Third Amended And Restated Credit Agreement

THIRD AMENDED AND RESTATED CREDIT AGREEMENT Among GENCORP INC., as Borrower, ITS MATERIAL DOMESTIC SUBSIDIARIES FROM TIME TO TIME PARTIES HERETO, as Guarantors, THE LENDERS PARTIES HERETO, WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, ...


CUSIP Numbers: 36868YAA8
36868YAB6
36868YAC4

$300,000,000


among

GENCORP INC.,
as Borrower,

ITS MATERIAL DOMESTIC SUBSIDIARIES
FROM TIME TO TIME PARTIES HERETO,
as Guarantors,

THE LENDERS PARTIES HERETO,

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent,

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

SUNTRUST BANK
and
U.S. BANK NATIONAL ASSOCIATION,
as Syndication Agents

Dated as of May 30, 2014

and

WELLS FARGO SECURITIES, LLC,
SUNTRUST ROBINSON HUMPHREY, INC.
and
U.S. BANK NATIONAL ASSOCIATION,
as Joint Lead Arrangers and Joint Book Runners
 

 
 

 
 
TABLE OF CONTENTS

     
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
i

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
ii

 
 
 
 
 
 
 
 
 
 
 
   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
   
 
 
 
 
 
 
 
 
 
 
  Keepwell.

 
iii

 
 
Schedules
 
Schedule 1.1(a) Account Designation Letter
Schedule 1.1(b) Investments
Schedule 1.1(c) Liens
Schedule 1.1(d) Existing Letters of Credit
Schedule 1.1(e) Mortgaged Properties
Schedule 1.1(f) Litigation
Schedule 1.1(g) Discontinued Operations
Schedule 1.1(h) Form of Bank Product Provider Notice
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(e) Form of Revolving Note
Schedule 2.3(d) Form of Swingline Note
Schedule 2.4(a) Form of Funding Indemnity Letter
Schedule 2.4(d) Form of Term Loan Note
Schedule 2.11 Form of Notice of Conversion/Extension
Schedule 3.12 Subsidiaries
Schedule 3.16 Intellectual Property
Schedule 3.19(a) Location of Real Property
Schedule 3.19(b) Location of Collateral
Schedule 3.19(c) Chief Executive Offices; Jurisdictions of Organization and Qualification
Schedule 3.22 Labor Matters
Schedule 3.24 Material Contracts
Schedule 3.25 Insurance
Schedule 4.1(b) Form of Secretary’s Certificate
Schedule 4.1(f) Form of Solvency Certificate
Schedule 4.1(r) Form of Patriot Act Certificate
Schedule 5.2(b) Form of Officer’s Compliance Certificate
Schedule 5.10 Form of Joinder Agreement
Schedule 6.1(b) Indebtedness
Schedule 6.12 Sale Leasebacks
Schedule 9.6(c) Form of Assignment and Assumption
 
 
iv

 

THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 30, 2014, among GENCORP INC., a Delaware corporation (the “Borrower”), each of those Material Domestic Subsidiaries of the Borrower identified as a “Guarantor” on the signature pages hereto and such other Material Domestic Subsidiaries of the Borrower as may from time to time become a party hereto (collectively the “Guarantors” and individually a “Guarantor”), the several banks and other financial institutions from time to time parties to this Credit Agreement (collectively the “Lenders” and individually a “Lender”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as administrative agent for the Lenders hereunder (in such capacity, the “Administrative Agent” or the “Agent”).
 
W I T N E S S E T H:
 
       WHEREAS, the Borrower, the Guarantors, the Administrative Agent and the existing lenders are parties to that certain Second Amended and Restated Credit Agreement, dated November 18, 2011 (as amended, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”); and

WHEREAS, the Borrower and the Guarantors desire to amend the Existing Credit Agreement as set forth herein and to restate the Existing Credit Agreement in its entirety to read as follows; and

WHEREAS, the Borrower has requested that the Lenders make loans and other financial accommodations to the Borrower in the amount of up to $300,000,000, as more particularly described herein; and

WHEREAS, the Lenders have agreed to make such loans and other financial accommodations to the Borrower on the terms and conditions contained herein.

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


DEFINITIONS

Section 1.1                      Defined Terms.

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

4.0625% Convertible Debentures” shall mean, collectively, those certain 4.0625% unsecured convertible subordinated debentures due 2039 issued by the Borrower, as the same may be amended, restated, supplemented or otherwise modified from time to time as permitted hereunder.
 
 
1

 
 
2.25% Convertible Notes” shall mean, collectively, those certain 2.25% unsecured convertible subordinated debentures due November 2024 issued by the Borrower, as the same may be amended, restated, supplemented or otherwise modified from time to time as permitted hereunder.
 
ABR Default Rate” shall mean, as of any date of determination, the Alternate Base Rate plus the Applicable Percentage with respect to Alternate Base Rate Loans on such date plus 2%.

Accepting Lenders” shall have the meaning assigned to such term in Section 9.1.

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

Account Designation Letter” shall mean the Notice of Account Designation Letter dated the Closing Date from the Borrower to the Administrative Agent in substantially the form attached hereto as Schedule 1.1(a).
 
Additional Credit Party” shall mean each Person that becomes a Guarantor by execution of a Joinder Agreement or other guaranty agreement in accordance with Section 5.10.

Additional Second Lien Indebtedness” shall mean Indebtedness of the Borrower and/or its Subsidiaries subject to the following conditions: (a) the aggregate principal amount of such Indebtedness shall not exceed an amount such that after giving effect to such Indebtedness on a pro forma basis, the Secured Leverage Ratio does not exceed 3.75 to 1.00, (b) the holder (or collateral agent) in respect of such Indebtedness shall have executed an Intercreditor Agreement, (c) such Indebtedness shall not be scheduled to mature prior to the date that is ninety (90) days after the Maturity Date and such Indebtedness shall not be subject to any scheduled amortization prior to such date unless the Administrative Agent has otherwise consented in writing, (d) the Credit Parties shall have delivered a certificate (including reasonably detailed supporting calculations related to the matters set forth in such certificate) of a Responsible Officer to the Administrative Agent to the effect that, after giving effect to such Indebtedness (and any Permitted Acquisition consummated in connection with the incurrence of such Indebtedness) on a pro forma basis, the Credit Parties are in compliance with each of the financial covenants set forth in Section 5.9, (e) no Default or Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred, (f) the terms and conditions of such Indebtedness (including, without limitation, financial covenants, affirmative covenants, negative covenants, representations and warranties and defaults) are customary for similar Indebtedness in light of then-prevailing market conditions and in any event, when taken as a whole (other than interest rate and redemption premiums), are no more restrictive to the Borrower and the Restricted Subsidiaries than the terms and conditions set forth in the Credit Documents and (g) upon the Administrative Agent’s receipt of a certificate of a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirements set out in the foregoing clause (f) (which certificate may be included as part of the certificate required to be delivered pursuant to the foregoing clause (d)), such certificate shall be conclusive evidence that such terms and conditions satisfy such requirements unless the Administrative Agent provides notice to the Borrower of its objection during such five Business Day period.
 
 
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Administrative Agent” or “Agent” shall have the meaning set forth in the first paragraph of this Credit Agreement and any successors in such capacity.

Administrative Questionnaire” shall mean an Administrative Questionnaire in a form supplied by the Administrative Agent.

Aerojet Rocketdyne” means Aerojet Rocketdyne, Inc., an Ohio corporation.

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

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

Agreement Currency” shall have the meaning set forth in Section 9.24.
 
        “Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c) the sum of (i) LIBOR (as determined pursuant to the definition of LIBOR), for an Interest Period of one (1) month commencing on such day plus (ii) 1.00%, in each instance as of such date of determination.  For purposes hereof: “Prime Rate” shall mean, at any time, the rate of interest per annum publicly announced or otherwise identified from time to time by Wells Fargo at its principal office in Charlotte, North Carolina as its prime rate.  Each change in the Prime Rate shall be effective as of the opening of business on the day such change in the Prime Rate occurs.  The parties hereto acknowledge that the rate announced publicly by Wells Fargo as its Prime Rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks; and “Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published on the next succeeding Business Day, the average of the quotations for the day of such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.  If for any reason the Administrative Agent shall have determined (which determination shall be conclusive in the absence of manifest error) (A) that it is unable to ascertain the Federal Funds Effective Rate, for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms above or (B) that the Prime Rate or LIBOR no longer accurately reflects an accurate determination of the prevailing Prime Rate or LIBOR, the Administrative Agent may select a reasonably comparable index or source to use as the basis for the Alternate Base Rate, until the circumstances giving rise to such inability no longer exist.  Any change in the Alternate Base Rate due to a change in any of the foregoing will become effective on the effective date of such change in the Federal Funds Rate, the Prime Rate or LIBOR for an Interest Period of one (1) month.  Notwithstanding anything contained herein to the contrary, to the extent that the provisions of Section 2.12 shall be in effect in determining LIBOR pursuant to clause (c) hereof, the Alternate Base Rate shall be the greater of (i) the Prime Rate in effect on such day and (ii) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
 
 
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Alternate Base Rate Loans” shall mean Loans that bear interest at an interest rate based on the Alternate Base Rate.

Applicable Percentage” shall mean, (i) prior to the Borrower’s achievement of a corporate credit rating of BB- from S&P and a corporate family rating of Ba3 from Moody’s, for any day, the rate per annum set forth below opposite the applicable level then in effect (based on the Leverage Ratio), it being understood that the Applicable Percentage for (a) Loans that are Alternate Base Rate Loans shall be the percentage set forth under the column “Base Rate Margin”, (b) Loans that are LIBOR Rate Loans shall be the percentage set forth under the column “LIBOR Margin & L/C Fee”, (c) the Revolving LOC Commitment Fee shall be the percentage set forth under the column “LIBOR Margin & L/C Fee” and (d) the Revolving Commitment Fee shall be the percentage set forth under the column “Revolving Commitment Fee”:

Applicable Percentage
 
 
Level
 
 
Leverage Ratio
 
LIBOR Margin
& L/C Fee
   
Base Rate Margin
   
Revolving Commitment Fee
 
I  
Less than 1.75 to 1.00
    1.75%       0.75%       0.35%  
II
 
Greater than or equal to 1.75 to 1.00 but less than 2.25 to 1.00
    2.00%       1.00%       0.40%  
III
 
Greater than or equal to 2.25 but less than 3.50 to 1.00
    2.25%       1.25%       0.45%  
IV
 
Greater than or equal to 3.50 to 1.00
    2.50%       1.50%       0.50%  

(ii) following the Borrower’s achievement of a corporate credit rating of BB- from S&P and a corporate family rating of Ba3 from Moody’s, for any day, the rate per annum set forth below opposite the applicable level then in effect (based on the Leverage Ratio), it being understood that the Applicable Percentage for (a) Loans that are Alternate Base Rate Loans shall be the percentage set forth under the column “Base Rate Margin”, (b) Loans that are LIBOR Rate Loans shall be the percentage set forth under the column “LIBOR Margin & L/C Fee”, (c) the Revolving LOC Commitment Fee shall be the percentage set forth under the column “LIBOR Margin & L/C Fee” and (d) the Revolving Commitment Fee shall be the percentage set forth under the column “Revolving Commitment Fee”:
 
Applicable Percentage
 
 
Level
 
Leverage Ratio
LIBOR Margin
& L/C Fee
Base Rate Margin
Revolving Commitment Fee
I
Less than 1.75 to 1.00
1.50%
0.50%
0.30%
II
Greater than or equal to 1.75 to 1.00 but less than 2.25 to 1.00
1.75%
0.75%
0.35%
III
Greater than or equal to 2.25 but less than 3.50 to 1.00
2.00%
1.00%
0.40%
IV
Greater than or equal to 3.50 to 1.00
2.25%
1.25%
0.45%
 
 
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The Applicable Percentage, in each case, shall be determined and adjusted quarterly on the date five (5) Business Days after the date on which the Administrative Agent has received from the Borrower the quarterly financial information (in the case of the first three fiscal quarters of the Borrower’s fiscal year), the annual financial information (in the case of the fourth fiscal quarter of the Borrower’s fiscal year) and the certifications required to be delivered to the Administrative Agent and the Lenders in accordance with the provisions of Sections 5.1(a), 5.1(b) and 5.2(b) (each an “Interest Determination Date”).  Such Applicable Percentage shall be effective from such Interest Determination Date until the next such Interest Determination Date.  After the Closing Date, if the Credit Parties shall fail to provide the financial information or certifications in accordance with the provisions of Sections 5.1(a), 5.1(b) and 5.2(b), the Applicable Percentage shall, on the date five (5) Business Days after the date by which the Credit Parties were so required to provide such financial information or certifications to the Administrative Agent and the Lenders, be based on Level IV until such time as such information or certifications or corrected information or corrected certificates are provided, whereupon the Level shall be determined by the then current Leverage Ratio.  In the event that any financial statement or certification delivered pursuant to Sections 5.1 or 5.2 is shown to be inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Percentage for any period (an “Applicable Period”) than the Applicable Percentage applied for such Applicable Period, the Borrower shall immediately (a) deliver to the Administrative Agent a corrected compliance certificate for such Applicable Period, (b) determine the Applicable Percentage for such Applicable Period based upon the corrected compliance certificate, and (c) immediately pay to the Administrative Agent for the benefit of the Lenders the accrued additional interest and other fees owing as a result of such increased Applicable Percentage for such Applicable Period, which payment shall be promptly distributed by the Administrative Agent to the Lenders entitled thereto.  It is acknowledged and agreed that nothing contained herein shall limit the rights of the Administrative Agent and the Lenders under the Credit Documents, including their rights under Sections 2.10 and 7.1.

Applicable Time” shall mean, with respect to any borrowings and payments in Foreign Currencies, the local times in the place of settlement for such Foreign Currencies as may be reasonably determined by the Administrative Agent to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.

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

Arrangers” shall mean Wells Fargo Securities, LLC, SunTrust Robinson Humphrey, Inc. and U.S. Bank National Association, together with their respective successors and assigns.

Asset Disposition” shall mean the disposition of any or all of the assets (including, without limitation, the Capital Stock of a Subsidiary or any ownership interest in a Joint Venture but excluding any dispositions of assets pursuant to Section 6.4(a)(xv) to the extent that such amounts are contributed to any Plan) of the Borrower or any Subsidiary (other than an Excluded Subsidiary), whether by sale, lease, transfer or otherwise.
 
 
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Assignment and Assumption” shall mean an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by the definition of Eligible Assignee and Section 9.6), and accepted by the Administrative Agent, in substantially the form of Schedule 9.6(c) or any other form approved by the Administrative Agent.

Available Amount” means (i) Net Cash Proceeds received by the Borrower from any equity issuance plus (ii) 50% of Consolidated Net Income plus (iii) the amount of any Investment made with the Available Amount after the Closing Date that is returned in cash from the return of or return on principal of such Investment (other than a sale to a Credit Party or Subsidiary thereof), dividend or interest received, or the return of principal therefrom plus (iv) the amount by which Indebtedness of the Borrower or its Restricted Subsidiaries is reduced on the Borrower’s consolidated balance sheet upon the conversion or exchange of such Indebtedness for equity interests of the Borrower (less the amount of any cash or the fair market value of other property distributed by the Borrower or any Restricted Subsidiary upon such conversion or exchange, other than in connection with a restructuring) minus (v) the aggregate amount, without duplication, of Restricted Payments and Investments that have been made in relation to the Available Amount under Section 6.10(j) and clause (p) of the definition of “Permitted Investments” after the Closing Date determined at the time such Restricted Payment or Investment is made.

Bank Product” shall mean any of the following products, services or facilities extended to any Credit Party by any Bank Product Provider: (a) Cash Management Services; (b) products under any Hedging Agreement; and (c) commercial credit card, purchase card and merchant card services; provided, however, that for any of the foregoing to be included as “Credit Party Obligations” for purposes of a distribution under Section 2.13(b), the applicable Bank Product Provider must have previously provided a Bank Product Provider Notice to the Administrative Agent which shall provide the following information: (i) the existence of such Bank Product and (ii) the maximum dollar amount (if reasonably capable of being determined) of obligations arising thereunder (the “Bank Product Amount”).  The Bank Product Amount may be changed from time to time upon written notice to the Administrative Agent by the Bank Product Provider.  Any Bank Product established from and after the time that the Lenders have received written notice from the Borrower or the Administrative Agent that an Event of Default exists, until such Event of Default has been waived in accordance with Section 9.1, shall not be included as “Credit Party Obligations” for purposes of a distribution under Section 2.13(b).
 
Bank Product Amount” shall have the meaning set forth in the definition of Bank Product.
 
Bank Product Debt” shall mean the Indebtedness and other obligations of any Credit Party relating to Bank Products.
 
Bank Product Provider” shall mean any Person that provides Bank Products to a Credit Party to the extent that such Person is a Lender, an Affiliate of a Lender or any other Person that was a Lender (or an Affiliate of a Lender) under this Credit Agreement at the time it entered into the Bank Product but has ceased to be a Lender (or whose Affiliate has ceased to be a Lender) under the Credit Agreement.
 
 
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Bank Product Provider Notice” shall mean a notice substantially in the form of Schedule 1.1(h).

Bankruptcy Code” shall mean the Bankruptcy Code in Title 11 of the United States Code, as amended, modified, succeeded or replaced from time to time.
 
                 Bankruptcy Event” shall mean any of the events described in Section 7.1(e), after giving effect to any cure period described therein.

Bookrunners” shall mean Wells Fargo Securities, LLC, SunTrust Robinson Humphrey, Inc. and U.S. Bank National Association, together with their respective successors and assigns.

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

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

British Pounds Sterling” shall mean British pounds sterling, the lawful currency of the United Kingdom.

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

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

Capital Lease” shall mean any lease of property, real or personal, the obligations with respect to which are required to be capitalized on a balance sheet of the lessee in accordance with GAAP; provided that for purposes of calculating Indebtedness hereunder, the term “Capital Lease” shall not include any Capital Lease that was classified as an Operating Lease on the Closing Date or would have been classified as an Operating Lease had such agreement been in effect on the Closing Date prior to a relevant Change in Law or change in GAAP (from GAAP as in effect on the Closing Date) which has the effect of re-classifying such agreement as a Capital Lease.

Capital Lease Obligations” shall mean the capitalized lease obligations relating to a Capital Lease determined in accordance with GAAP.
 
 
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Capital Stock” shall mean (a) in the case of a corporation, capital stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether general or limited), (d) in the case of a limited liability company, membership interests and (e) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

Cash Collateralize” shall mean to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, the Issuing Lender or Swingline Lender (as applicable) and the Lenders, as collateral for LOC Obligations, obligations in respect of Swingline Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the Issuing Lender or Swingline Lender benefiting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to (a) the Administrative Agent and (b) the applicable Issuing Lender or the Swingline Lender.  “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

Cash Equivalents” shall mean (a) securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof) having maturities of not more than twelve (12) months from the date of acquisition (“Government Obligations”), (b) Dollar denominated (or Foreign Currency fully hedged to the Dollar) time deposits, certificates of deposit, Eurodollar time deposits and Eurodollar certificates of deposit of (i) any domestic commercial bank of recognized standing having capital and surplus in excess of $250,000,000 or (ii) any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (any such bank being an “Approved Bank”), in each case with maturities of not more than 364 days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing within twelve (12) months of the date of acquisition, (d) repurchase agreements with a bank or trust company (including a Lender) or a recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations of the types described in clauses (a) and (b) above, (e) obligations of any State of the United States or any political subdivision thereof for the payment of the principal and redemption price of and interest on which there shall have been irrevocably deposited Government Obligations maturing as to principal and interest at times and in amounts sufficient to provide such payment, (f) auction preferred stock rated in the highest short-term credit rating category by S&P or Moody’s and (g) Investments in money market and tax-exempt mutual funds that (i) comply with SEC Regulation 2a-7 under the Investment Company Act of 1940, as amended and (ii) invest substantially all their assets in securities of the types described in clauses (a) through (f) above.
 
 
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Cash Management Services” shall mean any treasury or cash management services provided from time to time to any Credit Party including, without limitation, automatic clearinghouse, depository, overdraft and/or wire transfer services.

Change in Law” shall mean 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, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided, that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

Change of Control” shall mean at any time the occurrence of any “person” or “group” (as such terms are used in Section 13(d) and 14(d) of the Exchange Act), is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be deemed to have “beneficial ownership” of all securities that such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 45% or more of the then outstanding Voting Securities of the Borrower.
 
Closing Date” shall mean the date of this Credit Agreement.

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

Collateral” shall mean a collective reference to the collateral which is identified in, and at any time will be covered by, the Security Documents and any other collateral that may from time to time secure the Credit Party Obligations.

Commitment” shall mean the Revolving Commitment, the Revolving LOC Commitment, the Term Loan Commitment and the Swingline Commitment, individually or collectively, as appropriate.

Commitment Percentage” shall mean the Revolving Commitment Percentage and/or the Term Loan Commitment Percentage, as appropriate.

Commodity Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

Commonly Controlled Entity” shall mean an entity, whether or not incorporated, which is under common control with the Borrower or a Subsidiary within the meaning of Section 4001(b)(1) of ERISA or is part of a group which includes the Borrower or a Subsidiary and which is treated as a single employer under Section 414(b) or 414(c) of the Code or, solely for purposes of Section 412 of the Code to the extent required by such Section, Section 414(m) or 414(o) of the Code.
 
 
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Consolidated” shall mean, when used with reference to financial statements or financial statement items of the Borrower and its Subsidiaries (other than Excluded Subsidiaries) or any other Person, such statements or items on a consolidated basis in accordance with the consolidation principles of GAAP.

Consolidated EBITDAP” means, with respect to the Borrower and its Subsidiaries for any period, the Consolidated Net Income of the Borrower and its Subsidiaries for such period plus (without duplication), to the extent the same was deducted in computing such Consolidated Net Income:

(a)           Consolidated Interest Expense; plus

(b)           tax expense (including, without limitation, any federal, state, local and foreign income (or equivalent) taxes) of the Borrower and its Subsidiaries for such period; plus


(c)           depreciation, amortization (including amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expenses or charges (excluding amortization of a prepaid cash expense that was paid in a prior period, and provided that if any such other non-cash charges represent an accrual or reserve for potential cash items in any future period, (A) the Borrower may determine not to add back such non-cash charge in the current period and (B) to the extent the Borrower does decide to add back such non-cash charge, the cash payment in respect thereof in such future period shall be subtracted from Consolidated EBITDAP to such extent) of the Borrower and its Subsidiaries for such period; plus

(d)           the amount of net cost savings and synergies projected by the Borrower, as determined by a responsible financial or accounting officer of the Borrower, to be realized as a result of specified actions taken or are reasonably expected to be taken within 12 months after the date of determination to take such action, in the reasonable judgment of a responsible financial or accounting officer of the Borrower (calculated on a pro forma basis as though such cost savings or synergies had been realized on the first day of such period and as if such cost savings and synergies were realized during the entirety of such period), net of the amount of actual benefits realized during such period from such actions; provided that (i) such cost savings or synergies are reasonably identifiable and factually supportable and (ii) such amount shall not exceed 20% of Consolidated EBITDAP as of such date of determination;

in the case of each of clauses (a) through (d), on a consolidated basis and determined in accordance with GAAP.

Further, (1) for any four-quarter period, Consolidated EBITDAP shall be calculated on a pro forma basis to exclude the effects of any operations or line of business discontinued as of the Closing Date and as described on Schedule 1.1(g) and (2) for any four-quarter period ending on or after the closing date of any Permitted Acquisition, Consolidated EBITDAP shall be calculated on a pro forma basis assuming the consummation of such Permitted Acquisition as of the first day of such period.
 
 
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Notwithstanding the preceding, the provisions for add-backs under clauses (a) through (d) above of a Restricted Subsidiary shall be used to compute Consolidated EBITDAP only to the extent (and in the same proportion, including by reason of minority interests) as calculated under clause (b) of the definition of Consolidated Net Income.

Consolidated Funded Debt” shall mean, on any date of calculation, Funded Debt of the Borrower and its Subsidiaries on a Consolidated basis.

Consolidated Interest Expense” shall mean, as of any date of determination for the four quarter period ending on such date, all interest expense (excluding amortization of debt discount and premium and any interest obligations paid in shares of Capital Stock of the Borrower, but including the interest component under Capital Leases) for such period of the Borrower and its Subsidiaries on a Consolidated basis; provided, that interest expense with respect to any Indebtedness to the extent the proceeds of such Indebtedness are held in a blocked account with the Administrative Agent or a separate account with an escrow agent shall not be included as Consolidated Interest Expense.  Notwithstanding the foregoing, (1) for any four-quarter period, Consolidated Interest Expense shall be calculated on a pro forma basis to exclude the effects of any operations or line of business discontinued as of the Closing Date and as described on Schedule 1.1(g) and (2) for any four-quarter period ending on or after the closing date of any Permitted Acquisition, Consolidated Interest Expense shall be calculated on a pro forma basis assuming the consummation of such Permitted Acquisition as of the first day of such period.

Consolidated Net Income” shall mean, with respect to the Borrower and its Subsidiaries for any period, the aggregate of the Net Income of the Borrower and its Restricted Subsidiaries for such period, on a consolidated basis; provided that:

(a) the Net Income of any Person that is not a Restricted Subsidiary (including, without limitation, Unrestricted Subsidiaries) or that is accounted for by the equity method of accounting shall be included only to the extent of the amount of dividends or distributions paid in cash to the specified Person or a Restricted Subsidiary thereof; and

(b) the Net Income of any Restricted Subsidiary shall be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its equityholders.

 “Consolidated Total Assets” shall mean, with respect to any Person, the book value, determined on a consolidated basis in accordance with GAAP, of all assets of such Person and its Subsidiaries.

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

Copyright Act” shall have the meaning set forth in Section 3.16.

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

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

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

Credit Party” shall mean any of the Borrower or the Guarantors.

Credit Party Obligations” shall mean, without duplication, (a) the Obligations and (b) for purposes of the Guaranty, the Security Documents and all provisions under the other Credit Documents relating to the Collateral, all Bank Product Debt.  The term “Credit Party Obligations” shall not include any Excluded Swap Obligations.

Customary Permitted Liens” shall mean:

(a)           Liens for taxes not yet due and payable or which are being contested in good faith by appropriate proceedings diligently pursued; provided that (i) any proceedings commenced for the enforcement of such Liens shall have been stayed or suspended within 30 days of the commencement thereof and (ii) provision for the payment of all such taxes known to such Person has been made on the books of such Person to the extent required by GAAP;

(b)           mechanic’s, processor’s, materialman’s, carrier’s, warehousemen’s, landlord’s and similar Liens (including statutory and common law landlord’s liens under leases to which any Credit Party or any Subsidiary is a party) arising by operation of law and arising in the ordinary course of business and securing obligations of such Person that are not overdue for a period of more than ninety (90) days or are being contested in good faith by appropriate proceedings diligently pursued; provided that (i) any proceedings commenced for the enforcement of such Liens shall have been stayed or suspended within thirty (30) days of the commencement thereof and (ii) provision for the payment of such Liens has been made on the books of such Person to the extent required by GAAP;
 
 
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(c)           Liens arising in connection with worker’s compensation, unemployment insurance, old age pensions and social security benefits (other than Liens imposed by ERISA) which are not overdue or are being contested in good faith by appropriate proceedings diligently pursued; provided that (i) any proceedings commenced for the enforcement of such Liens shall have been stayed or suspended within 30 days of the commencement thereof and (ii) provision for the payment of such Liens has been made on the books of such Person to the extent required by GAAP;

(d)           Liens (i) incurred or deposits made in the ordinary course of business to secure the performance of bids, tenders, statutory obligations, fee and expense arrangements with trustees and fiscal agents (exclusive of obligations incurred in connection with the borrowing of money or the payment of the deferred purchase price of property) and customary deposits granted in the ordinary course of business under operating leases and (ii) securing surety, indemnity, performance, appeal and release bonds; provided that (A) full provision for the payment of all such obligations has been made on the books of such Person to the extent required by GAAP and (B) the aggregate amount of all such obligations does not exceed $4,000,000 at any time outstanding;

(e)           Permitted Real Property Encumbrances;

(f)           attachment, judgment or other similar Liens arising in connection with court or arbitration proceedings involving individually and in the aggregate liability of $2,000,000 or less at any one time; provided the same are discharged, or that execution or enforcement thereof is stayed pending appeal, within thirty (30) days or, in the case of any stay of execution or enforcement pending appeal, within such lesser time during which such appeal may be taken;

(g)           leases or subleases granted to others not interfering in any material respect with the business of the Borrower or any of its Subsidiaries and any interest or title of a lessor under any lease permitted by this Credit Agreement or the Security Documents;

(h)           customary rights of set off, revocation, refund or chargeback under deposit agreements or under the UCC of banks or other financial institutions where the Borrower or any of its Subsidiaries maintains deposits in the ordinary course of business permitted by this Credit Agreement;

(i)           landlord’s Liens arising by contract in the ordinary course of business and secured by assets at the applicable leased property in an amount not to exceed $1,000,000 in the aggregate; and

(j)           Environmental Liens, to the extent that (i) any proceedings commenced for the enforcement of such Liens shall have been suspended or are being contested in good faith, (ii) provision for all liability and damages that are the subject of said Environmental Liens has been made on the books of such Person to the extent required by GAAP and (iii) such Liens do not relate to obligations exceeding $10,000,000 in the aggregate at any one time.

Debt Issuance” shall mean the issuance of any Indebtedness by the Credit Parties or any of their Subsidiaries (other than an Excluded Subsidiary), but excluding any Indebtedness of the Credit Parties and their Subsidiaries permitted to be incurred pursuant to Section 6.1 hereof.
 
 
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Debt Repurchase” shall mean a redemption, repayment, repurchase, retirement or other satisfaction or extinguishment, including, without limitation, by optional redemption, required repurchase rights, exchange, open market and/or privately negotiated purchases, of Indebtedness.

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

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

Defaulting Lender” shall mean, subject to Section 2.22(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuing Lender, any Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two Business Days of the date when due,  (b) has notified the Borrower, the Administrative Agent or any Issuing Lender or Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.22(b)) upon delivery of written notice of such determination to the Borrower, each Issuing Lender, each Swingline Lender and each Lender.
 
 
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Designated Cash” shall mean, so long as there are no Revolving Loans outstanding, (a) cash and Cash Equivalents of the Credit Parties subject to account control agreements in favor of the Administrative Agent that are in form and substance reasonably acceptable thereto and (b) Earmarked Cash.

Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is one year after Maturity Date. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions. The term “Disqualified Stock” shall also include any options, warrants or other rights that are convertible into Disqualified Stock or that are redeemable at the option of the holder, or required to be redeemed, prior to the date that is one year after the Maturity Date.

Dollar Equivalent” shall mean, at any time, (a) with respect to any amount denominated in Dollars, such amount and (b) with respect to any amount denominated in a Foreign Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent at such time on the basis of the Spot Rate (as determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Foreign Currency.

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

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

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

Earmarked Cash” shall mean, cash and Cash Equivalents held in a blocked account with the Administrative Agent or a separate account with an escrow agent, in each case, that are earmarked for the permanent reduction of Indebtedness of the Credit Parties.

Eligible Assignee” shall mean (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any other Person (other than a natural person) approved by (i) the Administrative Agent, (ii) in the case of any assignment of a Revolving Commitment, the Issuing Lender, and (iii) unless a Default or an Event of Default has occurred and is continuing and so long as the primary syndication of the Loans has been completed as determined by Wells Fargo, the Borrower (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include (A) the Borrower or any of the Borrower’s Affiliates or Subsidiaries or Unrestricted Subsidiaries  or (B) any Defaulting Lender.
 
 
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Eligible Escrow Investments” shall mean (1) Government Securities maturing no later than the Business Day preceding the termination of the agreement(s) governing the Escrow Account, (2) securities representing an interest or interests in money market funds registered under the Investment Company Act of 1940 whose shares are registered under the Securities Act as investing exclusively in direct obligations of the United States and (3) such other short-term liquid investments in which the Escrow Funds may be invested in accordance with the documents governing any Additional Second Lien Indebtedness or other debt securities of the Borrower issued in connection with a future acquisition or other transaction.

EMU” shall mean the economic and monetary union as contemplated in the Treaty on European Union (Official Journal C 191, July 29, 1992).

EMU Legislation” shall mean legislative measures of the European Council (including, without limitation, European Council regulations) for the introduction of, changeover to or operation of a single or unified European currency (whether known as the Euro or otherwise), being in part the implementation of the third stage of EMU.

Engagement Letter” shall mean one or more engagement letter agreements addressed to the Borrower from Wells Fargo Securities, LLC and its Affiliates, as amended, modified or otherwise supplemented.

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

Environmental Lien” shall mean a Lien in favor of any Governmental Authority for (a) any liability under Environmental Laws, or any limitations or restrictions relating to Environmental Laws placed upon any real property owned, leased or operated by the Borrower or any of its Subsidiaries by any Government Authority or court due to an environmental condition or potential condition, or (b) damages relating to, or costs incurred by such Governmental Authority in response to, a release or threatened release of Materials of Environmental Concern into the environment.

Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.
 
 
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Escrow Account” shall mean a deposit or securities account at a financial institution (such institution, the “Escrow Agent”) into which the Escrowed Funds are deposited.

Escrow Agent” shall have the meaning given to such term in the definition of the term “Escrow Account.”

Escrowed Funds” shall mean an amount, in cash or Eligible Escrow Investments, not to exceed the sum of (a) the issue price of the Additional Second Lien Indebtedness (after deducting initial purchase discounts and expenses) or other debt securities of the Borrower issued in connection with a future acquisition or other transaction, plus (b) so long as they are retained in the Escrow Account, any income, proceeds or products of the foregoing.

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

Euro” shall mean the single currency of Participating Member States of the European Union.

Euro Unit” shall mean the currency unit of the Euro.

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

Excluded Subsidiaries” shall mean (i) Easton Development Company, LLC and (ii) any other direct or indirect Subsidiary or Joint Venture of the Borrower (whether now or hereafter existing) formed for the sole purpose of holding, managing, developing or monetizing any of the real property assets of such Person and any other activity reasonably related thereto and designated as an Excluded Subsidiary by the Borrower; provided that such Excluded Subsidiary shall not guaranty any Indebtedness resulting from the Existing Subordinated Notes or any replacements or refinancings thereof or if it does guaranty such Indebtedness, it shall become a Guarantor hereunder.

Excluded Swap Obligation” shall mean, with respect to any Credit Party, any Swap Obligation if, and to the extent that, all or a portion of the liability of such Credit Party for or the guarantee of such Credit Party of, or the grant by such Credit Party of a security interest to secure, such Swap Obligation (or any liability or guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Credit Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the liability for or the guarantee of such Credit Party or the grant of such security interest becomes effective with respect to such Swap Obligation (such determination being made after giving effect to any applicable keepwell, support or other agreement for the benefit of the applicable Credit Party, including under Section 10.10).  If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest is or becomes illegal for the reasons identified in the immediately preceding sentence of this definition.
 
 
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Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a Recipient, (a) Taxes imposed on or measured by the Recipient’s net income (however denominated), franchise Taxes imposed on the Recipient, and branch profits Taxes imposed on the Recipient, in each case, (i) 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 or (ii) as the result of any other present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document), (b) in the case of a Lender (other than an assignee pursuant to a request by the Borrower under Section 2.20), U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender pursuant to a law in effect on the date on which (i) such Lender becomes a party hereto or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.19, amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.19(g) and (d) any Taxes imposed under FATCA (or any amended or successor version of FATCA that is substantively comparable and not materially more onerous to comply with).

Existing Credit Agreement” shall have the meaning set forth in the preamble.

Existing Letters of Credit” shall mean the letters of credit listed on Schedule 1.1(d).

Existing Subordinated Notes” shall mean collectively, the 2.25% Convertible Notes and the 4.0625% Convertible Debentures, as the same may be amended, restated, supplemented or otherwise modified from time to time as permitted hereunder and any Permitted Refinancing thereof.

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

Fair Market Value” shall mean, with respect to any asset or property, the price which could be negotiated in an arm’s-length free market transaction, for cash, between a willing seller and a willing buyer, neither of which is under pressure or compulsion to complete the transaction.

FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement, and any current or future regulations or official interpretations thereof.

Federal Funds Effective Rate” shall have the meaning set forth in the definition of “Alternate Base Rate”.
 
 
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Fee Letter” shall mean one or more fee letter agreements addressed to the Borrower from the Arrangers and their respective Affiliates, as amended, modified or otherwise supplemented.

First Lien Funded Debt” shall mean, as of any date of determination for the Credit Parties and their Subsidiaries, all Credit Party Obligations subject to a first-priority security interest, including, without limitation, all Indebtedness of the Credit Parties under this Agreement and the other Credit Documents.

First Lien Leverage Ratio” shall mean, as of any date of determination, for the Credit Parties and their Subsidiaries on a Consolidated basis, the ratio of (i) First Lien Funded Debt to (ii) Consolidated EBITDAP of the Credit Parties and their Restricted Subsidiaries for the four (4) consecutive fiscal quarters ending on such date.

Flood Hazard Property” shall mean any real property in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.

Foreign Currency” shall mean Revolving Foreign Currency and Letter of Credit Foreign Currency.

Foreign Currency Equivalent” shall mean, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in a Foreign Currency as determined by the Administrative Agent, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Foreign Currency with Dollars.

Foreign Currency Sublimit” shall mean $150,000,000.

Foreign Lender” shall mean a Lender that is not a U.S. Person.

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

Fronting Exposure” shall mean, at any time there is a Defaulting Lender, (a) with respect to any Issuing Lender, such Defaulting Lender’s Revolving Commitment Percentage of the outstanding LOC Obligations with respect to Letters of Credit issued by such Issuing Lender other than LOC Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to any Swingline Lender, such Defaulting Lender’s Revolving Commitment Percentage of outstanding Swingline Loans made by such Swingline Lender other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

Fund” shall mean 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.
 
 
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Funded Debt” shall mean, with respect to any Person, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (c) the maximum amount of earnout obligations to the extent such earnout obligations appear as liabilities on a balance sheet of such Person, (d) the principal portion of all Capital Lease Obligations of such Person, (e) all preferred Capital Stock issued by such Person and which by the terms thereof could be (at the request of the holders thereof) subject to mandatory sinking fund payments, redemption or other acceleration prior to the date that is 91 days after the Maturity Date, (f) the principal balance outstanding under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product, (g) all Indebtedness of others of the type described in clauses (a) through (f) hereof secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (h) all Guaranty Obligations of such Person with respect to Indebtedness of another Person of the type described in clauses (a) through (f) hereof, and (i) all Indebtedness of the type described in clauses (a) through (f) hereof of any partnership or unincorporated joint venture in which such Person is a general partner or a joint venturer (to the extent that such Person is liable therefore) calculated based on the percentage of such Indebtedness for which such Person is liable; provided, however, that Funded Debt shall not include (i) Indebtedness among the Credit Parties, (ii) Indebtedness permitted under Section 6.1(k), (l), (m) or (o), (iii) any Indebtedness of the Credit Parties backed by Earmarked Cash and (iv) other Indebtedness to the extent the proceeds of such Indebtedness are held in a blocked account with the Administrative Agent or a separate account with an escrow agent, in each case, for purposes of funding a Permitted Acquisition.

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

GDX Automotive SAS Judgments” shall mean any legal judgments rendered under French law against GDX Automotive SAS.

GenCorp Savings Plan” shall mean the GenCorp Retirement Savings Plan, a defined contribution plan, as amended from time to time, which plan includes the GenCorp Stock Fund (a unitized stock fund that invests primarily in the Capital Stock of the Borrower, but also has small investments in cash and Cash Equivalents) that issues units to plan participants.

Government Acts” shall have the meaning set forth in Section 2.18.

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

Governmental Authority” shall mean the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
 
 
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Granite Agreement” shall have the meaning set forth in Section 6.4(a).

Guarantor” shall have the meaning set forth in the first paragraph of this Credit Agreement; provided that to the extent an Excluded Subsidiary is a guarantor under any of the Existing Subordinated Notes or any other material Indebtedness (at any time on or after the Closing Date) of a Credit Party then such Excluded Subsidiary shall be required to be a Guarantor under this Credit Agreement.

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

Guaranty Obligations” shall mean, with respect to any Person, without duplication, any obligations of such Person (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) guaranteeing or intended to guarantee any Indebtedness of any other Person in any manner, whether direct or indirect, and including without limitation any obligation, whether or not contingent, (a) to purchase any such Indebtedness or any property constituting security therefor, (b) to advance or provide funds or other support for the payment or purchase of any such Indebtedness or to maintain working capital, solvency or other balance sheet condition of such other Person (including without limitation keep well agreements, maintenance agreements, comfort letters or similar agreements or arrangements) for the benefit of any holder of Indebtedness of such other Person, (c) to lease or purchase property, securities or services primarily for the purpose of assuring the holder of such Indebtedness, or (d) to otherwise assure or hold harmless the holder of such Indebtedness against loss in respect thereof.  The amount of any Guaranty Obligation hereunder shall (subject to any limitations set forth therein) be deemed to be an amount equal to the outstanding principal amount (or maximum principal amount, if larger) of the Indebtedness in respect of which such Guaranty Obligation is made.

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

Incremental Increase Amount” shall have the meaning set forth in Section 2.23(a)(i).

Incremental Term Facility” shall have the meaning set forth in Section 2.23(b)(i).
 
 
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Indebtedness” shall mean, with respect to any Person, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (d) all obligations (including, without limitation, the maximum amount of earnout obligations) of such Person incurred, issued or assumed as the deferred purchase price of property or services purchased by such Person (other than trade debt incurred in the ordinary course of business and due within six (6) months of the incurrence thereof) which would appear as liabilities on a balance sheet of such Person, (e) the principal portion of all Capital Lease Obligations of such Person, (f) the maximum amount of all letters of credit issued or bankers’ acceptances facilities created for the account of such Person and, without duplication, all drafts drawn thereunder (to the extent unreimbursed), (g) all preferred Capital Stock issued by such Person and which by the terms thereof could be (at the request of the holders thereof) subject to mandatory sinking fund payments, redemption or other acceleration prior to the date that is 91 days after the Maturity Date, (h) the principal balance outstanding under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product, (i) payment obligations of such Person under non-compete agreements, (j) all obligations of such Person under Hedging Agreements, excluding any portion thereof which would be accounted for as interest expense under GAAP, (k) all obligations of such Person under take-or-pay or similar arrangements or under commodities agreements, (l) all Indebtedness of others of the type described in clauses (a) through (k) hereof secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (m) all Guaranty Obligations of such Person with respect to Indebtedness of another Person of the type described in clauses (a) through (k) hereof, and (n) all Indebtedness of the type described in clauses (a) through (k) hereof of any partnership or unincorporated joint venture in which such Person is a general partner or a joint venturer (to the extent that such Person is liable therefore) calculated based on the percentage of such Indebtedness for which such Person is liable.

Indemnified Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on, or with respect to, any payment made by or on account of any obligation of any Credit Party under any Credit Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

Indemnitee” shall have the meaning set forth in Section 9.5(b).

Information” shall have the meaning set forth in Section 9.14.

Information Materials” shall have the meaning set forth in Section 5.15(a).

Insolvency” shall mean, with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of such term as used in Section 4245 of ERISA.
 
 
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Intellectual Property” shall mean the Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses of the Credit Parties and their Subsidiaries, all goodwill associated therewith and all rights to sue for infringement thereof.

Intercompany Note” means a demand promissory note (or a promissory note payable on a date reasonably satisfactory to the Administrative Agent) issued by a Subsidiary directly to the Borrower in form and substance that is satisfactory to the Administrative Agent.

Intercreditor Agreement” shall mean an intercreditor agreement substantially in the form of that certain Intercreditor Agreement dated as of June 14, 2013, by and between Wells Fargo Bank, National Association and U.S. Bank National Association or such other form reasonably acceptable to the Administrative Agent by and between the Administrative Agent and any trustee or administrative agent under the Second Lien Notes Indenture or any Additional Second Lien Indebtedness.

Interest Coverage Ratio” shall mean the ratio of (a) Consolidated EBITDAP for such period to (b) Consolidated Interest Expense net of interest income for such period; provided that for purposes of calculating Consolidated Interest Expense for the fiscal quarters ending May 31, 2014, August 31, 2014 and November 30, 2014, Consolidated Interest Expense shall be annualized during such fiscal quarters such that (i) for the calculation of Consolidated Interest Expense as of May 31, 2014, Consolidated Interest Expense for the fiscal quarter then ending will be multiplied by (4), (ii) for the calculation of Consolidated Interest Expense as of August 31, 2014, Consolidated Interest Expense for the two fiscal quarter period then ending will be multiplied by two (2) and (iii) for the calculation of Consolidated Interest Expense as of November 30, 2014, Consolidated Interest Expense for the three fiscal quarter period then ending will be multiplied by one and one third (1 1/3).

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

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

 
(a)
initially, the period commencing on the Borrowing Date or conversion date, as the case may be, with respect to such LIBOR Rate Loan and ending one, two, three, six or twelve months thereafter, subject to availability to all applicable Lenders, as selected by the Borrower in the Notice of Borrowing or Notice of Conversion given with respect thereto; and
 
 
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(b)
thereafter, each period commencing on the last day of the immediately preceding Interest Period applicable to such LIBOR Rate Loan and ending one, two, three, six or twelve months thereafter, subject to availability to all applicable Lenders, as selected by the Borrower by irrevocable notice to the Administrative Agent not less than three Business Days prior to the last day of the then current Interest Period with respect thereto; provided that the foregoing provisions are subject to the following:

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

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

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

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

 
 
(v)
no more than eight (8) LIBOR Rate Loans may be in effect at any time. For purposes hereof, LIBOR Rate Loans with different Interest Periods shall be considered as separate LIBOR Rate Loans, even if they shall begin on the same date, although borrowings, extensions and conversions may, in accordance with the provisions hereof, be combined at the end of existing Interest Periods to constitute a new LIBOR Rate Loan with a single Interest Period.
 
        “Investment” shall mean (a) the acquisition (whether for cash, property, services, assumption of Indebtedness, securities or otherwise) of shares of Capital Stock, other ownership interests or other securities of any Person or bonds, notes, debentures or all or substantially all of the assets of any Person or (b) any deposit with, or advance, loan or other extension of credit to, any Person (other than deposits made in the ordinary course of business) or (c) any other capital contribution to or investment in any Person, including, without limitation, any Guaranty Obligation (including any support for a letter of credit issued on behalf of such Person) incurred for the benefit of such Person.  For the avoidance of doubt, payments made by the Borrower to redeem its Capital Stock or payments of dividends shall not be considered “Investments”.
 
 
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Issuing Lender” shall mean Wells Fargo.

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

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

Joint Venture” means any corporation, partnership, limited liability company, joint venture or other similar legal arrangement (whether created by contract or conducted through a separate legal entity) now or hereafter formed by the Borrower or any of its Subsidiaries with another Person that is not the Borrower or any Subsidiary in order to conduct a common venture or enterprise with such Person.

Judgment Currency” shall have the meaning set forth in Section 9.24.

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

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

Letters of Credit shall mean any letter of credit issued by the Issuing Lender pursuant to Section 2.2(a), as such letter of credit may be amended, modified, extended, renewed or replaced from time to time.

Letter of Credit Foreign Currency” shall mean (a) Euros and (b) British Pounds Sterling.

Leverage Ratio” shall mean, as of any date of determination, the ratio of (i) Consolidated Funded Debt on such date minus Designated Cash (in an aggregate amount not to exceed $150,000,000) to (ii) Consolidated EBITDAP.

LIBOR” shall mean, for any LIBOR Rate Loan for any Interest Period therefor, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBOR01 Page (or any successor page) and, in the case of a Foreign Currency, the appropriate page of the Reuters Screen which displays Interest Settlement Rates for deposits in such Foreign Currency, as the London interbank offered rate for deposits in Dollars or such Foreign Currency at approximately 11:00 A.M. (London time) two (2) Business Days prior to the first day of such Interest Period (or, in the case of British Pounds Sterling, 11:00 A.M. (London time) on the same Business Day of such Interest Period) for a term comparable to such Interest Period.  If for any reason such rate is not available, then “LIBOR” shall mean the rate per annum at which, as determined by the Administrative Agent in accordance with its customary practices, Dollars or such Foreign Currency in an amount comparable to the Loans then requested are being offered to leading banks at approximately 11:00 A.M. London time, two (2) Business Days prior to the commencement of the applicable Interest Period for settlement in immediately available funds by leading banks in the London interbank market for a period equal to the Interest Period selected.
 
 
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LIBOR Lending Office” shall mean, initially, the office(s) of each Lender designated as such Lender’s LIBOR Lending Office in such Lender’s Administrative Questionnaire; and thereafter, such other office of such Lender as such Lender may from time to time specify to the Administrative Agent and the Borrower as the office of such Lender at which the LIBOR Rate Loans of such Lender are to be made.

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

LIBOR Rate =                                LIBOR                                
                                                             1.00 - Eurodollar Reserve Percentage

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

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

Liquidity” shall mean an amount equal to (i) the cash and Cash Equivalents of the Credit Parties on a consolidated basis plus (ii) Revolving Availability.

Litigation Award” shall mean the receipt by the Borrower or any of its Subsidiaries (other than an Excluded Subsidiary) of cash or Cash Equivalents from any arbitration award, settlement, court judgment or other award, judgment or settlement received in any litigation-related proceeding.

Loan” shall mean a Revolving Loan, the Term Loan and/or Swingline Loan, as appropriate.

Loan Modification Agreement” shall have the meaning assigned to such term in Section 9.1.

Loan Modification Offer” shall have the meaning assigned to such term in Section 9.1.

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

LOC Obligations” means, at any time, the sum of (i) the maximum amount which is, or at any time thereafter may become, available to be drawn under Letters of Credit then outstanding, assuming compliance with all requirements for drawings referred to in such Letters of Credit plus (ii) the aggregate amount of all drawings under Letters of Credit honored by the Issuing Lender but not theretofore reimbursed.
 
 
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Mandatory LOC Borrowing” shall have the meaning set forth in Section 2.2(e).

Mandatory Swingline Borrowing” shall have the meaning set forth in Section 2.3(b)(ii).

Material Adverse Effect” shall mean a material adverse effect on (a) the business, operations, property, assets or financial condition of (i) the Credit Parties taken as a whole, (ii) the Credit Parties and their Subsidiaries taken as a whole or (iii) the Credit Parties, their Subsidiaries and the Excluded Subsidiaries taken as a whole, (b) the ability of the Borrower or any Guarantor to perform its obligations, when such obligations are required to be performed, under this Credit Agreement, any of the Notes or any other Credit Document or (c) the validity or enforceability of this Credit Agreement, any of the Notes or any of the other Credit Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder.

Material Contract” shall mean (a) any contract or other agreement, written or oral, of the Credit Parties or any of their Subsidiaries representing at least 10% of the total expected consolidated revenues of the Credit Parties and their Subsidiaries for the current fiscal year and (b) any other contract, agreement, permit or license, written or oral, of the Credit Parties or any of their Subsidiaries as to which the breach, nonperformance, cancellation or failure to renew in accordance with the terms thereof by any party thereto, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

Material Domestic Subsidiary” shall mean any Domestic Subsidiary of any Credit Party (other than any Excluded Subsidiary), (a) that guarantees any of the Existing Subordinated Notes, any other Subordinated Debt, any senior notes or any other material Indebtedness of a Credit Party or Subsidiary thereof (including Aerojet Rocketdyne but excluding the other Subsidiaries listed on Schedule 3.12) or (b) the Consolidated Total Assets of which were more than 10% of the Consolidated Total Assets of the Borrower and its Subsidiaries as of the end of the most recently completed fiscal year of the Borrower for which audited financial statements are available; provided that, in the event the aggregate of the Consolidated Total Assets of all Domestic Subsidiaries that do not constitute Material Domestic Subsidiaries (other than Excluded Subsidiaries) exceeds 10% of the Consolidated Total Assets of the Borrower and its Subsidiaries as of such date, the Borrower (or the Administrative Agent, in the event the Borrower has failed to do so within ten (10) days of request therefor by the Administrative Agent) shall, to the extent necessary, designate sufficient Domestic Subsidiaries to be deemed to be “Material Domestic Subsidiaries” to eliminate such excess, and such designated Domestic Subsidiaries shall thereafter constitute Material Domestic Subsidiaries.  Assets of Foreign Subsidiaries shall be converted into Dollars at the rates used for purposes of preparing the consolidated balance sheet of the Borrower included in such audited financial statements.
 
 
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Material Foreign Subsidiary” shall mean any Foreign Subsidiary of any Credit Party, the Consolidated Total Assets of which were more than 10% of the Consolidated Total Assets of the Borrower and its Subsidiaries as of the end of the most recently completed fiscal year of the Borrower for which audited financial statements are available; provided that, in the event the aggregate of the Consolidated Total Assets of all Foreign Subsidiaries that do not constitute Material Foreign Subsidiaries exceeds 10% of the Consolidated Total Assets of the Borrower and its Subsidiaries as of such date, the Borrower (or the Administrative Agent, in the event the Borrower has failed to do so within ten (10) days of request therefor by the Administrative Agent) shall, to the extent necessary, designate sufficient Foreign Subsidiaries to be deemed to be “Material Foreign Subsidiaries” to eliminate such excess, and such designated Foreign Subsidiaries shall thereafter constitute Material Foreign Subsidiaries.  Assets of Foreign Subsidiaries shall be converted into Dollars at the rates used for purposes of preparing the consolidated balance sheet of the Borrower included in such audited financial statements.

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

Maturity Date” shall mean May 30, 2019.

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

Mortgage Instrument” shall mean any mortgage, deed of trust, deed to secure debt or assignment of leases and rents executed by a Credit Party in favor of the Administrative Agent pursuant to the terms of Section 5.15(d), 5.10 or 5.12, as the same may be amended, modified, restated or supplemented from time to time.

Mortgage Policy” shall mean, with respect to any Mortgage Instrument, an ALTA mortgagee title insurance policy issued by a Title Company in such amount as reasonably approved by the Administrative Agent, assuring the Administrative Agent that such Mortgage Instrument creates a valid and enforceable first-priority mortgage lien on the applicable Mortgaged Property, free and clear of all defects and encumbrances except Permitted Liens, which Mortgage Policy shall be in form and substance reasonably satisfactory to the Administrative Agent and shall provide for affirmative insurance and such reinsurance as the Administrative Agent may reasonably request.

Mortgaged Property” shall mean any owned real property of a Credit Party with respect to which such Credit Party executes a Mortgage Instrument in favor of the Administrative Agent, including, without limitation, each real property set forth on Schedule 1.1(e).

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

National Currency Unit” shall mean a fraction or multiple of one Euro Unit expressed in units of the former national currency of a Participating Member State.
 
 
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Net Cash Proceeds” shall mean the aggregate cash proceeds received by any Credit Party or any Subsidiary (other than an Excluded Subsidiary) in respect of any Asset Disposition, Debt Issuance, Recovery Event or Litigation Award, net of (a) direct costs whether paid or accrued (including, without limitation, legal, accounting and investment banking fees, and sales commissions) associated therewith, (b) amounts held in escrow to be applied as part of the purchase price of any Asset Disposition, (c) taxes paid or payable as a result thereof, (d) with respect to any Asset Disposition or Recovery Event, payment of the outstanding principal amount of, premium (if any) and interest on any Indebtedness secured by a Lien on the assets subject to such Asset Disposition or Recovery Event and (e) with respect to any Asset Disposition, Recovery Event or Litigation Award, amounts payable directly or indirectly to Governmental Authorities for such Asset Disposition, Recovery Event or Litigation Award to the extent required by such Governmental Authorities or Contractual Obligations.  The term “Net Cash Proceeds” shall include, without limitation, any cash proceeds from the sale or other disposition of any non-cash consideration (but only as and when such cash is actually received) received by any Credit Party or any Subsidiary (other than an Excluded Subsidiary) in any Asset Disposition,  Debt Issuance, Recovery Event or Litigation Award and any cash released from escrow as part of the purchase price in connection with any Asset Disposition.

Net Income” shall mean, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, without duplication, however:

(a)           any gain (or loss), together with any related provision for taxes on such gain (or loss), realized in connection with: (i) any asset sale outside the ordinary course of business; or (ii) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries;

(b)           any restructuring charges or reserves (which shall include retention, severance, systems establishment cost, excess pension charges, contract termination costs, including future lease commitments, costs related to start up, closure, relocation or consolidation of facilities, costs to relocate employees, consulting fees, one time information technology costs, one time branding costs and losses on the sale of assets and from closures) in an aggregate amount for all cash charges not to exceed $20,000,000 in any trailing twelve month period;

(c)           any extraordinary gain (or loss) or non-recurring or unusual charges, together with any related provision for taxes on such gain (or loss), or charge including (i) acquisition-related pension or employee benefit expenses and (ii) fees and expenses related to equity and debt issuances, acquisitions or Permitted Investments; provided that, any cash payment made in connection with a non-cash charge (other than any non-cash charge under clause (b) hereof) excluded from Net Income in a prior period shall be deducted from the calculation of Net Income in the period such payment is actually made;

(d)           any net income or loss attributable to discontinued operations (including, without limitation, operations disposed of during such period);

(e)           any gain (or loss), together with any related provision for taxes on such gain (or loss), attributable to the early repurchase, extinguishment or conversion of Indebtedness, hedging obligations or other derivative instruments (including any premiums paid) and the write-off of any issuance costs incurred by such Person in connection with the refinancing or repayment of any Indebtedness;
 
 
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(f)           any after-tax effect of income (or loss) from the early extinguishment or conversion of Indebtedness or obligations under Hedging Agreements or other derivative instruments;

(g)           any non-cash charge, expense or other impact or adjustment attributable to application of the purchase method of accounting (including the total amount of depreciation and amortization, cost of sales or other non-cash expense resulting from the write-up of assets to the extent resulting from such purchase accounting adjustments);

(h)           any non-cash asset impairment charge, including with respect to goodwill or other intangible assets and equity method investments and any write-ups, write-downs or write-offs of assets (including intangible assets, goodwill and deferred financing costs but excluding accounts receivable);

(i)            any non-cash compensation expense realized for grants of performance shares, stock options or other rights to officers, directors and employees of such Person, provided, that such shares, options or other rights can be redeemed at the option of the holder only for Capital Stock of any Credit Party (other than Disqualified Stock);

(j)           any non-cash gains or losses, together with any related provision for taxes on such gains or losses, related to retirement benefit plans of such Person and any non-cash employee-related benefit expenses;

(k)           accruals and reserves that are established within 12 months of the Rockedyne Acquisition as a result of the Rocketdyne Acquisition in accordance with GAAP, or changes as a result of adoption or modification of accounting policies;

(l)           any unrealized foreign currency translation or transaction gains or losses in respect of Indebtedness or other obligations of any Person denominated in a currency other than the functional currency of such Person;

(m)           the non-cash portion of “straight-line” rent expense;

(n)           non-cash charges for deferred tax asset allowances;

(o)           the cumulative effect of a change in accounting principles shall be excluded;

(p)           the amount of any minority interest expense consisting of Subsidiary income attributable to minority equity interest of third parties in any non-wholly owned subsidiary;
 
 
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(q)           charges related to legal matters involving the Borrower and its Subsidiaries with respect to the Specified Legal Claims in an amount not to exceed $30 million in the aggregate after the Closing Date; and

(r)           earn-out and contingent consideration obligations (including to the extent accounted for as bonuses or otherwise) and adjustments thereof and purchase price adjustments.

In addition, to the extent not already included in the Net Income of the Borrower and its Restricted Subsidiaries, notwithstanding anything to the contrary in the foregoing, Net Income shall include the amount of proceeds received from business interruption insurance and reimbursements of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any acquisition, Investment or any sale, conveyance, transfer or other disposition of assets permitted under this Agreement.

Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all affected Lenders in accordance with the terms of Section 9.1 and (b) has been approved by the Required Lenders.

Note” or “Notes” shall mean the Revolving Notes, the Term Loan Notes and the Swingline Note, collectively, separately or individually, as appropriate.

Notice of Borrowing” shall mean a request for a Revolving Loan borrowing pursuant to Section 2.1(b)(i), a request for a Swingline Loan borrowing pursuant to Section 2.3(b)(i), a request for a Term Loan borrowing pursuant to Section 2.4(a), a request for a Revolving Facility Increase pursuant to Section 2.23(a)(ii) or a request for a borrowing under an Incremental Term Facility pursuant to Section 2.23(b)(ii), as appropriate, in substantially the form of the notice of borrowing attached hereto as Schedule 2.1(b)(i).

Notice of Conversion” shall have the meaning set forth in Section 2.11.

Obligations” shall mean, collectively, all of the obligations, Indebtedness and liabilities of the Credit Parties to the Lenders (including the Issuing Lender) and the Administrative Agent, whenever arising, under this Agreement, the Notes or any of the other Credit Documents, including principal, interest, fees, costs, charges, expenses, professional fees, reimbursements, all sums chargeable to the Credit Parties or for which any Credit Party is liable as an indemnitor and whether or not evidenced by a note or other instrument and indemnification obligations and other amounts (including, but not limited to, any interest accruing after the occurrence of a filing of a petition of bankruptcy under the Bankruptcy Code with respect to any Credit Party, regardless of whether such interest is an allowed claim under the Bankruptcy Code).

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

Other Parties” shall have the meaning set forth in Section 10.7(c).
 
 
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Other Connection Taxes” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document).

Other Taxes” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Credit Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.20).

Participant” has the meaning assigned to such term in clause (d) of Section 9.6.

Participation Interests” shall mean a participation interest purchased by a Revolving Lender in LOC Obligations as provided in Section 2.2(c) and in Swingline Loans as provided in Section 2.3.

Participant Register” has the meaning assigned to such term in clause (d) of Section 9.6.

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

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

Patriot Act” shall mean The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56 (signed into law October 26, 2001)), as amended or modified from time to time.

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

Permitted Acquisition” shall mean an acquisition or any series of related acquisitions by a Credit Party of (a) all or substantially all of the assets or a majority of the outstanding Voting Securities or economic interests of a Person or (b) any division, line of business or other business unit of a Person (such Person or such division, line of business or other business unit of such Person shall be referred to herein as the “Target”), in each case that is a type of business (or assets used in a type of business) permitted to be engaged in by the Credit Parties and their Subsidiaries pursuant to Section 6.3, so long as:
 
 
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(i) no Default or Event of Default shall then exist or would exist after giving effect thereto;

(ii) the Credit Parties shall demonstrate to the reasonable satisfaction of the Administrative Agent that, after giving effect to the acquisition on a pro forma basis, the Credit Parties are in compliance with each of the financial covenants set forth in Section 5.9 and the Leverage Ratio shall not be greater than the level which is 0.25x inside the then-applicable covenant level;

(iii) the Administrative Agent, on behalf of the Lenders, shall have received (or shall receive in connection with the closing of such acquisition) a first-priority (subject to Permitted Liens), perfected security interest in all property (including, without limitation, Capital Stock) acquired with respect to the Target in accordance with the terms of Sections 5.10 and 5.12 and the Target, if it would be a Material Domestic Subsidiary, shall have executed a Joinder Agreement in accordance with the terms of Section 5.10; and

(iv) the Administrative Agent and the Lenders shall have received (A) a description of the material terms of such acquisition and (B) if the total consideration (including without limitation earn out obligations, deferred compensation, non-competition arrangements and the amount of Indebtedness and other liabilities assumed by the Credit Parties and their Subsidiaries) to be paid by the Credit Parties and their Subsidiaries in connection with such acquisition exceeds $50,000,000, (1) if available, quarterly and audited annual financial statements of the Target for its most recent fiscal year and for any fiscal quarters ended within the fiscal year to date and (2) consolidated projected income statements of the Borrower and its consolidated Subsidiaries (giving effect to such acquisition), all in form and substance reasonably satisfactory to the Administrative Agent.

Notwithstanding the foregoing, for any acquisition by a Credit Party that has total consideration that is less than or equal to $5,000,000 during the term of this Credit Agreement, the Credit Parties shall only be required to comply with clauses (i) and (ii) above.

Permitted Amendments” shall have the meaning assigned to such term in Section 9.1.

Permitted Investments” shall mean:

           (a)           cash and Cash Equivalents;


           (b)          Investments set forth on Schedule 1.1(b), which Investments shall not exceed the amount thereof on the Closing Date (after giving effect to the Transactions consummated on the Closing Date), in each case as such Investments may be adjusted due to appreciation, repayment of principal, payment of interest, return of capital or similar circumstances; provided, however, except to the extent permitted under Section 6.10, any such Investment consisting of intercompany Indebtedness owed by a Credit Party to a Subsidiary that is not a Credit Party shall not be repaid in cash or Cash Equivalents and shall not be renewed, extended, refinanced or replaced; provided further, however, the Credit Parties shall be permitted to write-off Investments consisting of intercompany Indebtedness owing by Subsidiaries that are not Credit Parties to the extent such Indebtedness was existing prior to the Closing Date;
 
 
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            (c)    receivables owing to the Credit Parties or any of their Subsidiaries or any receivables and advances to suppliers, in each case if created, acquired or made in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;

    (d)    (i) loans and advances to employees for relocation and related expenses and (ii) loans and advances to employees in the ordinary course of business in an aggregate principal amount not exceeding $3,000,000; provided that such loans and advances shall comply with all applicable Requirements of Law;

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

    (f)    Permitted Real Estate Transfers; provided that (i) if such Excluded Subsidiary is a Joint Venture, then the Capital Stock owned by any Credit Party in such Excluded Subsidiary shall be subject to a first-priority, perfected Lien in favor of the Administrative Agent as required by Section 5.12;

    (g)    Hedging Agreements permitted hereunder;
 
(h)           deposits in a customary fashion in the ordinary course of business;

    (i)    Investments in and unsecured loans to any Credit Party by any Credit Party; provided, however, that in the case of such intercompany loan or advance by a Credit Party to another Credit Party, each such Loan shall be evidenced by an Intercompany Note payable to the Credit Party, in form and substance satisfactory to Administrative Agent, which Intercompany Notes shall be delivered and pledged to the Administrative Agent as part of the Collateral;

    (j)    Permitted Acquisitions and Investments assumed in connection with Permitted Acquisitions;
 
        (k)           Guaranty Obligations permitted pursuant to Section 6.1(m) and 6.1(o);
 
        (l)           the Rescission Offer;
 
   (m)           Debt Repurchases of the Existing Subordinated Notes or the Subordinated Delayed Draw Indebtedness to the extent permitted by Section 6.10;
 
        (n)           Investments to the extent permitted by Section 6.4(a); and
 
    (o)           Investments in Joint Ventures or minority equity interests in an aggregate amount not to exceed the greater of (i) $75,000,000 and (ii) 5% of Consolidated Total Assets as of any date of determination for the four quarter period ending on such date at any one time outstanding;
 
 
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(p)           in addition to the foregoing, the Borrower and its Subsidiaries may make additional Investments (including Investments in Excluded Subsidiaries) in an aggregate amount not to exceed: (i) so long as First Lien Leverage Ratio is less than or equal to 1.25 to 1.00, the sum of (x) $125,000,000 and (y) the Available Amount and (ii) so long as First Lien Leverage Ratio is greater than 1.25 to 1.00, the sum of (x) $75,000,000 and (y) the Available Amount; provided, that, such Investments will be allowed only to the extent that the Credit Parties are in compliance with each of the financial covenants set forth in Section 5.9 and the pro forma Leverage Ratio after giving effect to any such Investments is not greater than the level which is 0.25x inside of the then-applicable covenant.

Notwithstanding anything to the contrary contained herein, Investments in Unrestricted Subsidiaries shall only be permitted to the extent made using clause (p) above.

Permitted Liens” shall mean:

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

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

 
    (c)    Liens securing purchase money indebtedness and Capital Lease Obligations (and refinancings thereof) to the extent permitted under Section 6.1(d); provided, that (i) any such Lien attaches to such property concurrently with or within  (120) days after the acquisition thereof and (ii) such Lien attaches solely to the property so acquired in such transaction;

 
    (d)    Customary Permitted Liens;
 
        (e)           Liens existing on the Closing Date listed on Schedule 1.1(c) hereto and any extension, renewal or replacement thereof but only if the principal amount of the Indebtedness (including, for purposes of this clause (e), any additional Indebtedness incurred pursuant to revolving commitments in an amount not in excess of the available commitment as set forth on Schedule 6.1(b) secured thereby) is not increased and such Liens do not extend to or cover any other property or assets;
 
        (f)           Liens on special tooling assets and Intellectual Property of Aerojet Rocketdyne as required by the terms of the contract with Lockheed Martin regarding the Atlas Program;
 
        (g)           Liens securing (i) the financing of insurance premiums or other financial assurances associated with workers compensation insurance coverage or other financial assurance requirements obtained in the normal course of business and (ii) the financing of insurance premiums or other financial assurances associated with insurance coverage or other financial assurance requirements obtained in the normal course of business not to exceed $20,000,000 in the aggregate at any time outstanding;
 
                             (h)           Liens securing Second Lien Indebtedness;
 
 
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          (i)           Liens securing Additional Second Lien Indebtedness;
 
          (j)           Liens on the property of a Person existing at the time such Person becomes a Subsidiary of a Credit Party in a transaction permitted hereunder securing Indebtedness in an aggregate principal amount not to exceed $40,000,000 for all such Persons; provided, however, that any such Lien may not extend to any other property of any Credit Party or any other Subsidiary that is not a Subsidiary of such Person; provided, further, that any such Lien was not created in anticipation of or in connection with the transaction or series of transactions pursuant to which such Person became a Subsidiary of a Credit Party;
 
             (k)           Liens on assets of Foreign Subsidiaries; provided that (i) such Liens do not extend to, or encumber, assets that constitute Collateral or the Capital Stock of the Borrower or any of the Domestic Subsidiaries, and (ii) such Liens extending to the assets of any Foreign Subsidiary secure only Indebtedness incurred by such Foreign Subsidiary pursuant to Sections 6.1(b), (f), (i) and (n);

(l)           Liens on the Capital Stock of a Joint Venture; and

(m)           additional Liens incurred by the Borrower or its Subsidiaries (other than the Excluded Subsidiaries) which do not secure Indebtedness for money borrowed so long as the value of the property subject to such Liens, and the obligations secured thereby, do not exceed $5,000,000 in the aggregate at any one time outstanding.

In connection with the granting of Liens of the type described in clause (c) above by the Borrower or any of its Subsidiaries, at the reasonable request of the Borrower, and at the Borrower’s expense, the Administrative Agent shall take (and is hereby authorized to take) any actions reasonably requested by the Borrower in connection therewith (including, without limitation, by executing appropriate lien releases in favor of the holder or holders of such Liens, in either case solely with respect to the item or items of equipment or other assets subject to such Liens).

Permitted Real Estate Exchanges” shall mean the transfer of any owned real property of a Credit Party (other than a Mortgaged Property) to another Person in exchange for real property
having an equivalent Fair Market Value.

Permitted Real Estate Sales” shall mean the sale of any owned real property of a Credit Party (a) subject to a Lien in favor of the Administrative Agent for the benefit of the Lenders that satisfies the following requirements:  (i) no Default or Event of Default shall exist at the time of such sale or be caused by such sale and (ii) such sale is for Fair Market Value.

Permitted Real Estate Transfers” shall mean the contribution, sale or other transfer of any owned real property (other than a Mortgaged Property) by a Credit Party to an Excluded Subsidiary; provided that, such contribution, sale or transfer satisfies the following requirements:  (i) no Default or Event of Default shall exist at the time of such sale or be caused by such sale and (ii) in the event of a sale, such sale is for Fair Market Value.
 
 
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Permitted Real Property Encumbrances” shall mean (a) those liens, encumbrances and other matters affecting title to any Mortgaged Property listed in the applicable Mortgage Policy in respect thereof (or any update thereto) and found, on the date of delivery of such Mortgage Policy to the Administrative Agent in accordance with the terms hereof, reasonably acceptable by the Administrative Agent, (b) as to any particular real property at any time, such easements, encroachments, covenants, restrictions, rights of way, minor defects, irregularities or encumbrances on title which do not, in the reasonable opinion of the Administrative Agent, materially impair such real property for the purpose for which it is held by the mortgagor or owner, as the case may be, thereof, or the Lien held by the Administrative Agent, (c) municipal and zoning laws, regulations, codes and ordinances, which are not violated in any material respect by the existing improvements and the present use made by the mortgagor or owner, as the case may be, of such real property, (d) general real estate taxes and assessments not yet delinquent, (e) leases and subleases; provided that such leases or subleases shall be on customary terms and reasonably acceptable to the Administrative Agent and (f) such other items to which the Administrative Agent may consent.
 
Permitted Refinancing” shall mean, with respect to any Person, any modification, refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided, that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended except by an amount equal to (i) unpaid accrued interest and premiums thereon (including tender premiums) plus fees and expenses (including upfront fees and original issue discount) reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension, plus (ii) any existing commitments unutilized thereunder, (b) such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity date and a Weighted Average Life to Maturity  equal to or later than the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) immediately before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (d) the direct and contingent obligors with respect to such Indebtedness are not changed, (e) if the Indebtedness being modified, refinanced, refunded, renewed or extended is subordinated in right of payment to the Obligations, such Indebtedness shall be subordinated in right of payment on terms and conditions reasonably satisfactory to the Administrative Agent and (f) to the extent any Liens securing the Indebtedness being modified, refinanced, refunded, renewed or extended are subordinated to the Liens securing the Obligations, the Liens, if any, securing such Indebtedness are subordinated to the Liens securing the Obligations pursuant to intercreditor arrangements reasonably acceptable to the Administrative Agent.
 
Person” shall mean any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

Plan” shall mean, at any particular time, any employee benefit plan which is covered by Title IV of ERISA and in respect of which the Borrower, a Subsidiary or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
 
 
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Pledge Agreement” shall mean the Third Amended and Restated Pledge Agreement dated as of the Closing Date given by the Borrower and the Guarantors to the Administrative Agent, for the benefit of the Secured Parties, as the same may from time to time be amended, restated, amended and restated, supplemented or otherwise modified in accordance with the terms hereof and thereof.

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

Private Information” shall have the meaning set forth in Section 5.15(a).

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

Public Information” shall have the meaning set forth in Section 5.15(a).

Qualified ECP Guarantor” shall mean, in respect of any Swap Obligation, each Credit Party that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other Person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another Person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

Recipient” shall mean (a) the Administrative Agent, (b) any Lender and (c) any Issuing Lender, as applicable.

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

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

Reimbursement Obligation” shall mean the obligation of the Borrower to reimburse the Issuing Lender pursuant to Section 2.2(d) for amounts drawn under Letters of Credit.

Related Parties” shall mean, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, trustees, employees, agents and advisors of such Person and of such Person’s Affiliates.

Reorganization” shall mean, with respect to any Multiemployer Plan, the condition that such Plan is in reorganization within the meaning of such term as used in Section 4241 of ERISA.
 
 
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Reportable Event” shall mean any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty-day notice period is waived under PBGC Reg. §4043.

Replaced Lender” shall have the meaning set forth in Section 2.20.

Replacement Lender” shall have the meaning set forth in Section 2.20.

Required Lenders” shall mean, at any time, Lenders holding in the aggregate more than fifty percent (50%) of (a) the sum of (i) the Revolving Commitments and (ii) the Term Loans or (b) if the Commitments have been terminated, the sum of the outstanding Revolving Loans, Term Loans and Participation Interests; provided, however, that if any Lender shall be a Defaulting Lender at such time, then there shall be excluded from the determination of Required Lenders, Obligations (including Participation Interests) owing to such Defaulting Lender and such Defaulting Lender’s Commitments.

Requirement of Law” shall mean, as to any Person, (a) the articles or certificate of incorporation, by-laws or other organizational or governing documents of such Person, and (b) all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes, executive orders, and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority (in each case whether or not having the force of law); in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

Rescission Offer” shall mean a rescission offer or offers to be launched by the Borrower under which the Borrower will offer (using cash and/or Capital Stock) to (a) rescind and repurchase the units (consisting, in part, of Capital Stock of the Borrower), including any unrealized losses with respect to such units, sold to or issued to Persons in the GenCorp Stock Fund of the GenCorp Savings Plan who may have been deemed to have purchased such units that were “sold” in violation of Section 5 of the Securities Act of 1933, as amended, or any similar state laws, (b) make payments to Persons who sold such units at a loss or who have unrealized losses with respect to such units and (c) pay interest to affected Persons; provided that the Rescission Offer shall not include the rescission of units purchased by participants after the effective date of the Borrower’s registration statement on Form S-8 dated June 30, 2008.

Responsible Officer” shall mean, as to (a) the Borrower, (i) with respect to the execution and delivery of this Agreement, the Notes, the Security Documents, any Notice of Borrowing or a certificate pursuant to Section 4.1(f), 4.1(o) or 5.2(b) and with respect to any provision of a Credit Document that refers to the “knowledge” of a Responsible Officer, the Chief Executive Officer, Chief Financial Officer, the President or any Vice President of the Borrower and (ii) with respect to the execution and delivery of any other Credit Document or certificate, any duly authorized officer of the Borrower or representative thereof designated by a duly authorized officer, or (b) any other Credit Party, any duly authorized officer thereof.
 
 
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Restricted Payment” shall mean (a) any dividend or other distribution, direct or indirect, on account of any shares of any class of Capital Stock of any Credit Party or any of its Subsidiaries (other than any Excluded Subsidiary), now or hereafter outstanding, (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of Capital Stock of any Credit Party or any of its Subsidiaries (other than any Excluded Subsidiary), now or hereafter outstanding, (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Capital Stock of any Credit Party or any of its Subsidiaries (other than any Excluded Subsidiary), now or hereafter outstanding, (d) any payment with respect to any earnout obligation, (e) any payment, prepayment, redemption or similar payment with respect to the principal of any Subordinated Debt of any Credit Party or any of its Subsidiaries (other than (x) refinancing, refunding, renewals or extensions thereof permitted pursuant to this Agreement and (y) so long as no Default has occurred and is continuing, the payment  of interest, expenses and indemnitees in respect thereof) and (f) any payment, prepayment, redemption or similar payment made with respect to the principal of (i) the Second Lien Indebtedness and (ii) Additional Second Lien Indebtedness (other than (x) refinancing, refunding, renewals or extensions thereof permitted pursuant to this Agreement and (y) so long as no Default has occurred and is continuing, the payment  of interest, expenses and indemnitees in respect thereof).

Restricted Subsidiary”  shall mean any Subsidiary of a Person that is not an Unrestricted Subsidiary.

Revaluation Date” shall mean each of the following:  (a) each date a Loan is made pursuant to Section 2.1 or Section 2.3; (b) each date a Loan is converted to or continued as a LIBOR Rate Loan pursuant to the terms of this Agreement; (c) each date a Revolving Loan is made to reimburse a Swingline Loan or drawing under a Letter of Credit or a Participation Interest is required to be purchased in an outstanding Swingline Loan or outstanding LOC Obligation pursuant to the terms of this Agreement; (d) the last Business Day of each calendar month; and (e) such additional dates as the Administrative Agent or the Required Lenders shall reasonably specify.

Revolving Availability” shall mean, on any date, the sum of (a) the aggregate Revolving Committed Amount minus (b) the aggregate amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding Revolving LOC Obligations.

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

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

Revolving Commitment Percentage” shall mean, for each Revolving Lender, the percentage identified as its Revolving Commitment Percentage on its Lender Commitment Letter or in the Register, as such percentage may be modified in connection with any assignment made in accordance with the provisions of Section 9.6(c).
 
 
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Revolving Commitment Period” shall mean (a) with respect to Revolving Loans, the period from and including the Closing Date to but excluding the Maturity Date and (b) with respect to Revolving Letters of Credit, the period from and including the Closing Date to but excluding the date that is thirty (30) days prior to the Maturity Date.

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

Revolving Facility Increase” shall have the meaning set forth in Section 2.23(a)(i).

Revolving Foreign Currency” shall mean (a) Euros and (b) British Pounds Sterling.

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

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

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

Revolving LOC Commitment Fee” shall have the meaning set forth in Section 2.7(b).

Revolving LOC Committed Amount” shall have the meaning set forth in Section 2.2(a).

Revolving LOC Fronting Fee” shall have the meaning set forth in Section 2.7(b).
 
Revolving LOC Obligations” shall mean, at any time, the sum of (i) the maximum amount which is, or at any time thereafter may become, available to be drawn under Revolving Letters of Credit then outstanding, assuming compliance with all requirements for drawings referred to in such Revolving Letters of Credit plus (ii) the aggregate amount of all drawings under Revolving Letters of Credit honored by the Issuing Lender but not theretofore reimbursed.

Revolving Note” or “Revolving Notes” shall mean the promissory notes of the Borrower (if any) made by the Borrower pursuant to Section 2.1(e) and payable to the order of any of the Revolving Lenders evidencing the Revolving Loans provided by any such Revolving Lender, individually or collectively, as appropriate, as such promissory notes may be amended, modified, restated, amended and restated, supplemented, extended, renewed or replaced from time to time.

Revolving Participation Interest” shall mean a participation interest purchased by a Revolving Lender in LOC Obligations as provided in Section 2.2(c) and in Swingline Loans as provided in Section 2.3.
 
 
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Rocketdyne Acquisition” shall mean the acquisition by the Borrower of the business of United Technologies Corporation’s Pratt & Whitney Rocketdyne division, including all of the issued and outstanding shares of common stock of Pratt & Whitney Rocketdyne, Inc., a Delaware corporation, and P&W Power Generation, Inc., a Delaware corporation along with certain other assets relating to the business of Pratt & Whitney Rocketdyne from United Technologies Corporation pursuant to the terms of that certain Stock and Asset Purchase Agreement by and between United Technologies Corporation and the Borrower dated as of July 22, 2012, as amended.

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

Sale and Leaseback Transaction” shall mean, with respect to any Person, any transaction involving any of the assets or properties of such Person whether now owned or hereafter acquired, whereby such Person sells or transfers such assets or properties and then or thereafter leases such assets or properties or any part thereof or any other assets or properties which such Person intends to use for substantially the same purpose or purposes as the assets or properties sold or transferred.

Sanctioned Entity” shall mean (a) a country or a government of a country, (b) an agency of the government of a country, (c) an organization directly or indirectly controlled by a country or its government, or (d) a person or entity resident in or determined to be resident in a country, that is subject to a country sanctions program administered and enforced by OFAC.

Sanctioned Person” shall mean a person named on the list of Specially Designated Nationals maintained by OFAC.

SEC” shall mean the Securities and Exchange Commission or any successor thereto.
 
Second Lien Indebtedness” means Indebtedness of the Borrower evidenced by the Second Lien Notes issued pursuant to the Second Lien Notes Indenture.
 
Second Lien Notes” shall mean the Borrower’s 7.125% Second-Priority Senior Secured Notes due 2021 issued pursuant to the Second Priority Notes Indenture.
 
Second Lien Notes Documents” shall mean the Second Lien Note Indenture and any other documents entered into by the Borrower and any Guarantor in connection with the Second Lien Notes.
 
Second Lien Notes Indenture” shall mean that certain indenture, dated as of January 28, 2013 (as amended, supplemented or otherwise modified from time to time), among the Borrower, the subsidiary guarantors party thereto, and U.S. Bank National Association, as trustee and collateral agent.
 
Secured Funded Debt” shall mean, as of any date of determination for the Credit Parties and their Subsidiaries, all Indebtedness subject to a first-priority or second-priority security interest, including, without limitation, all Indebtedness of the Credit Parties under (i) this Agreement and the other Credit Documents and (ii) the Second Lien Notes Indenture and the other Second Lien Notes Documents.
 
 
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Secured Leverage Ratio” shall mean, as of any date of determination, for the Credit Parties and their Subsidiaries on a Consolidated basis, the ratio of (i) Secured Funded Debt to (ii) Consolidated EBITDAP for the four (4) consecutive fiscal quarters ending on such date.
 
Secured Parties” shall mean the Administrative Agent, the Lenders (including, without limitation, the Issuing Lender) and the Bank Product Providers.
 
Security Agreement” shall mean the Third Amended and Restated Security Agreement dated as of the Closing Date given by the Borrower and the Guarantors to the Administrative Agent, for the benefit of the Secured Parties, as amended, restated, amended and restated, modified or supplemented from time to time in accordance with its terms.

Security Documents” shall mean the Security Agreement, the Pledge Agreement, any Intercreditor Agreement, the Mortgage Instruments and such other documents executed and delivered and/or filed in connection with the attachment and perfection of the Administrative Agent’s security interests and liens arising thereunder, including, without limitation, UCC financing statements and patent, trademark and copyright filings.
 
Significant Subsidiary” shall mean any Domestic Subsidiary or Foreign Subsidiary of any Credit Party the Consolidated Total Assets of which exceeds $4,000,000.

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

Snappon Judgments” shall mean any legal judgments rendered under French law against Snappon SA, a French subsidiary of the Borrower.

Specified Legal Claims” means claims arising from environmental and litigation matters discussed in the Borrower’s Annual Reports on Form 10−K or Quarterly Reports on Form 10−Q and (b) additional matters disclosed on Schedule 1.1(f).

Specified Sales” shall mean the sale, transfer, lease or other disposition of (a) inventory and materials in the ordinary course of business and (b) cash into Cash Equivalents or Cash Equivalents into cash.

Spot Rate” shall mean, for any currency, 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 (2) Business Days prior to the date as of which the foreign exchange computation is made; 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.

Subordinated Debt” shall mean any Indebtedness incurred by any Credit Party (including, without limitation, the Existing Subordinated Notes) which by its terms is specifically subordinated in right of payment to the prior payment of the Credit Party Obligations and contains subordination and other terms acceptable to the Administrative Agent.
 
 
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Subordinated Delayed Draw Credit Agreement” shall mean that certain Subordinated Delayed Draw Credit Agreement, dated as of April 18, 2014 (as amended, supplemented or otherwise modified from time to time), among the Borrower, the lenders party thereto, and The Bank of New York Mellon, as administrative agent.

Subordinated Delayed Draw Credit Documents” shall mean the Subordinated Delayed Draw Credit Agreement and any other documents entered into by the Borrower and any Guarantor in connection with the Subordinated Delayed Draw Term Loans.

Subordinated Delayed Draw Indebtedness” shall mean Indebtedness of the Borrower pursuant to the Subordinated Delayed Draw Credit Agreement and Subordinated Delayed Draw Credit Documents and any Permitted Refinancing thereof.

Subordinated Delayed Draw Term Loans” shall mean the term loans issued pursuant to the Subordinated Delayed Draw Credit Agreement.

Subsidiary” shall mean, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership, limited liability company or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Credit Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.  For all purposes of this Agreement (other than the definition of Unrestricted Subsidiary), the defined terms “Subsidiary” or “Subsidiaries” shall not include any Unrestricted Subsidiaries.

Swap Obligation” shall mean, with respect to the Borrower or any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act
 
Swingline Commitment” shall mean the commitment of the Swingline Lender to make Swingline Loans in an aggregate principal amount at any time outstanding up to the Swingline Committed Amount, and the commitment of the Revolving Lenders to purchase participation interests in the Swingline Loans as provided in Section 2.3(a), as such amounts may be reduced from time to time in accordance with the provisions hereof.

Swingline Committed Amount” shall mean the amount of the Swingline Lender’s Swingline Commitment as specified in Section 2.3(a).

Swingline Lender” shall mean the Administrative Agent and any successor swingline lender.

Swingline Loan” shall have the meaning set forth in Section 2.3(a).
 
 
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Swingline Note” shall mean the promissory note of the Borrower in favor of the Swingline Lender evidencing the Swingline Loans provided pursuant to Section 2.3(d), as such promissory note may be amended, modified, supplemented, extended, renewed or replaced from time to time.

Target” shall have the meaning set forth in the definition of Permitted Acquisition.

Target Settlement Day” means any day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open.

Taxes” shall mean 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.

Technology” shall have the meaning set forth in Section 6.4(a)(viii).

Term Loan” shall have the meaning set forth in Section 2.4(a).

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

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

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

Term Loan Facility” shall have the meaning set forth in Section 2.4(a).

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

Term Loan Note” or “Term Loan Notes” shall mean the promissory notes of the Borrower (if any) in favor of any of the Term Loan Lenders evidencing the portion of the Term Loan provided by any such Term Loan Lender pursuant to Section 2.4(a), individually or collectively, as appropriate, as such promissory notes may be amended, modified, extended, restated, replaced, or supplemented from time to time.

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

Trading with the Enemy Act” shall have the meaning set forth in Section 3.29.

Tranche” shall mean the collective reference to (a) LIBOR Rate Loans whose Interest Periods begin and end on the same day and (b) Alternate Base Rate Loans made on the same day.  A Tranche with respect to LIBOR Rate Loans may sometimes be referred to as a “Eurodollar Tranche”.

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

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

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

Unrestricted Subsidiaries” shall mean (i) Easton Development Company, LLC and any other Excluded Subsidiary and (ii) any Subsidiary of the Borrower that is designated by the board of directors of the Borrower as an Unrestricted Subsidiary pursuant to a resolution of the board of directors of the Borrower in compliance with Section 5.16, and any Subsidiary of such Subsidiary.

U.S. Person” shall mean any Person that is a “United States Person” as defined in section 7701(a)(30) of the Code.

U.S. Tax Compliance Certificate” has the meaning assigned to such term in paragraph (g) of Section 2.19.

Voting Securities” shall mean any class of Capital Stock of a Person pursuant to which the holders thereof have, at the time of determination, the general voting power under ordinary circumstances to vote for the election of directors, managers, trustees or general partners of such Person (irrespective of whether or not at the time any other class or classes will have or might have voting power by reason of the happening of any contingency).
 
 
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Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing: (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment by (ii) the then outstanding principal amount of such Indebtedness.

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

Withholding Agent” means any Credit Party and the Administrative Agent.

WFS” shall mean Wells Fargo Securities, LLC, together with its successors and assigns.


    Section 1.2                      Other Definitional Provisions.

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

   Section 1.3                      Accounting Terms.

    Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with GAAP applied on a basis consistent with the most recent audited consolidated financial statements of the Borrower delivered to the Lenders; provided that, if the Borrower notifies the Administrative Agent that it wishes to amend any covenant in Section 5.9 or any other covenants impacted by GAAP to eliminate the effect of any change in GAAP on the operation of such covenant (or if the Administrative Agent notifies the Borrower that the Required Lenders wish to amend Section 5.9 or any other covenants impacted by GAAP for such purpose), then the Borrower’s compliance with such covenant shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the Borrower and the Required Lenders.
 
 
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    The Borrower shall deliver to the Administrative Agent and each Lender at the same time as the delivery of any annual or quarterly financial statements given in accordance with the provisions of Section 5.1, (i) a description in reasonable detail of any material change in the application of accounting principles employed in the preparation of such financial statements from those applied in the most recently preceding quarterly or annual financial statements as to which no objection shall have been made in accordance with the provisions above and (ii) a reasonable estimate of the effect on the financial statements on account of such changes in application.

   Section 1.4                      Time References.

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

   Section 1.5                      Execution of Documents.

    Unless otherwise specified, all Credit Documents and all other certificates executed in connection therewith must be signed by a Responsible Officer.

   Section 1.6                    Redenomination of Certain Foreign Currencies and Computation of Dollar Amounts; Exchange Rates; Currency Equivalents.

       (a)           Each obligation of the Borrower to make a payment denominated in the National Currency Unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation).  If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Credit Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any Extension of Credit in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Extension of Credit, at the end of the then current Interest Period.

       (b)           Each provision of this Credit Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.

       (c)           The Administrative Agent shall determine the Spot Rate as of each Revaluation Date to be used for calculating the Dollar Equivalents of Extensions of Credit and amounts outstanding hereunder denominated in a Foreign Currency.  Such Spot Rate shall become effective as of such Revaluation Date and shall be the Spot Rate employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur.
 
 
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       (d)           Wherever in this Agreement, in connection with any Extension of Credit, any conversion, continuation or prepayment of a Loan or any renewal of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Extension of Credit or Loan is denominated in a Foreign Currency, such amount shall be the relevant Foreign Currency Equivalent, as determined by the Administrative Agent.

       (e)           Wherever in this Agreement an amount is expressed in Dollars, it shall be deemed to refer to the Dollar Equivalent or Foreign Currency Equivalent thereof, as applicable.

       (f)           Determinations by the Administrative Agent pursuant to this Section shall be conclusive absent demonstrable error.

       (g)           Subject to the provisions of Section 9.24, each provision in this Agreement relating to payments to be made by the Borrower on account of principal, interest and fees which requires payment in Dollars, shall be deemed to mean (i) in the case of Loans or other amounts denominated in Dollars, payment in Dollars and (ii) in the case of Loans or other amounts denominated in a Foreign Currency, payment in such Foreign Currency.


THE LOANS; AMOUNT AND TERMS

   Section 2.1                      Revolving Loans.

       (a)           Revolving Commitment.  During the Revolving Commitment Period, subject to the terms and conditions hereof, each Revolving Lender severally agrees to make revolving credit loans in Dollars and in Foreign Currencies (“Revolving Loans”) to the Borrower from time to time for the purposes hereinafter set forth; provided, however, that (i) with regard to each Revolving Lender individually, the sum of such Revolving Lender’s Revolving Commitment Percentage of the aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding Revolving LOC Obligations shall not exceed such Revolving Lender’s Revolving Commitment, (ii) with regard to the Revolving Lenders collectively, the sum of the aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding Revolving LOC Obligations shall not exceed the Revolving Committed Amount then in effect and (iii) the aggregate principal amount of outstanding Revolving Loans denominated in a Foreign Currency, together with the outstanding LOC Obligations with respect to Letters of Credit denominated in a Foreign Currency, shall not exceed the Foreign Currency Sublimit.  For purposes hereof, the aggregate principal amount available for Revolving Loan borrowings hereunder shall be TWO HUNDRED MILLION DOLLARS ($200,000,000) (as such aggregate maximum amount may be reduced from time to time as provided in Section 2.8, or increased from time to time as provided in Section 2.23, the “Revolving Committed Amount”).  LIBOR Rate Loans shall be made by each Revolving Lender at its LIBOR Lending Office and Alternate Base Rate Loans at its Domestic Lending Office.  Revolving Loans may consist of Alternate Base Rate Loans or LIBOR Rate Loans, or a combination thereof, as the Borrower may request and Revolving Loans denominated in a Foreign Currency may consist of only LIBOR Rate Loans.
 
 
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       (b)             Revolving Loan Borrowings.
 
          (i)           Notice of Borrowing.  The Borrower may request a Revolving Loan borrowing by delivering a written Notice of Borrowing (or telephone notice promptly confirmed in writing by delivery of a written Notice of Borrowing, which delivery may be by fax) to the Administrative Agent not later than 1:00 P.M. on the date of the requested borrowing in the case of Alternate Base Rate Loans, on the third Business Day prior to the date of the requested borrowing in the case of LIBOR Rate Loans, and on the fourth Business Day prior to the date of the requested borrowing in the case of Revolving Loans denominated in a Foreign Currency.  Each such Notice of Borrowing shall be irrevocable and shall specify (A) that a Revolving Loan is requested, (B) the date of the requested borrowing (which shall be a Business Day), (C) the aggregate principal amount to be borrowed, (D) whether the borrowing shall consist of Loans denominated in a Foreign Currency and (E) whether the borrowing shall be comprised of Alternate Base Rate Loans, LIBOR Rate Loans or a combination thereof, and if LIBOR Rate Loans are requested, the Interest Period(s) therefor.  If the Borrower shall fail to specify in any such Notice of Borrowing (1) an applicable Interest Period in the case of a LIBOR Rate Loan, then such notice shall be deemed to be a request for an Interest Period of one month, or (2) the Type of Revolving Loan requested, then such notice shall be deemed to be a request for an Alternate Base Rate Loan hereunder.  The Administrative Agent shall give notice to each Revolving Lender promptly upon receipt of each Notice of Borrowing, the contents thereof and each such Revolving Lender’s share thereof.  Notwithstanding the foregoing to the contrary, Revolving Loans denominated in a Foreign Currency may consist of only LIBOR Rate Loans.
 
          (ii)         Minimum Amounts.  Each Revolving Loan that is made as an Alternate Base Rate Loan shall be in a minimum aggregate amount of $1,000,000 and integral multiples of $100,000 in excess thereof (or the remaining amount of the Revolving Committed Amount, if less).  Each Revolving Loan that is made as a LIBOR Rate Loan shall be in a minimum aggregate amount of $2,000,000 and integral multiples of $1,000,000 in excess thereof (or the remaining amount of the Revolving Committed Amount, if less).
 
          (iii)       Advances. Each Revolving Lender will make its Revolving Commitment Percentage of each Revolving Loan borrowing available to the Administrative Agent for the account of the Borrower, in Dollars or the applicable Foreign Currency and in funds immediately available to the Administrative Agent, at the office of the Administrative Agent specified in Section 9.2, or at such other office as the Administrative Agent may designate in writing, by (A) 3:00 P.M. (1:00 P.M. in the case of LIBOR Rate Loans) on the date specified in the applicable Notice of Borrowing in the case of any Revolving Loan denominated in Dollars and (B) the Applicable Time specified by the Administrative Agent in the case of any Revolving Loan that is denominated in a Foreign Currency. Such borrowing will then be made available to the Borrower by the Administrative Agent on the date specified in the applicable Notice of Borrowing (by the end of business Eastern Time on such date) by crediting the account of the Borrower on the books of such office with the aggregate of the amounts made available to the Administrative Agent by the Revolving Lenders and in like funds as received by the Administrative Agent.
 
 
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       (c)              Repayment.  Subject to the terms of this Credit Agreement, Revolving Loans may be borrowed, repaid and reborrowed during the Revolving Commitment Period.  The principal amount of all Revolving Loans shall be due and payable in full on the Maturity Date.
 
       (d)               Interest.  Subject to the provisions of Section 2.10(b), Revolving Loans shall bear interest as follows:
 
          (i)               Alternate Base Rate Loans.  During such periods as Revolving Loans shall be comprised of Alternate Base Rate Loans, each such Alternate Base Rate Loan shall bear interest at a per annum rate equal to the sum of the Alternate Base Rate plus the Applicable Percentage; and
 
          (ii)             LIBOR Rate Loans.  During such periods as Revolving Loans shall be comprised of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear interest at a per annum rate equal to the sum of the LIBOR Rate plus the Applicable Percentage.

Interest on Revolving Loans shall be payable in arrears on each Interest Payment Date.
 
       (e)                Revolving Notes.  The Borrower’s obligation to pay each Revolving Lender’s Revolving Loans shall be evidenced, upon such Revolving Lender’s request, by a Revolving Note made payable to such Revolving Lender in substantially the form of Schedule 2.1(e).
 
    Section 2.2                      Letter of Credit Subfacility.

       (a)           Issuance.  Subject to the terms and conditions hereof and of the LOC Documents, if any, and any other terms and conditions which the Issuing Lender may reasonably require, during the Revolving Commitment Period the Issuing Lender shall issue, and the Revolving Lenders shall participate in, standby Letters of Credit for the account of the Borrower from time to time upon request in a form acceptable to the Issuing Lender; provided, however, that (i) the aggregate amount of Revolving LOC Obligations shall not at any time exceed ONE HUNDRED MILLION DOLLARS ($100,000,000) (the “Revolving LOC Committed Amount”), (ii) with regard to each Revolving Lender individually, the sum of such Revolving Lender’s Revolving Commitment Percentage of the aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding Revolving LOC Obligations shall not exceed such Revolving Lender’s Revolving Commitment, (iii) with regard to the Revolving Lenders collectively, the sum of the aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding Revolving LOC Obligations shall not exceed the Revolving Committed Amount then in effect, (iv) all Revolving Letters of Credit shall be denominated in Dollars or a Letter of Credit Foreign Currency, (v) the aggregate principal amount of outstanding Revolving Loans denominated in a Foreign Currency, together with the outstanding LOC Obligations with respect to Letters of Credit denominated in a Foreign Currency, shall not exceed the Foreign Currency Sublimit and
 
 
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(vi) Revolving Letters of Credit may be issued for any lawful corporate purposes, including in connection with workers’ compensation and other insurance programs.  Except as otherwise expressly agreed upon by all the Revolving Lenders, no Letter of Credit shall have an original expiry date more than twelve (12) months from the date of issuance; provided, however, so long as no Default or Event of Default has occurred and is continuing and subject to the other terms and conditions to the issuance of Revolving Letters of Credit hereunder, the expiry dates of Revolving Letters of Credit may be extended annually or periodically from time to time on the request of the Borrower or by operation of the terms of the applicable Letter of Credit to a date not more than twelve (12) months from the date of extension; provided, further, that no Letter of Credit, as originally issued or as extended, shall have an expiry date extending beyond the date that is ten (10) days prior to the Maturity Date.  Each Letter of Credit shall comply with the related LOC Documents.  The issuance and expiry date of each Letter of Credit shall be a Business Day.  Any Letter of Credit issued hereunder shall be in a minimum original face amount of $100,000 or such lesser amount as approved by the Issuing Lender.  The Issuing Lender shall be under no obligation to issue any Letter of Credit if any Revolving Lender is at such time a Defaulting Lender hereunder, unless the Issuing Lender has entered into arrangements satisfactory to the Issuing Lender with the Borrower or such Revolving Lender to eliminate the Issuing Lender’s risk with respect to such Lender’s Revolving LOC Obligations.  The Issuing Lender shall provide prompt notice to the Borrower upon becoming aware of any Defaulting Lender.  The Borrower’s Reimbursement Obligations in respect of each Existing Letter of Credit, and each Revolving Lender’s participation obligations in connection therewith, shall be governed by the terms of this Credit Agreement.  Wells Fargo shall be the Issuing Lender on all Letters of Credit issued after the Closing Date.  The Existing Letters of Credit shall, as of the Closing Date, be deemed to have been issued as Letters of Credit hereunder and subject to and governed by the terms of this Agreement.
 
       (b)            Notice and Reports.  The request for the issuance of a Letter of Credit shall be submitted to the Issuing Lender and the Administrative Agent at least three (3) Business Days prior to the requested date of issuance.  The Issuing Lender will promptly upon request provide to the Administrative Agent for dissemination to the Revolving Lenders a detailed report specifying the Revolving Letters of Credit which are then issued and outstanding and any activity with respect thereto which may have occurred since the date of any prior report, and including therein, among other things, the account party, the beneficiary, the face amount, expiry date as well as any payments or expirations which may have occurred.  The Issuing Lender will further provide to the Administrative Agent promptly upon request copies of the Revolving Letters of Credit.
 
 
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       (c)          Participations.  Each Revolving Lender, (i) on the Closing Date with respect to each Existing Letter of Credit and (ii) upon issuance of any Letter of Credit (or upon a Person becoming a Revolving Lender hereunder), shall be deemed to have purchased, without recourse to the Issuing Lender, and the Issuing Lender shall be deemed to have granted without recourse to the Issuing Lender, a risk participation from the Issuing Lender in such Letter of Credit and the obligations arising thereunder and any collateral relating thereto, in each case in an amount equal to its Revolving Commitment Percentage of the maximum amounts available to be drawn under such Letter of Credit and shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and be obligated to pay to the Issuing Lender therefor and discharge when due, its Revolving Participation Interest by paying its Revolving Commitment Percentage of the amounts drawn under such Letter of Credit.  Without limiting the scope and nature of each Revolving Lender’s participation in any Letter of Credit, to the extent that the Issuing Lender has not been reimbursed as required hereunder or under any LOC Document, each such Revolving Lender shall fund its Revolving Participation Interest therein by paying to the Issuing Lender its Revolving Commitment Percentage of such unreimbursed drawing in same day funds on the day of notification by the Issuing Lender of an unreimbursed drawing pursuant to and in accordance with the provisions of subsection (d) hereof.  The obligation of each Revolving Lender to so pay the Issuing Lender shall be absolute and unconditional and shall not be affected by the occurrence of a Default, an Event of Default or any other occurrence or event.  Any such payment shall not relieve or otherwise impair the obligation of the Borrower to reimburse the Issuing Lender under any Letter of Credit, together with interest as hereinafter provided.

       (d)          Reimbursement.  In the event of any drawing under any Letter of Credit, the Issuing Lender will promptly notify the Borrower and the Administrative Agent.  The Borrower shall reimburse the Issuing Lender on the day of drawing under any Letter of Credit (either with the proceeds of a Revolving Loan obtained hereunder or otherwise) in same day funds as provided herein or in the LOC Documents if the Borrower shall have been given notice of such drawing by 12:00 Noon and otherwise on the next Business Day after such drawing if the Borrower shall have been given notice of such drawing after 12:00 Noon.  If the Borrower shall be given notice of a drawing by 12:00 Noon and shall fail to reimburse the Issuing Lender on the same date of such notice, the unreimbursed amount of such drawing shall bear interest from the date of notice until payment in full at a per annum rate equal to the ABR Default Rate.  If the Borrower shall be given notice of a drawing after 12:00 Noon, the unreimbursed amount of such drawing shall bear interest from the date of notice until the next Business Day at a per annum rate equal to the Alternate Base Rate plus the Applicable Percentage and if the Borrower shall fail to reimburse the Issuing Lender on such next Business Day, the unreimbursed amount of such drawing shall bear interest from the Business Day succeeding the date of notice until payment in full at a per annum rate equal to the ABR Default Rate.  Unless the Borrower shall immediately notify the Issuing Lender and the Administrative Agent of its intent to otherwise reimburse the Issuing Lender, the Borrower shall be deemed to have requested a Mandatory LOC Borrowing in the amount of the drawing as provided in subsection (e) hereof, the proceeds of which will be used to satisfy the Reimbursement Obligations.  
 
 
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The Borrower’s Reimbursement Obligations hereunder shall be absolute and unconditional under all circumstances irrespective of any rights of set-off, counterclaim or defense to payment the Borrower may claim or have against the Issuing Lender, the Administrative Agent, the Lenders, the beneficiary of the Letter of Credit drawn upon or any other Person, including without limitation any defense based on any failure of the Borrower to receive consideration or the legality, validity, regularity or unenforceability of the Letter of Credit; provided that the Borrower shall not be deemed to have waived any claims it may have against the Issuing Lender, the Administrative Agent, the Lenders, the beneficiary of the Letter of Credit drawn upon or any other Person and may separately pursue such claims after payment of such Reimbursement Obligations.  The Issuing Lender will promptly notify the Administrative Agent (which shall promptly notify the Revolving Lenders) of the amount of any unreimbursed drawing and each Revolving Lender shall promptly fund its Revolving Participation Interest therein by paying to the Administrative Agent for the account of the Issuing Lender, in Dollars and in immediately available funds, the amount of such Revolving Lender’s Revolving Commitment Percentage of such unreimbursed drawing.  Such payment shall be made on the day such notice is received by such Revolving Lender from the Issuing Lender if such notice is received at or before 2:00 P.M., otherwise such payment shall be made at or before 12:00 Noon on the Business Day next succeeding the day such notice is received.  If such Revolving Lender does not pay such amount to the Issuing Lender in full upon such request, such Revolving Lender shall, on demand, pay to the Administrative Agent for the account of the Issuing Lender interest on the unpaid amount during the period from the date of such drawing until such Revolving Lender pays such amount to the Issuing Lender in full at a rate per annum equal to, if paid within two (2) Business Days of the date of drawing, the Federal Funds Effective Rate and thereafter at a rate equal to the Alternate Base Rate.  Each Revolving Lender’s obligation to make such payment to the Issuing Lender, and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and without regard to the termination of this Credit Agreement or the Commitments hereunder, the existence of a Default or Event of Default or the acceleration of the Credit Party Obligations hereunder and shall be made without any offset, abatement, withholding or reduction whatsoever.
 
       (e)        Repayment with Revolving Loans.  On any day on which the Borrower shall have requested, or been deemed to have requested, a Revolving Loan to reimburse a drawing under a Letter of Credit, the Administrative Agent shall give notice to the Revolving Lenders that a Revolving Loan has been requested or deemed requested in connection with a drawing under a Letter of Credit, in which case a Revolving Loan borrowing comprised entirely of Alternate Base Rate Loans (each such borrowing, a “Mandatory LOC Borrowing”) shall be made (without giving effect to any termination of the Commitments pursuant to Section 7.2) pro rata based on each Revolving Lender’s respective Revolving Commitment Percentage (determined before giving effect to any termination of the Commitments pursuant to Section 7.2) and the proceeds thereof shall be paid directly to the Issuing Lender for application to the respective Revolving LOC Obligations.  
 
 
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Each Revolving Lender hereby irrevocably agrees to make such Revolving Loans on the day such notice is received by the Revolving Lenders from the Administrative Agent if such notice is received at or before 2:00 P.M., otherwise such payment shall be made at or before 12:00 Noon on the Business Day next succeeding the day such notice is received, in each case notwithstanding (i) the amount of Mandatory LOC Borrowing may not comply with the minimum amount for borrowings of Revolving Loans otherwise required hereunder, (ii) whether any conditions specified in Section 4.2 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) failure for any such request or deemed request for Revolving Loan to be made by the time otherwise required in Section 2.1(b), (v) the date of such Mandatory LOC Borrowing, or (vi) any reduction in the Revolving Committed Amount after any such Letter of Credit may have been drawn upon.  In the event that any Mandatory LOC Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the occurrence of a Bankruptcy Event), then each such Revolving Lender hereby agrees that it shall forthwith fund (as of the date the Mandatory LOC Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) its Revolving Participation Interests in the outstanding Revolving LOC Obligations; provided, further, that in the event any Revolving Lender shall fail to fund its Revolving Participation Interest on the day the Mandatory LOC Borrowing would otherwise have occurred, then the amount of such Revolving Lender’s unfunded Revolving Participation Interest therein shall bear interest payable by such Revolving Lender to the Issuing Lender upon demand, at the rate equal to, if paid within two (2) Business Days of such date, the Federal Funds Effective Rate, and thereafter at a rate equal to the Alternate Base Rate.

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

       (g)        ISP98.  Unless otherwise expressly agreed by the Issuing Lender and the Borrower, when a Letter of Credit is issued, the rules of the “International Standby Practices 1998,” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance) shall apply to each standby Letter of Credit.

       (h)          Designation of Subsidiaries as Account Parties.  Notwithstanding anything to the contrary set forth in this Agreement, a Letter of Credit issued hereunder may contain a statement to the effect that such Letter of Credit is issued for the account of a Subsidiary of the Borrower; provided that, notwithstanding such statement, the Borrower shall be the actual account party for all purposes of this Agreement for such Letter of Credit and such statement shall not affect the Borrower’s Reimbursement Obligations hereunder with respect to such Letter of Credit.

       (i)   Conflict with LOC Documents.  In the event of any conflict between this Agreement and any LOC Document (including any letter of credit application and any LOC Documents relating to the Existing Letters of Credit), this Agreement shall control.
 
 
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       (j)   Cash Collateral.  At any point in time in which there is a Defaulting Lender, the Issuing Lender may require the Borrower to Cash Collateralize the LOC Obligations pursuant to Section 2.21.
 
    Section 2.3 Swingline Loan Subfacility.

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

       (b)           Swingline Loan Borrowings.

          (i)           Notice of Borrowing and Disbursement.  The Swingline Lender will make Swingline Loans available to the Borrower on any Business Day upon delivery of a Notice of Borrowing by the Borrower to the Administrative Agent not later than 2:00 P.M. on such Business Day.  Swingline Loan borrowings hereunder shall be made in minimum amounts of $100,000 and in integral amounts of $100,000 in excess thereof.  Such borrowing will then be made available to the Borrower by the Swingline Lender on the date specified in the applicable Notice of Borrowing (by the end of business Eastern Time on such date) by crediting the account of the Borrower on the books of such office with the aggregate of the amounts made available to the Administrative Agent by the Swingline Lender and in like funds as received by the Administrative Agent.  Notwithstanding anything to the contrary contained herein, the Swingline Lender shall not at any time be obligated to make any Swingline Loan hereunder if any Revolving Lender is at such time a Defaulting Lender hereunder, unless the Swingline Lender has entered into arrangements satisfactory to the Swingline Lender with the Borrower or such Revolving Lender to eliminate the Swingline Lender’s risk with respect to such Revolving Lender’s obligations in respect of its Swingline Commitment.  The Swingline Lender shall provide prompt notice to the Borrower upon becoming aware of any Defaulting Lender.
 
 
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          (ii)           Repayment of Swingline Loans.  Each Swingline Loan borrowing shall be due and payable on the Maturity Date.  The Swingline Lender may, at any time, in its sole discretion, by written notice to the Borrower and the Administrative Agent, demand repayment of its Swingline Loans by way of a Revolving Loan borrowing, in which case the Borrower shall be deemed to have requested a Revolving Loan borrowing comprised entirely of Alternate Base Rate Loans in the amount of such Swingline Loans; provided, however, that in the following circumstances, any such demand shall also be deemed to have been given one Business Day prior to each of (1) the Maturity Date, (2) the occurrence of any Bankruptcy Event, (3) upon acceleration of the Credit Party Obligations hereunder, whether on account of a Bankruptcy Event or any other Event of Default, and (4) the exercise of remedies in accordance with the provisions of Section 7.2 hereof (each such Revolving Loan borrowing made on account of any such deemed request therefor as provided herein being hereinafter referred to as “Mandatory Swingline Borrowing”).  Each Revolving Lender hereby irrevocably agrees to make such Revolving Loans promptly upon any such request or deemed request on account of each Mandatory Swingline Borrowing in the amount and in the manner specified in the preceding sentence and on the same such date notwithstanding (I) the amount of the Mandatory Swingline Borrowing may not comply with the minimum amount for borrowings of Revolving Loans otherwise required hereunder, (II) whether any conditions specified in Section 4.2 are then satisfied, (III) whether a Default or an Event of Default then exists, (IV) failure of any such request or deemed request for Revolving Loans to be made by the time otherwise required in Section 2.1(b)(i), (V) the date of such Mandatory Swingline Borrowing, or (VI) any reduction in the Revolving Committed Amount or termination of the Revolving Commitments immediately prior to such Mandatory Swingline Borrowing or contemporaneously therewith.  In the event that any Mandatory Swingline Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code), then each Revolving Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Swingline Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in the outstanding Swingline Loans as shall be necessary to cause each such Revolving Lender to share in such Swingline Loans ratably based upon its respective Revolving Commitment Percentage (determined before giving effect to any termination of the Commitments pursuant to Section 7.2); provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date as of which the respective participation is purchased, and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Revolving Lender shall be required to pay to the Swingline Lender interest on the principal amount of such participation purchased for each day from and including the day upon which the Mandatory Swingline Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate equal to, if paid within two (2) Business Days of the date of the Mandatory Swingline Borrowing, the Federal Funds Effective Rate, and thereafter at a rate equal to the Alternate Base Rate.
 
 
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       (c)           Interest on Swingline Loans.  Subject to the provisions of Section 2.10(b), Swingline Loans shall bear interest at a per annum rate equal to the Alternate Base Rate plus the Applicable Percentage for Revolving Loans that are Alternate Base Rate Loans.  Interest on Swingline Loans shall be payable in arrears on each Interest Payment Date.

       (d)           Swingline Note.  The Swingline Loans shall be evidenced by a duly executed promissory note of the Borrower to the Swingline Lender in the original amount of the Swingline Committed Amount and substantially in the form of Schedule 2.3(d).

       (e)           Cash Collateral.  At any point in time in which there is a Defaulting Lender, the Swingline Lender may require the Borrower to Cash Collateralize the outstanding Swingline Loans pursuant to Section 2.21.

    Section 2.4                      Term Loan.

       (a)           Term Loan.  Subject to the terms and conditions hereof and in reliance upon the representations and warranties set forth herein, each Lender with a Term Loan Commitment severally, but not jointly, agrees to make available to the Borrower (through the Administrative Agent) on the Closing Date such Term Loan Lender’s Term Loan Commitment Percentage of a term loan in Dollars (the “Term Loan”) in the aggregate principal amount of ONE HUNDRED MILLION DOLLARS ($100,000,000) (the “Term Loan Committed Amount”) for the purposes hereinafter set forth (such facility, the “Term Loan Facility”).  Upon receipt by the Administrative Agent of the proceeds of the Term Loan, such proceeds will then be made available to the Borrower by the Administrative Agent by crediting the account of the Borrower on the books of the office of the Administrative Agent specified in Section 9.2, or at such other office as the Administrative Agent may designate in writing, with the aggregate of such proceeds made available to the Administrative Agent by the Term Loan Lenders and in like funds as received by the Administrative Agent (or by crediting such other account(s) as directed by the Borrower).  The Term Loan may consist of Alternate Base Rate Loans or LIBOR Rate Loans, or a combination thereof, as the Borrower may request in the Notice of Borrowing delivered to the Administrative Agent prior to the Closing Date; provided, however, that the Term Loan made on the Closing Date may only consist of Alternate Base Rate Loans unless the Borrower delivers a funding indemnity letter, substantially in the form of Schedule 2.4(a), reasonably acceptable to the Administrative Agent not less than three (3) Business Days prior to the Closing Date.  LIBOR Rate Loans shall be made by each Term Loan Lender at its LIBOR Lending Office and Alternate Base Rate Loans at its Domestic Lending Office.  Amounts repaid or prepaid on the Term Loan may not be reborrowed.

       (b)           Repayment of Term Loan.  The principal amount of the Term Loan shall be repaid in consecutive quarterly installments of $1,250,000 to be paid on the first day of each of March, June, September and December (beginning September 1, 2014) (provided, however, if such payment date is not a Business Day, such payment shall be due on the preceding Business Day), unless accelerated sooner pursuant to Section 7.2.  The outstanding principal amount of the Term Loan and all accrued but unpaid interest and other amounts payable with respect to the Term Loan shall be repaid on the Maturity Date.
 
 
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       (c)           Interest on the Term Loan.  Subject to the provisions of Section 2.10, the Term Loan shall bear interest as follows:

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

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

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

       (d)           Term Loan Notes; Covenant to Pay.  The Borrower’s obligation to pay each Term Loan Lender shall be evidenced by this Agreement and, upon such Term Loan Lender’s request, by a duly executed promissory note of the Borrower to such Term Loan Lender in substantially the form of Schedule 2.4(d).  The Borrower covenants and agrees to pay the Term Loan in accordance with the terms of this Agreement.

    Section 2.5                      Reserved.

    Section 2.6                      Reserved.


  (a)            Revolving Commitment Fee.  Subject to Section 2.22, in consideration of the Revolving Commitments, the Borrower agrees to pay to the Administrative Agent, for the ratable benefit of the Revolving Lenders, a commitment fee (the “Revolving Commitment Fee”) in an amount equal to the Applicable Percentage per annum on the average daily unused amount of the Revolving Committed Amount.  The Commitment Fee shall be calculated quarterly in arrears.  For purposes of computation of the Revolving Commitment Fee, Revolving LOC Obligations shall be considered usage but Swingline Loans shall not be considered usage of the Revolving Committed Amount.

  (b)          Revolving LOC Fees.  Subject to Section 2.22, in consideration of the Revolving LOC Commitments, the Borrower agrees to pay to the Administrative Agent, for the ratable benefit of the Revolving Lenders, a fee (the “Revolving LOC Commitment Fee”) equal to the Applicable Percentage for Revolving Loans that are LIBOR Rate Loans per annum on the average daily maximum amount available to be drawn under each Letter of Credit from the date of issuance to the date of expiration.  In addition to such Revolving LOC Commitment Fee, the Borrower agrees to pay to the Issuing Lender, for its own account without sharing by the Revolving Lenders, an additional fronting fee (the “Revolving LOC Fronting Fee”) of one-quarter of one percent (0.25%) per annum on the average daily maximum amount available to be drawn under each Letter of Credit issued by it.
 
 
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   (c)           Issuing Lender Fees.  In addition to the Revolving LOC Fronting Fees payable pursuant to this Section, the Borrower shall pay to the Issuing Lender for its own account without sharing by the other Lenders the reasonable and customary charges from time to time of the Issuing Lender with respect to the amendment, transfer, administration, cancellation and conversion of, and drawings under, the Letters of Credit (collectively, the “Issuing Lender Fees”).
 
       (d)          Administrative Fee.  The Borrower agrees to pay to the Administrative Agent the annual administrative fee as described in the Fee Letter.
 
       (e)          Payment of Fees.  The Revolving Commitment Fees, Revolving LOC Commitment Fees, Revolving LOC Fronting Fees and Issuing Lender Fees shall each be payable quarterly in arrears on the last Business Day of each calendar quarter.

    Section 2.8                      Commitment Reductions.
 
       (a)          Voluntary Reductions.  The Borrower shall have the right to terminate or permanently reduce the unused portion of the Revolving Committed Amount at any time or from time to time upon not less than five (5) Business Days’ prior written notice to the Administrative Agent (which shall notify the Lenders thereof as soon as practicable) of each such termination or reduction, which notice shall specify the effective date thereof and the amount of any such reduction which shall be in a minimum amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof and shall be irrevocable and effective upon receipt by the Administrative Agent; provided that no such reduction or termination of the Revolving Committed Amount shall be permitted if after giving effect thereto, and to any repayments of the Revolving Loans made on the effective date thereof, the sum of the aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding Revolving LOC Obligations would exceed the Revolving Committed Amount then in effect.
 
       (b)           Maturity Date.  The Revolving Commitments, the LOC Commitments and the Swingline Commitment shall automatically terminate on the Maturity Date.

    Section 2.9                      Repayments.
 
       (a)          Optional Repayments.  The Borrower shall have the right to repay the Revolving Loans or Term Loan in whole or in part from time to time as the Borrower may elect provided, however, that (i) each partial prepayment of the Revolving Loans or Term Loan shall be in a minimum principal amount of $2,000,000 and integral multiples of $250,000 in excess thereof.  The Borrower shall give at least three (3) Business Days’ (but not more than five (5) Business Days’) irrevocable notice in the case of LIBOR Rate Loans and at least one (1) Business Day’s (but not more than five (5) Business Days’) irrevocable notice in the case of Alternate Base Rate Loans, to the Administrative Agent (which shall notify the Lenders thereof as soon as practicable).  Subject to the foregoing terms, amounts prepaid under this Section 2.9(a) shall be applied first to Alternate Base Rate Loans and then to LIBOR Rate Loans in direct order of Interest Period maturities.  All repayments under this Section 2.9(a) shall be subject to Section 2.18, but otherwise without premium or penalty.  Interest on the principal amount prepaid shall be due and payable on any date that a repayment is made hereunder through the date of repayment.
 
 
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       (b)          Mandatory Repayments.

          (i)           Revolving Commitment. If at any time after the Closing Date, the sum of the aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding Revolving LOC Obligations shall exceed the Revolving Committed Amount then in effect, the Borrower immediately shall prepay the Revolving Loans and Swingline Loans and (after all Revolving Loans and Swingline Loans have been repaid) Cash Collateralize the Revolving LOC Obligations in an amount sufficient to eliminate such excess (such prepayment to be applied as set forth in clause (vi) below) and (y) if, on any Revaluation Date, the outstanding Revolving Loans denominated in a Foreign Currency, together with the outstanding LOC Obligations with respect to Letters of Credit Denominated in a Foreign Currency, shall exceed 105% of the Foreign Currency Sublimit, the Borrower shall immediately prepay such Loans and (after all such Loans have been repaid) Cash Collateralize the Revolving LOC Obligations in an amount sufficient to eliminate such excess (such prepayment to be applied as set forth in clause (vi) below).

          (ii)          Asset Dispositions. Promptly following any Asset Disposition (or related series of Asset Dispositions), the Borrower shall prepay the Loans in an aggregate amount equal to the Net Cash Proceeds derived from such Asset Disposition (or related series of Asset Dispositions) (such prepayment to be applied as set forth in clause (vi) below); provided that (I) the Net Cash Proceeds from Asset Dispositions in any fiscal year shall not be required to be so applied until the aggregate amount of such Net Cash Proceeds is equal to or greater than $10,000,000 for such fiscal year and (II) the Borrower shall be permitted to reinvest all or any portion of the Net Cash Proceeds received from Asset Dispositions in fixed or capital assets or otherwise reinvest such Net Cash Proceeds in Permitted Acquisitions and Permitted Investments, so long as (w) no Default or Event of Default shall have occurred and be continuing at the time of such Asset Disposition and at the time of such reinvestment, (x) before or promptly after such Asset Disposition, the Borrower delivers to the Administrative Agent a certificate stating that it intends to reinvest such Net Cash Proceeds in accordance with the terms of this Section 2.9(b)(ii), (y) such Net Cash Proceeds are committed to be reinvested within 365 days of the receipt of such Net Cash Proceeds and (z) such Net Cash Proceeds are actually reinvested within 180 days after such Net Cash Proceeds are committed to be reinvested (which, for the avoidance of doubt, may extend beyond the 365 day period).
 
          (iii)         Debt Issuances.  Promptly, upon receipt by any Credit Party or any of its Subsidiaries of proceeds from any Debt Issuance, the Borrower shall prepay the Loans in an aggregate amount equal to 100% of the Net Cash Proceeds of such Debt Issuance (such prepayment to be applied as set forth in clause (vi) below).
 
 
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          (iv)         Recovery Event.  To the extent Net Cash Proceeds received in connection with any Recovery Event are not (A) committed to be used to acquire fixed or capital assets in replacement of the assets subject to such Recovery Event within 365 days of the receipt of such Net Cash Proceeds and (B) actually used to acquire fixed or capital assets in replacement of the assets subject to such Recovery Event within 180 days following such commitment, immediately following the (x) 365th day to the extent such Net Cash Proceeds are not committed to be used pursuant to clause (A) above or (y) 180th day to the extent such Net Cash Proceeds are not actually used pursuant to clause (B) above, after the receipt of such Net Cash Proceeds, the Borrower shall prepay the Loans in an aggregate amount equal to 100% of such Net Cash Proceeds (such prepayment to be applied as set forth in clause (vi) below); provided that (A) the Net Cash Proceeds from Recovery Events in any fiscal year shall not be required to be so applied until the aggregate amount of such Net Cash Proceeds is equal to or greater than $5,000,000 for such fiscal year, (B) after the occurrence and during the continuation of a Default, any Net Cash Proceeds shall be delivered to the Administrative Agent in escrow until the earlier of (I) the cure of such Default at which time the Net Cash Proceeds shall be used by the Borrower as set forth herein and (II) the occurrence of an Event of Default at which time the Net Cash Proceeds shall be used to prepay the Loans as set forth herein and (C) after the occurrence and during the continuance of an Event of Default, any Net Cash Proceeds received in connection with any Recovery Event shall be promptly used to prepay the Loans (such prepayment to be applied as set forth in clause (vi) below) and the Borrower and its Subsidiaries shall not have the right to reinvest such Net Cash Proceeds.

          (v)          Litigation Award.  To the extent Net Cash Proceeds received in connection with any Litigation Award are not reinvested in the business of the Credit Parties within 365 days of the receipt of such Net Cash Proceeds, immediately following the 365th day occurring after the receipt of such Net Cash Proceeds, the Borrower shall prepay the Loans in an aggregate amount equal to 100% of such Net Cash Proceeds (such prepayment to be applied as set forth in clause (vi) below); provided that (A) the Net Cash Proceeds from any Litigation Award in any fiscal year shall not be required to be so applied until the aggregate amount of such Net Cash Proceeds is equal to or greater than $5,000,000 for such fiscal year, (B) after the occurrence and during the continuation of a Default, any Net Cash Proceeds shall be delivered to the Administrative Agent in escrow until the earlier of (I) the cure of such Default at which time the Net Cash Proceeds shall be used by the Borrower as set forth herein and (II) the occurrence of an Event of Default at which time the Net Cash Proceeds shall be used to prepay the Loans as set forth herein and (C) after the occurrence and during the continuance of an Event of Default, any Net Cash Proceeds received in connection with any Litigation Award shall be promptly used to prepay the Loans (such prepayment to be applied as set forth in clause (vi) below) and the Borrower and its Subsidiaries shall not have the right to reinvest such Net Cash Proceeds.
 
 
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          (vi)        Application of Mandatory Prepayments.  All amounts required to be paid pursuant to this Section 2.9(b) shall be applied as follows:

             (A) with respect to all amounts prepaid pursuant to Section 2.9(b)(i), (1) first to the outstanding Swingline Loans, (2) second to the outstanding Revolving Loans and (3) third to a cash collateral account in respect of Revolving LOC Obligations; and

             (B) with respect to all amounts prepaid pursuant to Sections 2.9(b)(ii) through (v), (1) first to the Term Loan and any Incremental Term Facility on a pro rata basis in direct order of maturity, (2) second to outstanding Swingline Loans (without a corresponding permanent reduction in the Revolving Committed Amount), (3) third to the outstanding Revolving Loans (without a corresponding permanent reduction in the Revolving Committed Amount) and (4) fourth any remaining amounts shall be paid to the Borrower.  Within the parameters of the applications set forth above, prepayments shall be applied first to Alternate Base Rate Loans and then to LIBOR Rate Loans in direct order of Interest Period maturities.  All prepayments under this Section 2.9(b) shall be subject to Section 2.19 and be accompanied by interest on the principal amount prepaid through the date of prepayment.
 
       (c)          Bank Product Obligations Unaffected.  Any repayment made pursuant to this Section shall not affect the Borrower’s obligation to continue to make payments under any Bank Product, which shall remain in full force and effect notwithstanding such repayment, subject to the terms of such Bank Product.

    Section 2.10                      Default Rate and Payment Dates.

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

       (b)          Upon the occurrence, and during the continuance, of an Event of Default, at the election of the Required Lenders, the principal of and, to the extent permitted by law, interest on the Loans and any other amounts owing hereunder or under the other Credit Documents shall bear interest, payable on demand (and monthly if demand is not made), at a per annum rate 2% greater than the rate which would otherwise be applicable (or if no rate is applicable, whether in respect of interest, fees or other amounts, then the ABR Default Rate).

       (c)          Interest on each Loan shall be payable in arrears on each Interest Payment Date; provided that interest accruing pursuant to Section 2.10(b) shall be payable from time to time on demand.
 
 
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    Section 2.11                      Conversion Options.

       (a)          The Borrower may, in the case of Revolving Loans and the Term Loans, elect from time to time to convert Alternate Base Rate Loans to LIBOR Rate Loans by giving the Administrative Agent at least three (3) Business Days’ prior irrevocable written notice of such election, such notice to be in substantially the form of the notice of conversion attached hereto as Schedule 2.11 (a “Notice of Conversion”).  In addition, the Borrower may elect from time to time to convert LIBOR Rate Loans to Alternate Base Rate Loans by delivering an irrevocable Notice of Conversion to the Administrative Agent by 1:00 P.M. one Business Date prior to the proposed date of conversion.  If the date upon which an Alternate Base Rate Loan is to be converted to a LIBOR Rate Loan is not a Business Day, then such conversion shall be made on the next succeeding Business Day.  All or any part of outstanding Alternate Base Rate Loans may be converted as provided herein; provided that (i) no Loan may be converted into a LIBOR Rate Loan when any Default or Event of Default has occurred and is continuing and (ii) partial conversions shall be in an aggregate principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof.  LIBOR Rate Loans may only be converted to Alternate Base Rate Loans on the last day of the applicable Interest Period.  If the date upon which a LIBOR Rate Loan is to be converted to an Alternate Base Rate Loan is not a Business Day, then such conversion shall be made on the next succeeding Business Day and during the period from such last day of an Interest Period to such succeeding Business Day such Loan shall bear interest as if it were an Alternate Base Rate Loan.

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

       (c)          Unless otherwise agreed to by the Required Lenders, upon the occurrence and during the continuance of any Event of Default, all Loans denominated in a Foreign Currency then outstanding shall be redenominated into Dollars (based on the Dollar Equivalent (determined as of the most recent Revaluation Date) of such Foreign Currency Loans on the date of redenomination) on the last day of the then current Interest Periods of such Foreign Currency denominated Loans, and such Dollar denominated Loans shall be Alternate Base Rate Loans; provided that in each case the Borrower shall be liable for any currency exchange loss related to such payments and shall promptly pay to each Lender upon receipt of notice thereof by the Borrower from such Lender the amount of any such loss incurred by such Lender.
 
 
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       (d)   Notwithstanding the foregoing to the contrary, no LIBOR Rate Loan denominated in a Foreign Currency may be converted into a different Foreign Currency or into an Alternate Base Rate Loan.

    Section 2.12                      Computation of Interest and Fees.

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

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

       (c)           It is the intent of the Lenders and the Credit Parties to conform to and contract in strict compliance with applicable usury law from time to time in effect.  All agreements between the Lenders and the Credit Parties are hereby limited by the provisions of this paragraph which shall override and control all such agreements, whether now existing or hereafter arising and whether written or oral.  In no way, nor in any event or contingency (including but not limited to prepayment or acceleration of the maturity of any Obligation), shall the interest taken, reserved, contracted for, charged, or received under this Credit Agreement, under the Notes or otherwise, exceed the maximum nonusurious amount permissible under applicable law.  If, from any possible construction of any of the Credit Documents or any other document, interest would otherwise be payable in excess of the maximum nonusurious amount, any such construction shall be subject to the provisions of this paragraph and such interest shall be automatically reduced to the maximum nonusurious amount permitted under applicable law, without the necessity of execution of any amendment or new document.  If any Lender shall ever receive anything of value which is characterized as interest on the Loans under applicable law and which would, apart from this provision, be in excess of the maximum nonusurious amount, an amount equal to the amount which would have been excessive interest shall, without penalty, be applied to the reduction of the principal amount owing on the Loans and not to the payment of interest, or refunded to the Borrower or the other payor thereof if and to the extent such amount which would have been excessive exceeds such unpaid principal amount of the Loans.  
 
 
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The right to demand payment of the Loans or any other Indebtedness evidenced by any of the Credit Documents does not include the right to receive any interest which has not otherwise accrued on the date of such demand, and the Lenders do not intend to charge or receive any unearned interest in the event of such demand.  All interest paid or agreed to be paid to the Lenders with respect to the Loans shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term (including any renewal or extension) of the Loans so that the amount of interest on account of such indebtedness does not exceed the maximum nonusurious amount permitted by applicable law.
 
    Section 2.13                      Pro Rata Treatment and Payments.

       (a)           Allocation of Payments Before Exercise of Remedies.  Each borrowing of Revolving Loans and any reduction of the Revolving Commitments shall be made pro rata according to the respective Revolving Commitment Percentages of the Revolving Lenders.  Unless otherwise indicated herein, each payment under this Credit Agreement or any Note shall be applied, first, to any fees then due and owing by the Borrower pursuant to Section 2.7, second, to interest then due and owing hereunder and under the Notes and, third, to principal then due and owing hereunder and under the Notes.  Each payment on account of any fees pursuant to Section 2.7 shall be made pro rata in accordance with the respective amounts due and owing (except as to the Revolving LOC Fronting Fees and the Issuing Lender Fees, which fees shall be for the account of the applicable Issuing Lender).  Each voluntary repayment on account of principal of the Loans shall be applied in accordance with the terms of Section 2.9(a).  Each mandatory prepayment on account of principal of the Loans shall be applied in accordance with Section 2.9(b).  All payments (including prepayments) to be made by the Borrower on account of principal, interest and fees shall be made without defense, set-off or counterclaim (except as provided in Section 2.19(b)) and shall be made to the Administrative Agent for the account of the Lenders, the Issuing Lenders or the Swingline Lender, as the case may be, at the Administrative Agent’s office specified on Section 9.2 in Dollars and in immediately available funds and (i) in the case of Loans or other amounts denominated in Dollars, shall be made in Dollars not later than 1:00 P.M. on the date when due and (ii) in the case of Loans or other amounts denominated in a Foreign Currency, unless otherwise specified herein, shall be made in such Foreign Currency not later than the Applicable Time specified by the Administrative Agent on the date when due.  The Administrative Agent shall distribute such payments to the Lenders entitled thereto promptly upon receipt in like funds as received.  If any payment hereunder (other than payments on the LIBOR Rate Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.  If any payment on a LIBOR Rate Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day.
 
 
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       (b)           Allocation of Payments After Exercise of Remedies.  Notwithstanding any other provisions of this Agreement to the contrary, after the exercise of remedies (other than the invocation of default interest pursuant to Section 2.10(b)) by the Administrative Agent or the Lenders pursuant to Section 7.2 (or after the Commitments shall automatically terminate and the Loans (with accrued interest thereon) and all other amounts under the Credit Documents shall automatically become due and payable in accordance with the terms of such Section), all amounts collected or received by the Administrative Agent or any Lender on account of the Credit Party Obligations or in respect of the Collateral shall be paid over or delivered as follows (irrespective of whether the following costs, expenses, fees, interest, premiums, scheduled periodic payments or Credit Party Obligations are allowed, permitted or recognized as a claim in any proceeding resulting from the occurrence of a Bankruptcy Event):

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

             SECOND, to the payment of any fees owed to the Administrative Agent and the Issuing Lenders;

             THIRD, to the payment of all reasonable out-of-pocket costs and expenses (including without limitation, reasonable attorneys’ fees) of each of the Lenders in connection with enforcing its rights under the Credit Documents or otherwise enforcing its rights with respect to the Credit Party Obligations owing to such Lender;
 
             FOURTH, to the payment of all of the Credit Party Obligations consisting of accrued fees and interest, and including, with respect to any Bank Product, any fees, premiums and scheduled periodic payments due under such Bank Product and any interest accrued thereon;

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

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

             SEVENTH, to the payment of the surplus, if any, to whoever may be lawfully entitled to receive such surplus.
 
 
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    In carrying out the foregoing, (a) amounts received shall be applied in the numerical order provided until exhausted prior to application to the next succeeding category; (b) each of the Lenders and any Bank Product Provider shall receive an amount equal to its pro rata share (based on the proportion that the then outstanding Loans and LOC Obligations held by such Lender or the outstanding obligations payable to such Bank Product Provider bears to the aggregate then outstanding Loans and LOC Obligations and obligations payable under all Bank Products) of amounts available to be applied pursuant to clauses “THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above; and (c) to the extent that any amounts available for distribution pursuant to clause “FIFTH” above are attributable to the issued but undrawn amount of outstanding Letters of Credit, such amounts shall be held by the Administrative Agent in a cash collateral account and applied (i) first, to reimburse the Issuing Lender from time to time for any drawings under such Letters of Credit and (ii) then, following the expiration of all Letters of Credit, to all other obligations of the types described in clauses “FIFTH” and “SIXTH” above in the manner provided in this Section.  Notwithstanding the foregoing terms of this Section, only Collateral proceeds and payments under the Guaranty (as opposed to ordinary course principal, interest and fee payments hereunder) shall be applied to obligations under any Bank Product. Amounts distributed with respect to any Bank Product Debt shall be the last Bank Product Amount reported to the Administrative Agent; provided that any such Bank Product Provider may provide an updated Bank Product Amount to the Administrative Agent prior to payments made pursuant to this Section.  The Administrative Agent shall have no obligation to calculate the amount to be distributed with respect to any Bank Product Debt, but may rely upon written notice of the amount (setting forth a reasonably detailed calculation) from the applicable Bank Product Provider.  In the absence of such notice, the Administrative Agent may assume the amount to be distributed is the Bank Product Amount last reported to the Administrative Agent.

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

       (a)           Funding by Lenders; Presumption by Administrative Agent.  Unless the Administrative Agent shall have received written notice from a Lender prior to the proposed date of any Extension of Credit that such Lender will not make available to the Administrative Agent such Lender’s share of such Extension of Credit, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with this Agreement 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 Extension of Credit 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 with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) in the case of a payment to be made by the Borrower, the applicable rate for the applicable borrowing pursuant to the Notice of Borrowing.  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 Extension of Credit to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Extension of Credit.  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.
 
 
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       (b)           Payments by Borrower; Presumptions by Administrative Agent.  Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Issuing Lender 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 Lenders or the Issuing Lender, 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 Lenders or the Issuing Lender, 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 Issuing Lender, 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 Effective 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 subsections (a) and (b) of this Section 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 Extension of Credit set forth in Article IV are not satisfied or waived in accordance with the terms thereof, 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 Loans and Term Loans, to fund participations in Letters of Credit and Swingline Loans and to make payments pursuant to Section 9.5(c) are several and not joint.  The failure of any Lender to make any Loan, to fund any such participation or to make any such payment under Section 9.5(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 9.5(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.
 
 
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    Section 2.15                      Inability to Determine Interest Rate.

    Notwithstanding any other provision of this Credit Agreement, if (i) the Administrative Agent shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that, by reason of circumstances affecting the relevant market, reasonable and adequate means do not exist for ascertaining LIBOR for such Interest Period, or (ii) the Required Lenders shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that the LIBOR Rate does not adequately and fairly reflect the cost to such Lenders of funding LIBOR Rate Loans that the Borrower has requested be outstanding as a LIBOR Tranche during such Interest Period, the Administrative Agent shall forthwith give telephone notice of such determination, confirmed in writing, to the Borrower, and the Lenders at least two (2) Business Days prior to the first day of such Interest Period.  Unless the Borrower shall have notified the Administrative Agent upon receipt of such telephone notice that it wishes to rescind or modify its request regarding such LIBOR Rate Loans, any Loans that were requested to be made as LIBOR Rate Loans shall be made as Alternate Base Rate Loans and any Loans that were requested to be converted into or continued as LIBOR Rate Loans shall remain as or be converted into Alternate Base Rate Loans.  Until any such notice has been withdrawn by the Administrative Agent, no further Loans shall be made as, continued as, or converted into, LIBOR Rate Loans for the Interest Periods so affected.
 
    Section 2.16                      Illegality.

    Notwithstanding any other provision of this Credit Agreement, if any Change in Law shall make it unlawful for such Lender or its LIBOR Lending Office to make or maintain LIBOR Rate Loans as contemplated by this Credit Agreement or to obtain in the interbank eurodollar market through its LIBOR Lending Office the funds with which to make such Loans, (a) such Lender shall promptly notify the Administrative Agent and the Borrower thereof, (b) the commitment of such Lender hereunder to make LIBOR Rate Loans or continue LIBOR Rate Loans as such shall forthwith be suspended until the Administrative Agent shall give notice that the condition or situation which gave rise to the suspension shall no longer exist, and (c) such Lender’s Loans then outstanding as LIBOR Rate Loans, if any, shall be converted on the last day of the Interest Period for such Loans or within such earlier period as required by law as Alternate Base Rate Loans.  The Borrower hereby agrees to promptly pay any Lender, upon its demand, any additional amounts necessary to compensate such Lender for actual and direct costs (but not including anticipated profits) reasonably incurred by such Lender in making any repayment in accordance with this Section including, but not limited to, any interest or fees payable by such Lender to lenders of funds obtained by it in order to make or maintain its LIBOR Rate Loans hereunder.  A certificate (which certificate shall include a description of the basis for the computation) as to any additional amounts payable pursuant to this Section submitted by such Lender, through the Administrative Agent, to the Borrower shall be conclusive in the absence of manifest error.  Each Lender agrees to use reasonable efforts (including reasonable efforts to change its LIBOR Lending Office) to avoid or to minimize any amounts which may otherwise be payable pursuant to this Section; provided, however, that such efforts shall not cause the imposition on such Lender of any additional costs or legal or regulatory burdens deemed by such Lender in its sole discretion to be material.
 
 
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    Section 2.17                      Yield Protection.

       (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 reflected in the LIBOR Rate) or Issuing Lender;

          (ii)           subject any Lender or Issuing Lender to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any LIBOR Rate Loan made by it, or change the basis of taxation of payments to such Lender or Issuing Lender in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.19 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or Issuing Lender); or

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

       and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBOR Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or Issuing Lender of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or Issuing Lender hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or Issuing Lender, the Borrower will pay to such Lender or Issuing Lender, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Lender, as the case may be, for such additional costs incurred or reduction suffered.  Each Lender agrees to use reasonable efforts (including reasonable efforts to change its Domestic Lending Office or LIBOR Lending Office, as the case may be) to avoid or to minimize any amounts which might otherwise be payable pursuant to this paragraph of this Section; provided, however, that such efforts shall not cause the imposition on such Lender of any additional costs or legal or regulatory burdens deemed by such Lender to be material.

       (b)           Capital Requirements.  If any Lender or Issuing Lender determines that any Change in Law affecting such Lender or Issuing Lender or any lending office of such Lender or such Lender’s or Issuing Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or Issuing Lender’s capital or on the capital of such Lender’s or Issuing Lender’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 such Issuing Lender, to a level below that which such Lender or Issuing Lender or such Lender’s or Issuing Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Lender’s policies and the policies of such Lender’s or Issuing Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender or Issuing Lender, as the case may be, such additional amount or amounts as will compensate such Lender or Issuing Lender or such Lender’s or Issuing Lender’s holding company for any such reduction suffered.
 
 
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       (c)           Certificates for Reimbursement.  A certificate of a Lender or Issuing Lender setting forth the amount or amounts necessary to compensate such Lender or Issuing Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error.  The Borrower shall pay such Lender or Issuing Lender, as the case may be, the amount shown as due on any such certificate within fifteen (15) days after receipt thereof.

       (d)          Delay in Requests.  Failure or delay on the part of any Lender or Issuing Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Lender’s right to demand such compensation.

       (e)          Survival.  Each party’s obligations under this Section 2.17 shall survive the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Credit Document.

   Section 2.18                      Indemnity; Nature of Issuing Lender’s Duties.

       (a)           The Credit Parties hereby agree to indemnify each Lender and to hold such Lender harmless from any funding loss or expense which such Lender may sustain or incur as a consequence of (i) the failure by the Borrower to pay the principal amount of or interest on any Loan by such Lender in accordance with the terms hereof, (ii) the failure of the Borrower to accept a borrowing after the Borrower has given a notice in accordance with the terms hereof, (iii) the failure of the Borrower to make any repayment or prepayment after the Borrower has given a notice in accordance with the terms hereof, (iv) the making by the Borrower of a repayment or prepayment of a Loan, or the conversion thereof, on a day which is not the last day of the Interest Period with respect thereto, in each case including, but not limited to, any such loss or expense arising from interest or fees payable by such Lender to lenders of funds obtained by it in order to maintain its Loans hereunder, and/or (v) any assignment of  LIBOR Rate Loan on a day other than the last day of an Interest Period therefor as a result of a request by the Borrower pursuant to Section 2.20.  A certificate as to any additional amounts payable pursuant to this Section submitted by any Lender, through the Administrative Agent, to the Borrower (which certificate must be delivered to the Administrative Agent within ninety (90) days following such default, repayment or conversion) shall be conclusive in the absence of manifest error); provided that if such certificate is not be delivered to the Administrative Agent within ninety (90) days following such Lender becoming aware of such default, repayment or conversion, such Lender shall only be entitled to receive payment pursuant to this Section with respect to losses or expenses incurred by such Lender during the ninety (90) days prior to the date such Lender delivers such certificate to the Administrative Agent.  The agreements in this Section shall survive termination of this Credit Agreement and payment in full of the Credit Party Obligations.
 
 
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       (b)           In addition to its other obligations under Section 2.2, the Credit Parties hereby agree to protect, indemnify, pay and save the Issuing Lender and each Lender harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys’ fees) that the Issuing Lender or such Lender may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit or (ii) the failure of the Issuing Lender to honor a drawing under a Letter of Credit as a result of any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority (all such acts or omissions, herein called “Government Acts”).  The agreements in this Section shall survive termination of this Credit Agreement and payment in full of the Credit Party Obligations.
 
       (c)           As between the Credit Parties, the Issuing Lender and each Lender, the Credit Parties shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary thereof.  Neither the Issuing Lender nor any Lender shall be responsible:  (i) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason; (iii) for failure of the beneficiary of a Letter of Credit to comply fully with conditions required in order to draw upon a Letter of Credit; (iv) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) for errors in interpretation of technical terms; (vi) for any loss or delay in the transmission or otherwise of any document required in order to make a drawing under a Letter of Credit or of the proceeds thereof; and (vii) for any consequences arising from causes beyond the control of the Issuing Lender or any Lender, including, without limitation, any Government Acts.  None of the above shall affect, impair, or prevent the vesting of the Issuing Lender’s rights or powers hereunder.

       (d)           In furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by the Issuing Lender or any Lender, under or in connection with any Letter of Credit or the related certificates, if taken or omitted in the absence of gross negligence or willful misconduct, shall not put such Issuing Lender or such Lender under any resulting liability to the Credit Parties.  It is the intention of the parties that this Agreement shall be construed and applied to protect and indemnify the Issuing Lender and each Lender against any and all risks involved in the issuance of the Letters of Credit, all of which risks are hereby assumed by the Credit Parties, including, without limitation, any and all risks of the acts or omissions, whether rightful or wrongful, of any Government Authority.  The Issuing Lender and the Lenders shall not, in any way, be liable for any failure by the Issuing Lender or anyone else to pay any drawing under any Letter of Credit as a result of any Government Acts or any other cause beyond the control of the Issuing Lender and the Lenders.
 
 
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       (e)           Nothing in this Section is intended to limit the Reimbursement Obligation of the Borrower contained in Section 2.2(d) hereof.  The obligations of the Credit Parties under this Section shall survive the termination of this Agreement.  No act or omissions of any current or prior beneficiary of a Letter of Credit shall in any way affect or impair the rights of the Issuing Lender and the Lenders to enforce any right, power or benefit under this Agreement.

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

    Section 2.19                      Taxes.

       (a)           Issuing Lender.  For purposes of this Section 2.19, the term “Lender” includes any Issuing Lender.

       (b)          Payments Free of Taxes.  Any and all payments by or on account of any obligation of any Credit Party under any Credit Document shall be made free and clear of and without deduction or withholding for any Taxes, except as required by applicable law.  If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall make such deduction and timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased as necessary so that after making such deductions (including such deductions applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deductions been made.

       (c)           Payment of Other Taxes by the Borrower.  The Credit Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

       (d)          Indemnification by the Borrower.  The Credit Parties shall jointly and severally indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
 
 
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       (e)           Indemnification by the Lenders.  Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 9.6(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).

       (f)           Evidence of Payments.  As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section 2.19, such Credit Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

       (g)          Status of Lenders.

          (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.19(g) (ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

          (ii) Without limiting the generality of the foregoing,
 
 
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             (A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding tax;

             (B) any Foreign Lender shall, to the extent it is legally entitled to do so, 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 reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

          (i)  in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed originals of IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

          (ii)  executed originals of IRS Form W-8ECI;

          (iii) 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 (A) such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (B) the interest payments in question are not effectively connected with a U.S. trade or business conducted by such Foreign Lender or are effectively connected but are not includible in the Foreign Lender’s gross income for U.S. federal income tax purposes under an income tax treaty (a “U.S. Tax Compliance Certificate”) and (y) executed originals of  IRS Form W-8BEN; or

          (iv) to the extent a Foreign Lender is not the beneficial owner (for example, where the Foreign Lender is a partnership or participating Lender granting a typical participation), executed originals of IRS Form W-8IMY, accompanied by a Form W-8ECI, W-8BEN, U.S. Tax Compliance Certificate, Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership (and not a participating Lender) and one or more beneficial owners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each such beneficial owner;
 
 
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             (C)  any Foreign Lender shall, to the extent it is legally entitled to do so, 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 reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

             (D) if a payment made to a Lender under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

    Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

       (h)  Treatment of Certain Refunds.  If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.19 (including additional amounts pursuant to this Section 2.19), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.  This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
 
 
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       (i)  Survival.  Each party’s obligations under this Section 2.19 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Credit Document.

   Section 2.20                      Replacement of Lenders.

    If any Lender shall (a) be a Defaulting Lender, (b) be a Non-Consenting Lender or (c) become affected by any of the changes or events described in Sections 2.16, 2.17, 2.18 or 2.19 and shall petition the Borrower for any increased cost or amounts thereunder (in the case of any Lender falling under the category of clause (a), (b) or (c) above, a “Replaced Lender”), then in such case, the Borrower may, upon at least thirty (30) Business Days’ notice to the Administrative Agent and such Replaced Lender and so long as no Default or Event of Default has occurred and is continuing, designate a replacement lender (a “Replacement Lender”) acceptable to the Administrative Agent in its reasonable discretion, to which such Replaced Lender shall, subject to its receipt (unless a later date for the remittance thereof shall be agreed upon by the Borrower and the Replaced Lender) of all amounts owed to such Replaced Lender under Sections 2.16, 2.17, 2.18 or 2.19, assign at par all (but not less than all) of its rights, obligations, Loans and Commitments hereunder; provided, that all amounts owed to such Replaced Lender by the Borrower (except liabilities which by the terms hereof survive the payment in full of the Loans and termination of this Agreement) shall be paid in full as of the date of such assignment.  In the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.  Upon any assignment by any Lender pursuant to this Section 2.20 becoming effective, the Replacement Lender shall thereupon be deemed to be a “Lender” for all purposes of this Agreement and such Replaced Lender shall thereupon cease to be a “Lender” for all purposes of this Agreement and shall have no further rights or obligations hereunder (other than pursuant to Sections 2.16, 2.17, 2.18 or 2.19, and 9.5 while such Replaced Lender was a Lender).  If any Replaced Lender shall refuse to assign its rights, obligations, Loans and Commitment in accordance with the terms of this Section 2.20, the Replaced Lender shall cease to be a “Lender” for all purposes of this Agreement upon payment to the Replaced Lender of all amounts owing to such Replaced Lender in accordance with the terms of this Section 2.20 without any further action of such Replaced Lender and so long as no Default or Event of Default shall have occurred and be continuing, the Borrower shall have the right to designate a Replacement Lender acceptable to the Administrative Agent in its reasonable discretion.

     Section 2.21                      Cash Collateral.

       (a)           Cash Collateral.  At any time that there shall exist a Defaulting Lender, within one (1) Business Day following the written request of the Administrative Agent, the Issuing Lender (with a copy to the Administrative Agent) or any Swingline Lender (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize all Fronting Exposure of the Issuing Lender and the Swingline Lender with respect to such Defaulting Lender (determined after giving effect to Section 2.22(b) and any Cash Collateral provided by the Defaulting Lender).
 
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       (b)           Grant of Security Interest.  The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the Administrative Agent, the Issuing Lenders and the Lenders (including the Swingline Lender), and agrees to maintain, a first-priority security interest in all such Cash Collateral as security for the Defaulting Lenders’ obligations to which such Cash Collateral may be applied pursuant to clause (c) below.  If at any time the Administrative Agent, Issuing Lender or Swingline Lender determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent as herein provided, or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure, the Borrower will, promptly upon demand by the Administrative Agent, Issuing Lender or Swingline Lender pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).

       (c)           Application.  Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section or Section 2.22 in respect of Letters of Credit or Swingline Loans, shall be held and applied to the satisfaction of the specific LOC Obligations, Swingline Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.

       (d)           Termination of Requirement.  Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall no longer be required to be held as Cash Collateral pursuant to this Section 2.21 following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent, each Issuing Lender and each Swingline Lender that there exists excess Cash Collateral; provided that, subject to Section 2.22, the Person providing Cash Collateral and each applicable Issuing Lender and Swingline Lender may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations.

    Section 2.22                      Defaulting Lenders.

       (a)           Defaulting Lender Adjustments.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

          (i)           Waivers and Amendments.  Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders and Section 9.1.
 
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          (ii)           Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.7 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Lender or Swingline Lender hereunder; third, to Cash Collateralize the Issuing Lender’s or Swingline Lender’s Fronting Exposure in accordance with Section 2.21; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Issuing Lender’s and the Swingline Lender’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement in accordance with Section 2.21; sixth, to the payment of any amounts owing to the Lenders, the Issuing Lenders or Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Lenders or Swingline Lenders against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (A) such payment is a payment of the principal amount of any Loans or LOC Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share and (B) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LOC Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LOC Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in LOC Obligations and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments under the applicable facility without giving effect to Section 2.22(a)(iv). Any payments, repayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.22(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
 
 
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          (iii)           Certain Fees.

             (A)           Revolving Commitment Fees.  No Defaulting Lender shall be entitled to receive any Revolving Commitment Fee for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

             (B)           Letter of Credit Fees.  Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant Section 2.21.

             (C)           Reallocation of Fees.  With respect to any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in LOC Obligations or Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to each Issuing Lender and Swingline Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Lender’s or Swingline Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.

          (iv)           Reallocation of Participations to Reduce Fronting Exposure.  All or any part of such Defaulting Lender’s participation in LOC Obligations and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Revolving Commitment) but only to the extent that (x) the conditions set forth in Section 4.2 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time) and (y) such reallocation does not cause the aggregate Committed Funded Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment.  No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

          (v)           Cash Collateral, Repayment of Swingline Loans.  If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first, repay Swingline Loans in an amount equal to the Swingline Lender’s Fronting Exposure and (y) second, Cash Collateralize the Issuing Lender’s Fronting Exposure in accordance with the procedures set forth in Section 2.21.
 
 
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       (b)           Defaulting Lender Cure.  If the Borrower, the Administrative Agent and each Swingline Lender and Issuing Lender agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held on a pro rata basis by the Lenders in accordance with their Revolving Commitment Percentages (without giving effect to Section 2.22(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

       (c)           New Swingline Loans/Letters of Credit.  So long as any Lender is a Defaulting Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan and (ii) no Issuing Lender shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.

   Section 2.23                      Facility Increases

       (a)           Revolving Facility Increases.

          (i)           General Terms.  Subject to the terms and conditions set forth herein, the Borrower shall have the right, at any time and from time to time until the date that is six months prior to the Maturity Date, to increase the Revolving Committed Amount (each such increase, a “Revolving Facility Increase”) by an aggregate principal amount for all such Revolving Facility Increases, that, when aggregated with the amount of any Incremental Term Facility incurred under Section 2.23(b), shall not exceed the greater of (x) $100,000,000 and (y) an amount such that after giving effect to such Revolving Facility Increase on a pro forma basis, the First Lien Leverage Ratio does not exceed 2.25 to 1.00 (the “Incremental Increase Amount”).
 
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          (ii)           Terms and Conditions.  The following terms and conditions shall apply to any Revolving Facility Increase:  (A) no Default or Event of Default shall exist immediately prior to or after giving effect to such Revolving Facility Increase, (B) any loans made pursuant to a Revolving Facility Increase shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basis, (C) any Lenders providing such Revolving Facility Increase shall be entitled to the same voting rights as the existing Lenders and shall be entitled to receive proceeds of prepayments on the same terms as the existing Lenders, (D) any such Revolving Facility Increase shall be in a minimum principal amount of $10,000,000 and integral multiples of $5,000,000 in excess thereof (or the remaining amount of the Incremental Increase Amount, if less), (E) the proceeds of any such Revolving Facility Increase will be used for the purposes set forth in Section 3.11, (F) the Borrower shall execute a Revolving Note in favor of any new Lender or any existing Lender whose Revolving Commitment is increased pursuant to this Section, in each case, if requested by such Lender, (G) the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (H) the Administrative Agent shall have received (1) upon request of the Administrative Agent, an opinion or opinions (including, if reasonably requested by the Administrative Agent, local counsel opinions) of counsel for the Credit Parties, addressed to the Administrative Agent and the Lenders, in form and substance reasonably acceptable to the Administrative Agent and substantially similar to the opinion delivered to the Administrative Agent on the Closing Date, (2) any authorizing corporate documents as the Administrative Agent may reasonably request and (3) if applicable, a duly executed Notice of Borrowing and (I) after giving effect to any such Revolving Facility Increase, on a pro forma basis, the Borrower will be in compliance with the financial covenants set forth in Section 5.9.

          (iii)           Revolving Facility Increase.  In connection with the closing of any Revolving Facility Increase, the outstanding Revolving Loans and Participation Interests shall be reallocated by causing such fundings and repayments among the Lenders of Revolving Loans as necessary such that, after giving effect to such Revolving Facility Increase, each Lender will hold Revolving Loans and Participation Interests based on its Revolving Commitment Percentage (after giving effect to such Revolving Facility Increase); provided that (i) such reallocations and repayments shall not be subject to any processing and/or recordation fees and (ii) the Borrower shall be responsible for any costs arising under Section 2.18 resulting from such reallocation and repayments.

          (iv)           Participation.  Participation in any such Revolving Facility Increase may be offered to each of the existing Lenders, but no Lender shall have any obligation to provide all or any portion of any such Revolving Facility Increase.  The Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to the Administrative Agent (such consent not to be unreasonably withheld or delayed) to join this Credit Agreement as Lenders hereunder for any portion of such Revolving Facility Increase; provided that such other banks, financial institutions and investment funds shall enter into such lender joinder agreements to give effect thereto as the Administrative Agent may reasonably request.
 
 
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          (v)           Amendments.  The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Credit Agreement or any other Credit Document as may be necessary to incorporate the terms of any such Revolving Facility Increase.

       (b)           Incremental Term Loan.

          (i)           General Terms.  Subject to the terms and conditions set forth herein, the Borrower shall have the right, at any time and from time to time until the date that is six months prior to the Maturity Date, to incur additional Indebtedness under this Credit Agreement pursuant to one or more tranches of term loans (each an “Incremental Term Facility”) in an aggregate principal amount, that, when aggregated with the amount of any Revolving Facility Increase elected pursuant to Section 2.23(a), shall not exceed the greater of (x) $100,000,000 and (y) an amount such that after giving effect to such Incremental Term Facility on a pro forma basis, the First Lien Leverage Ratio does not exceed 2.25 to 1.00.

          (ii)           Terms and Conditions.  The following terms and conditions shall apply to any Incremental Term Facility:  (A) no Default or Event of Default shall exist immediately prior to or after giving effect to such Incremental Term Facility, (B) any loans made pursuant to an Incremental Term Facility shall constitute Obligations and will be secured and guaranteed with the other Obligations on a pari passu basis, (C) any Lenders providing such Incremental Term Facility shall be entitled to the same voting rights as the existing Lenders and shall be entitled to receive proceeds of prepayments on the same terms as the existing Lenders, (D) any such Incremental Term Facility shall be in a minimum principal amount of $10,000,000 and integral multiples of $5,000,000 in excess thereof (or the remaining amount of the Incremental Increase Amount, if less), (E) the proceeds of any such Incremental Term Facility will be used for the purposes set forth in Section 3.11, (F) the Borrower shall execute a promissory note in favor of any new Lender or any existing Lender, in each case, if requested by such Lender, (G) the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (H) the Incremental Term Facility shall have a maturity date no earlier than the Maturity Date, and shall have a Weighted Average Life to Maturity no shorter than the Term Loans referenced under Section 2.4, (I) the Administrative Agent shall have received (1) upon request of the Administrative Agent, an opinion or opinions (including, if reasonably requested by the Administrative Agent, local counsel opinions) of counsel for the Credit Parties, addressed to the Administrative Agent and the Lenders, in form and substance reasonably acceptable to the Administrative Agent and substantially similar to the opinion delivered to the Administrative Agent on the Closing Date, (2) any authorizing corporate documents as the Administrative Agent may reasonably request and (3) if applicable, a duly executed Notice of Borrowing and (J) after giving effect to any such Incremental Term Facility, on a pro forma basis, the Borrower will be in compliance with the financial covenants set forth in Section 5.9.
 
 
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          (iii)           Applicable Percentage and Yield.  the Applicable Percentage and pricing grid, if applicable, for any Incremental Term Facility shall be the same as the Applicable Percentage for the Term Loan on the applicable date any such Incremental Term Facility takes effect; provided that if the Applicable Percentage in respect of any Incremental Term Facility exceeds the Applicable Percentage for the Term Loan and prior Incremental Term Facility, as applicable, by more than 0.50%, then the Applicable Percentage for the Term Loan shall be increased so that the Applicable Percentage in respect of such Term Loan is equal to the Applicable Percentage for the Incremental Term Facility minus 0.50%; provided further in determining the Applicable Percentage(s) applicable to each Incremental Term Facility and the Applicable Percentage(s) for the Term Loan, (AA) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under such Incremental Term Facility or the Term Loan in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity) and (BB) customary arrangement or commitment fees payable to any Arrangers (or their affiliates) in connection with the Term Loan or to one or more arrangers (or their affiliates) of any Incremental Term Facility shall be excluded (it being understood that the effects of any and all interest rate floors shall be included in determining Applicable Percentage(s) under this provision);

          (iv)           Participation.  Participation in any such Incremental Term Facility may be offered to each of the existing Lenders, but no such Lender shall have any obligation to provide all or any portion of any such Incremental Term Facility.  The Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to the Administrative Agent (such consent not to be unreasonably withheld or delayed) to join this Credit Agreement as Lenders hereunder for any portion of such Incremental Term Facility; provided that such other banks, financial institutions and investment funds shall enter into such lender joinder agreements to give effect thereto as the Administrative Agent may reasonably request.

          (v)           Amendments.  The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Credit Agreement or any other Credit Document as may be necessary to incorporate the terms of any such Incremental Term Facility.


REPRESENTATIONS AND WARRANTIES
 
       To induce the Lenders to enter into this Credit Agreement and to make the Extensions of Credit herein provided for, each of the Credit Parties hereby represents and warrants to the Administrative Agent and to each Lender that:
 
 
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    Section 3.1                      Financial Condition.

                  (a)           (i) The audited consolidated financial statements of the Borrower and its consolidated Subsidiaries for the fiscal years ended November 30, 2011, 2012 and 2013, together with the related consolidated statements of income or operations, equity and cash flows for the fiscal years ended on such dates, (ii) the unaudited consolidated financial statements of the Borrower and its consolidated Subsidiaries for the three-month period ending on February 28, 2014, together with the related consolidated statements of income or operations, equity and cash flows for the three-month period ending on such date and (iii) a balance sheet of the Borrower and its consolidated Subsidiaries as of the last day of the quarter ended immediately prior to the Closing Date:
 
                                           (A)           were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein;

                                           (B)           fairly present the financial condition of the Borrower and its consolidated Subsidiaries as of the date thereof (subject, in the case of the unaudited financial statements, to normal year-end adjustments) and results of operations for the period covered thereby;

                                           (C)           show all material Indebtedness and other liabilities (including liabilities for taxes, material commitments and contingent obligations), direct or contingent, of the Borrower and its consolidated Subsidiaries as of the date thereof, required to be shown on a balance sheet prepared in accordance with GAAP; and

                                           (D)           show all other material Indebtedness and other liabilities, direct or contingent, of the Borrower and its consolidated Subsidiaries as of the date thereof, in the notes (shown in accordance with GAAP) to the financial statements referred to in Section 3.1(a)(i) and (ii) above.

       (b)           The five-year projections (prepared quarterly through the fiscal year ending November 30, 2014 and annually thereafter) of the Borrower and its consolidated Subsidiaries  delivered to the Lenders on or prior to the Closing Date have been prepared in good faith based upon reasonable assumptions and are materially consistent with the information provided to WFS and Wells Fargo prior to the delivery of the Commitment Letter.

   Section 3.2                      No Change.

    Since November 30, 2013, there has been no development or event which has had or could reasonably be expected to have a Material Adverse Effect.
 
 
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   Section 3.3                      Corporate Existence.

    Each of the Credit Parties (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has the requisite power and authority and the legal right to own and operate all its material property, to lease the material property it operates as lessee and to conduct the business in which it is currently engaged, and (c) is duly qualified to conduct business and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, except to the extent that such failure to qualify could not reasonably be expected to have a Material Adverse Effect.

    Section 3.4                      Corporate Power; Authorization; Enforceable Obligations.

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

   Section 3.5                      Compliance with Laws; No Conflict; No Default.

       (a)           The execution, delivery and performance by each Credit Party of the Credit Documents to which such Credit Party is a party, in accordance with their respective terms, the borrowings hereunder and the Transactions do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval (other than such Governmental Approvals that have been obtained or made and not subject to suspension, revocation or termination) or violate any Requirement of Law relating to such Credit Party, (ii) conflict with, result in a breach of or constitute a default under the articles of incorporation, bylaws, articles of organization, operating agreement or other organizational documents of such Credit Party or any material indenture, agreement or other instrument to which such Person is a party or by which any of its properties may be bound or any Governmental Approval relating to such Person, or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by such Person other than Liens arising under the Credit Documents.
 
 
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       (b)           Each Credit Party (i) (x) has all Governmental Approvals required by law for it to conduct its business, each of which is in full force and effect, (y) each such Governmental Approval is final and not subject to review on appeal and (z) each such Governmental Approval is not the subject of any pending or, to the best of its knowledge, threatened attack by direct or collateral proceeding, and (ii) is in compliance with each Governmental Approval applicable to it and in compliance with all other Requirements of Law relating to it or any of its respective properties, in each case except to the extent the failure to obtain such Governmental Approval or failure to comply with such Governmental Approval or Requirement of Law could not reasonably be expected to have a Material Adverse Effect.  Each Credit Party possesses or has the right to use, all leaseholds, licenses, easements and franchises and all authorizations and other rights that are material to and necessary for the conduct of its business.  Except to the extent noncompliance with the foregoing leaseholds, easements and franchises could not reasonably be expected to have a Material Adverse Effect, all of the foregoing are in full force and effect, and the Credit Parties are in substantial compliance with the foregoing without any known conflict with the valid rights of others.  No event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such Governmental Approval, leasehold, license, easement, franchise or other right, which termination or revocation could, individually or in the aggregate, reasonably be expected to have Material Adverse Effect.

       (c)           None of the Credit Parties is in default under or with respect to any of its Material Contracts or under or with respect to any of its other Contractual Obligations, or any judgment, order or decree to which it is a party, in any respect which could reasonably be expected to have a Material Adverse Effect.  No Default or Event of Default has occurred and is continuing.

   Section 3.6                      No Material Litigation.

    No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Credit Parties, threatened by or against any Credit Party, any Subsidiary of a Credit Party or any Excluded Subsidiary, or against any of their respective properties or revenues, (a) with respect to the Credit Documents or any Loan or any of the Transactions, or (b) which could reasonably be expected to have a Material Adverse Effect.

   Section 3.7                      Investment Company Act.

    None of the Credit Parties is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.

   Section 3.8                      Margin Regulations.

    No part of the proceeds of any Loan hereunder will be used directly or indirectly for any purpose which violates, or which would be inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve System as now and from time to time hereafter in effect.  The Credit Parties (a) are not engaged, principally or as one of its important activities, in the business of extending credit for the purpose of “purchasing” or “carrying” “margin stock” within the respective meanings of each of such terms under Regulation U and (b) taken as a group do not own “margin stock” except as identified in the financial statements referred to in Section 3.1 and the aggregate value of all “margin stock” owned by the Credit Parties taken as a group does not exceed 25% of the value of their assets.
 
 
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   Section 3.9                      ERISA.

    Neither a Reportable Event nor an “accumulated funding deficiency” (within the meaning of Section 412 of the Code or Section 302 of ERISA) has occurred during the five-year period prior to the date on which this representation is made or deemed made with respect to any Plan, and each Plan has complied in all material respects with the applicable provisions of ERISA and the Code, except to the extent that any such occurrence or failure to comply would not reasonably be expected to have a Material Adverse Effect.  No termination of a Single Employer Plan has occurred resulting in any liability that has remained underfunded, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period which could reasonably be expected to have a Material Adverse Effect.  The present value of all accrued benefits under each Single Employer Plan (based on those assumptions used to fund such Plans) did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Plan allocable to such accrued benefits by an amount which could reasonably be expected to have a Material Adverse Effect.  Neither the Borrower, nor any Subsidiary of the Borrower nor any Commonly Controlled Entity is currently subject to any liability for a complete or partial withdrawal from a Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect.

   Section 3.10                      Environmental Matters.

       (a)           Except where such violation or liability could not reasonably be expected to have a Material Adverse Effect, the facilities and properties owned, leased or operated by any of the Credit Parties or their Subsidiaries (other than Excluded Subsidiaries) (collectively, the “Properties”) do not contain any Materials of Environmental Concern in amounts or concentrations which (i) constitute a violation of, or (ii) could give rise to liability under, any Environmental Law.

       (b)           Except where such violation, contamination or non-compliance could not reasonably be expected to have a Material Adverse Effect, the Properties and all operations of any of the Credit Parties or their Subsidiaries (other than Excluded Subsidiaries) at the Properties are in compliance, and have in the last five (5) years been in compliance, in all material respects with all applicable Environmental Laws, and there is no contamination at, under or about the Properties or violation of any Environmental Law with respect to the Properties or the business operated by the any of the Credit Parties and their Subsidiaries (the “Business”).
 
       (c)           Except where such violation or liability could not reasonably be expected to have a Material Adverse Effect, none of the Credit Parties or their Subsidiaries (other than Excluded Subsidiaries) has received any written or actual notice of violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Properties or the Business, nor does any of the Credit Parties and their Subsidiaries (other than Excluded Subsidiaries) have knowledge of any such threatened notice.
 
 
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       (d)           Except where such violation or liability could not reasonably be expected to have a Material Adverse Effect, Materials of Environmental Concern have not been transported or disposed of from the Properties in violation of, or in a manner or to a location which could give rise to liability under any Environmental Law, nor have any Materials of Environmental Concern been generated, treated, stored or disposed of at, on or under any of the Properties in violation of, or in a manner that could give rise to liability under, any applicable Environmental Law.

       (e)           Except where such liability could not reasonably be expected to have a Material Adverse Effect, no judicial proceeding or governmental or administrative action is pending or, to the knowledge of any Credit Party or any of their Subsidiaries (other than Excluded Subsidiaries), threatened, under any Environmental Law to which any of the Credit Parties is or will be named as a party with respect to the Properties or the Business, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other administrative or judicial requirements outstanding under any Environmental Law with respect to the Properties or the Business which could reasonably be expected to have a Material Adverse Effect.

       (f)            Except where such violation or liability could not reasonably be expected to have a Material Adverse Effect, there has been no release or threat of release of Materials of Environmental Concern at or from the Properties, or arising from or related to the operations of any of the Credit Parties or their Subsidiaries (other than Excluded Subsidiaries) in connection with the Properties or otherwise in connection with the Business, in violation of or in amounts or in a manner that could give rise to liability under Environmental Laws.

   Section 3.11                      Use of Proceeds.

    The proceeds of the Extensions of Credit will be used (i) to refinance or repurchase certain existing Indebtedness of the Borrower and its Subsidiaries, including without limitation, the Existing Credit Agreement, (ii) to finance Permitted Acquisitions and (iii) for working capital and other general corporate purposes of the Borrower and its Subsidiaries.

   Section 3.12                      Subsidiaries.

    Set forth on Schedule 3.12  is a complete and accurate list of all Subsidiaries and Unrestricted Subsidiaries of the Credit Parties.  Information on such Schedule includes the number of shares of each class of Capital Stock or other equity interests outstanding; the number and percentage of outstanding shares of each class of stock owned by the Credit Parties or any of their Subsidiaries and Unrestricted Subsidiaries; the number and effect, if exercised, of all outstanding options, warrants, rights of conversion or purchase and similar rights.  The outstanding Capital Stock and other equity interests of all such Subsidiaries and Unrestricted Subsidiaries are validly issued, fully paid and non-assessable and is owned, free and clear of all Liens (other than those arising under or contemplated in connection with the Credit Documents).  There are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than stock options granted to employees or directors and directors’ qualifying shares) of any nature relating to any Capital Stock of any Credit Party or any Subsidiary or Unrestricted Subsidiary thereof, except as contemplated in connection with the Credit Documents.
 
 
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   Section 3.13                      Ownership.

    Each of the Credit Parties is the owner of, and has good and marketable title to, all of its respective assets, which, together with assets leased or licensed by the Credit Parties, represents all assets individually or in the aggregate material to the conduct of the businesses of the Credit Parties, taken as a whole on the date hereof, and none of such assets is subject to any Lien other than Permitted Liens.  Each Credit Party enjoys peaceful and undisturbed possession under all of its material leases and all such material leases are valid and subsisting and in full force and effect.  The Credit Parties have made available complete and accurate copies of all material leases to the Administrative Agent.

    Section 3.14                      Indebtedness.

    Except as otherwise permitted under Section 6.1, the Credit Parties have no Indebtedness.

   Section 3.15                      Taxes.
   
    Each of the Credit Parties and their Significant Subsidiaries has filed, or caused to be filed, all tax returns (federal, state, local and foreign) required to be filed and paid (a) all material amounts of taxes shown thereon to be due (including interest and penalties) and (b) all other taxes, fees, assessments and other governmental charges (including mortgage recording taxes, documentary stamp taxes and intangibles taxes) owing by it, except for such taxes (i) which are not yet delinquent or (ii) that are being contested in good faith and by proper proceedings, and against which adequate reserves are being maintained in accordance with GAAP.  None of the Credit Parties is aware as of the Closing Date of any proposed tax assessments against it or any of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect.

   Section 3.16                      Intellectual Property Rights.

    Each of the Credit Parties and their Significant Subsidiaries owns, or has the legal right to use, all Intellectual Property necessary for each of them to conduct its business as currently conducted.  Set forth on Schedule 3.16 is a list of all Intellectual Property (other than Intellectual Property of de minimus value) owned by each of the Credit Parties and their Subsidiaries or that the Credit Parties or any of their Significant Subsidiaries has the right to use.  Except as disclosed in Schedule 3.16 hereto, with respect to the material Intellectual Property of the Credit Parties, (a) one or more of the Credit Parties has the right to use such Intellectual Property in perpetuity and without payment of royalties, (b) all material registrations with and applications to Governmental Authorities in respect of such Intellectual Property are valid and in full force and effect and are not subject to the taking of any interest therein, and no taxes or maintenance fees payable with respect to such Intellectual Property to maintain their validity or effectiveness are delinquent, and (c) there are no restrictions on the direct or indirect transfer of any Contractual Obligation, or any interest therein, held by any of the Credit Parties in respect of such Intellectual Property.  None of the Credit Parties is in default (or with the giving of notice or lapse of time or both, would be in default) in any material respect under any license to use such Intellectual Property; no claim has been asserted and is pending by any Person challenging or questioning the use of any such Intellectual Property or the validity or effectiveness of any such Intellectual Property, nor does the Credit Parties or any of their Subsidiaries know of any such claim;
 
 
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and, to the actual knowledge of the Credit Parties or any of their Subsidiaries, the use of such Intellectual Property by the Credit Parties or any of their Subsidiaries does not infringe on the rights of any Person, except for such defaults, claims and infringements that in the aggregate could not reasonably be expected to have a Material Adverse Effect.  The Credit Parties have recorded or deposited with and paid to the United States Copyright Office, the Register of Copyrights, the Copyrights Royalty Tribunal or other Governmental Authority, all notices, statements of account, royalty fees and other documents and instruments required under the terms and conditions of any Contractual Obligation of the Credit Parties and/or under Title 17 of the United States Code and the rules and regulations issued thereunder (collectively, the “Copyright Act”), and are not liable to any Person for copyright infringement under the Copyright Act or any other law, rule, regulation, contract or license as a result of their business operations.  Schedule 3.16 may be updated from time to time by the Borrower to include new Intellectual Property by giving written notice thereof to the Administrative Agent.

   Section 3.17                      Solvency.

    After giving effect to the Transactions, the fair saleable value of each Credit Party’s assets, measured on a going concern basis, exceeds all probable liabilities, including those to be incurred pursuant to this Credit Agreement.  After giving effect to the Transactions, none of the Credit Parties has incurred, or believes that it will incur after giving effect to the Transactions, debts beyond its ability to pay such debts as they become due.  In executing the Credit Documents and consummating the Transactions, none of the Credit Parties intends to hinder, delay or defraud either present or future creditors or other Persons to which one or more of the Credit Parties is or will become indebted.

   Section 3.18                      Investments.

    All Investments of each of the Credit Parties are Permitted Investments.

   Section 3.19                      Location of Collateral.

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

   Section 3.20                      No Burdensome Restrictions.

    None of the Credit Parties is a party to any agreement or instrument or subject to any other obligation or any charter or corporate restriction or any provision of any applicable law, rule or regulation which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
 
 
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   Section 3.21                      Brokers’ Fees.

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

   Section 3.22                      Labor Matters.

    There are no collective bargaining agreements or Multiemployer Plans covering the employees of the Credit Parties as of the Closing Date, other than as set forth in Schedule 3.22 hereto, and none of the Credit Parties is suffering or has suffered any strikes, walkouts or work stoppages within the last five (5) years, other than as set forth in Schedule 3.22 hereto.

   Section 3.23                      Accuracy and Completeness of Information.

    All factual information heretofore, contemporaneously or hereafter furnished by or on behalf of the Credit Parties in writing to the Administrative Agent or any Lender for purposes of or in connection with this Credit Agreement or any other Credit Document (other than any projection provided by the Borrower in good faith), or any transaction contemplated hereby or thereby, is or will be true and accurate in all material respects and not incomplete by omitting to state any material fact necessary to make such information not misleading.  There is no fact now known to any of the Credit Parties which has, or could reasonably be expected to have, a Material Adverse Effect which fact has not been set forth herein, in the financial statements of the Credit Parties furnished to the Administrative Agent and/or the Lenders, or in any certificate, opinion or other written statement made or furnished by or on behalf of the Credit Parties to the Administrative Agent and/or the Lenders.

   Section 3.24                      Material Contracts.

    Schedule 3.24 sets forth a complete and accurate list of all Material Contracts of the Credit Parties and their Subsidiaries in effect as of the Closing Date.  Other than as set forth in Schedule 3.24, each such Material Contract is, and after giving effect to the Transactions will be, in full force and effect in accordance with the terms thereof.  The Credit Parties and their Subsidiaries have made available to the Administrative Agent a true and complete copy of each Material Contract requested by the Administrative Agent.  Schedule 3.24 may be updated from time to time by the Borrower to include new Material Contracts and/or to remove Material Contracts to the extent (a) permitted by Section 6.8(a)(iii) to be cancelled, terminated, not renewed or  not extended or (b) it no longer meets the criteria to qualify as a Material Contract, in each case, by giving written notice thereof to the Administrative Agent.
 
 
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   Section 3.25                      Insurance.

    The insurance coverage of the Credit Parties and their Subsidiaries as of the Closing Date is outlined as to carrier, policy number, expiration date, type and amount on Schedule 3.25 and such insurance coverage complies with the requirements set forth in Section 5.5(b).

   Section 3.26                      Security Documents.

    The Security Documents create valid security interests in, and Liens on, the Collateral purported to be covered thereby, which security interests and Liens are currently (or will be, upon the execution of control agreements with respect to deposit and securities accounts and the filing or recording of appropriate financing statements, Mortgage Instruments and notices of grants of security interests in Intellectual Property, in each case in favor of the Administrative Agent on behalf of the Secured Parties) perfected security interests and Liens, prior to all other Liens other than Permitted Liens.

   Section 3.27                      Regulation H.

    No Mortgaged Property is a Flood Hazard Property, provided that, if any Mortgaged Property is a Flood Hazard Property, the applicable Credit Party shall promptly provide to the Administrative Agent: (a) evidence as to whether the community in which such Mortgaged Property is located is participating in the National Flood Insurance Program, (b) written acknowledgment of receipt of written notification from the Administrative Agent (x) as to the fact that such Mortgaged Property is a Flood Hazard Property and (y) as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program and (3) copies of insurance policies or certificates of insurance of the Credit Parties evidencing flood insurance to the extent required by law and reasonably satisfactory to the Administrative Agent and naming the Administrative Agent as sole loss payee on behalf of the Lenders.

    Section 3.28                      Classification of Senior Indebtedness.

    The Credit Party Obligations constitute “Senior Indebtedness” under and as defined in any agreement governing any Subordinated Debt (including, without limitation, the Existing Subordinated Notes) and the subordination provisions set forth in each such agreement are legally valid and enforceable against the parties thereto.

   Section 3.29                      Anti-Terrorism Laws.

    Neither any Credit Party nor any of its Subsidiaries or Unrestricted Subsidiaries is an “enemy” or an “ally of the enemy” within the meaning of Section 2 of the Trading with the Enemy Act of the United States of America (50 U.S.C. App. §§ 1 et seq.) (the “Trading with the Enemy Act”), as amended.  Neither any Credit Party nor any of its Subsidiaries or Unrestricted Subsidiaries is in violation of (a) the Trading with the Enemy Act, as amended, (b) any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto or (c) the Patriot Act.  None of the Credit Parties (i) is a blocked person described in Section 1 of the Anti-Terrorism Order or (ii) to the best of its knowledge, engages in any dealings or transactions, or is otherwise associated, with any such blocked person.
 
 
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   Section 3.30                      Compliance with OFAC Rules and Regulations.

        (a)           None of the Credit Parties or their Subsidiaries or Unrestricted Subsidiaries or their respective Affiliates is in violation of and shall not violate any of the country or list based economic and trade sanctions administered and enforced by OFAC that are described or referenced at http://www.ustreas.gov/offices/enforcement/ofac/ or as otherwise published from time to time.

        (b)           None of the Credit Parties or their Subsidiaries or Unrestricted Subsidiaries or their respective Affiliates (i) is a Sanctioned Person or a Sanctioned Entity, (ii) has more than 5% of its assets located in Sanctioned Entities, or (iii) derives more than 5% of its operating income from investments in, or transactions with Sanctioned Persons or Sanctioned Entities.  No proceeds of any Loan will be used nor have any been used to fund any operations in, finance any investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned Entity.

   Section 3.31                      Compliance with FCPA.

    Each of the Credit Parties and their Subsidiaries and Unrestricted Subsidiaries is in compliance with the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq., and any foreign counterpart thereto.  None of the Credit Parties or their Subsidiaries or Unrestricted Subsidiaries has made a payment, offering, or promise to pay, or authorized the payment of, money or anything of value (a) in order to assist in obtaining or retaining business for or with, or directing business to, any foreign official, foreign political party, party official or candidate for foreign political office, (b) to a foreign official, foreign political party or party official or any candidate for foreign political office, and (c) with the intent to induce the recipient to misuse his or her official position to direct business wrongfully to such Credit Party or its Subsidiary or its Unrestricted Subsidiary or to any other Person, in violation of the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq.

    Notwithstanding any term of this Article III (or the definition of any defined term used in this Article III) to the contrary and notwithstanding the status of any Excluded Subsidiary as a consolidated Subsidiary of the Borrower, the representations and warranties set forth in this Article III (other than the representations and warranties set forth in Sections 3.2, 3.6, 3.29, 3.30 and 3.31 and the defined terms used in such Sections) shall not apply to or be construed to include any Excluded Subsidiary.


CONDITIONS PRECEDENT

   Section 4.1                      Conditions to Closing Date.

    This Credit Agreement shall become effective upon, and the obligation of each Lender to make the extensions of credit is subject to, the satisfaction of the following conditions precedent:
 
 
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       (a)   Execution of Credit Agreement and Credit Documents.  The Administrative Agent shall have received (i) counterparts of this Credit Agreement, (ii) for the account of each Lender with a Revolving Commitment requesting a promissory note, a Revolving Note, (iii) for the account of the Swingline Lender, the Swingline Note, (iv) for the account of each Lender holding a Term Loan requesting a promissory note, a Term Loan Note, (v) counterparts of the Security Agreement, the Pledge Agreement and the Intercreditor Agreement and (vi) counterparts of any other Credit Document, in each case conforming to the requirements of this Credit Agreement and executed by duly authorized officers of the Credit Parties and the other parties thereto, as applicable.

       (b)   Authority Documents.  The Administrative Agent shall have received the following:
      
          (i) Articles of Incorporation; Partnership Agreement.  Copies of the articles of incorporation, partnership agreement or other charter documents of each Credit Party certified to be true and complete as of a recent date by the appropriate governmental authority of the state of its organization or formation.

          (ii) Resolutions.  Copies of resolutions of the board of directors of each Credit Party approving and adopting the Credit Documents and the Transactions and authorizing execution and delivery thereof, certified by an officer of such Credit Party as of the Closing Date to be true and correct and in force and effect as of such date.

          (iii) Bylaws.  A copy of the bylaws  or other operating agreement of each Credit Party certified by an officer of such Credit Party as of the Closing Date to be true and correct and in force and effect as of such date.

          (iv) Good Standing.  Copies of (i) certificates of good standing, existence or its equivalent with respect to the each Credit Party certified as of a recent date by the appropriate governmental authorities of the state of incorporation and each other state in which the failure of such Credit Party to be qualified to do business could reasonably be expected to have a Material Adverse Effect and (ii) to the extent readily available, a certificate indicating payment of all corporate and other franchise taxes certified as of a recent date by the appropriate governmental taxing authorities.
 
          (v) Incumbency.  An incumbency certificate of each Credit Party certified by a secretary or assistant secretary to be true and correct as of the Closing Date.

    Each officer’s certificate delivered pursuant to this Section 4.1(b) shall be substantially in the form of Schedule 4.1(b) hereto.
 
 
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       (c)   Legal Opinions of Counsel. The Administrative Agent shall have received an opinion or opinions of counsel for the Credit Parties, dated as of the Closing Date and addressed to the Administrative Agent and the Lenders, in form and substance acceptable to the Administrative Agent.

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

          (i) searches of UCC filings in the jurisdiction of the chief executive office and jurisdiction of formation of each Credit Party and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens and Liens that are to be terminated on the Closing Date;

          (ii) UCC financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the Collateral;
 
          (iii) searches of ownership of Intellectual Property in the appropriate governmental offices;

          (iv) such patent/trademark/copyright filings as requested by the Administrative Agent in order to perfect the Administrative Agent’s security interest in the Intellectual Property;

          (v) all stock certificates, if any, evidencing the Capital Stock pledged to the Administrative Agent pursuant to the Pledge Agreement, together with duly executed in blank undated stock powers attached thereto;

          (vi) all instruments and chattel paper in the possession of any of the Credit Parties, together with allonges or assignments as may be necessary or appropriate to perfect the Administrative Agent’s security interest in the Collateral; and

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

       (e)   Liability and Casualty Insurance.  The Administrative Agent shall have received copies of insurance policies or certificates of insurance evidencing liability and casualty insurance (including, but not limited to, business interruption insurance) meeting the requirements set forth herein or in the Security Documents.  The Administrative Agent shall be named as loss payee on all casualty insurance policies and as additional insured on all liability insurance policies, in each case for the benefit of the Lenders.
 
 
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       (f)   Solvency Certificate.  The Administrative Agent shall have received an officer’s certificate prepared by the chief financial officer of the Borrower as to the financial condition, solvency and related matters of each of the Credit Parties and the Credit Parties and their Significant Subsidiaries taken as a whole, after giving effect to the initial borrowings under the Credit Documents, in substantially the form of Schedule 4.1(f) hereto.

       (g)   Account Designation Letter.  The Administrative Agent shall have received the executed Account Designation Letter in the form of Schedule 1.1(a) hereto.
 
       (h)   Organizational Structure.  The corporate and capital and ownership structure of the Credit Parties and their Subsidiaries (after giving effect to the Transactions) shall be as described in Schedule 3.12.  The Administrative Agent shall be satisfied with the management structure, legal structure, voting control, liquidity, total leverage and total capitalization of the Credit Parties and their Significant Subsidiaries after giving effect to the Transactions.

       (i)   Consents.  The Administrative Agent shall have received evidence that all boards of directors, governmental, shareholder and material third party consents and approvals necessary in connection with the Transactions have been obtained and all applicable waiting periods have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on such transactions or that could seek or threaten any of the foregoing.

       (j)   Compliance with Laws.  The Transactions shall be in compliance with all applicable laws and regulations (including all applicable securities and banking laws, rules and regulations).
      
       (k)   Bankruptcy.  There shall be no bankruptcy or insolvency proceedings with respect to Credit Parties or any of their Subsidiaries other than Snappon SA.

       (l)   Existing Indebtedness of the Credit Parties.  All Indebtedness for borrowed money of the Borrower and its Subsidiaries (other than Indebtedness permitted to exist pursuant to Section 6.1) shall be repaid in full and all security interests related thereto shall be terminated on the Closing Date.

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

       (n)           No Material Adverse Change.  Since November 30, 2013, there shall not have occurred any event or development that has had or could reasonably be expected to have a Material Adverse Effect.
 
 
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       (o)           Financial Condition Certificate.  The Administrative Agent shall have received a certificate or certificates executed by a Responsible Officer of the Borrower as of the Closing Date stating that (i) no pending litigation or investigation exists affecting or relating to (x) any Credit Party or any of its Subsidiaries that could reasonably be expected to have a Material Adverse Effect that has not been settled, dismissed, vacated, discharged or terminated prior to the Closing Date or (y) this Agreement or the other Credit Documents that have not been settled, dismissed, vacated, discharged or terminated prior to the Closing Date and (ii) immediately after giving effect to this Credit Agreement, the other Credit Documents, and all the Transactions contemplated to occur on such date, (A) no Default or Event of Default exists, (B) all representations and warranties contained herein and in the other Credit Documents (i) that contain a materiality qualification shall be true and correct and (ii) that do not contain a materiality qualification shall be true and correct in all material respects, and (C) the Credit Parties are in pro forma compliance with each of the initial financial covenants set forth in Section 5.9 (as evidenced through detailed calculations of such financial covenants on a schedule to such certificate) as of February 28, 2014.

       (p)   Cash on Hand. The Administrative Agent shall have received evidence that, immediately after giving effect to the Transactions, the Borrower and its Subsidiaries shall have cash and Cash Equivalents of greater than or equal to $50,000,000.

       (q)   Consolidated EBITDAP.  The Administrative Agent shall have received evidence reasonably satisfactory thereto provided by the Credit Parties that Consolidated EBITDAP is not less than $190,000,000 for the twelve (12) month period ending as of February 28, 2014.

       (r)           Patriot Act Certificate.  At least three (3) Business Days prior to the Closing Date, the Administrative Agent shall have received a certificate satisfactory thereto, substantially in the form of Schedule 4.1(r), for benefit of itself and the Lenders, provided by the Borrower that sets forth information required by the Patriot Act including, without limitation, the identity of the Credit Parties, the name and address of the Credit Parties and other information that will allow the Administrative Agent or any Lender, as applicable, to identify the Credit Parties in accordance with the Patriot Act.


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

       (t)   Additional Matters.  All other documents and legal matters in connection with the Transactions shall be reasonably satisfactory in form and substance to the Administrative Agent and its counsel.
 
 
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   Section 4.2                      Conditions to All Extensions of Credit.
 
    The obligation of each Lender to make any Extension of Credit (other than the obligation of each Lender to fund its portion of a Mandatory LOC Borrower or a Mandatory Swingline Borrower, which shall be governed by the terms of Section 2.2 and Section 2.3, respectively) hereunder is subject to the satisfaction of the following conditions precedent on the date of making such Extension of Credit:

       (a)Representations and Warranties.  The representations and warranties made by the Credit Parties herein, in the Security Documents or which are contained in any certificate furnished at any time under or in connection herewith (i) that contain a materiality qualification shall be true and correct on and as of the date of such Extension of Credit as if made on and as of such date (except for those which expressly relate to an earlier date) and (ii) that do not contain a materiality qualification shall be true and correct in all material respects on and as of the date of such Extension of Credit as if made on and as of such date (except for those which expressly relate to an earlier date).

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

       (c)Compliance with Commitments.  Immediately after giving effect to the making of any such Extension of Credit (and the application of the proceeds thereof), (i) the sum of the aggregate principal amount of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding Revolving LOC Obligations shall not exceed the Revolving Committed Amount then in effect, (ii) the Revolving LOC Obligations shall not exceed the Revolving LOC Committed Amount and (iii) the Swingline Loans shall not exceed the Swingline Committed Amount.
 
       Each request for an Extension of Credit and each acceptance by the Borrower of any such Extension of Credit shall be deemed to constitute a representation and warranty by the Borrower as of the date of such Extension of Credit that the applicable conditions in paragraphs (a) through (g) of this Section have been satisfied.


AFFIRMATIVE COVENANTS
 
    The Credit Parties hereby covenant and agree that on the Closing Date, and thereafter for so long as this Credit Agreement is in effect and until the Commitments have terminated and the Credit Party Obligations under the Credit Documents have been paid in full, the Credit Parties shall, and shall cause each of their Subsidiaries and the Excluded Subsidiaries to:
 
 
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   Section 5.1                      Financial Statements.

    Furnish to the Administrative Agent and each of the Lenders:

       (a)Annual Financial Statements.  As soon as available after the end of each fiscal year of the Borrower (commencing with the fiscal year ending November 30, 2014), but in any event on or before the earlier of (i) the date the Borrower is required to file its annual financial statements on Form 10-K with the SEC and (ii) the date that is one hundred twenty (120) days after the end of such fiscal year, a copy of (A) the Borrower’s annual financial statements on Form 10-K as filed with the SEC or (B) the consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such fiscal year and the related consolidated statements of income and retained earnings and of cash flows of the Borrower and its consolidated Subsidiaries for such year, audited by a firm of independent certified public accountants reasonably acceptable to the Administrative Agent, setting forth in each case in comparative form the figures for the preceding fiscal year, reported on without a “going concern” or like qualification or exception, or qualification indicating that the scope of the audit was inadequate to permit such independent certified public accountants to certify such financial statements without such qualification;

       (b)Quarterly Financial Statements.  As soon as available after the end of each of the first three fiscal quarters of the Borrower, but in any event on or before the earlier of (i) the date the Borrower is required to file its quarterly financial statements on Form 10-Q with the SEC and (ii) the date that is forty-five (45) days after the end of such fiscal quarter, a copy of (A) the Borrower’s quarterly financial statements on Form 10-Q as filed with the SEC or (B) a company-prepared consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such period and related company-prepared consolidated statements of income and retained earnings and of cash flows for the Borrower and its consolidated Subsidiaries for such quarterly period and for the portion of the fiscal year ending with such period, in each case setting forth in comparative form the figures for the corresponding period or periods of the preceding fiscal year (subject to normal recurring year-end audit adjustments); and

       (c)Annual Financial Plans.  (i) Concurrently with the delivery of the financial statements referred to in clause (a) above, a consolidated budget and cash flow projections prepared on a quarterly basis of the Borrower and its consolidated Subsidiaries for the following fiscal year, and (ii) as soon as practicable, a combined budget and cash flow projections for the Excluded Subsidiaries taken as a whole for the following fiscal year, in each case, in form and detail reasonably acceptable to the Administrative Agent, such budget to be prepared by the Borrower in a manner consistent with GAAP and to include an operating and capital budget and a summary of the material assumptions made in the preparation of such budget.  Such budget shall be accompanied by a certificate of the treasurer or chief financial officer of the Borrower to the effect that the budgets and other financial data are based on reasonable estimates and assumptions, all of which such officer believes are fair in light of the conditions which existed at the time the budget was made, have been prepared on the basis of the assumptions stated therein, and reflect, as of the time so furnished, the reasonable estimate of the Borrower and its consolidated Subsidiaries of the budgeted results of the operations and other information budgeted therein;
 
 
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all such financial statements referred to in subsections (a) and (b) above shall (i) fairly present in all material respects the financial condition and results from operations of the entities and for the periods specified and to be prepared in reasonable detail and in accordance with GAAP (subject, in the case of interim statements, to normal recurring year-end audit adjustments) applied consistently throughout the periods reflected therein and further accompanied by a description of, and an estimation of the effect on the financial statements on account of, any change in the application of accounting principles as provided in Section 1.3, if applicable and (ii) be deemed delivered for purposes of this Section 5.1 when such financial statements are delivered to the SEC.

    Section 5.2                      Certificates; Other Information.
 
    Furnish to the Administrative Agent and each of the Lenders, to the extent not publicly available through filings under the Securities Exchange Act of 1934:

       (a)   concurrently with the delivery of the financial statements referred to in Section 5.1(a) above, a certificate of the independent certified public accountants reporting on such financial statements stating that in making the examination necessary therefor no knowledge was obtained of any Default or Event of Default pursuant to Section 7.1(c) hereof, except as specified in such certificate;

       (b)   concurrently with the delivery of the financial statements referred to in Sections 5.1(a) and 5.1(b) above, beginning with the fiscal quarter ending May 31, 2014, a certificate of a Responsible Officer substantially in the form of Schedule 5.2(b) (i) stating that (A) such financial statements present fairly the financial position of the Borrower and its consolidated Subsidiaries for the periods indicated in conformity with GAAP applied on a consistent basis, (B) to the knowledge of such Responsible Officer, each of the Credit Parties during such period observed or performed in all material respects all of its covenants and other agreements, and satisfied in all material respects every condition, contained in this Credit Agreement to be observed, performed or satisfied by it, and (C) such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate and (ii) providing calculations in reasonable detail required to indicate compliance with Section 5.9 as of the last day of such period, which calculations shall include detail regarding all material adjustments and amounts added back in determining Consolidated EBITDAP;

       (c)   within thirty (30) days after the same are sent, copies of all financial statements and reports (other than those otherwise provided pursuant to Section 5.1 and those which are of a promotional nature) and other financial information which the Borrower sends to its shareholders;

       (d)   concurrently with the delivery of the financial statements referred to in Section 5.1(a) above, updated versions of Schedule 3.12 and Schedule 3.16;
   
       (e)   promptly upon their becoming available, copies of any non-routine correspondence or official notices received by the Credit Parties or any of their Subsidiaries from any federal, state or local Governmental Authority which regulates the operations of the Credit Parties and their Significant Subsidiaries which could reasonably be expected to have a Material Adverse Effect; and
 
 
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       (f)   promptly, such additional financial and other information as the Administrative Agent, on behalf of any Lender, may from time to time reasonably request.

   Documents required to be delivered pursuant to Section 5.1(a) or Section 5.1(b) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date received by the Administrative Agent by electronic mail with all relevant attachments.  The Administrative Agent may post such documents on the Borrower’s behalf on Syndtrak, Intralinks or another relevant 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 the Borrower shall deliver paper copies of such documents to the Administrative Agent upon its request.  Notwithstanding anything contained herein, (A) the Borrower shall be entitled to deliver the compliance certificate required by Section 5.2(b) by electronic mail and if so delivered shall be deemed to have been delivered on the date received by the Administrative Agent by electronic mail with all relevant attachments, and (B) whether or not delivery of any compliance certificate required by Section 5.2(b) is effected pursuant to the preceding clause (A), the Borrower shall be required to provide paper copies of the compliance certificates required by Section 5.2(b) to the Administrative Agent upon its request.

   Section 5.3 Payment of Taxes; Other Obligations; Performance of Certain Other Agreements.

    Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, in accordance with industry practice (subject, where applicable, to specified grace periods) all its material taxes (Federal, state, local and any other taxes) and other obligations and liabilities of whatever nature and any additional costs that are imposed as a result of any failure to so pay, discharge or otherwise satisfy such taxes, obligations and liabilities, except when the amount or validity of any such taxes, obligations and liabilities is currently being contested in good faith by appropriate proceedings and reserves, if applicable, in conformity with GAAP with respect thereto have been provided on the books of the Credit Parties.  Except as otherwise provided below, each Credit Party shall faithfully keep and perform, or cause to be kept and performed, all of the covenants, conditions, and agreements contained in each material lease (including any equipment lease), rental agreement, management contract, franchise agreement, construction contract, technical services agreement or other Material Contract, license or permit, now or hereafter existing, on the part of such Credit Party to be kept and performed with respect to such Person’s real property subject to any Mortgage Instrument (including performance of all covenants to be performed under any and all leases of such real property or any part thereof) and shall at all times use commercially reasonable efforts to enforce, with respect to each other party to said agreements, all obligations, covenants and agreements by such other party to be performed thereunder; provided that a Credit Party shall not have any obligation under this Section 5.3 unless such Credit Party’s performance or breach of its obligations with respect to any such covenants, conditions or agreements could reasonably be expected to have a Material Adverse Effect.  Subject to the terms of Section 6.8, nothing in this Section 5.3 should be interpreted or construed to impose any limit on the ability of any Credit Party to modify, amend or terminate any such agreements without prior notice to or consent of the Administrative Agent or the Lenders, so long as any such modification, amendment or termination could not reasonably be expected to have a Material Adverse Effect.  In the event of any conflict between the provisions of this Section 5.3 and the provisions of any Mortgage Instrument, the provisions of this Section 5.3 shall control.
 
 
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   Section 5.4                      Conduct of Business and Maintenance of Existence.

    Continue to engage in business of the same general type as now conducted by it on the Closing Date and preserve, renew and keep in full force and effect its existence and good standing take all reasonable action to maintain all rights, privileges and franchises necessary in the normal conduct of its business; comply with all Contractual Obligations and Requirements of Law applicable to it except to the extent that failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.

   Section 5.5                      Maintenance of Property; Insurance.

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

       (b)           Maintain with financially sound and reputable insurance companies insurance on all its property (including without limitation its tangible Collateral) in at least such amounts and against at least such risks as are usually insured against in the same geographical area by companies engaged in the same or a similar business (including, without limitation, business interruption insurance); and furnish to the Administrative Agent, upon written request, full information as to the insurance carried.  Other than with respect to insurance of an Excluded Subsidiary, the Administrative Agent shall be named as loss payee or mortgagee, as its interest may appear, and the Administrative Agent shall be named as an additional insured with respect to any such insurance providing coverage in respect of any Collateral, and each provider of any such insurance shall agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to the Administrative Agent, that it will give the Administrative Agent thirty (30) days prior written notice before any such policy or policies shall be altered or canceled, and that no act or default of any Credit Party or any other Person shall affect the rights of the Administrative Agent or the Lenders under such policy or policies.

       (c)           In case of any material loss, damage to or destruction of the Collateral of any Credit Party or any part thereof, such Credit Party shall promptly give written notice thereof to the Administrative Agent generally describing the nature and extent of such damage or destruction.  In case of any loss, damage to or destruction of the Collateral of any Credit Party or any part thereof, such Credit Party, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall be sufficient for that purpose, at such Credit Party’s cost and expense, will promptly repair or replace the Collateral of such Credit Party so lost, damaged or destroyed unless such Credit Party shall have reasonably determined that such repair or replacement of the affected Collateral is not economically feasible or is not deemed in the best business interest of such Credit Party.
 
 
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   Section 5.6                      Inspection of Property; Books and Records; Discussions.

    Keep proper books of records and account in which full, true and correct entries in conformity with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to its businesses and activities; and permit, during regular business hours and upon reasonable notice by the Administrative Agent or any Lender, the Administrative Agent or any Lender to visit and inspect any of its properties and examine and make abstracts from any of its books and records at any reasonable time, upon reasonable notice and as often as may reasonably be desired, and to discuss the business, operations, properties and financial and other condition of the Credit Parties with officers and employees of the Credit Parties and with their independent certified public accountants (a representative of the Borrower may be present at any such meeting with the independent certified public accountants).

   Section 5.7                      Notices.

       (a)   Promptly after any Credit Party obtains actual knowledge thereof, provide written notice to the Administrative Agent (which shall transmit such notice to each Lender as soon as practicable) of the occurrence of any Default or Event of Default.

       (b)   Promptly (but in no event later than four (4) Business Days after any Credit Party obtains actual knowledge thereof), provide written notice of the following to the Administrative Agent (which shall transmit such notice to each Lender as soon as practicable):

          (i) the occurrence of any default or event of default under any Contractual Obligation of any of the Credit Parties which could reasonably be expected to have a Material Adverse Effect;

          (ii) any litigation, or any investigation or proceeding (A) affecting any of the Credit Parties which, if adversely determined, could reasonably be expected to have a Material Adverse Effect or (B) that seeks to enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the provisions of this Agreement, any other Credit Document or the transactions contemplated hereby;

          (iii) (A) the occurrence or expected occurrence of any Reportable Event with respect to any Plan, a failure to make any material required contribution to a Plan, the creation of any Lien in favor of the PBGC (other than a Permitted Lien) or a Plan or any withdrawal from, or the termination, Reorganization or Insolvency of, any Multiemployer Plan or (B) the institution of proceedings or the taking of any other action by the PBGC or any Credit Party or any Commonly Controlled Entity or any Multiemployer Plan with respect to the withdrawal from, or the terminating, Reorganization or Insolvency of, any Plan;

          (iv) any notice of any violation received by any Credit Party from any Governmental Authority including, without limitation, any notice of material violation of Environmental Laws which could reasonably be expected to have a Material Adverse Effect;
 
 
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          (v) any labor controversy that has resulted in, or threatens to result in, a strike or other work action against any Credit Party which could reasonably be expected to have a Material Adverse Effect;

          (vi) any of the events described in Section 7.1(f) with respect to a Subsidiary that is not a Significant Subsidiary which could reasonably be expected to have a Material Adverse Effect; and

          (vii) any other development or event which could reasonably be expected to have a Material Adverse Effect.

    Each notice pursuant to this Section shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action the Borrower proposes to take with respect thereto.  In the case of any notice of a Default or Event of Default, the Borrower shall specify that such notice is a Default or Event of Default notice on the face thereof.

    Section 5.8                      Environmental Laws.

       (a)   Comply in all material respects with all applicable Environmental Laws and obtain and comply in all material respects with and maintain any and all licenses, approvals, notifications, registrations or permits required by applicable Environmental Laws except, in each case, to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

       (b)   Conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under Environmental Laws and comply in all material respects with all lawful orders and directives of all Governmental Authorities regarding Environmental Laws except to the extent that the same are being contested in good faith by appropriate proceedings and the pendency of such proceedings could not reasonably be expected to have a Material Adverse Effect.
 
       (c)   Defend, indemnify and hold harmless the Administrative Agent and the Lenders, and their respective employees, agents, officers and directors, from and against any and all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature known or unknown, contingent or otherwise, arising out of, or in any way relating to the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of the Credit Parties or Unrestricted Subsidiaries or the Properties, or any orders, requirements or demands of Governmental Authorities related thereto, including, without limitation, reasonable attorney’s and consultant’s fees, investigation and laboratory fees, response costs, court costs and litigation expenses, except to the extent that any of the foregoing arise out of the gross negligence, unlawful acts or willful misconduct of the party seeking indemnification therefor.  The agreements in this paragraph shall survive repayment of the Notes and all other amounts payable hereunder.
 
 
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   Section 5.9                      Financial Covenants.

    Commencing on the day immediately following the Closing Date, comply with the following financial covenants (which shall be calculated on a quarterly basis in connection with the delivery of the quarterly compliance certificate required by Section 5.2(b)):

       (a)   Leverage Ratio.  The Leverage Ratio during the following periods shall be less than or equal to:

Period
Maximum Ratio
Closing Date through November 30, 2015
4.50 to 1.0
December 1, 2015 through November 30, 2017
4.25 to 1.0
December 1, 2017 and thereafter
4.00 to 1.0

      (b)   Interest Coverage Ratio.  The Interest Coverage Ratio shall be greater than or equal 2.40 to 1.0.
 
 
    Notwithstanding the above, the parties hereto acknowledge and agree that, for purposes of all calculations made in determining compliance for any applicable period with the financial covenants set forth in this Section 5.9, after consummation of any Permitted Acquisition, (A) income statement items and other balance sheet items (whether positive or negative) attributable to the Target acquired in such transaction shall be included in such calculations to the extent relating to such applicable period, subject to adjustments mutually acceptable to the Borrower and the Administrative Agent and (B) Indebtedness of a Target which is retired in connection with a Permitted Acquisition shall be excluded from such calculations and deemed to have been retired as of the first day of such applicable period.

   Section 5.10                      Additional Guarantors.

    Cause each of their Material Domestic Subsidiaries, whether newly formed, after acquired or otherwise existing, to promptly (and in any event within thirty (30) days after such Material Domestic Subsidiary is formed or acquired (or such longer period of time as agreed to by the Administrative Agent in its reasonable discretion)) become a Guarantor hereunder by way of execution of a Joinder Agreement or other guaranty agreement in form and substance satisfactory to the Administrative Agent.  In connection therewith, the Credit Parties shall give notice to the Administrative Agent not less than five (5) days prior to creating a Material Domestic Subsidiary (or such shorter period of time as agreed to by the Administrative Agent in its reasonable discretion), or acquiring the Capital Stock of any other Person.  The Credit Party Obligations shall be secured by, among other things, a first-priority, perfected security interest in the Collateral of such new Guarantor and a pledge of 100% of the Capital Stock owned by a Credit Party of such new Guarantor and its Domestic Subsidiaries and 65% (or such higher percentage that would not result in adverse tax consequences for the Borrower or such new Guarantor) of the voting Capital Stock and 100% of the non-voting Capital Stock of its first-tier Foreign Subsidiaries and Unrestricted Subsidiaries.  In connection with the foregoing, the Credit Parties shall deliver to the Administrative Agent, with respect to each new Guarantor to the extent applicable, substantially the same documentation required pursuant to Sections 4.1(b)-(e) and 5.12 and such other documents or agreements as the Administrative Agent may reasonably request.
 
 
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   Section 5.11                      Compliance with Law.

    Comply with all laws, rules, regulations and orders, and all applicable restrictions imposed by all Governmental Authorities, applicable to it and its property if noncompliance with any such law, rule, regulation, order or restriction could reasonably be expected to have a Material Adverse Effect.

   Section 5.12                      Pledged Assets.

       (a)   Cause 100% of the Capital Stock owned by it of each of its direct or indirect Material Domestic Subsidiaries (excluding any Excluded Subsidiary) and 100% of the Capital Stock owned by it of each of its first-tier Material Foreign Subsidiaries and Unrestricted Subsidiaries (not to exceed 65% of the aggregate Capital Stock of such Material Foreign Subsidiary or Unrestricted Subsidiary, as applicable) to be subject at all times to a first-priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Security Documents or such other security documents as the Administrative Agent shall reasonably request.

       (b)   If, subsequent to the Closing Date, a Credit Party shall acquire any securities, instruments, chattel paper or other personal property required for perfection to be delivered to the Administrative Agent as Collateral hereunder or under any of the Security Documents, promptly (and in any event within five (5) Business Days) after any Responsible Officer of a Credit Party acquires knowledge of same, notify the Administrative Agent of same.  Each Credit Party shall, and shall cause each of its Subsidiaries (other than an Excluded Subsidiary) to, take such action at its own expense as reasonably requested by the Administrative Agent (including, without limitation, any of the actions described in Section 4.1(d) or Section 5.15(d)(ii) with respect to any real property hereof) to ensure that the Administrative Agent has a first-priority, perfected Lien to secure the Credit Party Obligations (subject to Permitted Liens) in (i) all personal property of the Credit Parties located in the United States (including, without limitation, at the request of the Administrative Agent, to take all actions necessary under the Federal Assignment of Claims Act to ensure the Administrative Agent has a first-priority, perfected Lien on any government receivables), (ii) to the extent deemed to be material by the Administrative Agent or the Required Lenders in its or their reasonable discretion, all other personal property of the Credit Parties, subject in each case only to Permitted Liens, and (iii) to the extent deemed to be material by the Administrative Agent or the Required Lenders in its or their reasonable discretion, such real property of the Credit Parties located in the United States.  Each Credit Party shall, and shall cause each of its Subsidiaries (other than an Excluded Subsidiary) to, adhere to the covenants regarding the location of personal property as set forth in the Security Documents.
 
 
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   Section 5.13                      Covenants Regarding Patents, Trademarks and Copyrights.

       (a)           Concurrently with the delivery of annual financial statements of the Borrower pursuant to Section 5.1 hereof, notify the Administrative Agent if it knows or has reason to know that any application, letters patent or registration relating to any material Patent, Patent License, Trademark or Trademark License of the Credit Parties or any of their Subsidiaries (other than Excluded Subsidiaries) may become abandoned, or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office or any court) regarding the Borrower’s or any of its Subsidiary’s ownership of any material Patent or Trademark, its right to patent or register the same, or to enforce, keep and maintain the same, or its rights under any material Patent License or Trademark License, if such abandonment or adverse determination or development could reasonably be expected to have a Material Adverse Effect.

       (b)           Concurrently with the delivery of annual financial statements of the Borrower pursuant to Section 5.1 hereof, notify the Administrative Agent after it knows or has reason to know of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in any court) regarding any material Copyright or Copyright License of the Credit Parties or any of their Subsidiaries (other than Excluded Subsidiaries), whether (i) such material Copyright or Copyright License may become invalid or unenforceable prior to its expiration or termination, or (ii) the Borrower’s or any of its Subsidiary’s ownership of such material Copyright, its right to register the same or to enforce, keep and maintain the same, or its rights under such material Copyright License, may become affected, if such adverse determination or development could reasonably be expected to have a Material Adverse Effect.

       (c)           (i)           Concurrently with the delivery of annual financial statements of the Borrower pursuant to Section 5.1 hereof, notify the Administrative Agent of any filing by any Credit Party or any of its Subsidiaries (other than an Excluded Subsidiary), either itself or through any agent, employee, licensee or designee, of any application for registration of any Intellectual Property (other than Intellectual Property of de minimus value) with the United States Copyright Office or United States Patent and Trademark Office or any similar office or agency in any other country or any political subdivision thereof.

          (ii)           Concurrently with the delivery of annual financial statements of the Borrower pursuant to Section 5.1 hereof, provide the Administrative Agent and its counsel a complete and correct list in all material respects of all new Copyright Licenses, Patent Licenses and Trademark Licenses (other than Copyright Licenses, Patent Licenses and Trademark Licenses of de minimus value) not previously disclosed on Schedule 3.16 or otherwise disclosed to the Administrative Agent pursuant to this Section 5.13(c)(ii).
 
 
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          (iii)           Upon request of the Administrative Agent, execute and deliver any and all agreements, instruments, documents, and papers as the Administrative Agent may reasonably request to evidence the Administrative Agent’s security interest in the Intellectual Property and the general intangibles (other than Intellectual Property of de minimus value) referred to in clauses (i) and (ii), including, without limitation, the goodwill of the Borrower or its Subsidiaries (other than Excluded Subsidiaries) relating thereto or represented thereby (or such other Intellectual Property or the general intangibles relating thereto or represented thereby as the Administrative Agent may reasonably request).

       (d)           Take all necessary actions, including, without limitation, in any proceeding before the United States Patent and Trademark Office or the United States Copyright Office, to maintain each material item of Intellectual Property of the Credit Parties and their Subsidiaries, including, without limitation, payment of maintenance fees, filing of applications for renewal, affidavits of use, affidavits of incontestability and opposition, interference and cancellation proceedings; provided that the Credit Parties shall have the right to abandon any item of Intellectual Property which the Borrower determines is no longer of significant value or useful or necessary to the business of the Borrower and its Subsidiaries.

       (e)           In the event that any Credit Party becomes aware that any material Intellectual Property is infringed, misappropriated or diluted by a third party in any material respect, notify the Administrative Agent promptly after it learns thereof and shall, unless the Credit Parties shall reasonably determine that such Intellectual Property is not material to the business of the Credit Parties and their Subsidiaries taken as a whole or as to which the Credit Parties reasonably conclude that the cost of such proceeding or its likelihood of success does not justify its prosecution, promptly sue for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and take such other actions as the Credit Parties shall reasonably deem appropriate under the circumstances to protect such Intellectual Property.

    Section 5.14                      Landlord Waivers.

    In the case of any personal property Collateral located at premises leased by a Credit Party, provide the Administrative Agent with such estoppel letters, consents and waivers from the landlords on such real property to the extent (a) requested by the Administrative Agent and (b) the Borrower is able to secure such letters, consents and waivers after using commercially reasonable efforts (such letters, consents and waivers shall be in form and substance reasonably satisfactory to the Administrative Agent).

   Section 5.15                      Further Assurances/Post-Closing Covenants.

       (a)           Public/Private Designation.  Cooperate with the Administrative Agent in connection with the publication of certain materials and/or information provided by or on behalf of the Borrower to the Administrative Agent and Lenders (collectively, “Information Materials”) pursuant to this Article V and will designate Information Materials (i) that are either available to the public or not material with respect to the Borrower and its Subsidiaries or any of their respective securities for purposes of United States federal and state securities laws, as “Public Information” and (ii) that are not Public Information as “Private Information”.
 
 
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       (b)           Further Assurances.  Upon the reasonable request of the Administrative Agent, promptly perform or cause to be performed any and all acts and execute or cause to be executed any and all documents for filing under the provisions of the Uniform Commercial Code or any other Requirement of Law which are necessary or advisable to maintain in favor of the Administrative Agent, for the benefit of the Secured Parties, Liens on the Collateral that are duly perfected in accordance with the requirements of, or the obligations of the Credit Parties under, the Credit Documents and all applicable Requirements of Law.

       (c)           Account Control Agreements.  Within ninety (90) days after the Closing Date (or such extended period of time as agreed to by the Administrative Agent), deliver to the Administrative Agent, to the extent required by Section 6.14 and not delivered to the Administrative Agent on or prior to the Closing Date, such duly executed account control agreements with respect to Collateral for which a control agreement is required for perfection of the Administrative Agent’s security interest under the Uniform Commercial Code.

       (d)           Real Property Collateral.

          (i) No later than forty-five (45) days after the Closing Date (unless such time period is extended in writing by the Administrative Agent in its reasonable discretion), deliver to the Administrative Agent amendments to the existing Mortgage Instruments covering real property in the State of Washington and the Commonwealth of Virginia, together with: (i) “down date” endorsements to the existing Mortgage Policies relating to such Mortgage Instruments, in form and substance reasonably satisfactory to Administrative Agent; (ii) evidence that counterparts of such amendments to such Mortgage Instruments have been recorded in all places to the extent necessary or desirable, in the reasonable judgment of Administrative Agent, to maintain a valid and enforceable first priority lien (subject to Permitted Liens) on the property encumbered by each such Mortgage Instrument in favor of the Administrative Agent for the benefit of itself and the Secured Parties (or in favor of such other trustee as may be required or desired under local law); and (iii) an opinion of counsel with respect to each such amendment to the existing Mortgage Instrument, in form and substance and from counsel reasonably satisfactory to the Administrative Agent.

           (ii) No later than forty-five (45) days after the Closing Date (unless such time period is extended in writing by the Administrative Agent in its reasonable discretion), deliver to the Administrative Agent a Mortgage Instrument for the real property located at 8900 De Soto Avenue, Chatsworth, California (the “De Soto Property”), together with: (i) a title report obtained by the Credit Parties in respect of the De Soto Property, (ii) Mortgage Policies, current as built surveys and flood zone reports (and to the extent such property is a Flood Hazard Property, comply with the provisions of Section 3.27) in each case reasonably satisfactory in form and substance to Administrative Agent;
 
 
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(iii) evidence that counterparts of such Mortgage Instrument have been recorded in all places to the extent necessary or desirable, in the reasonable judgment of Administrative Agent, to create a valid and enforceable first priority lien (subject to Permitted Liens) on the De Soto Property in favor of Administrative Agent for the benefit of itself and the Secured Parties (or in favor of such other trustee as may be required or desired under local law); (iv) the extent available or otherwise required by the Administrative Agent in its reasonable discretion, a Phase I environmental report (and, if necessary, Phase II environmental report) or other environmental report acceptable to the Administrative Agent with respect to the De Soto Property, (v) an environmental indemnity agreement for the De Soto Property, in form and substance satisfactory to the Administrative Agent in its reasonable discretion; and (vi) an opinion of counsel licensed in the State of California with respect to such Mortgage Instrument and such environmental indemnity agreement, in form and substance and from counsel reasonably satisfactory to the Administrative Agent.
 
   Section 5.16                      Designation of Restricted and Unrestricted Subsidiaries.

    Provide evidence that the board of directors of the Borrower have designated a Restricted Subsidiary to be an Unrestricted Subsidiary; provided that such designation may be made by an officer of the Company with respect to any Subsidiary that is not a Material Domestic Subsidiary or a Material Foreign Subsidiary; provided , further, that:

       (a)           Guaranty Obligations of the Borrower or any Restricted Subsidiary in respect of any Indebtedness of the Subsidiary being so designated shall be deemed to be an incurrence of Indebtedness by the Borrower or such Restricted Subsidiary (or both, if applicable) at the time of such designation, and such incurrence of Indebtedness would be permitted under Section 6.1 hereof;

       (b)           the aggregate Fair Market Value of all outstanding investments owned by the Borrower and its Restricted Subsidiaries in the Subsidiary being so designated (including any Guaranty Obligations of the Borrower or any Restricted Subsidiary in respect of any Indebtedness of the Subsidiary) shall be deemed to be an Investment made as of the time of such designation and that such investment would be permitted under Section 6.5 hereof;

       (c)           such Subsidiary does not own any Capital Stock of, or hold any Liens on any property of, the Borrower or any Restricted Subsidiary;

       (d)           the Subsidiary being so designated:

          (i) is not party to any agreement, contract, arrangement or understanding with the Borrower or any Restricted Subsidiary of the Borrower unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to the Borrower or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Borrower;
 
 
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          (ii) is a Person with respect to which neither the Borrower nor any of its Restricted Subsidiaries has any direct or indirect obligation (i) to subscribe for additional Capital Stock or (ii) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and

          (iii) is not treated as a Restricted Subsidiary or have a similar designation under any other Indebtedness.

       (e)           no Default or Event of Default would be in existence following such designation; and

       (f)           the Credit Parties are in pro forma compliance with each of the financial covenants set forth in Section 5.9.

    Any designation of a Restricted Subsidiary of the Borrower as an Unrestricted Subsidiary shall be evidenced to the Administrative Agent by filing with the Administrative Agent a certified copy of the resolution of the board of directors or officer’s certificate, as applicable, giving effect to such designation and an officer’s certificate certifying that such designation has complied with the preceding conditions and was permitted by this Agreement.

ARTICLE VI

NEGATIVE COVENANTS
   
    The Credit Parties hereby covenant and agree that on the Closing Date, and thereafter for so long as this Credit Agreement is in effect and until the Commitments have terminated and the Credit Party Obligations under the Credit Documents have been paid in full, that:

   Section 6.1                      Indebtedness.

    The Credit Parties will not, nor will they permit any Subsidiary (other than an Excluded Subsidiary) to, contract, create, incur, assume or permit to exist any Indebtedness, except:

        (a)    Indebtedness arising or existing under this Credit Agreement and the other Credit Documents;
 
           (b)           Indebtedness of the Credit Parties and their Subsidiaries existing as of the Closing Date as set forth on Schedule 6.1(b) and any Permitted Refinancing thereof;

        (c)    Second Lien Indebtedness;

        (d)    Indebtedness of the Credit Parties and their Subsidiaries (other than Excluded Subsidiaries) incurred or acquired after the Closing Date consisting of Capital Leases or Indebtedness incurred to provide all or a portion of the purchase price or cost of construction of an asset; provided that (i) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing; and (ii) the aggregate amount of such Indebtedness outstanding at any time shall not exceed $30,000,000;
 
 
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           (e)           Additional Second Lien Indebtedness;
 
           (f)           Subordinated Delayed Draw Indebtedness;
 
           (g)           Indebtedness of a Person existing at the time such Person becomes a Subsidiary of a Credit Party in a transaction permitted hereunder in an aggregate principal amount not to exceed the greater of (i) $40,000,000 and (ii) 2% of Consolidated Total Assets for all such Persons; provided that any such Indebtedness was not created in anticipation of or in connection with the transaction or series of transactions pursuant to which such Person became a Subsidiary of a Credit Party;
 
           (h)           Indebtedness in the form of a purchase price adjustment or an earnout or similar payment obligation incurred in connection with a Permitted Acquisition;

                               (i)    Indebtedness of Foreign Subsidiaries in an aggregate amount not to exceed the greater of (i) $75,000,000 and (ii) 5% of Consolidated Total Assets as of any date of determination for the four quarter period ending on such date at any one time outstanding;

                               (j)    Indebtedness of Joint Ventures in an aggregate amount not to exceed the greater of (i) $75,000,000 and (ii) 5% of Consolidated Total Assets as of any date of determination for the four quarter period ending on such date at any one time outstanding;

                               (k)    unsecured Indebtedness incurred by the Credit Parties and owed to any Credit Party; provided, however, that in the case of such intercompany Indebtedness consisting of a loan or advance by a Credit Party to another Credit Party, each such loan shall be evidenced by an Intercompany Note payable to the Credit Party, which Intercompany Notes shall be delivered and pledged to the Administrative Agent as part of the Collateral;

           (l)    Indebtedness and obligations owing under Bank Products entered into in order to manage existing or anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes;

                           (m)           Indebtedness of the Borrower consisting of unsecured Guaranty Obligations in favor of the United States Environmental Protection Agency which are incurred on behalf of Aerojet Rocketdyne in connection with environmental remediation; provided, that such Guaranty Obligations permitted under this subsection shall not at any time exceed $120,000,000;

                           (n)           additional senior unsecured Indebtedness or Subordinated Debt and/or Permitted Refinancing thereof of the Credit Parties and their Subsidiaries (other than the Excluded Subsidiaries) not otherwise covered by the subsections set forth above; provided that, after giving pro forma effect to the incurrence of any such Indebtedness, the Borrower shall be in compliance with the financial covenants set forth in Section 5.9.
 
 
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       (o)   Guaranty Obligations in respect of Indebtedness of a Credit Party to the extent such Indebtedness is permitted to exist or be incurred pursuant to this Section 6.1 and any renewal, refinancing or extension of such Guaranty Obligations to t