nmost recent financial statements delivered pursuant to Section 6.1 thereof, and
\nsuch other documents and information as it has deemed appropriate to make its
\nown credit analysis and decision to enter into this Assignment and Assumption
\nand to purchase the Assigned Interest on the basis of which it has made such
\nanalysis and decision independently and without reliance on the Administrative
\nAgent or any other Lender and (v) if it is a Non-U.S. Lender, attached to the
\nAssignment and Assumption is any documentation required to be delivered by it
\npursuant to the terms of the Credit Agreement, duly completed and executed by
\nthe Assignee and (b) agrees that (i) it will, independently and without reliance
\non the Administrative Agent, the Assignor or any other Lender, and based on such
\ndocuments and information as it shall deem appropriate at the time, continue to
\nmake its own credit decisions in taking or not taking action under the Loan
\nDocuments and (ii) it will perform in accordance with their terms all of the
\nobligations which by the terms of the Loan Documents are required to be
\nperformed by it as a Lender.<\/p>\n 2. Payments<\/u>. From and after the Effective Date, the Administrative
\nAgent shall make all payments in respect of the Assigned Interest (including
\npayments of principal, interest, fees and other amounts) to the Assignor for
\namounts which have accrued to but excluding the Effective Date and to the
\nAssignee for amounts which have accrued from and after the Effective Date.<\/p>\n
\n <\/p>\n 3. General Provisions<\/u>. This Assignment and Assumption shall be binding
\nupon, and inure to the benefit of, the parties hereto and their respective
\nsuccessors and assigns. This Assignment and Assumption may be executed in any
\nnumber of counterparts, which together shall constitute one instrument. Delivery
\nof an executed counterpart of a signature page of this Assignment and Assumption
\nby email or telecopy shall be effective as delivery of a manually executed
\ncounterpart of this Assignment and Assumption. This Assignment and Assumption
\nshall be governed by, and construed in accordance with, the law of the State of
\nNew York.<\/p>\n 2<\/p>\n
\n<\/p>\n EXHIBIT F-1<\/p>\n FORM OF
\nU.S. TAX COMPLIANCE CERTIFICATE<\/p>\n (For Non-U.S. Lenders That Are Not Partnerships For U.S.
\nFederal Income Tax Purposes)<\/p>\n Reference is made to the Credit Agreement, dated as of November 30, 2011 (as
\namended, supplemented or otherwise modified from time to time (the “Credit
\nAgreement<\/u>“), among ADVENT SOFTWARE, INC. (the “Borrower<\/u>“), the
\nLenders parties thereto, the Documentation Agent and the Syndication Agent named
\ntherein and JPMORGAN CHASE BANK, N.A., as administrative agent (in such
\ncapacity, the “Administrative Agent<\/u>“). Unless otherwise defined herein,
\nterms defined in the Credit Agreement and used herein shall have the meanings
\ngiven to them in the Credit Agreement.<\/p>\n Pursuant to the provisions of Section 2.19 of the Credit Agreement, the
\nundersigned hereby certifies that (i) it is the sole record and beneficial owner
\nof the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of
\nwhich it is providing this certificate, (ii) it is not a bank within the meaning
\nof Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder
\nof the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv)
\nit is not a controlled foreign corporation related to the Borrower as described
\nin Section 881(c)(3)(C) of the Code.<\/p>\n The undersigned has furnished the Administrative Agent and the Borrower with
\na certificate of its non-U.S. Person status on IRS Form W-8BEN. By executing
\nthis certificate, the undersigned agrees that (1) if the information provided on
\nthis certificate changes, the undersigned shall promptly so inform the Borrower
\nand the Administrative Agent, and (2) the undersigned shall have at all times
\nfurnished the Borrower and the Administrative Agent with a properly completed
\nand currently effective certificate in either the calendar year in which each
\npayment is to be made to the undersigned, or in either of the two calendar years
\npreceding such payments.<\/p>\n [NAME OF LENDER]<\/p>\n \n\n\n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Date: , 20<\/p>\n
\n<\/p>\n EXHIBIT F-2<\/p>\n FORM OF
\nU.S. TAX COMPLIANCE CERTIFICATE<\/p>\n (For Foreign Participants That Are Not Partnerships For U.S.
