CREDIT AGREEMENT by and among GLOBAL POWER EQUIPMENT GROUP INC., as the Borrower and the other Credit Parties hereto from time to time, as Guarantors and the LENDERS party hereto from time to time and MORGAN STANLEY SENIOR FUNDING, INC., as Lead...

Exhibit 10.1

CREDIT AGREEMENT

by and among

GLOBAL POWER EQUIPMENT GROUP INC.,

as the Borrower

and

the other Credit Parties hereto from time to time,

as Guarantors

and

the LENDERS party hereto from time to time

and

XXXXXX XXXXXXX SENIOR FUNDING, INC.,

as Lead Arranger, Bookrunner and Administrative Agent

and

XXXXXX XXXXXXX & CO. INCORPORATED,

as Collateral Agent

and

THE CIT GROUP/BUSINESS CREDIT INC.,

as Syndication Agent and Revolving Agent

and

GENERAL ELECTRIC CAPITAL CORPORATION,

as Documentation Agent

Dated as of January 22, 2008

TABLE OF CONTENTS


		Page

ARTICLE I

THE FACILITY

Section 1.01.	Revolving Loans	2
Section 1.02.	Term Loans	4
Section 1.03.	Use of Proceeds	6
Section 1.04.	Promise to Pay	6
Section 1.05.	Notes	6
Section 1.06.	Letters of Credit	7
Section 1.07.	Intentionally Omitted	11
Section 1.08.	Intentionally Omitted	11
Section 1.09.	Allocation of Proceeds of Collateral and Payments	11
Section 1.10.	Limitations on LIBOR Loans	14

ARTICLE II

PAYMENTS AND OTHER COMPENSATION

Section 2.01.	Voluntary Prepayments/Reductions of Commitments	14
Section 2.02.	Mandatory Prepayments	15
Section 2.03.	Prepayment Fees	16
Section 2.04.	Payments	17
Section 2.05.	Taxes	18

ARTICLE III

INTEREST

Section 3.01.	Interest on the Loans and Other Obligations	20
Section 3.02.	Conversion or Continuation	21
Section 3.03.	Break Funding Payments	22
Section 3.04.	Increased Costs; Illegality	22
Section 3.05.	Replacement of Lenders	24
Section 3.06.	Fees	24

ARTICLE IV

CONDITIONS TO LOANS

Section 4.01.	Conditions Precedent to the Initial Loans	25
Section 4.02.	Conditions Precedent to Revolving Loans and Issuances, Renewals or Extensions of Letters of Credit	30
Section 4.03.	Post Closing Ratings Condition	31


ARTICLE V

REPRESENTATIONS AND WARRANTIES

Section 5.01.	Representations and Warranties	31

ARTICLE VI

REPORTING COVENANTS

Section 6.01.	Financial Statements	41
Section 6.02.	Other Financial Information	43
Section 6.03.	Defaults, Events of Default	44
Section 6.04.	Lawsuits	44
Section 6.05.	Insurance	44
Section 6.06.	Environmental Notices	45
Section 6.07.	Labor Matters	45
Section 6.08.	Other Information	45

ARTICLE VII

AFFIRMATIVE COVENANTS

Section 7.01.	Compliance with Laws	46
Section 7.02.	Payment of Taxes and Claims	46
Section 7.03.	Preservation of Corporate Existence	47
Section 7.04.	Inspection of Property; Books and Records; Discussions	47
Section 7.05.	Maintenance of Properties	47
Section 7.06.	Further Assurances	48
Section 7.07.	Additional Security; Additional Guarantees; Further Assurances	48
Section 7.08.	Powers; Conduct of Business	50
Section 7.09.	Use of Proceeds	50
Section 7.10.	Environmental	50
Section 7.11.	Fiscal Year	50
Section 7.12.	Maintenance of Insurance	50
Section 7.13.	Change in Collateral; Collateral Records	51
Section 7.14.	Formation of Subsidiaries	51
Section 7.15.	Cash Management	51

ARTICLE VIII

NEGATIVE COVENANTS

Section 8.01.	Liens	52


Section 8.02.	Investments	54
Section 8.03.	Indebtedness	55
Section 8.04.	Fundamental Changes and Acquisitions	56
Section 8.05.	Dispositions	57
Section 8.06.	Restricted Payments	57
Section 8.07.	Amendment of Governing Documents	57
Section 8.08.	Change in Nature of Business	58
Section 8.09.	Transactions with Affiliates	58
Section 8.10.	Limitations on Restricted Actions	58
Section 8.11.	Sale-Leasebacks; Off-Balance Sheet Obligation	58
Section 8.12.	Impairment of Security Interests	58
Section 8.13.	Ownership of Subsidiaries and Other Restrictions Relating to the Subsidiaries	59
Section 8.14.	Limitations on Dividends and Distributions and Other Payment Restrictions Affecting Subsidiaries	59
Section 8.15.	Limitation on Issuance of Capital Stock	59
Section 8.16.	Federal Reserve Regulations	60
Section 8.17.	Investment Company Act of 1940	60
Section 8.18.	Change Name	60

ARTICLE IX

FINANCIAL COVENANTS

Section 9.01.	Total Leverage Ratio	60
Section 9.02.	Fixed Charge Coverage Ratio	61
Section 9.03.	Minimum Liquidity	62

ARTICLE X

EVENTS OF DEFAULT, RIGHTS AND REMEDIES

Section 10.01.	Events of Default	63
Section 10.02.	Remedies	67
Section 10.03.	Waivers by the Credit Parties	67

ARTICLE XI

GUARANTY OF OBLIGATIONS OF BORROWER

Section 11.01.	Guaranty	68
Section 11.02.	Nature of Liability	68
Section 11.03.	Independent Obligation	69
Section 11.04.	Demand by the Administrative Agent, the Revolving Agent or the Secured Parties	69
Section 11.05.	Enforcement of Guaranty	70

iii


Section 11.06.	Waiver	70
Section 11.07.	Benefit of Guaranty	70
Section 11.08.	Modification of Guaranteed Obligations, Etc.	71
Section 11.09.	Reinstatement	71
Section 11.10.	Waiver of Subrogation, Etc.	72
Section 11.11.	Election of Remedies	73
Section 11.12.	Limitation on Amount Guaranteed; Contribution by Guarantors	73
Section 11.13.	Additional Waivers	73

ARTICLE XII

THE AGENTS

Section 12.01.	Appointment of Agents	74
Section 12.02.	Agents’ Reliance, Etc.	75
Section 12.03.	Agents in Individual Capacities	75
Section 12.04.	Lender Credit Decision	76
Section 12.05.	Costs and Expenses; Indemnification	76
Section 12.06.	Successor Agents	77
Section 12.07.	Collateral Matters	79
Section 12.08.	Collateral Restrictions on Actions by the Agents and the Participating Lenders; Sharing Payments	80
Section 12.09.	Several Obligations; No Liability	80

ARTICLE XIII

MISCELLANEOUS

Section 13.01.	Notices, Etc.	81
Section 13.02.	Amendments, Etc.	83
Section 13.03.	Non-Consenting Lenders; Defaulting Lenders	85
Section 13.04.	No Waiver; Remedies, Etc.	86
Section 13.05.	Expenses; Taxes; Attorneys’ Fees	86
Section 13.06.	Right of Set-Off	87
Section 13.07.	Severability	87
Section 13.08.	Complete Agreement; Sale of Interest	87
Section 13.09.	Binding Effect; Assignment; Register	87
Section 13.10.	Counterparts	90
Section 13.11.	GOVERNING LAW	90
Section 13.12.	CONSENT TO JURISDICTION, SERVICE OF PROCESS AND VENUE	90
Section 13.13.	WAIVER OF JURY TRIAL, ETC.	91
Section 13.14.	Consent	91
Section 13.15.	Interpretation	91
Section 13.16.	Reinstatement; Certain Payments	91
Section 13.17.	Indemnification	92


Section 13.18.	Interest	93
Section 13.19.	Records	94
Section 13.20.	Confidentiality	94
Section 13.21.	Lender Advertising	95
Section 13.22.	Common Enterprise	95
Section 13.23.	USA PATRIOT ACT	95
Section 13.24.	Survival of Representations, Warranties Covenants and Obligations	95

ARTICLE XIV

DEFINITIONS; CERTAIN TERMS

Section 14.01.	Definitions	96
Section 14.02.	Terms Generally	125
Section 14.03.	Accounting and Other Terms	125
Section 14.04.	Time References	125

CREDIT AGREEMENT

This Credit Agreement, dated as of January 22, 2008 (as it may be amended, restated, modified, supplemented or extended from time to time, including all schedules hereto, or otherwise modified, this “Agreement”), by and among GLOBAL POWER EQUIPMENT GROUP INC., a corporation formed under the laws of Delaware (the “Company” or the “Borrower”), certain Subsidiaries of the Company party hereto from time to time, as Guarantors, the Lenders party hereto from time to time, XXXXXX XXXXXXX SENIOR FUNDING, INC., a corporation formed under the laws of Delaware, as lead arranger and bookrunner (in such capacity, the “Lead Arranger”) and as administrative agent for the Lenders (in such capacity, together with its successors and assigns, if any, the “Administrative Agent”), XXXXXX XXXXXXX & CO. INCORPORATED, a corporation formed under the laws of Delaware, as collateral agent for the Secured Parties (in such capacity, together with its successors and assigns, if any, the “Collateral Agent”), THE CIT GROUP/BUSINESS CREDIT, INC. a corporation formed under the laws of Delaware, as syndication agent (in such capacity, the “Syndication Agent”) and as revolving agent for the Revolving Lenders (in such capacity, together with its successors and assigns, if any, the “Revolving Agent”) and GENERAL ELECTRIC CAPITAL CORPORATION, a corporation formed under the laws of Delaware, as documentation agent.

RECITALS

WHEREAS, on September 28, 2006 (the “Commencement Date”) the Borrower and certain of its Subsidiaries filed with the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”), voluntary petitions for relief under Chapter 11 of the Bankruptcy Code, Case No. 06-11045 (BLS) (the “Chapter 11 Cases”);

WHEREAS, on December 7, 2006, the Borrower entered into a post-petition loan and security agreement (the “Post-Petition Loan Agreement”) with the parties thereto;

WHEREAS, on December 21, 2007, the Bankruptcy Court entered an order (the “Confirmation Order”) confirming the First Amended Joint Chapter 11 Plan of Reorganization for Global Power Equipment Group Inc. and its Affiliated Debtors (the “Plan of Reorganization”);

WHEREAS, pursuant to the Confirmation Order, the Borrower and such Subsidiaries will exit from the Chapter 11 Cases and all claims and liabilities against the Borrower and such Subsidiaries that arose prior to the date of the Confirmation Order will be satisfied, discharged and released in full, except as set forth therein or in the Plan of Reorganization;

WHEREAS, in accordance with the Confirmation Order, the Borrower has requested that the Lenders make available to it the Commitments, on the terms and conditions set forth herein, to, among other things, pay in full all obligations under the Post-Petition Loan Agreement, fund payments required under the Plan of Reorganization and fund working capital requirements and other general corporate purposes of the Borrower and its Subsidiaries;

WHEREAS, the Administrative Agent and the Lenders are willing to make the Loans to the Borrower upon the terms and conditions set forth herein.

NOW THEREFORE, in consideration of the premises and the covenants and agreements contained herein and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE I

THE FACILITY

Section 1.01. Revolving Loans.

(a) Revolving Loan Commitments. Subject to the terms and conditions of this Agreement, each Revolving Lender hereby severally agrees to make loans (each a “Revolving Loan”), to the Borrower from time to time on any Business Day during the Availability Period in an aggregate principal amount not to exceed at any time such Revolving Lender’s Pro Rata Share of the lesser of (i) ten million Dollars ($10,000,000) or (ii) the Available Commitments; provided that such aggregate principal amount does not result in such Revolving Lender’s Pro Rata Share of the Aggregate Revolving Exposure exceeding such Revolving Lender’s Revolving Commitment as of such date or the Aggregate Revolving Exposure of all Revolving Lenders exceeding the Total Revolving Commitment of all Revolving Lenders; provided further that no Revolving Loans shall be made on the Closing Date. Within the foregoing limits, upon the terms of this Agreement and the other Loan Documents and subject to the conditions set forth in Section 4.02, from time to time prior to the Maturity Date, the Borrower may borrow, prepay and reborrow Revolving Loans.

(b) Notice of Borrowing Revolving Loans. If the Borrower desires to borrow a Revolving Loan under Section 1.01(a), the Borrower shall deliver to the Revolving Agent a Notice of Borrowing substantially in the form attached as Exhibit A, signed by the Borrower, not later than 11:00 a.m., New York City time, (i) in the case of a request for an Alternate Base Rate Loan, on the Business Day prior to the proposed Funding Date or (ii) in the case of a request for LIBOR Rate Loans, at least three (3) Business Days prior to the proposed Funding Date. Such Notice of Borrowing shall specify (A) the aggregate principal amount of Revolving Loans to be made on the Funding Date; (B) whether such Revolving Loans shall be comprised of LIBOR Rate Loans or Alternate Base Rate Loans; (C) the proposed Funding Date, which must be a Business Day; and (D) if applicable, the LIBOR Period for such Revolving Loans. The Revolving Loans to be made on any Funding Date shall be in a minimum amount of $250,000 and shall be in an integral multiple of $50,000 in excess thereof. In lieu of delivering such a Notice of Borrowing, the Borrower may give the Revolving Agent telephonic notice of any proposed borrowing by the time required under this Section 1.01(b) if the Borrower confirms such notice by delivery of the Notice of Borrowing to the Revolving Agent promptly, but in no event later than 2:00 p.m., New York City time, on the same day. Each Notice of Borrowing (or telephonic notice in lieu thereof) given pursuant to this Section 1.01(b) shall be irrevocable and binding on the Borrower.

(i) The Revolving Agent shall promptly notify each Revolving Lender of the amount of each borrowing of Revolving Loans. Each Revolving Lender shall deposit into an account specified by the Revolving Agent an amount equal to its Pro Rata Share of the amount of such borrowing in immediately available funds, not later than 10:00 a.m., New York City time, on the Funding Date applicable thereto. Subject to the satisfaction of the conditions precedent set forth in Article IV, the Revolving Agent shall make the proceeds of such amounts received by it available to the Borrower on such Funding Date.

(ii) Except as otherwise provided in this Section 1.01(c)(ii), all Revolving Loans under this Agreement shall be made by the Revolving Lenders simultaneously and proportionately to their Pro Rata Shares. The failure of any Revolving Lender to deposit the amount described in clause (i) above with the Revolving Agent on the applicable Funding Date shall not relieve any other Revolving Lender of its obligations hereunder to make its Revolving Loan on such Funding Date. No Revolving Lender shall be responsible for any failure by any other Revolving Lender to perform its obligation to make a Revolving Loan hereunder nor shall the Revolving Commitment of any Revolving Lender be increased or decreased as a result of any such failure.

(d) Funding of Revolving Loans. Unless the Revolving Agent shall have received notice from a Revolving Lender, prior to the requested Funding Date for any Revolving Loan, that such Lender will not make available to the Revolving Agent such Revolving Lender’s Pro Rata Share of such Revolving Loan, the Revolving Agent may, but shall not be required to, assume that such Revolving Lender has made such share available on such date in accordance with Section 1.01(c) and may in its sole discretion, but shall not be required to, in reliance upon such assumption, make available to the Borrower a corresponding amount. If any Revolving Lender either does not make its share of the applicable Revolving Loan available to the Revolving Agent or delays in doing so past 4:00 p.m., New York City time, on the Funding Date (such Lender (until it makes such share available) hereinafter referred to as a “Revolving Defaulting Lender”), then the Revolving Agent promptly shall notify the Administrative Agent and the Borrower of such default. If the Revolving Agent has, in its sole discretion, made available to the Borrower an amount corresponding to such Revolving Defaulting Lender’s Pro Rata Share of the Revolving Loan, then each of the Revolving Defaulting Lender and the Borrower agrees to pay to the Revolving Agent forthwith on demand such corresponding amount with interest thereon, on each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Revolving Agent, at:

(i) in the case of the Revolving Defaulting Lender, the Federal Funds Rate; or

(ii) in the case of the Borrower, the interest rate applicable to Alternate Base Rate Loans.

If, with respect to the immediately preceding sentence, the Borrower pays such amount (including interest thereon) to the Revolving Agent, then the Revolving Defaulting Lender shall indemnify and hold harmless the Borrower from and against such amount, and if such Revolving Defaulting Lender pays such amount to the Revolving Agent, then such amount shall constitute such Revolving Defaulting Lender’s Revolving Loan.

(e) Repayment of Revolving Loans; Termination of Revolving Commitments. The Borrower shall pay the principal amount of the Revolving Loans in full on the Maturity Date and the Revolving Commitments shall terminate on the Maturity Date.

Section 1.02. Term Loans.

(a) Loan Commitment. Subject to the terms and conditions set forth herein, each Term Lender hereby severally agrees to make a term loan (each, a “Term Loan”) in the principal amount set forth opposite each such Term Lender’s name on Schedule A hereto to the Borrower on the Closing Date, in accordance with this Section 1.02. The aggregate principal amount of the Term Loans to be advanced shall not exceed ninety million Dollars ($90,000,000). Amounts repaid or prepaid under this Section 1.02 may not be reborrowed.

(b) Notice of Borrowing. If the Borrower desires to borrow under Section 1.02(a), the Borrower shall deliver to the Administrative Agent a Notice of Borrowing signed by the Borrower in substantially the form attached as Exhibit A (i) not later than 2:00 p.m., New York City time, at least three (3) Business Days in advance of the Closing Date, in the case of LIBOR Rate Loans and (ii) not later than 11:00 a.m., New York City time, at least one (1) Business Day prior to the Closing Date, in the case of Alternate Base Rate Loans. Such Notice of Borrowing shall specify: (A) the amount of the proposed Term Loans; (B) the proposed Closing Date, which must be a Business Day; and (C) in the case of LIBOR Rate Loans, the LIBOR Period applicable to such Term Loan. The Notice of Borrowing given pursuant to this Section 1.02(b) shall be irrevocable and binding on the Borrower.

(i) The Administrative Agent promptly shall notify each Term Lender of the amount of Term Loans requested by the Borrower. Each Term Lender shall deposit into an account specified by the Administrative Agent an amount equal to its Pro Rata Share of the Term Loan Commitments, in immediately available funds, not later than 1:00 p.m., New York City time, on the Closing Date. Subject to the satisfaction of the conditions precedent set forth in Article IV, the Administrative Agent shall make the proceeds of the Term Loans received by it available to the Borrower on the Closing Date.

(ii) Except as otherwise provided in this Section 1.02(c), all Term Loans under this Agreement shall be made by the Term Lenders simultaneously and proportionately to their Pro Rata Shares. The failure of any Term Lender to deposit the amount described in clause (i) above with the Administrative Agent on the Closing Date shall not relieve any other Term Lender of its obligations hereunder to make its Term Loan on the Closing Date. No Term Lender shall be responsible for any failure by any other Term Lender to perform its obligation to make a Term Loan hereunder nor shall the Term Loan Commitment of any Term Lender be increased or decreased as a result of any such failure.

(d) Funding of Term Loans. Unless the Administrative Agent shall have received notice from a Term Lender, prior to the Closing Date, that such Term Lender will not make available to the Administrative Agent such Term Lender’s Pro Rata Share of such Term Loans, the Administrative Agent may, but shall not be required to, assume that such Term Lender has made such Pro Rata Share available on such date in accordance with Section 1.02(c) and may in its sole discretion, but shall not be required to, in reliance upon such assumption, make available to the Borrower a corresponding amount. If any Term Lender either does not make its Pro Rata Share of the Term Loans available to the Administrative Agent or delays in doing so past 3:00 p.m., New York City time, on the Closing Date (such Term Lender (until it makes such Pro Rata Share available) hereinafter referred to as a “Term Defaulting Lender”), then the Administrative Agent shall immediately notify the Borrower of such default. If the Administrative Agent has, in its sole discretion, made available to the Borrower an amount corresponding to such Term Defaulting Lender’s Pro Rata Share of the Term Loans, then each of the Term Defaulting Lender and the Borrower agrees to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, on each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at:

(i) in the case of the Term Defaulting Lender, the Federal Funds Rate; or

(ii) in the case of the Borrower, the interest rate applicable to Alternate Base Rate Loans.

If, with respect to the immediately preceding sentence, the Borrower pays such amount and interest thereon to the Administrative Agent, then the Term Defaulting Lender shall indemnify and hold harmless the Borrower from and against such amount and interest thereon, and if such Term Defaulting Lender pays such amount to the Administrative Agent, then such amount shall constitute such Term Defaulting Lender’s Pro Rata Share of the Term Loans.

(e) Repayment of Term Loans. The Borrower shall pay the aggregate principal amount of the Term Loans on the dates and in the amounts set forth below:


Date	Loan Scheduled Repayment
March 31, 2008	$	1,250,000
June 30, 2008	$	1,250,000
September 30, 2008	$	1,250,000
December 31, 2008	$	1,250,000
March 31, 2009	$	1,250,000
June 30, 2009	$	1,250,000
September 30, 2009	$	1,250,000
December 31, 2009	$	1,250,000
March 31, 2010	$	1,250,000
June 30, 2010	$	1,250,000
September 30, 2010	$	1,250,000
December 31, 2010	$	1,250,000
March 31, 2011	$	1,250,000
June 30, 2011	$	1,250,000
September 30, 2011	$	1,250,000
December 31, 2011	$	1,250,000
March 31, 2012	$	1,250,000
June 30, 2012	$	1,250,000
September 30, 2012	$	1,250,000
December 31, 2012	$	1,250,000
March 31, 2013	$	1,250,000
June 30, 2013	$	1,250,000
September 30, 2013	$	1,250,000
December 31, 2013	$	1,250,000
Maturity Date		All amounts outstanding in respect of the Term Loans.

Section 1.03. Use of Proceeds. Proceeds of the Loans shall be utilized to(a) pay in full all amounts and obligations outstanding under the Post-Petition Loan Agreement, (b) pay or satisfy claims and other obligations in connection with the Borrower’s and certain of its Subsidiaries emergence from bankruptcy as required by the Plan of Reorganization, (c) fund working capital and ongoing corporate needs following the Borrower’s and such Subsidiaries emergence from bankruptcy, and (d) pay fees and expenses associated with the transactions contemplated by this Agreement.

Section 1.04. Promise to Pay. The Borrower agrees to pay (a) the principal amount of the Term Loans on the dates and in the amounts set forth in Section 1.02(e), (b) all interest, fees and expenses (including without limitation Participating Lender Expenses) payable under this Agreement or otherwise under any other Loan Document on demand in accordance with the terms of this Agreement, the other Loan Documents and any applicable Note, (c) cash to secure and collateralize Letters of Credit as and when requested under this Agreement or any underlying documentation with respect to Letters of Credit and (d) the Loans and all other Obligations (other than Hedging Obligations and indemnification obligations and other contingent Obligations under the Loan Documents, in each case, that are not then due pursuant to their terms) on the Maturity Date.

Section 1.05. Notes.

(a) The Borrower’s obligation to pay the principal of, and interest on, the Loans made to the Borrower by each Lender shall be set forth (i) with respect to the Term Loans, on the Term Register maintained by the Administrative Agent and (ii) with respect to Revolving Loans, on the Revolving Register maintained by the Revolving Agent and, subject to the provisions of Section 1.05(b), (c) and (d), shall be evidenced by, at the request of the Revolving Agent or the Administrative Agent, as the case may be, a promissory note substantially in the form of Exhibit B for Revolving Loans (each, a “Revolving Note”) and Exhibit C for Term Loans (each, a “Term Note”), with blanks appropriately completed in conformity herewith (each Revolving Note or Term Note, as the same may be amended, supplemented or otherwise modified from time to time, a “Note”).

(b) The Revolving Note issued to each Revolving Lender shall (i) be executed by the Borrower, (ii) be payable to such Revolving Lender or its registered assigns and be dated the Closing Date (or in the case of any Revolving Note issued after the Closing Date, the date of issuance thereof), (iii) be in a stated principal amount equal to the Revolving Commitment of such Revolving Lender on the date of the issuance thereof and be payable in the principal amount of the Revolving Loan evidenced thereby from time to time, (iv) mature on the Maturity Date, (v) bear interest as provided herein and (vi) be entitled to the benefits of this Agreement and the other Loan Documents.

(c) The Term Note issued to each Term Lender shall (i) be executed by the Borrower, (ii) be payable to such Term Lender or its registered assigns and be dated the Closing Date (or, in the case of any Term Note issued after the Closing Date, the date of issuance thereof), (iii) be in a stated principal amount equal to the principal amount of the Term Loan of such Term Lender on the date of the issuance thereof and be payable in the principal amount of the Term Loan evidenced thereby from time to time, (iv) mature on the Maturity Date, (v) bear interest as provided for herein and (vi) be entitled to the benefits of this Agreement and the other Loan Documents.

(d) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement, Notes shall only be delivered to those Lenders that at any time specifically request the delivery of such Notes. The failure of any Lender to request or obtain a Note evidencing its Loans to the Borrower shall not affect or in any manner impair the obligations of the Borrower to pay the Loans (and all related Obligations) and shall not in any way affect the security or Guarantees provided pursuant to the Loan Documents. At any time if any Lender shall request the delivery of a Note to evidence any of its Loans, the Borrower promptly shall execute and deliver to that Lender the requested Note in the appropriate amount or amounts to evidence such Loans.

Section 1.06. Letters of Credit.

(a) Issuance. (i) Upon the terms and subject to the conditions of this Agreement, the Revolving Lenders agree to incur, from time to time during the Availability Period, upon the request of the Borrower, and for the Borrower’s account, Letter of Credit Obligations by issuing Letters of Credit through the Revolving Agent or an affiliate, bank or other legally authorized Person selected or approved by the Revolving Agent (each, an “L/C Issuer”) for the Borrower’s account; provided that each Revolving Lender shall, subject to the terms and conditions hereinafter set forth, purchase (or be deemed to have purchased) risk participations in all such Letters of Credit, as more fully described in paragraph (b)(ii) below. Letters of Credit shall be made such that the aggregate amount of all such Letter of Credit Obligations, plus the aggregate amount of any outstanding Revolving Loans, shall not at any time exceed the Available Commitments. No such Letter of Credit shall have an expiry date that is (A) more than one year following the date of issuance thereof, unless otherwise consented to in writing by the Revolving Agent in its sole discretion (subject to renewal provisions as described in Section 1.06(a)(ii)), or (B) later than the Maturity Date, unless otherwise consented to in writing by the Required Revolving Lenders (including with respect to customary evergreen provisions).

(ii) If the Borrower so requests in any applicable Letter of Credit Application, the relevant L/C Issuer shall agree to issue a Letter of Credit that has automatic renewal provisions (each, an “Auto-Renewal Letter of Credit”); provided that any such Auto-Renewal Letter of Credit must permit the relevant L/C Issuer to prevent any such renewal at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the relevant L/C Issuer, the Borrower shall not be required to make a specific request to the relevant L/C Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has been issued, the applicable Lenders shall be deemed to have authorized (but may not require) the relevant L/C Issuer to permit the renewal of such Letter of Credit at any time to an expiry date not later than the Maturity Date; provided that the relevant L/C Issuer shall not permit any such renewal if the relevant L/C Issuer has determined that it would have no obligation at such time to issue such Letter of Credit in its renewed form under the terms hereof.

(b) Advances Automatic; Participations. (i) In the event that any Revolving Lender shall make any payment on or pursuant to any Letter of Credit Obligation, such payment shall be deemed automatically to constitute a Revolving Loan to the Borrower (not taking into account the limitation on the maximum amount of cash borrowings set forth in Section 1.01(a)) under this Agreement regardless of whether a Default or Event of Default has occurred or is continuing and notwithstanding the Borrower’s failure to satisfy the conditions precedent set forth in Article IV. Each Revolving Lender shall be obligated to pay its Pro Rata Share of each Letter of Credit Obligation in accordance with this Agreement. The failure of any Revolving Lender to make available its Pro Rata Share of any such Revolving Loan under or in respect of a Letter of Credit shall not relieve any other Revolving Lender of its obligation hereunder to make available its Pro Rata Share thereof, but no Revolving Lender shall be responsible for the failure of any other Revolving Lender to make available such other Revolving Lender’s Pro Rata Share of any such payment.

(ii) If it shall be illegal or unlawful for the Borrower to incur a Revolving Loan as contemplated above or if it shall be illegal or unlawful for any Revolving Lender to be deemed to have assumed a ratable share of the reimbursement obligations owed to an L/C Issuer, then (A) immediately and without further action whatsoever, each Revolving Lender shall be deemed to have irrevocably and unconditionally purchased from such L/C Issuer an undivided interest and participation equal to such Revolving Lender’s Pro Rata Share (based on the Revolving Commitments) of the Letter of Credit Obligations in respect of all Letters of Credit then outstanding and (B) thereafter, immediately upon issuance of any Letter of Credit, each Revolving Lender shall be deemed to have irrevocably and unconditionally purchased from such L/C Issuer an undivided interest and participation in such Revolving Lender’s Pro Rata Share (based on the Revolving Commitments) of the Letter of Credit Obligations with respect to such Letter of Credit on the date of such issuance. Each Revolving Lender shall fund its participation in all payments or disbursements made under the Letters of Credit in the same manner as provided in Section 1.01 with respect to Revolving Loans.

(c) Letter of Credit Fees and Expenses. The Borrower agrees to pay to the Revolving Agent for the benefit of the Revolving Lenders, the fees set forth in Section 3.06(c) in connection with Letter of Credit Obligations. The Borrower agrees to pay to the Revolving Agent for the benefit of the L/C Issuer, (i) the fees set forth in Section 3.06(d) in connection with the issuance of Letters of Credit and, (ii) on demand, such reasonable fees (including all per annum fees), charges and expenses of the L/C Issuer customarily charged by the L/C Issuer in respect of the issuance, negotiation, acceptance, amendment, transfer and payment of Letters of Credit or otherwise payable pursuant to the application and related documentation under which any Letter of Credit is issued.

(d) Request for Incurrence of Letter of Credit Obligations. The Borrower shall give the Revolving Agent by 11:00 a.m., New York City time, at least two (2) Business Days’ prior written notice requesting the incurrence of any Letter of Credit Obligation. The notice shall be accompanied by the form of the Letter of Credit (which shall be acceptable to the L/C Issuer) and a completed application in the form set forth in Exhibit D (each a “Letter of Credit Application”). Notwithstanding anything contained herein to the contrary, Letter of Credit Applications by the Borrower, and approvals by the Revolving Agent and the L/C Issuer may be made and transmitted pursuant to electronic codes and security measures mutually agreed upon and established by and among the Borrower, the Revolving Agent and the L/C Issuer. In the case of any conflict between any Letter of Credit or application therefor, and this Agreement, this Agreement shall prevail.

(e) Obligation Absolute. The obligation of the Borrower to reimburse the Revolving Lenders and the L/C Issuers for payments made with respect to any Letter of Credit Obligation shall be absolute, unconditional and irrevocable, without necessity of presentment, demand, protest or other formalities. The L/C Issuer shall promptly notify the Borrower of any claims or draws under any Letter of Credit. The Borrower shall reimburse the L/C Issuer for any claims or draws on any Letter of Credit by no later than 3:00 p.m. New York City time on the date such draw is made. The obligations of each Revolving Lender to make payments to the Revolving Agent and the L/C Issuer with respect to Letters of Credit shall be unconditional and irrevocable. All obligations of the Borrower and the Revolving Lenders shall be paid strictly in accordance with the terms hereof irrespective of any fact or circumstance whatsoever, including the following:

(i) any lack of validity or enforceability of any Letter of Credit or this Agreement or the other Loan Documents or any other agreement;

(ii) the existence of any claim, setoff, defense or other right that the Borrower or any of its respective Affiliates or any Lender may at any time have against a beneficiary or any transferee of any Letter of Credit (or any Persons or entities for whom any such transferee may be acting), Revolving Agent, any Lender, any L/C Issuer, or any other Person, whether in connection with this Agreement, the Letter of Credit, the transactions contemplated herein or therein or any unrelated transaction (including any underlying transaction between the Borrower or any of its respective Affiliates and the beneficiary for which the Letter of Credit was procured);

(iii) any draft, demand, certificate or any other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;

(iv) payment by any L/C Issuer under any Letter of Credit or guaranty thereof against presentation of a demand, draft or certificate or other document that does not comply with the terms of such Letter of Credit or such guaranty;

(v) any other circumstance or event whatsoever, that is similar to any of the foregoing; or

(vi) the fact that a Default or an Event of Default has occurred and is continuing.

(f) Indemnification; Nature of Lenders’ Duties. (i) In addition to amounts payable as elsewhere provided in the Agreement, the Borrower hereby agrees to pay and to protect, indemnify, and save harmless the Revolving Agent and each Revolving Lender and L/C Issuer from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees and allocated costs of internal counsel) that the Revolving Agent or any Revolving Lender or any L/C Issuer may incur or be subject to as a consequence, direct or indirect, of (A) the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of the Revolving Agent or any Revolving Lender seeking indemnification or of any L/C Issuer to honor a demand for payment under any Letter of Credit or guaranty thereof as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority, in each case other than to the extent solely as a result of the gross negligence or willful misconduct of the Revolving Agent or such Revolving Lender (as finally determined by a court of competent jurisdiction).

(ii) As between the Revolving Agent and any Revolving Lender and any L/C Issuer and the Borrower, the Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by beneficiaries of any Letter of Credit. In furtherance and not in limitation of the foregoing, to the fullest extent permitted by law, neither the Revolving Agent nor any Revolving Lender nor any L/C Issuer shall be responsible for: (A) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document issued by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (C) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to demand payment under such Letter of Credit; provided that in the case of any payment by a Revolving Lender or L/C Issuer under any Letter of Credit, such Revolving Lender or L/C Issuer shall be liable to the extent such payment was made solely as a result of its gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction) in determining that the demand for payment under such Letter of Credit thereof substantially complies on its face with any applicable requirements for a demand for payment under such Letter of Credit; (D) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they may be in cipher; (E) errors in interpretation of technical terms; (F) any loss or delay in the transmission or otherwise of any document required in order to make a payment under any Letter of Credit or of the proceeds thereof; (G) the credit of the proceeds of any drawing under any Letter of Credit; and (H) any consequences arising from causes beyond the control of the Revolving Agent or any Revolving Lender or L/C Issuer. None of the above shall affect, impair, or prevent the vesting of any of the Agents’ or any Lender’s or L/C Issuer’s rights or powers hereunder or under this Agreement.

(g) Cash Collateral. In the event that any Letter of Credit Obligations, whether or not then due or payable, shall for any reason be outstanding on the Maturity Date, the Borrower will either (i) cause the underlying Letter of Credit to be returned and canceled and each corresponding Letter of Credit Obligation to be terminated, or (ii) pay to the Collateral Agent, for the benefit of the Secured Parties, in immediately available funds, an amount equal to 105% of the maximum amount then available to be drawn under all Letters of Credit not so returned and canceled to be held by the Collateral Agent, for the benefit of the Secured Parties, as cash collateral in an account of the Collateral Agent (the “Cash Collateral Account”).

Section 1.07. Intentionally Omitted.

Section 1.08. Intentionally Omitted.

Section 1.09. Allocation of Proceeds of Collateral and Payments.

(a) At any time after an Event of Default has occurred and is continuing and after the Commitments have terminated, whether at their stated maturity, by acceleration, automatically or otherwise in accordance with the terms hereof, the proceeds of the Collateral that are received by any Agent shall be paid over or delivered to the Collateral Agent for distribution as follows:

FIRST, on a pro rata basis, to the payment of all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) of the Agents constituting Participating Lender Expenses, and to the payment of any fees then due to any Agent;

SECOND, on a pro rata basis, to the payment of all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) of the Lenders constituting Participating Lender Expenses, and to the payment of any fees then due to any Lender;

THIRD, on a pro rata basis, to the payment of the Borrower’s Obligations to the Revolving Lenders and the L/C Issuer consisting of accrued fees and interest (other than Default Interest) then due with respect to Revolving Loans and Letters of Credit (including interest (other than Default Interest) that, but for the filing of a petition in bankruptcy with respect to the Borrower or any of its Subsidiaries, would have accrued on the Revolving Loans and Letters of Credit (including any refinancing of such Obligations), whether or not a claim is allowed against such Person for such interest in the related bankruptcy proceeding);

FOURTH, on a pro rata basis, to the payment of interest (other than Default Interest) and accrued fees and all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) of each Hedging Agreement Provider then due in connection with obligations of the Credit Parties under Hedging Agreements not to exceed the Hedging Priority Amount;

FIFTH, on a pro rata basis, (i) to the payment of the outstanding principal amount of the Revolving Loans then due to the Revolving Lenders and the principal amount of any unreimbursed drawings under Letters of Credit then due to the Revolving Lenders and (ii) to fund the Cash Collateral Account of all outstanding Letters of Credit then due in an amount equal to 105% of the face amount;

SIXTH, on a pro rata basis, to the payment of the Hedging Obligations up to the Hedging Priority Amount, less amounts paid in the Fourth priority of this Section 1.09(a);

SEVENTH, on a pro rata basis, to the payment of all of the Borrower’s Obligations to the Term Lenders with respect to the Term Loans, including the outstanding principal amount, accrued fees and interest (other than Default Interest) then due of the Term Loans;

EIGHTH, on a pro rata basis, to the payment of all of the Borrower’s Obligations to the Lenders consisting of Default Interest then due, first, with respect to the Revolving Loans, second, with respect to the Hedging Agreements (to the extent accrued on the portion of the Hedging Agreements constituting the Hedging Priority Amounts), and third, with respect to the Term Loan;

NINTH, to all other Obligations, if any, which shall have become due and payable under the Loan Documents or otherwise and not otherwise repaid;

TENTH, to the payment of Hedging Obligations, if any, that comprise the Excess Hedging Amount; and

ELEVENTH, to the payment of the surplus, if any, to the Borrower or whomever may be lawfully entitled to receive such surplus.

