UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM 8-K/A
 
AMENDMENT NO.1 TO
CURRENT REPORT
 
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
 
Date of Report (Date of earliest event reported): July 31, 2009
 
CLEAN HARBORS, INC.
(Exact name of registrant as specified in its charter)
 
Massachusetts	 	001-34223	 	04-2997780	
(State or other jurisdiction
of incorporation)	 	(Commission
File Number)	 	(IRS Employer
Identification No.)	
 	 	 	 	 	
42 Longwater Drive, Norwell,
Massachusetts	 	02061-9149	
(Address of principal executive offices)	 	(Zip Code)	
 
Registrant’s telephone number, including area code (781) 792-5000
 
Not Applicable
(Former name or former address, if changed since last report.)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 
Explanatory Note
 
On July 31, 2009, Clean Harbors, Inc. (the “Company”) filed with the Securities and Exchange Commission a Current Report on Form 8-K (the “Initial 8-K”) to report, among other things, the entry into a Second Amended and Restated Credit Agreement (the “Credit Agreement”) dated as of July 31, 2009 among the Company, as the Borrower, Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and the other Lenders party thereto, and Banc of America Securities LLC, as Sole Lead Arranger and Sole Book Manager, which Credit Agreement was filed as Exhibit 4.33 to the Initial 8-K.
 
This Amendment is being filed for the purpose of updating Exhibit 4.33 to the Initial 8-K to include the schedules and exhibits to the Credit Agreement and should be read in conjunction with the Initial 8-K.
 
Item 9.01.                     Financial Statements and Exhibits.
 
4.33        Second Amended and Restated Credit Agreement dated as of July 31, 2009 among Clean Harbors, Inc., as the Borrower, Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and the other Lenders party thereto, and Banc of America Securities LLC, as Sole Lead Arranger and Sole Book Manager.
 
2

 
SIGNATURES
 
Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 	Clean Harbors, Inc.	
 	(Registrant)	

September 21, 2009	/s/ James M. Rutledge	
 	Executive Vice President and	
 	Chief Financial Officer	
 
3

Exhibit 4.33
 
EXECUTION VERSION
 
[Published CUSIP Number:         ]
 
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
 
Dated as of July 31, 2009
 
among
 
Clean Harbors, Inc.,
 
as the Borrower,

BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and
L/C Issuer,
 
and
 
The Other Lenders Party Hereto

BANC OF AMERICA SECURITIES LLC,
 
as Sole Lead Arranger and Sole Book Manager

 
TABLE OF CONTENTS
 
 	 	Page	
 	 	 	
ARTICLE I.	DEFINITIONS AND ACCOUNTING TERMS	1	
1.01.	Defined Terms	1	
1.02.	Other Interpretive Provisions	36	
1.03.	Accounting Terms	37	
1.04.	Rounding	37	
1.05.	Times of Day	37	
1.06.	Letter of Credit Amounts	37	
1.07.	Currency Equivalents Generally	37	
 	 	 	
ARTICLE II.	THE COMMITMENTS AND CREDIT EXTENSIONS	38	
2.01.	The Loans	38	
2.02.	Borrowings, Conversions and Continuations of Loans	38	
2.03.	Letters of Credit	40	
2.04.	Swing Line Loans	48	
2.05.	Prepayments	51	
2.06.	Termination or Reduction of Commitments	52	
2.07.	Repayment of Loans	53	
2.08.	Interest	53	
2.09.	Fees	54	
2.10.	Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate	54	
2.11.	Evidence of Debt	55	
2.12.	Payments Generally; Administrative Agent’s Clawback	55	
2.13.	Sharing of Payments by Lenders	57	
2.14.	Intentionally Omitted	58	
2.15.	Increase in Revolving Credit Facility	58	
 	 	 	
ARTICLE III.	TAXES, YIELD PROTECTION AND ILLEGALITY	60	
3.01.	Taxes	60	
3.02.	Illegality	63	
3.03.	Inability to Determine Rates	64	
3.04.	Increased Costs; Reserves on Eurodollar Rate Loans	64	
 
i

 
TABLE OF CONTENTS
(continued)
 
 	 	Page	
 	 	 	
3.05.	Compensation for Losses	65	
3.06.	Mitigation Obligations; Replacement of Lenders	66	
3.07.	Survival	66	
 	 	 	
ARTICLE IV.	CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	67	
4.01.	Conditions of Initial Credit Extension	67	
4.02.	Conditions to all Credit Extensions	70	
 	 	 	
ARTICLE V.	REPRESENTATIONS AND WARRANTIES	71	
5.01.	Existence, Qualification and Power	71	
5.02.	Authorization; No Contravention	71	
5.03.	Governmental Authorization; Other Consents	71	
5.04.	Binding Effect	72	
5.05.	Financial Statements; No Material Adverse Effect	72	
5.06.	Litigation	73	
5.07.	No Default	73	
5.08.	Ownership of Property; Liens; Investments	73	
5.09.	Environmental Compliance	74	
5.10.	Insurance	75	
5.11.	Taxes	75	
5.12.	ERISA Compliance	75	
5.13.	Subsidiaries; Equity Interests; Loan Parties	76	
5.14.	Margin Regulations; Investment Company Act	76	
5.15.	Disclosure	77	
5.16.	Compliance with Laws	77	
5.17.	Intellectual Property; Licenses, Etc	77	
5.18.	Solvency	78	
5.19.	Casualty, Etc	78	
5.20.	Labor Matters	78	
5.21.	Collateral Documents	78	
5.22.	Bank Accounts	78	
5.23.	Trade Relations	78	
 
ii

 
TABLE OF CONTENTS
(continued)
 
 	 	Page	
 	 	 	
5.24.	Restrictions on Subsidiaries	79	
5.25.	Material Contracts	79	
5.26.	Payable Practices	79	
5.27.	Interdependent Businesses and Operations	79	
5.28.	Anti-Terrorism Law	79	
5.29.	Properties	80	
5.30.	Disclosure	81	
5.31.	Survival of Warranties; Cumulative	81	
 	 	 	
ARTICLE VI.	AFFIRMATIVE COVENANTS	81	
6.01.	Financial Statements	81	
6.02.	Certificates; Other Information	83	
6.03.	Notices	86	
6.04.	Payment of Obligations	87	
6.05.	Preservation of Existence, Etc	87	
6.06.	Maintenance of Properties	87	
6.07.	Maintenance of Insurance	88	
6.08.	Compliance with Laws, Immediate Notice in respect of Hazardous Material	88	
6.09.	Books and Records	89	
6.10.	Inspection Rights	89	
6.11.	Use of Proceeds	89	
6.12.	Covenant to Guarantee Obligations and Give Security	89	
6.13.	Compliance with Environmental Laws	90	
6.14.	Preparation of Environmental Reports, Environmental Indemnity	91	
6.15.	Compliance with ERISA	91	
6.16.	Further Assurances	92	
6.17.	Compliance with Terms of Leaseholds	92	
6.18.	License Agreements	92	
6.19.	Material Contracts	93	
6.20.	Costs and Expenses	93	
 
iii

 
TABLE OF CONTENTS
(continued)
 
 	 	Page	
 	 	 	
6.21.	Cash Collateral Accounts	94	
6.22.	Cash Management Arrangements	94	
6.23.	Information Regarding Collateral	94	
6.24.	Anti-Terrorism Law; Anti-Money Laundering	95	
6.25.	Mortgages	95	
6.26.	Control Agreements	96	
6.27.	The Acquisition	96	
6.28.	Intellectual Property Security Agreements	97	
 	 	 	
ARTICLE VII.	NEGATIVE COVENANTS	98	
7.01.	Liens	98	
7.02.	Indebtedness	99	
7.03.	Investments	101	
7.04.	Fundamental Changes	103	
7.05.	Dispositions	103	
7.06.	Restricted Payments	105	
7.07.	Change in Nature of Business	105	
7.08.	Transactions with Affiliates	105	
7.09.	Burdensome Agreements	105	
7.10.	Use of Proceeds	106	
7.11.	Financial Covenants	106	
7.12.	Amendments of Organization Documents	107	
7.13.	Accounting Changes	107	
7.14.	Prepayments, Etc. of Indebtedness	107	
7.15.	Amendment, Etc. of Related Documents	107	
7.16.	Change of Name or Chief Executive Office	107	
7.17.	Intentionally Omitted	108	
7.18.	Embargoed Person	108	
7.19.	Sale and Leaseback Transactions	108	
 	 	 	
ARTICLE VIII.	EVENTS OF DEFAULT AND REMEDIES	108	
8.01.	Events of Default	108	
 
iv

 
TABLE OF CONTENTS
(continued)
 
 	 	Page	
 	 	 	
8.02.	Remedies upon Event of Default	111	
8.03.	Application of Funds	112	
 	 	 	
ARTICLE IX.	ADMINISTRATIVE AGENT	113	
9.01.	Appointment and Authority	113	
9.02.	Rights as a Lender	113	
9.03.	Exculpatory Provisions	113	
9.04.	Reliance by Administrative Agent	114	
9.05.	Delegation of Duties	115	
9.06.	Resignation of Administrative Agent	115	
9.07.	Non-Reliance on Administrative Agent and Other Lenders	116	
9.08.	No Other Duties, Etc	116	
9.09.	Administrative Agent May File Proofs of Claim	116	
9.10.	Collateral and Guaranty Matters	117	
9.11.	Secured Cash Management Agreements and Secured Hedge Agreements	118	
 	 	 	
ARTICLE X.	MISCELLANENOUS	118	
10.01.	Amendments, Etc	118	
10.02.	Notices; Effectiveness; Electronic Communications	119	
10.03.	No Waiver; Cumulative Remedies; Enforcement	121	
10.04.	Expenses; Indemnity; Damage Waiver	122	
10.05.	Payments Set Aside	124	
10.06.	Successors and Assigns	124	
10.07.	Treatment of Certain Information; Confidentiality	128	
10.08.	Right of Setoff	129	
10.09.	Interest Rate Limitation	129	
10.10.	Counterparts; Integration; Effectiveness	130	
10.11.	Survival of Representations and Warranties	130	
10.12.	Severability	130	
10.13.	Replacement of Lenders	130	
10.14.	Governing Law; Jurisdiction; Etc	131	
10.15.	Waiver of Jury Trial	132	
 
v

 
TABLE OF CONTENTS
(continued)
 
 	 	Page	
 	 	 	
10.16.	No Advisory or Fiduciary Responsibility	132	
10.17.	Electronic Execution of Assignments and Certain Other Documents	133	
10.18.	USA PATRIOT Act	133	
10.19.	Judgment Currency	133	
 
vi

 
SCHEDULES
 
2.01	Commitments and Applicable Percentages	
2.03	Existing Letters of Credit	
5.03	Certain Authorizations	
5.08(b)	Existing Liens	
5.09	Environmental Matters	
5.13	Subsidiaries and Other Equity Investments; Loan Parties	
5.20	Labor Matters	
5.25	Material Contracts	
6.12	Guarantors	
7.02	Permitted Existing Indebtedness	
7.03(c)	Investments in Subsidiaries	
7.09	Burdensome Agreements	
10.02	Administrative Agent’s Office, Certain Addresses for Notices	
 	 	
EXHIBITS	 	
 	 	
Form of	 	
A-1	Committed Loan Notice	
A-2	Swing Line Notice	
B	Revolving Credit Note	
C	Compliance Certificate	
D	Assignment and Assumption	
E	Administrative Questionnaire	
F	Guaranty	
G	Security Agreement	
H-1	Opinion Matters – Counsel to Loan Parties	
H-2	Opinion Matters – New York Counsel to Loan Parties	
I	Borrowing Base Certificate	

 
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
 
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of July 31, 2009, among Clean Harbors, Inc., a Massachusetts corporation (the “ Borrower ”), each lender from time to time party hereto (collectively, the “ Lenders ” and individually, a “ Lender ”), and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
 
PRELIMINARY STATEMENTS:
 
WHEREAS, this Agreement was originally entered into on June 30, 2004 and amended on July 20, 2004 (as so amended, the “ Original Credit Agreement ”), amended and restated on December 1, 2005, and further amended and supplemented through the date hereof (as so amended, restated, and supplemented, the “ Existing Credit Agreement ”), among the Administrative Agent, certain other agents, certain of the Lenders and the Borrower and certain of its Subsidiaries, and the parties hereto desire to make certain modifications to their credit arrangements and amend and restate the Existing Credit Agreement as herein set forth;
 
WHEREAS, pursuant to the Acquisition Agreement dated as of April 29, 2009 (the “Acquisition Agreement”) by and among the Borrower, Clean Harbors Canada, Inc., and Eveready Inc. (the “ Target Company ”), the Borrower has agreed to acquire (the “ Acquisition ”) all of the outstanding capital stock of the Target Company; and
 
WHEREAS, the Borrower has requested that the Lenders provide an amended and restated revolving credit and letter of credit facility, and the Lenders have indicated their willingness to lend and the L/C Issuer has indicated its willingness to issue letters of credit, in each case, on the terms and subject to the conditions set forth herein.
 
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
 
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
 
1.01.                    Defined Terms.  As used in this Agreement, the following terms shall have the meanings set forth below:
 
“Accounts” has the meaning given such term in the UCC and includes, without limitation, all present and future rights of the Loan Parties to payment of a monetary obligation, wither or not earned by performance, which is not evidenced by Chattel Paper or an Instrument, (a) for Inventory that has been or is to be sold, leased licensed, assigned, or otherwise disposed of, (b) for services rendered or to be rendered, or (c) arising out of the use of a credit or charge card or information contained on or for use with the card.
 
“Accounts Collateral” has the meaning given such term in the Security Agreement.

 
“Acquired Indebtedness” means Indebtedness of a Person or any of its Subsidiaries
 
(a)         existing at the time such Person becomes a Subsidiary of the Borrower or merges or consolidates with the Borrower or any of its Subsidiaries, or
 
(b)        assumed in connection with the acquisition of assets from such Person,
 
in each case, not incurred by such Person in connection with, or in contemplation of, such Person becoming a Subsidiary of the Borrower or such acquisition, merger or consolidation.
 
“Acquisition” has the meaning specified in the Preliminary Statements.
 
“Acquisition Agreement” has the meaning specified in the Preliminary Statements.
 
“Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
 
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on  Schedule 10.02 , or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.
 
“Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit E or any other form approved by the Administrative Agent.
 
“Affiliate” means, with respect to any 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.
 
“Aggregate Commitments” means the Commitments of all the Lenders.
 
“Aggregate Credit Exposures” means, at any time, in respect of the Revolving Credit Facility, the sum of (i) the unused portion of the Revolving Credit Facility at such time and (ii) the Total Revolving Credit Outstandings at such time.
 
“Agreement” means this Second Amended and Restated Credit Agreement, as it may hereafter be further amended, restated and/or supplemented in accordance with its terms.
 
“Applicable Fee Rate” means, at any time, in respect of the Revolving Credit Facility, (a) from the Closing Date to the date which is six months after the Closing Date, 0.50% per annum and (b) thereafter, the applicable percentage per annum set forth below determined by reference to Facility Usage of the Revolving Credit Facility:
 
Applicable Fee Rate
 
Pricing
Level	 	Facility Usage	 	Unused Line
Fee	 	
1	 	Facility Usage < 50%	 	0.75	%	
2	 	Facility Usage > 50%	 	0.50	%	
 
2

 
Any increase or decrease in the Applicable Fee Rate resulting from a change in Facility Usage shall become effective as of the first Business Day immediately following such change.
 
Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Fee Rate for any period shall be subject to the provisions of  Section 2.10(b) .
 
“Applicable Percentage” means, in respect of the Revolving Credit Facility, with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving Credit Facility represented by such Lender’s Revolving Credit Commitment at such time.  If the commitment of each Lender to make Revolving Credit Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to  Section 8.02 , or if the Revolving Credit Commitments have expired, then the Applicable Percentage of each Lender in respect of the Revolving Credit Facility shall be determined based on the Applicable Percentage of such Lender in respect of the Revolving Credit Facility most recently in effect, giving effect to any subsequent assignments.  The initial Applicable Percentage of each Lender in respect of the Revolving Credit Facility is set forth opposite the name of such Lender on  Schedule 2.01  or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
 
“Applicable Property” means any Real Property owned or leased by the Borrower or any of its Subsidiaries which, in the good faith determination of the Borrower’s Board of Directors, and subject to the prior written consent of the Administrative Agent, is determined to be (i) not a Real Property on which the Administrative Agent wishes to acquire or retain a Mortgage, (ii) not needed for the conduct of the Permitted Business of the Borrower and its Subsidiaries, and (iii) more beneficially used by the Borrower or any such Subsidiary if contributed in kind by the Borrower or such Subsidiary to an Applicable Property Entity.
 
“Applicable Property Entity” shall mean a Person that is not the Borrower or one of its Subsidiaries that is established or exists for the purpose of holding and/or operating one or more of the Applicable Properties.
 
“Applicable Rate” means (a) in respect of the Revolving Credit Facility, (i) from the Closing Date to the date on which the Administrative Agent receives a Compliance Certificate pursuant to  Section 6.02(a)  for the fiscal quarter ending March 31, 2010, 2.25% per annum for Base Rate Loans and 3.25% per annum for Eurodollar Rate Loans and Letter of Credit Fees and (ii) thereafter, the applicable percentage per annum set forth below determined by reference to the Consolidated Fixed Charge Coverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a) :
 
Applicable Rate
 
Pricing
Level	 	Consolidated Fixed
Charge Coverage
Ratio	 	Eurodollar Rate
(Letters of
Credit)	 	Base Rate
(Swing
Line
Loans)	 	
1	 	>1.00:1 but <1.50:1	 	3.75	%	2.75	%	
2	 	>1.50:1 but <2.00:1	 	3.50	%	2.50	%	
3	 	>2.00:1	 	3.25	%	2.25	%	
 
3

 
Any increase or decrease in the Applicable Rate resulting from a change in the Fixed Charge Coverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a) ;  provided ,  however , that if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of the Required Lenders, Pricing Level 1 shall apply in respect of the Revolving Credit Facility as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and in each case shall remain in effect until the date on which such Compliance Certificate is delivered.
 
Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of  Section 2.10(b) .
 
“Appropriate Lender” means, at any time, (a) with respect to the Revolving Credit Facility, a Lender that has a Commitment with respect to the Revolving Credit Facility or holds a Revolving Credit Loan, respectively, at such time, (b) with respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section 2.03(a) , the Revolving Credit Lenders and (c) with respect to the Swing Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant to  Section 2.04(a) , the Revolving Credit Lenders.
 
“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.
 
“Arranger” means Banc of America Securities LLC, in its capacity as sole lead arranger and sole book manager.
 
“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
 
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by  Section 10.06(b) ), and accepted by the Administrative Agent, in substantially the form of  Exhibit D  or any other form approved by the Administrative Agent.
 
“Attributable Indebtedness” means, on any date, in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.
 
“Audited Financial Statements” means the audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2008, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Borrower and its Subsidiaries, including the notes thereto.
 
“Availability Period” means, in respect of the Revolving Credit Facility, the period from and including the Closing Date to the earliest of (i) the Maturity Date, (ii) the date of termination
 
4

 
of the Revolving Credit Commitments pursuant to Section 2.06, and (iii) the date of termination of the commitment of each Revolving Credit Lender to make Revolving Credit Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to  Section 8.02 .
 
“Bank of America” means Bank of America, N.A. and its successors.
 
“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate  plus  1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate”, and (c) the Eurodollar Rate for an Interest Period of 1-month beginning on such day plus 1.0%. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
 
“Base Rate Loan” means a Revolving Credit Loan that bears interest based on the Base Rate.
 
“Borrower” has the meaning specified in the introductory paragraph hereto.
 
“Borrower Materials” has the meaning specified in Section 6.02.
 
“Borrowing” means a Revolving Credit Borrowing or a Swing Line Borrowing, as the context may require.
 
“Borrowing Base” means, as to the Loan Parties, the amount equal to (a) eighty-five percent (85%) of the Net Amount of Eligible Accounts of the Loan Parties (including all Municipal Government Accounts of Loan Parties that are Eligible Accounts) subject to a cap of $12,000,000 on unbilled Eligible Accounts, plus (b) the lesser of eighty-five percent (85%) of the Net Amount of Federal Government Accounts of the Loan Parties that are Eligible Accounts (which amount may include Accounts that are not Eligible Accounts solely because such accounts are not compliant with the Assignment of Claims Act of 1940) or $5,000,000, plus (c) ninety-seven percent (97%) of Eligible Pledged Cash, minus (d) any Reserves attributable to the Loan Parties.
 
“Borrowing Base Certificate” means a certificate substantially in the form of Exhibit I.
 
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
 
“Canadian Assets” means assets of any Canadian Subsidiary.
 
“Canadian Dollars” or “CDN” means Dollars in lawful currency of Canada.
 
5

 
“Canadian Subsidiary” means any Subsidiary of the Borrower organized under the laws of Canada or any province thereof.
 
“Canadian Target Debt” means the Indebtedness existing under the Canadian Target Debt Agreement.
 
“Canadian Target Debt Agreement” means, collectively, (i) the amended and restated credit agreement, dated as of December 31, 2008, among Eveready Energy Services Corp., as borrower, the Target and other Subsidiaries of the Target signatory thereto, as credit parties, GE Asset Financing Holding Company and Canadian Imperial Bank of Commerce, as co-agents and lenders, and the other lenders signatory thereto, as lenders, as such agreement has heretofore been amended and may hereafter be amended, restated, supplemented or otherwise modified from time to time, (ii) any agreement extending the maturity of, refinancing, replacing or otherwise restructuring (including increasing the amount of available borrowings or availability of letters of credit thereunder or adding Subsidiaries of the Target Company or Canadian Subsidiaries of the Borrower as additional borrowers or guarantors thereunder) all or any portion of the Indebtedness under such agreement, and (iii) any successor or replacement agreement or agreements and whether by the same or any other agent, lender or group of lenders or issuers of letters of credit.
 
“Canadian Target Debt Documents” means those documents executed in connection with the Canadian Target Debt Agreement.
 
“Capital Expenditures” means, with respect to any Person for any period, the sum of (i) the aggregate of all expenditures by such Person and its Subsidiaries during such period that in accordance with GAAP are or should be included in “property, plant and equipment” or in a similar fixed asset account on its balance sheet, whether such expenditures are paid in cash or financed, and (ii) to the extent not covered by clause (i) above, the aggregate of all expenditures by such Person and its Subsidiaries during such period to acquire by purchase or otherwise the business or fixed assets of, or the Equity Interests of, any other Person, provided that there shall be excluded from Capital Expenditures the purchase price paid in any Permitted Acquisition, to the extent such purchase price would have otherwise constituted Capital Expenditures, provided further, that any Rolling Stock which is initially accounted for as a Capital Expenditure at the time of acquisition thereof but which is transferred to a third party and becomes subject to an operating lease within 60 days after the date of acquisition thereof which lease would not be required to be treated as an addition to “property, plant and equipment” or in a similar fixed asset account on a consolidated balance sheet of the Borrower and its Subsidiaries prepared in accordance with GAAP, shall be excluded from Capital Expenditures.
 
“Capitalized Leases” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases.
 
“Cash Collateral” means cash deposited into a Cash Collateral Account.
 
“Cash Collateral Account” means a blocked deposit account of one or more of the Loan Parties at Bank of America (or another commercial bank selected in compliance with  Section 6.22 ) in the name of the Administrative Agent and under the sole dominion and control of the
 
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Administrative Agent, and otherwise established in a manner satisfactory to the Administrative Agent.
 
“Cash Collateralize” has the meaning specified in Section 2.03(g).
 
“Cash Equivalents” means any of the following types of Investments, to the extent owned by the Borrower or any of its Subsidiaries free and clear of all Liens (other than Liens created under the Collateral Documents and other Liens permitted hereunder):
 
(a)                                 readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof having maturities of not more than 360 days from the date of acquisition thereof; provided  that the full faith and credit of the United States of America is pledged in support thereof;
 
(b)                                time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States of America, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States of America, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (c) of this definition and (iii) has combined capital and surplus of at least $250,000,000, in each case with maturities of not more than 90 days from the date of acquisition thereof;
 
(c)                                 commercial paper issued by any Person organized under the laws of any state of the United States of America and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than 360 days from the date of acquisition thereof;
 
(d)                                marketable direct obligations issued by any State of the United States of America or any political subdivision or public instrumentality therof maturing within one year of the acquisition thereof and having one of the two highest ratings obtainable from either S&P or Moody’s;
 
(e)                                 debt securities maturing within one year from the date of acquisition issued by any company organized under the laws of the United States of America, any State thereof or the District of Columbia and having a rating of at least A from S&P and A2 from Moody’s;
 
(f)                                   repurchase agreements and reverse purchase agreements relating to marketable direct obligations issued by, or unconditionally guaranteed by, the United States or Canada or issued by any agency of those countries and backed by the full faith and credit of the respective country, in each case maturing within 90 days from the date of acquisition, provided that the terms of such agreements comply with the guidelines set forth in Repurchase Agreements of Depository Institutions with Securities Dealers and Others, as adopted by the Comptroller of the Currency on February 11, 1998;
 
(g)                                Investments, classified in accordance with GAAP as current assets of the Borrower or any of its Subsidiaries, in money market and mutual fund investment programs registered under the Investment Company Act of 1940, which are administered by financial
 
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institutions that have the highest rating obtainable from either Moody’s or S&P, and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clauses (a) through (f) of this definition; and
 
(h)                                variable rate bond or short term money market instruments whose rate is reset periodically through an auction process, in an aggregate amount not to exceed $5,000,000.
 
“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements.
 
“Cash Management Bank” means any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement.
 
“Casualty Event” means any loss of title or any loss of or damage to or destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any property of the Borrower or any of its Subsidiaries.  “Casualty Event” shall include but not be limited to any taking of all or any part of any Real Property of any person or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any law, or by reason of the temporary requisition or the use or occupancy of all or any part of any Real Property of any person or any part thereof by any Governmental Authority, civil or military, or any settlement in lieu thereof.
 
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980.
 
“CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.
 
“CFC” means a Person that is a controlled foreign corporation under Section 957 of the Code.
 
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.
 
“Change of Control” means an event or series of events by which:
 
(a)                                 except as may be permitted under Section 7.04 hereof, the transfer (in one transaction or a series of transactions) of all or substantially all of the assets of any Loan Party to any “person” or “group” (as such terms are used in Sections 13(d)(3) and 14(d) of the Securities Exchange Act of 1934);
 
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(b)                                except as may be permitted under Section 7.04 hereof, the liquidation or dissolution of any Loan Party or the adoption of a plan by the stockholders of any Loan Party relating to the dissolution or liquidation of any Loan Party;
 
(c)                                 the acquisition by any Person or group ((as such terms are used in Sections 13(d)(3) and 14(d) of the Securities Exchange Act of 1934), except for one or more Permitted Holders, of beneficial ownership, directly or indirectly of 50% or more of the voting power of the total outstanding Voting Stock of the Borrower;
 
(d)                                during any period of two (2) consecutive years, individuals who at the beginning of such period constituted the board of directors of the Borrower (together with any new directors who have appointed by any Permitted Holder, or whose nomination for election by the stockholders of the Borrower, as the case may be, was approved by a vote of at least sixty-six and two-thirds percent (66 2/3%) of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason (other than death or cessation of legal capacity) to constitute a majority of the Board of Directors of the Borrower then still in office;
 
(e)                                 in the case of any Loan Party other than the Borrower, the Borrower or Loan Parties that own beneficially and of record, Voting Stock of other Loan Parties on the Closing Date shall cease to own beneficially and of record, one hundred percent (100%) of the voting power of the total outstanding Voting Stock of such other Loan Party or shall cease to control the appointment of the board of directors of each such Loan Party;
 
(f)                                   the occurrence of a change of control under any Material Indebtedness; or
 
(g)                                a “change of control” or any comparable term under, and as defined in, the Canadian Target Debt Agreement, the Other Permitted Canadian Debt Documents, the Senior High Yield Indenture or any Other Secured Debt Agreement shall have occurred.
 
“Chattel Paper” has the meaning given such term in the UCC.
 
“Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with  Section 10.01 .
 
“Code” means the Internal Revenue Code of 1986.
 
“Collateral” means all of the “Collateral” and “Mortgaged Property” referred to in the Collateral Documents and all of the other property that is or is intended under the terms of the Collateral Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties.
 
“Collateral Documents” means, collectively, the Security Agreement, the Copyright Security Agreement, the Trademark Security Agreement, the Patent Security Agreement, the Mortgages, each of the mortgages, collateral assignments, security agreements, supplements to such agreements or other similar agreements delivered to the Administrative Agent pursuant to  Section 6.12 , and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties,
 
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including, but not limited to, deposit account control agreements, lockbox agreements and securities account control agreements.
 
“Commitment” means a Revolving Credit Commitment.
 
“Committed Loan Notice” means a notice of (a) a Revolving Credit Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to  Section 2.02(a) , which, if in writing, shall be substantially in the form of  Exhibit A-1 .
 
“Compliance Certificate” means a certificate substantially in the form of Exhibit C.
 
“Consolidated EBITDA” means, at any date of determination, an amount equal to Consolidated Net Income of the Borrower and its Subsidiaries on a consolidated basis for the most recently completed Measurement Period  plus  (a) the following to the extent deducted in calculating such Consolidated Net Income:  (i) Consolidated Interest Charges, (ii) the provision for Federal, state, local and foreign income taxes, (iii) depreciation and amortization expense, (iv) transaction expenses relating to the Transactions not to exceed $10,000,000 in the aggregate, and (v) other non-recurring expenses reducing such Consolidated Net Income which do not represent a cash item in such period or any future period (in each case of or by the Borrower and its Subsidiaries for such Measurement Period) and  minus  (b) the following to the extent included in calculating such Consolidated Net Income:  (i) Federal, state, local and foreign income tax credits and (ii) all non-cash items increasing Consolidated Net Income.
 
“Consolidated Fixed Charge Coverage Ratio” means, at any date of determination and for the Measurement Period most recently ended, the ratio of (a) (i) Consolidated EBITDA,  less  the sum of (ii) aggregate amount of Federal, state, local and foreign income taxes paid or payable in cash, (iii) the aggregate amount of all Capital Expenditures (other than those financed by Indebtedness permitted under  Section 7.02 ), (iv) the aggregate amount of all Restricted Payments, and (v) Environmental Expenditures, to (b) the sum of (i) Consolidated Interest Charges to the extent paid or payable in cash, and (ii) the aggregate principal amount of all regularly scheduled principal payments paid or payable with respect to Indebtedness, in each case, of or by the Borrower and its Subsidiaries for the most recently completed Measurement Period.
 
“Consolidated Interest Charges” means, for any Measurement Period, (i) the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, (b) all interest paid or payable with respect to discontinued operations (but, in the case of clauses (a) and (b), excluding amortization of financing fees and original issue discount), and (c) the portion of rent expense under Capitalized Leases that is treated as interest in accordance with GAAP, in each case, of or by the Borrower and its Subsidiaries on a consolidated basis for the most recently completed Measurement Period.
 
“Consolidated Net Income” means, at any date of determination, the net income (or loss) of the Borrower and its Subsidiaries on a consolidated basis for the most recently completed Measurement Period;  provided  that the calculation of Consolidated Net Income shall exclude (a)
 
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extraordinary gains and extraordinary losses for such Measurement Period, (b) the net income of any Subsidiary during such Measurement Period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such income is not permitted by operation of the terms of its Organization Documents or any agreement, instrument or Law applicable to such Subsidiary during such Measurement Period, except that the Borrower’s equity in any net loss of any such Subsidiary for such Measurement Period shall be included in determining Consolidated Net Income, (c) any income (or loss) for such Measurement Period of any Person if such Person is not a Subsidiary, except that the Borrower’s equity in the net income of any such Person for such Measurement Period shall be included in Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such Measurement Period to the Borrower or a Subsidiary as a dividend or other distribution (and in the case of a dividend or other distribution to a Subsidiary, such Subsidiary is not precluded from further distributing such amount to the Borrower as described in clause (b) of this proviso), (d) any accretion expense attributable to Environmental Liabilities for such Measurement Period,  provided  that such (1) such expense is non-cash and (2) determined on a consolidated basis in accordance with GAAP, and (e) non-recurring employee severance costs in an amount not to exceed $1,200,000 in any twelve month period.
 
“Contra Account” means an account on the balance sheet of a Person that offsets the balance of a related and corresponding account.
 
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
 
“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” has the meaning given such term in the Security Agreement.
 
“Copyright Security Agreement” means that certain Grant of Security Interest in Copyright Rights, to be dated within thirty (30) days of the Closing Date, by and among the applicable Loan Parties and the Administrative Agent, as amended, supplemented or otherwise modified from time to time (together with each other grant of security interest in copyright rights delivered pursuant to  Section 6.12  of this Agreement and  Section 8.13  of the Security Agreement).
 
“Credit Extension” means each of the following:  (a) a Borrowing and (b) an L/C Credit Extension.
 
“Credit Suisse Term Debt” means the $30,000,000 term note issued pursuant to the Credit Suisse Term Loan Supplement.
 
“Credit Suisse Term Loan Supplement” means that certain Term Loan Supplement, dated as of August 18, 2006, among the Borrower, certain of its U.S. Subsidiaries under the Amended
 
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Credit Agreement, the guarantors party to the Amended Credit Agreement, the term loan lenders party thereto, Credit Suisse Securities (USA) LLC, and Credit Suisse.
 
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
 
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
 
“Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate  plus  (ii) the Applicable Rate, if any, applicable to Base Rate Loans  plus  (iii) 2% per annum; provided ,  however , that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan  plus  2% per annum and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate  plus  2% per annum.
 
“Defaulting Lender” means any Lender that (a) has failed to fund any portion of the Revolving Credit Loans, participations in L/C Obligations or participations in Swing Line Loans required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder, or (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute.
 
“Dilution Percentage” means a percentage, calculated at the end of each field examination with respect to the Collateral by the Administrative Agent, reflecting the amount of dilution of Eligible Accounts that should (based on the results of such field examination), in the determination of the Administrative Agent, be taken into account when calculating such Borrowing Base;  provided  that each such percentage shall be represented by a whole number without decimal places.  The Dilution Percentage shall remain in effect from and after each such field examination until the completion of a new field examination and the determination by the Administrative Agent of a new Dilution Percentage, at which time the Dilution Percentage shall reflect such new field examination and the determination by the Administrative Agent of such new Dilution Percentage.
 
“Dilution Reserve Percentage” means, as of any time, the Dilution Percentage as of such time minus 5%; provided  that if the Dilution Percentage as of such time is below 5%, then the Dilution Reserve Percentage as of such time shall be deemed to be 0%.
 
“Disclosed Litigation” has the meaning set forth in Section 5.06.
 
“Disposition” or “Dispose” means any direct or indirect conveyance, sale, lease, sublease, assignment, transfer or other disposition (including any sale and leaseback transaction) of any property excluding sales of inventory and dispositions of Cash Equivalents, in each case, in the ordinary course of business, by the Borrower or any of its Subsidiaries.
 
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“Disqualified Equity Interests” means any Equity Interests which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the first anniversary of the Maturity Date, (b) is convertible or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interests referred to in (a) above, in each case at any time on or prior to the first anniversary of the Maturity Date, or (c) contains any repurchase obligation which may come into effect prior to payment in full of all Obligations.
 
“Dollar” and “$” mean lawful money of the United States.
 
“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in Canadian Dollars, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with Canadian Dollars.
 
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any political subdivision of the United States.
 
“Eligible Accounts” means Accounts of the Borrower and its Subsidiaries subject to the Lien of the Collateral Documents, the value of which shall be determined by taking into consideration, among other factors, their book value determined in accordance with GAAP;  provided ,  however , that none of the following classes of Accounts shall be deemed to be Eligible Accounts:
 
(a)                                 Accounts that do not arise out of sales of goods or rendering of services in the ordinary course of the Borrower’s or the relevant Subsidiary’s business;
 
(b)                                Accounts payable other than in Dollars or that are otherwise on terms other than those normal or customary in the Borrower’s or the relevant Subsidiary’s business;
 
(c)                                 Accounts more than 90 days past original invoice date;
 
(d)                                Accounts owing from any Person that is an Affiliate of the Borrower;
 
(e)                                 Accounts arising out of sales to account debtors outside the United States and Canada;
 
(f)                                   Accounts owing from any Person from which an aggregate amount of 50% or more of the Accounts owing therefrom are otherwise ineligible;
 
(g)                                Accounts in respect of Contra Accounts;
 
(h)                                Accounts owing from an account debtor that is an agency, department or instrumentality of the United States or any state, agency, instrumentality or municipality thereof
 
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unless the Borrower or its relevant Subsidiary shall have satisfied the requirements of the Assignment of Claims Act of 1940, and any similar state legislation and the Administrative Agent is satisfied as to the absence of setoffs, counterclaims and other defenses on the part of such account debtor;  provided that  Accounts that are not compliant with the Assignment of Claims Act of 1940 may be included in the Borrowing Base as provided in clause (b) of the definition of Borrowing Base;
 
(i)                                    Accounts in excess of 20% of all Eligible Accounts owing to any account debtor or Affiliate of such account debtor whose total Accounts comprise greater than 20% of all Eligible Accounts.
 
(j)                                    Accounts owing from any Person that (i) has disputed liability for any Accounts owing from such Person or (ii) has otherwise asserted any claim, demand or liability against the Borrower or any of its Subsidiaries, whether by action, suit, counterclaim or otherwise; provided that for purposes of subclause (j)(i), such Accounts shall be excluded only to the extent of the amounts being disputed by such Person at any date of determination;
 
(k)                                 Accounts owing from any Person that shall take or be the subject of any action or proceeding of a type described in Section 8.01(f);
 
(l)                                    Accounts (i) owing from any Person that is also a supplier to or creditor of the Borrower or any of its Subsidiaries unless such Person has waived any right of setoff in a manner acceptable to the Administrative Agent or (ii) representing any manufacturer’s or supplier’s credits, discounts, incentive plans or similar arrangements entitling the Borrower or any of its Subsidiaries to discounts on future purchase therefrom;
 
(m)                              Accounts arising out of sales on a bill-and-hold, progress billing, guaranteed sale, sale-or-return, sale on approval or consignment basis or subject to any right of return, setoff or charge back;
 
(n)                                Accounts with respect to which the representations and warranties set forth in Section 3 of the Security Agreement applicable to Accounts are not correct; and
 
(o)                                Accounts in respect of which the Security Agreement, after giving effect to the related filings of financing statements that have then been made, if any, does not or has ceased to create a valid and perfected first priority lien or security interest in favor of the Administrative Agent, on behalf of the Secured Parties, securing the Obligations.
 
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii) ,  (v)  and  (vi)  (subject to such consents, if any, as may be required under  Section 10.06(b)(iii) ).
 
“Eligible Collateral” means Eligible Accounts and Eligible Pledged Cash.
 
“Eligible Pledged Cash” means cash or Cash Equivalents subject to alegal, valid and enforceable first priority Lien in favor of the Administrative Agent on behalf of the Secured Parties and, if applicable, held in a deposit account governed by a Control Agreement or a securities account governed by a Control Agreement.
 
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“Environmental Expenditures” means with respect to any Person for any period, the sum of the aggregate of all expenditures by such Person and its Subsidiaries for spending incurred with respect to remedial liabilities, including but not limited to, superfund, remediation, facility closure remediation, and discontinued operation liabilities.
 
“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
 
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
 
“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.
 
“Equipment” has the meaning given such term in the UCC.
 
“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
 
“ERISA” means the Employee Retirement Income Security Act of 1974.
 
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
 
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any
 
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ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.
 
“Eurodollar Rate” means, for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“ BBA LIBOR ”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period.  If such rate is not available at such time for any reason, then the “Eurodollar Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.
 
“Eurodollar Rate Loan” means a Revolving Credit Loan that bears interest at a rate based on the Eurodollar Rate.
 
“Event of Default” has the meaning specified in Section 8.01.
 
“Excess Availability” means the amount, as determined by the Administrative Agent, equal to the (a) lesser of (i) the Borrowing Base at such time and (ii) $120,000,000, minus (b) the sum of (i) the Outstanding Amount of the Revolving Credit Loans and (ii) the Outstanding Amount of L/C Obligations at such time.
 
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of the Borrower 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 is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which the Borrower is located, (c) any backup withholding tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to comply with clause (A) of  Section 3.01(e)(ii) , and (d) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under  Section 10.13 ), any United States withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or
 
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designates a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with clause (B) of  Section 3.01(e)(ii) , except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to  Section 3.01(a)(ii) or (iii) .
 
“Existing Credit Agreement” has the meaning specified in the Preliminary Statements.
 
“Existing Letters of Credit” means those letters of credit now outstanding under the Existing Credit Agreement set forth on  Schedule 2.03 .
 
“Extraordinary Receipt” means any cash received by or paid to or for the account of any Person not in the ordinary course of business, including tax refunds, pension plan reversions, proceeds of insurance (other than proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings), condemnation awards (and payments in lieu thereof), indemnity payments and any purchase price adjustments.
 
“Facility” means the Revolving Credit Facility.
 
“Facility Usage” means the percentage of the Revolving Credit Facility in use as measured by the (a) the sum of (i) the Outstanding Amount of Revolving Credit Loans, (ii) the Outstanding Amount of L/C Obligations, and (iii) the Outstanding Amount of Swing Line Loans, over (b) the Revolving Credit Facility.
 
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day;  provided  that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.
 
“Federal Government Account” means an Account in which the account debtor with respect to such Account is the United States of America or a department, agency or instrumentality thereof.
 
“Fee Letters” means the letter agreements, each dated July 31, 2009, among the Borrower, and each of the Lenders.
 
“Foreign Government Scheme or Arrangement” has the meaning specified in Section 5.12(d).
 
“Foreign Lender” means any Lender that is organized under the Laws of a jurisdiction other than that in which the Borrower is resident for tax purposes (including such a Lender when
 
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acting in the capacity of the L/C Issuer).  For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
 
“Foreign Plan” has the meaning specified in Section 5.12(d).
 
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
 
“Fund” means any Person (other than a natural 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 activities.
 
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
 
“Governmental Authority” means the government of the United States 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).
 
“Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien).  The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.  The term “ Guarantee ” as a verb has a corresponding meaning.
 
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“Guarantors” means, collectively, the Domestic Subsidiaries of the Borrower listed on Schedule 6.12 and each other Domestic Subsidiary of the Borrower that shall be required to execute and deliver a guaranty or guaranty supplement pursuant to  Section 6.12 .
 
“Guaranty” means, collectively, the Guaranty made by the Guarantors in favor of the Secured Parties, substantially in the form of  Exhibit F , together with each other guaranty and guaranty supplement delivered pursuant to Section 6.12 .
 
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
 
“Hart-Scott Rodino Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
 
“Hedge Bank” means any Person that, at the time it enters into a Swap Contract permitted under Article VI or  VII , is a Lender or an Affiliate of a Lender, in its capacity as a party to such Swap Contract.
 
“Impacted Lender” means a Lender as to which (a) the Administrative Agent, Swing Line Lender or L/C Issuer reasonably believes, in good faith, that such Lender has defaulted in fulfilling its obligations under one or more other syndicated credit facilities, or (b) any Lender or Person that controls such Lender has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding or other similar proceeding.
 
“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)                                the maximum amount of all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;
 
(c)                                 net obligations of such Person under any Swap Contract;
 
(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 and not past due for more than 150 days after the date on which such trade account was created);
 
(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;
 
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(f)                                   all Attributable Indebtedness in respect of Capitalized Leases of such Person;
 
(g)                                all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person or any warrant, right or option to acquire such Equity Interest, 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, unless such Indebtedness is expressly made non-recourse to such Person.  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.
 
“Indemnified Taxes” means Taxes other than Excluded Taxes.
 
“Indemnitees” has the meaning specified in Section 10.04(b).
 
“Information” has the meaning specified in Section 10.07.
 
“Initial Senior High Yield Debt” means the indebtedness arising under the first issuance of the Senior High Yield Notes pursuant to the Senior High Yield Indenture, in an aggregate principal amount not to exceed $250,000,000.
 
“Initial Senior High Yield Notes” means the notes issued under incurrence of the Initial Senior High Yield Debt in an aggregate principal amount not to exceed $250,000,000.
 
“Intercreditor Agreement” means (a) that intercreditor agreement now or hereafter entered into between the Administrative Agent and the trustee, collateral agent, administrative agent or other agent for the benefit of the holders of the Senior High Yield Notes, (b) that intercreditor agreement now or hereafter entered into between the Administrative Agent and the trustee, collateral agent, administrative agent or other agent for the benefit of the noteholders or lenders under any Other Secured Debt Agreement, or (c) any other intercreditor agreement, in all cases such agreement to be in form, scope and substance reasonably satisfactory to the Administrative Agent and the Required Lenders.
 
“Interest Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made;  provided ,  however , that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan or Swing Line Loan, the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made (with Swing Line Loans being deemed made under the Revolving Credit Facility for purposes of this definition).
 
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“Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrower in its Committed Loan Notice;  provided  that:
 
(a)                                 any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
 
(b)                                any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
 
(c)                                 no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made.
 
“Instrument” has the meaning given such term in the UCC.
 
“Inventory” has the meaning given such term in 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 Equity Interests 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 interest in, another 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 or all or a substantial part of the business of, such Person.  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.
 
“IP Rights” has the meaning specified in Section 5.17.
 
“IRS” means the United States Internal Revenue Service.
 
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
 
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.
 
“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any
 
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Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
 
“L/C Advance” means, with respect to each Revolving Credit Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.
 
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing.
 
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
 
“L/C Issuer” means Bank of America in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
 
“L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
 
“Lender” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the Swing Line Lender.
 
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
 
“Letter of Credit” means any letter of credit issued or outstanding hereunder and shall include the Existing Letters of Credit.  A Letter of Credit may be a commercial letter of credit or a standby letter of credit.
 
“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
 
“Letter of Credit Expiration Date” means the day that is seven days prior to the Maturity Date then in effect for the Revolving Credit Facility (or, if such day is not a Business Day, the next preceding Business Day).
 
“Letter of Credit Fee” has the meaning specified in Section 2.03(i).
 
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“Letter of Credit Sublimit” means an amount equal to $110,000,000.  The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.
 
“License Agreement” has the meaning specified in Section 5.17.
 
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).
 
“Liquidity” means the sum of Unpledged Cash and Excess Availability.
 
“Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Revolving Credit Loan or a Swing Line Loan.
 
“Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the Guaranty, (d) the Collateral Documents, (e) the Fee Letters, (f) each Issuer Document, (g) the Intercreditor Agreement, (h) the Secured Cash Management Agreement; (i) the Post-Closing Agreement and (j) any other agreement entered into now or in the future that is designated as a “Loan Document” hereunder.
 
“Loan Parties” means, collectively, the Borrower and each Guarantor.
 
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Borrower or the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document, or of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.
 
“Material Contract” means (a) any contract or other agreement (other than the Loan Documents), written or oral, of any Loan Party involving monetary liability of or to any Person in an amount in excess of $5,000,000 in any fiscal year and (b) any other contract or other agreement (other than the Loan Documents), whether written or oral, to which any Loan Party is a party as to which the breach, non-performance, cancellation or failure to renew by any party thereto would have a Material Adverse Effect on the business, assets, condition (financial or otherwise) or results of operations or prospects of any Loan Party or the validity or enforceability of this Agreement, any of the other Loan Documents, or any of the rights and remedies of the Administrative Agent or Secured Parties hereunder or thereunder.
 
“Material Indebtedness” means any Indebtedness of the Borrower or any Subsidiary of the Borrower under (i) any instrument (other than Indebtedness incurred under this Agreement) or (ii) Swap Contracts, in each case, in an aggregate outstanding principal amount exceeding $30,000,000.  For purposes of determining Material Indebtedness, the principal of any Swap
 
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Contracts of any Person at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that such Person would be required to pay if the Swap Contract were terminated at such time.
 
“Maturity Date” means July 31, 2013.
 
“Measurement Period” means, at any date of determination, the most recently completed four fiscal quarters of the Borrower.
 
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
 
“Mortgage” has the meaning specified in Section 6.25(a).
 
“Mortgage Policy” has the meaning specified in Section 6.25(b).
 
“Mortgage Property” means (a) any real property owned by a Loan Party which has a value in excess of $1,000,000 and (b) any other Real Property, whether owned or leased, for which a Mortgage is granted to secure the Senior High Yield Debt Documents or Other Secured Debt Documents.
 
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
 
“Municipal Government Account” means an Account in which the account debtor with respect to such Account is a state, province or a political subdivision, department, agency or instrumentality thereof.
 
“Net Amount of Eligible Accounts” means the gross amount of Eligible Accounts less (a) sales, excise or similar taxes included in the amount thereof, and (b) returns, rebates, discounts, claims, credits and allowances of any nature at any time issued, owing, granted, outstanding, available or claimed with respect thereto.
 
“Net Amount of Federal Government Accounts” means the gross amount of Federal Government Accounts less (a) sales, excise or similar taxes included in the amount thereof, and (b) returns, rebates, discounts (which may, at the Administrative Agent’s option, be calculated on the shortest term), claims, credits and allowances of any nature at any time issued, owing, granted, outstanding, available or claimed with respect thereto.
 
“Net Cash Proceeds” means:
 
(a)                                 with respect to any Disposition by the Borrower or any of its Subsidiaries, or any Extraordinary Receipt received or paid to the account of the Borrower or any of its Subsidiaries, or any sale or issuance of any Equity Interest by the Borrower or any of its Subsidiaries, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such transaction (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so
 
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received) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the applicable asset and that is required to be repaid in connection with such transaction (other than Indebtedness under the Loan Documents), (B) the reasonable and customary out-of-pocket expenses incurred by the Borrower or such Subsidiary in connection with such transaction, (C) income taxes reasonably estimated to be actually payable within two years of the date of the relevant transaction as a result of any gain recognized in connection therewith;  provided  that, if the amount of any estimated taxes pursuant to subclause (C) exceeds the amount of taxes actually required to be paid in cash in respect of such Disposition, the aggregate amount of such excess shall constitute Net Cash Proceeds, (D) amounts provided as a reserve, in accordance with GAAP, against (x) liabilities under any indemnification obligations associated with such Disposition or issuance or sale of Equity Interests, or (y) any liabilities retained by the Borrower or its Subsidiaries associated with the properties sold in the Disposition or sale of Equity Interests, and (E) Borrower’s good faith estimate of payments required to be made with respect to unassumed liabilities relating to the properties sold within 180 days of a Disposition (provided that, to the extent such cash proceeds are not used to make payments in respect of such unassumed liabilities within 180 days of such Disposition or sale of Equity Interests, such cash proceeds shall constitute Net Cash Proceeds);
 
(b)                                with respect to the issuance and sale of the Senior High Yield Notes, or the incurrence or issuance of any Indebtedness by the Borrower or any of its Subsidiaries, the excess of (i) the sum of the cash and Cash Equivalents received in connection with such transaction over (ii) the underwriting discounts and commissions, and other reasonable and customary out-of-pocket expenses, incurred by the Borrower or such Subsidiary in connection therewith; and
 
(c)                                 with respect to any Casualty Event, the cash insurance proceeds, condemnation awards and other compensation received in respect thereof, net of all reasonable costs and expenses incurred in connection with the collection of such proceeds, awards or other compensation in respect of such Casualty Event.
 
“Non-Accounts Collateral” means “Collateral” as defined in the Security Agreement and any other property of any Loan Party which has been pledged to secure the Obligations pursuant to any Collateral Document, but excluding the Accounts Collateral and Eligible Pledged Cash.
 
“Note” means a Revolving Credit Note, as the context may require.
 
“NPL” means the National Priorities List under CERCLA.
 
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, Letter of Credit, Secured Cash Management Agreement or Secured Hedge Agreement, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
 
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“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
 
“Other Permitted Canadian Debt” means Indebtedness of any Canadian Subsidiary; provided, that no Default or Event of Default shall exist either immediately or after the incurrence thereof, and the aggregate amount of all Canadian Target Debt and Other Permitted Canadian Debt then outstanding shall not exceed 30% of the book value shown on the relevant Canadian Subsidiary’s balance sheet of the total Canadian Assets at any time.
 
“Other Permitted Canadian Debt Documents” means the documents executed or to be executed in connection with any Other Permitted Canadian Debt.
 
“Other Secured Debt” means Indebtedness arising under any Other Secured Debt Agreement; provided that (i) the final maturity and weighted average life to maturity of any such Other Secured Debt shall be after the Maturity Date, (ii) the covenants (including any financial covenants) and events of default applicable thereto shall be less restrictive to the Borrower and its Subsidiaries in all material respects as those contained herein; (iii) no such Indebtedness shall contain a cross default to other Indebtedness on terms less favorable to the Borrower and its Subsidiaries than under the Senior Secured Notes Indenture; and (iv) Liens incurred in connection with any Other Secured Debt shall be subject to an intercreditor agreement in form and substance satisfactory to the Administrative Agent and the Required Lenders;  provided further  that (x) the Initial Senior High Yield Debt shall be deemed to satisfy the conditions set forth in clauses (i) through (iv) of this paragraph and (y) the intercreditor agreement referred to in clause (a) of the definition of Intercreditor Agreement shall be the intercreditor agreement agreed to by the Administrative Agent and the Required Lenders in connection with the issuance of the Initial Senior High Yield Notes under the issuance of the Initial Senior High Yield Debt.
 
“Other Secured Debt Agreement” means a loan agreement or other document entered into in connection with the Other Secured Debt, which may include any Senior High Yield Notes in addition to the Initial Senior High Yield Notes issued under the Senior High Yield Indenture, between the Borrower and an agent for the benefit of certain lenders, in form and substance reasonably satisfactory to the Administrative Agent and Required Lenders prior to the closing of such Other Secured Debt Agreement (it being understood that if such loan agreement or other document is the Senior High Yield Indenture in the form approved by the Administrative Agent and the Required Lenders at the time of the issuance of the Initial Senior High Yield Debt, such agreement or document shall be satisfactory to the Administrative Agent and the Required Lenders for the purposes of this definition).
 
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“Other Secured Debt Documents” means the documents executed or to be executed in connection with any Other Secured Debt.
 
“Other Taxes” means all 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.
 
“Outstanding Amount” means (a) with respect to Revolving Credit Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Revolving Credit Loans and Swing Line Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.
 
“Participant” has the meaning specified in Section 10.06(d).
 
“Patent Security Agreement” means that certain Grant of Security Interest in Patent Rights, to be dated within thirty (30) days of the Closing Date, by and among the applicable Loan Parties and the Administrative Agent, as amended, supplemented or otherwise modified from time to time (together with each other grant of security interest in patent rights delivered pursuant to  Section 6.12  of this Agreement and  Section 8.13  of the Security Agreement).
 
“PBGC” means the Pension Benefit Guaranty Corporation.
 
“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.
 
“Perfection Certificate” means the perfection certificate dated as of the Closing Date and executed by each of the Loan Parties.
 
“Permitted Acquisition” means any transaction or series of related transactions for the direct or indirect (i) acquisition of all or substantially all of the property of any Person, or of any business or division of any Person; (ii) acquisition of in excess of 50% of the Equity Interests of any person, and otherwise causing such Person to become a Subsidiary of such Person; or (iii) merger or consolidation or any other combination with such any person, if each of the following conditions is met:
 
(a)                                 no Default then exists or would result therefrom;
 
(b)                                such Person shall be organized or incorporated in the United States, any state thereof, the District of Columbia, Canada or any province thereof or Puerto Rico;
 
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(c)                                 none of the Borrower or any of its Subsidiaries shall, in connection with any such transaction, assume or remain liable with respect to any Indebtedness or other liability of the related seller or the business, person or properties acquired, except to the extent permitted under  Section 7.02 ;
 
(d)                                the person or business to be acquired shall be, or shall be engaged in, a business of the type the Borrower and the Subsidiaries are engaged on the Closing Date and any business reasonably related, ancillary or complementary to the business in which the Borrower and its Subsidiaries are engaged on the Closing Date;
 
(e)                                 the board of directors of the person to be acquired shall not have indicated publicly its opposition to the consummation of such acquisition (which opposition has not been publicly withdrawn);
 
(f)                                   all transactions in connection therewith shall be consummated in accordance with all applicable laws of all applicable Governmental Authorities;
 
(g)                                at least 10 Business Days prior to the proposed date of consummation of the transaction, the Borrower shall have delivered to the Administrative Agent and the Lenders a certificate signed by a Responsible Officer of the Borrower, certifying that (A) such transaction complies with this definition (which shall have attached thereto reasonably detailed backup data and calculations showing such compliance), and (B) such transaction could not reasonably be expected to result in a Material Adverse Effect;
 
(h)                                as of the last day of the most recent period for which a Compliance Certificate was required to be delivered pursuant to Section 6.02, after giving pro forma effect to such Permitted Acquisition and any Indebtedness incurred in connection therewith (including, without limitation, any Subordinated Indebtedness) as if such Permitted Acquisition was made and any such Indebtedness was incurred on the first day of such most recent period, the Borrower and its Subsidiaries shall be in compliance with Section 7.11 (as the Borrower shall provide to the Administrative Agent a reasonably detailed certificate to such effect signed by a Responsible Officer of the Borrower); and
 
(i)                                    after giving pro forma effect to the consummation of such Permitted Acquisition, minimum Liquidity shall not be less than $50,000,000.
 
“Permitted Business” means the business of the Borrower and the Borrower’s Subsidiaries as existing on the Closing Date and any other businesses that are the same, similar or reasonably related, ancillary or complementary thereto and reasonable extensions thereof.
 
“Permitted Encumbrances” has the meaning specified in the Mortgages.
 
“Permitted Holders” means (i) any of Alan S. McKim, his spouse, ancestors, siblings, descendants (including children or grandchildren by adoption) and the descendants of any of his siblings; (ii) in the event of the incompetence or death of any of the Persons described in clause (i), such Person’s estate, executor, administrator, committee or other personal representative, in each case who at any particular date shall beneficially own or have the right to acquire, directly or indirectly, Equity Interests of the Borrower; (iii) any trust created for the benefit of the
 
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Persons described in clause (i) or (ii) or any trust for the benefit of any such trust; or (iv) any Person controlled by any of the Persons described in clause (i), (ii), or (iii).  For purposes of this definition, “control,” as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or by contract or otherwise.
 
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
 
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by the Borrower or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
 
“Platform” has the meaning specified in Section 6.02.
 
“Pledged Debt” has the meaning specified in the Security Agreement.
 
“Post-Closing Agreement” means that certain Post-Closing Agreement, dated as of July 31, 2009, among the Borrower and the Administrative Agent with respect to certain documents and actions to be delivered or taken after the Closing Date, as amended, restated, supplemented or otherwise modified from time to time.
 
“pro forma basis” or “pro forma effect” means with respect to compliance with any test or covenant hereunder, (a) that the Acquisition shall be deemed to have occurred and the Target Company and its Subsidiaries shall be deemed to have become Subsidiaries of the Borrower as of the first day of the applicable period of measurement in such test or covenant, or (b) that any Permitted Acquisition, Indebtedness, Investment, repurchase or redemption, as applicable, shall be deemed to have occurred as of the first day of the applicable period of measurement in such test or covenant.
 
“Public Lender” has the meaning specified in Section 6.02.
 
“Real Property” means all right, title and interest in and to any and all now owned and hereafter acquired real property of the Loan Parties, including leasehold interests, together with all buildings, structures and other improvements located thereon and all licenses, easements and appurtenances relating thereto, wherever located.
 
“Records” shall mean all of the Loan Parties’ present and future books of account of every kind or nature, purchase and sale agreements, invoices, ledger cards, bills of lading and other shipping evidence, statements, correspondence, memoranda, credit files and other data relating to the Collateral or any account debtor, together with the tapes, disks, diskettes and other data and software storage media and devices, file cabinets or containers in or on which the foregoing are stored (including any rights of the Loan Parties with respect to the foregoing maintained with or by any other person).
 
“Reduction Amount” has the meaning set forth in Section 2.05(b)(ix).
 
“Register” has the meaning specified in Section 10.06(c).
 
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“Related Documents” means the Acquisition Agreement and any related bills of sale, instruments of transfer and other documents delivered in connection with the Acquisition Agreement.
 
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s Affiliates.
 
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
 
“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Revolving Credit Loans, a Committed Loan Notice, and (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
 
“Required Lenders” means, as of any date of determination, (i) if the total number of Lenders is three or fewer, all the Lenders, and (ii) if the total number of Lenders is greater than three, Lenders holding at least 66- 2 / 3 % of the sum of the (a) Total Revolving Credit Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Revolving Credit Lender for purposes of this definition) and (b) aggregate unused Revolving Credit Commitments;  provided  that the unused Revolving Credit Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
 
“Reserves” means, as of the date of determination, such amounts as the Administrative Agent may from time to time establish and revise in good faith reducing the amount of the Revolving Credit Loans and L/C Obligations which would otherwise be available to the Borrowers under the lending formula provided for herein: (a) to reflect events, conditions, contingencies or risks which, as determined by the Administrative Agent in good faith, adversely affect, or would have a reasonable likelihood of adversely affecting, (i) the Collateral; (ii) the assets, business or prospects of any Loan Party, or (iii) the security interests and other rights of the Administrative Agent in the Collateral; or (b) to reflect the Administrative Agent’s good faith belief that any collateral report or financial information furnished by or on behalf of any Loan Party to the Administrative Agent is or may have been incomplete, inaccurate or misleading in any material respect; or (c) to reflect the L/C Obligations as provided in  Section 2.03  hereof; or (d) in respect of any state of facts which the Administrative Agent determines in good faith constitutes a Default or Event of Default; or (e) to reflect the Administrative Agent’s good faith estimate of the amount necessary to reflect changes in applicable currency exchange rates or currency exchange markets; or (f) to reflect the Dilution Reserve Percentage.  To the extent the Administrative Agent may revise the lending formulas used to determine any Borrowing Base or establish new criteria or revise existing criteria for Eligible Accounts so as to address any circumstances, condition, event or contingency in a manner satisfactory to the Administrative Agent, the Administrative Agent shall not establish a Reserve for the same purpose.  The amount of any Reserve established by the Administrative Agent shall have a reasonable relationship to
 
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the event, condition or other matter which is the basis for such as reserve as determined by the Administrative Agent in good faith.
 
“Responsible Officer” means the chief executive officer, president, vice president, chief financial officer, treasurer, assistant treasurer or controller of a Loan Party.  Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
 
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to any Person’s stockholders, partners or members (or the equivalent of any thereof), or any option, warrant or other right to acquire any such dividend or other distribution or payment.
 
“Revaluation Date” means, with respect to any Letter of Credit, each of the following:  (i) each date of issuance of a Letter of Credit denominated in Canadian Dollars, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any payment by the L/C Issuer under any Letter of Credit denominated in Canadian Dollars, and (iv) such additional dates as the Administrative Agent or the L/C Issuer shall determine or the Required Lenders shall require.
 
“Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Revolving Credit Lenders pursuant to  Section 2.01(b) .
 
“Revolving Credit Commitment” means, as to each Lender, its obligation to (a) make Revolving Credit Loans to the Borrower pursuant to  Section 2.01(b) , (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on  Schedule 2.01  under the caption “Revolving Credit Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
 
“Revolving Credit Facility” means, at any time, the aggregate amount of the Lenders’ Revolving Credit Commitments at such time.
 
“Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit Commitment at such time.
 
“Revolving Credit Loan” has the meaning specified in Section 2.01(a).
 
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“Revolving Credit Note” means a promissory note made by the Borrower in favor of a Revolving Credit Lender evidencing Revolving Credit Loans or Swing Line Loans, as the case may be, made by such Revolving Credit Lender, substantially in the form of  Exhibit B .
 
“Rolling Stock” means all trucks, trailers, tractors, service vehicles, automobiles and other registered mobile equipment.
 
“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto.
 
“Sale and Leaseback Transaction” has the meaning specified in Section 7.19.
 
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
 
“Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between any Loan Party and any Cash Management Bank.
 
“Secured Hedge Agreement” means any Swap Contract required or permitted under Article VI or VII that is entered into by and between any Loan Party and any Hedge Bank.
 
“Secured Parties” means, collectively, the Administrative Agent, the Lenders, the L/C Issuer, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to  Section 9.05 , and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents.
 
“Security Agreement” means the security agreement, in substantially the form of Exhibit G (together with each other security agreement and security agreement supplement delivered pursuant to  Section 6.12.
 
“Senior High Yield Debt” means the indebtedness arising under the Senior High Yield Notes.
 
“Senior High Yield Documents” means the documents executed or to be executed in connection with the Senior High Yield Indenture.
 
“Senior High Yield Notes” means the Initial Senior High Yield Notes and any additional Senior High Yield Notes now or hereafter issued pursuant to the Senior High Yield Indenture.
 
“Senior High Yield Indenture” means the indenture, now or hereafter entered into, between the Borrower and the trustee or other agent for the benefit of the holders of the Senior High Yield Notes, such indenture to be in a form reasonably satisfactory to the Administrative Agent and Required Lenders prior to the closing of such Senior High Yield Indenture, and to be subject to the Intercreditor Agreement.
 
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“Senior Secured Notes” means the $23,032,000 outstanding aggregate principal amount of 111/4% Senior Secured Notes issued on June 30, 2004 and outstanding on the date of this Agreement pursuant to the Senior Secured Notes Indenture.
 
“Senior Secured Notes Documents” means those documents executed in connection with the Senior Secured Notes Indenture.
 
“Senior Secured Notes Indenture” means the indenture, dated as of June 30, 2004, among the Borrower, the guarantors party thereto, and U.S. Bank National Association, as Trustee.
 
“Significant Subsidiary” with respect to any Person means (1) any Subsidiary of such Person that satisfies the criteria for a “significant subsidiary” as defined in Regulation S-X under the Securities Act as such Regulation is in effect on the Closing Date (assuming such Person is the registrant referred to in the definition of “significant subsidiary” in such Regulation) and (2) any Subsidiary that, when aggregated with all other Subsidiaries that are not otherwise Significant Subsidiaries and as to which any event described in clause (e), (f), (g) or (h) of  Section 8.1  has occurred and is continuing, would constitute a Significant Subsidiary under clause (1) of this definition; provided that each reference to “10 percent” in the criteria for a “significant subsidiary” as defined in Regulation S-X under the Securities Act as such Regulation is in effect on the Closing Date shall be replaced with the words “5 percent”.
 
“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business.  The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
 
“Spot Rate” has the meaning given such term in Section 1.07.
 
“Subordinated Indebtedness” means unsecured Indebtedness of the Borrower or its Subsidiaries that is by its terms expressly subordinated, on terms acceptable to the Administrative Agent and the Required Lenders, to the Discharge of ABL Obligations (as defined in the Intercreditor Agreement),  provided  that (i) the terms of such Indebtedness may allow for payment of regularly scheduled payments of interest so long as no Event of Default shall have occurred and be continuing at the time such payment is made, (ii) the final maturity of such Indebtedness is at least one year after the Maturity Date, (iii) the terms of such Indebtedness provide that no payments of principal shall or may occur prior to the Discharge of ABL Obligations (as defined in the Intercreditor Agreement), (iv) the covenants and events of default applicable thereto shall be at least as favorable to the Borrower and its Subsidiaries in all
 
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material respects as those contained herein, but in any event no financial maintenance covenants shall be applicable thereto and no such Indebtedness shall contain a cross-default to the Indebtedness under the Loan Documents for a non-payment default and (v) the remedies with respect thereto shall be subject to customary standstill provisions acceptable to the Administrative Agent; provided further  that the terms of such Indebtedness may provide for payments of principal or require the issuer thereof to redeem or repurchase such Indebtedness upon the occurrence of a change in control or asset sale occurring prior to maturity if such terms provide that the issuer thereof will not make any such payments or redeem or repurchase any such Indebtedness pursuant to such provisions prior to the Discharge of ABL Obligations (as defined in the Intercreditor Agreement).
 
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise specified, all references herein to a “ Subsidiary ” or to “ Subsidiaries ” shall refer to a Subsidiary or Subsidiaries of the Borrower.
 
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, 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 (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any 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 mark-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).
 
“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.
 
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“Swing Line Lender” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
 
“Swing Line Loan” has the meaning specified in Section 2.04(a).
 
“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, shall be substantially in the form of  Exhibit A-2 .
 
“Swing Line Sublimit” means an amount equal to the lesser of (a) $12,000,000 and (b) the Revolving Credit Facility.  The Swing Line Sublimit is part of, and not in addition to, the Revolving Credit Facility.
 
“Target Company” has the meaning specified in the Preliminary Statements.
 
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
 
“Threshold Amount” means $5,000,000.
 
“Total Revolving Credit Outstandings” means the aggregate Outstanding Amount of all Revolving Credit Loans, Swing Line Loans and L/C Obligations.
 
“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
 
“Trademark Security Agreement” means that certain Grant of Security Interest in Trademark Rights, to be dated within thirty (30) days of the Closing Date, by and among the applicable Loan Parties and the Administrative Agent, as amended, supplemented or otherwise modified from time to time (together with each other grant of security interest in trademark rights delivered pursuant to  Section 6.12  of this Agreement and  Section 8.13  of the Security Agreement).
 
“Transactions” means, collectively, (a) the consummation of the Acquisition, (b) the entering into by the Loan Parties of the Loan Documents and the Related Documents to which they are or are intended to be a party, and (c) the payment of the fees and expenses incurred in connection with the consummation of the foregoing.
 
“Type” means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.
 
“UCC” means the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “ UCC ” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
 
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“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
 
“United States” and “U.S.” mean the United States of America.
 
“Unpledged Cash” means any cash other than the Eligible Pledged Cash.
 
“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).
 
“Voting Stock” means with respect to any Person, (a) one (1) or more classes of Equity Interests of each Person having general voting powers to elect at least a majority of the board of directors, managers or trustees of such Person, irrespective of whether at the time Equity Interests of any other class or classes have or might have voting power by reason of the happening of any contingency, and (b) any Equity Interests of such Person convertible or exchangeable without restriction at the option of the holder thereof into Equity Interests of such Person described in clause (a) of this definition.
 
1.02.                    Other Interpretive Provisions.  With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
 
(a)                                 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, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) 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 or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) 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.
 
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(b)                                In the computation of periods of time from a specified date to a later specified date, the word “ from ” means “ from and including ;” the words “ to ” and “ until ” each mean “ to but excluding ;” and the word “ through ” means “ to and including .”
 
(c)                                 Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
 
1.03.                    Accounting Terms. (a) Generally.  All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements,  except  as otherwise specifically prescribed herein.
 
(b)                                Changes in GAAP.  If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders);  provided  that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
 
1.04.                    Rounding.  Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
 
1.05.                    Times of Day.  Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
 
1.06.                    Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
 
1.07.                    Currency Equivalents Generally.  Any amount specified in this Agreement (other than in Articles II, IX and X ) or any of the other Loan Documents to be in Dollars shall
 
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also include the equivalent of such amount in any currency other than Dollars, such equivalent amount thereof in the applicable currency to be determined by the Administrative Agent at such time on the basis of the Spot Rate (as defined below) for the purchase of such currency with Dollars.  For purposes of this  Section 1.07 , the “ Spot Rate ” for a currency means the rate determined by the Administrative Agent to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date of such determination;  provided  that the Administrative Agent may obtain such spot rate from another financial institution designated by the Administrative Agent if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency.
 
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
 
2.01.                    The Loans.  (a) The Revolving Credit Borrowings.  Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, a “ Revolving Credit Loan ”) to the Borrower from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Credit Commitment as set forth on  Schedule 2.01 ; provided, however, that after giving effect to any Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility or the Borrowing Base, and (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Credit Lender’s Revolving Credit Commitment.  Within the limits of each Revolving Credit Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this  Section 2.01(a) , prepay under  Section 2.05 , and reborrow under this  Section 2.01(a) .  Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
 
2.02.                    Borrowings, Conversions and Continuations of Loans. (a) Each Revolving Credit Borrowing, each conversion of Revolving Credit Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone.  Each such notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans.  Each telephonic notice by the Borrower pursuant to this  Section 2.02(a)  must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower.  Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.  Except as provided in  Sections 2.03(c) , each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.  Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower
 
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is requesting a Revolving Credit Borrowing, a conversion of Revolving Credit Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Revolving Credit Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto.  If the Borrower fails to specify a Type of Loan in a Committed Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Revolving Credit Loans shall be made as, or converted to, Base Rate Loans.  Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans.  If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.  Notwithstanding anything to the contrary herein, a Swing Line Loan may not be advanced or converted to a Eurodollar Rate Loan.
 
(b)                                Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage under the Revolving Credit Facility of the Revolving Credit Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in  Section 2.02(a) .  In the case of a Revolving Credit Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice.  Upon satisfaction of the applicable conditions set forth in  Section 4.02  (and, if such Borrowing is the initial Credit Extension,  Section 4.01 ), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower;  provided ,  however , that if, on the date a Committed Loan Notice with respect to a Revolving Credit Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Revolving Credit Borrowing,  first , shall be applied to the payment in full of any such L/C Borrowings, and  second , shall be made available to the Borrower as provided above.
 
(c)                                 Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan.  During the existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the Required Lenders.
 
(d)                                The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate.  At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.
 
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(e)                                 After giving effect to all Revolving Credit Borrowings, all conversions of Revolving Credit Loans from one Type to the other, and all continuations of Revolving Credit Loans as the same Type, there shall not be more than 5 Interest Periods in effect in respect of the Revolving Credit Facility.
 
2.03.                    Letters of Credit. (a)The Letter of Credit Commitment.  (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this  Section 2.03 , (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars or Canadian Dollars for the account of the Borrower, and to amend or extend Letters of Credit previously issued by it, in accordance with  Section 2.03(b) , and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower and any drawings thereunder; provided  that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility or the Borrowing Base, (y) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender,  plus  such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations,  plus  such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit.  Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.  All Existing Letters of Credit, which are set forth on  Schedule 2.03 , shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
 
(ii)                                 The L/C Issuer shall not issue any Letter of Credit if:
 
(A)                             subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
 
(B)                               the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.
 
(iii)                              The L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
 
(A)                             any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any
 
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Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;
 
(B)                               the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
 
(C)                               except as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit;
 
(D)                              such Letter of Credit is to be denominated in a currency other than Dollars or Canadian Dollars;
 
(E)                                such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
 
(F)                                a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Lender is at such time a Defaulting Lender or an Impacted Lender hereunder, unless the L/C Issuer has entered into satisfactory arrangements with the Borrower or such Lender to eliminate the L/C Issuer’s risk with respect to such Lender.
 
(iv)                             The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
 
(v)                                The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
 
(vi)                             The L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in  Article IX  with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in  Article IX  included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
 
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(b)                                Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.  (i)  Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower.  Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be.  In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer:  (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the L/C Issuer may require.  In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the L/C Issuer may require.  Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may require.
 
(i)                                    Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof.  Unless the L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in  Article IV  shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times  the amount of such Letter of Credit.
 
(ii)                                 If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”);  provided  that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension 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
 
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thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension.  Once an Auto-Extension Letter of Credit has been issued, the Revolving Credit Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date;  provided ,  however , that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of  Section 2.03(a)  or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Revolving Credit Lender or the Borrower that one or more of the applicable conditions specified in  Section 4.02  is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
 
(iii)                              Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
 
(c)                                 Drawings and Reimbursements; Funding of Participations.  (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the Administrative Agent thereof.  Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an “ Honor Date ”), the Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing.  If the Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Credit Lender of the Honor Date, the amount of the unreimbursed drawing (the “ Unreimbursed Amount ”), and the amount of such Revolving Credit Lender’s Applicable Percentage thereof.  In such event, the Borrower shall be deemed to have requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in  Section 2.02  for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Revolving Credit Commitments and the conditions set forth in  Section 4.02  (other than the delivery of a Committed Loan Notice).  Any notice given by the L/C Issuer or the Administrative Agent pursuant to this  Section 2.03(c)(i)  may be given by telephone if immediately confirmed in writing;  provided  that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
 
(ii)                                 Each Revolving Credit Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent for the account of the L/C Issuer, in Dollars, at the Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Dollar Equivalent of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent,
 
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whereupon, subject to the provisions of Section 2.03(c)(iii), each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit the funds so received to the L/C Issuer in Dollars.
 
(iii)                              With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in  Section 4.02  cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate.  In such event, each Revolving Credit Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to  Section 2.03(c)(ii)  shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this  Section 2.03 .
 
(iv)                             Until each Revolving Credit Lender funds its Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(c)  to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the L/C Issuer.
 
(v)                                Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this  Section 2.03(c) , shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing;  provided ,  however , that each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this  Section 2.03(c)  is subject to the conditions set forth in  Section 4.02  (other than delivery by the Borrower of a Committed Loan Notice ).  No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.
 
(vi)                             If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this  Section 2.03(c)  by the time specified in  Section 2.03(c)(ii) , the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the
 
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amount so paid shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be.  A certificate of the L/C Issuer submitted to any Revolving Credit Lender (through the Administrative Agent) with respect to any amounts owing under this Section 2.03(c)(vi)  shall be conclusive absent manifest error.
 
(d)                                Repayment of Participations.  (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Credit Lender such Lender’s L/C Advance in respect of such payment in accordance with  Section 2.03(c) , if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof in Dollars and in the same funds as those received by the Administrative Agent.
 
(ii)                                 If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i)  is required to be returned under any of the circumstances described in  Section 10.05  (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Credit Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent,  plus  interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
 
(e)                                 Obligations Absolute.  The obligation of the Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
 
(i)                                    any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;
 
(ii)                                 the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
 
(iii)                              any draft, demand, certificate or other document presented under such 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; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
 
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(iv)                             any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or
 
(v)                                any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or any of its Subsidiaries.
 
The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the L/C Issuer.  The Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
 
(f)                                   Role of L/C Issuer.  Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document.  None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Revolving Credit Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document.  The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit;  provided ,  however , that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement.  None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v) of  Section 2.03(e) ;  provided ,  however , that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or
 
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purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
 
(g)                                Cash Collateral.  Upon the request of the Administrative Agent, (i) if the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.   Sections 2.05  and  8.02(c)  set forth certain additional requirements to deliver Cash Collateral hereunder.  For purposes of this  Section 2.03 ,  Section 2.05  and  Section 8.02(c) , “ Cash Collateralize ” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer (which documents are hereby consented to by the Lenders).  Derivatives of such term have corresponding meanings.  The Borrower hereby grants to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing.  Cash Collateral shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America.  If at any time the Administrative Agent determines that any funds held as Cash Collateral are subject to any right or claim of any Person other than the Administrative Agent or that the total amount of such funds is less than the aggregate Outstanding Amount of all L/C Obligations, the Borrower will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (x) such aggregate Outstanding Amount over (y) the total amount of funds, if any, then held as Cash Collateral that the Administrative Agent determines to be free and clear of any such right and claim.  Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable Laws, to reimburse the L/C Issuer.
 
(h)                                Applicability of ISP and UCP.  Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance shall apply to each commercial Letter of Credit.
 
(i)                                    Letter of Credit Fees.  The Borrower shall pay to the Administrative Agent for the account of each Revolving Credit Lender in accordance with its Applicable Percentage a Letter of Credit fee (the “ Letter of Credit Fee ”) (i) for each commercial Letter of Credit equal to the Applicable Rate  times  the daily amount available to be drawn under such Letter of Credit and (ii) for each standby Letter of Credit equal to the Applicable Rate  times  the daily amount available to be drawn under such Letter of Credit.  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with  Section 1.06 .  Letter of Credit Fees shall be (i) due and payable on the first Business Day after the end of each month, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a monthly basis in arrears.  If there is any change in the Applicable
 
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Rate during any quarter, the daily amount available to be drawn under each standby Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.
 
(j)                                    Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer.  The Borrower shall pay directly to the L/C Issuer for its own account a fronting fee (i) with respect to each commercial Letter of Credit, at the rate specified in the Fee Letter between the Borrower and the Administrative Agent, computed on the amount of such Letter of Credit, and payable upon the issuance thereof, (ii) with respect to any amendment of a commercial Letter of Credit increasing the amount of such Letter of Credit, at a rate separately agreed between the Borrower and the L/C Issuer, computed on the amount of such increase, and payable upon the effectiveness of such amendment, and (iii) with respect to each standby Letter of Credit, at the rate per annum specified in such Fee Letter, computed on the daily amount available to be drawn under such Letter of Credit on a monthly basis in arrears.  Such fronting fee shall be due and payable on the first Business Day after the end of each month in respect of the most recently-ended month (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand.  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with  Section 1.06 .  In addition, the Borrower shall pay directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect.  Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
 
(k)                                 Conflict with Issuer Documents.  In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
 
(l)                                    Letters of Credit Issued for Subsidiaries.  Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all drawings under such Letter of Credit.  The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.
 
2.04.                    Swing Line Loans. (a) The Swing Line.  Subject to the terms and conditions set forth herein, the Swing Line Lender may, in its discretion, and in reliance upon the agreements of the other Lenders set forth in this  Section 2.04 , make loans (each such loan, a “ Swing Line Loan ”) to the Borrower from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Revolving Credit Commitment;  provided ,  however , that after giving effect to any Swing Line Loan, (i) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit Facility
 
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at such time, and (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender at such time,  plus  such Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations at such time,  plus  such Revolving Credit Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans at such time shall not exceed such Lender’s Revolving Credit Commitment, and  provided further  that the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan.  Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this  Section 2.04 , prepay under Section 2.05 , and reborrow under this  Section 2.04 .  Each Swing Line Loan shall bear interest only at a rate based on the Base Rate.  Immediately upon the making of a Swing Line Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Revolving Credit Lender’s Applicable Percentage  times  the amount of such Swing Line Loan.
 
(b)                                Borrowing Procedures.  Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by telephone.  Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day.  Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower.  Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.  Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Revolving Credit Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of  Section 2.04(a) , or (B) that one or more of the applicable conditions specified in  Article IV  is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender may, in its discretion, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower at its office by crediting the account of the Borrower on the books of the Swing Line Lender in immediately available funds.
 
(c)                                 Refinancing of Swing Line Loans.  (i)  The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Revolving Credit Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding.  Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of  Section 2.02 , without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Credit Facility and the conditions set forth in  Section 4.02 .  The Swing
 
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Line Lender shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent.  Each Revolving Credit Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent in immediately available funds for the account of the Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to  Section 2.04(c)(ii) , each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount.  The Administrative Agent shall remit the funds so received to the Swing Line Lender.
 
(i)                                    If for any reason any Swing Line Loan cannot be refinanced by such a Revolving Credit Borrowing in accordance with  Section 2.04(c)(i) , the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Revolving Credit Lenders fund its risk participation in the relevant Swing Line Loan and each Revolving Credit Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to  Section 2.04(c)(i)  shall be deemed payment in respect of such participation.
 
(ii)                                 If any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c)  by the time specified in  Section 2.04(c)(i) , the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or funded participation in the relevant Swing Line Loan, as the case may be.  A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
 
(iii)                              Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this  Section 2.04(c)  shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing;  provided ,  however , that each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this  Section 2.04(c)  is subject to the conditions set forth in  Section 4.02 .  No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.
 
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(d)                                Repayment of Participations.  (i)  At any time after any Revolving Credit Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Revolving Credit Lender its Applicable Percentage thereof in the same funds as those received by the Swing Line Lender.
 
(ii)                                 If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in  Section 10.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Revolving Credit Lender shall pay to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent,  plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate.  The Administrative Agent will make such demand upon the request of the Swing Line Lender.  The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
 
(e)                                 Interest for Account of Swing Line Lender.  The Swing Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans.  Until each Revolving Credit Lender funds its Base Rate Loan or risk participation pursuant to this  Section 2.04  to refinance such Revolving Credit Lender’s Applicable Revolving Credit Percentage of any Swing Line Loan, interest in respect of such Applicable Revolving Credit Percentage shall be solely for the account of the Swing Line Lender.
 
(f)                                   Payments Directly to Swing Line Lender.  The Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
 
2.05.                    Prepayments. (a) Optional.  (i) Subject to the last sentence of this Section 2.05(a)(i), the Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Revolving Credit Loans in whole or in part without premium or penalty;  provided  that (A) such notice must be received by the Administrative Agent not later than 11:00 a.m. (1) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of Base Rate Loans; (B) any prepayment of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding.  Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans.  The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage in respect of the Revolving Credit Facility).  If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to  Section 3.05 .
 
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(ii)                                 The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided  that (A) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount of $100,000.  Each such notice shall specify the date and amount of such prepayment.  If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
 
(b)                                Mandatory.
 
(i)                                    Each prepayment of Loans pursuant to the following provisions of this Section 2.05(b) shall be applied to the Revolving Credit Facility in the manner set forth in clause (iii) of this  Section 2.05(b) .
 
(ii)                                 If for any reason, including, without limitation, as a result of exchange rate fluctuations, the Total Revolving Credit Outstandings at any time exceed the lesser of the Borrowing Base at such time and the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.  The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
 
(iii)                              Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans,  second , shall be applied ratably to the outstanding Revolving Credit Loans, and,  third , shall be used to Cash Collateralize the remaining L/C Obligations.  Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
 
2.06.                    Termination or Reduction of Commitments. (a) Optional.  The Borrower may, upon notice to the Administrative Agent, terminate the Revolving Credit Facility, the Letter of Credit Sublimit or the Swing Line Sublimit, or from time to time permanently reduce the Revolving Credit Facility, the Letter of Credit Sublimit or the Swing Line Sublimit; provided  that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the Borrower shall not terminate or reduce (A) the Revolving Credit Facility if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Credit Outstandings would exceed the Revolving Credit Facility, (B) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, or (C) the Swing Line
 
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Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans would exceed the Swing Line Sublimit.
 
(b)                                Mandatory.  If after giving effect to any reduction or termination of Revolving Credit Commitments under this Section 2.06 , the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the Revolving Credit Facility at such time, the Letter of Credit Sublimit or the Swing Line Sublimit shall be automatically reduced by the amount of such excess.
 
(c)                                 Application of Commitment Reductions; Payment of Fees.  The Administrative Agent will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit, Swing Line Sublimit or the Revolving Credit Commitment under this  Section 2.06 .  Upon any reduction of the Revolving Credit Commitments, the Revolving Credit Commitment of each Lender shall be reduced by such Lender’s Applicable Percentage of such reduction amount.  All fees in respect of the Revolving Credit Facility accrued until the effective date of any termination of the Revolving Credit Facility shall be paid on the effective date of such termination.
 
2.07.                    Repayment of Loans. (a) Revolving Credit Loans.  The Borrower shall repay to the Lenders on the Maturity Date for the Revolving Credit Facility the aggregate principal amount of all Revolving Credit Loans outstanding on such date.
 
(b)                                Swing Line Loans.  The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date five Business Days after such Loan is made and (ii) the Maturity Date, provided that the Swing Line Lender may, in its sole discretion, require the Borrower to repay such Swing Line Loan more frequently by providing notice of such repayment date to the Borrower.
 
2.08.                    Interest. (a) Subject to the provisions of Section 2.08(b), (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period  plus  the Applicable Rate; (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate  plus  the Applicable Rate and, (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate  plus  the Applicable Rate.
 
(b)                                (i)                                    If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
 
(ii)                                 If any amount (other than principal of any Loan) payable by the Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
 
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(iii)                              Upon the request of the Required Lenders, while any Event of Default exists, the Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
 
(iv)                             Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
 
(c)                                 Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein.  Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
 
2.09.                    Fees.  In addition to certain fees described in Sections 2.03(i) and (j):
 
(a)                                 Unused Line Fee.  The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage, an unused line fee equal to the Applicable Fee Rate  times  the actual daily amount by which the Revolving Credit Facility exceeds the sum of (i) the Outstanding Amount of Revolving Credit Loans, and (ii) the Outstanding Amount of L/C Obligations.  The unused line fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in  Article IV  is not met, and shall be due and payable monthly in arrears on the last Business Day of each month, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period for the Revolving Credit Facility.  The unused line fee shall be calculated monthly in arrears, and if there is any change in the Applicable Fee Rate during any month the actual daily amount shall be computed and multiplied by the Applicable Fee Rate separately for each period during such month that such Applicable Fee Rate was in effect.
 
(b)                                Other Fees.  (i) The Borrower shall pay to the Arranger and the Administrative Agent for their own respective accounts fees in the amounts and at the times specified in the Fee Letter between the Borrower and the Administrative Agent.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
 
(ii)                                 The Borrower shall pay to the Administrative Agent for the accounts of the Lenders such fees as are set forth in the Fee Letters in the amounts and at the times so specified.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
 
2.10.                    Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate. (a) All computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year).  Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided  that any Loan that is repaid on the same day on which it is made shall, subject to  Section 2.12(a) , bear interest for one day.  Each determination
 
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by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
 
(b)                                If, as a result of any restatement of or other adjustment to the financial statements of the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the Consolidated Fixed Charge Coverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Consolidated Fixed Charge Coverage Ratio would have resulted in higher pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under Section  2.03(c)(iii) ,  2.03(i)  or  2.08(b)  or under Article VIII .  The Borrower’s obligations under this paragraph shall survive the termination of the Aggregate Commitments and the repayment of all other Obligations hereunder.
 
2.11.                    Evidence of Debt.  (a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon.  Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations.  In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.  Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records.  Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
 
(b)                                In addition to the accounts and records referred to in Section 2.11(a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans.  In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
 
2.12.                    Payments Generally; Administrative Agent’s Clawback. (a) General.  All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein, all
 
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payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein.  The Administrative Agent will promptly distribute to each Lender its Applicable Percentage in respect of the Revolving Credit Facility (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.  If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected on computing interest or fees, as the case may be.
 
(b)                                (i)                                    Funding by Lenders; Presumption by Administrative Agent.  Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with  Section 2.02  (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by  Section 2.02 ) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period.  If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing.  Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
 
(ii)                                 Payments by Borrower; Presumptions by Administrative Agent.  Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the L/C Issuer, as the case may be, the amount due.  In such event, if the Borrower has not in fact made such payment, then each of the Appropriate
 
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Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
 
A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.
 
(c)                                 Failure to Satisfy Conditions Precedent.  If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this  Article II , and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV  are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
 
(d)                                Obligations of Lenders Several.  The obligations of the Lenders hereunder to make Revolving Credit Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to  Section 10.04(c)  are several and not joint.  The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 10.04(c)  on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under  Section 10.04(c) .
 
(e)                                 Funding Source.  Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
 
(f)                                   Insufficient Funds.  If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i)  first , toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii)  second , toward payment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties.
 
2.13.                    Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of the Revolving Credit Facility due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Revolving Credit Facility due and payable to all
 
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Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Revolving Credit Facility due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (b) Obligations in respect of the Revolving Credit Facility owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Revolving Credit Facility owing (but not due and payable) to all Lenders hereunder and under the other Loan Parties at such time) of payment on account of the Obligations in respect of the Revolving Credit Facility owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations in respect of the Revolving Credit Facility then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be, provided that:
 
(i)                                    if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
 
(ii)                                 the provisions of this Section shall not be construed to apply to (A) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this Section shall apply).
 
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
 
2.14.                    Intentionally Omitted.
 
2.15.                    Increase in Revolving Credit Facility. (a) Request for Increase.  Provided there exists no Default, upon notice to the Administrative Agent (which shall promptly notify the Lenders), the Borrower may from time to time, request an increase in the Revolving Credit Facility by an amount (for all such requests) not exceeding $30,000,000;  provided  that (i) any such request for an increase shall be in a minimum amount of $5,000,000, and (ii) the Borrower may make a maximum of two such requests.  At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each
 
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Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders).
 
(b)                                Lender Elections to Increase.  Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Revolving Credit Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase.  Any Lender not responding within such time period shall be deemed to have declined to increase its Revolving Credit Commitment.
 
(c)                                 Notification by Administrative Agent; Additional Lenders.  The Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder.  To achieve the full amount of a requested increase, and subject to the approval of the Administrative Agent, the L/C Issuer and the Swing Line Lender (which approvals shall not be unreasonably withheld), the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel.
 
(d)                                Effective Date and Allocations.  If the Revolving Credit Facility is increased in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (the “ Revolving Credit Increase Effective Date ”) and the final allocation of such increase.  The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase and the Revolving Credit Increase Effective Date.
 
(e)                                 Conditions to Effectiveness of Increase.  As a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Revolving Credit Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) in the case of the Borrower, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in  Article V  and the other Loan Documents are true and correct on and as of the Revolving Credit Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this  Section 2.15 , the representations and warranties contained in subsections (a) and (b) of  Section 5.05  shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of  Section 6.01 , and (B) no Default exists.  The Borrower shall prepay any Revolving Credit Loans outstanding on the Revolving Credit Increase Effective Date (and pay any additional amounts required pursuant to  Section 3.05 ) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Revolving Credit Commitments under this Section.
 
(f)                                   Conflicting Provisions.  This Section shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
 
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ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
 
3.01.                    Taxes. (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.  (i) Any and all payments by or on account of any obligation of the Borrower hereunder or under any other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and without reduction or withholding for any Taxes.  If, however, applicable Laws require the Borrower or the Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld or deducted in accordance with such Laws as determined by the Borrower or the Administrative Agent, as the case may be, upon the basis of the information and documentation to be delivered pursuant to subsection (e) below.
 
(ii)                                 If the Borrower or the Administrative Agent shall be required by the Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or make such deductions as are determined by the Administrative Agent to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B) the Administrative Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by the Borrower shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to the sum it would have received had no such withholding or deduction been made.
 
(b)                                Payment of Other Taxes by the Borrower.  Without limiting the provisions of subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
 
(c)                                 Tax Indemnifications.  (i) Without limiting the provisions of subsection (a) or (b) above, the Borrower shall, and does hereby, indemnify the Administrative Agent, each Lender and the L/C Issuer, and shall make payment in respect thereof within 10 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) withheld or deducted by the Borrower or the Administrative Agent or paid by the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  The Borrower shall also, and does hereby, indemnify the Administrative Agent, and shall make payment in respect thereof within 10 days after demand therefor, for any amount which a Lender or the L/C Issuer for any reason fails to pay indefeasibly to the Administrative Agent as required by clause (ii) of this subsection.  A certificate as to the amount of any such payment or liability delivered to the Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the Administrative
 
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Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusive absent manifest error.
 
(ii)                                 Without limiting the provisions of subsection (a) or (b) above, each Lender and the L/C Issuer shall, and does hereby, indemnify the Borrower and the Administrative Agent, and shall make payment in respect thereof within 10 days after demand therefor, against any and all Taxes and any and all related losses, claims, liabilities, penalties, interest and expenses (including the fees, charges and disbursements of any counsel for the Borrower or the Administrative Agent) incurred by or asserted against the Borrower or the Administrative Agent by any Governmental Authority as a result of the failure by such Lender or the L/C Issuer, as the case may be, to deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered by such Lender or the L/C Issuer, as the case may be, to the Borrower or the Administrative Agent pursuant to subsection (e).  Each Lender and the L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or the L/C Issuer, as the case may be, under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (ii).  The agreements in this clause (ii) shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender or the L/C Issuer, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all other Obligations.
 
(d)                                Evidence of Payments.  Upon request by the Borrower or the Administrative Agent, as the case may be, after any payment of Taxes by the Borrower or the Administrative Agent to a Governmental Authority as provided in this Section 3.01 , the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.
 
(e)                                 Status of Lenders; Tax Documentation.
 
(i)                                    Each Lender shall deliver to the Borrower and to the Administrative Agent, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit the Borrower or the Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Borrower pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax purposes in the applicable jurisdiction.
 
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(ii)                                 Without limiting the generality of the foregoing, if the Borrower is resident for tax purposes in the United States,
 
(A)                             any Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding or information reporting requirements; and
 
(B)                               each Foreign Lender that is entitled under the Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Loan Document shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:
 
(I)                                   executed originals of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party,
 
(II)                               executed originals of Internal Revenue Service Form W-8ECI,
 
(III)                           executed originals of Internal Revenue Service Form W-8IMY and all required supporting documentation,
 
(IV)                           in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue Service Form W-8BEN, or
 
(V)                               executed originals of any other form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in United States Federal withholding tax together with such supplementary documentation as may be prescribed by applicable Laws to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made.
 
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(iii)                              Each Lender shall promptly (A) notify the Borrower and the Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement of applicable Laws of any jurisdiction that the Borrower or the Administrative Agent make any withholding or deduction for taxes from amounts payable to such Lender.
 
(f)                                   Treatment of Certain Refunds.  Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as the case may be.  If the Administrative Agent, any Lender or the L/C Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses incurred by the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund),  provided  that the Borrower, upon the request of the Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such Lender or the L/C Issuer in the event the Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such Governmental Authority.  This subsection shall not be construed to require the Administrative Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.
 
3.02.                    Illegality.  If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans.  Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
 
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3.03.                    Inability to Determine Rates.  If the Required Lenders determine that for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender.  Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice.  Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans in the amount specified therein.
 
3.04.                    Increased Costs; Reserves on Eurodollar Rate Loans. (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 Lender (except any reserve requirement contemplated by  Section 3.04(e) ) or the L/C Issuer;
 
(ii)                                 subject any Lender or the L/C Issuer 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 Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such Lender or the L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by  Section 3.01  and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or the L/C Issuer); or
 
(iii)                              impose on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar 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 Lender of making or maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer 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 Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
 
(b)                                Capital Requirements.  If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or
 
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such Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered.
 
(c)                                 Certificates for Reimbursement.  A certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error.  The Borrower shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
 
(d)                                Delay in Requests.  Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation,  provided  that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the L/C Issuer’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)                                 Reserves on Eurodollar Rate Loans.  The Borrower shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan,  provided  the Borrower shall have received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such additional interest from such Lender.  If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such additional interest shall be due and payable 10 days from receipt of such notice.
 
3.05.                    Compensation for Losses.  Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
 
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(a)                                 any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
 
(b)                                any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower; or
 
(c)                                 any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to  Section 10.13 ;
 
including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained.  The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
 
For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.
 
3.06.                    Mitigation Obligations; Replacement of Lenders. (a) Designation of a Different Lending Office. If any Lender requests compensation under  Section 3.04 , or the Borrower is required to pay any additional amount to any Lender, the L/C Issuer, or any Governmental Authority for the account of any Lender or the L/C Issuer pursuant to  Section 3.01 , or if any Lender gives a notice pursuant to  Section 3.02 , then such Lender or the L/C Issuer shall, as applicable, use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender or the L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to  Section 3.01  or  3.04 , as the case may be, in the future, or eliminate the need for the notice pursuant to  Section 3.02 , as applicable, and (ii) in each case, would not subject such Lender or the L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or the L/C Issuer in connection with any such designation or assignment.
 
(b)                                Replacement of Lenders.  If any Lender requests compensation under Section 3.04, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , the Borrower may replace such Lender in accordance with  Section 10.13 .
 
3.07.                    Survival.  All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and resignation of the Administrative Agent.
 
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ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
 
4.01.                    Conditions of Initial Credit Extension.  The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent, except to the extent such conditions are subject to the Post-Closing Agreement:
 
(a)                                 The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
 
(i)                                    executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
 
(ii)                                 a Note executed by the Borrower in favor of each Lender requesting a Note;
 
(iii)                              executed counterparts of each other Loan Document, together with:
 
(A)                             instruments evidencing the Pledged Debt accompanied by undated allonges executed in blank,
 
(B)                               proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
 
(C)                               evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby,
 
(D)                              evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, the Copyright Security Agreement, the Trademark Security Agreement and the Patent Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements);
 
(iv)                             the Perfection Certificate, duly executed by each Loan Party;
 
(v)                                such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this
 
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Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
 
(vi)                             such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and the Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
 
(vii)                          a favorable opinion of Davis, Malm & D’Agostine, P.C., counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in  Exhibit H-1  and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
 
(viii)                       a favorable opinion of Herrick, Feinstein LLP, New York counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in  Exhibit H-2  and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
 
(ix)                               a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Transactions (other than with regard to the Acquisition) (including, governmental, shareholder and third party consents such as clearance under the Hart-Scott Rodino Act) and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
 
(x)                                  a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a)  and  (b)  have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
 
(xi)                               a certificate signed by a Responsible Officer of the Borrower certifying that no material change has occurred since March 31, 2009, the date of the pro forma combined balance sheet of the Borrower and its Subsidiaries after giving effect to the Transactions which the Borrower previously provided to the Administrative Agent, with respect to either the Borrower or the Target Company or their respective Subsidiaries which would have a material adverse effect on the combined financial condition of the Borrower and the Target Company and their respective Subsidiaries as reflected in such pro forma combined balance sheet;
 
(xii)                            a business plan and budget of the Borrower and its Subsidiaries on a consolidated basis, including forecasts prepared by management of the Borrower for a
 
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period at least through the Maturity Date, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries, and prepared on a quarterly basis for the first year following the Closing Date;
 
(xiii)                         interim financial statements for the Borrower and the Target Company as of a date no more than 60 days prior to the Closing Date;
 
(xiv)                        a certificate attesting to the Solvency of each Loan Party before and after giving effect to the Transactions, from its chief financial officer;
 
(xv)                           evidence that all property and liability insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance and endorsements, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral;
 
(xvi)                        a Borrowing Base Certificate duly certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower relating to the initial Credit Extension;
 
(xvii)                     a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended June 30, 2009, signed by chief executive officer, chief financial officer, treasurer or controller of the Borrower;
 
(xviii)                  evidence that loans made pursuant to the Existing Credit Agreement by any lender other than those party to this Agreement have been paid off and that letters of credit issued under the Existing Credit Agreement by any letter of credit issuer other than those party to this Agreement have been replaced; and
 
(xix)                          such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
 
(b)                                (i) All fees required to be paid to the Administrative Agent and the Arranger on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
 
(c)                                 The Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings ( provided  that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and such counsel).
 
(d)                                The Administrative Agent, Lenders and Arranger shall have completed a due diligence investigation, including such collateral reviews, field examinations, audits, assessments or other reviews that the Administrative Agent deems appropriate, of the Borrower, the Target
 
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Company and their respective Subsidiaries in scope, and with results, satisfactory to the Administrative Agent, Lenders, and Arranger and shall have been given such access to the management, records, books of account, contracts and properties of the Borrower, the Target Company and their respective Subsidiaries and shall have received such financial, business and other information regarding each of the foregoing Persons and businesses as they shall have requested;
 
(e)                                 The Administrative Agent shall be satisfied with the Borrower’s corporate, capital and ownership structure.
 
(f)                                   The Administrative Agent and Arranger shall be satisfied that there has been no material adverse change in the business, assets, properties, liabilities, operations, condition or prospects of the Borrower or the Target Company.
 
(g)                                No action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality could, in the judgment of the Administrative Agent or Arranger, reasonably be expected to have a material adverse effect on the business, assets, properties, liabilities, operations, condition or prospects of the Borrower or the Target Company, or could impair the Borrower’s ability to perform any of its obligations under the Loan Documents, or could reasonably be expected to materially and adversely affect the Transactions.
 
(h)                                On the Closing Date, the Borrower shall discharge all of the $23,032,000 of outstanding Senior Secured Notes in accordance with the applicable provisions of the Senior Secured Notes Indenture.
 
Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this  Section 4.01 , each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
 
4.02.                    Conditions to all Credit Extensions.  The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Eurodollar Rate Loans) is subject to the following conditions precedent:
 
(a)                                 The representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this  Section 4.02 , the representations and warranties contained in  Sections 5.05(a)  and  (b)  shall be deemed to refer to the most recent statements furnished pursuant to  Sections 6.01(a)  and  (b) , respectively.
 
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(b)                                No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
 
(c)                                 The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
 
(d)                                The Borrowing Base exceeds the Outstanding Amount of the Revolving Credit Loans, Swing Line Loans and L/C Obligations at such time, after giving effect to such Credit Extension.
 
Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in  Sections 4.02(a) and (b)  have been satisfied on and as of the date of the applicable Credit Extension.
 
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
 
TheBorrower represents and warrants to the Administrative Agent and the Lenders that:
 
5.01.                    Existence, Qualification and Power.  Each Loan Party and each of its Subsidiaries (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) in the case of Loan Parties, execute, deliver and perform its obligations under the Loan Documents and Related Documents to which it is a party and consummate the Transactions, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
 
5.02.                    Authorization; No Contravention.  The execution, delivery and performance by each Loan Party of each Loan Document and Related Document to which such Person is or is to be a party have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law.
 
5.03.                    Governmental Authorization; Other Consents.  No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any
 
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other Loan Document or Related Document, or for the consummation of the Transactions, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral Documents (including, subject to Liens permitted by  Section 7.01  and the provisions of the Intercreditor Agreement, the first priority nature thereof) or (d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings listed on  Schedule 5.03 , all of which have been duly obtained, taken, given or made and are in full force and effect.
 
5.04.                    Binding Effect.  This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.  This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms.
 
5.05.                    Financial Statements; No Material Adverse Effect. (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.
 
(b)                                The unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated March 31, 2009, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.  Such unaudited consolidated balance sheet (including the notes thereto) sets forth all material indebtedness and other liabilities, direct or contingent, of the Borrower and its consolidated Subsidiaries as of the date of such financial statements, including liabilities for taxes, material commitments and Indebtedness.
 
(c)                                 Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
 
(d)                                The consolidated pro forma balance sheet of the Borrower and its Subsidiaries (including, for this purpose, the Target Company and its Subsidiaries) as at March 31, 2009, and the related consolidated pro forma statements of income of the Borrower and its Subsidiaries (including, for this purpose, the Target Company and its Subsidiaries) for the 12 months ended December 31, 2008 and the three months ended March 31, 2009, certified by the chief financial
 
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officer or treasurer of the Borrower, copies of which have been furnished to each Lender, fairly present the consolidated pro forma financial condition of the Borrower and its Subsidiaries as at such date and the consolidated pro forma results of operations of the Borrower and its Subsidiaries for such periods, in each case giving effect to the Transactions, all in accordance with GAAP.
 
(e)                                 The consolidated forecasted balance sheet, statements of income and cash flows of the Borrower and its Subsidiaries (including, for this purpose, the Target Company and its Subsidiaries) delivered pursuant to  Section 4.01  or Section 6.01(d)  were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Borrower’s best estimate of its future financial condition and performance.
 
5.06.                    Litigation.  There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement, any other Loan Document, any Related Document or the consummation of the Transactions, or (b) except as specifically disclosed in footnote (10), “Commitments and Contingencies” to the unaudited consolidated financial statements of the Borrower and its Subsidiaries dated March 31, 2009 described in Section 5.05(a)  (the “ Disclosed Litigation ”), either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect.
 
5.07.                    No Default.  Neither any Loan Party nor any Subsidiary thereof is in default under or with respect to, or a party to, any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
 
5.08.                    Ownership of Property; Liens; Investments. (a) Each Loan Party has good record and marketable title in fee simple to, or valid leasehold interests in, all Real Property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
 
(b)                                Other than Liens (i) to be discharged pursuant to Section 4.01(a)(iii)(D) or (ii) permitted by Section 7.01, Schedule 5.08(b)  sets forth a complete and accurate list of all Liens on the property or assets of each Loan Party, showing as of the date hereof the lienholder thereof, the principal amount of the obligations secured thereby and the property or assets of such Loan Party subject thereto.  The property of each Loan Party is subject to no Liens, other than Liens set forth on  Schedule 5.08(b) , and as otherwise permitted by  Section 7.01 .
 
(c)                                 Schedules 8(a) and 8(b) of the Perfection Certificate set forth a complete and accurate list of all Real Property owned by each Loan Party, showing as of the date hereof the street address, county or other relevant jurisdiction, state and record owner thereof.  Each Loan Party has good, marketable and insurable fee simple title to the Real Property owned by such
 
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Loan Party, free and clear of all Liens, other than Liens (i) to be discharged pursuant to Section 4.01(a)(iii)(D) or (ii) permitted by  Section 7.01 .
 
(d)                                (i)                                    Schedule 8(b) of the Perfection Certificate sets forth a complete and accurate list of all leases of Real Property under which any Loan Party is the lessee, showing as of the date hereof the street address, county or other relevant jurisdiction, state, lessor and lessee thereof.  Each such lease is the legal, valid and binding obligation of the lessor thereof, enforceable in accordance with its terms.
 
(ii)                                 Schedule 8(c) of the Perfection Certificate sets forth a complete and accurate list of all leases of Real Property under which any Loan Party is the lessor, showing as of the date hereof the street address, county or other relevant jurisdiction, state, lessor, lessee, expiration date and annual rental cost thereof.  Each such lease is the legal, valid and binding obligation of the lessee thereof, enforceable in accordance with its terms.
 
5.09.                    Environmental Compliance. (a)  The Loan Parties and their respective Subsidiaries conduct in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties, and as a result thereof the Borrower has reasonably concluded that, except as specifically disclosed in  Schedule 5.09 , such Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
 
(b)                                Except as otherwise set forth in Schedule 5.09, none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any such property; there are no and never have been any underground or above-ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any of its Subsidiaries or, to the best of the knowledge of the Loan Parties, on any property formerly owned or operated by any Loan Party or any of its Subsidiaries; there is no asbestos or asbestos-containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries.
 
(c)                                 Except as otherwise set forth on Schedule 5.09, neither any Loan Party nor any of its Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any Governmental Authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries have been disposed of in a manner not reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries.
 
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(d)                                The Loan Parties and their Subsidiaries have all licenses, permits, certificates, approvals or similar authorizations required to be obtained or filed in connection with the operations of the Loan Parties and their Subsidiaries under any Environmental Law and all such licenses, permits, certificates, approvals or similar authorizations are valid and in full force and effect.  No Liens have been recorded with respect to any Collateral under any Environmental Law.  There are no past or present occurrences, conditions, activities or events that could reasonably be expected to prevent the Borrower or any Subsidiary from compliance with, or result in liability under, any applicable Environmental Law.
 
5.10.                    Insurance.  The properties of the Borrower and its Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Borrower or the applicable Subsidiary operates.
 
5.11.                    Taxes.  The Borrower and its Subsidiaries have filed all Federal, state and other material tax returns and reports required to be filed.  All information in such tax returns and reports is complete and accurate in all material respects.  The Borrower and its Subsidiaries have paid all Federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP.  There is no proposed tax assessment against the Borrower or any Subsidiary that would, if made, have a Material Adverse Effect.  Neither any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement.
 
5.12.                    ERISA Compliance. (a) Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state Laws.  Each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the best knowledge of the Borrower, nothing has occurred which would prevent, or cause the loss of, such qualification.  The Borrower and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.
 
(b)                                There are no pending or, to the best knowledge of the Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.  There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.
 
(c)                                 (i)                                    No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects
 
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to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.
 
(d)                                With respect to each scheme or arrangement mandated by a government other than the United States (a “ Foreign Government Scheme or Arrangement ”) and with respect to each employee benefit plan maintained or contributed to by any Loan Party or any Subsidiary of any Loan Party that is not subject to United States law (a “ Foreign Plan ”):
 
(i)                                    any employer and employee contributions required by law or by the terms of any Foreign Government Scheme or Arrangement or any Foreign Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices;
 
(ii)                                 the fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the date hereof, with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to account for such obligations in accordance with applicable generally accepted accounting principles; and
 
(iii)                              each Foreign Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.
 
5.13.                    Subsidiaries; Equity Interests; Loan Parties.  As of the Closing Date (and after giving effect to the consummation of the Acquisition), no Loan Party has any Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13 , and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and non-assessable and are owned by a Loan Party (or a Subsidiary of a Loan Party) free and clear of all Liens except those permitted by  Section 7.01 .  No Loan Party has any equity investments in any other corporation or entity other than those specifically disclosed in Part (b) of  Schedule 5.13 .  All of the outstanding Equity Interests in the Borrower have been validly issued, are fully paid and non-assessable.  Set forth on  Schedule 1(a)  to the Perfection Certificate is a complete and accurate list of all Loan Parties, showing as of the Closing Date (as to each Loan Party) the jurisdiction of its incorporation, the address of its principal place of business and its U.S. taxpayer identification number.  The copy of the charter of each Loan Party and each amendment thereto provided pursuant to  Section 4.01(a)(vi)  is a true and correct copy of each such document, each of which is valid and in full force and effect.  No Equity Interests of any of the Subsidiaries of the Loan Parties are or may become required to be issued by reason of any options, warrants, rights to subscribe to, calls or commitments of any kind or nature and there are no contracts, commitments, understandings or arrangements by which any Subsidiary is or may become bound to issue additional shares of its Equity Interests or securities convertible or exchangeable for such shares.
 
5.14.                    Margin Regulations; Investment Company Act. (a) The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of
 
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purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.
 
(b)                                None of the Borrower, any Person Controlling the Borrower, or any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.
 
5.15.                    Disclosure.  The Borrower has disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.  No report, financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case 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, in the light of the circumstances under which they were made, not misleading;  provided  that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
 
5.16.                    Compliance with Laws.  Each Loan Party and each Subsidiary thereof is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
 
5.17.                    Intellectual Property; Licenses, Etc.  Each Loan Party and each of its Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “ IP Rights ”) that are reasonably necessary for the operation of their respective businesses, without conflict with the rights of any other Person, and  Schedules 14(a)  and  14(b)  to the Perfection Certificate set forth a complete and accurate list of all such IP Rights owned or used by each Loan Party.  To the best knowledge of the Borrower, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by any Loan Party or any of its Subsidiaries infringes upon any rights held by any other Person.  No claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the Borrower, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.   Schedules 14(a)  and  14(b)  to the Perfection Certificate set forth all of the agreements or other arrangements of the Loan Parties pursuant to which any Loan Party has a license or other right to use any trademarks, logos, designs, representations or other IP Rights owned by another Person as in effect on the Closing Date and the dates of the expiration of such agreements or other arrangements of any Loan Party as in effect on the Closing Date (collectively, together with such agreements or other arrangements as may be entered into by any Loan Party after the Closing Date, collectively, the
 
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“License Agreements” and individually, a “License Agreement”).  No trademark, servicemark, or other IP Right at any time used by any Loan Party which is owned by another Person, or owned by any Loan Party subject to any security interest, Lien, collateral assignment, pledge or other encumbrance in favor of any Person other than a Secured Party, is fixed to any Inventory, except to the extent permitted under the term of the License Agreements listed on  Schedule 14(a)  and 14(b)  to the Perfection Certificate.
 
5.18.                    Solvency.  The Borrower and each of its Significant Subsidiaries is, individually and together with its Subsidiaries on a consolidated basis, Solvent.
 
5.19.                    Casualty, Etc.  Neither the businesses nor the properties of any Loan Party or any of its Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
 
5.20.                    Labor Matters.  Set forth on Schedule 5.20 is a list (including dates of termination) of all collective bargaining agreements or Multiemployer Plans covering the employees of the Loan Parties as of the Closing Date. There is (i) no significant unfair labor practice complaint pending against any Loan Party or, to the best of Loan Parties’ knowledge, threatened against any Loan Party, before the National Labor Relations Board, (ii) no significant grievance or significant arbitration proceeding arising out of or under any collective bargaining agreement is pending on the Closing Date against any Loan Party or, to best of Loan Parties’ knowledge, threatened against any Loan Party, and (iii) no significant strike, labor dispute, slowdown or stoppage is pending against any Loan Party or, to the best of Loan Parties’ knowledge, threatened against any Loan Party, and (iv) no Loan Party has suffered any strikes, walkouts, work stoppages or other material labor difficulty within the last five years.
 
5.21.                    Collateral Documents.  The provisions of the Collateral Documents are effective to create in favor of the Administrative Agent for the benefit of the Secured Parties a legal, valid and enforceable first priority Lien (subject to Liens permitted by  Section 7.01  and the provisions of the Intercreditor Agreement) on all right, title and interest of the respective Loan Parties in the Collateral described therein.  Except for filings completed prior to the Closing Date and as contemplated hereby and by the Collateral Documents, no filing or other action will be necessary to perfect or protect such Liens.
 
5.22.                    Bank Accounts.  All of the deposit accounts, investment accounts or other accounts in the name of or used by the Loan Parties maintained at any bank or other financial institution as of the Closing Date are set forth in the Perfection Certificate.
 
5.23.                    Trade Relations.  There exists no actual or threatened termination, cancellation or limitation of, or any modification or change in, the business relationship between any Loan Party or any of its Subsidiaries and any customer or any group of customers whose purchases individually or in the aggregate are material to the business of any Loan Party or any of its Subsidiaries, or with any material supplier, and there exists no present condition or state of facts or circumstances which would materially affect adversely any Loan Party or any of its Subsidiaries or prevent any Loan Party or any of its Subsidiaries from conducting such business
 
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after the consummation of the transaction contemplated by this Agreement in substantially the same manner in which it has heretofore been conducted.
 
5.24.                    Restrictions on Subsidiaries.  Except for restrictions contained in this Agreement or any other agreement with respect to Indebtedness of Loan Parties permitted hereunder, there are no contractual or consensual restrictions on any Loan Party or any of their Subsidiaries which prohibit or otherwise restrict (a) the transfer of cash or other assets (i) between any Loan Party and any of its Subsidiaries or (ii) between any Subsidiaries of Loan Parties or (b) the ability of any Loan Party or any of their Subsidiaries to incur Indebtedness or grant security interests to the Secured Parties in the Collateral.
 
5.25.                    Material Contracts.  Schedule 5.25 sets forth all Material Contracts to which any Loan Party is a party or is bound as of the Closing Date.  To the extent requested by the Administrative Agent, the Borrower has delivered true, correct and complete copies of such Material Contracts to the Administrative Agent on or before the Closing Date. Except as would not have a Material Adverse Effect, the Loan Parties are not in breach of or in default under any Material Contract and have not received any notice of the intention of any other party thereto to terminate any Material Contract.
 
5.26.                    Payable Practices.  The Loan Parties have not made any material change in the historical accounts payable practices from those in effect immediately prior to the Closing Date.
 
5.27.                    Interdependent Businesses and Operations.  Each of the operations and businesses of each Loan Party is interdependent with the other Loan Parties and each Loan Party substantially relies on the other Loan Parties in its operations and business. Each Loan Party will derive substantial direct and indirect benefits from the Loans and Letters of Credit made and to be made by the Administrative Agent and Lenders hereunder. Each Loan Party’s access to the financing provided hereunder significantly enhances its own financial condition and business prospects and the Loan Parties acknowledge that the financing provided hereunder would only be available on a joint and several basis among all the Loan Parties.
 
5.28.                    Anti-Terrorism Law.
 
(a)                                 No Loan Party and, to the knowledge of the Loan Parties, none of their Affiliates is in violation of any laws relating to terrorism or money laundering (“ Anti-Terrorism Laws ”), including Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the “ Order ”), and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.
 
(b)                                No Loan Party and to the knowledge of the Loan Parties, no Affiliate or broker or other agent of any Loan Party acting or benefiting in any capacity in connection with the Loans, the or the Letters of Credit is any of the following:
 
(i)                                    a person that is listed in the annex to, or is otherwise subject to the provisions of, the Order;
 
(ii)                                 a person owned or controlled by, or acting for or on behalf of, any person that is listed in the annex to, or is otherwise subject to the provisions of, the Order;
 
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(iii)                              a person with which any Secured Party is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;
 
(iv)                             a person that commits, threatens or conspires to commit or supports “terrorism” as defined in the Order; or
 
(v)                                a person that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control (“ OFAC ”) at its official website or any replacement website or other replacement official publication of such list.
 
(c)                                 No Loan Party and, to the knowledge of the Loan Parties, no broker or other agent of any Loan Party acting in any capacity in connection with the Loans or the Letters of Credit (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any person described in paragraph (b) above, (ii) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Order, or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.
 
5.29.                    Properties.
 
(a)                                 Each Loan Party has good title to, or valid leasehold interests in, all its property material to its business, free and clear of all Liens except for Liens permitted by  Section 7.01  and minor irregularities or deficiencies in title that, individually or in the aggregate, do not interfere with its ability to conduct its business as currently conducted or to utilize such property for its intended purpose. The property of the Loan Parties, taken as a whole, (i) is in good operating order, condition and repair (ordinary wear and tear excepted), except to the extent that the failure to be in such condition could not reasonably be expected to result in a Material Adverse Effect, and (ii) constitutes all the property which is required for the business and operations of the Loan Parties as presently conducted.
 
(b)                                No Loan Party has received any notice of, nor has any knowledge of, the occurrence or pendency or contemplation of any Casualty Event affecting all or any portion of its property. No mortgage encumbers improved real property that is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards within the meaning of the National Flood Insurance Act of 1968 unless flood insurance available under such Act has been obtained in accordance with  Section 6.07 .
 
(c)                                 Each Loan Party owns or has rights to use all of the Collateral, other property and all rights with respect to any of the foregoing used in, necessary for or material to such Loan Party’s business as currently conducted. The use by each Loan Party of such Collateral, other property and all such rights with respect to the foregoing do not infringe on the rights of any person other than such infringement which could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. No claim has been made and remains outstanding that any Loan Party’s use of any Collateral or other property does or may
 
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violate the rights of any third party that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
 
5.30.                    Disclosure.  Neither this Agreement nor any other document, certificate or statement furnished to any Secured Party by or on behalf of any Loan Party in connection herewith contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements contained herein and therein not misleading, in light of the circumstances under which they were made;  provided  that to the extent this or any such document, certificate or statement was based upon or constitutes a forecast or projection, the Loan Parties represent only that they acted in good faith and utilized reasonable assumptions and due care in the preparation of such document, certificate or statement.
 
5.31.                    Survival of Warranties; Cumulative.  All representations and warranties contained in this Agreement or any of the other Loan Documents shall survive the execution and delivery of this Agreement and shall be deemed to have been made again to the Administrative Agent and the Lenders on the date of each additional borrowing or other credit accommodation hereunder and shall be conclusively presumed to have been relied on by the Administrative Agent and Lenders regardless of any investigation made or information possessed by the Administrative Agent or Lenders. The representations and warranties set forth herein shall be cumulative and in addition to any other representations or warranties which the Loan Parties shall now or hereafter give, or cause to be given, to the Administrative Agent.
 
ARTICLE VI.
AFFIRMATIVE COVENANTS
 
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower shall, and shall (except in the case of the covenants set forth in  Sections 6.01 ,  6.02 ,  6.03  and  6.11 ) cause each Subsidiary to:
 
6.01.                    Financial Statements.  Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
 
(a)                                 as soon as available, but in any event within 90 days after the end of each fiscal year of the Borrower, audited consolidated financial statements of the Borrower and its Subsidiaries (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, all in reasonable detail, fairly presenting the financial position and the results of the operations of the Borrower and its Subsidiaries as of the end of and for such fiscal year, together with the unqualified opinion of independent certified public accountants (and shall not be subject to any going concern or like qualification, exception or explanatory paragraph), which accountants shall be an independent accounting firm selected by the Borrower and reasonably acceptable to the Administrative Agent, that such financial statements have been prepared in accordance with GAAP, and present fairly the results of operations and financial condition of the Borrower and its Subsidiaries as of the end of and for the fiscal year then ended, together with a Compliance Certificate together with a schedule in form reasonably satisfactory to the Administrative Agent
 
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of the calculations used in determining whether the Borrower was in compliance with the covenants set forth in Section 7.11 of this Agreement as of the end of such fiscal year;
 
(b)                                as soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ended June 30, 2009), quarterly unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss, and statements of cash flow), all in reasonable detail, fairly presenting the financial position and the results of operations of the Borrower and its Subsidiaries as of the end of and through such fiscal quarter, certified to be correct by the chief financial officer of the Borrower, subject to normal year-end adjustments and accompanied by a Compliance Certificate together with a schedule in form reasonably satisfactory to the Administrative Agent of the calculations used in determining whether the Borrower was in compliance with the covenants set forth in  Section 7.11  of this Agreement as of the end of such fiscal quarter;
 
(c)                                 as soon as available, but in any event within 30 days after the end of each fiscal month of the first two months of each fiscal quarter, monthly unaudited consolidated financial statements (including in each case balance sheets, statements of income and loss and statements of cash flow), all in reasonable detail, fairly presenting the financial position and the results of the operations of the Borrower and its Subsidiaries as of the end of and through such fiscal month, certified to be correct by the chief financial officer of the Borrower, subject to normal year-end adjustments; and
 
(d)                                as soon as available, but in any event prior to January 31 of each fiscal year of the Borrower, a budget of the Borrower and its Subsidiaries in form reasonably satisfactory to the Administrative Agent (including a projected consolidated balance sheet, income statement and statement of cash flows) for such fiscal year, prepared in summary form and on a monthly basis, in each case with appropriate presentation and discussion of the principal assumptions upon which such budgets are based, accompanied by the statement of a financial officer of the Borrower to the effect that the budget is a reasonable estimate for the period covered thereby and such other budgets, forecasts, projections and other information respecting the Collateral and the business of the Loan Parties, as the Administrative Agent may, from time to time, reasonably request. The Administrative Agent and each Lender is hereby authorized to deliver a copy of any financial statement or any other information relating to the business of the Loan Parties to any court or other Governmental Authority or to any participant or assignee or prospective participant or assignee of any Lender. At any time that the Administrative Agent reasonably requests the Loan Parties shall deliver, at their expense, copies of the financial statements of the Loan Parties and any reports or management letters prepared by the accountants or auditors to the Loan Parties and to deliver to the Administrative Agent and to each Lender such information as may reasonably be requested.  The Loan Parties shall permit the Lenders, through the Administrative Agent or any of the Lenders’ other designated representatives, to visit and inspect any of the properties of the Loan Parties or any of their Subsidiaries, to examine the books of account of the Loan Parties and their Subsidiaries (and to make copies thereof and extracts therefrom), and to discuss the affairs, finances and accounts of the Loan Parties and their Subsidiaries with, and to be advised as to the same by, its and their officers, and to conduct examinations and verifications (whether by commercial finance examiners or independent
 
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auditors) of all components included in the Borrowing Base, all at such reasonable times and intervals as the Administrative Agent or any Lender may reasonably request.
 
As to any information contained in materials furnished pursuant to Section 6.02(c), the Borrower shall not be separately required to furnish such information under  Section 6.01(a)  or  (b)  above, but the foregoing shall not be in derogation of the obligation of the Borrower to furnish the information and materials described in  Sections 6.01(a)  and  (b)  above at the times specified therein.
 
6.02.                    Certificates; Other Information.  Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders:
 
(a)                                 concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal quarter ended June 30, 2009), (i) a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of the Borrower;
 
(b)                                promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of any Loan Party by independent accountants in connection with the accounts or books of any Loan Party or any of its Subsidiaries, or any audit of any of them;
 
(c)                                 promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, the National Association of Securities Dealers, Inc., or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;
 
(d)                                promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to  Section 6.01  or any other clause of this  Section 6.02 ;
 
(e)                                 upon request of the Administrative Agent, within fifteen (15) days of such request, a report summarizing the insurance coverage (specifying type, amount and carrier) in effect for each Loan Party and its Subsidiaries and containing such additional information as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably specify;
 
(f)                                   promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
 
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(g)                                not later than five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of all notices, requests and other documents (including amendments, waivers and other modifications) so received under or pursuant to any Related Document or instrument, indenture, loan or credit or similar agreement regarding or related to any breach or default by any party thereto or any other event that could materially impair the value of the interests or the rights of any Loan Party or otherwise have a Material Adverse Effect and, from time to time upon request by the Administrative Agent, such information and reports regarding the Related Documents and such instruments, indentures and loan and credit and similar agreements as the Administrative Agent may reasonably request;
 
(h)                                promptly after the assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by any Loan Party or any of its Subsidiaries with any Environmental Law or Environmental Permit that could (i) reasonably be expected to have a Material Adverse Effect or (ii) cause any property described in the Mortgages to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law;
 
(i)                                    upon request of the Administrative Agent, within fifteen (15) days of such request, (i) a report supplementing Schedules 8(a) ,  8(b)  and  8(c)  to the Perfection Certificate, including an identification of all owned and leased Real Property disposed of by any Loan Party or any Subsidiary thereof during such fiscal year, a list and description (including the street address, county or other relevant jurisdiction, state, record owner, book value thereof and, in the case of leases of property, lessor, lessee, expiration date and annual rental cost thereof) of all Real Property acquired or leased during such fiscal year and a description of such other changes in the information included in such Schedules as may be necessary for such Schedules to be accurate and complete; and (ii) a report supplementing  Schedules 14(a), 14(b), 14(c) and 14(d)  to the Perfection Certificate setting forth (A) a list of registration numbers for all patents, trademarks, service marks, trade names and copyrights awarded to any Loan Party thereof during such fiscal year and (B) a list of all patent applications, trademark applications, service mark applications, trade name applications and copyright applications submitted by any Loan Party or any Subsidiary thereof during such fiscal year and the status of each such application;
 
(j)                                    as soon as available, but in any event within 30 days after the end of each fiscal year of the Borrower, a report supplementing  Schedules 5.08(e)  and  5.13  containing a description of all changes in the information included in such Schedules as may be necessary for such Schedules to be accurate and complete, each such report to be signed by a Responsible Officer of the Borrower and to be in a form reasonably satisfactory to the Administrative Agent;
 
(k)                                 (i) so long as minimum Liquidity is at least $50,000,000, as soon as available, but in any event within 20 days after the end of each month, or (ii) if minimum Liquidity is less than $50,000,000, weekly or daily, in the sole discretion of the Administrative Agent, a Borrowing Base Certificate, duly certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower, together with such supporting detail and documentation as shall be requested by the Administrative Agent in its reasonable credit judgment;
 
(l)                                    on a regular basis as required the Administrative Agent, a schedule of sales made, credits issued and cash received;
 
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(m)                              upon request of the Administrative Agent, within fifteen (15) days of such request, agings of accounts payable (and including information indicating the status of payments to owners and lessors of the leased premises of such Loan Parties);
 
(n)                                as soon as possible after the end of each month (but in any event within fifteen (15) days after the end thereof), on a monthly basis or more frequently as the Administrative Agent may request, agings of Accounts (together with a reconciliation to the previous month’s aging and general ledger);
 
(o)                                upon the Administrative Agent’s request, (A) copies of customer statements and credit memos, remittance advices and reports, and copies of deposit slips and bank statements, (B) copies of shipping and delivery documents, (C) copies of purchase orders, invoices and delivery documents for Inventory and Equipment acquired by the Loan Parties, and (D) copies of Material Contracts entered into after the Closing Date; and
 
(p)                                such other reports as to the Collateral as the Administrative Agent or Required Lenders shall request from time to time; and
 
(q)                                promptly, such additional information regarding the business, financial, legal or corporate affairs of any Loan Party or any Subsidiary thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request.
 
Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on  Schedule 10.02 ; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent);  provided that:  (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions ( i.e. , soft copies) of such documents.  Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by  Section 6.02(a)  to the Administrative Agent.  Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
 
The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the L/C Issuer materials and/or information
 
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provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “ Platform ”) and (b) certain of the Lenders (each, a “ Public Lender ”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.  The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws ( provided ,  however , that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in  Section 10.07 ); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”
 
6.03.                    Notices.  Promptly notify the Administrative Agent and each Lender:
 
(a)                                 of the occurrence of any Default or Event of Default;
 
(b)                                of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (i) breach or non-performance of, or any default under, a Contractual Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between the Borrower or any Subsidiary and any Governmental Authority; (iii) the commencement of, or any material development in, any litigation or proceeding affecting the Borrower or any Subsidiary, including pursuant to any applicable Environmental Laws; (iv) any loss, damage, investigation, action, suit, proceeding or claim relating to the Collateral or any other property which is security for the Obligations or which would result in any material adverse change in any Loan Party’s business, properties, assets, goodwill or condition, financial or otherwise, (v) any Material Contract of any Loan Party being terminated or amended or any new Material Contract entered into (in which event the Loan Parties shall provide the Administrative Agent with a copy of such Material Contract), (vi) any order, judgment or decree in excess of $1,000,000 in any one case or in the aggregate shall have been entered against any Loan Party or any of its properties or assets, and (vii) any notification of violation of laws or regulations received by any Loan Party;
 
(c)                                 of the occurrence of any ERISA Event;
 
(d)                                of any material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary thereof, including any determination by the Borrower referred to in  Section 2.10(b) ; and
 
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(e)                                 of the (i) occurrence of any Disposition of property or assets for which the Borrower is required to make a mandatory prepayment pursuant to  Section 2.05(b)(ii) , (ii) occurrence of any sale of capital stock or other Equity Interests for which the Borrower is required to make a mandatory prepayment pursuant to  Section 2.05(b)(iii) , (iii) incurrence or issuance of any Indebtedness for which the Borrower is required to make a mandatory prepayment pursuant to  Section 2.05(b)(iv) , and (iv) receipt of any Extraordinary Receipt for which the Borrower is required to make a mandatory prepayment pursuant to Section 2.05(b)(v) .
 
Each notice pursuant to Section 6.03 (other than Section 6.03(e)) shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto.  Each notice pursuant to  Section 6.03(a)  shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.
 
6.04.                    Payment of Obligations.  Pay and discharge as the same shall become due and payable, all its obligations and liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Borrower or such Subsidiary; (b) all lawful claims which, if unpaid, would by law become a Lien upon its property; and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness.  The Loan Parties shall be liable for any tax or penalties withheld from or imposed on any Secured Party as a result of the financing arrangements provided for herein and the Loan Parties agree to indemnify and hold each Secured Party harmless with respect to the foregoing, and to repay to each Secured Party on demand the amount thereof, and until paid by the Loan Parties such amount shall be added and deemed part of the Obligations. The foregoing indemnity shall survive the payment of the Obligations and the termination or non-renewal of this Agreement.
 
6.05.                    Preservation of Existence, Etc.  (a)  Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by  Section 7.04  or  7.05 ; provided ,  however , that the Borrower may consummate the Acquisition; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.
 
6.06.                    Maintenance of Properties.  (a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation and maintenance of its facilities.
 
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6.07.                    Maintenance of Insurance.  Maintain with financially sound and reputable insurers insurance with respect to the Collateral against loss or damage and all other insurance of the kinds and in the amounts customarily insured against or carried by corporations of established reputation engaged in the same or similar businesses and similarly situated. Said policies of insurance shall be satisfactory to the Administrative Agent as to form, amount and insurer. The Loan Parties shall furnish certificates, policies or endorsements to the Administrative Agent as such Administrative Agent shall require as proof of such insurance, and, if the Loan Parties fail to do so, the Administrative Agent is authorized, but not required, to obtain such insurance at the expense of the Loan Parties. All policies shall provide for at least thirty (30) days prior written notice to the Administrative Agent of any cancellation or reduction of coverage and that the Administrative Agent may act as attorney for the Loan Parties in obtaining, and at any time a Default or an Event of Default exists or has occurred and is continuing, adjusting, settling, amending and canceling such insurance.  The Loan Parties shall cause the Administrative Agent to be named as a loss payee and an additional insured with respect to the Collateral (without any liability for any premiums) under such insurance policies and the Loan Parties shall obtain non-contributory lender’s loss payable endorsements to all insurance policies in form and substance satisfactory to the Administrative Agent. Such lender’s loss payable endorsements shall specify that the proceeds of such insurance shall be payable to the Administrative Agent as its interests may appear and further specify that the Administrative Agent shall be paid regardless of any act or omission by a Loan Party or any of its Affiliates. At its option, the Administrative Agent may apply any insurance proceeds received by the Administrative Agent at any time to the cost of repairs or replacement of Collateral and/or to payment of the Obligations, whether or not then due, in any order and in such manner as such the Administrative Agent may determine or hold such proceeds as cash collateral for the Obligations.
 
6.08.                    Compliance with Laws, Immediate Notice in respect of Hazardous Material.  (a) Comply in all material respects with all laws, rules, regulations, licenses, permits, approvals and orders applicable to it and duly observe all requirements of any foreign, Federal, State, or local Governmental Authority, including ERISA, the Code, the Fair Labor Standards Act of 1938, as amended, and all Environmental Laws if the failure to so comply could result in the imposition of material fines or penalties or result in the revocation or termination of any material license, permit, order or approval of any Governmental Authority or could otherwise materially and adversely affect the business, assets or prospects of the Loan Parties on a consolidated basis; and
 
(b)                                Give written notice to each Administrative Agent immediately upon any Loan Party’s receipt of any notice of, or any Loan Party’s otherwise obtaining knowledge of, any of the following which could result in the imposition of material fines or penalties or the revocation or termination of any material license, permit, order or approval of any Governmental Authority or could otherwise materially and adversely affect the business, assets or prospects of Credit Parties on a consolidated basis, (i) the occurrence of any event involving the release, spill or discharge, threatened or actual, of any Hazardous Material or (ii) any investigation, proceeding, complaint, order, directive, claims, citation or notice with respect to: (A) any non-compliance with, violation of or liability under any applicable Environmental Law by any Loan Party or (B) the release, spill or discharge, threatened or actual, of any Hazardous Material. The Loan Parties shall take prompt and appropriate action to respond to any such noncompliance or potential
 
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liability with any Environmental Laws and shall regularly report to the Administrative Agent on such response. Copies of all environmental surveys, audits, assessments, feasibility studies, results of remedial investigations and other related information reasonably requested by the Administrative Agent shall be promptly furnished, or caused to be furnished, by the Loan Parties to the Administrative Agent.
 
6.09.                    Books and Records.  (a) Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Borrower or such Subsidiary, as the case may be; and (b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over the Borrower or such Subsidiary, as the case may be.
 
6.10.                    Inspection Rights.  Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of the Borrower and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower;  provided ,  however , that when an Event of Default exists the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and without advance notice.
 
6.11.                    Use of Proceeds.  Use the proceeds of the Credit Extensions for general corporate purposes and to finance ongoing working capital needs not in contravention of any Law or of any Loan Document.
 
6.12.                    Covenant to Guarantee Obligations and Give Security.  (a) Upon the formation or acquisition of any new direct or indirect Subsidiary (other than any CFC or a Subsidiary that is held directly or indirectly by a CFC) by any Loan Party, then the Borrower shall, at the Borrower’s expense (and subject to the terms of the Intercreditor Agreement):
 
(i)                                    within three (3) Business Days after such formation or acquisition, cause such Subsidiary, and cause each direct and indirect parent of such Subsidiary (if it has not already done so), to duly execute and deliver to the Administrative Agent a guaranty or guaranty supplement, in form and substance satisfactory to the Administrative Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents,
 
(ii)                                 within three (3) Business Days after such formation or acquisition, furnish to the Administrative Agent a description of the real and personal properties of such Subsidiary, in detail satisfactory to the Administrative Agent,
 
(iii)                              within three (3) Business Days after such formation or acquisition, cause such Subsidiary and each direct and indirect parent of such Subsidiary (if it has not already done so) to duly execute and deliver to the Administrative Agent a security agreement, copyright security agreement, patent security agreement and trademark
 
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security agreement, as applicable, in form and substance satisfactory to the Administrative Agent, securing the Loan Parties’ obligations under the Loan Documents,
 
(iv)                             within three (3) Business Days after such formation or acquisition, cause such Subsidiary and each direct and indirect parent of such Subsidiary (if it has not already done so) to take whatever action (including the filing of Uniform Commercial Code financing statements) may be necessary or advisable in the opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid and subsisting Liens on the personal property subject to the Collateral Documents delivered pursuant to this  Section 6.12 , enforceable against all third parties in accordance with their terms, and
 
(v)                                within three (3) Business Days after such formation or acquisition, deliver to the Administrative Agent, upon the request of the Administrative Agent in its sole discretion, a signed copy of a favorable opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties acceptable to the Administrative Agent as to the matters contained in clauses (i), (iii) and (iv) above, and as to such other matters as the Administrative Agent may reasonably request.
 
(b)                                If the Loan Parties are required by Section 6.25 to provide to the Administrative Agent, on behalf of the Secured Parties, Mortgages on their respective Mortgage Properties and any Loan Party shall thereafter acquire any additional Mortgage Property, then the Borrower shall, at the Borrower’s expense (and subject to the terms of the Intercreditor Agreement), within three Business Days after the acquisition of such Mortgage Property, deliver to the Administrative Agent with respect to such Mortgage Property, a Mortgage, a Mortgage Policy and the other documents described in  Section 6.25  with respect to the Mortgage Properties for which such documents are required to be delivered under such Section.
 
(c)                                 At any time upon request of the Administrative Agent, promptly execute and deliver any and all further instruments and documents and take all such other action as the Administrative Agent may deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens of, such guaranties, deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages, leasehold deeds of trust, supplements to Collateral Documents and other security agreements.  All such actions in this  Section 6.12  shall be taken subject to the Intercreditor Agreement.
 
6.13.                    Compliance with Environmental Laws.  Comply, and cause all lessees and other Persons operating or occupying its properties to comply, in all material respects, with all applicable Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits necessary for its operations and properties; and conduct any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to remove and clean up all Hazardous Materials from any of its properties, in accordance with the requirements of all Environmental Laws;  provided , however , that neither the Borrower nor any of its Subsidiaries shall be required to undertake any such cleanup, removal, remedial or other action to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with GAAP.
 
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6.14.                    Preparation of Environmental Reports, Environmental Indemnity.  Whenever the Administrative Agent reasonably determines that there is non-compliance, or any condition which requires any action by or on behalf of the Loan Parties in order to avoid any non-compliance with or liability under any Environmental Law which, in either case, could reasonably be expected to result in aggregate Environmental Liabilities of $30,000,000 in excess of reserves for such liabilities then maintained by the Borrower and its Subsidiaries, within 60 days after the Administrative Agent’s request and at the Loan Parties’ expense: (i) cause an independent environmental consultant acceptable to the Administrative Agent to conduct such assessments and tests of the property and/or facility where the Loan Parties’ non-compliance or alleged non-compliance has occurred or conditions exist as deemed necessary to evaluate the nature, extent and costs to address the matter and prepare and deliver to such Administrative Agent a report setting forth the results and a proposed plan for response or corrective action, and an estimate of the costs thereof; (ii) provide to such Administrative Agent a supplemental report whenever the scope of the matter, or the Loan Parties’ response thereto or the estimated costs thereof, shall change in any material respect; and (iii) cause any Subsidiary that owns any property described in such request to grant at the time of such request to the Administrative Agent, the Lenders, such firm and any agents or representatives thereof an irrevocable non-exclusive license, subject to the rights of tenants, to enter onto their respective properties to undertake such an assessment;  provided  that without limiting the generality of the foregoing, if the Administrative Agent determines at any time that a material risk exists that any such report will not be provided within the time referred to above, the Administrative Agent may retain an environmental consulting firm to prepare such report at the expense of the Borrower.
 
(b)                                Indemnify and hold harmless each Secured Party, and each of their respective directors, officers, employees, agents, invitees, representatives, successors and assigns, from and against any and all losses, claims, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees and legal expenses) arising out of or attributable to the use, generation, manufacture, handling, recycling, storage, treatment, release, threatened release, spill, discharge, disposal or presence of a Hazardous Material, including the costs of any required or necessary repair, cleanup or other remedial work, on, at, under or from current or former facility or property owned or operated by the Loan Parties and the preparation and implementation of any closure, remedial or other required plans unless and only if the result of the gross negligence or willful misconduct of the indemnified party. This indemnification shall survive the payment of the Obligations and the termination or non-renewal of this Agreement.
 
6.15.                    Compliance with ERISA.  Shall and shall cause each of their ERISA Affiliates to: (i) maintain each Plan in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal and State law; (ii) cause each Plan which is qualified under Section 401(a) of the Code to maintain such qualification; (iii) not terminate any of such Plans so as to incur any liability to the Pension Benefit Guaranty Corporation; (iv) not allow or suffer to exist any prohibited transaction involving any of such Plans or any trust created thereunder which would subject Credit Party or such ERISA Affiliate to a tax or penalty or other liability on prohibited transactions imposed under Section 4975 of the Code or ERISA; (v) make all required contributions to any Plan or Multiemployer Plan which it is obligated to pay under Section 302 of ERISA, Section 412 of the Code or the terms of such Plan or an applicable collective bargaining agreement; (vi) not allow or suffer to exist any accumulated funding deficiency, whether or not waived, with respect to any such Plan; and (vii) not allow or suffer to exist any
 
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occurrence of a reportable event or any other event or condition which presents a material risk of termination by the Pension Benefit Guaranty Corporation of any such Plan, which termination could result in any liability to the Pension Benefit Guaranty Corporation.
 
6.16.                    Further Assurances.  Promptly upon request by the Administrative Agent, or any Lender through the Administrative Agent, (a) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable law, subject any Loan Party’s or any of its Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Collateral Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so.
 
6.17.                    Compliance with Terms of Leaseholds.  Make all payments and otherwise perform all obligations in respect of all leases of Real Property to which the Borrower or any of its Subsidiaries is a party, keep such leases in full force and effect and not allow such leases to lapse or be terminated or any rights to renew such leases to be forfeited or cancelled, notify the Administrative Agent of any default by any party with respect to such leases and cooperate with the Administrative Agent in all respects to cure any such default, and cause each of its Subsidiaries to do so, except, in any case, where the failure to do so, either individually or in the aggregate, could not be reasonably likely to have a Material Adverse Effect.
 
6.18.                    License Agreements.  (a) (i) Promptly and faithfully observe and perform all of the material terms, covenants, conditions and provisions of the material License Agreements to be observed and performed by it, at the times set forth therein, if any, (ii) not do, permit, suffer or refrain from doing anything that could reasonably be expected to result in a default under or breach of any of the terms of any material License Agreement, (iii) not cancel, surrender, modify, amend, waive or release any material License Agreement in any material respect or any term, provision or right of the licensee thereunder in any material respect, or consent to or permit to occur any of the foregoing; except that, subject to  Section 6.19(b) , the Loan Parties and any of their Subsidiaries may cancel, surrender or release any material License Agreement in the ordinary course of the business of such Loan Party or Subsidiary;  provided  that the Loan Parties shall give the Administrative Agent not less than thirty (30) days prior written notice of their intention to so cancel, surrender and release any such material License Agreement, (iv) give the Administrative Agent prompt written notice of any material License Agreement entered into by any Loan Party after the Closing Date, together with a true, correct and complete copy thereof and such other information with respect thereto as the Administrative Agent may request, (v) give the Administrative Agent prompt written notice of any material breach of any obligation, or any default, by any party under any material License Agreement, and deliver to the
 
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Administrative Agent (promptly upon the receipt thereof by Loan Party in the case of a notice to any Loan Party, and concurrently with the sending thereof in the case of a notice from any Loan Party) a copy of each notice of default and every other notice and other communication received or delivered by any Loan Party in connection with any material License Agreement which relates to the right of a Loan Party to continue to use the property subject to such License Agreement, and (vi) furnish to the Administrative Agent, promptly upon the request of the Administrative Agent, such information and evidence as the Administrative Agent may require from time to time concerning the observance, performance and compliance by any Credit Party or the other party or parties thereto with the terms, covenants or provisions of any material License Agreement.
 
(b)                                Either exercise any option to renew or extend the term of each material License Agreement in such manner as will cause the term of such material License Agreement to be effectively renewed or extended for the period provided by such option and give prompt written notice thereof to the Administrative Agent or give the Administrative Agent prior written notice that Loan Parties do not intend to renew or extend the term of any such material License Agreement or that the term thereof shall otherwise be expiring, not less than sixty (60) days prior to the date of any such non-renewal or expiration. In the event of the failure of the Loan Parties to extend or renew any material License Agreement, the Administrative Agent shall have, and is hereby granted, the irrevocable right and authority, at its option, to renew or extend the term of such material License Agreement, whether in its own name and behalf, or in the name and behalf of a designee or nominee of the Administrative Agent or in the name and behalf of the Loan Party, as the Administrative Agent shall determine at any time that an Event of Default shall exist or have occurred and be continuing. The Administrative Agent may, but shall not be required to, perform any or all of such obligations of any Loan Party under any of the License Agreements, including, but not limited to, the payment of any or all sums due from Loan Party thereunder. Any sums so paid by the Administrative Agent shall constitute part of the Obligations.
 
6.19.                    Material Contracts.  Perform and observe all the terms and provisions of each Material Contract to be performed or observed by it, maintain each such Material Contract in full force and effect, enforce each such Material Contract in accordance with its terms, take all such action to such end as may be from time to time requested by the Administrative Agent and, upon request of the Administrative Agent, make to each other party to each such Material Contract such demands and requests for information and reports or for action as any Loan Party or any of its Subsidiaries is entitled to make under such Material Contract, and cause each of its Subsidiaries to do so.
 
6.20.                    Costs and Expenses.  Pay to the Administrative Agent on demand all costs, expenses, filing fees and taxes paid or payable in connection with the preparation, negotiation, execution, delivery, recording, administration, collection, liquidation, enforcement and defense of the applicable Obligations, Secured Parties’ rights in the Collateral, this Agreement, the other Loan Documents and all other documents related hereto or thereto, including any amendments, supplements or consents which may hereafter be contemplated (whether or not executed) or entered into in respect hereof and thereof, including: (a) all costs and expenses of filing or recording (including Uniform Commercial Code financing statement filing taxes and fees, documentary taxes, intangibles taxes and mortgage recording taxes and fees, if applicable); (b)
 
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costs and expenses and fees for due diligence, insurance premiums, environmental audits, surveys, assessments, engineering reports and inspections, appraisal fees and search fees, costs and expenses of remitting loan proceeds, collecting checks and other items of payment, and establishing and maintaining blocked accounts, together with the Administrative Agent’s customary charges and fees with respect thereto; (c) charges, fees or expenses charged by any bank or issuer in connection with the L/C Obligations; (d) costs and expenses of preserving and protecting the Collateral; (e) costs and expenses paid or incurred by Secured Parties in connection with obtaining payment of the Obligations, enforcing the security interests and Liens of the Administrative Agent, selling or otherwise realizing upon the Collateral, and otherwise enforcing the provisions of this Agreement and the other Loan Documents or defending any claims made or threatened against the Administrative Agent or any Lender arising out of the transactions contemplated hereby and thereby (including preparations for and consultations concerning any such matters); (f) all out-of-pocket expenses and costs heretofore and from time to time hereafter incurred by the Administrative Agent during the course of periodic field examinations of the Collateral and the Loan Parties’ operations, plus a per diem charge at the rate of $750 per person per day for the Administrative Agent’s examiners in the field and office; and (g) the fees and disbursements of counsel (including legal assistants) to the Administrative Agent and, if an Event of Default under  Section 8.01 of this Agreement has occurred and is continuing, Lenders, in connection with any of the foregoing.
 
6.21.                    Cash Collateral Accounts.  Maintain, and cause each of the other Loan Parties to maintain, all Cash Collateral Accounts with Bank of America or another commercial bank approved by the Administrative Agent, which has accepted the assignment of such accounts to the Administrative Agent for the benefit of the Secured Parties pursuant to the terms of the Security Agreement.
 
6.22.                    Cash Management Arrangements.  For the purposes of assuring the Administrative Agent’s and Secured Parties’ first priority, subject to Liens permitted by  Section 7.01  and the provisions of the Intercreditor Agreement, secured position in proceeds of the Collateral, maintain, and cause each of the other Loan Parties to maintain the Administrative Agent as the Loan Parties’ principal depository bank for the maintenance of operating and deposit accounts, lockbox administration, funds transfer, information reporting services and other treasury management services, and further, to cause all proceeds of Accounts Collateral to be deposited in deposit accounts subject to springing Control Agreements, provided that the Administrative Agent would not exercise its rights of dominion over such deposits accounts unless excess cash on hand falls below $50,000,000 or upon any Event of Default under this Agreement;  provided ,  that  deposit accounts exclusively used for funding zero balance disbursement deposit accounts in respect of payroll, payroll taxes and other employee wage and benefit payments and other deposit accounts the average daily balance of which do not contain more than $1,000,000 in the aggregate at any time, need not be subject to such a Control Agreement.
 
6.23.                    Information Regarding Collateral.
 
(a)                                 Concurrently with the delivery of financial statements pursuant to Section 6.01 hereof, deliver to the Administrative Agent a Perfection Certificate supplement, and a certificate of a financial officer and the chief legal officer of the Borrower certifying that all UCC
 
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financing statements (including fixture filings, as applicable) or other appropriate filings, recordings or registrations, including all refilings, rerecordings and reregistrations, containing a description of the Collateral have been filed of record in each governmental, municipal or other appropriate office in each jurisdiction necessary to protect and perfect the security interests and Liens under the Collateral Documents for a period of not less than 18 months after the date of such certificate (except as noted therein with respect to any continuation statements to be filed within such period).
 
6.24.                    Anti-Terrorism Law; Anti-Money Laundering.
 
(a)                                 Not, directly or indirectly, (i) knowingly conduct any business or engage in making or receiving any contribution of funds, goods or services to or for the benefit of any person described in  Section 5.28 , (ii) knowingly deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to the Order or any other Anti-Terrorism Law or (iii) knowingly engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law (and the Loan Parties shall deliver to the Lenders any certification or other evidence requested from time to time by any Lender in its reasonable discretion, confirming the Loan Parties’ compliance with this  Section 6.24 ); and
 
(b)                                Not cause or permit any of the funds of such Loan Party that are used to repay Obligations to be derived from any unlawful activity with the result that the making of the Loans would be in violation of law.
 
6.25.                    Mortgages.
 
(a)                                 Enter into any mortgage, deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages and leasehold deeds of trust or any other document (each such document, a “ Mortgage ”) to secure a Lien with respect to any Mortgage Property in favor of the Administrative Agent on behalf of the Secured Parties and for which a Mortgage is provided as part of the Senior High Yield Debt Documents or the Other Secured Debt Documents in connection with the incurrence of the Senior High Yield Debt or Other Secured Debt.  In the event the Borrower or any of the other Loan Parties do not enter into or incur the Senior High Yield Debt or Other Secured Debt, the Borrower shall not, and shall not permit any of the other Loan Parties to, enter into any mortgage, deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages and leasehold deeds of trust or any other document to secure a Lien with respect to real property in favor of any other party without the prior written consent of the Administrative Agent.
 
(b)                                If any Loan Party shall become required to deliver to the Administrative Agent, for the benefit of the Secured Parties, any Mortgage on a Mortgage Property in accordance with  Section 6.25(a) , then the Borrower shall, at the Borrower’s expense (and subject to the terms of the Intercreditor Agreement), concurrently with the delivery of such Mortgage:
 
(i)                                    Furnish to the Administrative Agent a description of such Mortgage Property in detail satisfactory to the Administrative Agent,
 
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(ii)                                 Cause the applicable Loan Party to duly execute and deliver to the Administrative Agent, in addition to the Mortgage, supplements to the Collateral Documents and security agreements, as specified by and in form and substance satisfactory to the Administrative Agent, securing payment of all the Obligations under the Loan Documents and constituting Liens on such Mortgage Property,
 
(iii)                              Cause the applicable Loan Party to take, whatever action (including the recording of mortgages, the filing of Uniform Commercial Code financing statements, the giving of notices and the endorsement of notices on title documents) may be necessary or advisable in the opinion of the Administrative Agent to vest in the Administrative Agent (or in any representative of the Administrative Agent designated by it) valid and subsisting Liens on such Mortgage Property enforceable against all third parties in accordance with their terms,
 
(iv)                             Deliver to the Administrative Agent (or any representative of the Administrative Agent designated by it) a mortgage title insurance policy (the “Mortgage Policy”) relating to the Mortgage encumbering such Mortgage Property assuring the Administrative Agent that the Mortgage is a valid and enforceable first priority (subject to Liens permitted by  Section 7.01  and the provisions of the Intercreditor Agreement) on all right, title and interest of the respective Loan Party in the Mortgage Property described therein;
 
(v)                                Deliver to the Administrative Agent, upon the request of the Administrative Agent in its sole discretion, a signed copy of a favorable opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan Parties acceptable to the Administrative Agent as to the matters contained in clauses (ii) and (iii) above, and as to such other matters as the Administrative Agent may reasonably request, and
 
(vi)                             Deliver, upon the request of the Administrative Agent in its sole discretion, to the Administrative Agent with respect to such Mortgage Property, title reports, surveys and engineering, soils and other reports, and environmental assessment reports from an environmental consulting firm acceptable to the Administrative Agent, which report shall identify existing and potential environmental concerns and shall quantify related costs and liabilities, associated with such Mortgage Property, each in scope, form and substance satisfactory to the Administrative Agent,  provided ,  however ,  that to the extent that any Loan Party or any of its Subsidiaries shall have otherwise received any of the foregoing items with respect to such Mortgage Property, such items shall, promptly after the receipt thereof, be delivered to the Administrative Agent.
 
6.26.                    Control Agreements.  Enter into, at the request of the Administrative Agent, a Control Agreement with respect to any deposit account or securities account, such agreement to be in form and substance satisfactory to the Administrative Agent.
 
6.27.                    The Acquisition.  Enter into and complete the Acquisition, within five (5) Business Days of the Closing Date, subject to the following conditions:
 
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(a)                                 The Acquisition will be consummated in accordance with the Acquisition Agreement and applicable Law.
 
(b)                                The Acquisition Agreement shall be in full force and effect.
 
(c)                                 The Acquisition shall be consummated in accordance with the terms of the Acquisition Agreement, without any waiver or amendment not consented to by the Lenders of any material term, provision or condition set forth therein, and in compliance with all applicable requirements of Law, and the Borrower shall provide to the Administrative Agent before the close of business on the closing date of the Acquisition: (1)  a signed and dated, filed copy of the Articles of Arrangement duly filed with the Registrar of Corporations of the Province of Alberta together with Proof of Filing from the Registrar of Corporations of the Province of Alberta of the Arrangement pursuant to which all of the outstanding capital stock of the Target Company shall have been acquired by Clean Harbors Industrial Services Canada, Inc. (“ Acquireco ”), which is a wholly owned indirect Subsidiary of the Borrower organized under the laws of Alberta for purposes of the Acquisition; and (2) a certified copy of the Certificate and Articles of Amalgamation from the Registrar of Corporations of the Province of Alberta of the amalgamation of the Target Company and Acquireco, with the name of the amalgamated company to be the same as that of Acquireco.
 
(d)                                The Administrative Agent shall be satisfied with the Borrower’s corporate, capital and ownership structure after giving effect to the Acquisition.
 
(e)                                 All applicable waiting periods in connection with the Acquisition have expired without any action having been taken by any Governmental Authority restraining, preventing or imposing materially adverse conditions upon the Transactions or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
 
(f)                                   The Administrative Agent’s receipt of a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation of the Acquisition (including, governmental, shareholder and third party consents such as clearance under the Hart-Scott Rodino Act) and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Acquisition Agreement to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required.
 
(g)                                The Administrative Agent’s receipt of certified copies of each of the Related Documents, such Related Documents to be in form and substance satisfactory to the Administrative Agent, duly executed by the parties thereto, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall request.
 
6.28.                    Intellectual Property Security Agreements.  Deliver the Copyright Security Agreement, Trademark Security Agreement and Patent Security Agreement pursuant to the requirements set forth in the Security Agreement, including, without limitation, Section 4.4 therein.
 
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ARTICLE VII.
NEGATIVE COVENANTS
 
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly:
 
7.01.                    Liens.  Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, or sign or file or suffer to exist under the Uniform Commercial Code of any jurisdiction a financing statement that names the Borrower or any of its Subsidiaries as debtor, or assign any accounts or other right to receive income, other than the following:
 
(a)                                 Liens pursuant to any Loan Document;
 
(b)                                Liens existing on the date hereof and listed on Schedule 5.08(b) and any renewals or extensions thereof, provided  that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except as contemplated by  Section 7.02(d) , (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by  Section 7.02(d) ;
 
(c)                                 Liens for taxes not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP and in each case prior to the commencement of a foreclosure or other similar proceeding;
 
(d)                                carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business to the extent: (i) such Liens secure Indebtedness which is not overdue or (ii) such Liens secure Indebtedness relating to claims or liabilities which are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by appropriate proceedings diligently pursued and available to the Borrower or any Subsidiary, in each case prior to the commencement of foreclosure or other similar proceedings and with respect to which adequate reserves have been set aside on the books of the applicable Person;
 
(e)                                 pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation (other than any Lien imposed by ERISA) including any Lien securing letters of credit issued in the ordinary course of business consistent with past practice in connection therewith;
 
(f)                                   any Lien or deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance and return-of-money bonds, tenders, government contracts and other obligations of a like nature incurred in the ordinary course of business;
 
(g)                                easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case
 
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materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
 
(h)                                Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);
 
(i)                                    Liens securing Indebtedness permitted under Section 7.02(f); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
 
(j)                                    Liens shown on the title commitments for title insurance policies delivered under the Existing Credit Agreement;
 
(k)                                 Liens securing the Canadian Target Debt;
 
(l)                                    Liens securing the Initial Senior High Yield Debt and Other Secured Debt (in each case, subject to the terms of the applicable Intercreditor Agreement);
 
(m)                              other Liens securing Indebtedness outstanding in an aggregate principal amount not to exceed $50,000,000, provided  that no such Lien shall extend to or cover any Collateral;
 
(n)                                Liens securing Other Permitted Canadian Debt; and
 
(o)                                Liens on acquired assets which secured Acquired Indebtedness which existed prior to the related acquisition, merger or consolidation.
 
7.02.                    Indebtedness.  Create, incur, assume or suffer to exist any Indebtedness, except:
 
(a)                                 obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
 
(b)                                Indebtedness owed by a Loan Party to any other Loan Party which Indebtedness (x) is hereby subordinated to the prior indefeasible payment in full in cash of the Obligations, (y) is represented by an Instrument in form satisfactory to the Administrative Agent and delivered to the Administrative Agent pursuant to the Security Agreement; and (z) is otherwise permitted under the provisions of  Section 7.03 ;
 
(c)                                 Indebtedness under the Loan Documents;
 
(d)                                Indebtedness outstanding on the date hereof and listed on Schedule 7.02; provided that (i) the Loan Parties may only make regularly scheduled payments of principal and interest in respect of such Indebtedness in accordance with the terms of the agreement or instrument evidencing or giving rise to such Indebtedness as in effect on the Closing Date, (ii) the Loan Parties shall not, directly or indirectly, (A) amend, modify, alter or change the terms of such
 
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Indebtedness or any agreement, document or instrument related thereto as in effect on the Closing Date except that the Loan Parties may, after prior written notice to the Administrative Agent on behalf of the Secured Parties, amend, modify, alter or change the terms thereof so as to extend the maturity thereof, or defer the timing of any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness (other than pursuant to payments thereof), or to reduce the interest rate or any fees in connection therewith, or (B) redeem, retire, defease, purchase or otherwise acquire such Indebtedness, or set aside or otherwise deposit or invest any sums for such purpose, and (iii) the Loan Parties shall furnish to the Administrative Agent all notices or demands in connection with such Indebtedness either received by the any Loan Party or on its behalf, promptly after the receipt thereof, or sent by any Loan Party or on its behalf, concurrently with the sending thereof, as the case may be;
 
(e)                                 Guarantees of any Guarantor in respect of Indebtedness otherwise permitted hereunder of the Borrower;
 
(f)                                   purchase money Indebtedness (including Capitalized Leases) arising after the Closing Date to the extent secured by purchase money security interests in Equipment (including Capitalized Leases) and purchase money mortgages on Real Property not to exceed $25,000,000 in the aggregate at any time outstanding (excluding such Indebtedness outstanding on the Closing Date) so long as such security interests and mortgages do not apply to any property of the Borrower or its Subsidiaries other than the Equipment or Real Property so acquired, and the Indebtedness secured thereby does not exceed the cost of the Equipment or Real Property so acquired, as the case may be;
 
(g)                                Indebtedness of the Loan Parties in respect of performance bonds, bankers’ acceptances, workers’ compensation claims, surety or appeal bonds, payment obligations in connection with self-insurance or similar obligations, and in the ordinary course of business;
 
(h)                                Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;  provided ,  however , that such Indebtedness is extinguished within five Business Days of incurrence;
 
(i)                                    other unsecured Indebtedness of the Loan Parties in an aggregate principal amount not to exceed $20,000,000 at any time outstanding;
 
(j)                                    so long as no Default exists immediately prior to or after giving effect to the incurrence thereof, Subordinated Indebtedness, to the extent that the Net Cash Proceeds of such Subordinated Indebtedness are used to pay, substantially contemporaneously with the incurrence thereof, consideration for one or more Permitted Acquisitions, Indebtedness of any Person(s) acquired in such Permitted Acquisition or Permitted Acquisitions or any fees or expenses incurred in connection therewith and any such Permitted Acquisition is made in compliance with the requirements set forth in the definition thereof;
 
(k)                                 as to the Target Company and its Subsidiaries, and any other Canadian Subsidiaries of the Borrower to the extent they may become parties to the Canadian Target Debt
 
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Agreement, Canadian Target Debt in an aggregate principal amount at any time outstanding of not more than Cdn $245 million;
 
(l)                                    so long as no Default or Event of Default exists immediately prior to or after giving effect to the incurrence thereof, the Senior High Yield Debt,  provided that  prior to or upon the incurrence of the Initial Senior High Yield Debt, the Borrower pays off in full the then outstanding Canadian Target Debt with the proceeds of the Initial Senior High Yield Debt;
 
(m)                              so long as (i) no Default or Event of Default exists immediately prior to or after giving effect to the incurrence thereof, and (ii) after giving effect to the incurrence thereof on a pro forma basis, the Borrower’s Consolidated Fixed Charge Coverage Ratio is greater than 3.00:1.00, the Borrower and Guarantors may incur Other Secured Debt;
 
(n)                                so long as (i) no Default or Event of Default exists immediately prior to or after giving effect to the incurrence thereof, and (ii) after giving effect to the incurrence thereof on a pro forma basis, the Borrower’s Consolidated Fixed Charge Coverage Ratio is greater than 2.00:1.00, the Borrower and Guarantors may incur other unsecured Indebtedness, and the Borrower and its Subsidiaries may incur Acquired Indebtedness; and
 
(o)                                so long as no Default or Event of Default exists immediately prior to or after giving effect to the incurrence thereof, the Canadian Subsidiaries may incur Other Permitted Canadian Debt.
 
7.03.                    Investments.  Make or hold any Investments, except:
 
(a)                                 the endorsement of instruments for collection or deposit in the ordinary course of business
 
(b)                                Investments in cash or Cash Equivalents, provided that (i) not more than $5.0 million aggregate principal amount of Revolving Loans are then outstanding and (ii) the terms and conditions of  Section 6.22 , if applicable, hereof shall have been satisfied with respect to the deposit account or investment account in which such cash or Cash Equivalents are held;
 
(c)                                 (1) the existing Investments of the Loan Parties in other Loan Parties, (2) the existing Investments of Loan Parties in any Person which is not a Loan Party as of the Closing Date set forth on  Schedule 7.03(c) , (3) additional Investments made by the Borrower or any other Loan Party after the Closing Date in or to another Loan Party in the ordinary course of business, (4) the Investments in the Target Company and its Subsidiaries made as part of the Acquisition; (5) any Investments made by Canadian Subsidiaries provided such Investments are not in violation of the Canadian Target Debt Agreement or any Other Permitted Canadian Debt Documents, and (6) additional Investments in the ordinary course of business by the Borrower or any other Loan Party in or to its respective wholly-owned Subsidiaries organized outside of the United States;  provided that , no Default or Event of Default shall exist immediately prior to or after giving effect to such Investments;  provided further  that the aggregate amount of all such additional Investments by any Loan Party in any such Subsidiaries organized outside of the United States (exclusive of Investments incurred in connection with arranging financial assurances required under applicable Environmental Laws) shall not exceed:
 
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(i)                                    in the case of Canadian Subsidiaries, (a) if Liquidity is less than $100,000,000 but greater than $50,000,000, $25,000,000 at any time outstanding, or (b) if Liquidity is less than $50,000,000, such amount that the Administrative Agent and Required Lenders consent to in their discretion; or
 
(ii)                                 in the case of any other Subsidiary organized outside of the United States, $10,000,000 at any time outstanding;
 
provided further that, after giving effect to any Investment made pursuant to this Section 7.03(c)(6)(i) in Canadian Subsidiaries, (y) the Borrower shall be in compliance with the financial covenants set forth in  Section 7.11  after giving effect to such Investment on a pro forma basis, and (z) the difference between Liquidity less such Investment in any Canadian Subsidiaries shall not be less than $50,000,000;
 
(d)                                Permitted Acquisitions;
 
(e)                                 stock or obligations issued to the Loan Parties by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to the Loan Parties in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person;  provided  that the original of any such stock or instrument evidencing such obligations shall be promptly delivered to the Administrative Agent, upon the Administrative Agent’s request, together with such stock power, assignment or endorsement by the Loan Parties as the Administrative Agent may request;
 
(f)                                   obligations of account debtors to Loan Parties arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to the Loan Parties;  provided  that promptly upon the receipt of the original of any such promissory note by the Loan Parties, such promissory note shall be endorsed to the order of the Administrative Agent by the Loan Parties and promptly delivered to the Administrative Agent as so endorsed;
 
(g)                                Guarantees permitted by Section 7.02;
 
(h)                                Investments existing on the date hereof (other than those referred to in Section 7.03(c)(1)) and set forth on Schedule 5.08(e) ; provided that as to such loans and advances, (i) the Loan Parties shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto, and (ii) the Loan Parties shall furnish to the Administrative Agent all notices or demands in connection with such loans and advances either received by any Loan Party or on its behalf, promptly after the receipt thereof, or sent by any Loan Party or on its behalf, concurrently with the sending thereof, as the case may be; and
 
(i)                                    Investments comprising solely of the Applicable Properties in the Applicable Property Entities; and
 
(j)                                    other Investments that do not exceed $25,000,000 in the aggregate at any one time outstanding.
 
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7.04.                    Fundamental Changes.  Merge, dissolve, liquidate, consolidate with or into another Person, or 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, except that, so long as no Default exists or would result therefrom:
 
(a)                                 (i) any Loan Party (other than the Borrower) may be merged into, consolidated with, or amalgamated with any other Loan Party, and (ii) any wholly-owned Subsidiary of any Loan Party may be merged into such Loan Party;
 
(b)                                any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Loan Party;
 
(c)                                 any Subsidiary that is not a Loan Party may be merged into, consolidated with, or amalgamated with, or may dispose of all or substantially all its assets (including any Disposition that is in the nature of a liquidation) with or to (i) another Subsidiary that is not a Loan Party or (ii) to a Loan Party; and
 
(d)                                in connection with any acquisition permitted under Section 7.03, any Subsidiary of the Borrower may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it;  provided  that (i) the Person surviving such merger shall be a wholly-owned Subsidiary of the Borrower and (ii) in the case of any such merger to which any Loan Party (other than the Borrower) is a party, such Loan Party is the surviving Person.
 
7.05.                    Dispositions.  Make any Disposition or enter into any agreement to make any Disposition, except:
 
(a)                                 Dispositions of inventory in the ordinary course of business;
 
(b)                                the issuance and sale by the Borrower of Equity Interests (other than Disqualified Equity Interests) of the Borrower on and after the Closing Date;
 
(c)                                 leases of real or personal property in the ordinary course of business in accordance with past practice and in accordance with the Loan Documents;
 
(d)                                provided that no Default or Event of Default exists immediately prior to or after such Disposition, other Dispositions not to exceed $20,000,000 in any twelve-month period;  provided  that at least 80% of the consideration received in any such Disposition is in the form of cash and Cash Equivalents;
 
(e)                                 Dispositions permitted by Section 7.04;
 
(f)                                   Dispositions involving property or assets acquired in any acquisition by the Borrower or any of its Subsidiaries if such disposition is required by any Governmental Authority having jurisdiction over antitrust, competition or similar matters in connection with such acquisition;
 
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(g)                                provided that no Default or Event of Default exists immediately prior to or after such Disposition, Dispositions of any Non-Accounts Collateral or assets not constituting Collateral by the Borrower or any of its Subsidiaries so long as:
 
(i)                                    the Borrower or the applicable Subsidiary, as the case may be, receives consideration at the time of such Disposition at least equal to the fair market value of the assets sold or otherwise disposed of (as determined in good faith by the Borrower’s senior management or, in the case of a Disposition in excess of $25,000,000, the Borrower’s board of directors);
 
(ii)                                 at least 75% of the consideration received by the Borrower or the Subsidiary, as the case may be, from such Disposition shall be in the form of:
 
(A)                             cash or Cash Equivalents,
 
(B)                               properties and assets to be owned by the Borrower or any of its Subsidiaries and used in a Permitted Business; or
 
(C)                               Equity Interests in one or more Persons engaged in a Permitted Business that are or thereby become Subsidiaries of the Borrower;
 
(iii)                              upon the consummation of such Disposition, the Borrower will apply, or cause such Subsidiary to apply, the Net Cash Proceeds relating to such Disposition within 365 days of receipt thereof to make an Investment (i) in properties and assets that replace the properties and assets that were the subject of such Disposition or (ii) in properties and assets that will be used by the Borrower or a Subsidiary in a Permitted Business (clauses (i) and (ii) collectively referred to as “ Replacement Assets ”); and
 
(iv)                             the Net Cash Proceeds from any such Disposition of Non-Accounts Collateral is paid as provided for in accordance with the Senior High Yield Documents and the Intercreditor Agreement, to the extent applicable;
 
(h)                                Dispositions of equipment in connection with the reinvestment in or the replacement thereof and disposals of worn-out or obsolete equipment;
 
(i)                                    the grant in the ordinary course of business of non-exclusive licenses to use any patents, trademarks and similar intellectual property;
 
(j)                                    provided that no Default or Event of Default exists immediately prior to or after such Disposition, the release, surrender or waiver of contract, tort or other claims of any kind in the ordinary course of business as a result of settlement of any litigation or threatened litigation;
 
(k)                                 the granting or existence of Liens permitted under Section 7.01; and
 
(l)                                    the making of any Investment permitted under Section 7.05 or any Restricted Payment permitted under Section 7.06 ;
 
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provided, however, that any Disposition pursuant to Section 7.05(a) through Section 7.05(l) shall be for fair market value.
 
7.06.                    Restricted Payments.  Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests or accept any capital contributions, except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
 
(a)                                 each Loan Party may make Restricted Payments to the Borrower;
 
(b)                                any Subsidiary of any Loan Party may make Restricted Payments to such Loan Party or to any other Loan Party which is a wholly-owned Subsidiary of the Borrower; provided that, if such Restricted Payment is then subject to the provision of the Canadian Target Debt Agreement and/or such Other Permitted Canadian Debt Document, such Restricted Payment is permitted under the terms of the Canadian Target Debt Agreement and/or any Other Permitted Canadian Debt Document;
 
(c)                                 the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; and
 
(d)                                the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests.
 
7.07.                    Change in Nature of Business.  Engage in any business other than the business of the Loan Parties on the Closing Date and any business reasonably related, ancillary or complementary to the business in which the Loan Parties are engaged on the Closing Date.
 
7.08.                    Transactions with Affiliates.  (a) Purchase, acquire or lease any property from, or sell, transfer or lease any property to, or enter into any other transaction with or for the benefit of any Affiliate of any Loan Party or any officer, director, agent or any Loan Party, except in the ordinary course of and pursuant to the reasonable requirements of any Loan Party’s business and upon fair and reasonable terms no less favorable to such Loan Party than such Loan Party would obtain in a comparable arm’s length transaction with an unaffiliated Person, or (b) make any payments of management, consulting or other fees for management or similar services, or of any Indebtedness owing to any officer, employee, shareholder, director or other Affiliate of any Loan Party except reasonable compensation to officers, employees and directors for services rendered to Loan Parties in the ordinary course of business.
 
7.09.                    Burdensome Agreements.  Enter into or permit to exist any Contractual Obligation (other than this Agreement, any other Loan Document, the Senior High Yield Documents, the Other Secured Debt Documents, and, solely as to the Canadian Subsidiaries, the Canadian Target Debt Documents and the Other Permitted Canadian Debt Documents) that (a) limits the ability (i) of any Subsidiary to make Restricted Payments to the Borrower or any Guarantor or to otherwise transfer property to or invest in the Borrower or any Guarantor, except for any agreement in effect (A) on the date hereof and set forth on  Schedule 7.09  or (B) at the time any Subsidiary becomes a Subsidiary of the Borrower, so long as such agreement was not
 
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entered into solely in contemplation of such Person becoming a Subsidiary of the Borrower, (ii) of any Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of the Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person;  provided ,  however , that this clause (iii) shall not prohibit any negative pledge incurred or provided in favor of any holder of Indebtedness permitted under  Section 7.02(i)  solely to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness; 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.
 
7.10.                    Use of Proceeds.  Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.
 
7.11.                    Financial Covenants.
 
(a)                                 Liquidity.
 
(i)                                    Permit Liquidity at any time to be less than $25,000,000;
 
(ii)                                 To the extent Liquidity falls below $50,000,000, the following covenants shall apply:
 
(A)                             The Borrower shall not permit the Consolidated Fixed Charge Coverage Ratio as of the end of any fiscal quarter calculated for the period consisting of the one fiscal quarter then ended of the Borrower to be less than 1.00:1;
 
(B)                               If Excess Availability is less than 15% of the sum of (i) the Outstanding Amount of Revolving Credit Loans and (ii) the Outstanding Amount of L/C Obligations, the Borrower shall and shall cause its Subsidiaries to deposit additional cash or Cash Equivalents into the appropriate account to be included as Eligible Pledged Cash in an amount sufficient to provide Excess Availability in an amount greater than 15% of the sum of (i) the Outstanding Amount of Revolving Credit Loans and (ii) the Outstanding Amount of L/C Obligations; and
 
(C)                               The Borrower shall not make any Restricted Payments, prepay any Indebtedness (including optionally redeeming, repurchasing or repaying any Senior High Yield Notes or Other Secured Debt), or make any Permitted Acquisitions unless and until Liquidity is above $50,000,0000 both before and after giving effect to such Restricted Payments, prepayments of Indebtedness or Permitted Acquisition.
 
(iii)                              At all times, from and after the incurrence the Senior High Yield Debt, permit Liquidity at any time to be less than $50,000,000.
 
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(b)                                Consolidated Fixed Charge Coverage Ratio.  Permit the Consolidated Fixed Charge Coverage Ratio as of the end of any Measurement Period of the Borrower to be less than 1.00:1.
 
7.12.                    Amendments of Organization Documents. Terminate, amend, modify or change any of its Organization Documents (including by the filing or modification of any certificate of designation) or any agreement to which it is a party with respect to its Equity Interests (including any stockholders’ agreement), or enter into any new agreement with respect to its Equity Interests, other than any such amendments, modifications or changes or such new agreements which are not adverse in any material respect to the interests of the Lenders; provided that the Borrower may issue such Equity Interests, so long as such issuance is permitted or not prohibited by  Section 7.06  or any other provision of the Loan Documents, and may amend its Organization Documents to authorize any such Equity Interests.
 
7.13.                    Accounting Changes.  Make any change in (a) accounting policies or reporting practices, except as required by GAAP, or (b) fiscal year.
 
7.14.                    Prepayments, Etc. of Indebtedness.  Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of any subordination terms of, any Indebtedness, except (a) the prepayment of the Credit Extensions in accordance with the terms of this Agreement; (b) regularly scheduled or required repayments or redemptions of Indebtedness set forth in  Schedule 7.02  and refinancings and refundings of such Indebtedness in compliance with  Section 7.02(d) ; and (c) prepayments, redemptions or repurchases of notes under the Senior High Yield Indenture,  provided that  such prepayments, redemptions or repurchases may be made only if minimum Liquidity both before and after giving effect to each such prepayment, redemption or repurchase shall be no less than $100,000,000.
 
7.15.                    Amendment, Etc. of Related Documents.  (a)  Cancel or terminate any Related Document or consent to or accept any cancellation or termination thereof, (b) amend, modify or change in any manner any term or condition of any Related Document or give any consent, waiver or approval thereunder, (c) waive any default under or any breach of any term or condition of any Related Document, or (d) take any other action in connection with any Related Document that would impair the value of the interest or rights of any Loan Party thereunder or that would impair the rights or interests of the Administrative Agent or any Lender.
 
7.16.                    Change of Name or Chief Executive Office.
 
(a)                                 In the case of each Loan Party, change its name unless each of the following conditions is satisfied: (i) the Administrative Agent and the Lenders shall have received not less than thirty (30) days’ prior written notice from a Loan Party of such proposed change in its name, which notice shall accurately set forth the new name; and (ii) prior to the filing thereof, the Administrative Agent and the Lenders shall have received a copy of the proposed amendment to the certificate of incorporation, certificate of formation or certificate of limited partnership or equivalent document, as the case may be, of such Loan Party providing for the name change and once the filing has been made, the Administrative Agent and the Lenders shall receive a copy of such amendment to the certificate of incorporation, certificate of formation or certificate of
 
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limited partnership or equivalent document, as the case may be, of such Loan Party certified by the Secretary of State of the jurisdiction of incorporation or organization of such Loan Party as soon as it is available.
 
(b)                                In the case of each Loan Party, change its chief executive office, its mailing address, organizational identification number (or if it does not have one, shall not acquire one), identity or corporate structure, or jurisdiction of organization unless the Administrative Agent and the Lenders shall have received not less than thirty (30) days’ prior written notice (or such shorter period as the Administrative Agent may consent to) from the Loan Parties of such proposed change, which notice shall set forth such information with respect thereto as the Administrative Agent may require and the Administrative Agent shall have received such agreements as it may reasonably require in connection therewith in order to preserve and protect its respective Liens on the Collateral.
 
7.17.                    Intentionally Omitted.
 
7.18.                    Embargoed Person.  Cause or permit (a) any of the funds or properties of the Loan Parties that are used to repay the Loans or any reimbursement hereunder to constitute property of, or be beneficially owned directly or indirectly by, any person subject to sanctions or trade restrictions under United States law (“ Embargoed Person ” or “ Embargoed Persons ”) that is identified on (1) the “List of Specially Designated Nationals and Blocked Persons” (the “ SDN List ”) maintained by OFAC and/or on any other similar list (“ Other List ”) maintained by OFAC pursuant to any authorizing statute including, but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701  et seq. , The Trading with the Enemy Act, 50 U.S.C. App. 1  et seq. , and any Executive Order (defined below) or regulation promulgated thereunder, with the result that the investment in the Loan Parties (whether directly or indirectly) is prohibited by law, or the Loans made by the Lenders would be in violation of law, or (2) the Order, any related enabling legislation or any other similar orders (collectively, “ Executive Orders ”), or (b) any Embargoed Person to have any direct or indirect interest, of any nature whatsoever in the Loan Parties, with the result that the investment in the Loan Parties (whether directly or indirectly) is prohibited by law or the Loans are in violation of law.
 
7.19.                    Sale and Leaseback Transactions.  Enter into any arrangement, directly or indirectly, with any Person whereby any Loan Party shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property which it intends to use for substantially the same purpose or purposes as the property being sold or transferred (a “ Sale and Leaseback Transaction ”) unless (i) the sale of such property is permitted by  Section 7.05  and (ii) any Liens arising in connection with its use of such property are permitted by  Section 7.01 .
 
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
 
8.01.                    Events of Default.  Any of the following shall constitute an Event of Default:
 
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(a)                                 Non-Payment.  The Borrower or any other Loan Party fails to (i) pay when and as required to be paid herein, any amount of principal of any Loan or any L/C Obligation or deposit any funds as Cash Collateral in respect of L/C Obligations, or (ii) pay within three days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) pay within five days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or
 
(b)                                Specific Covenants.  (i) The Borrower fails to perform or observe any term, covenant or agreement contained in any of  Section 6.03 ,  6.05 ,  6.10 ,  6.11 ,  6.12 ,  6.14 ,  6.21  or  Article VII , (ii) any of the Guarantors fails to perform or observe any term, covenant or agreement contained in the Guaranty or (iii) any of the Loan Parties fails to perform or observe any term, covenant or agreement contained in any Collateral Document to which it is a party, in each case, to the extent any applicable cure or grace period therefor has expired; or
 
(c)                                 Other Defaults.  Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a)  or  (b)  above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days (in the case of failure to perform or observe the covenants in  Sections 6.01 ,  6.02 and 7.11(a)(ii) , 30 days after the Loan Party receives notice by the Administrative Agent or Required Lenders that such failure will constitute an Event of Default); or
 
(d)                                Representations and Warranties.  Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading when made or deemed made; or
 
(e)                                 Cross-Default.  (i) Any Loan Party or any Subsidiary thereof (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which a Loan Party or any Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which a Loan Party or any Subsidiary thereof is an Affected Party (as so defined) and, in
 
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either event, the Swap Termination Value owed by such Loan Party or such Subsidiary as a result thereof is greater than the Threshold Amount; or
 
(f)                                   Insolvency Proceedings, Etc.  The Borrower or any Significant Subsidiary thereof institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or
 
(g)                                Inability to Pay Debts; Attachment.  (i) The Borrower or any Significant Subsidiary thereof becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within 30 days after its issue or levy; or
 
(h)                                Judgments.  There is entered against the Borrower or any Significant Subsidiary thereof (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments and orders) exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer is rated at least “A” by A.M. Best Company, has been notified of the potential claim and does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of 10 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or
 
(i)                                    ERISA.  (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
 
(j)                                    Invalidity of Loan Documents.  Any provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document; or
 
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(k)                                 Change of Control.  There occurs any Change of Control; or
 
(l)                                    Collateral Documents.  Any Collateral Document after delivery thereof pursuant to Section 4.01 or 6.12 shall for any reason (other than pursuant to the terms thereof) cease to create a valid and perfected first priority Lien (and subject to rights of other secured parties under the Intercreditor Agreement and subject to Liens permitted by  Section 7.01 ) on the Collateral purported to be covered thereby; or
 
(m)                              Subordination.  (i)  The subordination provisions of the documents evidencing or governing any subordinated Indebtedness (the “ Subordinated Provisions ”) shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against any holder of the applicable subordinated Indebtedness, or in the case of the Intercreditor Agreement, the parties thereto; or (ii) the Borrower or any other Loan Party shall, directly or indirectly, disavow or contest in any manner (A) the effectiveness, validity or enforceability of any of the Subordinated Provisions, (B) that the Subordinated Provisions exist for the benefit of the Administrative Agent, the Lenders and the L/C Issuer or (C) that all payments of principal of or premium and interest on the applicable subordinated Indebtedness, or realized from the liquidation of any property of any Loan Party, shall be subject to any of the Subordination Provisions.
 
8.02.                    Remedies upon Event of Default.  If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
 
(a)                                 declare the Commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such Commitment and obligation shall be terminated;
 
(b)                                declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;
 
(c)                                 require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and
 
(d)                                exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it, the Lenders and the L/C Issuer under the Loan Documents;
 
provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
 
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8.03.                    Application of Funds.  After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to  Section 8.02 ), any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order:
 
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under  Article III ) payable to the Administrative Agent in its capacity as such;
 
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer (including fees and time charges for attorneys who may be employees of any Lender or the L/C Issuer) arising under the Loan Documents and amounts payable under  Article III , ratably among them in proportion to the respective amounts described in this clause  Second  payable to them;
 
Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations arising under the Loan Documents, ratably among the Lenders and the L/C Issuer in proportion to the respective amounts described in this clause  Third  payable to them;
 
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, L/C Borrowings and Obligations then owing under Secured Hedge Agreements and Secured Cash Management Agreements, ratably among the Lenders, Affiliates of Lenders, the L/C Issuer, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause  Fourth  held by them;
 
Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit; and
 
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, first, to other creditors entitled thereto, and second, to the Borrower or as otherwise required by Law.
 
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause  Fifth  above shall be applied to satisfy drawings under such Letters of Credit as they occur.  If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
 
Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash
 
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Management Bank or Hedge Bank, as the case may be.  Each Cash Management Bank or Hedge Bank not at such time a party to the Credit Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of  Article IX  hereof for itself and its Affiliates as if a “Lender” party hereto.
 
ARTICLE IX.
ADMINISTRATIVE AGENT
 
9.01.                    Appointment and Authority.  (a)  Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.  The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and the Borrower shall not have rights as a third party beneficiary of any of such provisions.
 
(a)                                 The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank and a potential Cash Management Bank) and the L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto.  In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to  Section 9.05  for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this  Article IX  and  Article X  (including Section 10.04(c) , as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.
 
9.02.                    Rights as a Lender.  The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
 
9.03.                    Exculpatory Provisions.  The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents.  Without limiting the generality of the foregoing, the Administrative Agent:
 
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(a)                                 shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
 
(b)                                shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents),  provided  that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law; and
 
(c)                                 shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
 
(d)                                The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in  Sections 10.01  and 8.02 ) or (ii) in the absence of its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.
 
(e)                                 The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (v) the satisfaction of any condition set forth in  Article IV  or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
 
9.04.                    Reliance by Administrative Agent.  The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C
 
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Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit.  The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
 
9.05.                    Delegation of Duties.  The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
 
9.06.                    Resignation of Administrative Agent.  The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and the Borrower.  Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States.  If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above;  provided  that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (b) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section).  The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.  After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and  Section 10.04  shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties
 
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in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
 
Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer and Swing Line Lender.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender, (ii) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (iii) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.
 
9.07.                    Non-Reliance on Administrative Agent and Other Lenders.  Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender and the L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
 
9.08.                    No Other Duties, Etc.  Anything herein to the contrary notwithstanding, the Sole Lead Arranger and the Sole Book Manager listed on the cover page hereof shall not have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents.
 
9.09.                    Administrative Agent May File Proofs of Claim.  In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise
 
(a)                                 to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the Administrative Agent under  Sections 2.03(i)  and  (j) ,  2.09  and  10.04 ) allowed in such judicial proceeding; and
 
(b)                                to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
 
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under  Sections 2.09  and 10.04 .
 
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or the L/C Issuer or in any such proceeding.
 
9.10.                    Collateral and Guaranty Matters. Each of the Lenders (including in its capacities as a potential Cash Management Bank and a potential Hedge Bank) and the L/C Issuer irrevocably authorize the Administrative Agent, at its option and in its discretion,
 
(a)                                 to release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other than (A) contingent indemnification obligations and (B) obligations and liabilities under Secured Cash Management Agreements and Secured Hedge Agreements as to which arrangements satisfactory to the applicable Cash Management Bank or Hedge Bank (to the extent required under  Section 9.11 ) shall have been made) and the expiration or termination of all Letters of Credit, (ii) that is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Loan Document, or (iii)  if approved, authorized or ratified in writing in accordance with  Section 10.01 ;
 
(b)                                to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder; and
 
(c)                                 to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by  Section 7.01(i) .
 
Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this  Section 9.10 .  In each case as specified in this  Section 9.10 , the Administrative Agent will, at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this  Section 9.10 .
 
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9.11.                    Secured Cash Management Agreements and Secured Hedge Agreements.  Except as otherwise expressly set forth herein or in any Guaranty or any Collateral Document, no Cash Management Bank or Hedge Bank that obtains the benefits of  Section 8.03 , any Guaranty or any Collateral by virtue of the provisions hereof or of any Guaranty or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents.  Notwithstanding any other provision of this  Article IX  to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.
 
ARTICLE X.
MISCELLANENOUS
 
10.01.             Amendments, Etc.  No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given;  provided ,  however , that no such amendment, waiver or consent shall:
 
(a)                                 waive any condition set forth in Section 4.01 (other than Section 4.01(b)(i) or (c)), or, in the case of the initial Credit Extension,  Section 4.02 , without the written consent of each Lender;
 
(b)                                without limiting the generality of clause (a) above, waive any condition set forth in Section 4.02 as to any Credit Extension under the Revolving Credit Facility without the written consent of the Required Lenders;
 
(c)                                 extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02 ) without the written consent of such Lender;
 
(d)                                postpone any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under such other Loan Document without the written consent of each Lender entitled to such payment;
 
(e)                                 reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to this  Section 10.01 ) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender entitled to such fees or amounts;  provided ,  however , that only the consent of the
 
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Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;
 
(f)                                   change Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender in any manner that materially and adversely affects the Lenders without the written consent of the Required Lenders;
 
(g)                                change (i) any provision of this Section 10.01 or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder (other than the definitions specified in clause (ii) of this Section 10.01(g) ), without the written consent of each Lender;
 
(h)                                release all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender;
 
(i)                                    release all or substantially all of the value of the Guaranty, without the written consent of each Lender, except to the extent the release of any Subsidiary from the Guaranty is permitted pursuant to  Section 9.10  (in which case such release may be made by the Administrative Agent acting alone); or
 
(j)                                    impose any greater restriction on the ability of any Lender to assign any of its rights or obligations hereunder without the written consent of the Required Lenders;
 
and provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (iv) the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto.  Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
 
10.02.             Notices; Effectiveness; Electronic Communications. (a) Notices Generally.  Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as follows,
 
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and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
 
(i)                                    if to the Borrower, the Administrative Agent, the L/C Issuer, or the Swing Line Lender, to the address, telecopier number, electronic mail address or telephone number specified for such Person on  Schedule 10.02 ; and
 
(ii)                                 if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire.
 
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient).  Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below shall be effective as provided in such subsection (b).
 
(b)                                Electronic Communications.  Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent,  provided  that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to  Article II  if such Lender or the L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.  The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it,  provided  that approval of such procedures may be limited to particular notices or communications.
 
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement),  provided  that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
 
(c)                                 The Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-
 
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INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent or any of its Related Parties (collectively, the “ Agent Parties ”) have any liability to the Borrower, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party;  provided ,  however , that in no event shall any Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
 
(d)                                Change of Address, Etc.  Each of the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto.  Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuer, and the Swing Line Lender.  In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.  Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities laws.
 
(e)                                 Reliance by Administrative Agent, L/C Issuer and Lenders.  The Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.  The Borrower shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower.  All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
 
10.03.             No Waiver; Cumulative Remedies; Enforcement.  No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in
 
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exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
 
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with  Section 8.02  for the benefit of all the Lenders and the L/C Issuer;  provided , however , that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with  Section 10.08  (subject to the terms of  Section 2.13 ), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and  provided ,  further , that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to  Section 8.02  and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to  Section 2.13 , any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
 
10.04.             Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses.  The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer), and shall pay all fees and time charges for attorneys who may be employees of the Administrative Agent, any Lender or the L/C Issuer, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
 
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(b)                                Indemnification by the Borrower.  The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party or any of the Borrower’s or such Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto;  provided  that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.
 
(c)                                 Reimbursement by Lenders.  To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided  that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity.  The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d) .
 
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(d)                                Waiver of Consequential Damages, Etc.  To the fullest extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.
 
(e)                                 Payments.  All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.
 
(f)                                   Survival.  The agreements in this Section shall survive the resignation of the Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
 
10.05.             Payments Set Aside.  To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent,  plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
 
10.06.             Successors and Assigns. (a) Successors and Assigns Generally.  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 the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of  Section 10.06(b) , (ii) by way of participation in accordance with the provisions of  Section 10.06(d) , or (iii) by way of pledge or assignment of a security interest subject to the restrictions
 
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of Section 10.06(f) (and any other attempted assignment or transfer by any party hereto 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, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
 
(b)                                Assignments by Lenders.  Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans (including for purposes of this  Section 10.06(b) , participations in L/C Obligations and in Swing Line Loans) at the time owing to it);  provided that any such assignment shall be subject to the following conditions:
 
(i)                                    Minimum Amounts.
 
(A)                             in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment under the Revolving Credit Facility and the Loans at the time owing to it under such Facility or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
 
(B)                               in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000, in the case of any assignment in respect of the Revolving Credit Facility, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed);  provided , however , that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met;
 
(ii)                                 Proportionate Amounts.  Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans.
 
(iii)                              Required Consents.  No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
 
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(A)                             the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
 
(B)                               the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of any Revolving Credit Commitment if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender;
 
(C)                               the consent of the L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding);
 
(D)                              the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of the Revolving Credit Facility.
 
(iv)                             Assignment and Assumption.  The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500;  provided ,  however , that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment.  The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
 
(v)                                No Assignment to Borrower.  No such assignment shall be made to the Borrower or any of the Borrower’s Affiliates or Subsidiaries.
 
(vi)                             No Assignment to Natural Persons.  No such assignment shall be made to a natural person.
 
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, 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 Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption 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  Sections 3.01 ,  3.04 ,  3.05  and  10.04  with respect to facts and circumstances occurring prior to the effective date of such assignment.  Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a
 
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sale by such Lender of a participation in such rights and obligations in accordance with Section 10.06(d).
 
(c)                                 Register.  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 Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”).  The entries in the 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.  The 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.
 
(d)                                Participations.  Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line 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 Administrative Agent, the Lenders and the L/C Issuer 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, waiver or other modification described in the first proviso to  Section 10.01 that affects such Participant.  Subject to  subsection (e)  of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of  Sections 3.01 ,  3.04  and  3.05  to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to  Section 10.06(b) .  To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08  as though it were a Lender,  provided  such Participant agrees to be subject to  Section 2.13  as though it were a Lender.
 
(e)                                 Limitations upon Participant Rights.  A Participant shall not be entitled to receive any greater payment under Section 3.01  or  3.04  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 Foreign Lender if it were a Lender shall not be entitled to the benefits of  Section 3.01  unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with  Section 3.01(e)  as though it were a Lender.
 
(f)                                   Certain Pledges.  Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure
 
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obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
 
(g)                                Resignation as L/C Issuer or Swing Line Lender after Assignment.  Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Revolving Credit Commitment and Revolving Credit Loans pursuant to  Section 10.06(b) , Bank of America may, (i) upon 30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to the Borrower, resign as Swing Line Lender.  In the event of any such resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder;  provided ,  however , that no failure by the Borrower to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be.  If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to  Section 2.03(c) ).  If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to  Section 2.04(c) .  Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, s the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
 
10.07.             Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, trustees, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.15(c) or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
 
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Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower.
 
For purposes of this Section, “Information” means all information received from any Loan Party or any Subsidiary thereof relating to any Loan Party or any Subsidiary thereof or their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by any Loan Party or any Subsidiary thereof,  provided  that, in the case of information received from a Loan Party or any such Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential.  Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
 
Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the Information may include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.
 
10.08.             Right of Setoff.  If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, after obtaining the prior written consent of the Administrative Agent, 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, the L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower may be contingent or unmatured or are owed to a branch or office of such Lender or the L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness.  The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have.  Each Lender and the L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application,  provided  that the failure to give such notice shall not affect the validity of such setoff and application.
 
10.09.             Interest Rate Limitation.  Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “ Maximum Rate ”).  If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or,
 
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if it exceeds such unpaid principal, refunded to the Borrower.  In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
 
10.10.             Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  Except as provided in  Section 4.01 , this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.
 
10.11.             Survival of Representations and Warranties. 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 shall survive the execution and delivery hereof and thereof.  Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
 
10.12.             Severability.  If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
 
10.13.             Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , or if any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required
 
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by, Section 10.06), 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 Lender, if a Lender accepts such assignment), provided that:
 
(a)                                 the Borrower shall have paid to the Administrative Agent the assignment fee specified in Section 10.06(b);
 
(b)                                such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under  Section 3.05 ) 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);
 
(c)                                 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 3.01 , such assignment will result in a reduction in such compensation or payments thereafter; and
 
(d)                                such assignment does not conflict with applicable Laws.
 
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
 
10.14.             Governing Law; Jurisdiction; Etc.    (a)  GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS OTHER THAN SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAWS OF THE STATE OF NEW YORK).
 
(a)                                 SUBMISSION TO JURISDICTION.  THE BORROWER AND EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION
 
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OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
 
(b)                                WAIVER OF VENUE.  THE BORROWER AND EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
 
(c)                                 SERVICE OF PROCESS.  EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN  SECTION 10.02 .  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW
 
10.15.             Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
 
10.16.             No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent and the Arranger, are arm’s-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Administrative Agent and the Arranger, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent and the Arranger each is and has been acting
 
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solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any other Person and (B) neither the Administrative Agent nor the Arranger has any obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent and the Arranger and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and neither the Administrative Agent nor the Arranger has any obligation to disclose any of such interests to the Borrower or its Affiliates.  To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Administrative Agent and the Arranger with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
 
10.17.             Electronic Execution of Assignments and Certain Other Documents. The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption or in any amendment or other modification hereof (including waivers and consents) shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
 
10.18.             USA PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Loan Party in accordance with the Act.  The Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” an anti-money laundering rules and regulations, including the Act.
 
10.19.             Judgment Currency.  If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given.  The obligation of each Borrower in respect of any such sum due from it to the Administrative Agent, the L/C Issuer or any Lender hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “ Judgment Currency ”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “ Agreement Currency ”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent, the L/C Issuer or such Lender, as the case may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent, the L/C Issuer or such Lender, as
 
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the case may be, may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency.  If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent, the L/C Issuer or any Lender from any Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent, the L/C Issuer or such Lender, as the case may be, against such loss.  If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent, the L/C Issuer or any Lender in such currency, the Administrative Agent, the L/C Issuer or such Lender, as the case may be, agrees to return the amount of any excess to such Borrower (or to any other Person who may be entitled thereto under applicable law).
 
[remainder of page intentionally left blank]
 
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IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be duly executed as of the date first above written.
 
 	CLEAN HARBORS, INC., as Borrower	

 	By:	/s/ James M. Rutledge	
 	Name: James M. Rutledge	
 	Title: Executive Vice President and	
 	Chief Financial Officer	

 
 	BANK OF AMERICA, N.A., as Administrative Agent	

 	By:	/s/ Christopher O’Halloran	
 	Name: Christopher O’Halloran	
 	Title: Vice President	

 
 	BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender	

 	By:	/s/ Christopher O’Halloran	
 	Name: Christopher O’Halloran	
 	Title: Vice President	

 
 	SIEMENS FINANCIAL SERVICES, INC., as a Lender	

 	By:	/s/ Jennifer Humphrey	
 	Name: Jennifer Humphrey	
 	Title: VP Operations	

 	By:	/s/ Uri Sky	
 	Name: Uri Sky	
 	Title: VP Credit	

 
 	TD BANK, N.A., as a Lender	

 	By:	/s/ C. Lee Willingham	
 	Name: C. Lee Willingham	
 	Title: Senior Vice President	

 
Schedules Included:
 
2.01	Commitments and Applicable Percentages	
2.03	Existing Letters of Credit	
5.03	Certain Authorizations	
5.08(b)	Existing Liens	
5.09	Environmental Matters	
5.13	Subsidiaries and Other Equity Investments	
5.20	Labor Matters	
5.25	Material Contracts	
6.12	Guarantors	
7.02	Permitted Existing Indebtedness	
7.03(c)	Investments in Subsidiaries	
7.09	Burdensome Agreements	
10.02	Administrative Agent’s Office, Certain Addresses for Notices	

 
2.01        Commitments and Applicable Percentages
 
Lender	 	Revolving Credit Commitment	 	Revolving Credit
Applicable Percentage	 	
Bank of America, N.A.	 	$	70,000,000	 	58.333333334	%	
Siemens Financial Services, Inc.	 	$	25,000,000	 	20.833333333	%	
TD Bank, N.A.	 	$	25,000,000	 	20.833333333	%	
Total	 	$	120,000,000	 	100.000000000	%	

 
2.03    Existing Letters of Credit
 
 	2.03 Existing Letters of Credit Bank LOC # Beneficiary Use Amount Date Issued Expiration Date CS TS07002315 Insurance Co. of N. America Collateral - Casualty programs $8,100,000.00 6/30/2004 Evergreen CS TS07002378 City of Chicago / Comm of Env. Waste water discharge permit $250,000.00 6/30/2004 Evergreen CS TS07002314 JP Morgan Trust Company, N.A. as Trustee for Bayou Sorrel PRP guarantee for Superfund Site $64,735.15 4/19/2006 6/30/2009 CS TS07002368 PA dept of Envlr Protection Transportation permit $30,000.00 6/30/2004 Evergreen CS TS07002312 Re-Solve Site Trust Fund PRP guarantee for Superfund Site $707,390.00 4/19/2006 9/30/2009 $0.00 CS TS07002310 Steadfast Insurance Co Closure $38,565,165.92 6/30/2004 Evergreen CS TS07004534 City of Chicago / Comm of Env. Waste water discharge permit (CH Recycling Services) $250,000.00 3/17/2008 Evergreen SUBTOTAL CS: $47,967,291.07 BOA ASL-7420318-110CLN Penske (formerly AMI-Trucklease) Vehicle lease line collateral $50,000.00 12/23/2005 Evergreen BOA ASL-7420266-110CLN Lumbermen’s Mutual Collateral - Insurance 11/1/02 $580,000.00 12/1/2005 Evergreen BOA ASL-7420264-110CLN United Casualty MWH Contractors Bond $57,502.20 12/1/2005 Evergreen BOA ASL-7420265-110CLN Westchester Fire Ins. Co. Surety Collateral $0.00 12/1/2005 Evergreen BOA ASL-3014773-110CLN 42 Longwater Associates LLC Lease Collateral $1,600,000.00 7/13/2005 Evergreen BOA ASL-7420259-110CLN Steadfast Insurance Co Closure $34,934,834.08 12/1/2005 Evergreen BOA ASL-7420337-110CLN King County, Washington Surety security in lieu of bond $100,000.00 1/1/2008 1/1/2010 BOA 68013459 State of Washington Surety security in lieu of bond $0.00 7/1/2008 7/1/2009 BOA 68014365 Liberty Mutual Collateral - Teris Insurance $125,000.00 4/7/2009 4/7/2010 BOA 68014366 AIG Collateral - Teris Insurance $17,545,00 8/18/2006 Evergreen BOA 68019779 Port of Redwood City Financial Assurance $368,962.00 8/3/2007 3/31/2012 SUBTOTAL BofA US: $37,833,843.28 BS TOTAL: $91,037,409.35 BOA 68019398 ADP Canadian Payroll Security CAD: 1,025,000 7/19/2007 Evergreen BOA 68034227 Eveready Inc Acquisition Contingency CAD: 5,000,000 4/30/2009 10/5/2009 BOA City of Peterborough, ON CAD: 25,000. 10/21/2008 Subttotal /BofA CA: 5,236,275.00	

 
5.03        Certain Authorizations
 
Approvals of the Transaction were required from the Competition Bureau under the Canadian Competition Act and from Industry Canada under the Investment Canada Act, Each such approval has been obtained.

 
5.08(b) Existing Liens
 
None.

 
5.09        Environmental Matters
 
(a) Environmental Litigation
 
Ville Mercier.    In September 2002, Borrower acquired the stock of a subsidiary (the “Mercier Subsidiary”) which owns a hazardous waste incinerator in Ville Mercier, Quebec (the “Mercier Facility”). The property adjacent to the Mercier Facility, which is also owned by the Mercier Subsidiary, is now contaminated as a result of actions dating back to 1968, when the Government of Quebec issued to a company unrelated to the Mercier Subsidiary two permits to dump organic liquids into lagoons on the property. By 1972, groundwater contamination had been identified, and the Quebec government provided an alternate water supply to the municipality of Ville Mercier.
 
In 1999, Ville Mercier and three neighboring municipalities filed separate legal proceedings against the Mercier Subsidiary and the Government of Quebec. The lawsuits assert that the defendants are jointly and severally responsible for the contamination of groundwater in the region, which they claim caused each municipality to incur additional costs to supply drinking water for their citizens since the 1970’s and early 1980’s. The four municipalities claim a total of $1.6 million (CDN) as damages for additional costs to obtain drinking water supplies and seek an injunctive order to obligate the defendants to remediate the groundwater in the region. The Quebec Government also sued the Mercier Subsidiary to recover approximately $17.4 million (CDN) of alleged past costs for constructing and operating a treatment system and providing alternative drinking water supplies.
 
On September 26, 2007, the Quebec Minister of Sustainable Development, Environment and Parks issued a Notice pursuant to Section 115.1 of the Environment Quality Act, superseding Notices issued in 1992, which are the subject of the pending litigation. The more recent Notice notifies the Mercier Subsidiary that, if the Mercier Subsidiary does not take certain remedial measures at the site, the Minister intends to undertake those measures at the site and claim direct and indirect costs related to such measures. The Mercier Subsidiary continues to assert that it has no responsibility for the groundwater contamination in the region and will contest any action by the Ministry to impose costs for remedial measures on the Mercier Subsidiary. Borrower also continues to pursue settlement options.
 
(b)
 
The “BR Facility,” as defined and described in section (c) below, is proposed for listing on NPL.  The “Wichita Property,” as defined and described in section (c) below, is located within, and is in the vicinity of, an industrial corridor that includes sites listed on the NPL.
 
The site located at 2900 Rockefeller Ave., Cleveland, OH 44115 is listed in CERCLIS.

 
(c) Environmental Investigations
 
Superfund Proceedings
 
Borrower has been notified that either Borrower or the prior owners of certain of Borrower’s facilities for which Borrower may have certain indemnification obligations have been identified as potentially responsible parties (“PRPs”) or potential PRPs in connection with 59 sites which are subject to or are proposed to become subject to proceedings under federal or state Superfund laws. Of the 59 sites, two involve facilities that are now owned by Borrower and 57 involve third party sites to which either Borrower or the prior owners shipped wastes. In connection with each site, Borrower has estimated the extent, if any, to which it may be subject, either directly or as a result of any such indemnification provisions, for cleanup and remediation costs, related legal and consulting costs associated with PRP investigations, settlements, and related legal and administrative proceedings. The amount of such actual and potential liability is inherently difficult to estimate because of, among other relevant factors, uncertainties as to the legal liability (if any) of Borrower or the prior owners of certain of Borrower’s facilities to contribute a portion of the cleanup costs, the assumptions that must be made in calculating the estimated cost and timing of remediation, the identification of other PRPs and their respective capability and obligation to contribute to remediation efforts, and the existence and legal standing of indemnification agreements (if any) with prior owners, which may either benefit Borrower or subject Borrower to potential indemnification obligations.
 
Borrower’s potential liability for cleanup costs at the two facilities now owned by Borrower and at 35 (the “Listed Third Party Sites”) of the 57 third party sites arose out of Borrower’s 2002 acquisition of substantially all of the assets (the “CSD assets”) of the Chemical Services Division of Safety-Kleen Corp. As part of the purchase price for the CSD assets, Borrower became liable as the owner of these two facilities and also agreed to indemnify the prior owners of the CSD assets against their share of certain cleanup costs for the Listed Third Party Sites payable to governmental entities under federal or state Superfund laws. Of the 35 Listed Third Party Sites, 18 are currently requiring expenditures on remediation, ten are now settled, six are not currently requiring expenditures on remediation, and at one site Borrower is contesting the prior owner’s liability with the PRP group. The status of the two facilities owned by Borrower (the Wichita Property and the BR Facility) and two of the Listed Third Party Sites (the Breslube-Penn and Casmalia Sites) are further described below. Also further described below are one third party site (the Marine Shale Site) at which Borrower has been named a PRP as a result of its acquisition of the CSD assets but disputes that it has any cleanup or related liabilities, certain of the other third party sites which are not related to Borrower’s acquisition of the CSD assets, and certain notifications which Borrower has received about other third party sites.
 
Wichita Property.  Borrower acquired in 2002 as part of the CSD assets a service center located in Wichita, Kansas (the “Wichita Property”). The Wichita Property is one of several properties located within the boundaries of a 1,400 acre state-designated

 
Superfund site in an old industrial section of Wichita known as the North Industrial Corridor Site. Along with numerous other PRPs, the former owner executed a consent decree relating to such site with the EPA, and Borrower is continuing its ongoing remediation program for the Wichita Property in accordance with that consent decree. Borrower also acquired rights under an indemnification agreement between the former owner and an earlier owner of the Wichita Property, which Borrower anticipates but cannot guarantee will be available to reimburse certain such cleanup costs.
 
BR Facility.  Borrower acquired in 2002 as part of the CSD assets a former hazardous waste incinerator and landfill in Baton Rouge (“BR Facility”), for which operations had been previously discontinued by the prior owner. In September 2007, the EPA issued a Special Notice Letter to Borrower related to the Devil’s Swamp Lake Site (“Devil’s Swamp”) in East Baton Rouge Parish, Louisiana. Devil’s Swamp includes a lake located downstream of an outfall ditch where wastewater and stormwater have been discharged, and Devil’s Swamp is proposed to be included on the National Priorities List due to the presence of Contaminants of Concern (“COC”) cited by the EPA. These COCs include substances of the kind found in wastewater and stormwater discharged from the BR Facility in past operations. The EPA originally requested COC generators to submit a good faith offer to conduct a remedial investigation feasibility study directed towards the eventual remediation of the site. Borrower is currently performing corrective actions at the BR Facility under an order issued by the Louisiana Department of Environmental Quality (the “LDEQ”). Borrower cannot presently estimate the potential additional liability for the Devil’s Swamp cleanup until a final remedy is selected by the EPA.
 
Breslube-Penn Site.  At one of these 35 Listed Third Party Sites, the Breslube-Penn Site, the EPA brought suit in 1997 in the U.S. District Court for the Western District of Pennsylvania against a large number of PRPs for recovery of the EPA’s response costs in connection with that site. The named defendants are alleged to be jointly and severally liable for the remediation of the site and all response costs associated with the site. One of the prior owners, GSX Chemical Services of Ohio (“GSX”), was a named defendant in the original complaint. In 2006, the EPA filed an amended complaint naming Borrower as defendant, alleging that Borrower was the successor in interest to the liability of GSX.
 
Casmalia Site.  At one of these 35 Listed Third Party Sites, the Casmalia Resources Hazardous Waste Management Facility (the “Casmalia Site”) in Santa Barbara County, California, Borrower received from the EPA a request for information in May 2007. In that request, the EPA is seeking information about the extent to which, if at all, the prior owner transported or arranged for disposal of waste at the Casmalia Site. Borrower has not recorded any liability for this new matter on the basis that such transporter or arranger liability is currently neither probable nor estimable.
 
Marine Shale Site.  Prior to 1996, Marine Shale Processors, Inc. (“Marine Shale”) operated a kiln in Amelia, Louisiana which incinerated waste producing a vitrified aggregate as a by-product. Marine Shale contended that its operation recycled waste into a useful product, i.e., vitrified aggregate, and therefore was exempt from regulation under

 
the RCRA and permitting requirements as a hazardous waste incinerator under applicable federal and state environmental laws. The EPA contended that Marine Shale was a “sham-recycler” subject to the regulation and permitting requirements as a hazardous waste incinerator under RCRA, that its vitrified aggregate by-product was a hazardous waste, and that Marine Shale’s continued operation without required permits was illegal. Litigation between the EPA and Marine Shale began in 1990 and continued until July 1996, when the U.S. Fifth Circuit Court of Appeals ordered Marine Shale to shutdown its operations.
 
On May 11, 2007, the EPA and the LDEQ issued a Special Notice to Borrower and other PRPs, seeking a good faith offer to address site remediation at the former Marine Shale facility. Certain of the former owners of the CSD assets were major customers of Marine Shale, but Marine Shale was not included as a Listed Third Party Site in connection with Borrower’s acquisition of the CSD assets and Borrower was never a customer of Marine Shale. Although Borrower believes that it is not liable (either directly or under any indemnification obligation) for cleanup costs at the Marine Shale site, Borrower elected to join with other parties which had been notified that are potentially PRPs in connection with Marine Shale site to form a group (the “Site Group”) to retain common counsel and participate in further negotiations with the EPA and the LDEQ regarding a remedial investigation feasibility study directed towards the eventual remediation of the Marine Shale site. The Site Group made a good faith settlement offer to the EPA on November 29, 2007, and negotiations among the EPA, the LDEQ and the Site Group with respect to the Marine Shale site are ongoing. As of March 31, 2009, the amount of Borrower’s remaining reserves relating to the Marine Shale site was $3.8 million.
 
Certain Other Third Party Sites.  At 14 of the 57 third party sites, Borrower has an indemnification agreement with ChemWaste, a former subsidiary of Waste Management, Inc. and the prior owner. The agreement indemnifies Borrower with respect to any liability at the 14 sites for waste disposed prior to Borrower’s acquisition of the sites. Accordingly, Waste Management is paying all costs of defending those subsidiaries in those 14 cases, including legal fees and settlement costs. However, there can be no guarantee that Borrower’s ultimate liabilities for these sites will not materially exceed the amount recorded or that indemnities applicable to any of these sites will be available to pay all or a portion of related costs. Borrower does not have an indemnity agreement with respect to any of the other remaining sites not discussed above, however Borrower believes that its additional potential liability, if any, to contribute to the cleanup of such remaining sites will not, in the aggregate, exceed $100,000.
 
Other Notifications.  Between September 2004 and May 2006, Borrower also received notices from certain of the prior owners of the CSD assets seeking indemnification from Borrower at five third party sites which are not included in the 57 third party sites described above that have been designated as Superfund sites or potential Superfund sites and for which those prior owners have been identified as PRPs or potential PRPs. Borrower has responded to such letters asserting that Borrower has no obligation to indemnify those prior owners for any cleanup and related costs (if any)

 
which they may incur in connection with these five sites. Borrower intends to assist those prior owners by providing information that is now in Borrower’s possession with respect to those five sites and, if appropriate to participate in negotiations with the government agencies and PRP groups involved. Borrower has also investigated the sites to determine the existence of potential liabilities independent from the liability of those former owners, and concluded that at this time Borrower is not liable for any portion of the potential cleanup of the five sites, and therefore has not established a reserve.
 
Federal, State and Provincial Enforcement Actions
 
From time to time, Borrower pays fines or penalties in regulatory proceedings relating primarily to waste treatment, storage or disposal facilities. As of March 31, 2009, there were three proceedings for which Borrower reasonably believes that the sanctions could equal or exceed $100,000. Borrower does not believe that the fines or other penalties in these or any of the other regulatory proceedings will, individually or in the aggregate, have a material adverse effect on its financial condition or results of operations.  One of such other regulatory proceedings is described below.
 
Thorold Fire.  On February 19, 2007, an explosion and fire occurred at Borrower’s Thorold facility in Ontario during non-business hours destroying a storage warehouse and damaging several nearby buildings on site. No employee casualties or injuries were reported. On October 23, 2007 the Ontario Ministry of the Environment announced that it had concluded its investigation into the fire and that there were no grounds to initiate action against Borrower. This action by the Ontario Ministry of the Environment followed a prior pronouncement by the provincial Ministry of Health that there were no long-term health impacts from the fire. Despite the earlier pronouncements, on February 12, 2009 the Ontario Ministry of the Environment initiated proceedings against one of Borrower’s Canadian subsidiaries in the Ontario Court of Justice alleging three violations of the Environmental Protection Act. Borrower is evaluating this matter and cannot presently estimate the potential liability.

 
5.13        Subsidiaries and Other Equity Investments; Loan Parties
 
(a)
 
The Equity Interests in each Subsidiary listed on the following charts (after giving effect to the consummation of the Acquisition) are owned 100% by the respective parent company, as indicated in such charts, except for Laidlaw Environmental Services de Mexico S.A. de C.V., 10% of which is owned by a party other than a Loan Party or a Subsidiary of a Loan Party and Eveready Directional Limited Partnership, 20% of which is owned by a party other than a Loan Party or a Subsidiary of a Loan Party.
 
(b)
 
None.

 
SCHEDULE 5.13 - SUBSIDIARIES

 

 

 
5.20        Labor Matters
 
Clean Harbors Entity	 	Union	 	Location	 	State/Province	 	Expiration	 	
Clean Harbors Environmental Services, Inc.	 	Teamsters Union, Local 988	 	Deer Park	 	Texas	 	10/27/2011	 	
Clean Harbors Environmental Services, Inc.	 	United Steel Workers, Local 13-434	 	El Dorado	 	Arkansas	 	3/31/2012	 	

 
5.25        Material Contracts
 
[List of customer and vendor contracts, none of which is a “material contract” required to be included as an exhibit pursuant to Item 601 of Regulation S-K under the Securities Act of 1933]

 
6.12        Guarantors
 
Altair Disposal Services, LLC
Baton Rouge Disposal, LLC
Bridgeport Disposal, LLC
CH International Holdings, Inc.
Clean Harbors (Mexico), Inc.
Clean Harbors Andover, LLC
Clean Harbors Antioch, LLC
Clean Harbors Aragonite, LLC
Clean Harbors Arizona, LLC
Clean Harbors Baton Rouge, LLC
Clean Harbors BDT, LLC
Clean Harbors Buttonwillow, LLC
Clean Harbors Chattanooga, LLC
Clean Harbors Clive, LLC
Clean Harbors Coffeyville, LLC
Clean Harbors Colfax, LLC
Clean Harbors Deer Park, L.P.
Clean Harbors Deer Trail, LLC
Clean Harbors Development, LLC
Clean Harbors Disposal Services, Inc.
Clean Harbors El Dorado, LLC
Clean Harbors Environmental Services, Inc.
Clean Harbors Financial Services Company
Clean Harbors Florida, LLC
Clean Harbors Grassy Mountain, LLC
Clean Harbors Kansas, LLC
Clean Harbors Kingston Facility Corporation
Clean Harbors LaPorte, L.P.
Clean Harbors Laurel, LLC
Clean Harbors Lone Mountain, LLC
Clean Harbors Lone Star Corp.
Clean Harbors Los Angeles, LLC
Clean Harbors of Baltimore, Inc.
Clean Harbors of Braintree, Inc.
Clean Harbors of Connecticut, Inc.
Clean Harbors of Natick, Inc.
Clean Harbors of Texas, LLC
Clean Harbors Pecatonica, LLC
Clean Harbors PPM, LLC
Clean Harbors Recycling Services of Chicago, LLC
Clean Harbors Recycling Services of Ohio LLC
Clean Harbors Reidsville, LLC
Clean Harbors San Jose, LLC

 
Clean Harbors Services, Inc.
Clean Harbors Tennessee, LLC
Clean Harbors Westmorland, LLC
Clean Harbors White Castle, LLC
Clean Harbors Wilmington, LLC
Crowley Disposal, LLC
Disposal Properties, LLC
GSX Disposal, LLC
Harbor Industrial Services Texas, L.P.
Harbor Management Consultants, Inc.
Hilliard Disposal, LLC
Murphy’s Waste Oil Service, Inc.
Plaquemine Remediation Services, LLC
Roebuck Disposal, LLC
Sawyer Disposal Services, LLC
Service Chemical, LLC
Spring Grove Resource Recovery, Inc.
Tulsa Disposal, LLC

 
7.02        Permitted Existing Indebtedness
 
None. 

 
7.03(c)   Investments in Subsidiaries
 
(c)(2) — Investments in Non-Loan Parties
 
The Loan Parties have Investments in the non-Loan Party Subsidiaries described in the narrative paragraph in Schedule 5.13 and shown on the charts included in Schedule 5.13.
 
Inter-company Notes:
 
Company
Holding
Note	 	Company
Owing Note	 	Principal
Amount	 	Date of
Issuance	 	Interest
Rate	 	Maturity
Date	 	
CH International Holdings, Inc.	 	CH Canada Holdings Corp.	 	C$	120,000,000	 	6/30/04	 	11	%	6/30/14	 	
CH International Holdings, Inc.	 	Clean Harbors Industrial Services Canada, Inc.	 	C$	120,848,000	 	7/31/09	 	8.5	%	7/31/16	 	
 
Intercompany Note:
 
Signed by the Company and all of the Guarantors, dated July 31, 2009, subordinating to the Obligations under the Credit Agreement all Indebtedness owed by any of the Company and the Guarantors to any other such Person.

 
7.09        Burdensome Agreements
 
None.

 
10.02      Administrative Agent’s Office, Certain Addresses for Notices
 
BORROWER:
CLEAN HARBORS, INC.
42 Longwater Drive
Norwell, MA 02061-9149
Attn: James M. Rutledge
Telephone:  781-792-5125
Telecopier:  781-792-5900
Electronic Mail:  rutledge.jim@cleanharbors.com
U.S. Taxpayer Identification Number: 04-2997780
 
ADMINISTRATIVE AGENT:
 
Administrative Agent’s Office
(for payments and Requests for Credit Extensions):
Bank of America, N.A.
200 Glastonbury Blvd
Mail Code: CT 2-545-01-05
Glastonbury, CT 06033
Attention: Dawn Silveira
Telephone: 860-368-6022
Telecopier: 860-368-6080
Electronic Mail:  Glastonbury_operations@bankofamerica.com
Account No.:  936-933-7579
Ref:  Clean Harbors
ABA# 026009593
 
Other Notices as Administrative Agent:
Bank of America, N.A.
One Federal Street
MA5-503-07-19
Boston, MA  02110
Attention:  Christopher O’Halloran
Telephone:  617-346-1183
Telecopier:  617-654-1167
Electronic Mail:  christopher.o’halloran@bankofamerica.com

 
L/C ISSUER:
Bank of America, N.A.
Trade Operations
600 Peachtree Street NE
Atlanta, GA 30308
Mail Code: GA1-006-10-32
Attention:  Sherri Doughty
Telephone:  404-607-5556
Telecopier:  904-312-6436
Electronic Mail:  sherri.doughty@bankofamerica.com
 
SWING LINE LENDER:
Bank of America, N.A.
200 Glastonbury Blvd
Mail Code: CT 2-545-01-05
Glastonbury, CT 06033
Attention: Dawn Silveira
Telephone: 860-368-6022
Telecopier: 860-368-6080
Electronic Mail:  Glastonbury_operations@bankofamerica.com
Account No.:  936-933-7579
Ref:  Clean Harbors
ABA# 026009593

 
EXHIBIT A-1
 
FORM OF COMMITTED LOAN NOTICE
 
Date:                ,       
 
To:                             Bank of America, N.A., as Administrative Agent
 
Ladies and Gentlemen:
 
Reference is made to that certain Second Amended and Restated Credit Agreement, dated as of July 31, 2009 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ;” the terms defined therein being used herein as therein defined), among Clean Harbors, Inc., a Massachusetts corporation (the “ Borrower ”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
 
The undersigned hereby requests (select one):
 
o    A Borrowing of Revolving Credit Loans
 
o    A conversion or continuation of Revolving Credit Loans
 
1.                                      On                                                 (a Business Day).
 
2.                                      In the amount of $                                    
 
3.                                      Comprised of                                                     
                                                                                             [Type of Loan requested]
 
4.                                      For Eurodollar Rate Loans:  with an Interest Period of           months.
 
The Revolving Credit Borrowing requested herein complies with the proviso to the first sentence of Section 2.01 of the Credit Agreement.

 
The Borrower hereby represents and warrants that the conditions specified in Sections 4.02(a), (b), (c) and (d) of the Credit Agreement shall be satisfied on and as of the date of the Applicable Credit Extension.
 
CLEAN HARBORS, INC.

By:	 	 	
 	 	 	
Name:	 	 	
 	 	 	
Title:	 	 	

 
EXHIBIT A-2
 
FORM OF SWING LINE LOAN NOTICE
 
Date:                     ,     
 
To:                             Bank of America, N.A., as Swing Line Lender
Bank of America, N.A., as Administrative Agent
 
Ladies and Gentlemen:
 
Reference is made to that certain Second Amended and Restated Credit Agreement, dated as of July 31, 2009 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ;” the terms defined therein being used herein as therein defined), among Clean Harbors, Inc., a Massachusetts corporation (the “ Borrower ”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
 
The undersigned hereby requests a Swing Line Loan:
 
1.                                      On                                                     (a Business Day).
 
2.                                      In the amount of $                                          .
 
The Swing Line Borrowing requested herein complies with the requirements of the provisos to the first sentence of Section 2.04(a)  of the Agreement.
 
The Borrower hereby represents and warrants that the conditions specified in Sections 4.02(a), (b), (c) and (d) of the Credit Agreement shall be satisfied on and as of the date of the applicable Credit Extension.
 
CLEAN HARBORS, INC.

By:	 	 	
 	 	 	
Name:	 	 	
 	 	 	
Title:	 	 	

 
EXHIBIT B
 
FORM OF REVOLVING CREDIT NOTE
 
$[                      ]	 	July 31, 2009	
 
FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to                                            or registered assigns (the “ Lender ”), in accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal amount of [             DOLLARS ($                    )], or, if less, the aggregate unpaid principal amount of each Revolving Credit Loan from time to time made by the Lender to the Borrower under that certain Second Amended and Restated Credit Agreement, dated as of July 31, 2009 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ;” the terms defined therein being used herein as therein defined), among the Borrower, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
 
The Borrower promises to pay interest on the unpaid principal amount of each Revolving Credit Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Credit Agreement.  Except as otherwise provided in  Section 2.04(f)  of the Credit Agreement with respect to Swing Line Loans, all payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office.  If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement.
 
This Revolving Credit Note is one of the Revolving Credit Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein.  This Revolving Credit Note is also entitled to the benefits of the Guaranty and is secured by the Collateral.  Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Revolving Credit Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement.  Revolving Credit Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business.  The Lender may also attach schedules to this Revolving Credit Note and endorse thereon the date, amount and maturity of its Revolving Credit Loans and payments with respect thereto.
 
The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Revolving Credit Note.

 
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
 
CLEAN HARBORS, INC.

By:	 	 	
 	 	 	
Name:	 	 	
 	 	 	
Title:	 	 	

 
EXHIBIT C
 
FORM OF COMPLIANCE CERTIFICATE
 
Financial Statement Date:                     ,              
 
To:                             Bank of America, N.A., as Administrative Agent
 
Ladies and Gentlemen:
 
Reference is made to that certain Second Amended and Restated Credit Agreement, dated as of July 31, 2009 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ;” the terms defined therein being used herein as therein defined), among Clean Harbors, Inc., a Massachusetts corporation (the “ Borrower ”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
 
The undersigned Responsible Officer(1) hereby certifies as of the date hereof that he/she is the                                                                        of the Borrower, and that, as such, he/she is authorized to execute and deliver this Compliance Certificate to the Administrative Agent on the behalf of the Borrower, and that:
 
[Use following paragraph 1 for fiscal year-end financial statements]
 
1.                                      The Borrower has delivered the year-end audited consolidated financial statements (including in each case balance sheets, statements of income and loss, statements of cash flow and statements of shareholders’ equity), and the accompanying notes thereto, required by  Section 6.01(a)  of the Credit Agreement for the fiscal year of the Borrower ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section (and such opinion is not subject to any going concern or like qualification, exception or explanatory paragraph).
 
[Use following paragraph 1 for fiscal quarter-end financial statements]
 
1.                                      The Borrower has delivered the unaudited financial statements required by Section 6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the above date.  Such consolidated financial statements fairly present the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.
 
2.                                      The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has made, or has caused to be made under his/her supervision, a detailed review

(1)                                 This certificate should be from the chief executive officer, chief financial officer, treasurer or controller of the Borrower.

 
of the transactions and condition (financial or otherwise) of the Borrower during the accounting period covered by such financial statements.
 
3.                                      A review of the activities of the Borrower during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Borrower performed and observed all its Obligations under the Loan Documents, and
 
[select one:]
 
[to the best knowledge of the undersigned, during such fiscal period the Borrower performed and observed each covenant and condition of the Loan Documents applicable to it, and no Default has occurred and is continuing.]
 
—or—
 
[to the best knowledge of the undersigned, the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:]
 
4.                                      The representations and warranties of the Borrower contained in Article V of the Credit Agreement and all representations and warranties of any Loan Party that are contained in any document furnished at any time under or in connection with the Loan Documents, are true and correct on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Compliance Certificate, the representations and warranties contained in subsections (a) and (b) of  Section 5.05  of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of  Section 6.01  of the Credit Agreement, including the statements in connection with which this Compliance Certificate is delivered.
 
5.                                      The financial covenant analyses and information set forth on Schedules 1 and 2 attached hereto are true and accurate on and as of the date of this Compliance Certificate.
 
IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of                        ,                 .
 
CLEAN HARBORS, INC.

By:	 	 	
 	 	 	
Name:	 	 	
 	 	 	
Title:	 	 	

 
For the Quarter/Year ended                                       ,        	 	
(“Statement Date”)	 	
 
SCHEDULE 1
to the Compliance Certificate
($ in 000’s)
 
I.	 	Section 7.11(a) — Liquidity.	
 	
 	 	A.	 	Prior to the incurrence of the Senior High Yield Debt or Other Secured Debt, permit Liquidity at any time to be less than $25,000,000:	
 	
 	 	 	1.	 	Unpledged Cash:	 	$	
 	 	 	 	 	 	 	 	
 	 	 	2.	 	Excess Availability:	 	$	
 	 	 	 	 	 	 	 	
 	 	 	3.	 	Liquidity (Line I.A.1. + Line I.A.2.):	 	$	
 	 	 	 	 	 	 	 	
 	 	 	4.	 	Liquidity (Line I.A.3.) shall not be less than $25,000,000 at any time	 	 	
 	 	 	 	 	 	 	 	
 	 	 	 	 	Compliance [Yes] [No]	 	 	
 	 	 	 	 	 	 	 	
 	 	B.	 	To the extent Liquidity (Line I.A.3.) falls below $50,000,000, then:	 	 	
 	 	 	 	 	 	 	
 	 	 	1.	 	Prior to the incurrence of the Senior High Yield Debt or Other Secured Debt, Consolidated Fixed Charge Coverage Ratio as of the end of any fiscal quarter calculated for the period of one fiscal quarter then ended shall not be less than 1.00:1	 	 	
 	 	 	 	 	
 	 	 	 	 	(a)	 	Consolidated EBITDA for the one fiscal quarter period ending on above statement date:	 	 	
 	 	 	 	 	
 	 	 	 	 	 	 	(i)	 	Consolidated Net Income for such fiscal quarter:	 	$	
 	 	 	 	 	
 	 	 	 	 	 	 	(ii)	 	Consolidated Interest Charges for such fiscal quarter:	 	$	
 	 	 	 	 	
 	 	 	 	 	 	 	(iii)	 	Provision for income taxes for such fiscal quarter:	 	$	
 	 	 	 	 	
 	 	 	 	 	 	 	(iv)	 	Depreciation expenses for such fiscal quarter:	 	$	
 	 	 	 	 	
 	 	 	 	 	 	 	(v)	 	Amortization expenses for such fiscal quarter:	 	$	

 
 	 	 	 	 	 	 	(vi)	 	Expenses relating to the Transactions for such fiscal quarter (not to exceed $10,000,000 in the aggregate):	 	$	
 	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	(vii)	 	Non-recurring non-cash reductions of Consolidated Net Income for such fiscal quarter:	 	$	
 	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	(viii)	 	Income tax credits for such fiscal quarter:	 	$	
 	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	(ix)	 	Non-cash increases to Consolidated Net Income for such fiscal quarter:	 	$	
 	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	(x)	 	Consolidated EBITDA (Lines I.B.1.(a)(i) +(ii) + (iii) + (iv) + (v) + (vi) + (vii) - (viii) -(ix)):	 	$	
 	 	 	 	 	
 	 	 	 	 	(b)	 	Income taxes paid or payable in cash for such fiscal quarter:	 	$	
 	 	 	 	 	
 	 	 	 	 	(c)	 	Capital Expenditures for such fiscal quarter (other than those financed by Indebtedness permitted under Section 7.02 of the Credit Agreement):	 	$	
 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	(d)	 	Restricted Payments for such fiscal quarter:	 	$	
 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	(e)	 	Environmental Expenditures for such fiscal quarter:	 	$	
 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	(f)	 	Consolidated Interest Charges to the extent paid or payable in cash for such fiscal quarter:	 	$	
 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	(g)	 	Regularly scheduled principal payments of Indebtedness paid or payable for such fiscal quarter:	 	$	
 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	(h)	 	Consolidated Fixed Charge Coverage Ratio for such fiscal quarter (Line I.B.1.(a)(x) - [Lines I.B.1.(b) + (c) + (d) + (e)]) ÷ (Lines I.B.1.(f) + (g)):	 	     :       	
 	 	 	 	 	
 	 	 	 	 	Minimum required for such fiscal quarter: 1.00:1	 	 	
 	 	 	 	 	
 	 	 	 	 	Compliance [Yes] [No]	 	 	
 	 	 	 	 	
 	 	 	2.	 	Prior to the incurrence of the Senior High Yield Debt or Other Secured Debt, deposit of additional cash or Cash Equivalents:	 	 	

 
 	 	 	 	 	(a)	 	Outstanding Amount of Revolving Credit Loans:	 	$	
 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	(b)	 	Outstanding Amount of L/C Obligations:	 	$	
 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	(c)	 	Sum of Line I.B.2.(a) and Line I.B.2.(b):	 	$	
 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	(d)	 	15% of Line I.B.2.(c):	 	$	
 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	(e)	 	Excess Availability:	 	$	
 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	(f)	 	Is Excess Availability (Line I.B.2.(e)) is less than Line I.B.2.(d)?	 	[Yes]      
[No]       	
 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	If Excess Availability (Line I.B.2.(e)) is less than Line I.B.2.(d), the Borrower shall and shall cause its Subsidiaries to deposit additional cash or Cash Equivalents into the appropriate account to be included as Eligible Pledged Cash in an amount sufficient to provide Excess Availability in an amount greater than Line I.B.2.(d)	 	 	
 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	Compliance [Yes] [No]	 	 	
 	 	 	 	 	 	 	 	 	 	
 	 	 	3.	 	At all times, the Borrower shall not make any Restricted Payments, prepayments of Indebtedness, or Permitted Acquisitions unless Liquidity (Line I.A.3.) is greater than $50,000,000 both before and after giving effect to such transaction	 	 	
 	 	 	 	 	
 	 	 	 	 	Compliance [Yes] [No]	 	 	
 	 	 	 	 	
 	 	C.	 	At all times, from and after the incurrence of the Senior High Yield Debt or Other Secured Debt, permit Liquidity at any time to be less than $50,000,000	 	 	
 	 	 	 	 	
 	 	 	1.	 	Liquidity (Line I.A.3.):	 	$	
 	 	 	 	 	 	 	 	
 	 	 	2.	 	Liquidity (Line I.A.3.) shall not be less than $50,000,000 at any time from and after the incurrence of the Senior High Yield Debt	 	 	
 	 	 	 	 	
 	 	 	 	 	Compliance [Yes] [No]	 	 	

 
II.	 	Section 7.11 (b) — Consolidated Fixed Charge Coverage Ratio.	 	 	
(Applies at all times)	
 	 	Measurement Period means, at any date of determination, the most recently completed four fiscal quarters.	
 	 	 	 	 	
 	 	A.	 	Consolidated EBITDA for Measurement Period ending on above date (“Subject Period ”):	 	 	
 	 	 	 	 	
 	 	 	1.	 	Consolidated Net Income for Subject Period:	 	$	
 	 	 	 	 	 	 	 	
 	 	 	2.	 	Consolidated Interest Charges for Subject Period:	 	$	
 	 	 	 	 	 	 	 	
 	 	 	3.	 	Provision for income taxes for Subject Period:	 	$	
 	 	 	 	 	 	 	 	
 	 	 	4.	 	Depreciation expenses for Subject Period:	 	$	
 	 	 	 	 	 	 	 	
 	 	 	5.	 	Amortization expenses for Subject Period:	 	$	
 	 	 	 	 	 	 	 	
 	 	 	6.	 	Expenses relating to the Transactions for Subject Period (not to exceed $10,000,000 in the aggregate for all Measurements Periods)	 	$	
 	 	 	 	 	 	 	 	
 	 	 	7.	 	Non-recurring non-cash reductions of Consolidated Net Income for Subject Period:	 	$	
 	 	 	 	 	 	 	 	
 	 	 	8.	 	Income tax credits for Subject Period:	 	$	
 	 	 	 	 	 	 	 	
 	 	 	9.	 	Non-cash increases to Consolidated Net Income for Subject Period:	 	$	
 	 	 	 	 	 	 	 	
 	 	 	10.	 	Consolidated EBITDA (Lines II.A.1 + 2 + 3 + 4 + 5 + 6 + 7 -8 - 9):	 	$	
 	 	 	 	 	
 	 	B.	 	Income taxes paid or payable in cash for Subject Period:	 	$	
 	 	 	 	 	 	 	
 	 	C.	 	Capital Expenditures for Subject Period (other than those financed by Indebtedness permitted under Section 7.02 of the Credit Agreement):	 	$	
 	 	 	 	 	 	 	
 	 	D.	 	Restricted Payments for Subject Period:	 	$	
 	 	 	 	 	 	 	
 	 	E.	 	Environmental Expenditures for Subject Period:	 	$	
 	 	 	 	 	 	 	
 	 	F.	 	Consolidated Interest Charges to the extent paid or payable in cash for Subject Period:	 	$	

 
 	 	G.	 	Regularly scheduled principal payments of Indebtedness paid or payable for Subject Period:	 	$	
 	 	 	 	 	 	 	
 	 	H.	 	Consolidated Fixed Charge Coverage Ratio (Line II.A.10. - [Line II.B. + Line II.C. + Line II.D. + Line II.E.]) ÷ (Line II.F. + Line II.G.):	 	     :       	
 	 	 	 	 	
 	 	 	 	Minimum required:	 	 	

 	 	 	 	For all Measurement Periods	 	Minimum Consolidated Fixed
Charge Coverage Ratio	 	 	 	
 	 	 	 	 	 	1.00:1	 	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Compliance [Yes] [No]	 	 	

 
EXHIBIT D
 
ASSIGNMENT AND ASSUMPTION
 
This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between the Assignor identified in item 1 below (the “ Assignor ”) and the Assignee identified in item 2 below (the “ Assignee ”).  Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
 
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including, without limitation, the Letters of Credit and the Swing Line Loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as the “ Assigned Interest ”).  Each such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
 
1.                                      Assignor[s]:

2.                                      Assignee[s]:
 
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]
 
3.                                      Borrower:                                         Clean Harbors, Inc., a Massachusetts corporation
 
4.                                      Administrative Agent:              Bank of America, N.A., as the administrative agent under the Credit Agreement

 
5.                                      Credit Agreement:                                              Second Amended and Restated Credit Agreement, dated as of July 31, 2009, among Clean Harbors, Inc., a Massachusetts corporation, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer, and Swing Line Lender
 
6.                                      Assigned Interest:
 
Assignor[s](2)	 	Assignee[s](3)	 	Facility
Assigned	 	Aggregate
Amount of
Commitment/Loans
for all Lenders(4)	 	Amount of
Commitment
/Loans
Assigned	 	Percentage
Assigned of
Commitment/
Loans(5)	 	CUSIP
Number	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	$	 	 	$	 	 	 	%	 	 	
 	 	 	 	 	 	$	 	 	$	 	 	 	%	 	 	
 	 	 	 	 	 	$	 	 	$	 	 	 	%	 	 	

[7.                             Trade Date:                              ](6)
 
Effective Date:                                      , 20     [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

(2)                                 List each Assignor, as appropriate.
(3)                                 List each Assignee, as appropriate.
(4)                                 Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
(5)                                 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
(6)                                 To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.

 
The terms set forth in this Assignment and Assumption are hereby agreed to:
 
ASSIGNOR	 	
 	 	
[NAME OF ASSIGNOR]	 	

By:	 	 	
 	 	
 	Title:	 	

ASSIGNEE	 	
 	 	
[NAME OF ASSIGNEE]	 	

By:	 	 	
 	 	
 	Title:	 	

[Consented to and](7) Accepted:	 	
 	 	
BANK OF AMERICA, N.A., as	 	
  Administrative Agent	 	
 	 	
By:	 	 	
 	Title:	 	
 	 	
[Consented to:](8)	 	
 	 	
By:	 	 	
 	Title:	 	

(7)                                 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
(8)                                 To be added only if the consent of the Borrower and/or other parties (e.g. Swing Line Lender, L/C Issuer) is required by the terms of the Credit Agreement.

 
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
 
Second Amended and Restated Credit Agreement, dated as of July 31, 2009 among Clean Harbors, Inc., a Massachusetts corporation, as the Borrower, each Lender from time to time party thereto, and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer .
 
STANDARD TERMS AND CONDITIONS FOR
 
ASSIGNMENT AND ASSUMPTION
 
1.            Representations and Warranties.
 
1.1.         Assignor.  The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
 
1.2.         Assignee.  The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under  Section 10.06(b)(iii) , (v)  and  (vi)  of the Credit Agreement (subject to such consents, if any, as may be required under  Section 10.06(b)(iii)  of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and

 
without reliance upon the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
 
2.            Payments.  From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
 
3.            General Provisions.  This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.  This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument.  Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.

 
EXHIBIT E
ADMINISTRATIVE DETAILS REPLY FORM — US DOLLAR ONLY
 
CONFIDENTIAL
 
FAX ALONG WITH COMMITMENT LETTER TO:	 	Michael Cote	
FAX #	 	860-368-6080 OR michael.r.cote@bankofamerica.com	
 	 	 	
I.  Borrower Name:	Clean Harbors, Inc.	 	 	
 	 	 	 	
$	120,000,000	       Type of Credit Facility	ABL	
 	 	 	 	
II.  Legal Name of Lender of Record for Signature Page:	

 	 	 	 	
·	 	Signing Credit Agreement  o  YES        o  NO	
·	 	Coming in via Assignment  o  YES        o  NO	
 	 	 	 	 	
III.  Type of Lender:	 	
(Bank, Asset Manager, Broker/Dealer, CLO/CDO, Finance Company, Hedge Fund, Insurance, Mutual Fund, Pension Fund, Other Regulated Investment Fund, Special Purpose Vehicle, Other — please specify)	
 	
IV.  Domestic Address:	 	V.  Eurodollar Address:	

 	 	 	

 	 	 	

 	 	 	
VI.  Contact Information:	 	 	
 	 	 	
Syndicate level information (which may contain material non-public information about the Borrower and its related parties or their respective securities will be made available to the Credit Contact(s).  The Credit Contacts identified must be able to receive such information in accordance with his/her institution’s compliance procedures and applicable laws, including Federal and State securities laws.	

 	 	 	 	Primary	 	Secondary	 	
 	 	Credit Contact	 	Operations Contact	 	Operations Contact	 	
 	 	 	 	 	 	 	 	
Name:	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	
Title	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	
Address:	 	 	 	 	 	 	 	

 	 	 	 	 	 	 	 	
Telephone:	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	
Facsimile:	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	
E Mail Address:	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	
IntraLinks E Mail	 	 	 	 	 	 	 	
Address:	 	 	 	 	 	 	 	

Does Secondary Operations Contact need copy of notices?    o  YES    o  NO

 
 	 	Letter of Credit	 	Draft	 	Documentation	 	
 	 	Contact	 	Contact	 	Legal Counsel	 	
 	 	 	 	 	 	 	 	
Name:	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	
Title	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	
Address:	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	
Telephone:	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	
Facsimile:	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	
E Mail Address:	 	 	 	 	 	 	 	

VII.  Lender’s Standby Letter of Credit, Commercial Letter of Credit, and Bankers’ Acceptance Fed Wire Payment Instructions (if applicable):
 
Pay to:	 	
 	 	 	
 	(Bank Name)	 	
 	 	 	
 	(ABA #)	 	
 	 	 	
 	(Account #)	 	
 	 	 	
 	(Attention)	 	

VIII.  Lender’s Fed Wire Payment Instructions:
 
Pay to:	 	 	
 	 	 	
 	(Bank Name)	 	

 	(ABA#)	(City/State)	

 	(Account #)	(Account Name)	

 	(Attention)	 	

 	 	12/2007	
 
2

 
IX.  Organizational Structure and Tax Status
 
Please refer to the enclosed withholding tax instructions below and then complete this section accordingly:
 
Lender Taxpayer Identification Number (TIN):	                       -                    	

Tax Withholding Form Delivered to Bank of America*:
 
 	 	W-9	
 	 	 	
 	 	W-8BEN	
 	 	 	
 	 	W-8ECI	
 	 	 	
 	 	W-8EXP	
 	 	 	
 	 	W-8IMY	
 
 	 	Tax Contact	 	 	 	 	 	
 	 	 	 	 	 	 	 	
Name:	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	
Title:	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	
Address:	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	
Telephone:	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	
Facsimile:	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	
E Mail Address:	 	 	 	 	 	 	 	

NON–U.S. LENDER INSTITUTIONS
 
1. Corporations:
 
If your institution is incorporated outside of the United States for U.S. federal income tax purposes, and is the beneficial owner of the interest and other income it receives, you must complete one of the following three tax forms, as applicable to your institution: a.) Form W-8BEN (Certificate of Foreign Status of Beneficial Owner), b.) Form W-8ECI (Income Effectively Connected to a U.S. Trade or Business), or c.) Form W-8EXP (Certificate of Foreign Government or Governmental Agency).
 
A U.S. taxpayer identification number is required for any institution submitting a Form W-8 ECI.  It is also required on Form W-8BEN for certain institutions claiming the benefits of a tax treaty with the U.S.  Please refer to the instructions when completing the form applicable to your institution.  In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms.   An original tax form must be submitted.
 
3

 
2. Flow-Through Entities
 
If your institution is organized outside the U.S., and is classified for U.S. federal income tax purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-U.S. flow-through entity, an original Form W-8IMY (Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. branches for United States Tax Withholding) must be completed by the intermediary together with a withholding statement.  Flow-through entities other than Qualified Intermediaries are required to include tax forms for each of the underlying beneficial owners.
 
Please refer to the instructions when completing this form.  In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms.   Original tax form(s) must be submitted .
 
U.S. LENDER INSTITUTIONS:
 
If your institution is incorporated or organized within the United States, you must complete and return Form W-9 (Request for Taxpayer Identification Number and Certification).   Please be advised that we require an original form W-9 .

Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax form for your institution must be completed and returned on or prior to the date on which your institution becomes a lender under this Credit Agreement.  Failure to provide the proper tax form when requested will subject your institution to U.S. tax withholding.

*Additional guidance and instructions as to where to submit this documentation can be found at this link:

 
 
X. Bank of America Payment Instructions:

Pay to:	Bank of America, N.A.	 	
 	ABA # 026009593	 	
 	New York, NY	 	
 	Acct. #	936-933-7579	 	
 	Acct. Name: Bank of America Business Capital	 	
 	Ref: Clean Harbors, Inc.	 	

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EXHIBIT F
 
GUARANTY
 
GUARANTY, dated as of [                ], 2009, by the Loan Parties signatory hereto (collectively, the “ Guarantors ”, and individually, a “ Guarantor ”) in favor of (i) Bank of America, N.A., as administrative agent (hereinafter, in such capacity, the “ Administrative Agent ”) for itself and the Secured Parties, including the other lending institutions (hereinafter, collectively, the “ Lenders ”) which are or may become parties to a Second Amended and Restated Credit Agreement, dated as of [                ], 2009 (as amended, restated, or otherwise modified and in effect from time to time, the “Credit Agreement”), among Clean Harbors, Inc., a Massachusetts corporation (the “ Company ”), the Lenders and the Administrative Agent and (ii) each of the Secured Parties.
 
WHEREAS, the Company and each Guarantor are members of a group of related companies, the success of any one of which is dependent in part on the success of the other members of such group;
 
WHEREAS, each Guarantor expects to receive substantial direct and indirect benefits from the extensions of credit to the Company by the Lenders and the other Secured Parties pursuant to the Credit Agreement (which benefits are hereby acknowledged);
 
WHEREAS, it is a condition precedent to the Lenders’ making any loans or otherwise extending credit to the Company under the Credit Agreement that the Guarantors execute and deliver to the Administrative Agent, for the benefit of the Secured Parties and the Administrative Agent, a guaranty substantially in the form hereof; and
 
WHEREAS, each Guarantor wishes to guaranty the Company’s obligations to the Secured Parties and the Administrative Agent under or in respect of the Credit Agreement as provided herein;
 
NOW, THEREFORE, each Guarantor hereby agrees with the Secured Parties and the Administrative Agent as follows:
 
1.             Definitions.  The term “Obligations” and all other capitalized terms used herein without definition shall have the respective meanings provided therefor in the Credit Agreement.
 
2.             Guaranty of Payment and Performance.  Each Guarantor hereby guarantees to the Secured Parties and the Administrative Agent the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the Obligations including all such which would become due but for the operation of the automatic stay pursuant to §362(a) of the Federal Bankruptcy Code and the operation of §§502(b) and 506(b) of the Federal Bankruptcy Code.  This Guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectibility only and is in no way conditioned upon any requirement that the Administrative Agent or any Secured Party first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment.  Should the Company default in the payment or performance of any of the Obligations,

 
the obligations of each Guarantor hereunder with respect to such Obligations in default shall, upon demand by the Administrative Agent, become immediately due and payable to the Administrative Agent, for the benefit of the Secured Parties and the Administrative Agent, without demand or notice of any nature, all of which are expressly waived by each Guarantor.  Payments by each Guarantor hereunder may be required by the Administrative Agent on any number of occasions.  All payments by each Guarantor hereunder shall be made to the Administrative Agent, in the manner and at the place of payment specified therefor in the Credit Agreement, for the account of the Secured Parties and the Administrative Agent.
 
3.             Guarantor’s Agreement to Pay Enforcement Costs, etc.  Each Guarantor further agrees, as the principal obligor and not as a guarantor only, to pay to the Administrative Agent, on demand, all costs and expenses (including court costs and legal expenses) incurred or expended by the Administrative Agent or any Secured Party in connection with the Obligations, this Guaranty and the enforcement thereof, together with interest on amounts recoverable under this §3 from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest for overdue principal set forth in the Credit Agreement, provided that if such interest exceeds the maximum amount permitted to be paid under applicable law, then such interest shall be reduced to such maximum permitted amount.
 
4.             Waivers by Guarantor; Secured Party’s Freedom to Act.  Each Guarantor agrees that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Administrative Agent or any Secured Party with respect thereto.  Each Guarantor waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally.  Without limiting the generality of the foregoing, each Guarantor agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of such Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of the Administrative Agent or any Secured Party to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of the Credit Agreement ,  the Notes, the other Loan Documents or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations, (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; (v) the adequacy of any rights which the Administrative Agent or any Secured Party may have against any collateral security or other means of obtaining repayment of any of the Obligations; (vi) the impairment of any collateral securing any of the Obligations, including without limitation the failure to perfect or preserve any rights which the Administrative Agent or any Secured Party might have in such collateral security or the substitution, exchange, surrender, release, loss or destruction of any such collateral security; or (vii) any other act or
 
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omission which might in any manner or to any extent vary the risk of any Guarantor or otherwise operate as a release or discharge of any Guarantor, all of which may be done without notice to such Guarantor.  To the fullest extent permitted by law, each Guarantor hereby expressly waives any and all rights or defenses arising by reason of (A) any “one action” or “anti-deficiency” law which would otherwise prevent the Administrative Agent or any Secured Party from bringing any action, including any claim for a deficiency, or exercising any other right or remedy (including any right of set-off), against any Guarantor before or after the Administrative Agent’s or such Secured Party’s commencement or completion of any foreclosure action, whether judicially, by exercise of power of sale or otherwise, or (B) any other law which in any other way would otherwise require any election of remedies by the Administrative Agent or any Secured Party.
 
5.             Unenforceability of Obligations Against Company.  If for any reason the Company has no legal existence or is under no legal obligation to discharge any of the Obligations, or if any of the Obligations have become irrecoverable from the Company by reason of the Company’s insolvency, bankruptcy or reorganization or by other operation of law or for any other reason, this Guaranty shall nevertheless be binding on each Guarantor to the same extent as if such Guarantor at all times had been the principal obligor on all such Obligations.  In the event that acceleration of the time for payment of any of the Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Company, or for any other reason, all such amounts otherwise subject to acceleration under the terms of the Credit Agreement, the Notes, the other Loan Documents or any other agreement evidencing, securing or otherwise executed in connection with any Obligation shall be immediately due and payable by each Guarantor.
 
6.             Subrogation; Subordination.
 
6.1.         Waiver of Rights Against Company.  Until the final payment and performance in full of all of the Obligations, no Guarantor shall exercise and each Guarantor hereby waives any rights against the Company arising as a result of payment by any Guarantor hereunder, by way of subrogation, reimbursement, restitution, contribution or otherwise, and will not prove any claim in competition with the Administrative Agent or any Secured Party in respect of any payment hereunder in any bankruptcy, insolvency or reorganization case or proceedings of any nature; no Guarantor will claim any setoff, recoupment or counterclaim against the Company in respect of any liability of such Guarantor to the Company; and each Guarantor waives any benefit of and any right to participate in any collateral security which may be held by the Administrative Agent or any Secured Party.
 
6.2.         Subordination.  The payment of any amounts due with respect to any indebtedness of the Company for money borrowed or credit received now or hereafter owed to any Guarantor is hereby subordinated to the prior payment in full of all of the Obligations.  Each Guarantor agrees that, after the occurrence of any Default or Event of Default, no Guarantor will demand, sue for or otherwise attempt to collect any such indebtedness of the Company to such Guarantor until all of the Obligations shall have been paid in full.  If, notwithstanding the foregoing sentence, any Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness while any Obligations are still outstanding, such amounts shall be collected, enforced and received by such
 
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Guarantor as trustee for the Secured Parties and the Administrative Agent and be paid over to the Administrative Agent, for the benefit of the Secured Parties and the Administrative Agent, on account of the Obligations without affecting in any manner the liability of the Guarantor under the other provisions of this Guaranty.
 
6.3.         Provisions Supplemental.  The provisions of this §6 shall be supplemental to and not in derogation of any rights and remedies of the Secured Parties and the Administrative Agent under any separate subordination agreement which the Administrative Agent may at any time and from time to time enter into with any Guarantor for the benefit of the Secured Parties and the Administrative Agent.
 
7.             Security; Setoff.  Each Guarantor grants to each of the Administrative Agent and the Secured Parties, as security for the full and punctual payment and performance of all of the Guarantor’s obligations hereunder, a continuing lien on and security interest in all securities or other property belonging to such Guarantor now or hereafter held by the Administrative Agent or such Secured Party and in all deposits (general or special, time or demand, provisional or final) and other sums credited by or due from the Administrative Agent or such Secured Party to any Guarantor or subject to withdrawal by any Guarantor.  Regardless of the adequacy of any collateral security or other means of obtaining payment of any of the Obligations, each of the Administrative Agent and the Secured Parties is hereby authorized at any time and from time to time, without notice to any Guarantor (any such notice being expressly waived by each Guarantor) and to the fullest extent permitted by law, to set off and apply such deposits and other sums against the obligations of any Guarantor under this Guaranty, whether or not the Administrative Agent or such Secured Party shall have made any demand under this Guaranty and although such obligations may be contingent or unmatured.
 
8.             Further Assurances.  Each Guarantor agrees that it will from time to time, at the request of the Administrative Agent, do all such things and execute all such documents as the Administrative Agent may consider necessary or desirable to give full effect to this Guaranty and to perfect and preserve the rights and powers of the Secured Parties and the Administrative Agent hereunder.  Each Guarantor acknowledges and confirms that such Guarantor itself has established its own adequate means of obtaining from the Company on a continuing basis all information desired by such Guarantor concerning the financial condition of the Company and that such Guarantor will look to the Company and not to the Administrative Agent or any Secured Party in order for such Guarantor to keep adequately informed of changes in the Company’s financial condition.
 
9.             Termination; Reinstatement.  This Guaranty shall remain in full force and effect until the Administrative Agent is given written notice of any Guarantor’s intention to discontinue this Guaranty, notwithstanding any intermediate or temporary payment or settlement of the whole or any part of the Obligations.  No such notice shall be effective unless received and acknowledged by an officer of the Administrative Agent at the address of the Administrative Agent for notices set forth in §10.02 of the Credit Agreement.  No such notice shall affect any rights of the Administrative Agent or any Secured Party hereunder, including without limitation the rights set forth in §§4 and 6, with respect to any Obligations incurred or accrued prior to the receipt of such notice or any Obligations incurred or accrued pursuant to any contract or commitment in existence prior to such receipt.  This Guaranty shall continue to be effective or be
 
8

 
reinstated, notwithstanding any such notice, if at any time any payment made or value received with respect to any Obligation is rescinded or must otherwise be returned by the Administrative Agent or any Secured Party upon the insolvency, bankruptcy or reorganization of the Company, or otherwise, all as though such payment had not been made or value received.
 
10.          Successors and Assigns.  This Guaranty shall be binding upon each Guarantor, its successors and assigns, and shall inure to the benefit of the Administrative Agent and the Secured Parties and their respective successors, transferees and assigns.  Without limiting the generality of the foregoing sentence, each Lender may assign or otherwise transfer the Credit Agreement, the Notes, the other Loan Documents or any other agreement or note held by it evidencing, securing or otherwise executed in connection with the Obligations, or sell participations in any interest therein, to any other entity or other person, and such other entity or other person shall thereupon become vested, to the extent set forth in the agreement evidencing such assignment, transfer or participation, with all the rights in respect thereof granted to such Lender herein, all in accordance with §10.06 of the Credit Agreement.  No Guarantor may assign any of its obligations hereunder.
 
11.          Amendments and Waivers.  No amendment or waiver of any provision of this Guaranty nor consent to any departure by any Guarantor therefrom shall be effective unless the same shall be in writing and signed by the Administrative Agent with the consent of the Required Lenders.  No failure on the part of the Administrative Agent or any Secured Party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right.
 
12.          Notices.  All notices and other communications called for hereunder shall be made in writing and, unless otherwise specifically provided herein, shall be deemed to have been duly made or given when delivered by hand or mailed first class, postage prepaid, or, in the case of telegraphic or telexed notice, when transmitted, answer back received, addressed as follows:  if to the Guarantor, at the address for notices to the Company set forth in  §10.02 of the Credit Agreement, and if to the Administrative Agent, at the address for notices to the Administrative Agent set forth in §10.02 of the Credit Agreement, or at such address as either party may designate in writing to the other.
 
13.          Governing Law; Consent to Jurisdiction.  THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS). EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK  STATE COURT OR, TO
 
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THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY SECURED PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST ANY GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
 
14.          Waiver of Jury Trial.  EACH GUARANTOR HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS GUARANTY, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF ANY OF SUCH RIGHTS OR OBLIGATIONS.  Except as prohibited by law, each Guarantor hereby waives any right which it may have to claim or recover in any litigation referred to in the preceding sentence any special, exemplary, punitive or consequential damages or any damages other than, or in addition to, actual damages.  Each Guarantor (i) certifies that neither the Administrative Agent or any Secured Party nor any representative, agent or attorney of the Administrative Agent or any Secured Party has represented, expressly or otherwise, that the Administrative Agent or any Secured Party would not, in the event of litigation, seek to enforce the foregoing waivers and (ii) acknowledges that, in entering into the Credit Agreement and the other Loan Documents to which the Administrative Agent or any Secured Party is a party, the Administrative Agent and the Secured Parties are relying upon, among other things, the waivers and certifications contained in this §14.
 
15.          Miscellaneous.  This Guaranty constitutes the entire agreement of each Guarantor with respect to the matters set forth herein.  The rights and remedies herein provided are cumulative and not exclusive of any remedies provided by law or any other agreement, and this Guaranty shall be in addition to any other guaranty of or collateral security for any of the Obligations.  The invalidity or unenforceability of any one or more sections of this Guaranty shall not affect the validity or enforceability of its remaining provisions.  Captions are for the ease of reference only and shall not affect the meaning of the relevant provisions.  The meanings of all defined terms used in this Guaranty shall be equally applicable to the singular and plural forms of the terms defined.
 
16.          Contribution.  To the extent any Guarantor makes a payment hereunder in excess of the aggregate amount of the benefit received by such Guarantor in respect of the extensions of credit under the Credit Agreement (the “ Benefit Amount ”), then such Guarantor, after the payment in full, in cash, of all of the Obligations, shall be entitled to recover from each other guarantor of the Obligations such excess payment,  pro rata , in accordance with the ratio of the Benefit Amount received by each such other guarantor to the total Benefit Amount received by all guarantors of the Obligations, and the right to such recovery shall be deemed to be an asset and property of the Guarantor so funding;  provided , that all such rights to recovery shall be subordinated and junior in right of payment to the final and undefeasible payment in full in cash of all of the Obligations.
 
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed and delivered as of the date first above written.

 
ALTAIR DISPOSAL SERVICES, LLC
 
BATON ROUGE DISPOSAL, LLC
 
BRIDGEPORT DISPOSAL, LLC
 
CH INTERNATIONAL HOLDINGS, INC.
 
CLEAN HARBORS ANDOVER, LLC
 
CLEAN HARBORS ANTIOCH, LLC
 
CLEAN HARBORS ARAGONITE, LLC
 
CLEAN HARBORS ARIZONA, LLC
 
CLEAN HARBORS OF BALTIMORE, INC.
 
CLEAN HARBORS BATON ROUGE, LLC
 
CLEAN HARBORS BDT, LLC
 
CLEAN HARBORS BUTTONWILLOW, LLC
 
CLEAN HARBORS CHATTANOOGA, LLC
 
CLEAN HARBORS COFFEYVILLE, LLC
 
CLEAN HARBORS COLFAX, LLC
 
CLEAN HARBORS DEER PARK, L.P.
 
CLEAN HARBORS DEER TRAIL, LLC
 
CLEAN HARBORS DEVELOPMENT, LLC
 
CLEAN HARBORS DISPOSAL SERVICES, INC.
 
CLEAN HARBORS EL DORADO, LLC
 
CLEAN HARBORS FINANCIAL SERVICES COMPANY
 
CLEAN HARBORS FLORIDA, LLC
 
CLEAN HARBORS GRASSY MOUNTAIN, LLC
 
CLEAN HARBORS KANSAS, LLC
 
CLEAN HARBORS LAPORTE, L.P.
 
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CLEAN HARBORS LAUREL, LLC
 
CLEAN HARBORS LONE MOUNTAIN, LLC
 
CLEAN HARBORS LONE STAR CORP.
 
CLEAN HARBORS LOS ANGELES, LLC
 
CLEAN HARBORS (MEXICO), INC.
 
CLEAN HARBORS OF TEXAS, LLC
 
CLEAN HARBORS PECATONICA, LLC
 
PLAQUEMINE REMEDIATION SERVICES, LLC

 	By:	 	
 	 	  Name:	
 
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 	 	  Title:  *	
 
CLEAN HARBORS PPM, LLC
 
CLEAN HARBORS REIDSVILLE, LLC
 
CLEAN HARBORS SAN JOSE, LLC
 
CLEAN HARBORS RECYCLING SERVICES OF CHICAGO, LLC
 
CLEAN HARBORS RECYCLING SERVICES OF OHIO, LLC
 
CLEAN HARBORS TENNESSEE, LLC
 
CLEAN HARBORS WESTMORLAND, LLC
 
CLEAN HARBORS WHITE CASTLE, LLC
 
CLEAN HARBORS WILMINGTON, LLC
 
CROWLEY DISPOSAL, LLC
 
DISPOSAL PROPERTIES, LLC
 
GSX DISPOSAL, LLC
 
HARBOR MANAGEMENT CONSULTANTS, INC.
 
HARBOR INDUSTRIAL SERVICES TEXAS, L.P.
 
HILLIARD DISPOSAL, LLC
 
CLEAN HARBORS CLIVE, LLC
 
ROEBUCK DISPOSAL, LLC
 
SAWYER DISPOSAL SERVICES, LLC
 
SERVICE CHEMICAL, LLC
 
TULSA DISPOSAL, LLC
 
CLEAN HARBORS ENVIRONMENTAL SERVICES, INC.
 
CLEAN HARBORS OF BRAINTREE, INC.
 
CLEAN HARBORS OF NATICK, INC.
 
CLEAN HARBORS SERVICES, INC.
 
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MURPHY’S WASTE OIL SERVICE, INC.
 
CLEAN HARBORS KINGSTON FACILITY CORPORATION
 
CLEAN HARBORS OF CONNECTICUT, INC.
 
SPRING GROVE RESOURCE RECOVERY, INC.

 	By:	 	
 	 	  Name:	
 	 	  Title:  *	
 
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EXHIBIT G
 
Security Agreement — Filed with Clean Harbors, Inc. Form 8-K dated August 14, 2009

 
EXHIBIT H-1
 
Corporation Existence; Due Authorization.  i)  Each of the Loan Parties (x) is duly organized and validly existing under the laws of its jurisdiction of incorporation or formation and in good standing in the jurisdiction of each such entity’s state of incorporation or formation and (y) is qualified and in good standing (to the extent such concept is applicable in the applicable jurisdiction) to do business in every jurisdiction where such qualification is required, except in such jurisdictions where the failure to so qualify or be in good standing, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.  Each of the Loan Parties has the requisite corporate or other organizational power and authority, and has taken all necessary corporate or other organizational action, to duly authorize the execution and delivery of each of the Documents to which it is a party and the performance by it of the transactions contemplated therein.  Each of the Documents has been duly executed and delivered by each of the Loan Parties that is a party thereto and each of the Documents to which any such Loan Party is a party constitutes the legal, valid and binding obligation of each such Loan Party in the jurisdiction of each such entity’s state of incorporation or formation, without reference to that jurisdiction’s provisions as to conflict of laws.
 
i.              Neither the execution, delivery or performance by any of the Loan Parties of the Documents to which it is a party, nor compliance with the terms and provisions thereof, nor the consummation of the transactions contemplated therein, (i) will contravene any applicable provision of any law, statute, rule or regulation of U.S. law, or of any governmental authority in each Loan Party’s state of incorporation or formation, or any order, writ, injunction or decree of that State’s governmental authority, (ii) will violate any provision of the articles of organization, certificate of incorporation, certificate of limited partnership, operating agreement, by-laws or limited partnership agreement of any of the Loan Parties, or (iii) will violate any agreement known to us to which any such Loan Party is a party.
 
ii.             No order, consent, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, any Massachusetts governmental authority (other than those which have previously been obtained or made and except for filings to perfect security interests granted pursuant to the Documents) is required to authorize or is required in connection with (i) the execution, delivery and performance of any Document or the transactions contemplated therein or (ii) the legality, validity, binding effect or enforceability of any Document.
 
b.             Credit Agreement and Security Agreement.  Assuming that the Credit Agreement and the Security Agreement each is governed by the laws of Massachusetts, and not by New York law as the Documents so provide, for the purpose of rendering the opinion set forth in this paragraph 2., the Credit Agreement and the Security Agreement each is in proper form under the applicable laws of Massachusetts to (i) create and constitute a valid security interest in, lien on or pledge of the Collateral described therein for which a security interest may be created under the UCC and (ii) be enforceable against each Loan Party named in the Credit Agreement and Grantor named in the Security Agreement in accordance with its terms.
 
c.             The Security Interests.  The Financing Statements are in appropriate form for filing in the office of the Secretary of State of the State of Delaware and the office of the Secretary of the

 
Commonwealth of the Commonwealth of Massachusetts, as applicable.  Upon the filing of the Financing Statements in the offices specified in  Schedule B  hereto, the security interest of the Administrative Agent, for the benefit of the Lenders Secured Parties, in the Loan Parties’ rights in such of the Collateral in which security rights can be created under Article 9 of the UCC described in the Financing Statements will be perfected under the UCC to the extent that a security interest in such Collateral can be perfected by the filing of a financing statement.
 
d.             Taxes etc.  No taxes or other charges, including, without limitation, intangible or documentary stamp taxes, recording taxes, transfer taxes or similar charges, are payable to the Commonwealth of Massachusetts or to any jurisdiction therein on account of the execution and delivery of the Documents or the creation of the indebtedness evidenced or secured by any of the Documents or the recording or filing of the Financing Statements, except for nominal filing or recording fees.
 
e.             Concerning the Administrative Agent and the Lenders.  ii)  The execution, delivery, recordation and performance by the Administrative Agent and the Lenders of the Documents to which each is a party (i) will not violate any existing law, governmental rule or regulation of the Commonwealth of Massachusetts and (ii) do not require any license, permit, authorization, consent or other approval of, any exemption by, or any registration, recording or filing with, any court, administrative agency or other governmental authority of that State, except for the recordings and the filings set forth in  Schedule B .
 
i.              The Administrative Agent and the Lenders are not required (a) to be qualified to do business or file any designation for service of process in the Commonwealth of Massachusetts, or (b) to comply with any statutory or regulatory requirement applicable only to financial institutions chartered or qualified or required to be chartered or qualified to do business in the Commonwealth of Massachusetts, in each case solely by reason of the execution and delivery of filing or recording, as applicable, of any of the Documents, or by reason of the participation in any of the transactions under or contemplated thereby, the making and receipt of payments pursuant thereto and the exercise of any remedy thereunder, so long as the Lenders and/or the Administrative Agent do not become the owner or lessee of Massachusetts real estate.  In the event a Lender or the Administrative Agent is required to be qualified to do business, the validity of the Documents would not be affected thereby, but if such Lender or the Administrative Agent were not so qualified it may be precluded from enforcing its rights in the courts of the Commonwealth of Massachusetts until such time as it is admitted to transact business in the Commonwealth of Massachusetts and has filed all annual reports required by law and paid all fees and charges in connection therewith.
 
f.              Usury.  Assuming that the Documents were governed by the laws of the Commonwealth of Massachusetts, and not by New York law as the Documents so provide, to the extent applicable to such Lender, the execution and filing with the Attorney General of the Commonwealth of Massachusetts, at or prior to the Closing Date, of the notice required by G.L.c. 271, §49(d) will render the Lenders exempt from any Massachusetts usury laws.
 
g.             Administrative Agent. The Administrative Agent is permitted under the laws of the Commonwealth of Massachusetts, without naming all of the Lenders in any applicable legal

 
proceeding, to exercise remedies under the Credit Agreement or the Security Agreement for the realization of any of the Collateral in its own name, as Administrative Agent.
 
h.             Choice of Law.  If the question were properly presented, a Massachusetts court, or a Federal court applying that state’s choice of law principles, would give effect to the provisions in the Documents which select the laws of the State of New York as the governing law thereof and would apply such laws, rather than the laws of Massachusetts, to the enforceability and construction of the Documents, except for those matters in the Documents with respect to the creation, perfection and enforcement of liens on and security interests in the Collateral and the exercise of remedies thereunder, unless the court determined that such choice of law was made without a reasonable basis or that the application of New York law to the particular issue in dispute would result in the violation of a fundamental public policy of Massachusetts.
 
i.              Investment Company.  None of the Borrower, any Person Controlling the Borrower, or any Loan Party is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

 
EXHIBIT H-2
 
(i) The Credit Documents constitute the valid and binding obligations of each Loan Party which is a party thereto, enforceable against it in accordance with their respective terms.  The execution, delivery and performance by each Loan Party of each of the Credit Documents to which it is a party will not violate any law, statute or regulation of the State of New York.
 
(ii) A security interest in favor of the Administrative Agent, for the benefit of the Administrative Agent and the Lenders, has attached under the New York UCC to the collateral described in the Security Agreement to which a security interest may attach under Article 9 of the New York UCC (the “ Article 9 Collateral ”).

 
EXHIBIT I
 
FORM OF BORROWING BASE CERTIFICATE
 
To:	Bank of America, N.A., as Administrative Agent	
 	 	
Date:	[                                ]	
 
This report (this “Certificate”) is submitted pursuant to the Second Amended and Restated Credit Agreement dated as of July 31, 2009 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ”) among Clean Harbors, Inc., a Massachusetts corporation (the “ Borrower ”), the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.  Unless otherwise indicated, capitalized terms used by not defined herein shall have the meanings ascribed to them in the Credit Agreement.  Pursuant to the Collateral Documents, the Administrative Agent has been granted a security interest in all of the Collateral, and has a valid, perfected first priority security interest in the Eligible Collateral.
 
The undersigned hereby certifies, as of the date first written above, that (a) the amounts and calculation in Schedule 1  accurately reflect the Accounts, Eligible Accounts, Municipal Government Accounts, Federal Government Accounts, Eligible Pledged Cash, Reserves and Outstanding Amounts and (b) no Default or Event of Default has occurred or is continuing.
 
CLEAN HARBORS, INC.
 
By:	 	 	 	
 	 	 	 	
Name:	 	 	 	
 	 	
 	Title:	 	

 
SCHEDULE I
to Borrowing Base Certificate
 
[See attached worksheet]