\nFederal Income Tax Purposes)<\/p>\n Reference is made to the Credit Agreement, dated as of November 30, 2011 (as
\namended, supplemented or otherwise modified from time to time (the “Credit
\nAgreement<\/u>“), among ADVENT SOFTWARE, INC. (the “Borrower<\/u>“), the
\nLenders parties thereto, the Documentation Agent and the Syndication Agent named
\ntherein and JPMORGAN CHASE BANK, N.A., as administrative agent (in such
\ncapacity, the “Administrative Agent<\/u>“). Unless otherwise defined herein,
\nterms defined in the Credit Agreement and used herein shall have the meanings
\ngiven to them in the Credit Agreement.<\/p>\n Pursuant to the provisions of Section 2.19 of the Credit Agreement, the
\nundersigned hereby certifies that (i) it is the sole record and beneficial owner
\nof the participation in respect of which it is providing this certificate, (ii)
\nit is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii)
\nit is not a ten percent shareholder of the Borrower within the meaning of
\nSection 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign
\ncorporation related to the Borrower as described in Section 881(c)(3)(C) of the
\nCode.<\/p>\n The undersigned has furnished its participating Lender with a certificate of
\nits non-U.S. Person status on IRS Form W-8BEN. By executing this certificate,
\nthe undersigned agrees that (1) if the information provided on this certificate
\nchanges, the undersigned shall promptly so inform such Lender in writing, and
\n(2) the undersigned shall have at all times furnished such Lender with a
\nproperly completed and currently effective certificate in either the calendar
\nyear in which each payment is to be made to the undersigned, or in either of the
\ntwo calendar years preceding such payments.<\/p>\n [NAME OF PARTICIPANT]<\/p>\n \n\n\n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Date: , 201<\/p>\n
\n<\/p>\n EXHIBIT F-3<\/p>\n FORM OF
\nU.S. TAX COMPLIANCE CERTIFICATE<\/p>\n (For Foreign Participants That Are Partnerships For U.S.
\nFederal Income Tax Purposes)<\/p>\n Reference is made to the Credit Agreement, dated as of November 30, 2011 (as
\namended, supplemented or otherwise modified from time to time (the “Credit
\nAgreement<\/u>“), among ADVENT SOFTWARE, INC. (the “Borrower<\/u>“), the
\nLenders parties thereto, the Documentation Agent and the Syndication Agent named
\ntherein and JPMORGAN CHASE BANK, N.A., as administrative agent (in such
\ncapacity, the “Administrative Agent<\/u>“). Unless otherwise defined herein,
\nterms defined in the Credit Agreement and used herein shall have the meanings
\ngiven to them in the Credit Agreement.<\/p>\n Pursuant to the provisions of Section 2.19 of the Credit Agreement, the
\nundersigned hereby certifies that (i) it is the sole record owner of the
\nparticipation in respect of which it is providing this certificate, (ii) its
\ndirect or indirect partners\/members are the sole beneficial owners of such
\nparticipation, (iii) with respect such participation, neither the undersigned
\nnor any of its direct or indirect partners\/members is a bank extending credit
\npursuant to a loan agreement entered into in the ordinary course of its trade or
\nbusiness within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of
\nits direct or indirect partners\/members is a ten percent shareholder of the
\nBorrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of
\nits direct or indirect partners\/members is a controlled foreign corporation
\nrelated to the Borrower as described in Section 881(c)(3)(C) of the Code.<\/p>\n The undersigned has furnished its participating Lender with IRS Form W-8IMY
\naccompanied by one of the following forms from each of its partners\/members that
\nis claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an
\nIRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such
\npartner’s\/member’s beneficial owners that is claiming the portfolio interest
\nexemption. By executing this certificate, the undersigned agrees that (1) if the
\ninformation provided on this certificate changes, the undersigned shall promptly