(b) All payments and proceeds in respect of the Obligations, other than those specified in Section 1.09(a) above, shall be applied, as specified by the Borrower or, at any other time or if not so specified, shall be paid over or delivered to the Administrative Agent for distribution as follows:

THIRD, on a pro rata basis, to the payment of all of the Borrower’s Obligations to the Lenders and the L/C Issuer consisting of accrued fees and interest (other than Default Interest) then due with respect to the Loans (including interest (other than Default Interest) that, but for the filing of a petition in bankruptcy with respect to the Borrower or any of its Subsidiaries, would have accrued on the Loans (including any refinancing of such Obligations), whether or not a claim is allowed against such Person for such interest in the related bankruptcy proceeding);

FIFTH, on a pro rata basis, (i) to the payment of the outstanding principal amount of the Loans then due to the Lenders and the principal amount of any unreimbursed drawings under Letters of Credit then due to the Revolving Lenders and (ii) to fund the Cash Collateral Account of all outstanding Letters of Credit then due in an amount equal to 105% of the face amount;

SIXTH, on a pro rata basis, to the payment of (i) all of the Borrower’s Obligations to the Lenders consisting of Default Interest then due with respect to the Loans, and (ii) Hedging Obligations up to the Hedging Priority Amount, less amounts paid in the Fourth priority of this Section 1.09(b);

SEVENTH, to all other Obligations, if any, which shall have become due and payable under the Loan Documents or otherwise and not otherwise repaid;

EIGHTH, to the payment of Hedging Obligations, if any, that comprise the Excess Hedging Amount; and

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

(c) In carrying out the provisions of Sections 1.09(a) and (b), (i) amounts received shall be applied equally and ratably in the numerical order provided until exhausted prior to the application to the next succeeding category; (ii) amounts payable to the Lenders shall be applied to each Lender in accordance with its Pro Rata Share; (iii) amounts payable to each of the Hedging Agreement Providers shall be applied on a pro rata basis; and (iv) to the extent that any amounts pursuant to clause FIFTH of Section 1.09(a) or clause FIFTH of Section 1.09(b) above are attributable to the cash collateralization of issued but undrawn amount of outstanding Letters of Credit, such amounts shall be paid to the Revolving Agent and applied (1) first, to all ongoing fees and expenses of the L/C Issuer and the Revolving Agent in connection with the outstanding Letters of Credit, (2) second, to reimburse the L/C Issuer from time to time for any drawings under such Letters of Credit, and (3) third, following the expiration of all Letters of Credit, to the Collateral Agent for all other obligations of the types described above in the manner provided in this Section 1.09 or otherwise reimbursed to the Borrower.

(d) No Defaulting Lender shall be entitled to any payments under this Section 1.09 during the time that the default of such Defaulting Lender is continuing.

Section 1.10. Limitations on LIBOR Loans. No more than twelve (12) LIBOR Rate Loans may be in effect at any time. For purposes hereof, LIBOR Rate Loans with different LIBOR Periods shall be considered as separate LIBOR Rate Loans, even if they shall begin on the same date or have the same duration, although borrowings, extensions and conversions may, in accordance with the provisions hereof, be combined at the end of existing LIBOR Periods to constitute a new LIBOR Rate Loan with a single LIBOR Period. The Borrower may only exercise the LIBOR option for LIBOR Rate Loans of at least one million Dollars ($1,000,000) and integral multiples of one million Dollars ($1,000,000) in excess thereof.

ARTICLE II

PAYMENTS AND OTHER COMPENSATION

Section 2.01. Voluntary Prepayments/Reductions of Commitments.

(a) Optional Prepayment of Term Loans. Subject to Section 1.09, the Borrower shall have the right, upon at least three (3) Business Days’ prior written notice by the Borrower to each of the Administrative Agent and the Revolving Agent, to voluntarily prepay all or any portion (in a minimum amount of $5,000,000 or such lesser amount as may then remain outstanding or integral multiples of $1,000,000 in excess thereof) of the Term Loans on any Business Day upon payment of the applicable Prepayment Fee pursuant to Section 2.03. Any voluntary prepayment of any Term Loan shall be accompanied by the payment of all accrued and unpaid interest with respect to the principal being prepaid through the date of prepayment and any applicable Prepayment Fee pursuant to Section 2.03. Any voluntary partial prepayment of any Term Loans shall be applied to the scheduled repayment of Term Loans in the inverse order of maturity thereof until all Term Loans are repaid in full.

(b) Optional Prepayment of Revolving Loans. As set forth in Section 1.01(a), at any time after the Closing Date, the Borrower may prepay, and thereafter reborrow, subject to the terms and conditions set forth herein (including Section 3.03), all or any portion of the Revolving Loans then outstanding.

(c) Optional Reduction of Revolving Commitments. The Borrower shall have the right, upon at least five (5) Business Days’ prior written notice by the Borrower to each of the Administrative Agent and the Revolving Agent to cancel the Total Revolving Commitment in full or to reduce the amount thereof; provided that the amount of the Total Revolving Commitment shall at no time be less than the sum of (i) the outstanding principal amount of all Revolving Loans plus (ii) the Letter of Credit Exposure. Partial reductions of the Total Revolving Commitment shall be in a minimum amount of $5,000,000 or such lesser amount as may then remain outstanding or integral multiples of $1,000,000 in excess thereof and shall reduce each Revolving Lender’s Revolving Commitment on a pro rata basis based upon such Revolving Lender’s Pro Rata Share. All cancellations or reductions shall be permanent. Any such notice of reduction shall be accompanied by the payment of the Unused Commitment Fee accrued through the date of such cancellation or reduction.

(d) Reduction of Term Loan Commitments. The Term Loan Commitments shall be automatically and permanently reduced to $0 on the Closing Date after giving effect to the incurrence of Term Loans on such date.

Section 2.02. Mandatory Prepayments.

(a) Prepayments from Asset Dispositions. Within five (5) Business Days after the receipt by a Credit Party or any Subsidiary of a Credit Party of any Net Cash Proceeds from an Asset Sale or Net Casualty/Condemnation Proceeds, the Borrower shall cause 100% of such Net Cash Proceeds or Net Casualty/Condemnation Proceeds to be applied to prepay the Loans; provided however that if the Borrower notifies each of the Administrative Agent and the Revolving Agent in writing within such five (5) Business Day period that the applicable Credit Party or Subsidiary has applied or intends to apply such Net Cash Proceeds to acquire, maintain, develop, construct, improve, upgrade, replace, repair or invest in long term assets used or useful in the business of such Credit Party or such applicable Subsidiary or any other Credit Party, then the applicable Credit Party or Subsidiary, shall, so long as no Event of Default shall have occurred and be continuing, be permitted to use such proceeds as notified to the Administrative Agent and the Revolving Agent within two hundred seventy (270) days of the receipt thereof; provided further, that to the extent such proceeds have not been used or irrevocably committed to be used for such a purpose within two hundred seventy (270) days of the receipt thereof, such Net Cash Proceeds or Net Casualty/Condemnation Proceeds shall be applied to prepay the Loans in accordance with Section 1.09. All prepayments under this Section 2.02(a) shall be accompanied by all accrued and unpaid interest on the Loans being prepaid and, in the case of any prepayment under this Section 2.02(a) resulting from the receipt of Net Cash Proceeds, the applicable Prepayment Fee (which, subject to Section 1.09, shall be deducted from such Net Cash Proceeds prior to the application of such Net Cash Proceeds in prepayment of the Loans in accordance with the terms of the preceding sentence).

(b) Prepayments from Incurrence of Indebtedness. Immediately upon the receipt by any Credit Party or any Subsidiary of a Credit Party of cash proceeds from the issuance or incurrence of any Indebtedness (other than Permitted Indebtedness), the Borrower shall prepay the Loans in an amount equal to 100% of the proceeds from such issuance or incurrence, net of taxes, underwriting discounts and commissions and other reasonable, out-of-pocket costs and expenses associated therewith. All such prepayments shall be accompanied by all accrued and unpaid interest on the Loans being prepaid and the applicable Prepayment Fee (which, subject to Section 1.09, shall be deducted from the cash proceeds prior to the application of such cash proceeds in prepayment of the Loans in accordance with the terms of the preceding sentence).

(c) Prepayments from Equity Issuances. Immediately upon the receipt by any Credit Party or any Subsidiary of a Credit Party of any Net Cash Proceeds from any Equity Issuance (other than Net Cash Proceeds from any Equity Issuance described in Section 4.01(t)), the Borrower shall prepay the Loans in an amount equal to 50% of such Net Cash Proceeds. All such prepayments shall be accompanied by all accrued and unpaid interest on the Loans being prepaid and the applicable Prepayment Fee (which, subject to Section 1.09, shall be deducted from such Net Cash Proceeds prior to the application of such Net Cash Proceeds in prepayment of the Loans in accordance with the terms of the preceding sentence).

(d) Mandatory Repayments from Excess Cash Flow. In addition to any other mandatory repayments pursuant to this Section 2.02, no later than the Sweep Date for each Fiscal Year, the Borrower shall make an offer to prepay (an “Offer to Prepay”) or, if a Default has occurred and is continuing, the Borrower shall prepay, the Term Loans in an amount equal to the Applicable Cash Flow Percentage of Excess Cash Flow for such Fiscal Year. Each Offer to Prepay shall be in writing and shall be delivered to the Administrative Agent and each of the Term Lenders and shall include or state the following terms of the Offer to Prepay: (A) a reference that the Offer to Prepay is made pursuant to this Section 2.02(d), (B) a calculation of the Excess Cash Flow for such year and the amount of such offer, and (C) that each Term Lender that desires to accept such offer must notify the Administrative Agent (with a copy to the Borrower) in writing by executing an acceptance set forth in such Offer to Prepay within thirty (30) days of the date of such Offer to Prepay. An Offer to Prepay shall be deemed accepted by each accepting Term Lender unless such Term Lender provides written notice to the Administrative Agent of its rejection of the Offer to Prepay within the time period set forth in clause (C) above. Notwithstanding the foregoing, the Administrative Agent may accept Offers to Prepay on behalf of any or all Term Lenders only upon receipt from such Term Lender of its acceptance of such Offer to Prepay. Upon acceptance of an Offer to Prepay by a Term Lender or by the Administrative Agent on behalf of any or all Term Lenders (and in any event within three (3) days thereof) the Borrower shall prepay the Term Loans due to such Term Lender in the amount equal to such Term Lender’s Pro Rata Share of the amount set forth in the first sentence of this Section 2.02(d).

(e) Application of Mandatory Prepayments. Subject to Section 1.09, each mandatory prepayment made pursuant to this Agreement shall be applied first, to permanently reduce the Term Loans; second, to the Revolving Loans (other than Revolving Loans incurred pursuant to Section 1.06(b) as a result of payments under Letters of Credit), third to the Revolving Loans incurred pursuant to Section 1.06(b) as a result of payments under Letters of Credit; and fourth, to Letter of Credit Obligations. Any mandatory prepayment applied to Letter of Credit Obligations in respect of outstanding Letters of Credit that have not been drawn upon shall be effected by the reduction of the Available Commitments by the amount prepaid and, to the extent that after giving effect to such reductions, the Aggregate Revolving Exposure would exceed the Available Commitments, 105% of such excess amount shall be funded to the Cash Collateral Account by the Borrower.

Section 2.03. Prepayment Fees.

In connection with (a) any repayments of Term Loans made pursuant to Section 1.09, (b) any prepayments of Term Loans made pursuant to Section 2.01(a), 2.02(a) (other than prepayments in respect of Net Casualty/Condemnation Proceeds), 2.02(b) or 2.02(c), the Borrower shall pay to the Administrative Agent a prepayment fee (the “Prepayment Fee”) for the benefit of the Term Lenders in an amount equal to the aggregate principal amount to be repaid multiplied by the percentage set forth below:


Prepayment Date	Percentage
On or prior to January 22, 2009	3.0	%
After January 22, 2009 and on or prior to January 22, 2010	2.0	%
After January 22, 2010 and on or prior to January 22, 2011	1.0	%
After January 22, 2011	0	%

Section 2.04. Payments.

(a) General Provisions. All payments to be made by any Credit Party shall be made without set-off, counterclaim or other defense. All payments by any Credit Party on account of Revolving Loans shall be made to the Revolving Agent at the payment office identified by the Revolving Agent. All other payments by any Credit Party shall be made to the Administrative Agent at the payment office identified by the Administrative Agent. Except as otherwise expressly provided herein, each payment shall be made in immediately available funds, no later than 2:00 p.m., New York City time, on the date specified herein for the payment to be made. The Revolving Agent or the Administrative Agent, as the case may be, will promptly distribute to the relevant Participating Lender or Agent its Pro Rata Share or other applicable share as expressly provided herein, of each such payment in like funds as received. Any payment received by the Revolving Agent or the Administrative Agent later than 2:00 p.m., New York City time, on any Business Day shall be deemed to have been received on the following Business Day and any applicable interest or fee shall continue to accrue until such following Business Day.

(b) Sharing of Payments. Except as otherwise provided herein, if any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of any Obligation in excess of its ratable share of payments on account of similar obligations obtained by all the Lenders, such Lender shall (i) notify the Administrative Agent or the Revolving Agent of such fact and (ii) forthwith purchase from the other Lenders such participations in such similar obligations held by them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each other Lender shall be rescinded and such other Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such other Lender’s ratable share (according to the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender of any interest or other amount paid by the purchasing Lender in respect of the total amount so recovered). Each Credit Party jointly and severally agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 2.04(b) may, to the fullest extent permitted by law, exercise all of its rights (including the Lender’s right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of such Credit Party in the amount of such participation.

(c) Payments on Non-Business Days. Whenever any payment to be made by the Borrower hereunder or under the Notes is stated to be due on a day which is not a Business Day, the payment shall instead be due on the next succeeding Business Day.

Section 2.05. Taxes.

(a) Payment of Taxes. Except as set forth below, any and all payments by a Credit Party hereunder, under the Notes or under any other Loan Document shall be made free and clear of and without deduction for any and all Indemnified Taxes. If a Credit Party shall be required by law to withhold or deduct any Indemnified Taxes from or in respect of any sum payable hereunder, under the Notes or under any other Loan Document to any Lender or Agent, (i) such sum payable shall be increased by an additional amount so that after making all such required withholdings or deductions (including such withholdings or deductions applicable to additional amounts payable under this Section 2.05(a)), such Lender or Agent receives an amount equal to the sum it would have received had no such withholdings or deductions been made, (ii) such Credit Party shall make such withholdings or deductions, and (iii) such Credit Party shall pay the full amount withheld or deducted to the relevant taxation authority or other authority in accordance with Applicable Law.

(b) Other Taxes. In addition, the Credit Parties jointly and severally agree to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document (hereinafter referred to as “Other Taxes”).

(c) Indemnification. The Credit Parties will indemnify each Participating Lender and each Agent against, and reimburse each, within twenty (20) days of a receipt of written demand therefor, for the full amount of all Indemnified Taxes and Other Taxes (including any Indemnified Taxes or Other Taxes imposed by any Governmental Authority on amounts payable to such Agent or Lender under this Section 2.05(c)) incurred or paid by such Participating Lender or such Agent (as the case may be), or any Affiliate of such Participating Lender or Agent on or with respect to any payment by or on account of any obligation of the Credit Parties hereunder, and any penalties, interest, and reasonable out-of-pocket expenses paid to third parties arising therefrom or with respect thereto.

(d) Receipts. Within thirty (30) days after a request from the Administrative Agent or the Revolving Agent, each Credit Party will furnish to the Administrative Agent the original or a certified copy of a receipt, if available, or other reasonably available documentation reasonably satisfactory to the Administrative Agent evidencing payment of such Indemnified Taxes or Other Taxes (including in respect of payments of additional amounts) required to be paid by such Credit Party pursuant to this Section 2.05. The Borrower will furnish to the Administrative Agent and the Revolving Agent upon the Administrative Agent’s or the Revolving Agent’s request, a certificate executed by an Authorized Officer stating that all Indemnified Taxes and Other Taxes have been paid when due.

(e) Nonresident Certifications.

(i) Each Participating Lender that is not a United States Person (as defined in Section 7701(a)(30) of the Code) (a “Non-U.S. Lender”) shall deliver to the Administrative Agent on or prior to the Closing Date, or, in the case of a Non-U.S. Lender that becomes a Participating Lender pursuant to Section 3.05 hereof, on or prior to the date on which such Participating Lender becomes a Participating Lender pursuant to Section 3.05, a true and accurate IRS Form W-8BEN, W-8IMY (with the necessary attachments), W-8EXP or W-8ECI, as appropriate to the Participating Lender’s circumstances, or any subsequent version thereof or successors thereto and such other documentation prescribed by Applicable Law executed in duplicate by a duly authorized officer of such Participating Lender along with a certificate executed by a duly authorized officer of such Participating Lender to the effect that such Participating Lender is eligible as of such date to receive payments hereunder and under any Notes free and clear or at a reduced rate of United States federal withholding tax.

(ii) Each Non-U.S. Lender further agrees to deliver to the Administrative Agent from time to time a true and accurate certificate executed in duplicate by a duly authorized officer of such Lender before or promptly upon the occurrence of any event requiring a change in the most recent certificate or IRS form previously delivered by it to the Administrative Agent pursuant to this Section 2.05(e) (including upon the expiration, obsolescence or invalidity of such certificate or form, upon the designation of a new lending office and at such other times as may be necessary in the determination of the Administrative Agent or a Credit Party (in the reasonable exercise of its discretion)). Each certificate required to be delivered pursuant to this Section 2.05(e)(ii) shall certify as to one of the following:

(A) that such Participating Lender can receive payments hereunder and under any Notes free and clear or at a reduced rate of United States federal withholding tax (in which case the certificate shall be accompanied by two true and accurate originals of IRS Form W-8BEN, W-8IMY (with the necessary attachments), W-8EXP or W-8ECI, as applicable (or any successor form));

(B) that such Participating Lender is no longer capable of receiving payments hereunder or under the Notes free and clear or at a reduced rate of United States federal withholding tax by reason of a Change in Law (including the Code or any applicable tax treaty) after the later of the Closing Date, or in the case of a Participating Lender that becomes a Participating Lender pursuant to Section 3.05, after the date on which the Participating Lender became a Participating Lender pursuant to Section 3.05; or

(C) that such Participating Lender is not capable of receiving payments hereunder free and clear or at a reduced rate of United States federal withholding tax other than by reason of a Change in Law (including the Code or applicable tax treaty) after the later of the Closing Date, or in the case of a Lender that becomes a Participating Lender pursuant to Section 3.05, after the date on which the Participating Lender became a Participating Lender pursuant to Section 3.05.

(f) Resident Certifications. Each Participating Lender that is a United States Person (as defined in Section 7701(a)(30) of the Code) and is not an “exempt recipient” (as such term is defined in Section 1.6049-4(c)(1)(ii) of the United States Treasury Regulations) shall deliver to the Administrative Agent on or prior to the Closing Date, or, in the case of a Participating Lender that becomes a Participating Lender pursuant to Section 3.05 hereof, on or prior to the date on which such Participating Lender becomes a Participating Lender pursuant to Section 3.05 hereof, two original copies of IRS Form W-9 (or any successor forms), properly completed and duly executed by such Lender, and such other documentation reasonably requested by the Administrative Agent.

(g) Refunds. If a Lender or Agent becomes aware that it is entitled to claim a refund from a Governmental Authority in respect of Indemnified Taxes or Other Taxes as to which it has been indemnified by a Credit Party or with respect to which a Credit Party has paid additional amounts pursuant to Section 2.05(a), it shall make reasonable efforts to timely file a claim to such Governmental Authority for such refund at such Credit Party’s expense. If a Lender or Agent actually receives a payment of a refund (including pursuant to a claim for refund made pursuant to the preceding sentence) in respect of any Indemnified Tax or Other Tax as to which it has been indemnified by a Credit Party or with respect to which a Credit Party has paid additional amounts pursuant to Section 2.05(a), it shall within sixty (60) days from the date of the receipt of such refund pay over the amount of such refund to the Credit Party, net of all reasonable out-of-pocket expenses of such Lender or Agent and without interest; provided that the Credit Party, upon the request of such Lender or Agent, agrees to repay the amount paid over to the Credit Party (plus penalties, interest or other reasonable charges paid by such Lender or Agent) to such Lender or Agent in the event such Lender or Agent is required to repay such refund to such Governmental Authority.

(h) If a Credit Party determines that a reasonable basis exists for contesting a Tax, the relevant Participating Lender or Agent shall make reasonable efforts to cooperate with the Credit Party in challenging such Tax at the Credit Party’s expenses and if requested by the Credit Party in writing; provided, however, that no Participating Lender or Agent shall be required to take any action hereunder which, in the reasonable discretion of such Participating Lender or Agent, would cause such Participating Lender or Agent or its applicable lending office to suffer a material economic, legal or regulatory disadvantage.

ARTICLE III

INTEREST

Section 3.01. Interest on the Loans and Other Obligations.

(a) Interest on Loans. The Borrower agrees to pay interest on the unpaid principal amount of each Loan on each Interest Payment Date from the date of such Loan until such Loan is repaid in full at a rate equal to the Interest Rate for such Loan. The Borrower shall pay accrued interest on the Loans in cash on each Interest Payment Date. All computations of interest hereunder shall be made on the actual number of days elapsed over a year of, with respect to LIBOR Rate Loans, 360 days or, with respect to Alternate Base Rate Loans only, 365/366 days.

(b) Default Interest. Upon the occurrence, and during the continuance, of an Event of Default, the Obligations then due and unpaid shall bear interest, payable on demand, at a per annum rate that is two (2) percentage points greater than the rate which would otherwise be applicable to such Obligations (or if no rate is applicable, whether in respect of interest, fees or other amounts, the Alternate Base Rate plus the Applicable Margin for Term Loans plus two (2) percentage points) (any such interest referred to herein as “Default Interest”).

Section 3.02. Conversion or Continuation. Unless a Default or Event of Default is continuing and the Required Lenders have expressly required otherwise, the Borrower shall have the option (i) to convert all or any part of the outstanding LIBOR Rate Loans to Alternate Base Rate Loans, (ii) to convert Alternate Base Rate Loans to LIBOR Rate Loans or (iii) to change or continue the LIBOR Period applicable to all or a portion of the LIBOR Rate Loans; provided, however, that (A) except as provided in Section 3.04, LIBOR Rate Loans may be converted into Alternate Base Rate Loans only on the last day of the LIBOR Period applicable thereto unless the Borrower agrees to pay all amounts due pursuant to Section 3.03, (B) Loans extended as, or converted into, LIBOR Rate Loans shall be subject to the terms of the definition of “LIBOR Period” and (C) any request for extension or conversion of a LIBOR Rate Loan that shall fail to specify a LIBOR Period shall be deemed to be a request for a LIBOR Period of one month. Each such extension or conversion shall be effected by the Borrower, giving written notice (or telephone notice promptly confirmed in writing) (a “Notice of Conversion/Continuation”) to the Revolving Agent prior to 11:00 a.m., New York City time, on the third Business Day prior to the date of the proposed extension or conversion, substantially in the form of Exhibit E hereto, specifying (a) the date of the proposed extension or conversion, (b) the Loans to be so extended or converted, (c) the types of Loans into which such Loans are to be converted, and, if appropriate, (d) the applicable LIBOR Periods with respect thereto. In the event the Borrower does not request extension or conversion of any LIBOR Rate Loan in accordance with this Section 3.02, then such LIBOR Rate Loan shall be continued as a LIBOR Rate Loan (with a LIBOR Period of one month) at the end of each LIBOR Period applicable thereto, until the Borrower selects an alternate LIBOR Period or converts such Loans to Alternate Base Rate Loans. In the event any LIBOR Rate Loans are not permitted to be converted into another LIBOR Rate Loan hereunder, such LIBOR Rate Loans shall automatically be converted to Alternate Base Rate Loans at the end of the applicable LIBOR Period with respect thereto. The Administrative Agent and/or the Revolving Agent shall give each Lender notice as promptly as practicable of any such proposed extension or conversion affecting any Loan. Promptly after receipt of a Notice of Conversion/Continuation under this Section 3.02, the Administrative Agent and/or the Revolving Agent shall notify each Lender by telecopy, or other similar form of transmission, of the proposed conversion/continuation. Any Notice of Conversion/Continuation for conversion to, or continuation of, a Loan shall be irrevocable, and the Borrower shall be bound to convert or continue in accordance therewith.

Section 3.03. Break Funding Payments. In the event of the payment of any principal of any LIBOR Rate Loan other than on the last day of the LIBOR Period applicable thereto (including as a result of an Event of Default), or the failure to borrow or prepay any Loan on the date specified in any notice delivered pursuant hereto, then, in any such event, the Borrower shall compensate each applicable Lender for the loss, cost and expense (excluding in any event any Applicable Margin or other lost profit) attributable to such event, calculated by such Lender in accordance with its customary procedures. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section 3.03 shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate upon receipt thereof.

Section 3.04. Increased Costs; Illegality.

(a) Increased Costs Generally. If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Participating Lender;

(ii) subject any Participating Lender to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any LIBOR Rate Loan made by it, or change the basis of taxation of payments to such Participating Lender in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.05 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Participating Lender); or

(iii) impose on any Participating Lender or the London interbank market any other condition, cost or expense affecting this Agreement or LIBOR Rate Loans made by such Lender or any Letter of Credit or participation therein;

and the result of any of the foregoing shall be to increase the cost to such Participating Lender of making or maintaining any LIBOR Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Participating Lender of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Participating Lender hereunder (whether of principal, interest or any other amount) then, upon request of such Participating Lender, the Borrower will pay to such Participating Lender, as the case may be, such additional amount or amounts as will compensate such Participating Lender, as the case may be, for such additional costs incurred or reduction suffered.

(b) Capital Requirements. If any Participating Lender determines that any Change in Law affecting such Participating Lender or any lending office of such Participating Lender or such Participating Lender’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Participating Lender’s capital or on the capital of such Participating Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Participating Lender or the Loans made by, or participations in Letters of Credit held by, such Participating Lender, to a level below that which such Participating Lender or such Participating Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Participating Lender’s policies and the policies of such Participating Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Participating Lender, as the case may be, such additional amount or amounts as will compensate such Participating Lender or such Participating Lender’s holding company for any such reduction suffered.

(c) Certificates for Reimbursement. A certificate of a Participating Lender setting forth the amount or amounts necessary to compensate such Participating Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section 3.04 and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Participating Lender, as the case may be, the amount shown as due on any such certificate upon receipt thereof.

(d) Delay in Requests. Failure or delay on the part of any Participating Lender to demand compensation pursuant to this Section 3.04 shall not constitute a waiver of such Participating Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Participating Lender pursuant to this Section 3.04 for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Participating Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Participating Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

(e) Illegality. Notwithstanding anything to the contrary contained herein, if any Change in Law shall make it unlawful, or any central bank or other Governmental Authority shall assert that it is unlawful, for any Lender to agree to make or to continue to fund or maintain any LIBOR Rate Loan, then, unless that Lender is able to make or to continue to fund or to maintain such LIBOR Rate Loan at another branch or office of that Lender without, in that Lender’s opinion, adversely affecting it or its LIBOR Rate Loans or the income obtained therefrom, on notice thereof and demand therefor by such Lender to the Borrower through the Administrative Agent or the Revolving Agent, the obligation of such Lender to make, to continue to fund or maintain LIBOR Rate Loans shall terminate and the Borrower shall forthwith prepay in full, without any premium or penalty, all outstanding LIBOR Rate Loans owing by the Borrower to such Lender, together with interest accrued thereon and any amounts due pursuant to Section 3.03. Each Agent and Participating Lender, with respect to such Agent or Participating Lender, if reasonably requested in writing by the Borrower and at Borrower’s sole expense, agrees to use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for this Agreement, with the object of avoiding the consequence of the event giving rise to the operation of this Section 3.04, provided that, such designation can be and is made on such terms that such Agent or Participating Lender and its lending offices suffer no economic, legal or regulatory disadvantage.

Section 3.05. Replacement of Lenders. If any Participating Lender requests compensation under Section 3.04, or if the Borrower is required to pay any additional amount to any Participating Lender or any Governmental Authority for the account of any Participating Lender pursuant to Section 2.05, then the Borrower, within thirty (30) days following such request and at its sole expense and effort, upon notice to such Participating Lender and the Administrative Agent and Revolving Agent, require such Participating Lender to assign and delegate (in accordance with the procedures of Section 13.09), without recourse, all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Participating Lender, if a Participating Lender accepts such assignment); provided that:

(a) such Participating Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in drawings under any Letter of Credit, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts payable under any of Sections 2.05, 3.03 or 3.04 through the effective date of such assignment but not including any Prepayment Fee) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);

(b) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 2.05, such assignment will result in a reduction in such compensation or payments thereafter; and

A Participating Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Participating Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

Section 3.06. Fees. The Borrower agrees to pay to:

(a) the Administrative Agent such fees as are set forth in the Fee Letter in accordance with the terms thereof;

(b) the Revolving Agent for the account of the Revolving Lenders in accordance with their respective Pro Rata Shares, a fee (the “Unused Commitment Fee”) in an amount equal to 0.50% per annum times the average daily Available Commitments for the period for which such fee is payable. The Unused Commitment Fee shall be non-refundable and paid quarterly in arrears and on the date of the termination or expiration of the Revolving Commitments;

(c) the Revolving Agent, for the account of the Revolving Lenders, a Letter of Credit fee in an amount equal to the Applicable Margin for Revolving Loans that are LIBOR Rate Loans times the undrawn amount of all outstanding Letters of Credit, payable monthly in arrears and on the date of the termination or expiration of the Revolving Commitments; and

(d) to the Revolving Agent for the benefit of the L/C Issuer, upon the issuance, renewal, extension or continuation of each Letter of Credit by the L/C Issuer, an additional fee (the “Letter of Credit Issuance Fee”), plus applicable bank issuance charges, in an amount equal to 0.25% times the face amount of the Letter of Credit issued, renewed, extended or continued.

ARTICLE IV

CONDITIONS TO LOANS

Section 4.01. Conditions Precedent to the Initial Loans. The obligation of each Lender to make the Loans requested, and the Obligation of the L/C Issuer to issue Letters of Credit to be issued by it on the Closing Date shall be subject to the satisfaction, or waiver by each of the Agents, of each of the following conditions precedent:

(a) Authority. Each of the Administrative Agent and the Revolving Agent shall have received certified copies of all resolutions, certificates or other documents evidencing other necessary corporate action and necessary approvals of any Governmental Authority, if any, with respect to the authorization for the execution, delivery and performance of each Loan Document by a Credit Party and for the consummation of the transactions contemplated thereby. All certificates shall state that the resolutions or other information referred to in such certificates have not been amended, modified, revoked or rescinded as of the Closing Date.

(b) Loan Documents. Each of the Administrative Agent and the Revolving Agent shall have received, on the Closing Date, counterparts of each of the following documents duly executed and delivered by each party thereto, and in full force and effect and in form and substance reasonably satisfactory to the Lenders:

(i) this Agreement;

(ii) the Notes, if any;

(iii) the Security Documents;

(iv) such corporate resolutions, certificates and other documents as the Administrative Agent reasonably requests; and

(v) each other Loan Document to be delivered on the Closing Date, in each case duly executed and delivered by the parties thereto and dated no later than the Closing Date, except for those Loan Documents that are dated prior to the Closing Date and have been delivered prior to the Closing Date to the Agents by the Credit Parties.

(c) Capital Stock; Perfection of Liens. All of the Capital Stock of each of the Credit Party’s Subsidiaries shall be owned by such Credit Party or one or more of such Credit Party’s Subsidiaries as described on Schedule 5.01(f), in each case free and clear of any Lien (other than Permitted Liens). The Collateral Agent, on behalf of the Secured Parties, shall have a perfected first priority Lien and security interest in the Collateral (other than Permitted Liens); all filings, recordations and searches necessary or desirable in connection with such Liens and security interests shall have been duly made or arranged for; and all filing and recording fees and Taxes shall have been duly paid.

(d) No Material Adverse Effect. There shall not have occurred any event, circumstance, change or condition since December 31, 2006, which could reasonably be expected to have a Material Adverse Effect.

(e) Minimum Consolidated EBITDA. Consolidated EBITDA for the twelve-month period ended November 30, 2007 shall be at least $27,000,000.

(f) Litigation. There shall exist no action, suit, claim, investigation, arbitration, litigation or proceeding or any judgments, decrees, injunctions, rules or orders of any governmental or regulatory agency or authority pending or, to the knowledge of the Credit Parties, threatened against or affecting any Credit Party or its property or assets, except for any of the foregoing that (i) could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (ii) does not purport to adversely affect the legality, validity or enforceability of any Loan Document or the consummation of the Loans evidenced hereby and by the other Loan Documents.

(g) Consents, Etc. Each Credit Party shall have received all material consents and authorizations, if any, required pursuant to any Material Contract with any other Person and shall have obtained all material Permits of, or approvals from, and effected all notices to and filings with, any Governmental Authority as may be necessary to allow such Credit Party lawfully (i) to execute, deliver and perform, in all material respects, its respective obligations under the Loan Documents to which it is, or shall be, a party and each other agreement or instrument to be executed and delivered by it pursuant thereto or in connection therewith, (ii) consummate the transactions contemplated hereunder and under the other Loan Documents and (iii) create and perfect the Liens on the Collateral to the extent, in the manner and for the purpose contemplated by the Loan Documents. Each such consent, authorization, Permit, approval, notice or filing shall be in full force and effect and any condition to the continued effectiveness or validity of any such consent, authorization, Permit, approval, notice or filing shall have been satisfied or shall otherwise be acceptable to the Required Term Lenders. Each Credit Party shall have received all shareholder, Governmental Authority and material third-party consents, licenses and approvals necessary in connection with the execution and delivery of the Loan Documents and the transactions contemplated by the Loan Documents, and any applicable waiting period shall have expired without any action being taken by any Governmental Authority that could restrain, prevent or impose any material adverse conditions on such Credit Party or such transactions or that could seek to restrain or threaten any of the foregoing, and no law or regulation shall be applicable which in the reasonable judgment of any Agent could have such effect.

(h) Margin Regulations. All Loans to be made by the Lenders to the Borrower shall be in full compliance with the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System of the United States, as in effect from time to time.

(i) Insurance. Each of the Agents shall be satisfied with the amounts, types and terms and conditions of all insurance maintained by the Borrower. The Collateral Agent shall have received evidence that all insurance policies required to be maintained pursuant to Section 7.12, including any insurance policies with respect to the properties of each Credit Party forming part of the Collateral, are in full force and effect, including endorsements in form and substance reasonably acceptable to each of the Agents naming the Collateral Agent as an additional insured and loss payee, as applicable.

(j) Opinions of Borrower’s Counsel. The Lenders shall have received (i) the opinion of White & Case LLP, special counsel to the Credit Parties, in substantially the form of Exhibit F-1 and (ii) the opinion of Xxxxxx X. Xxxxxxx (Georgia), special counsel to certain of the Credit Parties in the form of Exhibit F-2.

(k) Any fees and expenses required to be paid on or before the Closing Date and invoiced prior to the Closing Date shall have been paid, including those fees and expenses set forth in the Commitment Letter and Fee Letter.

(l) Collateral. (i) The Collateral Agent shall have received a letter duly executed by each Credit Party authorizing the Collateral Agent to file appropriate financing statements in such offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests on the Collateral to be created by the Loan Documents;

(ii) The Collateral Agent shall have received, on or before the Closing Date, (A) all of the certificated Securities then owned by each of the Company and its Subsidiaries that are to be pledged pursuant to the Security Agreement, together with executed and undated transfer powers in the case of such certificated Securities and (B) all other items required to be delivered pursuant to the Security Documents; and

(iii) The Collateral Agent shall have received certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11) or similar search reports certified by a party acceptable to the Collateral Agent, dated a date reasonably near (but prior to) the Closing Date, listing all effective UCC financing statements, tax liens and judgment liens which name any Credit Party as the debtor, and which are filed in the jurisdictions in which the Credit Parties are organized, together with copies of such financing statements, none of which (other than financing statements filed pursuant to the terms hereof in favor of the Administrative Agent, if such Form UCC-11 or search report, as the case may be, is current enough to list such financing statements) shall cover any of the Collateral, other than Liens existing on the date hereof and listed on Schedule 8.01;

(iv) The Collateral Agent, on behalf of the Secured Parties, shall be satisfied that, upon the making of Loans hereunder, it shall have a perfected first priority Lien and security interest in the Collateral, subject only to Permitted Liens and there shall be no other Liens on or against the assets or properties of the Credit Parties or their Subsidiaries (other than Permitted Liens); all filings, recordations and searches necessary or desirable in connection with such liens and security interests (including UCC, tax lien and litigation searches) shall have been duly made or arranged for, and the results of which shall have been reasonably satisfactory to the Lenders; and all filing and recording fees and taxes shall have been duly paid.

(m) Good Standing Certificates. Each of the Administrative Agent and the Revolving Agent shall have received, on the Closing Date, governmental certificates, dated the most recent practicable date prior to the Closing Date, showing that each Credit Party is organized and in good standing in the jurisdiction of its organization, and is qualified as a foreign corporation and in good standing in all other jurisdictions in which it is qualified to transact business except where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect.

(n) Organizational Documents. Each of the Administrative Agent and the Revolving Agent shall have received on the Closing Date, a copy of the certificate of incorporation or certificate of formation, as applicable, and all amendments thereto of each Credit Party, certified as of a recent date by the appropriate government official of the jurisdiction of its organization, and copies of each Credit Party’s by-laws or limited liability company agreement, as applicable, certified by the Secretary, Assistant Secretary or managing member, as applicable, of such Credit Party as true and correct as of the Closing Date.

(o) Financial Statements. Each of the Administrative Agent and the Revolving Agent shall have received the 2007 Financial Statements, and all financial statements and projections described in Section 5.01(h) in form and substance reasonably satisfactory to the Administrative Agent and the Revolving Agent.

(p) Certificates.

(i) Each of the Administrative Agent and the Revolving Agent shall have received, on the Closing Date, certificates of the Secretary, Assistant Secretary or managing member of each Credit Party, dated the Closing Date, as to the incumbency and signatures of its officers executing this Agreement and each other Loan Document to which such Credit Party is a party and any other certificate or other document to be delivered pursuant hereto or thereto, together with evidence of the incumbency of such Secretary, Assistant Secretary or managing member.

(ii) Each of the Administrative Agent and the Revolving Agent shall have received, on the Closing Date, the certificate of a Senior Officer of each Credit Party, dated the Closing Date, stating that all of the representations and warranties of such Credit Party contained herein or in any of the other Loan Documents are true and correct in all material respects on and as of the Closing Date as if made on such date (except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date), that no breach of any covenant contained in Article VII, Article VIII or Article IX has occurred or would result from the execution, delivery of and performance under this Agreement and the transactions contemplated hereunder, and that all of the conditions set forth in this Section 4.01 have been satisfied on such date (or shall, to the extent permitted herein, be satisfied substantially simultaneously with the incurrence of Loans on the Closing Date).

(q) Representations and Warranties. Both before and after giving effect to the Loans to be made on the Closing Date, as the case may be, all of the representations and warranties of any Credit Party contained in Article V and in the other Loan Documents shall be true and correct in all material respects (except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date).

(r) No Defaults. No Event of Default or Default, and no default under any other Loan Document, shall have occurred and be continuing or would result from the execution and delivery of, or the performance under, the Loan Documents, or making the requested Loans or the application of the proceeds therefrom.

(s) Plan of Reorganization. The Plan of Reorganization shall have, or contemporaneous with the Closing Date and the effectiveness of this Agreement and the making of the initial Loans hereunder will, become effective, without waiver or modification of any condition to effectiveness that would individually or in the aggregate be adverse to the interests of the Lenders, except those reasonably consented to in writing by the Administrative Agent. The Confirmation Order shall not have been stayed, reversed, vacated or otherwise modified in any manner that is adverse to the interests of the Lenders.

(t) Closing Date Cash Proceeds. The Company shall have received net cash proceeds of at least $71,000,000 (seventy one million Dollars) from the rights offering, private placement and/or backstop purchase agreement as specified in the Plan of Reorganization and such proceeds shall be available and, together with the proceeds of the Loans and cash on hand, sufficient to effectuate payment of all obligations to be discharged under the Confirmation Order and Plan of Reorganization.

(u) Closing Date. The Closing Date shall occur by not later than January 31, 2008.

(v) Ratings. Initiation of the process of obtaining ratings of the Company and the Loans from Xxxxx’x, it being understood that the issuance of any such rating and the rating itself are not conditions to the Closing Date.

(w) Background Checks. Each Agent shall have concluded background checks and other investigations it customarily employs to ensure compliance with the Patriot Act, Patriot Act-Related Requirements, anti-money laundering laws and other Applicable Laws and regulations with results satisfactory to each Agent.

(x) Cash Availability. On the Closing Date, Liquidity shall be equal to or greater than $27,000,000 (after giving effect to any Loans made and Letters of Credit issued on the Closing Date and to the payment of all amounts required to be paid under the Confirmation Order and Plan of Reorganization).

(y) Mortgaged Properties. The Administrative Agent shall have received:

(i) fully executed and notarized Mortgages, in proper form for recording in each applicable jurisdiction, encumbering each Mortgaged Property;

(ii) an opinion of counsel (which counsel shall be reasonably satisfactory to the Agents) in each state in which a Mortgaged Property is located with respect to the enforceability of the Mortgage to be recorded in such state and such other matters as any Agent may reasonably request, in each case in form and substance reasonably satisfactory to the Agents;

(iii) binding and effective ALTA mortgagee title insurance policies or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to the Agents (the “Title Company”) with respect to each Mortgaged Property (each, a “Title Policy”), with such reinsurance arrangements, if any, as are reasonably acceptable to the Agents, each in an amount equal to 125% of the fair market value of such Mortgaged Property, insuring the Collateral Agent, as agent for the Secured Parties, that the Credit Parties are vested with good and marketable fee simple title to such Mortgaged Property and that the Mortgage insured thereby creates a valid and enforceable first priority Lien on such Mortgaged Property in favor of the Collateral Agent, for the benefit of the Secured Parties; and

(iv) such other information, documentation, and certifications as may be reasonably required by any Agent as may be necessary or appropriate to effectuate the conditions set forth in this Section 4.01(y).

(z) Cash Management.

(i) The Credit Parties shall have established and maintained cash management services of a type and on terms satisfactory to the Collateral Agent at one or more of the banks set forth on Schedule 5.01(t) (each a “Cash Management Bank”), and shall have requested in writing and otherwise taken such reasonable steps to ensure that all of their domestic Account Debtors forward payment of the amounts owed by them directly to a Deposit Account subject to a Control Agreement (other than with respect to the Excluded Account) at a Cash Management Bank.

(ii) Each Cash Management Bank shall have established and maintained Control Agreements with the Collateral Agent covering the Deposit Accounts of each Credit Party (other than the Excluded Account) in form and substance reasonably acceptable to each of the Agents. Each such Control Agreement shall have provided, among other things, that (A) the Cash Management Bank will comply with any instructions originated by the Collateral Agent directing the disposition of the funds in such Deposit Account without further consent by any Credit Party, (B) the Cash Management Bank has no rights of setoff or recoupment or any other claim against the applicable Deposit Account, other than for payment of its service fees and other charges directly related to the administration of such Deposit Account and for returned checks or other items of payment, and (C) it will, following notice from the Collateral Agent, forward by daily sweep all amounts in the Deposit Accounts to the Collateral Agent’s account.

Section 4.02. Conditions Precedent to Revolving Loans and Issuances, Renewals or Extensions of Letters of Credit. The obligation of each Revolving Lender to make any Revolving Loan requested to be made by it on any Funding Date on or after the Closing Date and the obligation of the L/C Issuer to issue, renew or extend any Letter of Credit on any Business Day on or after the Closing Date are subject to the satisfaction or waiver of each of the following conditions precedent as of each such date and after giving effect to such transaction:

(a) Representations and Warranties. As of such date, both before and after giving effect to the Loans to be made on such date or the issuance, renewal, extension or continuation of any Letter of Credit on such date, as the case may be, all of the representations and warranties of any Credit Party contained in Article V and in the other Loan Documents shall be true and correct in all material respects (except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date).

(b) No Events of Default. As of such date, no Default or Event of Default shall have occurred and be continuing or would result therefrom.

(c) No Change in Condition. There shall not have occurred any event or condition since December 31, 2006, which could reasonably be expected to have a Material Adverse Effect.

(d) No Legal Impediment. No injunction, writ, restraining order, or other order of any nature (whether temporary, preliminary or permanent) restricting or prohibiting, directly or indirectly, the extending or continuing of such credit shall have been issued and remain in force by any Governmental Authority against the Borrower, any Agent or any Participating Lender, and such extension or continuation of credit shall not violate any requirement of Applicable Law; provided, however, that each Agent and Participating Lender, with respect to such Agent or Participating Lender, if reasonably requested in writing by the Borrower and at Borrower’s sole expense, agrees to use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for this Agreement, with the object of avoiding the consequence of the event giving rise to the operation of Section 3.04, provided further that, such designation can be and is made on such terms that such Agent or Participating Lender and its lending offices suffer no economic, legal or regulatory disadvantage.

(e) No Overadvance. After giving effect to any Revolving Loan or the issuance of any Letter of Credit, the Aggregate Revolving Exposure of all Revolving Lenders shall not exceed the Total Revolving Commitments of all Revolving Lenders at such time.

Each request by the Borrower for a Loan, each submission by the Borrower of a Notice of Borrowing or a request for a Letter of Credit, and each acceptance by the Borrower of the proceeds of each Loan made hereunder shall constitute a representation and warranty by the Borrower, as of the Funding Date in respect of such Loan, or as of the date on which any Letter of Credit is issued, renewed, extended or continued, as the case may be, that all conditions set forth in this Section 4.02 have been satisfied.

Section 4.03. Post Closing Conditions. The Credit Parties shall fulfill the obligations set forth on Schedule 4.03.

ARTICLE V

REPRESENTATIONS AND WARRANTIES

Section 5.01. Representations and Warranties. In order to induce the Agents and Participating Lenders to enter into this Agreement and to make the Loans or issue Letters of Credit, as the case may be, each Credit Party hereby represents and warrants as follows:

(a) Organization, Good Standing, Etc. Each Credit Party (i) is a corporation or limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has all requisite power and authority to conduct its business as now conducted and as presently contemplated, to make the borrowings hereunder (in the case of the Borrower), to execute and deliver each Loan Document to which it is a party, and to consummate the transactions contemplated thereby, and (iii) is duly qualified to do business and is in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary for its business as currently conducted save for those jurisdictions where failure to be so qualified does not or could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(b) Authorization, No Conflict, Etc. The execution, delivery and performance by each Credit Party of each Loan Document to which it is or will be a party and the transactions contemplated thereunder, (i) have been or, with respect to such Credit Parties formed or acquired hereafter, will be, duly authorized by all necessary corporate, limited liability company or partnership action, as applicable, (ii) do not and will not contravene its Governing Documents, (iii) do not and will not violate any Requirements of Law or any Material Contract of such Credit Party binding on or otherwise affecting it, any of its Subsidiaries or any of its properties or its Subsidiaries’ properties except where failure to do so, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, and (iv) do not and will not result in or require the creation of any Lien (other than Permitted Liens or pursuant to any Loan Document) upon or with respect to any of its properties or its Subsidiaries’ properties.

(c) Governmental Approvals. No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority that has not been obtained is required in connection with the due execution, delivery and performance by each Credit Party of each Loan Document to which it is a party.

(d) Enforceability of Loan Documents. Each of the Loan Documents to which a Credit Party is a party has been duly executed and delivered by such Credit Party and constitutes the legal, valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws, or by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

(e) Capitalization. On the Closing Date, (i) the authorized Capital Stock of each of the Credit Parties and each of their Subsidiaries, and the issued and outstanding Capital Stock of each of the Credit Parties and each of their Subsidiaries, are as set forth on Schedule 5.01(e); (ii) all of the issued and outstanding shares of Capital Stock of the Borrower and each of its Subsidiaries have been validly issued and, to the extent applicable, are fully paid and nonassessable, and the holders thereof are not entitled to any preemptive, first refusal or other similar rights; (iii) Schedule 5.01(e) sets forth each plan pursuant to which shares of the Capital Stock of each of the Credit Parties and each of their Subsidiaries are issuable as of such date, copies of which plans have been delivered to the Administrative Agent and the Revolving Agent under this Agreement, in the form and on the terms in effect on such date, and the number of shares of Capital Stock of the Borrower and each of its Subsidiaries and each such subsidiary issuable under each such plan; (iv) except as set forth on Schedule 5.01(e), there are no other plans or arrangements in existence relating to the issuance of shares of Capital Stock of any Subsidiary of any of the Credit Parties; and (v) except as set forth on Schedule 5.01(e), there are no outstanding debt or equity securities of the Borrower or any of its Subsidiaries, and no outstanding obligations of any of the Credit Parties or any of its Subsidiaries convertible into or exchangeable for, or warrants, options or other rights for the purchase or acquisition from any of the Credit Parties or any of their Subsidiaries or other obligations of any of the Credit Parties or any of their Subsidiaries, to issue, directly or indirectly, any shares of Capital Stock of any such Person.

(f) Subsidiaries. Schedule 5.01(f) is a complete and correct description of the name, jurisdiction of organization and ownership of the outstanding Capital Stock of each Subsidiary of the Credit Parties in existence on the Closing Date hereof. All of the issued and outstanding shares or units of Capital Stock of such Subsidiaries have been validly issued and are fully paid and nonassessable, and the holders thereof are not entitled to any preemptive, first refusal or other similar rights. Except as indicated on such Schedule 5.01(f), all such Capital Stock is owned by one of the Credit Parties or one or more of their Wholly-Owned Subsidiaries. Except as set forth on Schedule 5.01(f), there are no subscriptions, options, warrants, or calls relating to any shares of any Credit Party’s Subsidiaries’ Capital Stock, including any right of conversion or exchange under any outstanding security or other instrument. No Credit Party or any of its Subsidiaries is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of any Credit Party’s Subsidiaries’ Capital Stock or any security convertible into or exchangeable for any such Capital Stock.

(g) Litigation. As of the Closing Date, there is no pending, or to the knowledge of such Credit Party threatened, action, suit or proceeding affecting any Credit Party, its Subsidiaries or any of its respective properties or assets before any court or other Governmental Authority or any arbitrator that, individually or in the aggregate, (i) would reasonably be expected to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the Loans evidenced hereby and by the other Loan Documents.

(h) Financial Condition; Material Adverse Effect.

(i) The 2007 Financial Statements, copies of which have been delivered to the Administrative Agent and the Revolving Agent, and any financial statements delivered pursuant to Section 6.01, fairly present, in all material respects, the consolidated financial condition of the Company as at the respective dates thereof and the consolidated results of operations of the Company, the Credit Parties and their Subsidiaries for the fiscal periods ended on such respective dates, all in accordance with GAAP.

(ii) The Credit Parties have heretofore furnished to the Administrative Agent and the Revolving Agent projected annual balance sheets, income statements and statements of cash flows of the Company and its Subsidiaries, determined on a consolidated basis and in accordance with GAAP, for each Fiscal Year from and including the Fiscal Year ending December 31, 2007 to and including the Fiscal Year ending December 31, 2011. Such projections have been prepared in good faith based upon accounting principles consistent with the historical financial statements of the Company and are based upon stated assumptions that are reasonably believed by the Credit Parties to have been accurate (A) at the time made (B) at each time such projections are made available to any Agent or Lender or any of their Affiliates and (C) as of the Closing Date.

(iii) As of the Closing Date, since December 31, 2006, no event or development has occurred and is continuing that has had or could reasonably be expected to have a Material Adverse Effect.

(i) Compliance with Law, Etc. No Credit Party or any Subsidiary of any Credit Party is in violation of its Governing Documents, any Requirements of Law, any judgment or order of any Governmental Authority applicable to it or any of its property or assets, or any material term of any Material Contract binding on it or any of its properties except for any such violations which, individually or in the aggregate, have not had and could not reasonably be expected to have a Material Adverse Effect. Each Credit Party and each Subsidiary of each Credit Party has policies in place to observe the requirements of the Patriot Act-Related Requirements consistent with U.S. industry practice.

(j) ERISA. None of the Credit Parties nor any ERISA Affiliate has (i) any “accumulated funding deficiency” (within the meaning of Section 412 of the Code and Section 302 of ERISA), whether or not waived, with respect to any Benefit Plan, (ii) failed to make any contribution or payment to any Benefit Plan which has resulted, or could reasonably be expected to result, in the imposition of a Lien or the posting of a bond or other security under Section 302(f) of ERISA or Section 401(a)(29) of the Code, (iii) incurred, or is reasonably likely to incur, any material liability under Title IV of ERISA (other than a liability to the U.S. Pension Benefit Guaranty Corporation for premiums under Section 4007 of ERISA) or (iv) violated any provision of ERISA that individually or in the aggregate can reasonably be expected to result in a Material Adverse Effect. None of the Credit Parties nor any ERISA Affiliate is obligated to contribute to a Multiemployer Plan.

(k) Taxes, Etc. Save in respect of the Fiscal Years of the Borrower ending December 31, 2005, December 31, 2006 and December 31, 2007 all material, Federal, state, foreign, provincial and local Tax returns and other reports (all such returns for all years, whether or not filed, the “Applicable Tax Returns”) required by Applicable Law to be filed by any Credit Party or any Subsidiary of a Credit Party have been filed, or extensions have been obtained, except to the extent subject to a Permitted Protest, and all Taxes due and payable (the “Applicable Taxes”) and all assessments, fees, applicable penalties, if any, and all other governmental charges upon such Credit Party and any Subsidiary of a Credit Party and upon its properties, assets, income, businesses and franchises that are due and payable have been paid, except to the extent subject to a Permitted Protest, and with respect to the Tax Returns in respect of the Fiscal Years of the Borrower ending December 31, 2005, December 31, 2006 and December 31, 2007, not yet filed, the aggregate liability as a result thereof does not exceed $2,000,000. All returns and reports filed are true, correct and complete in all material respects. Except as set forth in Schedule 5.01(k), no taxing authority has, or has asserted, a right to a Lien on any assets of any Credit Party or Subsidiary of a Credit Party and with respect to each item listed on Schedule 5.01(k), the Company has fully paid the tax liability associated therewith or will do so on the Closing Date. Each taxing authority with jurisdiction over the Credit Parties and with whom any Credit Party or any Subsidiary of a Credit Party should have and did not file an Applicable Tax Return received due, timely and proper notice of (a) the applicable bar date for filing a proof of claim in the Chapter 11 Cases; (b) notice of the hearing to approve the disclosure statement in the Chapter 11 Cases; and (c) the confirmation of the Plan of Reorganization and, in each case, proof of such service was filed with the Bankruptcy Court. All claims arising out of or related to the Applicable Tax Returns not filed would fall under Section 6.3 of the Plan of Reorganization and except to the extent expressly set forth therein, have been discharged by the Order confirming the Plan of Reorganization. Proper and accurate amounts have been withheld by each Credit Party and each Subsidiary of a Credit Party from its employees for all periods in compliance in all material respects with the federal, state, local, foreign or other tax, social security and unemployment withholding provisions of Applicable Law and such withholdings have been paid to the respective Governmental Authorities, except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(l) Margin Regulations. No Credit Party is, nor will any Credit Party be engaged, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulations T, U or X), and no proceeds of any Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. The Loans, the use of proceeds thereof and the pledge of the Collateral pursuant to the Security Documents do not violate Regulation T, U or X.

(m) Permits, Etc. Each Credit Party and any Subsidiary of a Credit Party has, and is in compliance with, all material permits, licenses, authorizations, approvals, entitlements and accreditations (collectively, the “Permits”) required for such Person lawfully to own, lease, manage or operate each business and Property currently owned, leased, managed or operated by such Person, except where the failure to have or to so comply, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. No condition exists or event has occurred which, in itself or with the giving of notice or lapse of time or both, would result in the suspension, revocation, impairment, forfeiture or non-renewal of any Permit, and there is no claim that any portion thereof is not in full force and effect, except for any condition or event which, individually or in the aggregate, does not or could not, reasonably be expected to have a Material Adverse Effect.

(n) Properties. All Property of each Credit Party and any Subsidiary of a Credit Party material to its business is in good working order and condition, ordinary wear and tear excepted, except to the extent that the failure to be in such condition could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(o) Real Estate. (i) As of the Closing Date, Schedule 5.01(o) contains a true, accurate and complete list of (A) all Real Estate Assets and (B) all existing leases, subleases and any other occupancy agreements to which any Credit Party is a party with respect to any Real Estate Asset, regardless of whether such Credit Party is the landlord or tenant (whether directly or as an assignee or successor in interest) under such lease or other agreement (each such agreement, together with all amendments, modifications, supplements, renewals or extensions of any thereof, a “Lease”). Each Credit Party has, and is the sole owner of, good, insurable and marketable fee simple title to all of its owned Real Estate Assets or a good and valid leasehold estate and title in and to its leased Real Estate Assets, and has all necessary right, power and authority to mortgage, encumber, give, grant, bargain, sell, convey, confirm, pledge, assign, and hypothecate all of the Real Estate Assets in accordance with the terms of this Agreement. Except as identified on Schedule 5.01(o), each Lease is in full force and effect and no Credit Party has any knowledge of any default that has occurred and is continuing thereunder, except for defaults as may have occurred as a result of the commencement of the Chapter 11 Cases on the Commencement Date. Each Lease constitutes the legally valid and binding obligation of each applicable Credit Party, enforceable against such Credit Party in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles.

(ii) Condemnation. As of the Closing Date, there are neither any actual, nor, to the knowledge of any Credit Party, any threatened or contemplated condemnation or eminent domain proceedings that affect any Real Estate Asset or any part thereof, and no Credit Party has received any notice, oral or written, of the intention of any Governmental Authority or other Person to take or use all or any part thereof.

(iii) Encroachments. No improvements constituting a part of any Real Estate Asset encroach on any real property not owned or leased by a particular Credit Party.

(iv) Repairs and Alterations. As of the Closing Date, no Credit Party has received any notice from any insurance company which has issued an insurance policy with respect to any Real Estate Asset requesting performance of any structural or other repairs or alterations to such Real Estate Asset.

(v) Access to Public Streets. Except as indicated on a title policy insuring the Mortgage encumbering any particular Real Estate Asset, each parcel (or group of parcels) comprising such particular Real Estate Asset is located on public roads and streets with adequate ingress and egress available between such streets and such Real Estate Asset or otherwise has access to public roads and streets pursuant to access easements benefiting such Real Estate Asset.

(vi) Utilities. All utility systems required in connection with the use, occupancy and operation of each Real Estate Asset are sufficient for their present purposes, are fully operational and in working order, and are benefited by customary utility easements providing for the continued use and maintenance of such systems or, in the case of a leased Real Estate Asset, the Credit Party leasing the same has valid and enforceable rights to the same under the applicable Lease or otherwise.

(vii) Parking. Each Real Estate Asset consists of or otherwise has rights to use sufficient land, parking areas, sidewalks, driveways and other improvements to permit the continued use of such Real Estate Asset in the manner and for the purposes to which it is presently devoted.

(p) Full Disclosure. None of the reports, financial statements, certificates or other written information furnished by or on behalf of a Credit Party to the Administrative Agent, the Revolving Agent or the Collateral Agent under this Agreement or any other Loan Document in connection with the negotiation of this Agreement or any other Loan Document or delivered hereunder or thereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, taken as a whole, in the light of the circumstances under which it was made, not materially misleading; provided that to the extent any such reports, financial statements, certificates or other written information therein was based upon or constitutes a forecast or projection, the Credit Parties represent only that the Credit Parties acted in good faith and utilized assumptions reasonably believed by them to be accurate (i) at the time made (ii) at each time such projections are made available to any Agent or Lender or any of their Affiliates and (iii) as of the Closing Date. There are no contingent liabilities or obligations that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

(q) Environmental Matters. Except as set forth on Schedule 5.01(q), (i) the operations of each Credit Party and any Subsidiary of a Credit Party are and have been in material compliance with all applicable Environmental Laws, (ii) there has been no Release on, in, at, to, from or under any of the properties currently or formerly owned or operated by any Credit Party or any Subsidiary of a Credit Party or a predecessor in interest that could reasonably be expected to result in any material Environmental Liabilities and Costs to any Credit Party or any Subsidiary of a Credit Party, (iii) no Environmental Action has been asserted or threatened in writing against any Credit Party or any Subsidiary of a Credit Party which is unresolved, nor to the knowledge of any Credit Party are there any threatened Environmental Actions against a Credit Party or any Subsidiary of a Credit Party that in either case could reasonably be expected to result in any material Environmental Liabilities and Costs to any Credit Party or any Subsidiary of a Credit Party, (iv) to the knowledge of the Credit Parties no Environmental Action has been asserted against any facilities that may have received Hazardous Materials generated by a Credit Party or any Subsidiary of a Credit Party or any predecessor in interest that could reasonably be expected to result in any material Environmental Liabilities and Costs to any Credit Party or any Subsidiary of a Credit Party, (v) none of the Credit Parties or any Subsidiary of a Credit Party is subject to any outstanding order, decree, injunction or other agreement with any Governmental Authority or any indemnity or other agreement (other than routine permits, approvals, credit agreements and lease terms) imposing obligations with any third party relating to any Environmental Law that could reasonably be expected to result in any material Environmental Liabilities and Costs to any Credit Party or any Subsidiary of a Credit Party, (vi) to the knowledge of any Credit Parties there are no other circumstances or existing conditions involving any Credit Party or any Subsidiary of a Credit Party that could reasonably be expected to result in any such Credit Party or Subsidiary of a Credit Party becoming the subject of any Environmental Actions or material Environmental Liabilities and Costs including any material restriction on the ownership, use, or transfer of any property in connection with any Environmental Law, and (vii) the Credit Parties and any Subsidiary of a Credit Party made available to the Administrative Agent and the Revolving Agent copies of all material environmental reports, studies, assessments, sampling data and other material environmental documents in its possession relating to the Credit Parties and any Subsidiary of a Credit Party and their current and former properties and operations.

(r) Insurance. Each Credit Party and each Subsidiary of a Credit Party maintains (either in the name of such Credit Party or in such Subsidiary’s own name) insurance with financially sound and reputable insurance companies or associations (including, without limitation, commercial general liability, property and business interruption insurance) with respect to its Properties (including all Real Estate Assets leased or owned by it) and business, in such amounts and covering such risks as is required by any Governmental Authority having jurisdiction with respect thereto or as is carried generally in accordance with sound business practice by companies of similar size in similar businesses similarly situated. All property policies covering the Collateral name the Collateral Agent as an additional insured or loss payee, in case of loss. Schedule 5.01(r) sets forth a list of all insurance maintained by such Credit Party or any Subsidiary of a Credit Party on the Closing Date.

(s) Solvency. On the Closing Date, on the date of each borrowing under Section 1.01(b) and on the date of the issuance, renewal or extension of any Letter of Credit under Section 1.06(a), 1.06(b) or 1.06(d), the Credit Parties, taken as a whole, are Solvent after giving effect to the transactions effected by the Loan Documents.

(t) Location of Bank Accounts. (i) Schedule 5.01(t)(i) sets forth a complete and accurate list as of the Closing Date of all Deposit Accounts, commodities accounts and Securities Accounts of the Credit Parties and (ii) Schedule 5.01(t)(ii) sets forth a complete and accurate list as of the Closing Date of all Deposit Accounts, commodities accounts and Securities Accounts of each Foreign Subsidiary, in each case, from which any of the Credit Parties receives cash in the ordinary course of business or on a regular basis (with respect to the Deposit Accounts), together with a description thereof (i.e., the bank or broker-dealer at which such Deposit Account or Securities Account is maintained, and the account number and the purpose thereof).

(u) Intellectual Property. (i) Each Credit Party and each Subsidiary of a Credit Party owns or has a right to use all the Intellectual Property that is used in the conduct of its business as currently conducted (the “Company Intellectual Property”). Schedule 5.01(u) to this Agreement is, as of the Closing Date or as of the most recent update thereof, a true, correct, and complete listing of all Registered Intellectual Property, material unregistered Trademarks and material unregistered Software as to which each Credit Party or Subsidiary of a Credit Party is the owner or is an exclusive licensee (collectively, “Scheduled Intellectual Property Collateral”).

(ii) Except as set forth in Schedule 5.01(u):

(A) to the knowledge of each Credit Party and each Subsidiary of any Credit Party, the Company Intellectual Property owned or exclusively licensed by any Credit Party or Subsidiary does not misappropriate, infringe or otherwise violate any rights of any other Person. No Credit Party or Subsidiary of any Credit Party has received any demand, claim, notice, injunction, decree, order, judgment, award or inquiry from any Person in respect of the Company Intellectual Property which challenges, threatens to challenge or inquires as to whether there is any basis to challenge the validity or enforceability of the rights of, or the ownership by, any Credit Party or any Subsidiary of any Credit Party in, or the right of any Credit Party or any Subsidiary of any Credit Party to use, any such Company Intellectual Property, and no Credit Party nor any Subsidiary of any Credit Party knows of any basis for any such challenge;

(B) no Credit Party or Subsidiary of any Credit Party has received any notice of any violation or infringement of any proprietary rights of any other Person that could reasonably be expected to result in a Material Adverse Effect;

(C) to the knowledge of each Credit Party and each Subsidiary of any Credit Party, no other Person is misappropriating, infringing or otherwise violating any rights of any Credit Party or any Subsidiary of any Credit Party in the Company Intellectual Property. No Credit Party or Subsidiary of any Credit Party is pursuing any claim or cause of action against any Person for infringement of the Company Intellectual Property owned or exclusively licensed by only Credit Party or Subsidiary of any Credit Party that could reasonably be expected to result in a Material Adverse Effect.

(v) Material Contracts. Set forth on Schedule 5.01(v) is a complete and accurate list of all Material Contracts to which any Credit Party or any Subsidiary of a Credit Party is a party, showing the parties and subject matter thereof and amendments and modifications thereto. As of the Closing Date, no Credit Party nor any Subsidiary of any Credit Party is in default under any Material Contract.

(w) Investment Company Act. None of the Credit Parties is, or is controlled by, an “investment company” or an “affiliated person” or “promoter” of, or “principal underwriter” of or for, an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended.

(x) Employee and Labor Matters. As of the Closing Date there is (i) no unfair labor practice complaint pending or, to the best of any Credit Party’s or any Subsidiary of a Credit Party’s knowledge, threatened against any Credit Party or any Subsidiary of a Credit Party before any Governmental Authority and no grievance or arbitration proceeding pending or, to the best of such Credit Party’s or any Subsidiary of such Credit Party’s knowledge, threatened against any Credit Party or any Subsidiary of a Credit Party which arises out of or under any collective bargaining agreement, and (ii) no strike, labor dispute, slowdown, stoppage or similar action or grievance pending or, to the best of such Credit Party’s or any Subsidiary of a Credit Party’s knowledge, threatened against any Credit Party or any Subsidiary of a Credit Party that, in the case of clause (i) or (ii) could reasonably be expected to have a Material Adverse Effect.

(y) Location of Collateral; Chief Place of Business; Chief Executive Office FEIN; Name. The Perfection Certificate sets forth a complete and accurate list as of the Closing Date of (i) each place of business (other than a location that is only a sales office) of each Credit Party, (ii) the chief executive office of each Credit Party, (iii) the exact legal name of each Credit Party, (iv) the jurisdiction of organization of each Credit Party, (v) the organizational identification number of each Credit Party (or indicates that such Credit Party has no organizational identification number) and (vi) the federal employer identification number of such Credit Party.

(z) Collateral; Records; Commercial Tort Claims. Each material item of Collateral of the Credit Parties and their Subsidiaries is used or held for use in their business and is in good working order, ordinary wear and tear and damage by casualty excepted. Each Credit Party keeps materially correct, complete and accurate books and records. Schedule 5.01(z) sets forth a true and complete list of all material commercial tort claims of each of the Credit Parties.

(aa) Security Interests. Each Security Document creates in favor of the Collateral Agent a legal, valid and enforceable security interest in the Collateral purported to be secured thereby. Upon the filing of the UCC-1 financing statements and the recording of the collateral assignments for security referred to in the Security Agreement in the United States Patent and Trademark Office and the United States Copyright Office, such security interests in and Liens on the Collateral granted thereby shall be perfected security interests (to the extent the Collateral is governed by Article 9 of the UCC or constitutes Intellectual Property) and no further recordings or filings are or will be required in connection with the creation, perfection or enforcement of such security interests and Liens, other than (i) the filing of continuation statements or financing change statements in accordance with Applicable Law, (ii) the recording of the collateral assignments for security pursuant to the Security Agreement in the United States Patent and Trademark Office and the United States Copyright Office, as applicable, with respect to after-acquired United States patent and trademark applications and registrations and United States copyrights and additional filings and/or other actions as may be required to perfect the Collateral Agent’s Lien in Registered Intellectual Property under the laws of a jurisdiction outside the United States and (iii) additional filings if a relevant Credit Party changes its name, identity or organizational structure or the jurisdiction in which each relevant Credit Party is organized.

(bb) Foreign Assets Control Regulations, Etc. Neither the execution and delivery of, nor the borrowing under any Loan Document, nor the use of proceeds from any Loan will violate (i) the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, (ii) the Patriot Act or (iii) Executive Order No. 13,224, 66 Fed. Reg. 49,079 (2001), issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism). Without limiting the foregoing, none of the Credit Parties is or will become a “blocked person” as described in Section 1 of such Executive Order or engages or will engage in any dealings or transactions with, or is otherwise associated with, any such blocked person.

(cc) Ownership of Collateral. Each Credit Party has good and indefeasible title to, or a valid leasehold interest in, the Collateral, in each case, free and clear of Liens except for Permitted Liens.

(dd) Payments under Plan. No Credit Party and no Subsidiary of any Credit Party has or will make any payments on Indebtedness that arose prior to the commencement of the Chapter 11 Cases except in accordance with the Plan of Reorganization or the Confirmation Order or as otherwise authorized by order of the Bankruptcy Court entered prior to December 21, 2007.

ARTICLE VI

REPORTING COVENANTS

Each Credit Party covenants and agrees jointly and severally that, from and after the date hereof (except as otherwise provided herein, or unless the Required Lenders have given their prior written consent) until all amounts owing hereunder or under any Security Document or in connection herewith or therewith have been paid in full, that:

Section 6.01. Financial Statements. Each Credit Party (i) shall keep, and cause each of its Subsidiaries to keep, proper books of record and account, in which true and correct entries shall be made of all material financial transactions and the assets and business of each Credit Party and each such Subsidiary and (ii) shall maintain a system of accounting established and administered in accordance with sound business practices to permit preparation of consolidated financial statements in conformity with GAAP, and each of the financial statements described below shall be prepared from such system and records. The Borrower shall deliver or cause to be delivered to the Agents and the Documentation Agent, in form and detail satisfactory to the Agents:

(a) Monthly Reports. As soon as available, but in any event within thirty five (35) days after the end of each Fiscal Month (including the last month of each Fiscal Year commencing with the Fiscal Month (and the year-to-date) ending December 31, 2007), (i) a consolidated balance sheet for the Company and its Subsidiaries as at the end of such Fiscal Month (and showing the same period from the previous Fiscal Year), (ii) the related consolidated statements of income of the Company and its Subsidiaries for such Fiscal Month (and the year-to-date), (iii) the related consolidated statements of cash flow of the Company and its Subsidiaries for such Fiscal Month and (iv) schedules of revenue backlog, surety obligations and outstanding Letters of Credit, in each case, in a form reasonably satisfactory to the Administrative Agent and the Revolving Agent, and certified by a Senior Officer of the Company as fairly presenting, in all material respects, the financial position of the Company and its Subsidiaries as at the dates indicated and the results of their operations for the Fiscal Months indicated, such consolidated balance sheets and consolidated statements of income in accordance with GAAP, subject to normal year-end adjustments and the absence of footnotes.

(b) Certificates. (i) Together with each delivery of any financial statement pursuant to subsection (a) of this Section 6.01, an Officer’s Certificate substantially in the form of Exhibit G (the “Monthly Officer’s Certificate”), executed by a Senior Officer of the Company, stating that, as of such date, such Senior Officer has reviewed the terms of the Loan Documents, and has made, or caused to be made under his or her supervision, a review in reasonable detail of the transactions and consolidated financial condition of the Company and its Subsidiaries during the accounting period covered by such financial statements, that such review has not disclosed the existence during or at the end of such accounting period, and that such officer does not have knowledge of the existence as at the date of such Officer’s Certificate, of any condition or event which constitutes an Event of Default or a continuing Default, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action the Company and its Subsidiaries have taken, are taking and propose to take with respect thereto and (ii) together with the delivery of any financial statements pursuant to subsection (a) of this Section 6.01 for the third, sixth, ninth and twelfth Fiscal Months of each Fiscal Year, (A) a certificate substantially in the form of Exhibit H (the “Quarterly Compliance Certificate”), signed by the Company’s chief financial officer, chief executive officer or controller, setting forth calculations (with such specificity as the Administrative Agent may reasonably request) for the period then ended which demonstrate compliance, when applicable, with the provisions of Section 2.02, ARTICLE VIII and ARTICLE IX during such period, and (B) a certificate executed by the corporate secretary of the Company, stating that, as of such date, all of the representations and warranties of each Credit Party contained in Article V and in the other Loan Documents are true and correct in all material respects (except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date) and providing, as an attachment thereto updated Schedules to such representations and warranties to reflect matters or events occurring from the date of the prior certificate delivered pursuant to this Section 6.01(b)(i)(B) to the date of such certificate (or, in the case of the first certificate delivered hereunder, from the Closing Date to the date of such certificate), and (iii) together with each delivery of the annual financial projections pursuant to subsection (c) of this Section 6.01, (A) a supplemental update to the Perfection Certificate or a confirmation that the information contained in such Perfection Certificate (as supplemented prior to such date) remains true and complete, and (B) a supplemental update to Schedule 5.01(t)(ii) or a confirmation that the information contained in such schedule (as supplemented prior to such date) remains true and complete, in each case, certified by an Authorized Officer of the Company.

(c) Annual Financial Statements and Projections. As soon as practicable and in any event not later than (i) ninety (90) days following the beginning of each Fiscal Year of the Company (except that the financial statements to be delivered pursuant to this Section 6.01(c)(i) in respect of Fiscal Year 2007 shall be delivered no later than July 31, 2008), the consolidated audited balance sheet of the Company and its Subsidiaries as at the end of the preceding Fiscal Year, and the respective related consolidated audited statements of income or operations, shareholders’ equity and cash flows for the preceding Fiscal Year, setting forth in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, such consolidated balance sheet and statements to be certified by an Authorized Officer of the Company to the best of his or her knowledge, and qualified as set forth in said certification (including that such statements are subject to adjustments required by an independent public accounting firm during the course of its audit for that period), as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP and (ii) forty-five (45) days following the beginning of each Fiscal Year of the Company, a financial forecast, prepared in accordance with the Company’s normal accounting procedures applied on a consistent basis, for such Fiscal Year including (A) a forecasted consolidated balance sheet, and the related consolidated statements of income and cash flows of the Company and its Subsidiaries for and as of the end of such Fiscal Year and (B) the amount of forecasted Capital Expenditures for such Fiscal Year.

(d) Monthly Cash Forecasts and Liquidity Statements. As soon as practicable but in any event not later than (i) twenty-five (25) days following the beginning of each Fiscal Month concluded after the Closing Date, a monthly cash forecast for the next three (3) succeeding Fiscal Months, including the amount of forecasted cash collections and cash disbursements of the Company and its Subsidiaries for each such Fiscal Month, (ii) twenty-five (25) days following the beginning of each Fiscal Month concluded after the Closing Date, a summary of the actual monthly cash performance of the Company and its Subsidiaries for the preceding Fiscal Month, prepared in the same format as the forecasts delivered pursuant to clause (i) of this Section 6.01(d), together with a comparison of such performance to plan and (iii) ten (10) days following the beginning of each Fiscal Month, a statement (including relevant supporting reports) showing Liquidity as of the last day of the preceding Fiscal Month. The reports delivered pursuant to this Section 6.01(d) shall be prepared in accordance with the Company’s normal accounting procedures applied on a consistent basis and acceptable to the Administrative Agent and the Revolving Agent.

The financial statements, forecasts and other reports to be provided pursuant to Sections 6.01(a), (c) and (d) (collectively, the “Reports”), shall each be prepared and delivered to the Term Lenders in consolidated and consolidating (by division) format with respect to the Company and its Subsidiaries. Each Report shall be prepared and delivered to the Revolving Lenders in consolidated format with respect to the Company and its Subsidiaries and in consolidating (by division) format with respect to the Xxxxxxxx Group only in the form previously agreed to between the Borrower and the Revolving Lenders party to this Agreement on the Closing Date (to include revenue, EBITDA and backlog information for the Xxxxxxxx Group); provided that, following the occurrence of an Event of Default, the Reports shall be delivered to the Revolving Lenders in consolidated and consolidating (by division) formats with respect to the Company and its Subsidiaries.

Section 6.02. Other Financial Information. (a) Each Credit Party shall deliver to each Agent and to the Documentation Agent any Credit Party’s such other information, with respect to (i) the Collateral, (ii) any Credit Party’s business, financial condition, results of operations, properties, projections, business or business prospects as such Agent may, from time to time, reasonably request, or (iii) Applicable Taxes or the status of filing the Applicable Tax Returns. Each of the Credit Parties hereby authorizes each Agent, the Documentation Agent and their respective representatives to communicate directly with the accountants so long as an Authorized Officer of such Credit Party participates in such communication and authorizes the accountants to disclose to each Agent, the Documentation Agent, each Lender and their respective representatives any and all financial statements and other financial information, including copies of any final management letter, that such accountants may have with respect to the Collateral or such Credit Party’s financial condition, results of operations, properties, projections, business and business prospects. The Agents, the Documentation Agent, the Lenders and their respective representatives shall treat any non-public information so obtained as confidential pursuant to, with respect to the Agents and the Lenders, Section 13.20 of this Agreement and, with respect to the Documentation Agent, such separate confidentiality agreement entered into between the Documentation Agent and the Credit Parties.

(b) Each of the Credit Parties shall deliver to the Administrative Agent, the Revolving Agent and the Documentation Agent copies of all documents and financial statements, reports and notices, if any, sent or made available generally by such Credit Party to the holders of its Securities or to any Governmental Authority, and promptly upon their becoming available, copies of all press releases and other statements made available by any Credit Party to the public concerning material developments in the business of any Credit Party.

(c) The Company shall deliver to the Administrative Agent, the Revolving Agent and the Documentation Agent copies of any final management reports delivered to any of the Credit Parties or their Subsidiaries by the accountants in connection with the preparation of their financial statements.

Section 6.03. Defaults, Events of Default. Promptly upon any Authorized Officer obtaining knowledge of any condition or event which constitutes an Event of Default or Default, each Credit Party shall deliver to the Administrative Agent, the Revolving Agent and the Documentation Agent an Officer’s Certificate specifying (a) the nature and period of existence of any such claimed Event of Default, Default, condition or event, and (b) what action such Credit Party has taken, is and proposes to take with respect thereto.

Section 6.04. Lawsuits. (a) Promptly upon any Credit Party obtaining knowledge of the institution of, or written threat of, (i) any action, suit, proceeding or arbitration against or affecting such Credit Party or any Subsidiary or asset of such Credit Party which action, suit, proceeding or arbitration (A) claims damages in excess of $5,000,000 (five million Dollars), (B) could reasonably be expected to have a Material Adverse Effect, or (C) purports to affect the legality, validity or enforceability of any Loan Document, the Obligations or the security therefore, (ii) any investigation or proceeding before or by any Governmental Authority, the effect of which could reasonably be expected to materially limit, prohibit or restrict the manner in which such Credit Party currently conducts its business, (iii) any Forfeiture Proceeding which could reasonably be expected to have a Material Adverse Effect, and (iv) any material Condemnation or Condemnation proceeding, such Credit Party shall give written notice thereof to the Administrative Agent, the Revolving Agent and the Documentation Agent and provide such other information reasonably requested by the Administrative Agent, the Revolving Agent or the Documentation Agent as may be reasonably available to enable the Administrative Agent, the Revolving Agent or the Documentation Agent to evaluate such matters except, in each case, where the same is fully covered by insurance (other than applicable deductibles), and (b) in addition to the requirements set forth in clause (a) of this Section 6.04, such Credit Party, upon request of the Administrative Agent, the Revolving Agent or the Documentation Agent, shall promptly give written notice of the status of any action, suit, proceeding, governmental investigation or arbitration covered by a report delivered pursuant to clause (a) above and provide such other information as may be reasonably requested by the Administrative Agent, the Revolving Agent or the Documentation Agent and reasonably available to such Credit Party to enable the Administrative Agent, the Revolving Agent or the Documentation Agent to evaluate such matters.

Section 6.05. Insurance. As soon as practicable and in any event within ten (10) Business Days of any cancellation without replacement thereof of any material insurance coverage set forth on the most recent schedule delivered pursuant to Section 5.01(r), the Company shall deliver to the Administrative Agent, Revolving Agent and Documentation Agent notice of such cancellation.

Section 6.06. Environmental Notices. The Credit Parties shall, and shall cause their Subsidiaries to, notify the Agents and the Documentation Agent, in writing, promptly, and in any event within ten (10) Business Days after such Credit Party’s obtaining knowledge thereof, of any: (a) notice or claim to the effect that such Credit Party or any of its Subsidiaries is or may be liable to any Person as a result of the Release of any Hazardous Material; (b) investigation by any Governmental Authority of any Credit Party or any of its Subsidiaries evaluating whether any Remedial Action is needed to respond to the Release of any Hazardous Material; (c) notice that any Property of such Credit Party or any of its Subsidiaries is subject to an Environmental Lien; (d) any material violation of Environmental Laws by such Credit Party or any of its Subsidiaries or awareness by such Credit Party of a condition which would reasonably be expected to result in a material violation of any Environmental Law by such Credit Party or any of its Subsidiaries; (e) commencement or written threat of any judicial or administrative proceeding alleging a violation of or liability under any Environmental Law involving such Credit Party or any of its Subsidiaries; (f) any proposed acquisition of stock, assets, real estate or leasing of property, or any other action by such Credit Party or any of its Subsidiaries that would reasonably be expected to subject such Credit Party or such Subsidiary to material Environmental Liabilities and Costs; or (g) notice by or to a Governmental Authority concerning any Release of a Hazardous Material in excess of any reportable quantity from or onto property owned or operated by such Credit Party or any of its Subsidiaries or any Release or event requiring reporting pursuant to any Environmental Law or any material obligation to take any Remedial Action to xxxxx any Release. For purposes of this Section 6.06, notice shall include any other written communications given to an agent or employee of any Credit Party with direct or indirect supervisory responsibility with respect to the activity, if any, which is the subject of such notice. Upon the written request of the Administrative Agent, the Credit Parties shall provide the Administrative Agent with copies of any non-privileged documents related to any matter for which notice has been given pursuant to this Section 6.06.

Section 6.07. Labor Matters. Each Credit Party shall notify the Administrative Agent, the Revolving Agent and the Documentation Agent in writing, promptly, but in any event within ten (10) Business Days after learning thereof, of (a) any material labor dispute to which such Credit Party could reasonably be likely to become a party, any actual or threatened strikes, lockouts or other disputes relating to such Credit Party’s plants and other facilities and (b) any material liability incurred with respect to the closing of any plant or other facility of such Credit Party.

Section 6.08. Other Information. Promptly upon receiving a request therefor from the Administrative Agent, Revolving Agent or the Documentation Agent, each Credit Party shall prepare and deliver to the Administrative Agent, the Revolving Agent and the Documentation Agent (a) such other information with respect to such Credit Party’s business, financial condition, results of operations, properties, projections, business or business prospects, (b) such other information with respect to the Collateral, including, without limitation, schedules identifying and describing the Collateral and any Dispositions thereof or (c) such other information with respect to such Credit Party, as from time to time may be reasonably requested by the Administrative Agent, the Revolving Agent or the Documentation Agent.

Section 6.09. Taxes. The Credit Parties shall, and shall cause their Subsidiaries to, notify the Agents and the Documentation Agent, in writing, promptly, and in any event within five (5) Business Days after receipt thereof, of any: (a) notice or claim to the effect that a Credit Party or any Subsidiary of a Credit Party is or may be liable to any Governmental Authority for any Applicable Taxes; (b) notice that any Property of a Credit Party or any Subsidiary of a Credit Party is or may become subject to a Lien in favor of any Governmental Authority for Taxes; or (c) commencement or written threat of any judicial or administrative proceeding involving any Credit Party or any Subsidiary of any Credit Party for any Applicable Taxes. For purposes of this Section 6.09, notice shall include any other written communications given to an agent or employee of any Credit Party with direct or indirect supervisory responsibility with respect to the activity, if any, which is the subject of such notice. Upon the written request of the Administrative Agent, the Credit Parties shall provide the Administrative Agent with copies of any non-privileged documents related to any matter for which notice has been given pursuant to this Section 6.09.

ARTICLE VII

AFFIRMATIVE COVENANTS

Each Credit Party covenants and agrees jointly and severally, from and after the date hereof (except as otherwise provided herein, or unless the Required Lenders have given their prior written consent) until all amounts owing hereunder or under any Loan Document or in connection herewith or therewith have been paid in full, that:

Section 7.01. Compliance with Laws. Each Credit Party shall, and shall cause each of its Subsidiaries to, comply with all Requirements of Law (including with respect to the licenses, approvals, certificates, permits, franchises, notices, registrations and other governmental authorizations necessary to the ownership of its respective properties or to the conduct of its respective business, antitrust laws or Environmental Laws and laws with respect to social security and pension funds obligations) any judgment or order of any Governmental Authority applicable to it or any of its property or assets, and any material term of any Material Contract binding on it or any of its properties, except where the failure to do so, in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. Each Credit Party shall, and shall cause each of its Subsidiaries to, have policies in place to observe the applicable requirements of the Patriot Act-Related Requirements consistent with U.S. industry practice.

Section 7.02. Payment of Taxes and Claims. Each Credit Party shall, and shall cause each of its Subsidiaries to, pay (a) all material Taxes, assessments and other governmental charges imposed upon it or on any of its Properties or assets or in respect of any of its franchises, business, income or Property, and (b) all claims (including claims for labor, services, materials and supplies) for sums material in the aggregate to such Credit Party which have become due and payable and which by law have resulted or may result in a Lien upon any of such Credit Party’s Properties or assets, in each case prior to the time when any penalty or fine will be incurred by the Credit Party with respect thereto, except for (i) such Taxes, assessments, other governmental charges and claims that are being contested in a Permitted Protest or (ii) to the extent that the aggregate amount of such Taxes, assessments, charges and claims does not exceed $500,000 (five hundred thousand Dollars) at any one time.

Section 7.03. Preservation of Corporate Existence. Each Credit Party shall, and shall cause each of its Subsidiaries to preserve and maintain its corporate existence; provided that this Section 7.03 shall not prohibit any merger, consolidation, liquidation or dissolution otherwise permitted by Section 8.04 or any sale, transfer or other Disposition permitted under Section 8.05.

Section 7.04. Inspection of Property; Books and Records; Discussions. At any reasonable time during normal business hours and from time to time with at least three (3) Business Days’ prior notice, or at any time if a Default or Event of Default shall have occurred and be continuing, each Credit Party shall, and shall cause each of its Subsidiaries to, permit any authorized representative(s) designated by any Agent to visit and inspect any of its assets, to examine, audit, check and make copies of its financial and accounting records, books, journals, orders, receipts and any correspondence with regulators and other data relating to its respective businesses or the transactions contemplated by the Loan Documents (including in connection with environmental compliance, hazard or liability or insurance programs and in connection with the filing of any Tax Returns), and to discuss its affairs, finances and accounts with its officers and independent certified public accountants, all upon reasonable notice and at such reasonable times during normal business hours. The visitations and/or inspections by or on behalf of the Agents shall be at the Borrower’s expense; provided, however, that so long as no Default or Event of Default has occurred and is continuing, no more than one (1) visitation or inspection per Credit Party shall be made in any Fiscal Year. Each Credit Party shall, and shall cause each of its Subsidiaries to, keep and maintain in all material respects proper, complete and accurate books of record and account, in which entries in conformity with GAAP shall be made of all dealings and financial transactions and the assets and business of such Credit Party or Subsidiary in relation to its businesses and activities, including transactions and other dealings with respect to the Collateral. In addition, until all Applicable Tax Returns due have been filed, the Revolving Agent and/or the Administrative Agent may, at the Borrower’s expense, conduct tax Lien searches as to any Credit Party or any Subsidiary of a Credit Party, from time to time and in such Agent’s sole discretion, which is anticipated to be no less frequently than monthly. If an Event of Default has occurred and is continuing and the Loans have been accelerated, the Borrower, upon any Agent’s request, shall provide copies of any such records to such Agent or its representatives.

Section 7.05. Maintenance of Properties. Each Credit Party shall, and shall cause each of its Subsidiaries to, maintain, preserve and protect consistent with past practice all of its tangible Properties which are necessary or useful in the proper conduct of its business in good working order and condition, ordinary wear and tear and Casualty and Condemnation excepted, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, and comply in all material respects with the provisions of all material Leases to which it is a party so as to prevent any material loss or forfeiture thereof or thereunder. With respect to Company Intellectual Property, if consistent with reasonable commercial judgment, each Credit Party shall, and shall cause each of its Subsidiaries to, maintain all Company Intellectual Property owned by such Credit Party or Subsidiary, including taking all commercially reasonable steps to preserve and protect such Company Intellectual Property, including maintaining the quality of any and all products or services used or provided in connection with any Trademark, substantially consistent with the quality of the products and services as of the date hereof, and ensuring that all licensed users of any such Trademark use such substantially consistent standards of quality. Immediately upon learning of the institution of any Condemnation of any of its owned or leased real property, any Credit Party shall notify each of the Agents of the pendency of such proceeding.

Section 7.06. Further Assurances. Each Credit Party shall take such action and execute, acknowledge and deliver, and cause each of its Subsidiaries to take such action and execute, acknowledge and deliver, at its sole cost and expense, such agreements, instruments, updated or amended schedules (including without limitation Schedule 5.01(u)) or other documents as the Collateral Agent may reasonably require from time to time in order (a) to carry out more effectively the purposes of this Agreement and the other Loan Documents, (b) to subject to valid and perfected first priority Liens (except for Permitted Liens) any of the Collateral or any other property of the Credit Parties acquired after the Closing Date and required to be so perfected pursuant to any Loan Document, (c) to establish and maintain the validity and effectiveness of any of the Loan Documents and the validity, perfection and priority of the Liens intended to be created thereby (except for Permitted Liens), and (d) to better assure, convey, grant, assign, transfer and confirm unto the Collateral Agent for the ratable benefit of the Secured Parties the rights now or hereafter intended to be granted to the Collateral Agent for the ratable benefit of the Secured Parties under this Agreement or any other Loan Document.

Section 7.07. Additional Security; Additional Guarantees; Further Assurances.

(a) If any Credit Party acquires a fee interest in any Real Estate Asset with a fair market value in excess of five hundred thousand Dollars ($500,000), such Credit Party shall notify the Agents thereof within fifteen (15) days thereafter, and if such interest has not otherwise been made subject to a Lien in favor of Collateral Agent, for the benefit of the Secured Parties, under a Mortgage delivered on the date hereof, then within sixty (60) days after acquiring such Real Estate Asset, or such later time as may be reasonably necessary, in the Collateral Agent’s reasonable discretion, the applicable Credit Party shall take all such actions and execute and deliver, or cause to be executed and delivered to the Agents, all such Mortgages, documents, instruments, agreements, opinions and certificates that the Collateral Agent shall reasonably request to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable perfected first priority (subject to any Permitted Liens) Lien and security interest in such Real Estate Asset. In addition to the foregoing, each Credit Party shall, at the request of the Required Lenders, deliver, from time to time, to the Administrative Agent and the Revolving Agent such appraisals as are required by law or regulation applicable to such Real Estate Asset or to any Secured Party’s interest in such Real Estate Asset hereunder or under any Mortgage thereof.

(b) If any Credit Party acquires or develops any Intellectual Property, such Credit Party shall notify the Agents thereof within fifteen (15) days thereafter, and if such Intellectual Property has not otherwise been made subject to a valid and enforceable perfected first priority (subject to any Permitted Liens) Lien in favor of the Collateral Agent, for the benefit of the Secured Parties, then within fifteen (15) days after acquiring such Intellectual Property, or such later time as may be reasonably necessary, in the Collateral Agent’s reasonable discretion, the Credit Parties shall take all such actions and execute and deliver, or cause to be executed and delivered to the Agents, all such documents, instruments, agreements, opinions and certificates that the Collateral Agent shall reasonably request to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and enforceable perfected first priority (subject to any Permitted Liens) Lien and security interest in such Intellectual Property.

(c) Each Credit Party shall pledge, or cause to be pledged, to the Collateral Agent, for the benefit of the Collateral Agent and Secured Parties, all of the Capital Stock owned by a Credit Party of each Person that after the date hereof becomes a Domestic Subsidiary of such Credit Party, and 65% of the voting Capital Stock and 100% of the non-voting Capital Stock of each new Foreign Subsidiary of such Credit Party. The documentation for such security and pledge shall be in form and substance reasonably satisfactory to the Administrative Agent or the Collateral Agent and shall be substantially similar to the Loan Documents executed concurrently herewith with such modifications as are reasonably requested by the Collateral Agent.

(d) Each Credit Party will cause each Subsidiary which, after the Closing Date, is required to become a Guarantor to, at its own expense, execute, acknowledge and deliver, or cause the execution, acknowledgment and delivery of, and thereafter register, file or record in any appropriate governmental office, any document or instrument reasonably deemed by the Collateral Agent to be necessary or desirable for the creation and perfection of the Liens on its assets intended to be created pursuant to the relevant Security Documents. The Credit Parties will take, and cause each Subsidiary described above in Section 7.07(c) to take, all actions reasonably requested by any Agent (including the filing of UCC-1s (or the appropriate equivalent filings under the laws of any relevant foreign jurisdiction), or the furnishing of legal opinions, etc.) in connection with the granting of such Liens.

(e) The Liens required to be granted pursuant to this Section 7.07 shall be granted pursuant to the respective Security Documents executed and delivered by the Credit Parties (or other security documentation substantially similar to such Security Documents or otherwise reasonably satisfactory in form and substance to the Collateral Agent) for the benefit of the Secured Parties and shall constitute valid and enforceable first priority perfected Liens on all of the Collateral subject thereto, prior to the rights of all third Persons and subject to no other Liens except Permitted Liens, and with such exceptions, conditions and qualifications as shall be permitted by the respective Security Documents. Any Additional Security Documents and other instruments related thereto or related to existing Security Documents shall be duly recorded or filed in such manner and in such places and at such times as are required by law to create, maintain, effect, perfect, preserve, maintain and protect the Liens, in favor of the Collateral Agent for the benefit of the Secured Parties, required to be granted pursuant to the Loan Documents and all taxes, fees and other charges payable in connection therewith shall be paid in full by the Borrower. At the time of the execution and delivery of any Security Documents or Additional Security Documents, the Credit Parties will, at the request of the Collateral Agent, cause to be delivered to the Collateral Agent such customary opinions of counsel and other related documents as may be reasonably requested by the Collateral Agent to assure that this Section 7.07 has been complied with.

(f) Each Credit Party jointly and severally agrees that each action required above by this Section 7.07 shall be completed as promptly as reasonably practicable after such action is requested to be taken by any Agent; provided that any action required above by Section 7.07(c), (d), or (e) with respect to a newly formed, created or acquired Subsidiary shall be completed as promptly as practicable following the formation, creation or acquisition of such Subsidiary.

Section 7.08. Powers; Conduct of Business. Each Credit Party shall, and shall cause each of its Subsidiaries to, qualify and remain qualified to do business and in good standing in each jurisdiction in which the nature of its business or the ownership of its properties requires it to be so qualified except for those jurisdictions where failure to so qualify does not have or could not reasonably be expected to have a Material Adverse Effect. Each Credit Party shall obtain, maintain and preserve, and cause each of its Subsidiaries to obtain, maintain and preserve, all permits, licenses, authorizations, approvals, entitlements and accreditations which are necessary or useful in the proper conduct of its business, except where the failure to maintain and preserve such permits, licenses, authorizations, approvals, entitlements and accreditations does not or could not reasonably be expected to have a Material Adverse Effect.

Section 7.09. Use of Proceeds. Proceeds of the Loans shall be used in accordance with Section 1.03 hereof.

Section 7.10. Environmental. Each Credit Party shall, and shall cause each of its Subsidiaries to, (a) comply, and cause it Subsidiaries to comply, in all material respects with Environmental Laws and provide to the Collateral Agent documentation of such compliance which Collateral Agent reasonably requests, which documentation shall include a notice by the Company six (6) months after the Closing Date of the steps taken by the Credit Parties or their Subsidiaries to address any outstanding matters described on Schedule 5.01(q), (b) in the event of any material violation of any Environmental Law promptly commence and diligently pursue appropriate measures to xxxxx such violation, and (c) perform any Remedial Action at property owned or operated by any Credit Party or any Subsidiary of any Credit Party (i) that is required of any Credit Party or any such Subsidiary pursuant to any Environmental Law or agreement with any Governmental Authority, or (ii) that was initiated prior to the Closing Date and is identified on Schedule 5.01(q).

Section 7.11. Fiscal Year. Each Credit Party shall cause its Fiscal Year to end on December 31 of each year unless the Required Lenders consent to a change in such Fiscal Year (and appropriate related changes to this Agreement).

Section 7.12. Maintenance of Insurance. (a) Each Credit Party shall maintain, and cause each of its Subsidiaries to maintain (either in the name of such Credit Party or in such Subsidiary’s own name), insurance with financially sound and reputable insurance companies or associations (including, without limitation, commercial general liability, property and business interruption insurance) with respect to its Properties (including all Real Estate Assets leased or owned by it) and business, in such amounts and covering such risks as is required by any Governmental Authority having jurisdiction with respect thereto or as is carried generally in accordance with sound business practice by companies of similar size in similar businesses similarly situated. All property policies covering the Collateral shall name the Collateral Agent as an additional insured or loss payee, in case of loss. All certificates of insurance are to be delivered to the Collateral Agent and the policies shall contain a loss payable and additional insured endorsements in favor of the Collateral Agent (substantially in the form reasonably requested by the Collateral Agent), and shall provide for not less than thirty (30) days’ prior written notice to the Collateral Agent and other named insureds of the exercise of any right of cancellation.

(b) Each Credit Party shall provide, and shall cause each of its Subsidiaries to provide, the Collateral Agent with copies of all insurance renewal certificates obtained by the Credit Parties and their Subsidiaries within three (3) Business Days of the receipt thereof.

(c) Until the indefeasible payment and satisfaction in full in cash of the Obligations, each Credit Party hereby waives, and shall cause each of its Subsidiaries to waive, all rights of subrogation against any Agent and the Secured Parties.

Section 7.13. Change in Collateral; Collateral Records. Each Credit Party shall advise the Collateral Agent promptly, in sufficient detail, of any change which could reasonably be expected to have a Material Adverse Effect relating to the value of the Collateral or any Lien granted thereon (other than Permitted Liens) and execute and, upon the Collateral Agent’s reasonable request, deliver, and cause each of its Subsidiaries to execute and deliver, to the Collateral Agent from time to time, solely for the Collateral Agent’s convenience in maintaining a record of Collateral, such written statements and schedules, maintained by any Credit Party or any Subsidiary of any Credit Party in the ordinary course of business, as the Collateral Agent may reasonably require, designating, identifying or describing the Collateral.

Section 7.14. Formation of Subsidiaries. In addition to Section 7.07, at the time that any Credit Party forms any Domestic Subsidiary or acquires any Domestic Subsidiary after the Closing Date, such Credit Party shall within twenty (20) days (a) cause such Domestic Subsidiary to execute and deliver to each Agent a Guarantor Joinder Agreement in the form of Exhibit K-2, the Security Agreement, and such security documents all in form and substance reasonably satisfactory to the Agents (including being sufficient to grant the Collateral Agent, on behalf of the Secured Parties, a first priority Lien (subject to Permitted Liens) in and to the assets of such newly formed or acquired Subsidiary) and (b) provide to the Agents all other documentation (including financing statements), including, at the Collateral Agent’s request, one or more opinions of counsel reasonably satisfactory to the Agents, which in the opinion of each of them is appropriate with respect to the execution and delivery of the applicable documentation referred to above (including the grant and perfection of any Lien contemplated thereby). Any document, agreement, or instrument executed or issued pursuant to clause (a) of this Section 7.14 shall be a Loan Document.

Section 7.15. Cash Management.

(a) No Credit Party shall have any Deposit Account (other than the Excluded Account), commodities account or Securities Account other than accounts subject to Control Agreements and the Credit Parties shall cause the Collateral Agent, on behalf of the Secured Parties, to have a valid, perfected, first-priority security interest in such accounts, subject in the case of the Excluded Account only, to the Lien permitted under Section 8.01(m). The Credit Parties shall not permit the balance in the Excluded Account to exceed $3,000,000 (plus accrued and unpaid interest thereon) at any time.

(b) No Credit Party shall close any Deposit Account, commodities account or Securities Account or any lockbox maintained by it as of the date hereof without the prior written consent of the Collateral Agent.

(c) Each Credit Party shall take all reasonable steps necessary from time to time to deposit or cause to be deposited promptly all of its Collections (including those sent in cash or otherwise directly to any Credit Party) into an account subject to a Control Agreement (other than with respect to the Excluded Account).

(d) The Credit Parties shall notify each Agent in writing no later than ten (10) days prior to the establishment of any Deposit Account, commodities account or Securities Account that would have been required to be listed on Schedule 5.01(t) if such account was established on or prior to the Closing Date.

(e) Each Credit Party shall comply in all material respects with the provisions of each Control Agreement to which it is a party.

ARTICLE VIII

NEGATIVE COVENANTS

Each Credit Party covenants and agrees jointly and severally, from and after the date hereof (except as otherwise provided herein, or unless the Required Lenders have given their prior written consent) until all amounts owing hereunder or under any other Loan Document or in connection herewith or therewith have been paid in full that:

Section 8.01. Liens. It shall not and shall not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following (such Liens described below being referred to herein as “Permitted Liens”):

(a) Liens in favor of the Collateral Agent for the benefit of the Secured Party pursuant to any Loan Document;

(b) Liens existing on the Closing Date in the amounts and as otherwise listed on Schedule 8.01 and any renewals or extensions thereof in connection with any refinancing or renewal of the obligations secured thereby; provided that (i) such Lien is not extended to cover any additional property, (ii) the amount secured or benefited thereby is not increased from the amount then due on the obligation so refinanced or renewed and (iii) the direct or any contingent obligor with respect thereto is not changed;

(c) Statutory Liens for Taxes, fees, assessments or other governmental charges, not yet due or which are not delinquent or remain payable without penalty, or to the extent subject to a Permitted Protest;

(d) Statutory Liens securing the rights or claims of carriers, warehousemen, mechanics, materialmen, repairmen, landlords or other like Liens in favor of similar Persons arising in the ordinary course of business which are not delinquent or which are the subject of a Permitted Protest;

(e) Liens consisting of pledges or deposits required to be made by the Company or any of its Subsidiaries in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation or public liability laws or similar legislation, other than any Lien imposed by ERISA;

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

(g) Liens incurred or deposits made to secure performance of (i) tenders, statutory obligations, bids, trade contracts, leases or other similar obligations (other than for borrowed money) entered into in the ordinary course of business or (ii) obligations under performance or surety bonds provided in the ordinary course of business; provided that any such Liens permitted under this Section 8.01(g) shall attach only to property directly relating to, or that is the subject of, such underlying obligations;

(h) licenses, operating Leases or subleases granted or entered into in the ordinary course of business not interfering in any material respect with the business of the Company or any of its Subsidiaries and not constituting Indebtedness;

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

(j) Liens upon assets of the Company or any of its Subsidiaries subject to Capital Lease Obligations or purchase money Indebtedness to the extent such Capital Lease Obligations or purchase money Indebtedness are permitted by Section 8.03(i); provided that (x) such Liens only serve to secure the payment of Indebtedness arising under such Capital Lease Obligations or purchase money Indebtedness and (y) the Lien encumbering the asset or assets giving rise to any Capital Lease Obligations or purchase money Indebtedness does not encumber any other asset of the Company or any of its Subsidiaries;

(k) Liens arising from precautionary UCC financing statement filings regarding operating leases entered into in the ordinary course of business or from UCC financing statement filings or any other similar notices of Lien under any similar recording or notice statute regarding Liens permitted hereunder;

(l) Liens upon the Property of Foreign Subsidiaries securing Indebtedness permitted under Section 8.03(b); provided that (x) such Liens only serve to secure the payment of Indebtedness of Foreign Subsidiaries and (y) the Lien encumbering such Property does not encumber any other asset of the Company or any of its other Subsidiaries; and

(m) a Lien in favor of Bank of America N.A. upon cash and/or Cash Equivalents in the Excluded Account in an amount not to exceed $3,000,000 (three million Dollars) plus the amount of accrued and unpaid interest thereon;

(n) statutory banker’s Liens or set-off rights in Deposit Accounts, Securities Accounts or commodities accounts to the extent of monthly and customary fees not yet due for maintenance of any Deposit Account, Securities Account or commodities account and permitted under a Control Agreement governing such Deposit Account, Securities Account or commodities account.

Section 8.02. Investments. It shall not and shall not permit any of its Subsidiaries to, directly or indirectly make or hold any Investments in any Person, except:

(a) Investments held in the form of cash or Cash Equivalents;

(b) Investments made prior to the Closing Date set forth in Schedule 8.02;

(c) Advances or loans to directors, officers and employees of any Credit Party in the ordinary course of business as presently conducted in an aggregate principal amount not to exceed $100,000 in the aggregate at any one time outstanding;

(d) Investments by:

(i) any Credit Party in and to any Foreign Subsidiary in the form of contributions to capital, loans, advances, guarantees or other forms of credit support; provided that (A) the aggregate amount of such Investments does not exceed (i) $250,000 (two hundred and fifty thousand Dollars) outstanding at any time, plus (ii) up to $500,000 outstanding at any time from Xxxxxx Manufacturing LLC to Xxxxxx Manufacturing S.A. de C.V., and (B) each item of intercompany Indebtedness shall be evidenced by the Global Intercompany Note which shall be pledged as security for the Obligations of the holder thereof under the Loan Documents and delivered to the Administrative Agent pursuant to the terms of the Security Documents;

(ii) any Credit Party in and to any other Credit Party in the form of contributions to capital or loans or advances; provided that (A) any intercompany Indebtedness shall be unsecured, and (B) each item of intercompany Indebtedness held by any Credit Party shall be evidenced by the Global Intercompany Note which shall be pledged as security for the obligations of the holder thereof under the Loan Documents and delivered to the Administrative Agent pursuant to the terms of the Security Documents;

(iii) any Foreign Subsidiary in and to any other Foreign Subsidiary in an aggregate amount not to exceed $1,000,000;

(e) Guarantees permitted by Section 8.03(c);

(f) Investments received in connection with (x) the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business, or (y) in satisfaction of judgments or in settlement of litigation, arbitration or other disputes;

(g) Investments made by the Company and its Subsidiaries that constitute (i) accounts receivable arising, (ii) trade debt granted, or (iii) deposits made in connection with the purchase price of goods or services, in each case in the ordinary course of business;

(h) advances to subcontractors in the ordinary course of business;

(i) Investments by Foreign Subsidiaries not to exceed $500,000 in the aggregate;

(j) Investments consisting of the entry into joint venture agreements for unincorporated joint ventures by any Credit Party for the limited purpose of negotiating, signing and performing construction, engineering, procurement, construction management and similar services provided that the aggregate value of all such Investments does not exceed $500,000 at any one time outstanding and provided further that no Credit Party or any Subsidiary of any Credit Party shall have any liability in excess of the Investment actually paid to such joint venture (as permitted by this Section 8.02(j)) for any Indebtedness or any other obligation of any such joint venture; and

(k) Investments by a Credit Party in the form of Letters of Credit issued under this Agreement (i) in favor of the customers of Xxxxxx Europe to support the obligations of Xxxxxx Europe to such customers under Xxxxxx Europe Project Contracts in an aggregate amount that, when added together with the Letters of Credit listed on Schedule 8.02 in favor of customers of Xxxxxx Europe, does not exceed $5,000,000 (five million dollars); and/or (ii) in favor of the lender or lenders to Xxxxxx Shanghai to support, and not to exceed the amount of, Indebtedness permitted under Section 8.03(k).

Section 8.03. Indebtedness. It shall not and shall not permit any of its Subsidiaries to, directly or indirectly create, incur, assume or suffer to exist any Indebtedness, except for the following (such Indebtedness described below being referred to herein as “Permitted Indebtedness”):

(a) Indebtedness under the Loan Documents or any Hedging Agreement;

(b) Indebtedness outstanding prior to the Closing Date in the amount and as otherwise set forth in Schedule 8.03 and, solely with respect to the facility provided by ABN Amro as specified on Schedule 8.03, any Permitted Indebtedness Refinancing in respect of such facility;

(d) intercompany Indebtedness permitted under Section 8.02(d);

(e) (i) Indebtedness of the Company and its Subsidiaries in respect of performance, surety or appeal bonds provided in the ordinary course of business or (ii) unsecured Indebtedness of the Company and its Subsidiaries in respect of performance or completion guarantees provided in the ordinary course of business, but excluding, in each case, Indebtedness incurred through the borrowing of money or contingent liabilities in respect thereof and provided that the aggregate amount of all Indebtedness under this Section 8.03(e), when added together with all Indebtedness consisting of performance, surety or appeal bonds and performance guarantees permitted under Section 8.03(b), does not exceed $60,000,000 outstanding at any time;

(f) Indebtedness of the Company and its Subsidiaries in respect of trade payables and accrued expenses arising in the ordinary course of business;

(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, so long as such Indebtedness is extinguished within five (5) Business Days of its incurrence;

(h) Indebtedness which may be deemed to exist in connection with agreements providing for indemnification, purchase price adjustments and similar obligations in connection with the acquisition or disposition of assets in accordance with the requirements of this Agreement;

(i) Indebtedness of the Borrower and its Subsidiaries evidenced by Capitalized Lease Obligations and purchase money Indebtedness, in an aggregate principal amount not to exceed $2,000,000 at any time outstanding;

(j) Indebtedness of Xxxxxx Europe under (i) a revolving credit facility in an amount not to exceed €1,000,000 and (ii) a letter of credit facility in an amount not to exceed €5,000,000;

(k) Indebtedness of Xxxxxx Shanghai in an aggregate amount not to exceed $2,000,000; and

(l) so long as no Default or Event of Default then exists or would result therefrom, additional Indebtedness not otherwise permitted hereunder in an aggregate principal amount not to exceed $1,000,000 at any time outstanding.

Section 8.04. Fundamental Changes and Acquisitions. It shall not and shall not permit any of its Subsidiaries to, directly or indirectly, (a) merge, dissolve, liquidate, consolidate with or into another Person, (b) in addition to the conditions in Section 8.05, Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person or (c) acquire all or substantially all of the assets of any Person or any division, brand or business unit thereof; provided that any Credit Party may merge into or consolidate with another Credit Party (provided that a Borrower is the surviving entity to any such merger or consolidation between a Guarantor and a Borrower), make such Disposal to another Credit Party, or make such acquisition from another Credit Party and further provided that any Immaterial Foreign Subsidiary may voluntarily dissolve or merge into a Credit Party or a Subsidiary of a Credit Party.

Section 8.05. Dispositions. It shall not and shall not permit any of its Subsidiaries to, directly or indirectly, make any Disposition (other than any Casualty or Condemnation) or enter into any agreement to make any Disposition, except:

(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;

(b) Dispositions of inventory and finished goods (i) in the ordinary course of business or (ii) consisting of the Deltak Customer Equipment Disposition;

(c) Dispositions of equipment or real property in the ordinary course of business in an amount not to exceed $500,000 per annum;

(d) (i) Dispositions of Property of any Credit Party to another Credit Party and (ii) Dispositions by any Credit Party of equipment not used in the business of such Credit Party to a Foreign Subsidiary, provided that with respect to any such Disposition by a Credit Party to a Foreign Subsidiary, such Disposition shall only be permitted to the extent the Deemed Investment Amount (as defined below) is permitted as an Investment under Section 8.02(d)(i) (and “Deemed Investment Amount” shall mean the amount by which the fair market value of the relevant Disposition exceeds the consideration received for such Disposition);

(e) Dispositions pursuant to a non-exclusive licensing arrangement entered into by the Company or any of its Subsidiaries with respect to any of its Intellectual Property in the ordinary course of its business consistent with past practice; and

(f) Any Disposition not otherwise permitted pursuant to this Section 8.05 provided (i) the Disposition is for not less than the fair market value of the assets subject thereto, (ii) the consideration received by the Company or applicable Subsidiary consists of at least 75% Cash, (iii) the net book value of such assets, together with the net book value of all other assets Disposed of pursuant to this clause (f), does not exceed $2,500,000 over the term of this Agreement, (iv) immediately prior to and after giving effect to such Disposition no Default shall have occurred and be continuing and (v) the proceeds thereof are applied pursuant to Section 2.02.

Section 8.06. Restricted Payments. It shall not and shall not permit any of its Subsidiaries to, directly or indirectly declare or make any Restricted Payment or incur any obligation contingent or otherwise to do so; provided that (a) any Credit Party may make Restricted Payments to any other Credit Party, (b) any Subsidiary that is not a Credit Party may make Restricted Payments to any Credit Party, (c) any Subsidiary that is not a Credit Party may make Restricted Payments to any wholly owned Subsidiary of any Credit Party and (d) the Company may redeem, repurchase or otherwise acquire for value outstanding Capital Stock of the Company (or options or warrants to purchases the Company’s Capital Stock) following the death, disability or termination of employment of officers, directors or employees of the Company or any of its Subsidiaries so long as such redemption, repurchase or acquisition would not result in a Default or Event of Default.

Section 8.07. Amendment of Governing Documents. It shall not and shall not permit any of its Subsidiaries to amend, modify or otherwise change (a) its Governing Documents in any manner materially adverse to the Lenders or (b) its accounting policies or reporting practices.

Section 8.08. Change in Nature of Business. It shall not and shall not permit any of its Subsidiaries to, directly or indirectly engage in any business activity except (a) the business of designing, engineering, fabricating, installing and servicing equipment for the global energy, power infrastructure, process and other industrial operations or (b) providing routine and specialty maintenance and construction services to Persons engaged in the global energy, power infrastructure, process and other industrial operations and to governmental agencies and business activities that are reasonable extensions thereof and activities reasonably incidental thereto.

Section 8.09. Transactions with Affiliates. It shall not and shall not permit any of its Subsidiaries to, directly or indirectly engage in any transaction or series of transactions with any Affiliate of any Credit Party other than (i) transactions exclusively between or among the Company and one or more Credit Parties that are Wholly-Owned Subsidiaries and not Foreign Subsidiaries or exclusively between or among such Credit Parties; (ii) transactions in the ordinary course of its business on terms and conditions as favorable to the Company or such Credit Party as would be obtainable by it in a comparable arm’s-length transaction with an independent, unrelated third party and (iii) to the extent permitted by Sections 8.01, 8.02, 8.04, 8.05 or 8.06.

Section 8.10. Limitations on Restricted Actions. It shall not and shall not permit any of its Subsidiaries to, directly or indirectly enter into or create or otherwise cause to exist or become effective any agreement or arrangement other than the Loan Documents that: (a) limits the ability (i) of any Credit Party to make Restricted Payments to any other Credit Party or any Domestic Subsidiary of a Credit Party except as provided in Section 8.14, (ii) of any Credit Party to act as a guarantor and pledge its assets pursuant to the Loan Documents; or (iii) of any Credit Party to create, incur, assume or suffer to exist Liens in favor of the Secured Parties on property of such Person; provided, however, that this clause (iii) shall not prohibit (A) customary provisions restricting subletting or assignment of any Lease governing any Leasehold Property of the Company or any of its Subsidiaries, (B) customary provisions restricting assignment of any licensing agreement (in which the Company or any of its Subsidiaries is the licensee) or other contract entered into by the Company or any of its Subsidiaries in the ordinary course of business and (C) any Operating Lease or Capitalized Lease, insofar as the provisions thereof limit grants of a security interest in, or other assignments of, the related Leasehold Property to any other Person; or (b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person.

Section 8.11. Sale-Leasebacks; Off-Balance Sheet Obligation. It shall not and shall not permit any of its Subsidiaries to, directly or indirectly enter into any Sale and Leaseback Transaction or Off-Balance Sheet Obligation.

Section 8.12. Impairment of Security Interests. It shall not and shall not permit any of its Subsidiaries to, directly or indirectly (a) refuse to take or omit to take any action within ten (10) days following the request by any Agent to take or omit to take such action, which action or omission is, in the reasonable opinion of such Agent, necessary so as not to terminate, impair or limit the security interests in favor of the Secured Parties with respect to the Collateral or (b) grant to any Person (other than the Collateral Agent pursuant to the Security Documents) any interest whatsoever in the Collateral (other than Permitted Liens).

Section 8.13. Ownership of Subsidiaries and Other Restrictions Relating to the Subsidiaries. Notwithstanding any other provision of this Agreement, It shall not and shall not permit any of its Subsidiaries to, directly or indirectly permit any Person (other than the Company or any Wholly-Owned Subsidiary) to own any Capital Stock of any Subsidiary of the Company except as otherwise permitted pursuant to this Agreement.

Section 8.14. Limitations on Dividends and Distributions and Other Payment Restrictions Affecting Subsidiaries. It shall not, and it shall not permit any of its Subsidiaries to, create or otherwise cause, incur, assume, suffer or permit to exist or become effective any consensual encumbrance or restriction of any kind on its ability (a) to pay dividends or to make any other distribution on any shares of its Capital Stock, (b) to subordinate or to pay, prepay, redeem or repurchase any Indebtedness owed to any Credit Party or Subsidiary of a Credit Party, (c) to make loans or advances to any Credit Party or Subsidiary of a Credit Party or (d) to transfer any of its property or assets to any Credit Party or Subsidiary of a Credit Party; provided, however, that nothing in clauses (a) through (d) of this Section 8.14 shall prohibit or restrict: (A) this Agreement and the other Loan Documents; (B) any Applicable Law (including applicable currency control laws and applicable state or provincial corporate statutes restricting the payment of dividends or any other distributions in certain circumstances); (C) any restriction set forth in any document or agreement governing or securing any Permitted Indebtedness under Section 8.03(b); (D) in the case of clause (d) any restrictions on the subletting, assignment or transfer of any property or asset included in a Lease, license, sale conveyance or similar agreement with respect to such property or asset; (E) in the case of clause (d) any holder of a Permitted Lien from restricting on customary terms the transfer of any property or assets subject to such Permitted Lien; (F) any agreement or instrument in effect at the time a Person first became a Subsidiary of a Credit Party or the date such agreement or instrument is otherwise assumed by a Credit Party or any of its Subsidiaries, so long as such agreement or instrument was not entered into solely in contemplation of such Person becoming a Subsidiary of such Credit Party or such assumption; (G) customary provisions restricting assignment of any licensing agreement or other contract entered into by a Credit Party or any of its Subsidiaries in the ordinary course of business; (H) restrictions on the transfer of any asset pending the close of the sale of such asset; or (I) customary provisions with respect to the payment of dividends or other distributions by any Subsidiary that is not a Credit Party set forth in the Governing Documents for such Subsidiary so long as such provisions were not entered into in connection with any other agreement or arrangement not otherwise permitted under this Section 8.14.

Section 8.15. Limitation on Issuance of Capital Stock. It shall not, and it shall not permit any of its Subsidiaries to, issue or sell or enter into any agreement or arrangement for the issuance and sale of any shares of its Capital Stock, any Securities convertible into or exchangeable for its Capital Stock or any warrants, options or other rights for the purchase or acquisition of any of its Capital Stock, other than (a) in connection with the plans set forth on Schedule 8.15; (b) the issuance of Capital Stock of any Subsidiary to any Credit Party (so long as such Capital Stock is pledged and delivered to the Collateral Agent within ten (10) days of the issuance thereof in accordance with the terms of the Security Agreement); (c) the issuance of Capital Stock by any Subsidiary of directors’ qualifying shares; or (d) the issuance of Capital Stock by the Company so long as any such issuance does not constitute a Change of Control.

Section 8.16. Federal Reserve Regulations. It shall not, and it shall not permit any of its Subsidiaries to, use any Loan or the proceeds of any Loan for any purpose that would cause such Loan to be a margin loan under the provisions of Regulation T, U or X.

Section 8.17. Investment Company Act of 1940. It shall not, and it shall not permit any of its Subsidiaries to, engage in any business, enter into any transaction, use any Securities or take any other action that would cause it or any of its Subsidiaries to become subject to the registration requirements of the Investment Company Act of 1940, as amended, by virtue of being an “investment company” or a company “controlled” by an “investment company” not entitled to an exemption within the meaning of such Act.

Section 8.18. Change Name. It shall not, and it shall not permit any of its Subsidiaries which are Credit Parties to, change any Credit Party’s name, organizational identification number, jurisdiction of organization, or organizational identity; provided, however, that a Credit Party may change its name upon at least ten (10) days’ prior written notice by the Company to the Collateral Agent of such change and so long as, at the time of such written notification, such Credit Party provides any financing statements, fixture filings, mortgages, Control Agreements or other documents necessary to perfect and continue perfected Liens.

ARTICLE IX

FINANCIAL COVENANTS

Each Credit Party covenants and agrees jointly and severally, from and after the date hereof (except as otherwise provided herein, or unless the Required Lenders have given their prior written consent) until all amounts owing hereunder or under any Security Document or in connection herewith or therewith have been paid in full, that:

Section 9.01. Total Leverage Ratio. Total Leverage Ratio, as of each date set forth below, shall not be greater than the ratio set forth opposite such date below:


Measurement Period Ending		Ratio
March 31, 0000		0.00x
June 30, 0000		0.00x
September 30, 0000		0.00x
December 31, 0000		0.00x
March 31, 0000		0.00x
June 30, 0000		0.00x
September 30, 0000		0.00x
December 31, 0000		0.00x
March 31, 0000		0.00x
June 30, 0000		0.00x


Measurement Period Ending		Ratio
September 30, 0000		0.00x
December 31, 0000		0.00x
March 31, 0000		0.00x
June 30, 0000		0.00x
September 30, 0000		0.00x
December 31, 0000		0.00x
March 31, 0000		0.00x
June 30, 0000		0.00x
September 30, 0000		0.00x
December 31, 0000		0.00x
March 31, 0000		0.00x
June 30, 0000		0.00x
September 30, 0000		0.00x
December 31, 0000		0.00x

Section 9.02. Fixed Charge Coverage Ratio. The Fixed Charge Coverage Ratio, as of any date set forth below, shall not be less than the ratio set forth opposite such date below:


Measurement Period Ending		Ratio
June 30, 0000		0.00x
September 30, 0000		0.00x
December 31, 0000		0.00x
March 31, 0000		0.00x
June 30, 0000		0.00x
September 30, 0000		0.00x
December 31, 0000		0.00x
March 31, 0000		0.00x
June 30, 0000		0.00x
September 30, 0000		0.00x
December 31, 0000		0.00x
March 31, 0000		0.00x
June 30, 0000		0.00x
September 30, 0000		0.00x
December 31, 0000		0.00x
March 31, 0000		0.00x
June 30, 0000		0.00x
September 30, 0000		0.00x
December 31, 0000		0.00x
March 31, 0000		0.00x
June 30, 0000		0.00x
September 30, 0000		0.00x
December 31, 0000		0.00x

Section 9.03. Minimum Liquidity. The Credit Parties, on a consolidated basis, shall have a level of Liquidity of not less than the amount set forth below on the date set forth opposite such amount.


Fiscal Month Ending	Minimum Liquidity
January 31, 2008	$	15,000,000
February 29, 2008	$	15,000,000
March 31, 2008	$	15,000,000
April 30, 2008	$	15,000,000
May 31, 2008	$	15,000,000
June 30, 2008	$	15,000,000
July 31, 2008	$	20,000,000
August 31, 2008	$	20,000,000
September 30, 2008	$	20,000,000
October 31, 2008	$	20,000,000
November 30, 2008	$	20,000,000
December 31, 2008	$	20,000,000
January 31, 2009	$	20,000,000
February 28, 2009	$	20,000,000
March 31, 2009	$	20,000,000
April 30, 2009	$	15,000,000
May 31, 2009	$	15,000,000
June 30, 2009	$	15,000,000
July 31, 2009	$	20,000,000
August 31, 2009	$	20,000,000
September 30, 2009	$	20,000,000
October 31, 2009	$	20,000,000
November 30, 2009	$	20,000,000
December 31, 2009	$	20,000,000
January 31, 2010	$	20,000,000
February 28, 2010	$	20,000,000
March 31, 2010	$	20,000,000
April 30, 2010	$	15,000,000
May 31, 2010	$	15,000,000
June 30, 2010	$	15,000,000
July 31, 2010	$	20,000,000
August 31, 2010	$	20,000,000
September 30, 2010	$	20,000,000
October 31, 2010	$	20,000,000
November 30, 2010	$	20,000,000
December 31, 2010	$	20,000,000
January 31, 2011	$	20,000,000
February 28, 2011	$	20,000,000
March 31, 2011	$	20,000,000


Fiscal Month Ending	Minimum Liquidity
April 30, 2011	$	15,000,000
May 31, 2011	$	15,000,000
June 30, 2011	$	15,000,000
July 31, 2011	$	20,000,000
August 31, 2011	$	20,000,000
September 30, 2011	$	20,000,000
October 31, 2011	$	20,000,000
November 30, 2011	$	20,000,000
December 31, 2011	$	20,000,000
January 31, 2012	$	20,000,000
February 29, 2012	$	20,000,000
March 31, 2012	$	20,000,000
April 30, 2012	$	15,000,000
May 31, 2012	$	15,000,000
June 30, 2012	$	15,000,000
July 31, 2012	$	20,000,000
August 31, 2012	$	20,000,000
September 30, 2012	$	20,000,000
October 31, 2012	$	20,000,000
November 30, 2012	$	20,000,000
December 31, 2012	$	20,000,000
January 31, 2013	$	20,000,000
February 28, 2013	$	20,000,000
March 31, 2013	$	20,000,000
April 30, 2013	$	15,000,000
May 31, 2013	$	15,000,000
June 30, 2013	$	15,000,000
July 31, 2013	$	20,000,000
August 31, 2013	$	20,000,000
September 30, 2013	$	20,000,000
October 31, 2013	$	20,000,000
November 30, 2013	$	20,000,000
December 31, 2013	$	20,000,000

ARTICLE X

EVENTS OF DEFAULT, RIGHTS AND REMEDIES

Section 10.01. Events of Default. Each of the following occurrences shall constitute an event of default (an “Event of Default”).

(a) Failure to Make Payments When Due. Any Credit Party shall fail to pay (i) any principal or reimbursement obligations when due or (ii) any interest, fees, or any other monetary Obligation, and such failure shall continue for a period of three (3) Business Days after such amount was due (in each case, whether by scheduled maturity, required prepayment, acceleration, demand or otherwise).

(b) Breach of Certain Covenants. Any Credit Party shall fail to perform or comply with any covenant or agreement contained in Section 7.03, Section 7.04, Section 7.06, Section 7.07, Section 7.08, Section 7.09, Section 7.10, Section 7.11, Section 7.12, Section 7.14, Section 7.15, Article VIII, or Article IX under this Agreement.

(c) Breach of Representation or Warranty. Any representation, warranty or statement made or deemed made by or on behalf of any Credit Party or by any officer of the foregoing under any Loan Document or in any report, certificate, or other document delivered to any Agent or any Lender under Article VI of this Agreement or otherwise pursuant to any Loan Document prove to be incorrect or misleading in any material respect when made or deemed made.

(d) Other Defaults (Thirty (30) Day Cure). Any Credit Party shall fail to perform or comply with any other covenant or agreement in any Loan Document and such failure continues for a period of thirty (30) days after learning of such failure or receiving written notice thereof from any Agent.

(e) Default as to Other Indebtedness and Material Contracts. Any Credit Party or any Subsidiary of a Credit Party shall (i) fail to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) with respect to any Indebtedness if the aggregate amount of such Indebtedness is in excess of $2,500,000 in the aggregate and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; or any other breach, default or event of default shall occur, or any other condition shall exist under any instrument, agreement or indenture pertaining to any such Indebtedness, if the effect thereof (with or without the giving of notice or lapse of time or both) is to permit or require an acceleration, mandatory redemption or other required repurchase of such Indebtedness or, as to such Indebtedness, permit the holder or holders of such Indebtedness to accelerate the maturity of any such Indebtedness or require a redemption or other repurchase of such Indebtedness; or any Indebtedness if the aggregate amount of such Indebtedness is $2,500,000 shall be declared due and payable (by acceleration or otherwise) by a Person (other than a Credit Party or any Subsidiary of a Credit Party) as a result of a breach, default or event of default by a Credit Party or any Subsidiary of a Credit Party, or required to be prepaid, redeemed or otherwise repurchased by any Credit Party or any Subsidiary of a Credit Party (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or the holder or holders of any Lien, securing obligations of $2,500,000 or more, shall commence foreclosure of such Lien upon property of any Credit Party or any Subsidiary of a Credit Party; or (ii) fail in the performance or observance (beyond the applicable grace period with respect thereto, if any) of one or more Material Contracts representing, in the aggregate, 10% or more of annual revenue or expense of the Credit Parties and their Subsidiaries on a consolidated basis during the trailing 12-month period measured as of the most recently completed Fiscal Quarter (other than those covered in clause (i) hereof) and (A) such failure together with any other such failures, has a Material Adverse Effect, whether as a result of termination or cancellation of any such Material Contract or otherwise, or (B) such failure (1) is not reasonably subject to cure by such Credit Parties and is not reasonably likely to be waived by the other contracting party, (2) would permit the other contracting party to cancel or terminate such Material Contract and (3) such termination or cancellation could reasonably be expected to have a Material Adverse Effect.

(f) Voluntary Bankruptcy Proceeding. Any Credit Party (i) shall institute any proceeding or voluntary case seeking to adjudicate it as bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, receiver and manager, interim receiver, sequestration, administrator, monitor, custodian or other similar official for any such Credit Party or any Subsidiaries or for any substantial part of its property, (ii) shall consent to the entry of an order for relief in an involuntary bankruptcy case or to the conversion of an involuntary case to a voluntary case under bankruptcy, insolvency or reorganization law, (iii) shall be generally not paying its debts as such debts become due or shall admit in writing its inability to pay its debts generally, (iv) shall make a general assignment for the benefit of creditors or (v) shall take any action to authorize or effect any of the actions set forth above in this Section 10.01(f).

(g) Involuntary Bankruptcy Proceeding.

(i) An involuntary case shall be commenced against any Credit Party or any Subsidiary of a Credit Party and the petition shall not be dismissed, stayed, bonded or discharged within sixty (60) days; or a court having jurisdiction shall enter a decree or order for relief in respect of such Credit Party or Subsidiary of a Credit Party in an involuntary case, under any applicable bankruptcy, insolvency or other similar law now or hereinafter in effect; or any other similar relief shall be granted under any applicable federal, state, provincial, local or foreign law; or the board of directors of such Credit Party or Subsidiary of a Credit Party (or any committee thereof) adopts any resolution or otherwise authorizes any action to approve any of the foregoing.

(ii) A decree or order of a court having jurisdiction for the appointment of a receiver, liquidator, sequestrator, trustee, receiver and manager, administrator, monitor, custodian or other officer having similar powers over any Credit Party or any Subsidiary of a Credit Party or over all or a substantial part of their respective assets shall be entered; or an interim receiver, trustee or other custodian of any Credit Party or any Subsidiary of a Credit Party or of all or a substantial part of their respective assets shall be appointed or a warrant of attachment, execution or similar process against any substantial part of their respective assets shall be issued and any such event shall not be stayed, dismissed, bonded or discharged within sixty (60) days; or the board of directors of any Credit Party or any Subsidiary of a Credit Party (or any committee thereof) adopts any resolution or otherwise authorizes any action to approve any of the foregoing.

(h) Invalidity of Documents. A court of competent jurisdiction shall declare that any material provision of any Loan Document shall at any time for any reason (other than pursuant to the express terms thereof) cease to be valid and binding on or enforceable against a Credit Party intended to be a party thereto; or the validity or enforceability thereof shall be contested by any Credit Party that is a party thereto; or a proceeding shall be commenced by a Credit Party or any Governmental Authority having jurisdiction over any Credit Party, seeking to establish the invalidity or unenforceability thereof; or a Credit Party shall deny in writing that it has any liability or obligation purported to be created under any Loan Document.

(i) Loan Documents; Impairment. At any time, for any reason, (i) any Loan Document shall for any reason (other than pursuant to the express terms hereof or thereof) fail or cease to create a valid and perfected Lien on any Collateral or the Liens intended to be created or perfected thereby are, or any Credit Party seeks to render such Liens, invalid or unperfected with respect to any Collateral except as otherwise contemplated hereby or thereby, or (ii) Liens with respect to any Collateral in favor of the Collateral Agent contemplated by the Loan Documents shall be invalidated or otherwise cease to be in full force and effect, or such Liens shall be subordinated or shall not have the priority contemplated hereby or by the other Loan Documents (subject to Permitted Liens and to the exceptions set forth in the applicable Security Documents).

(j) Judgments. (i) One or more judgments or judicial or administrative orders for the payment of money exceeding $2,500,000 in the aggregate shall be rendered against any Credit Party or any Subsidiary of a Credit Party and remain unsatisfied, undischarged, unvacated or unbonded and either (A) enforcement proceedings shall have been commenced by any creditor upon any such judgment or judicial or administrative order or (B) there shall be a period of twenty (20) consecutive Business Days after entry thereof during which a stay of enforcement of any such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; provided, however, that any such judgment or order shall not give rise to an Event of Default under this Section 10.01(j)(i) if and to the extent that (I) the amount of such judgment or order is covered by a valid and binding policy of insurance between the defendant and the insurer covering full payment thereof and (II) such insurer has been notified, and has not disputed the claim made for payment, of the amount of such judgment or order; or (ii) one or more judgments or judicial or administrative orders are rendered against any Credit Party or any Subsidiary of a Credit Party that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect and such judgments or orders are not stayed within 10 days of entry, or (iii) any Credit Party or any Subsidiary or Affiliate of a Credit Party asserts any claim, or commences or threatens to commence any action, litigation, or proceeding, that purports to affect the legality, validity or enforceability of any Loan Document, the Obligations or the security therefor, or any judgment or judicial or administrative order is entered in any action, litigation or proceeding brought by any other Person that purports to affect the legality, validity or enforceability of any Loan Document, the Obligations or the security therefor.

(k) Change of Control. A Change of Control shall have occurred.

(l) ERISA. With respect to any Plan or Benefit Plan, as applicable, (i) a prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA occurs which could reasonably be expected to result in material liability to any Credit Party or any Subsidiary of a Credit Party, (ii) any accumulated funding deficiency (within the meaning of Section 412 of the Code and Section 302 of ERISA), whether or not waived, shall exist with respect to any Benefit Plan, or (iii) the occurrence of any ERISA Event; provided, however, that the events listed in clauses (i) through (iii) shall constitute Events of Default only if the liability or deficiency of any Credit Party or any Subsidiary of a Credit Party or ERISA Affiliate, would reasonably be expected to exceed $2,500,000 in the aggregate for all such events.

Section 10.02. Remedies. If any Event of Default specified in Section 10.01 shall have occurred and be continuing, the Administrative Agent upon the written request of Required Lenders, or, with respect to the termination of the Commitments of the Revolving Lenders, at the written request of the Required Revolving Lenders, at any time an Event of Default has occurred and is continuing, shall by written notice to the Company, take any or all of the following actions, without prejudice to the rights of any Agent or any Lender to enforce its claims against any Credit Party: (a) terminate or reduce the Commitments, whereupon the Commitments shall immediately be terminated or reduced, (b) declare all or a portion of the Loans then outstanding to be due and payable, whereupon all or such portion of the aggregate principal of such Loans and reimbursement obligations, all accrued and unpaid interest thereon, all fees and all other amounts payable under this Agreement and all other Obligations (other than Hedging Obligations) shall become immediately due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Credit Parties, (c) require the Borrower to cash collateralize all outstanding Letters of Credit in an amount equal to 105% of the face amount of such Letters of Credit (by transfer of such funds to a Cash Collateral Account) and (d) exercise any and all of its other rights and remedies hereunder, under the other Loan Documents, under Applicable Law and otherwise; provided, however, that upon the occurrence of any Event of Default described in subsection (f) or (g) of Section 10.01, the Commitments shall automatically terminate and the Loans and reimbursement obligations then outstanding, together with all accrued and unpaid interest thereon, all fees and all other amounts due under this Agreement shall become immediately due and payable automatically, without presentment, demand, protest or notice of any kind, all of which are expressly waived by the Borrower, and provided further that the Collateral Agent shall pay and apply the proceeds of any sale or other disposition of the Collateral, or any part thereof, resulting from the exercise of the remedies as provided for in this Section 10.02 in accordance with Section 1.09(a).

Section 10.03. Waivers by the Credit Parties. Except as otherwise provided for in this Agreement and Applicable Law, the Credit Parties waive (a) presentment, demand, protest, notice of presentment or dishonor, notice of intent to accelerate and notice of acceleration, (b) all rights to notice and a hearing prior to the Lenders’ taking possession or control of, or to the Lenders’ replevin, attachment or levy upon, any Collateral or any bond or Security which might be required by any court prior to allowing such Lenders to exercise any of their remedies, (c) the benefit of all valuation, appraisal and exemption laws and (d) all rights of set-off against any Secured Party as it applies to the payment of the Obligations. The Credit Parties acknowledge that they have been advised by counsel of their choice with respect to this Agreement, the other Loan Documents and the transactions evidenced by this Agreement and the other Loan Documents.

ARTICLE XI

GUARANTY OF OBLIGATIONS OF BORROWER

Section 11.01. Guaranty. In order to induce the Agents and the Secured Parties to enter into this Agreement and to make available the Loans and Letters of Credit hereunder, and in recognition of the direct benefits to be received by each Guarantor from the proceeds of the Loans and Letters of Credit, each Guarantor hereby jointly and severally agrees with each Agent, for the benefit of the Secured Parties, as follows: each Guarantor hereby jointly, severally, unconditionally and irrevocably guarantees, as Primary Obligor and not merely as surety, the full and prompt payment when due, whether upon maturity, acceleration or otherwise, and the performance, of any and all of the Obligations of all other Credit Parties (such Obligations, collectively, the “Guaranteed Obligations”). If any or all of the Obligations becomes due and payable hereunder, each Guarantor jointly, severally, irrevocably and unconditionally promises to pay such Indebtedness to the Collateral Agent, for the benefit of the Secured Parties.

Section 11.02. Nature of Liability. The Guarantors jointly and severally agree that this Guaranty is a guaranty of payment and performance and not of collection, and that their obligations under this Guaranty shall be primary, absolute and unconditional, irrespective of, and the liability of each Guarantor shall not be affected by, nor shall this Guaranty be discharged or reduced by reason of:

(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Guaranty, any other Loan Document or any other agreement, document or instrument to which any Credit Party and/or Guarantors are or may become a party;

(b) the absence of any action to enforce this Guaranty or any other Loan Document or the waiver or consent by the Administrative Agent, the Revolving Agent, the Collateral Agent and/or Secured Parties with respect to any of the provisions thereof;

(c) any other continuing or other guaranty or undertaking of any Guarantor or of any other party as to the Obligations, or any payment on or in reduction of any such other guaranty or undertaking;

(d) the incapacity or any change in the name, style or constitution of any Credit Party or any other person liable;

(e) any dissolution, termination, increase, decrease or change in personnel by the Borrower;

(f) the Collateral Agent granting any time, indulgence or concession to, or compounding with, discharging, releasing or varying the liability of, any Credit Party or any other person liable or renewing, determining, varying or increasing any accommodation, facility or transaction or otherwise dealing with the same in any manner whatsoever or concurring in, accepting or varying any compromise, arrangement or settlement or omitting to claim or enforce payment from any Credit Party or any other person liable;

(g) the existence, value or condition of, or failure to perfect its Lien against, any Collateral for the Guaranteed Obligations or any action, or the absence of any action, by the Administrative Agent, the Revolving Agent or the Collateral Agent in respect thereof (including, without limitation, the release of any such Collateral);

(h) the insolvency of any Credit Party, or any payment made to any Agent or Secured Party on the Obligations which any such Agent or Secured Party repays to any Credit Party pursuant to a court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and each Guarantor waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding;

(i) any act or omission which would not have discharged or affected the liability of any Guarantor had it been a principal debtor instead of a Guarantor or by anything done or omitted which but for this provision might operate to exonerate or discharge any Guarantor; or

(j) any other action or circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or Guarantor.

Section 11.03. Independent Obligation.

(a) The obligations of each Guarantor hereunder are independent of the obligations of any other Guarantor, any other party or the Borrower, and a separate action or actions may be brought and prosecuted against each Guarantor whether or not action is brought against any other Guarantor, any other party or the Borrower and whether or not any other Guarantor, any other party or the Borrower be joined in any such action or actions.

(b) Each Guarantor shall be regarded, and shall be in the same position, as principal debtor with respect to the Guaranteed Obligations. Each Guarantor jointly and severally agrees that any notice or directive given at any time to any Agent that is inconsistent with this Section 11.03 shall be null and void and may be ignored by the Administrative Agent, the Revolving Agent, the Collateral Agent and the Secured Parties, and, in addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty for the reason that such pleading or introduction would be at variance with the written terms of this Guaranty, unless the Agents and the Secured Parties have specifically agreed otherwise in writing. It is agreed by and among the Guarantors, jointly and severally, the Agents and the Secured Parties that the foregoing waivers are of the essence of the transaction contemplated by the Loan Documents and that, but for this Guaranty and such waivers, the Agents and the Secured Parties would decline to enter into this Agreement.

Section 11.04. Demand by the Administrative Agent, the Revolving Agent or the Secured Parties. In addition to the terms of the Guaranty set forth in Section 11.01, and in no manner imposing any limitation on such terms, it is expressly understood and agreed that, if, at any time, the outstanding principal amount of the Guaranteed Obligations under this Agreement (including all accrued interest thereon) is declared to be immediately due and payable, then the Guarantors shall, without demand, pay to the holders of the Guaranteed Obligations the entire outstanding Guaranteed Obligations due and owing to such holders. Payment by the Guarantors shall be made to the Administrative Agent or the Revolving Agent in immediately available funds to an account designated by the Administrative Agent or the Revolving Agent, as the case may be, or at the address set forth herein for the giving of notice to the Administrative Agent or the Revolving Agent or at any other address that may be specified in writing from time to time by the Administrative Agent or the Revolving Agent, and shall be credited and applied to the Guaranteed Obligations.

Section 11.05. Enforcement of Guaranty. In no event shall the Administrative Agent, the Collateral Agent or the Revolving Agent have any obligation (although it is entitled, at its option) to proceed against the Borrower or any other Credit Party or any Collateral pledged to secure Guaranteed Obligations before seeking satisfaction from any or all of the Guarantors, and the Administrative Agent, the Collateral Agent or the Revolving Agent may proceed, prior or subsequent to, or simultaneously with, the enforcement of the Administrative Agent’s, the Collateral Agent’s or the Revolving Agent’s rights hereunder, to exercise any right or remedy it may have against any Collateral, as a result of any Lien it may have as security for all or any portion of the Guaranteed Obligations.

Section 11.06. Waiver. In addition to the waivers contained in Section 11.02, the Guarantors waive, and agree jointly and severally that they shall not at any time insist upon, plead or in any manner claim or take the benefit or advantage of, any appraisal, valuation, stay, extension, marshaling of assets or redemption law, or exemption, whether now or at any time hereafter in force, which may delay, prevent or otherwise affect the performance by the Guarantors of their Guaranteed Obligations under, or the enforcement by the Collateral Agent, the Administrative Agent, the Revolving Agent or the Secured Parties of, the Guaranty. The Guarantors hereby waive diligence, presentment and demand (whether for non payment or protest or of acceptance, maturity, extension of time, change in nature or form of the Guaranteed Obligations, acceptance of further Collateral, release of further Collateral, composition or agreement arrived at as to the amount of, or the terms of, the Guaranteed Obligations, notice of adverse change in the Borrower’s financial condition or any other fact which might increase the risk to the Guarantors) with respect to any of the Guaranteed Obligations or all other demands whatsoever and waive the benefit of all provisions of law which are or might be in conflict with the terms of the Guaranty. The Guarantors represent, warrant and jointly and severally agree that, as of the date of this Agreement, their obligations under the Guaranty are not subject to any offsets or defenses against the Administrative Agent, the Revolving Agent, the Collateral Agent or the Secured Parties or any Credit Party of any kind. The Guarantors further jointly and severally agree that their obligations under this Guaranty shall not be subject to any counterclaims, offsets or defenses against the Collateral Agent, the Revolving Agent, the Administrative Agent or any Secured Party or against any Credit Party of any kind which may arise in the future.

Section 11.07. Benefit of Guaranty. The provisions of the Guaranty are for the benefit of the Agents and the Secured Parties and their respective permitted successors, permitted transferees, endorsees and assigns, and nothing herein contained shall impair, as between any Credit Party and the Agents or the Secured Parties, the obligations of any Credit Party under the Loan Documents. In the event all or any part of the Guaranteed Obligations are transferred, endorsed or assigned by the Agents or any Secured Party to any Person or Persons in a manner permitted by this Agreement, any reference to “the Agents” or “the Secured Parties” herein shall be deemed to refer equally to such Person or Persons.

Section 11.08. Modification of Guaranteed Obligations, Etc. Each Guarantor hereby acknowledges and agrees jointly and severally that the Agents and the Secured Parties may at any time or from time to time, with or without the consent of, or notice to, the Guarantors (in their capacity as Guarantors):

(a) change or extend the manner, place or terms of payment of, or renew or alter all or any portion of, the Guaranteed Obligations;

(b) take any action under or in respect of the Loan Documents in the exercise of any remedy, power or privilege contained therein or available to it at law, equity or otherwise, or waive or refrain from exercising any such remedies, powers or privileges;

(d) extend or waive the time for any Credit Party’s performance of, or compliance with, any term, covenant or agreement on its part to be performed or observed under the Loan Documents, or waive such performance or compliance or consent to a failure of, or departure from, such performance or compliance;

(e) take and hold Collateral for the payment of the Guaranteed Obligations guaranteed hereby or sell, exchange, release, dispose of, or otherwise deal with, any property pledged, mortgaged or conveyed, or in which the Agents or the Secured Parties have been granted a Lien, to secure any Obligations;

(f) release anyone who may be liable in any manner for the payment of any amounts owed by the Guarantors or any Credit Party to the Agents or any Secured Party;

(g) modify or terminate the terms of any intercreditor or subordination agreement pursuant to which claims of other creditors of any Guarantor or any other Credit Party are subordinated to the claims of the Agents and the Secured Parties; and/or

(h) apply any sums by whomever paid or however realized to any amounts owing by any Guarantor or any other Credit Party to any Agent or any Secured Party in such manner as any Agent or any Secured Party shall determine in its discretion.

The Agents and the Secured Parties shall not incur any liability to the Guarantors as a result of any of the foregoing actions, and no such action shall impair or release the Guaranteed Obligations of the Guarantors or any of them under the Guaranty.

Section 11.09. Reinstatement.

(a) The Guaranty shall remain in full force and effect and continue to be effective should any petition be filed by or against any Credit Party or any Guarantor for liquidation or reorganization, should any Credit Party or any Guarantor become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of any Credit Party’s or any Guarantor’s assets, and shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Guaranteed Obligations, or any part thereof, is, pursuant to Applicable Law, rescinded or reduced in amount, or must otherwise be restored or returned by any Agent or any Secured Party, whether as a “voidable preference,” “fraudulent conveyance,” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Guaranteed Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

(b) If any claim is ever made upon any Agent or Secured Party for repayment or recovery of any amount or amounts received in payment or on account of any of the Obligations and any of the aforesaid payees repays all or part of said amount by reason of (i) any judgment, decree or order of any court or administrative body having jurisdiction over such payee or any of its property or (ii) compliance by the Secured Parties or the Agents with any requirement of a Governmental Authority having jurisdiction over the Secured Parties or the Agents, then and in such event each Guarantor jointly and severally agrees that any such judgment, decree or order shall be binding upon it, notwithstanding any revocation of the Guaranty or other instrument evidencing any liability of the Borrower or any termination of this Agreement, and each Guarantor shall be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Guaranteed Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.

Section 11.10. Waiver of Subrogation, Etc. Notwithstanding anything to the contrary in the Guaranty or in any other Loan Document, each Guarantor hereby:

(a) until the indefeasible payment and satisfaction in full in cash of the Guaranteed Obligations, expressly waives, on behalf of itself and its successors and assigns (including any surety), any and all rights at law or in equity to subrogation, to reimbursement, to exoneration, to contribution, to indemnification, to set off or to any other rights that could accrue to a surety against a principal, to any Guarantor against a principal, to any Guarantor against a maker or obligor, to an accommodation party against the party accommodated, to a holder or transferee against a maker, or to the holder of any claim against any Person, and which any Guarantor may have or hereafter acquire against any other Credit Party in connection with or as a result of any Guarantor’s execution, delivery and/or performance of this Agreement; and

(b) acknowledges and agrees jointly and severally (i) that this waiver is intended to benefit the Agents and the Secured Parties and shall not limit or otherwise effect any Guarantor’s liability hereunder or the enforceability of the Guaranty and (ii) that the Agents, the Secured Parties and their respective successors and assigns are intended third-party beneficiaries of the waivers and agreements set forth in this Section 11.10 and their rights under this Section 11.10 shall survive payment in full of the Guaranteed Obligations.

Section 11.11. Election of Remedies. If any Agent may, under Applicable Law, proceed to realize benefits under any of the Loan Documents giving the Agents and the Secured Parties a Lien upon any Collateral owned by any Credit Party, either by judicial foreclosure or by non judicial sale or enforcement, the Collateral Agent may, at its sole option, determine which of such remedies or rights it may pursue without affecting any of such rights and remedies under this Guaranty. If, in the exercise of any of its rights and remedies, the Collateral Agent shall forfeit any of its rights or remedies, including its right to enter a deficiency judgment against any Credit Party, whether because of any applicable laws pertaining to “election of remedies” or the like, the Guarantors hereby consent to such action by any Agent and waive any claim based upon such action, even if such action by any Agent shall result in a full or partial loss of any rights of subrogation which the Guarantors might otherwise have had but for such action by any Agent. Any election of remedies that results in the denial or impairment of the right of any Agent to seek a deficiency judgment against any Credit Party shall not impair each Guarantor’s obligation to pay the full amount of the Guaranteed Obligations. In the event any Agent shall bid at any foreclosure or trustee’s sale or at any private sale permitted by law or the Loan Documents, such Agent may bid all or less than the amount of the Guaranteed Obligations and the amount of such bid need not be paid by such Agent but shall be credited against the Guaranteed Obligations. The amount of the successful bid at any such sale shall be conclusively deemed to be the fair market value of the Collateral and the difference between such bid amount and the remaining balance of the Guaranteed Obligations shall be conclusively deemed to be the amount of the Guaranteed Obligations guaranteed under the Guaranty, notwithstanding that any present or future law or court decision or ruling may have the effect of reducing the amount of any deficiency claim to which the Administrative Agent and the Secured Parties might otherwise be entitled but for such bidding at any such sale.

Section 11.12. Limitation on Amount Guaranteed; Contribution by Guarantors. Anything contained in this Article XI to the contrary notwithstanding, if any Fraudulent Transfer Law (as defined below) is determined by a court of competent jurisdiction to be applicable to the obligations of any Guarantor under this Agreement, such obligations of such Guarantor hereunder shall be limited to a maximum aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code or any applicable provisions of comparable state law (collectively, the “Fraudulent Transfer Laws”), in each case after giving effect to all other liabilities of such Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (excluding, however, any liabilities of such Guarantor (a) in respect of intercompany indebtedness to the Borrower or other affiliates of the Borrower to the extent that such indebtedness would be discharged in an amount equal to the amount paid by such Guarantor hereunder and (b) under any guarantee of any subordinated indebtedness which guarantee contains a limitation as to maximum amount similar to that set forth in this Section 11.12, pursuant to which the liability of such Guarantor hereunder is included in the liabilities taken into account in determining such maximum amount).

Section 11.13. Additional Waivers. Each Guarantor waives all rights and defenses that the Guarantors may have because the Borrower’s Obligations are secured by real property. This means, among other things:

(i) The Secured Parties may collect from the Guarantors without first foreclosing on any real or personal property collateral pledged by the Borrower.

(ii) If the Secured Parties foreclose on any real property collateral pledged by the Borrower, (1) the amount of the Obligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price or (2) the Secured Parties may collect from the Guarantors even if the Secured Parties, by foreclosing on the real property collateral, have destroyed any right the Guarantors may have to collect from the Borrower.

This is an unconditional and irrevocable waiver of any rights and defenses the Guarantors may have because the debtor’s debt is secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure or similar provisions in any other jurisdiction.

ARTICLE XII

THE AGENTS

Section 12.01. Appointment of Agents.

(a) Each Participating Lender hereby irrevocably designates and appoints XXXXXX XXXXXXX SENIOR FUNDING, INC. as Administrative Agent under this Agreement and the other Loan Documents, XXXXXX XXXXXXX & CO. INCORPORATED, as Collateral Agent under this Agreement and the other Loan Documents and THE CIT GROUP/BUSINESS CREDIT, INC. as Revolving Agent under this Agreement and the other Loan Documents. The provisions of this Article 12 are solely for the benefit of the Agents, the Agent-Related Persons and the Participating Lenders and no Credit Party nor any other Person, other than permitted sub-agents, shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Loan Documents, each Agent shall act solely as an agent of Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Credit Party or any other Person. No Agent shall have duties or responsibilities except for those expressly set forth in this Agreement and the other Loan Documents. Unless otherwise provided, each Agent may execute its functions and duties under this Agreement and the other Loan Documents by or through any Agent-Related Person and shall be entitled to the advice of counsel concerning all matters pertaining to such functions and duties. No Agent shall be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects as long as such selection was made without gross negligence or willful misconduct. The duties of each Agent shall be mechanical and administrative in nature and no Agent shall have, or be deemed to have, by reason of this Agreement, any other Loan Document or otherwise, a fiduciary relationship in respect of any Secured Party or any other Person. Except to the extent, if any, expressly set forth otherwise in this Agreement, no Agent shall have any duty to disclose, and shall not be liable for failure to disclose, any information relating to any Credit Party, any of such Credit Party’s Subsidiaries, any Account Debtor or any other Person that is communicated to or obtained by any Agent-Related Person in any capacity. No Agent-Related Person shall be liable to any Secured Party for any action taken or omitted to be taken by it under this Agreement or any other Loan Document, or in connection herewith or therewith, except for damages caused by its own gross negligence or willful misconduct.

(b) If any Agent shall request instructions from the Required Lenders, Required Revolving Lenders, Required Term Lenders or all affected Lenders with respect to any act or action (including a failure to act) in connection with this Agreement or any other Loan Document, then such Agent shall be entitled to refrain from taking any action (or to take any action) with respect thereto, unless and until such Agent shall have received instructions from the Required Lenders, Required Revolving Lenders, Required Term Lenders or all affected Lenders, as the case may be, and no Agent shall incur liability to any Person by reason of so refraining from acting (or taking any action). Each Agent shall be fully justified in failing or refusing to take any action hereunder or under any other Loan Document (a) if such action would, in the opinion of such Agent, be contrary to law or the terms of this Agreement or any other Loan Document, (b) if such action would, in the opinion of such Agent, expose such Agent to any claim or liability to any Person (including without limitation Environmental Liabilities and Costs) or (c) if such Agent shall not first be indemnified to its satisfaction against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limiting the foregoing, no Participating Lender shall have any claim or right of action whatsoever against any Agent as a result of such Agent acting or refraining from acting hereunder or under any other Loan Document in accordance with the instructions of Required Lenders, Required Revolving Lenders, Required Term Lenders or all affected Lenders.

Section 12.02. Agents’ Reliance, Etc. No Agent-Related Person shall be liable for any action taken or omitted to be taken by it under or in connection with this Agreement or the other Loan Documents, except to the extent of actual damages, if any, caused by such Agent-Related Person’s own gross negligence or willful misconduct. Without limiting the generality of the foregoing, each Agent: (a) may treat the payee of any Note as the holder thereof until the Administrative Agent or Revolving Agent, as the case may be, receives written notice of the assignment or transfer thereof signed by such payee and in form and substance reasonably satisfactory to such Agent; (b) may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts; (c) makes no warranty or representation to any Secured Party and shall not be responsible to any Secured Party for any statements, warranties or representations made in or in connection with this Agreement or the other Loan Documents; (d) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the other Loan Documents on the part of any Credit Party or to inspect the Collateral (including the books and records) of any Credit Party; (e) shall not be responsible to any Secured Party for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Loan Documents or any other instrument or document furnished pursuant hereto or thereto; and (f) shall incur no liability under or in respect of this Agreement or the other Loan Documents by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopy) believed by it to be genuine and signed or sent by the proper party or parties.

Section 12.03. Agents in Individual Capacities. With respect to its Commitments hereunder, each Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any other Lender and may exercise the same as though it were not an Agent; and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include each of the Agents in its individual capacity. Each Agent and its respective Affiliates may lend money to, invest in, and generally engage in any kind of business with, any Credit Party, any Credit Party’s Affiliate and any Person that may do business with or own securities of any Credit Party or any such Affiliate, all as if such Agent were not an Agent and without any duty to account therefor to Lenders. Each Agent and its respective Affiliates may accept fees and other consideration from any Credit Party for services in connection with this Agreement or otherwise without having to account for the same to Lenders. Each Lender acknowledges the potential conflict of interest between the Agents in their capacity as Lenders holding disproportionate interests in the Loans and Agents in their capacity as Agents and expressly consents to, and waives any claim based in whole or in part upon, such conflict of interest.

Section 12.04. Lender Credit Decision. Each Lender and each other Secured Party acknowledges that none of the Agent-Related Persons has made any representation or warranty to it, and that no act by any Agent-Related Person hereinafter taken, including any review of the affairs or Property of the Credit Parties, shall be deemed to constitute any representation or warranty by any Agent-Related Person to any Lender or any other Secured Party. Each Lender and each other Secured Party also acknowledges that it has, independently and without reliance upon any Agent-Related Person, any Lender or any Secured Party and based on such documents and information as such Lender or such other Secured Party has deemed appropriate, made its own credit and financial analysis of the Credit Parties and its own decision to enter into this Agreement, the other Loan Documents and the transactions contemplated hereby and thereby. Each Lender and each other Secured Party also acknowledges that it will, independently and without reliance upon any Agent-Related Person or any other Secured Party and based on such documents and information as such Lender or such Secured Party shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement, the other Loan Documents or otherwise. Except for notices, reports and other documents expressly herein required to be furnished to the Lenders by such Agent, if any, no Agent-Related Person shall have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospectus, operations, Property, financial and other condition or creditworthiness of the Borrower or any other Person, whether or not party to a Loan Document, that may come into the possession of any of the Agent-Related Persons. Each Lender acknowledges the potential conflict of interest of each other Lender as a result of Lenders holding disproportionate interests in the Loans, and expressly consents to, and waives any claim based upon, such conflict of interest.

Section 12.05. Costs and Expenses; Indemnification. Each Lender hereby agrees that it is and shall be obligated to pay to or reimburse each Agent for the amount of such Lender’s Pro Rata Share of any fees, costs, and expenses incurred by such Agent or permitted sub-agent in the performance of its functions and duties under this Agreement and the Loan Documents to the extent that the Credit Parties have not done so and without limiting their obligation to do so. The Lenders agree to indemnify the Agents and permitted sub-agents (to the extent not reimbursed by Credit Parties and without limiting the obligations of Credit Parties hereunder), ratably according to their respective Pro Rata Shares, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against any Agent or permitted sub-agent in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted to be taken by any Agent or permitted sub-agent in connection therewith; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s or permitted sub-agent’s own gross negligence or willful misconduct. Without limiting the foregoing, each Lender agrees to reimburse each Agent or permitted sub-agent promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by such Agent or permitted sub-agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement and each other Loan Document, to the extent that such Agent or permitted sub-agent is not reimbursed for such expenses by Credit Parties.

Section 12.06. Successor Agents.

(a) The Administrative Agent may resign at any time by giving not less than thirty (30) days’ prior written notice thereof to the other Agents, the Participating Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Administrative Agent with the consent of the Company (not to be unreasonably withheld or delayed); provided that such consent shall not be required if a Default or Event of Default shall have occurred and be continuing. If no successor Administrative Agent shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days following the resigning Administrative Agent’s giving notice of resignation, then the resigning Administrative Agent may (after consulting with the Company), on behalf of Lenders, appoint a successor Administrative Agent, which shall be a Lender, if a Lender is willing to accept such appointment, or otherwise shall be a commercial bank or financial institution or a subsidiary of a commercial bank or financial institution if such commercial bank or financial institution is organized under the laws of the United States of America or of any State thereof and has a combined capital and surplus of at least three hundred million Dollars ($300,000,000). If no successor Administrative Agent has been appointed pursuant to the foregoing, within thirty (30) days following the date such notice of resignation was given by the resigning Administrative Agent, such resignation shall become effective and the Required Lenders shall thereafter perform all the duties of such Administrative Agent hereunder until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided above. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the resigning Administrative Agent. Upon the earlier of the acceptance of any appointment as such Administrative Agent hereunder by a successor Administrative Agent or the effective date of the resigning Agent’s resignation, the resigning Agent shall be discharged from its duties and obligations under this Agreement and the other Loan Documents, except that any indemnity rights or other rights in favor of such resigning Administrative Agent shall continue. After any resigning Administrative Agent’s resignation hereunder, the provisions of this Article XII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was acting as Administrative Agent under this Agreement and the other Loan Documents.

(b) The Collateral Agent may resign at any time by giving not less than thirty (30) days’ prior written notice thereof to the other Agents, the Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Collateral Agent with the consent of the Company (not to be unreasonably withheld or delayed); provided that such consent shall not be required if a Default or Event of Default shall have occurred and be continuing. If no successor Collateral Agent shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the resigning Collateral Agent’s giving notice of resignation, then the resigning Collateral Agent may (after consulting with the Company), on behalf of Lenders, appoint a successor Collateral Agent, which shall be a Lender, if a Lender is willing to accept such appointment, or otherwise shall be a commercial bank or financial institution or a subsidiary of a commercial bank or financial institution if such commercial bank or financial institution is organized under the laws of the United States of America or of any State thereof and has a combined capital and surplus of at least three hundred million Dollars ($300,000,000). If no successor Collateral Agent has been appointed pursuant to the foregoing, within thirty (30) days following the date such notice of resignation was given by the resigning Collateral Agent, such resignation shall become effective and the Required Lenders shall thereafter perform all the duties of such Collateral Agent hereunder until such time, if any, as the Required Lenders appoint a successor Collateral Agent as provided above. Upon the acceptance of any appointment as Collateral Agent hereunder by a successor Collateral Agent, such successor Collateral Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the resigning Collateral Agent. Upon the earlier of the acceptance of any appointment as such Collateral Agent hereunder by a successor Collateral Agent or the effective date of the resigning Collateral Agent’s resignation, the resigning Collateral Agent shall be discharged from its duties and obligations under this Agreement and the other Loan Documents, except that any indemnity rights or other rights in favor of such resigning Collateral Agent shall continue. After any resigning Collateral Agent’s resignation hereunder, the provisions of this Article XII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was acting as Collateral Agent under this Agreement and the other Loan Documents.

(c) The Revolving Agent may resign at any time by giving not less than thirty (30) days’ prior written notice thereof to the other Agents, the L/C Issuer, the Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Revolving Agent with the consent of the Company (not to be unreasonably withheld or delayed); provided that such consent shall not be required if a Default or Event of Default shall have occurred and be continuing. If no successor Revolving Agent shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the resigning Revolving Agent’s giving notice of resignation, then the resigning Revolving Agent may (after consulting with the Company), on behalf of Lenders, appoint a successor Revolving Agent, which shall be a Lender, if a Lender is willing to accept such appointment, or otherwise shall be a commercial bank or financial institution or a subsidiary of a commercial bank or financial institution if such commercial bank or financial institution is organized under the laws of the United States of America or of any State thereof and has a combined capital and surplus of at least three hundred million Dollars ($300,000,000). If no successor Revolving Agent has been appointed pursuant to the foregoing, within thirty (30) days after the date such notice of resignation was given by the resigning Revolving Agent, such resignation shall become effective and the Required Revolving Lenders shall thereafter perform all the duties of such Revolving Agent hereunder until such time, if any, as the Required Lenders appoint a successor Revolving Agent as provided above. Upon the acceptance of any appointment as Revolving Agent hereunder by a successor Revolving Agent, such successor Revolving Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the resigning Revolving Agent. Upon the earlier of the acceptance of any appointment as such Revolving Agent hereunder by a successor Revolving Agent or the effective date of the resigning Revolving Agent’s resignation, the resigning Revolving Agent shall be discharged from its duties and obligations under this Agreement and the other Loan Documents, except that any indemnity rights or other rights in favor of such resigning Revolving Agent shall continue. After any resigning Revolving Agent’s resignation hereunder, the provisions of this Article XII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was acting as Revolving Agent under this Agreement and the other Loan Documents.

(d) Collateral Sub-Agents. Each Lender by its execution and delivery of this Agreement (or any joinder hereto or any Assignment and Acceptance hereunder) agrees that, in the event it shall hold any monies or other investments on account of the Credit Parties, such monies or other investments shall be held in the name and under the control of the Administrative Agent, Revolving Agent or such Lender, and the Administrative Agent, Revolving Agent or such Lender shall hold such monies or other investments as a collateral sub-agent for the Collateral Agent under this Agreement and the other Loan Documents. The Credit Parties, by their execution and delivery of this Agreement, hereby consent to the foregoing.

Section 12.07. Collateral Matters.

(a) Each Participating Lender hereby irrevocably authorizes the Collateral Agent and any permitted sub-agent, at its option and in its sole discretion, to release any Lien on any or all Collateral (i) upon the termination of the Commitments and the payment and satisfaction in full of all Obligations; (ii) constituting property being sold or disposed of if a release is required or desirable in connection therewith and if the Company certifies in writing to the Collateral Agent that the sale or disposition is permitted under this Agreement or the other Loan Documents (and the Collateral Agent may rely conclusively on any such certificate, without further inquiry); (iii) constituting Property in which the Credit Parties owned no interest at the time the security interest was granted or at any time thereafter; (iv) constituting property leased to the Credit Parties under a lease that has expired or is terminated in a transaction permitted under this Agreement; or (v) constituting Equipment which, in the aggregate with all other dispositions of Equipment covered by this clause (v), has a fair market value or book value, whichever is less, of five million Dollars ($5,000,000) or less over the life of the Loans. Upon request by the Collateral Agent or the Company at any time, the Administrative Agent, the Revolving Agent and the Lenders will confirm in writing the Collateral Agent’s authority to release any such Liens on particular types or items of Collateral pursuant to this Section 12.07. Notwithstanding the foregoing, the Collateral Agent is not and shall not be required to execute any document necessary to evidence the release of any Lien on terms that, in the Collateral Agent’s opinion, would expose the Collateral Agent to liability, create any obligation, or entail any consequence other than the release of such Lien without recourse, representation, or warranty. No release of any Lien shall in any manner discharge, affect, or impair the Obligations or any other Lien, including, the Collateral Agent’s Lien upon the proceeds of sale of any Collateral that is the subject of any such release.

(b) The Collateral Agent shall have no obligation whatsoever to any Secured Party (i) to assure that the Collateral exists or is owned by the applicable Credit Party or is cared for, protected, or insured or has been encumbered, or (ii) to assure that the Liens of the Collateral Agent or any other Secured Party have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or (iii) to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to the Collateral Agent pursuant to any of the Loan Documents. It is understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, subject to the terms and conditions contained herein, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion given the Collateral Agent’s own interest in the Collateral and in its capacity as one of the Secured Parties and that the Collateral Agent shall have no other duty or liability whatsoever to any Secured Party as to any of the foregoing, except as otherwise provided herein.

Section 12.08. Collateral Restrictions on Actions by the Agents and the Participating Lenders; Sharing Payments. Subject to Section 12.03, if, at any time or times any Participating Lender shall receive (a) by payment, foreclosure, set-off or otherwise, any proceeds of Collateral for application to any of the Obligations or any other payments with respect to the Obligations arising under, or relating to, this Agreement or the other Loan Documents, except for any such proceeds or payments received by such Participating Lender from the Administrative Agent or the Revolving Agent pursuant to the terms of this Agreement or (b) payments from the Administrative Agent or the Revolving Agent in excess of such Participating Lender’s ratable portion of all such distributions by the Administrative Agent or the Revolving Agent, such Participating Lender promptly shall turn the same over to the Administrative Agent or the Revolving Agent, in kind, and with such endorsements as may be required to negotiate the same to the Administrative Agent or the Revolving Agent, or in same-day funds, as applicable, for the account of the Participating Lenders and for apportionment and application to the Obligations in accordance with this Agreement.

Section 12.09. Several Obligations; No Liability. Notwithstanding that certain of the Loan Documents now or hereafter may have been or will be executed only by or in favor of an Agent in its capacity as such, and not by or in favor of the Participating Lenders, any and all obligations on the part of the Administrative Agent or the Revolving Agent, if any, to make any credit available hereunder shall constitute the several (and not joint) obligations of the respective Participating Lenders on a ratable basis, according to their respective Commitments, to make an amount of such credit not to exceed, in principal amount, at any one time outstanding, the amount of their respective Commitments. Nothing contained herein shall confer upon any Participating Lender any interest in, or subject any Participating Lender to any liability for, or in respect of, the business, assets, profits, losses, or liabilities of any other Participating Lender. Each Participating Lender shall be solely responsible for notifying its Participants of any matters relating to the Loan Documents to the extent any such notice may be required, and no Participating Lender shall have any obligation, duty, or liability to any Participant of any other Participating Lender. Except as provided in Section 12.05, no Agent-Related Person and no Participating Lender shall have any liability for the acts of any other Agent-Related Person or any other Participating Lender. No Participating Lender shall be responsible to the Credit Parties or any other Person for any failure by any other Participating Lender to fulfill its obligations to make credit available hereunder, nor to advance for it or on its behalf in connection with its Commitment, nor to take any other action on its behalf hereunder or in connection with the financing contemplated herein.

Section 12.10. Several Obligations; No Liability. Notwithstanding that certain of the Loan Documents now or hereafter may have been or will be executed only by or in favor of an Agents in their capacity as such, and not by or in favor of the Lenders, any and all obligations on the part of the Administrative Agent and/or the Revolving Agent, if any, to make any credit available hereunder shall constitute the several (and not joint) obligations of the respective Lenders on a ratable basis, according to their respective Commitments, to make an amount of such credit not to exceed, in principal amount, at any one time outstanding, the amount of their respective Commitments. Nothing contained herein shall confer upon any Lender any interest in, or subject any Lender to any liability for, or in respect of, the business, assets, profits, losses, or liabilities of any other Lenders. Each Lender shall be solely responsible for notifying its Participating Lenders of any matters relating to the Loan Documents to the extent any such notice may be required, and no Lender shall have any obligation, duty, or liability to any Participating Lender of any other Lender. Except as provided expressly herein, no Agent and no Lender shall have any liability for the acts of any other Agent or any other Lender. No Lender shall be responsible to the Borrowers or any other Person for any failure by any other Lender to fulfill its obligations to make credit available hereunder, nor to advance for it or on its behalf in connection with its Commitment, nor to take any other action on its behalf hereunder, under any other Loan Document or in connection with the financing contemplated herein.

ARTICLE XIII

MISCELLANEOUS

Section 13.01. Notices, Etc. All notices and other communications provided for hereunder shall be in writing and shall be mailed, telecopied, emailed or delivered:

if to any Credit Party, at the following address:

Global Power Equipment Group Inc.

0000 Xxxxx Xxxx, Xxxxx 0000

Xxxxx, Xxxxxxxx 00000

Xxxxxx Xxxxxx

Attention: Xxxxxxx Xxxxxxxxx, General Counsel

Phone: (000) 000-0000

Fax: (000) 000-0000

Email: xxxxxxxxxx@xxxxxxxxxxx.xxx

with a copy to:

White & Case LLP

0000 Xxxxxx xx xxx Xxxxxxxx

Xxx Xxxx, XX 00000

Attention: Xxxxx X. Xxxxx

Phone: (000) 000-0000

Fax: (000) 000-0000

Email: xxxxxx@xxxxxxxxx.xxx

Xxxxxx & Xxxxxxx, LLP

0000 Xxx Xxxxxxxx Xxxxxx

Xxxxx, XX 00000-0000

Attn: Xxxx Xxxxx

Tel: (000) 000-0000

Fax: (000) 000-0000

if to the Administrative Agent or the Collateral Agent, at the following address:

Xxxxxx Xxxxxxx Senior Funding, Inc.

0000 Xxxxxxxx, Xxxxx 0

Xxx Xxxx, Xxx Xxxx 00000

Xxxxxx Xxxxxx

Attention: Xxx Xxxxxx

Phone: 000-000-0000

Fax: 000-000-0000

Email: xxx.xxxxxx@xxxxxxxxxxxxx.xxx

Xxxxxx Xxxxxxx & Co., Inc.

0000 Xxxxxxxx, Xxxxx 0

Xxx Xxxx, Xxx Xxxx 00000

Xxxxxx Xxxxxx

Attention: Xxx Xxxxxx

Phone: 000-000-0000

Fax: 000-000-0000

Email: xxx.xxxxxx@xxxxxxxxxxxxx.xxx

In each case, with a copy to:

Xxxxxxxx & Xxxxxxxx LLP

0000 Xxxxxxx Xxxx Xxxx

Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000

Xxxxxx Xxxxxx

Attention: Xxxxx X. Xxxxxxxxx

Phone: x0-000-000-0000

Fax: x0-000-000-0000

Email: xxxxxxxxxx@xxxxxxxx.xxx

if to the Revolving Agent, at the following address:

The CIT Group/Business Credit, Inc.

11 West 42^nd, 00^xx Xxxxx

Xxx Xxxx, Xxx Xxxx 00000

Xxxxxx Xxxxxx

Attention: Xxxxx Xxxxxx

Phone: (000) 000-0000

Fax: (000) 000-0000

Email: xxxxx.xxxxxx@xxx.xxx

with a copy to:

The CIT Group/Business Credit, Inc.

11 West 42^nd, 00^xx Xxxxx

Xxx Xxxx, Xxx Xxxx 00000

Xxxxxx Xxxxxx

Attention: Xxxxxx Xxxxxxxxxxx

Phone: (000) 000-0000

Fax: (000) 000-0000

Email: xxxxxx.xxxxxxxxxxx@xxx.xxx

And with a copy to:

Paul, Hastings, Xxxxxxxx & Xxxxxx LLP

600 Peachtree Street, NE, Suite 2400

Xxxxxxx, Xxxxxxx 00000

Xxxxxx Xxxxxx

Attention: Xxxxx X. Xxxxx

Phone: (000) 000-0000

Fax: (000) 000-0000

Email: xxxxxxxxxx@xxxxxxxxxxxx.xxx

or, as to each party, at such other address as shall be designated by such party in a written notice to the other party complying as to delivery with the terms of this Section 13.01. All such notices and other communications shall be effective, (a) if mailed, when received or five (5) Business Days after deposited in the mails as registered or certified (in each case with return receipt requested) with postage pre-paid and properly addressed, whichever occurs first, (b) if telecopied, when transmitted and confirmation received, (c) if emailed, when transmitted and confirmation acknowledged by recipient or (d) if delivered, upon delivery, except that notices to the Administrative Agent or Revolving Agent pursuant to Article I shall not be effective until received by the Administrative Agent or Revolving Agent.

Section 13.02. Amendments, Etc.

(a) Except as set forth below or as otherwise provided in this Agreement, no amendment or waiver of any provision of this Agreement, any Loan or any other Loan Document, nor consent to any departure by any Credit Party therefrom, shall in any event be effective unless the same shall be in writing and signed by the Company and the Required Lenders (or the Administrative Agent at the request of the Required Lenders), and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Except as set forth below, all such amendments, modifications, terminations or waivers requiring the consent of any Lenders shall require the written consent of Required Lenders.

(b) No amendment, modification, termination or waiver or consent shall, without the consent of the Administrative Agent, the Revolving Agent, the Company and each Lender directly affected thereby, do any of the following:

(i) increase the principal amount of any Lender’s Commitment (which action shall be deemed only to affect those Lenders whose Commitments are increased and may be approved by Required Lenders, including those Lenders whose Commitments are increased);

(ii) reduce the principal of or rate of interest on any Loan owed or any fees payable to such affected Lender;

(iii) postpone or extend any date fixed for any payment of principal or, interest due on, any Loan owed to such affected Lender;

(iv) release all or substantially all of the Collateral or the Guarantors, or subordinate the right of the Collateral Agent and the Lenders with respect to all or substantially all of the Collateral (except as expressly permitted herein or in the other Loan Documents);

(v) amend, modify or waive this Section 13.02; or

(vi) amend or waive the priorities established under Section 1.09, the definitions of the terms “Required Lenders”, “Required Revolving Lenders,” “Required Term Lenders” or “Pro Rata Share”; insofar as such definitions affect the substance of this Section 13.02.

(c) If at any time (i) the Fixed Charge Coverage Ratio is greater than 1.2 to 1.0 for the last four Fiscal Quarter period most recently ended, and (ii) the Credit Parties, on a consolidated basis, have a Liquidity level of $5,000,000 (five million dollars) in excess of the requirement set forth in Section 9.03 as of the end of the most recently ended Fiscal Month, then any non-compliance under Section 9.01 or Section 9.02 or any Event of Default under Section 10.01 (e)(ii) may be waived and/or the covenant levels may be amended by the Required Term Lenders (or by the Administrative Agent upon the written direction of the Required Term Lenders) without the consent of any of the Revolving Lenders; provided however, that any such waiver or amendment shall not reduce the Fixed Charge Coverage Ratio covenant level set forth in Section 9.02 below 1.2 to 1.0 without the consent of the Required Revolving Lenders.

(d) No amendment, modification, termination or waiver affecting the rights or duties of any Agent or any L/C Issuer under this Agreement or any other Loan Document shall be effective unless in writing and signed by such Agent or the L/C Issuer, as the case may be, in addition to the Lenders required hereinabove to take such action.

Furthermore, no amendment, modification, termination or waiver shall be required for the Collateral Agent to take additional Collateral pursuant to any Loan Document. No notice to or demand on any Credit Party in any case shall entitle such Credit Party or any other Credit Party to any other or further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 13.02 shall be binding upon each Lender and each future Lender.

Section 13.03. Non-Consenting Lenders; Defaulting Lenders.

(a) If in connection with any proposed amendment, modification, waiver or termination (a “Proposed Change”) requiring the consent of Required Lenders or all affected Lenders, the consent of the Required Term Lenders and the Required Revolving Lenders and the consent of the Administrative Agent has been obtained, but the consent of other Lenders or Agents whose consent is required has not been obtained (any Lender whose consent is obtained as described in this Section 13.03 being referred to as a “Consenting Lender,” and any Lender whose consent is not obtained as described in this Section 13.03 being referred to as a “Non-Consenting Lender”), then at the Borrower’s request the Administrative Agent (or a Person reasonably acceptable to the Administrative Agent) shall have the right (but shall have no obligation), with the Administrative Agent’s written consent and in the Administrative Agent’s sole discretion, to purchase for Cash from any such Non-Consenting Lenders, and all such Non-Consenting Lenders agree that they shall, upon Administrative Agent’s request, sell and assign to Administrative Agent (or to such Person), all right, title and interest of such Non-Consenting Lender under the Loan Documents for an amount equal to the principal balance of all Loans held by such Non-Consenting Lender and all accrued interest and fees (but not including any Prepayment Fee) with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment and Acceptance.

(b) Defaulting Lenders. The failure of any Defaulting Lender to make any Loan or any payment required to be made by such Lender hereunder shall not relieve any other Lender (each such other Lender, an “Other Lender”) of any of its obligations to make any Loan or payment or otherwise, but none of any Other Lender, the Administrative Agent or the Revolving Agent shall be responsible to the Credit Parties or to any other Person for the failure of any Defaulting Lender to meet its obligations hereunder. Notwithstanding anything set forth herein to the contrary, a Defaulting Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” (or be included in the calculation of “Required Lenders,” “Required Revolving Lenders” or “Required Term Lenders,” as applicable) for any voting or consent rights under or with respect to any Loan Document. At the Borrower’s request with the Administrative Agent’s consent and in the Administrative Agent’s sole discretion, the Administrative Agent (or a Person reasonably acceptable to the Administrative Agent) shall have the right (but shall have no obligation) to purchase from any Defaulting Lender, and each Defaulting Lender agrees that it shall, at Administrative Agent’s request, sell and assign to Administrative Agent (or to such Person), all right, title and interest of such Defaulting Lender under the Loan Documents for an amount equal to the principal balance of all Loans held by such Defaulting Lender and all accrued interest and fees then due and other Obligations owing to such Lender (but not including any Prepayment Fee) with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment and Acceptance.

Section 13.04. No Waiver; Remedies, Etc. No failure on the part of the Lenders or any Agent to exercise, and no delay in exercising, any right hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any right under any Loan Document preclude any other or further exercise thereof or the exercise of any other right. The rights and remedies of the Lenders and the Agents provided herein and in the other Loan Documents are cumulative and are in addition to, and not exclusive of, any rights or remedies provided by law. The rights of the Lenders and the Agents under any Loan Document against any party thereto are not conditional or contingent on any attempt by the Lenders and the Agents to exercise any of their rights under any other Loan Document against such party or against any other Person.

Section 13.05. Expenses; Taxes; Attorneys’ Fees. The Borrower will pay promptly following demand therefor, all Participating Lender Expenses. Without limitation of the foregoing or any other provision of any Loan Document: (i) the Borrower agrees to pay all stamp, document, transfer, recording or filing taxes or fees and similar impositions now or hereafter reasonably determined by the Lenders to be payable in connection with this Agreement or any other Loan Document, and the Borrower agrees to hold the Lenders harmless from and against any and all present or future claims, liabilities or losses with respect to or resulting from any omission to pay or delay in paying any such taxes, fees or impositions, (ii) the Borrower agrees to pay all broker fees with respect to any broker retained by the Borrower or any of its Subsidiaries that may become due in connection with the transactions contemplated by this Agreement and (iii) during the continuance of a Default or an Event of Default, if a Credit Party (A) fails to make any payments or deposits with respect to any taxes of any kind or nature to the extent that such payments or deposits are due and payable prior to delinquency, (B) fails to make any payments or deposits with respect to any other governmental assessment prior to the time that any Lien may inure against any property of any Credit Party, or (C) fails to make any payments or deposits with respect to any insurance premiums then due and payable or otherwise comply with Section 7.12, then the Administrative Agent, in its sole discretion and without prior notice to the Borrower, may do any or all of the following, without duplication: (1) make payment of the same or any part thereof, (2) in the case of any failure described in clause (iii)(C) above, obtain and maintain insurance policies of the type described in Section 5.01(r) and take the actions with respect to such policies which are authorized pursuant to such policies. Any payment described above in clause (2) shall not constitute an agreement by the Lenders to make similar payments in the future or a waiver by the Lenders of any Event of Default under this Agreement. The Administrative Agent and Revolving Agent need not inquire as to, or contest the validity of, any such obligation. The Administrative Agent and Revolving Agent agree to provide to the Borrower an invoice with respect to each cost or expense incurred in connection with the Loan Documents by any Lender promptly upon the Administrative Agent’s or Revolving Agent’s receipt thereof, and agree, upon the reasonable request of the Borrower, to provide reasonable backup information with respect to such costs or expenses (subject to the right of the Administrative Agent and Revolving Agent to take whatever steps are reasonably necessary to protect any confidential or privileged information which may be contained therein). Notwithstanding the foregoing, no Borrower shall be required to reimburse the legal fees and expenses of more than one outside counsel (in addition to up to one local counsel in each applicable local jurisdiction) for each of (i) the Administrative Agent, the Collateral Agent or the Participating Lenders and (ii) the Revolving Agent, in each case under this Section 13.05 unless on advice of outside counsel, representation of more than one such Person would be inappropriate due to the existence of an actual or potential conflict of interest.

Section 13.06. Right of Set-Off. If an Event of Default shall have occurred and be continuing, each Lender and each of their respective Affiliates, is hereby authorized at any time and from time to time, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender or any such Affiliate to or for the credit or the account of the Borrower or any other Credit Party against any and all of the obligations of the Borrower or such Credit Party now or hereafter existing under this Agreement or any other Loan Document to such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Credit Party may be contingent or unmatured or are owed to a branch or office of such Lender different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender and their respective Affiliates under this Section 13.06 are in addition to other rights and remedies (including other rights of set-off) that such Lender or their respective Affiliates may have. Each Lender agrees to notify the Borrower and the Administrative Agent and Revolving Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such set-off and application.

Section 13.07. Severability. Any provision of this Agreement, which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

Section 13.08. Complete Agreement; Sale of Interest. The Loan Documents constitute the complete agreement between the parties with respect to the subject matter hereof and thereof, supersede any previous agreement or understanding between them relating hereto or thereto and may not be modified, altered or amended except by an agreement in writing signed by the Credit Parties and the Lenders in accordance with Section 13.02. The Credit Parties may not sell, assign or transfer any of the Loan Documents or any portion thereof, including their rights, title, interests, remedies, powers and duties hereunder or thereunder. The Credit Parties hereby consent to any Lender’s sale of participations, assignment, transfer or other disposition, at any time or times, of any of the Loan Documents or of any portion thereof or interest therein, including such Lender’s rights, title, interests, remedies, powers or duties thereunder, subject, in the case of a participation, assignment, transfer or other disposition, to the provisions of Section 13.09.

Section 13.09. Binding Effect; Assignment; Register.

(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Credit Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by any Credit Party without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, the Affiliates of the Administrative Agent) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b) Any Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Loans at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining outstanding amount of the Loans at the time owing to it (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) or in the case of an assignment to an entity described in clause (d) of the definition of Eligible Assignee, any such assignment shall not be less than one million Dollars ($1,000,000), unless each of the Administrative Agent and Revolving Agent otherwise consents (such consent not to be unreasonably withheld or delayed), and (ii) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance. Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (d) of this Section 13.09, from and after the effective date specified in each Assignment and Acceptance, the Eligible Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement, and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 2.05, Section 3.03, Section 3.04, Section 13.17, and Section 13.18 to the extent any claim thereunder relates to an event arising out of such Lender’s status or activity as Lender prior to such assignment.

(c) Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 13.09 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (e) of this Section 13.09.

(d) The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Administrative Agent’s office a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Term Lenders, and the Term Loan Commitment of, and principal amount of the Term Loan owing to, each Lender pursuant to the terms hereof from time to time (the “Term Register”). The Revolving Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Revolving Agent’s office a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Revolving Lenders, and the Revolving Commitment of, and principal amount of the Revolving Loans owing to, each Revolving Lender pursuant to the terms hereof from time to time (the “Revolving Register”). The entries in either register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. Each register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. The Borrower may request in writing a copy of either register from time to time and the Administrative Agent or the Revolving Agent, as appropriate, will promptly deliver a copy of such register to the Borrower promptly thereafter.

(e) Any Lender may, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to one or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Agents and the Participating Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement, provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in Section 13.02(b)(ii) or Section 13.02(b)(iii) that affects such Participant. Subject to paragraph (f) of this Section 13.09 the Borrower agrees that each Participant shall be entitled to the benefits of Section 2.05, Section 3.03 and Section 3.04 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section 13.09. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 13.05 as though it were a Lender, provided such Participant agrees to be subject to Section 12.05 as though it were a Lender.

(f) Any Lender selling a participation to a Participant shall, as agent for the Borrower, keep a register, in substantially the same form as such Lender’s respective register, of each such Participant, specifying such Participant’s entitlement to payments of principal and interest with respect to such participation.

(g) A Participant shall not be entitled to receive any greater payment under Section 2.05 or Article III than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant that would be a Non-U.S. Lender if it were a Lender shall not be entitled to the benefits of Section 2.05 unless the Borrower are notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.05 as though it were a Lender.

(h) Any Lender may, without the consent of the Borrower, the Administrative Agent or the Revolving Agent, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including without limitation (i) any pledge or assignment to secure obligations to a Federal Reserve Bank and (ii) in the case of any Lender that is a Fund, any pledge or assignment of all or any portion of such Lender’s rights under this Agreement to any holders of obligations owed, or securities issued, by such Lender as security for such obligations or securities, or to any trustee for, or any other representative of, such holders, and this Section 13.09 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

Section 13.10. Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement or any of the other Loan Documents by telecopy shall have the same force and effect as the delivery of an original executed counterpart of this Agreement or any of such other Loan Documents. Any party delivering an executed counterpart of any such agreement by telecopy shall also deliver an original executed counterpart, but the failure to do so shall not affect the validity, enforceability or binding effect of such agreement.

Section 13.11. GOVERNING LAW. THIS AGREEMENT, THE NOTES AND, EXCEPT TO THE EXTENT OTHERWISE PROVIDED THEREIN, THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

Section 13.12. CONSENT TO JURISDICTION, SERVICE OF PROCESS AND VENUE. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX IN THE BOROUGH OF MANHATTAN, COUNTY OF NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH CREDIT PARTY HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH CREDIT PARTY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH CREDIT PARTY AT THE ADDRESS FOR NOTICES SET FORTH IN SECTION 13.01, SUCH SERVICE TO BECOME EFFECTIVE FIVE (5) DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE LENDERS OR THE AGENTS TO SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY CREDIT PARTY IN ANY OTHER JURISDICTION. EACH CREDIT PARTY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

Section 13.13. WAIVER OF JURY TRIAL, ETC. THE CREDIT PARTIES, THE LENDERS AND THE AGENTS HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AGREEMENT, THE NOTES OR OTHER LOAN DOCUMENTS, OR UNDER ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION THEREWITH, OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY SUCH ACTION, PROCEEDINGS OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH CREDIT PARTY CERTIFIES THAT NO OFFICER, REPRESENTATIVE, AGENT OR ATTORNEY OF THE LENDERS OR THE AGENTS HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE LENDERS OR THE AGENTS WOULD NOT, IN THE EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE FOREGOING WAIVERS. EACH CREDIT PARTY HEREBY ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS AND THE AGENTS ENTERING INTO THIS AGREEMENT.

Section 13.14. Consent. Except as otherwise expressly set forth herein or in any other Loan Document to the contrary, if the consent, approval, satisfaction, determination, judgment, acceptance or similar action (an “Action”) of the Lenders or the Agents shall be permitted or required pursuant to any provision hereof or any provision of any other agreement to which the Borrower or any other Guarantors are parties and to which the Lenders or the Agents are party or have succeeded thereto, such Action shall be required to be in writing and may be withheld or denied by the Lenders or the Agents with or without any reason in their reasonable discretion.

Section 13.15. Interpretation. Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against the Lenders, the Agents or the Borrower, whether under any rule of construction or otherwise. On the contrary, this Agreement has been reviewed by all parties and shall be construed and interpreted according to the ordinary meaning of the words used so as to accomplish fairly the purposes and intentions of all parties hereto.

Section 13.16. Reinstatement; Certain Payments. If any claim is ever made upon the Secured Parties or the Agents for repayment or recovery of any amount or amounts received by the Secured Parties or the Agents in payment or received on account of any of the Obligations, the Secured Parties or the Agents shall give prompt notice of such claim to the Borrower, and if the Secured Parties or the Agents repay all or part of such amount by reason of (a) any judgment, decree or order of any court of competent jurisdiction or administrative body having jurisdiction over the Secured Parties or the Agents or any of their respective property, or (b) compliance by the Secured Parties or the Agents with any requirement of a Governmental Authority having jurisdiction over the Secured Parties or the Agents, then and in such event the Borrower agrees that (i) any such judgment, decree or order shall be binding upon it notwithstanding the cancellation of any instrument evidencing the Obligations or the other Loan Documents or the termination of this Agreement or the other Loan Documents and (ii) it shall be and remain liable to the Secured Parties or the Agents hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by the Secured Parties or the Agents.

Section 13.17. Indemnification. In addition to the Borrower’s other Obligations under this Agreement, the Borrower agrees to defend, protect, indemnify and hold harmless the Lenders and each of their respective Affiliates and their officers, directors, trustees, employees, agents and advisors, the Administrative Agent, the Revolving Agent, the Collateral Agent, the Agent-Related Persons and the Lender-Related Persons (collectively called the “Indemnitees”) from and against any and all claims, losses, demands, settlements, damages, liabilities, obligations, penalties, fines, fees, reasonable costs and expenses (including, without limitation, reasonable attorneys’ fees, costs and expenses, but excluding income, franchise and similar taxes of an Indemnitee) incurred by such Indemnitees (but not taxes, which shall be governed by Section 2.05 and Section 13.05), whether prior to or from and after the Closing Date, as a result of or arising from or relating to or in connection with any of the following: (a) the Administrative Agent, the Revolving Agent, the Collateral Agent or the Lenders furnishing of funds to the Borrower under this Agreement, including, without limitation, the management of any such Loans, (b) any matter relating to the financing transactions contemplated by this Agreement or the other Loan Documents or by any document executed in connection with the transactions contemplated by this Agreement or the other Loan Documents, (c) any claim, litigation, investigation or administrative or judicial proceeding in connection with any transaction contemplated in, or consummated under, the Loan Documents or (d) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto, including without limitation, claims, litigations, investigations or other proceedings arising out of (i) the presence, disposal, Release of any Hazardous Materials on, in, at, to, from or under any property at any time owned or occupied by the Borrower or any of its Subsidiaries (or any of their respective predecessors in interest or title) or at any facility which received Hazardous Materials generated by the Borrower or any of its Subsidiaries or any of their respective predecessors in interest in connection with the receipt of such Hazardous Materials, (ii) any alleged personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any Hazardous Materials generated by any Credit Party or any of its Subsidiaries, (iii) any investigation, lawsuit brought or threatened, settlement reached or government order relating to such Hazardous Materials, (iv) any alleged violation of any Environmental Law by any Credit Party or any of its Subsidiaries or any of their respective predecessors in interest, and/or (v) any Environmental Action (collectively, the “Indemnified Matters”); provided, however, that the Borrower shall not have any obligation to any Indemnitee under this Section 13.17 if such Indemnified Matter results solely from the gross negligence or willful misconduct of such Indemnitee, as determined by a final and non-appealable order by a court of competent jurisdiction, or as a result of the presence or release of Hazardous Materials that are first brought on to a property after such property is transferred to any Indemnitee or its successors or assigns by foreclosure, deed-in-lieu of foreclosure or similar transfer; provided, however, that no Credit Party shall be required to reimburse the legal fees and expenses of more than one outside counsel (in addition to up to one local counsel in each applicable local jurisdiction) for all Indemnitees under this Section 13.17 unless on advice of outside counsel, representation of all such Indemnitees would be inappropriate due to the existence of an actual or potential conflict of interest. Such indemnification for all of the foregoing losses, damages, fees, costs and expenses of the Indemnitees shall be due and payable promptly after demand therefor. To the extent that the undertaking to indemnify, pay and hold harmless set forth in this Section 13.17 may be unenforceable because it is violative of any law or public policy, the Borrower shall contribute the maximum portion which it is permitted to pay and satisfy under Applicable Law, to the payment and satisfaction of all Indemnified Matters incurred by the Indemnitees.

Section 13.18. Interest. It is the intention of the parties hereto that each Agent and each Lender shall conform strictly to usury laws applicable to it. Accordingly, if the transactions contemplated hereby or by any other Loan Document would be usurious as to any Agent or any Lender under laws applicable to it (including the laws of the United States of America and the State of New York or any other jurisdiction whose laws may be mandatorily applicable to such Agent or such Lender notwithstanding the other provisions of this Agreement), then, in that event, notwithstanding anything to the contrary in this Agreement or any other Loan Document or any agreement entered into in connection with or as security for the Obligations, it is agreed as follows: (a) the aggregate of all consideration which constitutes interest under law applicable to any Agent or any Lender that is contracted for, taken, reserved, charged or received by such Agent or such Lender under this Agreement or any other Loan Document or agreements or otherwise in connection with the Obligations shall under no circumstances exceed the maximum amount allowed by such Applicable Law, any excess shall be canceled automatically and if theretofore paid shall be credited by such Agent or such Lender on the principal amount of the Obligations (or, to the extent that the principal amount of the Obligations shall have been or would thereby be paid in full, refunded by such Agent or such Lender, as applicable, to the Borrower); and (b) in the event that the maturity of the Obligations is accelerated by reason of any Event of Default under this Agreement or otherwise, or in the event of any required or permitted prepayment, then such consideration that constitutes interest under law applicable to any Agent or any Lender may never include more than the maximum amount allowed by such Applicable Law, and excess interest, if any, provided for in this Agreement or otherwise shall be canceled automatically by such Agent or such Lender, as applicable, as of the date of such acceleration or prepayment and, if theretofore paid, shall be credited by such Agent or such Lender, as applicable, on the principal amount of the Obligations (or, to the extent that the principal amount of the Obligations shall have been or would thereby be paid in full, refunded by such Agent or such Lender to the Borrower). All sums paid or agreed to be paid to any Agent or any Lender for the use, forbearance or detention of sums due hereunder shall, to the extent permitted by law applicable to such Agent or such Lender, be amortized, prorated, allocated and spread throughout the full term of the Loans until payment in full so that the rate or amount of interest on account of any Loans hereunder does not exceed the maximum amount allowed by such Applicable Law. If at any time and from time to time, (i) the amount of interest payable to any Agent or any Lender on any date shall be computed at the Highest Lawful Rate applicable to such Agent or such Lender pursuant to this Section 13.18 and (ii) in respect of any subsequent interest computation period the amount of interest otherwise payable to such Agent or such Lender would be less than the amount of interest payable to such Agent or such Lender computed at the Highest Lawful Rate applicable to such Agent or such Lender, then the amount of interest payable to such Agent or such Lender in respect of such subsequent interest computation period shall continue to be computed at the Highest Lawful Rate applicable to such Agent or such Lender until the total amount of interest payable to such Agent or such Lender shall equal the total amount of interest which would have been payable to such Agent or such Lender if the total amount of interest had been computed without giving effect to this Section 13.18.

For purposes of this Section 13.18, the term “Applicable Law” shall mean that law in effect from time to time and applicable to the loan transaction between the Borrower, on the one hand, and the Agents and the Lenders, on the other, that lawfully permits the charging and collection of the highest permissible, lawful non-usurious rate of interest on such loan transaction and this Agreement, including laws of the State of New York and, to the extent controlling, laws of the United States of America.

The right to accelerate the maturity of the Obligations does not include the right to accelerate any interest that has not accrued as of the date of acceleration.

Section 13.19. Records. The unpaid principal of, and interest on, the Obligations, the interest rate or rates applicable to such unpaid principal and interest, the duration of such applicability, the Commitment, and the accrued and unpaid fees payable pursuant to Section 3.06, including, without limitation, fees set forth in the Fee Letter, shall at all times be ascertained from the records of the Lender and Agents, which shall be conclusive and binding absent manifest or demonstrable error.

Section 13.20. Confidentiality. The Agents and the Participating Lenders each individually (and not jointly or jointly and severally) agree that material, non-public information regarding the Borrower and its Subsidiaries, their operations, assets, and existing and contemplated business plans shall be treated by the Agents and the Participating Lenders in a confidential manner, and shall not be disclosed (i) by any Agent or any Participating Lender to Persons who are not parties to this Agreement, or (ii) in the case of the consolidating reports provided to the Term Lenders only under Section 6.01(d), by any Agent or any Term Lender to any Person who is not a Term Lender under this Agreement, in each case, for a period of six (6) months following the Maturity Date, and, in each case, except (a) to attorneys for and other advisors, accountants, auditors, employees and consultants to any Participating Lender or any Agent, (b) to Subsidiaries and Affiliates of any Participating Lender or any Agent; provided, however, that any such Subsidiary or Affiliate shall have agreed to receive such information hereunder subject to the terms of this Section 13.20, (c) as may be required by statute, decision, or judicial or administrative order, rule, or regulation, (d) as may be agreed to in advance in writing by the Borrower or its Subsidiaries or as requested or required by any Governmental Authority pursuant to any subpoena or other legal process, (e) as to any such information that is or becomes generally available to the public (other than as a result of prohibited disclosure by any Agent or any Participating Lender), (f) in connection with any assignment, prospective assignment, sale, prospective sale, participation or prospective participations, or pledge or prospective pledge of any Participating Lender’s interest under this Agreement; provided, however, that any such assignee, prospective assignee, purchaser, prospective purchaser, participant, prospective participant, pledgee, or prospective pledgee shall have agreed in writing to receive such information hereunder subject to the terms of this Section 13.20, and (g) in connection with any litigation or other adversary proceeding involving parties hereto which such litigation or adversary proceeding involves claims related to the rights or duties of such parties under this Agreement or the other Loan Documents; provided, however, that, unless prohibited by applicable law, statute, regulation, or court order, such Participating Lender or such Agent shall: (x) where legally permissible, notify the Borrower of any request by any court, governmental or administrative agency, or pursuant to any subpoena or other legal process for disclosure of any such non-public material information concurrent with, or, if practicable, prior to the disclosure thereof, and (y) notify all other Persons described in clause (a) above that they are bound by, the provisions of this Section 13.20; provided, however, with respect to such material, non-public information identified by the Credit Parties in writing as restricted material (“Restricted Material”) that the Credit Parties are required to keep confidential for a longer period of time (such additional period, a “Restricted Period”), the Agents and the Participating Lenders agree to treat such Restricted Material confidentially in accordance with this Section 13.20 for such applicable Restricted Period to the extent the Agents and the Participating Lenders receive written notice of such Restricted Period.

Section 13.21. Lender Advertising. The Agents and the Lenders shall be entitled to advertise the closing of the transactions contemplated by this Agreement in such trade publications, business journals, newspapers of general circulation and otherwise, as the Agents and the Lenders shall deem appropriate, including, without limitation, the publication of a tombstone announcing the closing of this transaction; provided that the Agents and the Lenders shall obtain written consent of the Borrower prior to disseminating any advertisement described in this Section 13.21 which consent shall not be reasonably withheld.

Section 13.22. Common Enterprise. The successful operation and condition of each of the Credit Parties is dependent on the continued successful performance of the functions of the group of the Credit Parties as a whole and the successful operation of each of the Credit Parties is dependent on the successful performance and operation of each other Credit Party. Each Credit Party expects to derive benefit (and its board of directors or other governing body has determined that it may reasonably be expected to derive benefit), directly and indirectly, from (a) successful operations of each of the other Credit Parties and (b) the credit extended by the Lenders to the Borrower hereunder, both in their separate capacities and as members of the group of companies. Each Credit Party has determined that execution, delivery and performance of this Agreement and any other Loan Documents to be executed by such Credit Party is within its purpose, will be of direct and indirect benefit to such Credit Party, and is in its best interest.

Section 13.23. USA PATRIOT ACT. Each Participating Lender that is subject to the requirements of the Patriot Act hereby notifies the Borrower that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies each Credit Party and each Subsidiary of the Credit Parties, which information includes the name and address of each Credit Party and each Subsidiary of the Credit Parties and other information that will allow such Lender to identify the Credit Parties and their Subsidiaries in accordance with the Patriot Act.

Section 13.24. Survival of Representations, Warranties Covenants and Obligations. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith and all agreements, covenants and obligations set forth in Sections 1.04, 1.06(f), 1.08, 1.09, 2.05, 12.05, 13.05, 13.16 and 13.17 shall survive the execution and delivery hereof and thereof, notwithstanding any investigation made by any Agent or any Participating Lender or on their behalf and notwithstanding that any Agent or any Lender may have had notice or knowledge of any Default at any time, and such representations, warranties, agreements, covenants and obligations shall continue in full force and effect as long as any Obligation shall remain unpaid or unsatisfied.

ARTICLE XIV

DEFINITIONS; CERTAIN TERMS

Section 14.01. Definitions.

“2007 Financial Statements” means the unaudited consolidated (and consolidating by division) balance sheet of the Company and its Subsidiaries, determined on a consolidated basis and in accordance with GAAP, as of November 30, 2007 and the related consolidated (and consolidating by division) statement of operations, shareholders’ equity and cash flows of the Company and its Subsidiaries, determined on a consolidated basis and in accordance with GAAP, for the 11-month period then ended.

“Account” means an “account” as that term is defined in the UCC.

“Account Debtor” means any Person that is obligated on an Account, chattel paper or general intangible.

“Action” has the meaning ascribed to such term in Section 13.14.

“Additional Security Documents” means any Security Documents entered into pursuant to Section 7.07.

“Administrative Agent” has the meaning ascribed to such term in the introductory paragraph hereto.

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

“Agent-Related Person” means each of the Agents, each Affiliate of an Agent, and each officer, director, employee, counsel, consultant, agent, and attorney-in-fact of each Agent and each Affiliate of an Agent.

“Agents” means, collectively, the Administrative Agent, the Revolving Agent and the Collateral Agent.

“Aggregate Revolving Exposure” means the sum of (a) the outstanding Revolving Loans under this Agreement and (b) the Letter of Credit Exposure.

“Agreement” has the meaning ascribed to such term in the introductory paragraph hereto.

“ALTA” means American Land Title Association.

“Alternate Base Rate” at any time means the rate of interest per annum equal to the higher of (a) the rate of interest quoted by the Administrative Agent prime or base commercial lending rate and (b) the rate that is 0.50% in excess of the Federal Funds Rate. Any change in the Alternate Base Rate due to a change in rate referred to in clause (a) of this definition or the Federal Funds Rate shall be effective on the opening of business on the date of such change.

“Alternate Base Rate Loans” means Loans that bear interest at an interest rate based on the Alternate Base Rate.

“Applicable Cash Flow Percentage” means, in connection with Offers to Prepay (a) on any Sweep Date occurring prior to Fiscal Year 2011, 75%, (b) on any Sweep Date occurring during or following Fiscal Year 2011, (i) 50%, if the Total Leverage Ratio for the preceding Fiscal Year was at least 3.0:1.0, or (ii) 25%, if the Total Leverage Ratio for the preceding Fiscal Year was less than 3.0:1.0.

“Applicable Law” means, in respect of any Person, all provisions of constitutions, laws, statutes, rules, regulations, treaties, directives, guidelines and orders of Governmental Authorities applicable to such Person, including zoning ordinances, all Environmental Laws, and all orders, decisions, judgments and decrees of all courts and arbitrators in proceedings or actions to which the Person in question is a party or by which it is bound.

“Applicable Margin” means a percentage per annum, as set forth below:


	Alternate Base Rate Loan		LIBOR Rate Loan
Revolving Loans	1.75	%	2.75	%
Term Loans	5.75	%	6.75	%

“Applicable Tax Returns” has the meaning ascribed to such term in Section 5.01(k).

“Applicable Taxes” has the meaning ascribed to such term in Section 5.01(k).

“Approved Bank” has the meaning ascribed to such term in the definition of “Cash Equivalents.”

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

“Asset Sale” means any sale, lease or other disposition (including any such transaction effected by way of merger or consolidation) by the Company or any of its Subsidiaries of any asset but excluding Dispositions permitted by Sections 8.05(a), (b), (c), (d)(i) and (e).

“Assignment and Acceptance” means an Assignment and Acceptance substantially in the form of Exhibit I attached hereto and made a part hereof (with blanks appropriately completed) delivered to the Administrative Agent in connection with an assignment of a Lender’s interest under this Agreement in accordance with Section 13.09.

“Authorized Officer” means, with respect to any Credit Party, the chief executive officer, chief administrative officer, chief financial officer, vice president of financial compliance and reporting, and treasurer, controller or chief accounting officer or other officer with similar responsibility designated by the Board of Directors or similar governing body of the Credit Party.

“Auto Renewal Letter of Credit” has the meaning ascribed to such term in Section 1.06(a)(ii).

“Availability Period” means the period from the Closing Date to the Maturity Date.

“Available Commitments” means, as of any date, the Total Revolving Commitment minus the Aggregate Revolving Exposure.

“Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. §§ 101 et seq.), as amended from time to time, and any successor statute.

“Bankruptcy Court” has the meaning ascribed to such term in the Recitals.

“Benefit Plan” means an employee pension benefit plan, excluding any Multiemployer Plan, which is subject to Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code.

“Xxxxxx Europe” means Xxxxxx Europe B.V.

“Xxxxxx Shanghai” means Xxxxxx Power Equipment (Shanghai) Co., Ltd.

“Board of Directors” means the board of directors of the Company.

“Borrower” has the meaning ascribed to such term in the introductory paragraph hereto.

“Business Day” means any day that is not a Saturday, a Sunday or a day on which commercial banks are required or permitted to be closed in the State of New York; provided that when used in connection with a rate determination, borrowing or payment in respect of a LIBOR Rate Loan, the term “Business Day” shall also exclude any day on which banks in London, England are not open for dealings in U.S. Dollar deposits in the London interbank market.

“Capital Expenditures” means, with respect to any Person for any period, the sum of the aggregate of all expenditures by such Person and its Subsidiaries arising during such period that, in accordance with GAAP, are or should be included in the “property, plant and equipment” account on its consolidated balance sheet, including all applicable Capitalized Lease Obligations with respect to “property, plant and equipment”, paid or payable during such period, excluding in each case, (a) any such expenditures made for the repair, replacement or restoration of assets to the extent paid or reimbursed by any insurance policy or condemnation award to the extent such expenditures are permitted under the Loan Documents, (b) any leasehold improvement expenditures to the extent paid or reimbursed by the applicable lessor, sublessor or sublessee and (c) any acquisition of all or substantially all of the assets of, all of the Capital Stock of, or a business line, unit, office or division of any Person.

“Capital Stock” means (a) with respect to any Person that is a corporation, any and all shares, options, warrants, interests, participations or other equivalents (however designated and whether or not voting) of or in a Person, including common stock, preferred stock or any other “equity security” and (b) with respect to any Person that is not a corporation, any and all partnership, limited liability company interests or other equity interests of such Person excluding, in the case of clauses (a) and (b) above, any debt security that is exchangeable for or convertible into such capital stock.

“Capitalized Lease” means, with respect to any Person, any lease of real or personal property by such Person as lessee which is required under GAAP to be capitalized on the balance sheet of such Person.

“Capitalized Lease Obligations” means, with respect to any Person, obligations of such Person and its Subsidiaries as lessee under Capitalized Leases as determined in accordance with GAAP.

“Cash Collateral Account” has the meaning ascribed to such term in Section 1.06(g).

“Cash Equivalents” means:

(a) securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof) having maturities of not more than 364 days from the date of acquisition;

(b) time deposits (including Eurocurrency time deposits), certificates of deposit (including Eurocurrency certificates of deposit) and bankers’ acceptances of (i) any Lender or any Affiliate of any Lender, (ii) any commercial bank of recognized standing either organized under the laws of the United States (or any State or territory thereof) having capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term commercial paper rating (at the time of acquisition of such security) by S&P is at least “A-1” or the equivalent thereof (any such bank, an “Approved Bank”), in each case with maturities of not more than 364 days from the date of acquisition;

(c) commercial paper issued by any Lender or Approved Bank or by the parent company of any Lender or Approved Bank and commercial paper issued by, or guaranteed by, any industrial or financial company with a short-term commercial paper rating (at the time of acquisition of such security) of at least “A-1” or the equivalent thereof by S&P of at least “P-1” or the equivalent thereof by Xxxxx’x, or guaranteed by any industrial company with a long-term unsecured debt rating (at the time of at least “Aa” or the equivalent thereof by Xxxxx’x, and in each case maturing within 364 days after the date of acquisition;

(d) repurchase agreements with any Lender or any Approved Bank maturing within seven (7) days from the date of acquisition that are fully collateralized by investment instruments that would otherwise be Cash Equivalents; and

(e) investments in money market funds with any Approved Bank substantially all of whose assets of which are comprised of securities described in the foregoing clauses (a) through (d).

“Cash Management Bank” has the meaning ascribed to such term in Section 4.01(z)(i).

“Casualty” means any casualty, loss, damage, destruction or other similar loss with respect to real or personal property or improvements.

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

“Change of Control” means (a) that any “person” or “group” (within the meaning of Sections 13(d) and 14(d) of the Securities Exchange Act) acquires Control or otherwise becomes beneficial owner (as that term is defined in Rule 13d-3 under the Securities Exchange Act), directly or indirectly, of 35%, or more, of the Capital Stock of the Company having the right to vote for the election of members of the Board of Directors or (b) a majority of the members of the Board of Directors do not constitute Continuing Directors.

“Chapter 11 Cases” has the meaning ascribed to such term in the Recitals.

“Closing Date” means the Business Day, on or before January 31, 2008, on which all of the conditions precedent set forth in Section 4.01 have been satisfied (or waived in accordance with the terms of this Agreement).

“Code” means the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder, in each case as in effect from time to time. References to sections of the Code shall be construed also to refer to any successor sections.

“Collateral” has the meaning ascribed to such term in the Security Agreement.

“Collateral Agent” has the meaning ascribed to such term in the introductory paragraph hereto.

“Collections” means all cash, checks, notes, instruments, and other items of payment (including insurance and condemnation proceeds, cash proceeds of sales and other voluntary or involuntary dispositions of property, rental proceeds, and tax refunds).

“Commencement Date” has the meaning ascribed to such term in the Recitals.

“Commercial Code” means the New York Uniform Commercial Code, as in effect from time to time.

“Commitment Letter” means the Commitment Letter, dated December 20, 2007, between the Company and the Administrative Agent.

“Commitments” means the Revolving Commitments and the Term Loan Commitments.

“Company” has the meaning ascribed to such term in the introductory paragraph hereto.

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“Company Intellectual Property” has the meaning ascribed to such term in Section 5.01(v)(i).

“Condemnation” means any taking by a Governmental Authority of property or assets, or any part thereof or interest therein, for public or quasi-public use under the power of eminent domain, by reason of any public improvement or condemnation or in any other manner.

“Confirmation Order” has the meaning ascribed to such term in the Recitals.

“Consenting Lender” has the meaning ascribed to such term in Section 13.03(a).

“Consolidated Capital Expenditures” means, for any period, the aggregate of all Capital Expenditures of the Company during such period, except, for purposes of this definition, consolidated solely with respect to the Credit Parties.

“Consolidated EBITDA” means, for any period, for the Credit Parties, determined on a consolidated basis, an amount equal to Consolidated Net Income for such period, plus (a) the following (without duplication) to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Expense for such period; (ii) the provision for federal, state, local and foreign income taxes for such period; (iii) depreciation and amortization expense; (iv) cash restructuring charges and associated professional fee expenses taken on or after December 1, 2007 and prior to January 31, 2008 in an amount not to exceed $12,000,000 (twelve million Dollars), (v) extraordinary cash expenses associated with tax and audit work incurred on or after December 1, 2007 and prior to the first anniversary of the Closing Date in an amount not to exceed $2,000,000 (two million Dollars), (vi) cash expenses resulting from a draw of a Letter of Credit issued for the benefit of Air Liquide and associated with the Air Liquide settlement in an amount not to exceed $5,700,000 (five million seven hundred thousand Dollars) (vii) any non-cash write downs or non-cash write-offs including fixed asset impairments or write-downs, intangible asset impairments, deferred tax asset write-offs and non-cash stock compensation expenses, (viii) all extraordinary, non-recurring, non-cash items decreasing Consolidated Net Income for such period and (ix) cash costs and expenses not to exceed $1,000,000 (one million Dollars), incurred with respect to defending and/or prosecuting the SNC Litigation during the period from the Closing Date to December 31, 2009; and minus (b) the following (without duplication) to the extent included in calculating such Consolidated Net Income: (i) all items constituting interest income, (ii) Federal, state, local and foreign income tax benefits for such period; (iii) write ups, re-evaluations and non-Cash gains resulting from the marking or re-evaluation of any asset and (iv) all extraordinary, non-recurring, non-Cash items increasing Consolidated Net Income for such period; provided that Consolidated EBITDA for each monthly period ending on or prior to November 30, 2007 shall be the amount specified for such period on Schedule C-1 hereto.

“Consolidated Fixed Charges” means, for any period, the sum (without duplication) of the amounts for such period, as determined on a consolidated basis for the Credit Parties, of (a) Consolidated Interest Expense paid or payable in Cash and (b) scheduled principal payments in respect of Consolidated Total Debt.

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“Consolidated Interest Expense” means, for any period, total interest expense (including that portion attributable to Capitalized Leases in accordance with GAAP and capitalized interest) of the Credit Parties, as determined on a consolidated basis, with respect to all outstanding Indebtedness of the Credit Parties, including all commissions, discounts and other fees and charges owed with respect to letters of credit.

“Consolidated Net Income” means, for any period, the net income (loss) of the Credit Parties for such period, determined on a consolidated basis.

“Consolidated Total Debt” means, as of any particular time and after eliminating inter-company items, all Debt for Borrowed Money of the Credit Parties, determined on a consolidated basis.

“Continuing Director” means (a) any member of the Board of Directors who was a director (or comparable manager) of the Company on the Closing Date, and (b) any individual who becomes a member of the Board of Directors after the Closing Date if such individual was appointed or nominated for election to the Board of Directors by a majority of the Continuing Directors, but excluding any such individual originally proposed for election in opposition to the Board of Directors in office at the Closing Date in an actual or threatened election contest relating to the election of the directors (or comparable managers) of the Company and whose initial assumption of office resulted from such contest or the settlement thereof.

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

“Control Agreement” means, with respect to a Securities Account, a Deposit Account or a commodities account, an agreement, in form and substance reasonably satisfactory to the Collateral Agent, which effectively gives control (under the UCC) to the Collateral Agent in such Securities Account and all investment property contained therein, in such Deposit Account and all funds contained therein, or such commodities account and all property contained therein, in each case, as amended, supplemented or otherwise modified.

“Copyrights” has the meaning ascribed to such term in the Security Agreement.

“Credit Parties” means, collectively, the Borrower and the Guarantors.

“Debt for Borrowed Money” of any Person means, at any date of determination, without duplication, the sum of (a) all items that, in accordance with GAAP, would be classified as debt on a consolidated balance sheet of such Person at such date and (b) all obligations of such Person under acceptance, letter of credit or similar facilities at such date; provided that, with respect to the Company and its Subsidiaries, Debt for Borrowed Money shall exclude, to the extent otherwise included in the items in clause (a) or (b) above, (i) accounts payable and accrued liabilities in the ordinary course of business of the Company and its Subsidiaries, and (ii) notes, bills and checks presented in the ordinary course of business by such Person to banks for collection or deposit.

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“Deemed Investment Amount” has the meaning set forth in Section 8.05(d).

“Default” means an event which, with the giving of notice or the lapse of time or both, would constitute an Event of Default.

“Default Interest” shall have the meaning ascribed to it in Section 3.01(b).

“Defaulting Lender” means a Revolving Defaulting Lender or a Term Defaulting Lender.

“Deltak Customer Equipment Disposition” means a disposition of Deltak assets to a customer party to, and as required pursuant to, those certain agreements by and between Deltak and certain of its customers for the completion of heat recovery steam generation units, as authorized by the Bankruptcy Court pursuant to orders entered on October 2, 2006 and October 26, 2006.

“Deposit Account” means a “deposit account” as that term is defined in the UCC.

“Disposition” or “Dispose” means the sale, transfer, license, lease, Casualty or Condemnation or other disposition (including any Sale and Leaseback Transaction or any sale of any Capital Stock of any Subsidiary) of any Property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes issued by any other Person or accounts receivable or any rights and claims associated therewith or any capital stock of, or other Capital Stock of, any other Person; provided that the foregoing shall not be deemed to imply that any such disposition is permitted under this Agreement. The term “Disposition” shall not include any Equity Issuance.

“Dollar”, “Dollars” and the symbol “$” each means lawful money of the United States of America.

“Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of America, any State thereof or the District of Columbia.

“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any other Person (other than a natural person) (i) approved by the Administrative Agent and, in the case of a Revolving Loan assignment, the Revolving Agent (each such consent not to be unreasonably withheld or delayed), and, (ii) unless an Event of Default has occurred and is continuing, notified in writing to and approved by the Company (each such approval not to be unreasonably withheld or delayed and to be deemed given in all cases unless, within two business days after receipt of any such notification identifying any Person as a potential assignee, the Company shall have delivered a written objection to the Administrative Agent identifying reasonable grounds for such objection).

“EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

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“Environmental Actions” means any complaint, summons, citation, notice, directive, order, claim, litigation, investigation, judicial or administrative proceeding, judgment, letter or other communication from any Governmental Authority or other Person alleging a violation of, or liability under, any Environmental Law or Release of Hazardous Materials on, in, at, to, from or under (a) any assets, properties or businesses of the Credit Parties or any of their Subsidiaries or any of their respective predecessors in interest and (b) any facilities which received Hazardous Materials generated by the Credit Parties or any of their Subsidiaries or any of their respective predecessors in interest.

“Environmental Laws” means any federal, state, local or foreign law or regulation relating to the protection of the environment or health and safety as it relates to any Hazardous Material compliance or exposure, including the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601, et seq.), the Hazardous Materials Transportation Act (49 U.S.C. § 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901, et seq.), the Federal Clean Water Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.) and the Occupational Safety and Health Act (29 U.S.C. § 651 et seq.) as it relates to any Hazardous Material compliance or exposure and any other law, including common law, relating to the environment or health and safety as it relates to any Hazardous Material compliance or exposure (including, without limitation, laws relating to the storage, generation, use, handling, manufacture, processing, labeling, transportation, treatment, reuse, recycling, release and disposal of Hazardous Materials) and any environmental requirement or any health or safety requirement as it relates to any Hazardous Material compliance or exposure of any Governmental Authority, as such laws or requirements may be amended or otherwise modified from time to time, and any other present or future federal, state, provincial, local or foreign statute, ordinance, rule, regulation, order, judgment, decree, permit, license or other binding determination (including the common law) of any Governmental Authority imposing liability or establishing standards of conduct for protection of the environment.

“Environmental Liabilities and Costs” means all liabilities, monetary obligations, Remedial Actions, losses, damages, punitive damages, consequential damages, treble damages, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts and consultants and costs of investigations and feasibility studies), fines, penalties, sanctions and interest incurred as a result of any claim or demand by any Governmental Authority or any third party, and which relate to any violation of any Environmental Law, environmental condition or any Release of Hazardous Materials from or onto (a) any property presently or formerly owned by the Credit Parties or any of their Subsidiaries or (b) any facility which received Hazardous Materials or wastes generated by the Credit Parties or any of their Subsidiaries but excluding the routine costs and expenses incurred in the ordinary course of maintaining compliance with Environmental Laws.

“Environmental Lien” means any Lien in favor of any Person or Governmental Authority for Environmental Liabilities and Costs or otherwise relating to any Environmental Law.

“Equipment” means, with respect to any Person, all of such Person’s now owned or hereafter acquired right, title, and interest with respect to equipment (including, without limitation, “equipment” as such term is defined in Article 9 of the UCC), machinery, machine tools, motors, furniture, furnishings, fixtures, vehicles (including motor vehicles), tools, parts, goods (other than consumer goods, farm products, or Inventory), wherever located, including all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing.

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“Equity Issuance” means any issuance by any Credit Party of any Capital Stock to any Person (other than another Credit Party) or receipt by any Credit Party of a capital contribution from any Person (other than another Credit Party), including the issuance of Capital Stock, pursuant to the exercise of options or warrants and the conversion of any Indebtedness to equity; provided that the foregoing shall not be deemed to imply that any such issuance is permitted under this Agreement.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder, in each case as in effect from time to time. References to sections of ERISA shall be construed also to refer to any successor sections.

“ERISA Affiliate” means, with respect to any Person, any trade or business (whether or not incorporated) which is a member of a group of which such Person is a member and which would be deemed to be a “controlled group” within the meaning of Sections 414(b), (c), (m) and (o) of the Code.

“ERISA Event” means (a) a Reportable Event with respect to any Benefit Plan, (b) the filing of a notice of intent to terminate a Benefit Plan in a distress termination (as described in Section 4041(c) of ERISA), (c) the institution by the Pension Benefit Guaranty Corporation of proceedings to terminate a Benefit Plan or Multiemployer Plan, (d) the appointment of a trustee to administer any Benefit Plan under Section 4042 of ERISA, or (e) any event requiring any Credit Party or any Subsidiary of any Credit Party or any ERISA Affiliate of any Credit Party or any Subsidiary of any Credit Party to provide security to a Benefit Plan under Section 401(a)(29) of the Code.

“Eurocurrency” and the symbol “€” each means the lawful currency of the Participating Member States introduced in accordance with EMU Legislation.

“Event of Default” has the meaning ascribed to such term in Section 10.01.

“Excess Cash Flow” means, for any Fiscal Year, without duplication, (a) Consolidated EBITDA during such Fiscal Year plus (b) Extraordinary Receipts received during such Fiscal Year plus (c) the amount of any increase in Net Working Capital during such Fiscal Year minus (d) Capital Expenditures of the Company paid in Cash during such Fiscal Year to the extent such Capital Expenditures are made in accordance with the Loan Documents minus (e) all regularly scheduled payments and voluntary prepayments of principal of the Term Loans during such Fiscal Year minus (f) the aggregate amount of cash Taxes and net cash interest paid or payable by the Credit Parties on a consolidated basis during such Fiscal Year minus (g) to the extent item (c) of this definition is not relevant for the applicable testing period, the amount of any decrease in Net Working Capital during such Fiscal Year.

“Excess Hedging Amount” means the amount of all Hedging Obligations outstanding in excess of $3,000,000 (three million Dollars).

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“Excluded Account” means the deposit account no. 003344879484 of Xxxxxxxx Industrial Services Group, LLC held with Bank of America, N.A.

“Excluded Taxes” means, with respect to the Participating Lenders or any other recipient of any payment to be made by or on account of any obligation of the Credit Parties hereunder: (a) Taxes imposed on or measured by its overall net income (however denominated), and franchise Taxes imposed on it (in lieu of net income Taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient, for tax purposes, is organized or in which its principal office or applicable lending office is located, or in which it or its lending office does business; (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction; and (c) any withholding taxes payable with respect to payments under the Loan Documents under any law (including any law, rule, regulation or treaty or any interpretation or application thereof by any Governmental Authority or any request, guideline or directive (whether or not having the force of law) by any Governmental Authority) in effect on the Closing Date; (d) any withholding tax that is attributable to such Non-U.S. Lender’s failure to comply with Section 2.05(e).

“Extraordinary Receipts” means any cash received by the Company and its Subsidiaries not in the ordinary course of business, not consisting of proceeds from the issuance of Capital Stock, debt or Disposition of Collateral and not otherwise included in the calculation of Net Income of the Company, including without limitation, (a) pension plan reversions, (b) judgments, proceeds of settlements or other consideration of any kind in connection with any claim or cause of action, (c) indemnity payments, (d) tax refunds but excluding tax refunds received in connection with or as the result of any settlement, audit, or amendment to any tax return and (e) insurance proceeds other than Net Casualty/Condemnation Proceeds.

“Federal Funds Rate” means, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing selected by the Administrative Agent in the exercise of its reasonable discretion.

“Federal Reserve Board” means the Board of the Federal Reserve System or any Governmental Authority succeeding to its functions.

“Fee Letter” means the Fee Letter, dated December 20, 2007, between the Company and the Administrative Agent.

“Fiscal Month” means each fiscal month of the Company consisting of a four (4) or five (5) week period.

“Fiscal Quarter” means the fiscal quarter of the Company ending on each March 31, June 30, September 30 and December 31 of any Fiscal Year.

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“Fiscal Year” means the fiscal year of the Company ending on the last day of the last Fiscal Month of the Company.

“Fixed Charge Coverage Ratio” means, as of any date of determination, from and after December 31, 2008, the ratio of (a) Consolidated EBITDA for the four consecutive Fiscal Quarters most recently ended minus Consolidated Capital Expenditures for such period minus provisions for Federal, state, local and foreign taxes of the Credit Parties for such period to (b) Consolidated Fixed Charges for such period; provided however, that for the period ended June 30, 2008 the Fixed Charge Coverage Ratio shall be calculated for the two consecutive Fiscal Quarters (rather than the four) most recently ended, and for the period ended September 30, 2008 the Fixed Charge Coverage Ratio shall be calculated for the three consecutive Fiscal Quarters (rather than the four) most recently ended.

“Foreign Subsidiary” means a Subsidiary other than a Domestic Subsidiary.

“Forfeiture Proceeding” means any action, proceeding or investigation affecting any Credit Party before any court, governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, or the receipt of notice by any such party that any of them is a suspect in or a target of any governmental inquiry or investigation, in each case, which may result in an indictment of any of them or the seizure or forfeiture of any of its properties.

“Fraudulent Transfer Laws” has the meaning ascribed to such term in Section 11.12.

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

“Funding Date” means, with respect to any Loan, the date of the funding of a Loan.

“GAAP” means generally accepted accounting principles in effect from time to time in the United States, provided that, for the purpose of the financial amounts and the definitions used herein, “GAAP” shall mean generally accepted accounting principles in effect on the date hereof and consistent with those used in the preparation of the financial statements, and provided further that, if there occurs after the date of this Agreement any change in GAAP that affects in any material respect the calculation of any financial covenant contained in ARTICLE IX, the Administrative Agent, the Revolving Agent and the Borrower shall negotiate in good faith an amendment to such financial covenant and any other provision of this Agreement that relates to the calculation of such financial covenant with the intent of having the respective positions of the Lenders and the Borrower after such change in GAAP conform as nearly as possible to their respective positions as of the date of this Agreement and, after the execution of any such amendment or consent by the Required Lenders in connection with any such change in GAAP, “GAAP” shall mean generally accepted accounting principles in effect on the effective date of such amendment or consent. Until any such amendments have been agreed upon, the covenants in ARTICLE IX shall be calculated as if no such change in GAAP has occurred.

“Global Intercompany Note” means the promissory note issued as contemplated by the Security Agreement, substantially in the form of Exhibit M to the Security Agreement.

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“Governing Documents” means, (a) with respect to any corporation, (i) the articles/certificate of incorporation (or the equivalent organizational documents) of such corporation, (ii) the by-laws (or the equivalent governing documents) of the corporation and (iii) any document setting forth the designation, amount and/or relative rights, limitations and preferences of any class or series of such corporation’s Capital Stock; (b) with respect to any general partnership, (i) the partnership agreement (or the equivalent organizational documents) of such partnership and (ii) any document setting forth the designation, amount and/or relative rights, limitations and preferences of any of the partnership interests; (c) with respect to any limited partnership, (i) the partnership agreement (or the equivalent organizational documents) of such partnership, (ii) a certificate of limited partnership (or the equivalent organizational documents) and (iii) any document setting forth the designation, amount and/or relative rights, limitations and preferences of any of the partnership interests; (d) with respect to any limited liability company, (i) the certificate of limited liability (or equivalent filings) of such limited liability company, (ii) the operating agreement (or the equivalent organizational documents) of such limited liability company, and (iii) any document setting forth the designation, amount and/or relative rights, limitations and preferences of any of such company’s membership interests; and (e) with respect to any unlimited liability company, (i) the certificate of incorporation (or the equivalent organizational documents) of such unlimited liability company, (ii) the memorandum and articles of association (or the equivalent governing documents) of such unlimited liability company and (iii) any document setting forth the designation, amount and/or relative rights, limitations and preferences of any class or series of such unlimited liability company’s Capital Stock.

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

“Guaranteed Obligations” has the meaning ascribed to such term in Section 11.01.

“Guarantors” means the Domestic Subsidiaries of the Borrower.

“Guaranty” means the guaranty of each of the Guarantors pursuant to ARTICLE XI.

“Hazardous Materials” means (a) any element, compound or chemical that is regulated under any Environmental Law including any substance that is defined, listed or otherwise classified as a contaminant, pollutant, toxic pollutant, toxic or hazardous substance, extremely hazardous substance or chemical, hazardous waste, special waste, or solid waste under Environmental Laws; (b) petroleum and its refined products; (c) polychlorinated biphenyls; (d) any waste exhibiting a hazardous characteristic as defined by applicable Environmental Laws, including, but not limited to, corrosivity, ignitability, toxicity or reactivity as well as any radioactive or explosive materials; and (e) friable asbestos-containing materials.

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“Hedging Agreement” means any and all interest rate or short term currency transactions, agreements or documents now existing or hereafter entered into by a Credit Party or any Subsidiary of a Credit Party with a Hedging Agreement Provider so long as a copy of such transaction agreement or document is delivered to the Administrative Agent within three (3) business days of the date entered into and, in the case of each such transaction, agreement or document, is entered into solely for the purpose of hedging such Credit Party’s or such Subsidiary’s exposure to fluctuations in interest rates or currencies and not for speculative purposes.

“Hedging Agreement Provider” means with respect to a Hedging Agreement, any of (a) the Administrative Agent, (b) a Lender at the time the Hedging Agreement is entered into or (c) an Affiliate of any of the foregoing.

“Hedging Agreement Provider Joinder Agreement” means a joinder agreement substantially in the form of Exhibit K-1. Each Hedging Agreement Provider may from time to time enter into a Joinder Agreement.

“Hedging Obligations” means obligations and liabilities owed to a any Hedging Agreement Provider, by any Credit Party or any Subsidiary under a Hedging Agreement.

“Hedging Priority Amount” means the amount of all Hedging Obligations outstanding up to an aggregate amount not to exceed $3,000,000 (three million Dollars).

“Highest Lawful Rate” means the highest rate of interest permissible under any law which a court of competent jurisdiction shall deem applicable.

“Immaterial Foreign Subsidiary” means a Foreign Subsidiary that, as of any date of determination, (a) has less than $100,000 in assets, (b) has less than $25,000 of liabilities owed to Persons other than a Credit Party or a Subsidiary of a Credit Party, and (c) has generated less than $100,000 of revenue for the 12 months most recently ended as of such date (or, in the case of a Subsidiary without at least 12 months of prior operating history, is reasonably projected by the Credit Parties to generate less than $100,000 of revenue during its first full year of operation). All Immaterial Foreign Subsidiaries in existence on the Closing Date are identified on Schedule I.

“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b) all direct or contingent obligations of such Person arising under letters of credit, bankers’ acceptances, bank guarantees, surety bonds and similar instruments;

(d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business);

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(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

(f) Capitalized Leases, Off-Balance Sheet Obligations, and Sale and Leaseback Transactions;

(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Capital Stock of such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and

(h) all Guarantees of such Person in respect of any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer in an amount proportionate to such Person’s interest therein, unless such Indebtedness is expressly made non-recourse to such Person or except to the extent such Indebtedness is owed by such partnership or joint venture to such Person; provided that the pledge of any Capital Stock of such joint venture shall not constitute recourse to such Person for the purposes of this definition. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any Capitalized Lease or Off-Balance Sheet Obligation as of any date shall be deemed to be the amount of attributable Indebtedness in respect thereof as of such date.

“Indemnified Matters” has the meaning ascribed to such term in Section 13.17.

“Indemnified Taxes” means all Taxes imposed upon or with respect to payments from the Credit Parties to the Participating Lenders or any recipient of any payment to be made by or on account of any obligation of the Credit Parties hereunder pursuant to this Agreement, other than Excluded Taxes.

“Indemnitees” has the meaning ascribed to such term in Section 13.17.

“Intellectual Property” has the meaning ascribed to such term in the Security Agreement.

“Interest Payment Date” means the last Business Day of each Fiscal Quarter, commencing on the first such date to occur after the Closing Date, and the Maturity Date; provided that, with respect to the amount of any Loan prepaid, the Interest Payment Date shall be the date of such prepayment.

“Interest Rate” means (a) with respect to the Term Loans, interest at a rate equal to either, at the Borrower’s option, (i) LIBOR Rate plus the Applicable Margin for Term Loans or (ii) the Alternate Base Rate, plus the Applicable Margin for Term Loans and (b) with respect to the Revolving Loans, interest at a rate equal to, at the Borrower’s option, (i) the Alternate Base Rate plus the Applicable Margin for Revolving Loans or (ii) LIBOR Rate plus the Applicable Margin for Revolving Loans.

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“Inventory” means all Credit Parties’ now owned or hereafter acquired right, title, and interest with respect to (a) all “inventory” as defined in Article 9 of the UCC and (b) all goods held for sale or lease or to be furnished under contracts of service or so leased or furnished, all raw materials, work in process, finished goods, and materials used or consumed in the manufacture, packing, shipping, advertising, selling, leasing, furnishing or production of such inventory or otherwise used or consumed in any Credit Party’s business; all goods which are returned to or repossessed by any Credit Party; and all computer programs embedded in any of the foregoing and all accessions thereto and products thereof (in each case, regardless of whether characterized as inventory under the UCC).

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

“IRS” means the Internal Revenue Service or any successor federal tax Governmental Authority.

“L/C Issuer” has the meaning ascribed to it in Section 1.06(a).

“Lead Arranger” has the meaning ascribed to such term in the introductory paragraph hereto.

“Lease” has the meaning ascribed to such term in Section 5.01(o).

“Leasehold Property” means any leasehold interest of any Credit Party as lessee under any lease of real property.

“Lender-Related Persons” means, with respect to any Lender, such Lender, together with such Lender’s Affiliates, and the officers, directors, employees, counsel, agents, and attorneys-in-fact of such Lender and such Lender’s Affiliates.

“Lenders” means, collectively, the lenders identified on the signature pages hereof, together with their respective successors and permitted assigns, each a “Lender”.

“Letter of Credit” means a letter of credit issued by the L/C Issuer (or its designee) or a Person approved by the Revolving Agent as it may hereafter be amended or replaced from time to time pursuant to the terms of this Agreement or otherwise in form and substance reasonably satisfactory to the L/C Issuer.

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“Letter of Credit Application” shall have the meaning associated with such term in Section 1.06(d).

“Letter of Credit Exposure” means at any time, the sum of (a) the aggregate undrawn amount at such time of all outstanding Letters of Credit of the L/C Issuer plus (b) the aggregate unpaid amount at such time of all unreimbursed drawings under Letters of Credit.

“Letter of Credit Issuance Fee” shall have the meaning ascribed to it in Section 3.06(d).

“Letter of Credit Obligations” means all outstanding obligations incurred by the Revolving Lenders at the request of the Borrower, whether direct or indirect, contingent or otherwise, due or not due, in connection with the issuance of Letters of Credit by the Revolving Lenders or another L/C Issuer or the purchase of a participation with respect to any Letter of Credit. The amount of such Letter of Credit Obligations shall equal the maximum amount that may be payable under Letters of Credit at such time or at any time thereafter by the Revolving Lenders thereupon or pursuant thereto.

“LIBOR Period” means, with respect to any LIBOR Rate Loan, the period commencing on the date of the making of such LIBOR Rate Loan (or the continuation of a LIBOR Rate Loan or the conversion of an Alternate Base Rate Loan to a LIBOR Rate Loan) and ending one, two, three or six months (and to the extent available to all of the Revolving Lenders or Term Lenders, as applicable, nine or twelve months) thereafter; and provided that the foregoing provisions are subject to the following:

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

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

(c) any LIBOR Period in respect of any Loan that would otherwise extend beyond the Maturity Date shall end on the Maturity Date.

“LIBOR Rate” means for each LIBOR Period, a rate of interest determined by the Revolving Agent equal to:

(a) the offered rate for deposits in United States Dollars for the applicable LIBOR Period that appears on Xxxxxx’x Page LIBOR 01 as of 11:00 a.m. (London time), on the second full Business Day next preceding the first day of such LIBOR Period (unless such date is not a Business Day, in which event the next succeeding Business Day will be used); divided by

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(b) a number equal to 1.0 minus the aggregate (but without duplication) of the rates (expressed as a decimal fraction) of reserve requirements in effect on the day that is two (2) Business Days prior to the beginning of such LIBOR Period (including basic, supplemental, marginal and emergency reserves under any regulations of the Federal Reserve Board or other Governmental Authority having jurisdiction with respect thereto, as now and from time to time in effect) for Eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Federal Reserve Board) that are required to be maintained by a member bank of the Federal Reserve System.

If such interest rates shall cease to be available from Xxxxxx’x (or its successor satisfactory to Administrative Agent), the LIBOR Rate shall be determined from such financial reporting service or other information as shall be mutually acceptable to the Revolving Agent and the Company.

“LIBOR Rate Loans” means Loans which bear interest at a rate determined by reference to the LIBOR Rate.

“Lien” means any lien, security interest, imperfection of title or other encumbrance of any kind, or any other type of preferential arrangement which has the effect of a lien or security interest, including, without limitation, the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property.

“Liquidity” means the amount available to be borrowed as Revolving Loans under Section 1.01(a) plus cash or Cash Equivalents of the Credit Parties subject to Control Agreements.

“Loan Documents” means this Agreement, the Notes, the Security Documents, the Fee Letter and all other agreements, instruments, and other documents executed and delivered by any Credit Party pursuant hereto or thereto or otherwise evidencing or securing any Loan, in each case, excluding any Hedging Agreements.

“Loans” means, collectively, the Revolving Loans and the Term Loans.

“Material Adverse Effect” means a material adverse effect on (a) the business, assets, liabilities, operations, condition (financial or otherwise) operating results, performance or projections of the Company and its Subsidiaries taken as a whole, (b) the ability of the Credit Parties to perform their obligations hereunder or under any of the other Loan Documents or (c) the rights and remedies of any Agent or any Lender hereunder or under any other Loan Document. It is understood that the filing of a notice of appeal by SNC-Lavalin from the Order Sustaining Estate Parties’ Objections to Proofs of Claim Nos. 1099 and 1100 Filed by SNC-Lavalin Power Ontario Inc. and Temporarily Allowing for Plan Voting Purposes Claim No. 1099 shall not, in and of itself, constitute a Material Adverse Effect.

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“Material Contract” shall mean any agreement under which the Company and its Subsidiaries on a consolidated basis receives or pays or is projected to receive or pay $7,500,000 (seven million five hundred thousand Dollars) or more during any 12-month period.

“Maturity Date” means the earlier of (i) the Scheduled Maturity Date or (ii) the date upon which the Loans are due and payable hereunder, whether by acceleration or otherwise.

“Monthly Officer’s Certificate” has the meaning ascribed to such term in Section 6.01(b).

“Moody’s” means Xxxxx’x Investors Service and any successor thereto.

“Mortgaged Property” means each parcel of real property and the improvements thereto as set forth as of the Closing Date on Schedule 14 and any other such property which becomes subject to a Mortgage granted in connection with this Agreement.

“Mortgages” means the mortgages and deeds of trust executed and delivered by certain of the Credit Parties in favor of the Collateral Agent, in form and substance reasonably satisfactory to the Collateral Agent, as the same may be amended, modified and otherwise supplemented from time to time.

“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which any Credit Party or any Subsidiary of any Credit Party or any of their ERISA Affiliates has contributed, or has been obligated to contribute, at any time during the preceding six years, or has liability.

“Net Cash Proceeds” means 100% of the Cash received by a Credit Party or any Subsidiary of a Credit Party from time to time in connection with an Asset Sale or Equity Issuance (whether as initial consideration, through the payment of deferred consideration, the release of any reserve taken in connection with such sale or issuance or the release or adjustment of any provision for Taxes in connection with such sale or issuance), after deducting therefrom only (a) the principal amount of any Indebtedness of such Credit Party secured by any Permitted Lien on any asset that is the subject of an Asset Sale (other than Indebtedness assumed by the purchaser of such asset) which is required to be, and is, repaid in connection with such Asset Sale (other than Indebtedness under this Agreement), together with any interest thereon or fees in connection therewith, (b) reasonable fees and expenses related to any such sale or issuance reasonably incurred by such Credit Party in connection therewith and (c) a provision for any Taxes to be paid or reasonably estimated to be payable, in connection with any such sale or issuance (after taking into account any tax credits or deductions and any tax sharing arrangements); provided, however, that with respect to any Asset Sale, in the event that a Credit Party or any Subsidiary is required to take a reserve in accordance with GAAP against any contingent liabilities associated with any such sale, such Credit Party or Subsidiary may deduct from the Net Cash Proceeds received from such Disposition an amount equal to such reserve; provided, further, upon the release of such reserves or the determination that such reserves are no longer necessary, such amounts shall be considered Net Cash Proceeds and applied to the prepayment of Loans in accordance with Section 2.02(a).

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“Net Casualty/Condemnation Proceeds” means, with respect to any Casualty or Condemnation, the amount of any insurance proceeds or condemnation awards received by a Credit Party or any Subsidiary from time to time in connection with such Casualty or Condemnation (net of all reasonable fees and expenses related thereto reasonably incurred by such Credit Party in connection therewith), but excluding any proceeds or awards of errors and omissions insurance; provided, however, in the event that a Credit Party or any Subsidiary is required to take a reserve in accordance with GAAP against any contingent liabilities associated with such Casualty or Condemnation, such Credit Party or Subsidiary may deduct from the Net Cash Proceeds received from such Casualty or Condemnation an amount equal to such reserve; provided, further, upon the release of such reserves or the determination that such reserves are no longer necessary, such amounts shall be considered Net Cash Proceeds and applied to the prepayment of Loans in accordance with Section 2.02(a) or Section 2.20(c), as applicable.

“Net Income” means, with respect to any Person for any period, the net income (loss) of such Person and its consolidated Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

“Net Working Capital” means the (i) increase (or decrease) of each of accounts payable, xxxxxxxx in excess of costs, and other current liabilities of the Company and its Subsidiaries, on a consolidated basis, during any Fiscal Year, plus or minus (ii) the decrease (or increase) of each of total accounts receivable, inventory, cost in excess of xxxxxxxx, and other current assets of the Company and its Subsidiaries, on a consolidated basis, during any Fiscal Year; provided, however, that all of the accrued but unpaid professional fees and other costs of administration of, or incurred during, the Chapter 11 Cases by the Company or any of its Subsidiaries and any amounts identified in items (iv), (v), (vi), and (ix) of clause (a) of Consolidated EBITDA shall be deducted from both clause (i) and clause (ii) of this definition in determining Net Working Capital as of any date.

“Non-Consenting Lender” has the meaning ascribed to such term in Section 13.03(a).

“Non-U.S. Lender” has the meaning ascribed to such term in Section 2.05(e)(i).

“Note” has the meaning ascribed to such term in Section 1.05(a).

“Notice of Borrowing” means a notice substantially in the form of Exhibit A attached hereto and made a part hereof.

“Notice of Conversion/Continuation” means a notice substantially in the form of Exhibit E attached hereto and made a part hereof.

“Obligations” means all Loans, advances, debts, liabilities, obligations, Hedging Obligations, covenants and duties, owing by any Credit Party to the Administrative Agent, the Revolving Agent, the L/C Issuer, the Collateral Agent, any Lender, any Affiliate of any Lender, any Hedging Agreement Provider or any Person entitled to indemnification pursuant to this Agreement, of any kind or nature, present or future, whether or not evidenced by any note, guaranty or other instrument, whether or not for the payment of money, whether arising by reason of an extension of credit, loan, guaranty, indemnification, interest rate contract, foreign exchange contract or in any other manner, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, but in all such circumstances only to the extent now existing or hereafter arising or however acquired, arising under or in connection with this Agreement, the Notes or any other Loan Document. The term includes all interest (including any interest that, but for the provisions of the Bankruptcy Code, would have accrued), charges, expenses, fees, attorneys’ fees and disbursements and any other sum chargeable to the Credit Parties under this Agreement, the Notes or any other Loan Document or any Hedging Agreement.

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“Off-Balance Sheet Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the Indebtedness of such Person (without regard to accounting treatment); it being the intent of the parties hereto that no monetary obligations under true operating leases be included in Off-Balance Sheet Obligations.

“Offer to Prepay” has the meaning ascribed to such term in Section 2.02(d).

“Operating Lease” means, as applied to any Person, any lease (including leases that may be terminated by the lessee at any time) of any property (whether real, personal or mixed) that is not a Capitalized Lease other than any such lease under which that Person is the lessor.

“Other Lender” has the meaning ascribed to such term in Section 13.03(b).

“Other Taxes” has the meaning ascribed to such term in Section 2.05(b).

“Participant” has the meaning ascribed to such term in Section 13.09(e).

“Participating Lender” means, individually and collectively, each of the Lenders and each L/C Issuer.

“Participating Lender Expenses” means all:

(a) costs or expenses (including taxes and insurance premiums) paid, advanced or incurred by or on behalf of any Agent in connection with the Loans or Letters of Credit, the Collateral, or any other transaction with the Credit Parties or any Subsidiary of a Credit Party;

(b) reasonable fees or charges paid or incurred by or on behalf of any Agent in connection with the Participating Lenders’ transactions with the Credit Parties or their Subsidiaries, including fees or charges for photocopying, notarization, couriers and messengers, telecommunication, public record searches (including tax lien, litigation, and UCC searches, searches with the patent and trademark office, or the copyright office), filing, recording, publication, real estate surveys, real estate title policies and endorsements, environmental audits and appraisals;

(c) reasonable costs and expenses incurred by any Agent or any Participating Lender in the disbursement of funds to, for the benefit of, or on behalf of, any Credit Party, any Subsidiary of a Credit Party or any Participating Lender (by wire transfer or otherwise);

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(d) charges paid or incurred by any Agent resulting from the dishonor or return of checks or other items of payment;

(e) reasonable costs and expenses paid or incurred by any Agent or any Participating Lender to correct any default or enforce any provision of the Loan Documents, or in gaining possession of, maintaining, handling, preserving, storing, shipping, selling, preparing for sale, or advertising to sell the Collateral, or any portion thereof, irrespective of whether a sale is consummated;

(f) fees and expenses of or incurred by any Agent related to any action permitted to be taken under this Agreement or any other Loan Document, including in connection with inspections, audits or appraisals of the Collateral, the resignation or appointment of any Agent, or the taking of any action upon the instruction of the Required Lenders, Required Revolving Lenders, Required Term Lenders or all affected Lenders;

(g) reasonable costs and expenses of or incurred by any Agent or any Participating Lender in connection with third party claims or any other suit or proceeding relating to the Loan Documents, the validity, priority or enforceability of the Obligations or the interest of the Secured Parties in all or any portion of the Collateral or otherwise in connection with the transactions contemplated by the Loan Documents or the relationship of any one or more of the Participating Lenders with any Credit Party or any Subsidiary of a Credit Party;

(h) the reasonable costs and expenses (including attorneys’ fees) incurred by any Agent in advising, structuring, drafting, reviewing, administering, syndicating, or amending the Loan Documents;

(i) each Agent’s and each Participating Lender’s reasonable costs and expenses (including attorneys’, accountants’, consultants’, and other advisors’ fees and expenses) incurred after the occurrence of any Event of Default, in any workout or restructuring, in any bankruptcy or other insolvency proceeding, or otherwise in terminating, enforcing, or defending the Loan Documents, irrespective of whether suit is brought, or in taking any Remedial Action concerning the Collateral;

(j) all liabilities and costs arising from or in connection with the past, present or future operations of a Credit Party involving any damage to real or personal Property or natural resources or harm or injury alleged to have resulted from any Release of Hazardous Materials on, upon or into such Property;

(k) any Environmental Liabilities and Costs incurred in connection with any facility of any Credit Party including any Remedial Action for any Hazardous Materials present on or arising out of the operations of any facility of any Credit Party; and

(l) any liabilities and costs incurred in connection with any Environmental Lien.

“Participating Member State” means each state so described in any EMU Legislation.

“Patent” shall have the meaning ascribed to such term in the Security Agreement.

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“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Title III of Pub. L. No. 107-56 (signed into law October 26, 2001).

“Patriot Act-Related Requirements” means the Patriot Act, the Trading with the Enemy Act, the International Emergency Economic Powers Act, the International Security and Development Cooperation Act, the Export Administration Act, the Arms Export Control Act and similar statutes administered by the Office of Foreign Assets Control or the U.S. Bureau of Export Administration and the regulations promulgated under such statutes.

“Perfection Certificate” means the perfection certificate in the form set forth as Exhibit J.

“Permits” has the meaning ascribed to such term in Section 5.01(m).

“Permitted Indebtedness” shall have the meaning ascribed to such term in Section 8.03.

“Permitted Indebtedness Refinancing” means, with respect to any Indebtedness, any subsequent extension, renewal or refinancing thereof; provided that (i) the aggregate principal amount of the Indebtedness to be extended, renewed or refinanced does not increase from that amount outstanding at the time of any such extension, renewal or refinancing and (ii) the terms of the Indebtedness following such extension, renewal or refinancing are no less favorable to the obligors than prior to such extension, renewal or refinancing and are not materially adverse to the Lenders taken as a whole.

“Permitted Liens” shall have the meaning ascribed to such term in Section 8.01.

“Permitted Protest” means the right of a Person to protest any Lien (other than any such Lien that secures all or any portion of the Obligations) or Taxes, provided that (a) a reserve with respect to such obligation is established, if required, by such Person in such amount as is required under GAAP and (b) any such protest is instituted promptly and prosecuted diligently and in good faith by such Person.

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

“Plan” means any “employee benefit plan”, as defined in Section 3(3) of ERISA.

“Plan of Reorganization” has the meaning ascribed to such term in the Recitals.

“Pledged Debt” has the meaning ascribed to such term in the Security Agreement.

“Post-Petition Loan Agreement” has the meaning ascribed to such term in the Recitals.

“Prepayment Fee” has the meaning ascribed to such term in Section 2.03.

“Property” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

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“Proposed Change” shall have the meaning ascribed to such term in Section 13.03(a).

“Pro Rata Share” means, at any time, with respect to (a) any Revolving Lender in the case of any determination to be made hereunder dealing with the rights or obligations of such Revolving Lender as between itself and the other Revolving Lenders, the percentage obtained by dividing (i) the Revolving Commitment of such Revolving Lender at such time by the Total Revolving Commitments at such time or, (ii) if the Revolving Commitments have been terminated, the amount of such Revolving Lender’s Revolving Loans and Letter of Credit Exposure at such time by the Aggregate Revolving Exposure at such time (b) any Term Lender in the case of any determination to be made hereunder dealing with the rights or obligations of such Term Lender as between itself and the other Term Lenders, the percentage obtained by dividing the amount of such Term Lender’s Term Loan at such time by the aggregate Term Loans of all Term Lenders at such time or (c) any Lender in the case of any determination to be made hereunder dealing with the rights or obligations of such Lender as between itself and the other Lenders, the percentage obtained by dividing, (i) if such Lender is a Revolving Lender, (A) the Revolving Commitment of such Lender at such time by the Total Revolving Commitments and the aggregate Term Loans of all Term Lenders at such time or, (B) if the Revolving Commitments have been terminated, the amount of such Revolving Lender’s Revolving Loans and Letter of Credit Exposure at such time by the Total Aggregate Exposure at such time or (ii) if such Lender is a Term Lender, (A) the amount of such Term Lender’s Term Loan at such time by the Total Revolving Commitments and the aggregate Term Loans of all Term Lenders at such time or, (B) if the Revolving Commitments have been terminated, the amount of such Term Lender’s Term Loan at such time by the Total Aggregate Exposure at such time. The initial Pro Rata Shares are set out on Schedule B.

“Quarterly Compliance Certificate” has the meaning ascribed to such term in Section 6.01(b).

“Ratings Agencies” means Xxxxx’x and S&P, or if either of such Persons cease to perform credit ratings or other applicable services, such nationally recognized statistical rating organization the Administrative Agent may select.

“Real Estate Asset” means any real property, or any direct or indirect interest in any real property, in which any Credit Party has a fee, leasehold or other interest, including without limitation the Mortgaged Properties.

“Registered Intellectual Property” means all Intellectual Property that has been registered with, filed in or issued by, as the case may be, the United States Patent and Trademark Office or such other similar filing offices, domestic or foreign, as applicable.

“Regulation T”, “Regulation U”, and “Regulation X” mean, respectively, Regulations T, U, and X of the Federal Reserve Board or any successor, as the same may be amended or supplemented from time to time.

“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, seeping, migrating, dumping or disposing of any Hazardous Material (including the abandonment or discarding of barrels, containers and other closed receptacles containing any Hazardous Material) into the indoor or outdoor environment, including ambient air, soil, surface or ground water.

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“Remedial Action” means all actions taken to (a) clean up, remove, remediate, contain, treat, monitor, assess, evaluate or in any other way address Hazardous Materials in the indoor or outdoor workplace environment; (b) prevent or minimize a Release or threatened Release of Hazardous Materials so they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment; (c) perform pre-remedial studies and investigations and post-remedial operation and maintenance activities; or (d) any other actions authorized by 42 U.S.C. § 9601.

“Reportable Event” means any of the events described in Section 4043(c) of ERISA or the regulations thereunder other than a Reportable Event as to which the provision of thirty (30) days’ notice to the Pension Benefit Guaranty Corporation is waived under applicable regulations.

“Reports” shall have the meaning assigned to such term in Section 6.01(e).

“Required Lenders” means Lenders comprising the Required Revolving Lenders and the Required Term Lenders.

“Required Revolving Lenders” means, at any time, collectively, (i) the Revolving Lenders having more than 50% of the Total Revolving Commitments or (ii) if the Revolving Commitments have been terminated, more than 50% of the aggregate outstanding amount of the Aggregate Revolving Exposure.

“Required Term Lenders” means, at any time, Term Lenders having more than 50% of the aggregate outstanding amount of the Term Loans.

“Requirements of Law” means, as to any Person, the charter and by-laws or other organizational or Governing Documents of such Person, and any law, ordinance, rule, regulation, requirement, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject, including, without limitation, the Patriot Act Related Requirements, the Securities Act, the Securities Exchange Act, Regulations T, U and X, ERISA, the Internal Revenue Code, the Fair Labor Standards Act and any certificate of occupancy, zoning ordinance, building, environmental or land use requirement or Permit or environmental, labor, employment, occupational safety or health law, rule or regulation.

“Restricted Material” has the meaning ascribed to such term in Section 13.20.

“Restricted Payments” means, with respect to any Person, (a) any dividend or other distribution, direct or indirect, on account of any shares of any class of Capital Stock of, such Person, now or hereafter outstanding, except a dividend or distribution payable solely in shares of that class of stock or in any junior class of stock to the holders of that class, (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of capital stock of, partnership interest of or other equity interest of, such Person now or hereafter outstanding, (c) any payment or prepayment of principal of, premium, if any, or interest, fees or other charges on or with respect to, and any redemption, purchase, retirement, defeasance, sinking fund or similar payment and any claim for rescission with respect to any Indebtedness which is subordinated to the Obligations and (d) any payment made to redeem, purchase, repurchase or retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Capital Stock of such Person now or hereafter outstanding.

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“Restricted Period” has the meaning ascribed to such term in Section 13.20.

“Revolving Agent” has the meaning ascribed to such term in the introductory paragraph hereto.

“Revolving Commitment” means, with respect to any Revolving Lender, the obligation of such Revolving Lender at such time to make Revolving Loans and to incur Letter of Credit Obligations or purchase risk participations in Letters of Credit pursuant to the terms and conditions of this Agreement and as specified in Schedule C.

“Revolving Defaulting Lender” has the meaning ascribed to such term in Section 1.01(d).

“Revolving Lender” means a Lender that has a Revolving Commitment and/or that has an outstanding Revolving Loan.

“Revolving Loan” has the meaning ascribed to such term in Section 1.01(a).

“Revolving Note” has the meaning ascribed to such term in Section 1.05(a).

“Revolving Register” has the meaning ascribed to such term in Section 13.09(d).

“S&P” means Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. and any successor thereto.

“Sale and Leaseback Transaction” means any arrangement pursuant to which any Credit Party, directly or indirectly, becomes liable as lessee, guarantor or other surety with respect to any Lease, whether an Operating Lease or a Capitalized Lease, of any Property that such Credit Party (a) has sold or transferred (or is to sell or transfer) to, or arranged the purchase by, a Person other than a Credit Party or (b) intends to use for substantially the same purpose as any other Property that has been sold or is transferred (or is to be sold or transferred) by such Credit Party to a Person other than a Credit Party in connection with such Lease.

“Scheduled Maturity Date” means January 22, 2014.

“Secured Parties” means the Agents, the Participating Lenders and the Hedging Agreement Providers.

“Securities” means any Capital Stock, shares, voting trust certificates, bonds, debentures, notes, loans or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire any of the foregoing, but shall not include the Obligations.

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“Securities Account” shall have the meaning provided in Section 8-501(a) of the UCC.

“Securities Act” means the Securities Act of 1933, as amended, or any successor Federal statute, and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the time.

“Securities Exchange Act” means the Securities Exchange Act of 1934, as amended or any successor Federal statute, and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the time.

“Security Agreement” means the Security and Pledge Agreement, dated as of the date hereof, among the Borrower, the other Assignors identified therein and the Collateral Agent in the form of Exhibit L, as such agreement may be amended, supplemented or otherwise modified from time to time in accordance therewith and herewith.

“Security Documents” means the Security Agreement, the Mortgages, the Control Agreements and any other documents granting a Lien upon the Collateral as security for all or any part of the Obligations.

“Senior Officer” means, with respect to any Credit Party, such Credit Party’s president, chief executive officer, chief administrative officer, chief financial officer, managing director or chief accounting officer.

“SNC Litigation” means the litigation with respect to, or arising from, the filing of a notice of appeal by SNC-Lavalin from the Order Sustaining Estate Parties’ Objections to Proofs of Claim Nos. 1099 and 1100 Filed by SNC-Lavalin Power Ontario Inc. and Temporarily Allowing for Plan Voting Purposes Claim No. 1099.

“Software” shall have the meaning ascribed to such term in the Security Agreement.

“Solvent” or “Solvency” with respect to any Person means (a) the fair value of the property of such Person exceeds its total liabilities (including, without limitation, contingent liabilities), (b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay its probable liability on its existing debts as they become absolute and matured, (c) such Person does not intend to incur debts or liabilities beyond its ability to pay, as such debts and liabilities mature, and (d) such Person is not engaged, and is not about to engage, in business or a transaction for which its property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

“Subsidiary” means, with respect to any Person at any date, any corporation, limited or general partnership, limited liability company, trust, association or other entity (a) the accounts of which would be consolidated with those of such Person in such Person’s consolidated financial statements if such financial statements were prepared in accordance with GAAP or (b) of which more than 50% of (i) the outstanding Capital Stock having (in the absence of contingencies) ordinary voting power to elect a majority of the board of directors of such corporation, (ii) the interest in the capital or profits of such partnership or limited liability company or (iii) the beneficial interest in such trust or estate is, at the time of determination, owned or controlled directly or indirectly through one or more intermediaries, by such Person.

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

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

“Sweep Date” means with respect to any Fiscal Year, the 120^th day following the end of such Fiscal Year.

“Syndication Agent” has the meaning ascribed to such term in the introductory paragraph hereto.

“Taxes” means any and all present or future taxes, levies, imposts, deductions, charges or withholdings imposed by any Governmental Authority.

“Term Defaulting Lender” has the meaning ascribed to such term in Section 1.02(d).

“Term Lender” means a Lender that has a Term Loan Commitment outstanding and/or an outstanding Term Loan.

“Term Loan” has the meaning ascribed to such term in Section 1.02(a).

“Term Loan Commitment” means, with respect to any Lender, the obligation of such Lender at such time to make a Term Loan pursuant to the terms and conditions of this Agreement.

“Term Note” has the meaning ascribed to it in Section 1.05(a).

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“Term Register” has the meaning ascribed to such term in Section 13.09(d).

“Title Company” shall have the meaning ascribed to such term in Section 4.01(y)(iii).

“Title Policy” shall have the meaning ascribed to such term in Section 4.01(y)(iii).

“Total Aggregate Exposure” means the sum of (a) the Aggregate Revolving Exposure and (b) the Term Loans.

“Total Leverage Ratio” means, on any date, the ratio of (a) an amount equal to (i) Consolidated Total Debt on such date minus (ii) the aggregate amount of Letter of Credit Obligations outstanding on such date to (b) Consolidated EBITDA for the four (4) Fiscal Quarters most recently ended on such date.

“Total Revolving Commitment” means the aggregate principal amount of the Revolving Commitments of all the Revolving Lenders (it being understood and agreed that the maximum aggregate principal amount of the Revolving Commitments shall not exceed sixty million Dollars ($60,000,000), as reduced from time to time pursuant to the terms hereof).

“Trademarks” shall have the meaning ascribed to such term in the Security Agreement.

“UCC” means the Uniform Commercial Code enacted in the State of New York, as in effect from time to time; provided, however, that if by reason of mandatory provisions of law, any or all of the attachment, perfection, effect of perfection, non-perfection, priority or remedies with respect to the Collateral Agent’s Liens is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “UCC” means the Uniform Commercial Code as enacted and in effect in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection, effect of perfection, non-perfection, priority or remedies.

“Unused Commitment Fee” has the meaning ascribed to such term in Section 3.06(b).

“Wholly-Owned” means, when used to describe any Subsidiary of a Credit Party, that all of the Capital Stock (other than directors’ qualifying shares) of such Subsidiary is owned by one or more Credit Parties or Wholly-Owned Subsidiaries of the Credit Parties.

“Xxxxxxxx Group” means, collectively, Xxxxxxxx Industrial Services Group, L.L.C., Xxxxxxxx Industrial Services, LLC, Xxxxxxxx Specialty Services, LLC, Xxxxxxxx Plant Services, LLC and WSServices L.P.

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Section 14.02. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time and (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

Section 14.03. Accounting and Other Terms. Unless otherwise expressly provided herein, each accounting term used herein shall have the meaning given to it under GAAP. All terms used in this Agreement which are defined in Article 8 or Article 9 of the UCC and which are not otherwise defined herein shall have the same meanings herein as set forth therein.

Section 14.04. Time References. Unless otherwise indicated herein, all references to time of day refer to Eastern standard time or Eastern daylight saving time, as in effect in New York, New York on such day. For purposes of the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”; provided, however, that with respect to a computation of fees or interest payable to the Agents or the Lenders, such period shall in any event consist of at least one full day.

(signature pages follow)

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.


GLOBAL POWER EQUIPMENT GROUP INC., a Delaware corporation, as Borrower

By:	/s/ Xxxx X. Xxxxxxxx
	Name:	Xxxx X. Xxxxxxxx
	Title:	President and Chief Executive Officer

DELTAK CONSTRUCTION SERVICES, INC., a Wisconsin corporation, as a Guarantor

By:	/s/ Xxxx X. Xxxxxxxx
	Name:	Xxxx X. Xxxxxxxx
	Title:	Director

DELTAK, L.L.C., A Delaware limited liability company, as a Guarantor

By:	/s/ Xxxx X. Xxxxxxxx
	Name:	Xxxx X. Xxxxxxxx
	Title:	Director

XXXXXX CONSTRUCTION SERVICES, INC., A Delaware corporation, as a Guarantor

By:	/s/ Xxxx X. Xxxxxxxx
	Name:	Xxxx X. Xxxxxxxx
	Title:	Director

XXXXXX MANUFACTURING, L.L.C., A Delaware limited liability company, as a Guarantor

By:	/s/ Xxxx X. Xxxxxxxx
	Name:	Xxxx X. Xxxxxxxx
	Title:	Director

GLOBAL POWER PROFESSIONAL SERVICES, L.L.C., A Delaware limited liability company, as a Guarantor

By:	/s/ Xxxx X. Xxxxxxxx
	Name:	Xxxx X. Xxxxxxxx
	Title:	Manager

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XXXXXXXX INDUSTRIAL SERVICES GROUP, L.L.C., a Delaware limited liability company, as a Guarantor

By:	/s/ Xxxx X. Xxxxxxxx
	Name:	Xxxx X. Xxxxxxxx
	Title:	Manager

XXXXXXXX INDUSTRIAL SERVICES, LLC, a Georgia limited liability company, as a Guarantor

By:	/s/ Xxxxxxx X. Xxxxxx
	Name:	Xxxxxxx X. Xxxxxx
	Title:	Manager

XXXXXXXX SPECIALTY SERVICES, LLC, a Georgia limited liability company, as a Guarantor

By:	/s/ Xxxx X. Xxxxxxxx
	Name:	Xxxx X. Xxxxxxxx
	Title:	Manager

XXXXXXXX PLANT SERVICES, LLC, a Georgia limited liability company, as a Guarantor

By:	/s/ Xxxx X. Xxxxxxxx
	Name:	Xxxx X. Xxxxxxxx
	Title:	Manager

WSSERVICES, LP, a California limited partnership, as a Guarantor

By:	/s/ Xxxx X. Xxxxxxxx
	Name:	Xxxx X. Xxxxxxxx
	Title:	Manager

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CREDIT AGREEMENT by and among GLOBAL POWER EQUIPMENT GROUP INC., as the Borrower and the other Credit Parties hereto from time to time, as Guarantors and the LENDERS party hereto from time to time and MORGAN STANLEY SENIOR FUNDING, INC., as Lead...

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