\nso inform such Lender and (2) the undersigned shall have at all times furnished
\nsuch Lender with a properly completed and currently effective certificate in
\neither the calendar year in which each payment is to be made to the undersigned,
\nor in either of the two calendar years preceding such payments.<\/p>\n [NAME OF PARTICIPANT]<\/p>\n \n\n\n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Date: , 201<\/p>\n
\n<\/p>\n EXHIBIT F-4<\/p>\n FORM OF
\nU.S. TAX COMPLIANCE CERTIFICATE<\/p>\n (For Non-U.S. Lenders That Are Partnerships For U.S. Federal
\nIncome Tax Purposes)<\/p>\n Reference is made to the Credit Agreement, dated as of November 30, 2011 (as
\namended, supplemented or otherwise modified from time to time (the “Credit
\nAgreement<\/u>“), among ADVENT SOFTWARE, INC. (the “Borrower<\/u>“), the
\nLenders parties thereto, the Documentation Agent and the Syndication Agent named
\ntherein and JPMORGAN CHASE BANK, N.A., as administrative agent (in such
\ncapacity, the “Administrative Agent<\/u>“). Unless otherwise defined herein,
\nterms defined in the Credit Agreement and used herein shall have the meanings
\ngiven to them in the Credit Agreement.<\/p>\n Pursuant to the provisions of Section 2.19 of the Credit Agreement, the
\nundersigned hereby certifies that (i) it is the sole record owner of the Loan(s)
\n(as well as any Note(s) evidencing such Loan(s)) in respect of which it is
\nproviding this certificate, (ii) its direct or indirect partners\/members are the
\nsole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such
\nLoan(s)), (iii) with respect to the extension of credit pursuant to this Credit
\nAgreement or any other Loan Document, neither the undersigned nor any of its
\ndirect or indirect partners\/members is a bank extending credit pursuant to a
\nloan agreement entered into in the ordinary course of its trade or business
\nwithin the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct
\nor indirect partners\/members is a ten percent shareholder of the Borrower within
\nthe meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or
\nindirect partners\/members is a controlled foreign corporation related to the
\nBorrower as described in Section 881(c)(3)(C) of the Code.<\/p>\n The undersigned has furnished the Administrative Agent and the Borrower with
\nIRS Form W-8IMY accompanied by one of the following forms from each of its
\npartners\/members that is claiming the portfolio interest exemption: (i) an IRS
\nForm W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from
\neach of such partner’s\/member’s beneficial owners that is claiming the portfolio
\ninterest exemption. By executing this certificate, the undersigned agrees that
\n(1) if the information provided on this certificate changes, the undersigned
\nshall promptly so inform the Borrower and the Administrative Agent, and (2) the
\nundersigned shall have at all times furnished the Borrower and the
\nAdministrative Agent with a properly completed and currently effective
\ncertificate in either the calendar year in which each payment is to be made to
\nthe undersigned, or in either of the two calendar years preceding such payments.\n<\/p>\n [NAME OF LENDER]<\/p>\n \n\n\n| \n By:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Name:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | \n Title:<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Date: , 201<\/p>\n
\n<\/p>\n EXHIBIT G-1<\/p>\n FORM OF
\nINCREASED FACILITY ACTIVATION NOTICE:INCREMENTAL TERM LOANS<\/strong><\/p>\nTo: JPMorgan Chase Bank, N.A., as Administrative Agent
\nunder the Credit Agreement referred to below<\/p>\n Reference is made to the Credit Agreement, dated as of November 30, 2011 (as
\namended, supplemented or modified from time to time, the “Credit
\nAgreement<\/u>“), among Advent Software, Inc. (the “Borrower<\/u>“), the
\nseveral banks and other financial institutions or entities parties thereto (the
\n“Lenders<\/u>“), the Documentation Agent and the Syndication Agent named | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |