Exhibit 10.19


 


Execution Copy


 




Published CUSIP Number:                                    





 


CREDIT AGREEMENT


 


Dated as of October 31, 2007


 


among


 


CAREER EDUCATION CORPORATION


a Delaware corporation,


as a Borrower,


 


CEC EUROPE, LLC & INVESTORS S.C.S.,


a limited liability partnership under the laws of Luxembourg,


as the European Borrower,


 


BANK OF AMERICA, N.A.,


as


Administrative Agent, Swing Line Lender


and


an L/C Issuer,


 


JPMORGAN CHASE BANK, N.A.


as Syndication Agent,


 


SUNTRUST BANK


as Documentation Agent,


 


and


 


The Other Lenders Party Hereto


 






 


BANC OF AMERICA SECURITIES LLC,


as


Sole Lead Arranger and Sole Book Manager


 






 







 





 

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
   

  	
        DEFINITIONS AND ACCOUNTING TERMS

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  1.01

  	
   

  	
  Defined
  Terms

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  1.02

  	
   

  	
  Other
  Interpretive Provisions

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  1.03

  	
   

  	
  Accounting
  Terms

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  1.04

  	
   

  	
  Rounding

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  1.05

  	
   

  	
  References
  to Agreements and Laws

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  1.06

  	
   

  	
  Times of Day

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  1.07

  	
   

  	
  Letter of
  Credit Amounts

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  1.08

  	
   

  	
  Exchange
  Rates; Currency Equivalents

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  1.09

  	
   

  	
  Additional
  Alternative Currencies

  	
  25

  
	
   

  	
   

  	
   

  	
   

  
	
  1.10

  	
   

  	
  Redenomination
  of Certain Alternative Currencies

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  	
        THE
  COMMITMENTS AND CREDIT EXTENSIONS

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  2.01

  	
   

  	
  Committed
  Loans

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  2.02

  	
   

  	
  Borrowings,
  Conversions and Continuations of Committed Loans

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  2.03

  	
   

  	
  Letters of
  Credit.

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
  2.04

  	
   

  	
  Swing Line
  Loans

  	
  37

  
	
   

  	
   

  	
   

  	
   

  
	
  2.05

  	
   

  	
  Prepayments

  	
  40

  
	
   

  	
   

  	
   

  	
   

  
	
  2.06

  	
   

  	
  Termination
  or Reduction of Commitments

  	
  41

  
	
   

  	
   

  	
   

  	
   

  
	
  2.07

  	
   

  	
  Repayment of
  Loans

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  2.08

  	
   

  	
  Interest

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  2.09

  	
   

  	
  Fees

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  2.10

  	
   

  	
  Computation
  of Interest and Fees

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  2.11

  	
   

  	
  Evidence of
  Debt

  	
  44

  
	
   

  	
   

  	
   

  	
   

  
	
  2.12

  	
   

  	
  Payments
  Generally

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  2.13

  	
   

  	
  Sharing of
  Payments

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
  2.14

  	
   

  	
  Increase in
  Commitments

  	
  47

  
	
   

  	
   

  	
   

  	
   

  
	
  2.15

  	
   

  	
  European
  Borrower

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
  TAXES, YIELD
  PROTECTION AND ILLEGALITY

  	
  49

  
	
   

  	
   

  	
   

  	
   

  
	
  3.01

  	
   

  	
  Taxes.

  	
  49

  



 


i

















 


	
  3.02

  	
   

  	
  Illegality

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
  3.03

  	
   

  	
  Inability to
  Determine Rates

  	
  50

  
	
   

  	
   

  	
   

  	
   

  
	
  3.04

  	
   

  	
  Increased
  Cost and Reduced Return; Capital Adequacy; Reserves on Eurocurrency Rate
  Loans

  	
  51

  
	
   

  	
   

  	
   

  	
   

  
	
  3.05

  	
   

  	
  Funding
  Losses

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  3.06

  	
   

  	
  Matters
  Applicable to all Requests for Compensation

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  3.07

  	
   

  	
  Survival

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
  CONDITIONS
  PRECEDENT TO CREDIT EXTENSIONS

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  4.01

  	
   

  	
  Conditions
  of Initial Credit Extension

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  4.02

  	
   

  	
  Conditions
  to all Credit Extensions

  	
  55

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  56

  
	
   

  	
   

  	
   

  	
   

  
	
  5.01

  	
   

  	
  Existence,
  Qualification and Power; Compliance with Laws

  	
  56

  
	
   

  	
   

  	
   

  	
   

  
	
  5.02

  	
   

  	
  Authorization;
  No Contravention

  	
  56

  
	
   

  	
   

  	
   

  	
   

  
	
  5.03

  	
   

  	
  Governmental
  Authorization; Other Consents

  	
  56

  
	
   

  	
   

  	
   

  	
   

  
	
  5.04

  	
   

  	
  Binding
  Effect

  	
  56

  
	
   

  	
   

  	
   

  	
   

  
	
  5.05

  	
   

  	
  Financial
  Statements; No Material Adverse Effect

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
  5.06

  	
   

  	
  Litigation

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
  5.07

  	
   

  	
  No Default

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
  5.08

  	
   

  	
  Ownership of
  Property; Liens

  	
  57

  
	
   

  	
   

  	
   

  	
   

  
	
  5.09

  	
   

  	
  Environmental
  Compliance

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  5.10

  	
   

  	
  Insurance

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  5.11

  	
   

  	
  Taxes

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  5.12

  	
   

  	
  ERISA
  Compliance

  	
  58

  
	
   

  	
   

  	
   

  	
   

  
	
  5.13

  	
   

  	
  Subsidiaries

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  5.14

  	
   

  	
  Margin
  Regulations; Investment Company Act

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  5.15

  	
   

  	
  Disclosure

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  5.16

  	
   

  	
  Compliance
  with Laws

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
  5.17

  	
   

  	
  Intellectual
  Property; Licenses, Etc

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
  5.18

  	
   

  	
  Title IV
  Compliance

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
  AFFIRMATIVE
  COVENANTS

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
  6.01

  	
   

  	
  Financial
  Statements

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
  6.02

  	
   

  	
  Certificates;
  Other Information

  	
  62

  



 


ii

















 


	
  6.03

  	
   

  	
  Notices

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
  6.04

  	
   

  	
  Payment of
  Obligations

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
  6.05

  	
   

  	
  Preservation
  of Existence, Etc

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  6.06

  	
   

  	
  Maintenance
  of Properties

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  6.07

  	
   

  	
  Maintenance
  of Insurance

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  6.08

  	
   

  	
  Compliance
  with Laws

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
  6.09

  	
   

  	
  Books and
  Records

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  6.10

  	
   

  	
  Inspection
  Rights

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  6.11

  	
   

  	
  Use of
  Proceeds

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  6.12

  	
   

  	
  Additional
  Guarantors

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  6.13

  	
   

  	
  Acquisitions

  	
  66

  
	
   

  	
   

  	
   

  	
   

  
	
  6.14

  	
   

  	
  Title IV
  Compliance

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  	
  NEGATIVE
  COVENANTS

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
  7.01

  	
   

  	
  Liens

  	
  68

  
	
   

  	
   

  	
   

  	
   

  
	
  7.02

  	
   

  	
  Investments

  	
  69

  
	
   

  	
   

  	
   

  	
   

  
	
  7.03

  	
   

  	
  Indebtedness

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
  7.04

  	
   

  	
  Fundamental
  Changes

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
  7.05

  	
   

  	
  Dispositions

  	
  71

  
	
   

  	
   

  	
   

  	
   

  
	
  7.06

  	
   

  	
  Restricted
  Payments

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
  7.07

  	
   

  	
  Change in
  Nature of Business

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
  7.08

  	
   

  	
  Transactions
  with Affiliates

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
  7.09

  	
   

  	
  Burdensome
  Agreements

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  7.10

  	
   

  	
  Use of
  Proceeds

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  7.11

  	
   

  	
  Financial
  Covenants

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  	
  EVENTS OF
  DEFAULT AND REMEDIES

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  8.01

  	
   

  	
  Events of
  Default

  	
  73

  
	
   

  	
   

  	
   

  	
   

  
	
  8.02

  	
   

  	
  Remedies
  Upon Event of Default

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  8.03

  	
   

  	
  Application
  of Funds

  	
  76

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  	
  ADMINISTRATIVE
  AGENT

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  9.01

  	
   

  	
  Appointment
  and Authorization of Administrative Agent

  	
  77

  
	
   

  	
   

  	
   

  	
   

  
	
  9.02

  	
   

  	
  Delegation
  of Duties

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
  9.03

  	
   

  	
  Liability of
  Administrative Agent

  	
  78

  



 


iii

















 


	
  9.04

  	
   

  	
  Reliance by
  Administrative Agent

  	
  78

  
	
   

  	
   

  	
   

  	
   

  
	
  9.05

  	
   

  	
  Notice of
  Default

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  9.06

  	
   

  	
  Credit
  Decision; Disclosure of Information by Administrative Agent

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  9.07

  	
   

  	
  Indemnification
  of Administrative Agent

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
  9.08

  	
   

  	
  Administrative
  Agent in its Individual Capacity

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
  9.09

  	
   

  	
  Successor
  Administrative Agent

  	
  81

  
	
   

  	
   

  	
   

  	
   

  
	
  9.10

  	
   

  	
  Administrative
  Agent May File Proofs of Claim

  	
  81

  
	
   

  	
   

  	
   

  	
   

  
	
  9.11

  	
   

  	
  Guaranty
  Matters

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  9.12

  	
   

  	
  Other
  Agents; Arrangers and Managers

  	
  82

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  	
  MISCELLANEOUS

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
  10.01

  	
   

  	
  Amendments,
  Etc

  	
  83

  
	
   

  	
   

  	
   

  	
   

  
	
  10.02

  	
   

  	
  Notices and
  Other Communications; Facsimile Copies

  	
  84

  
	
   

  	
   

  	
   

  	
   

  
	
  10.03

  	
   

  	
  No Waiver;
  Cumulative Remedies

  	
  86

  
	
   

  	
   

  	
   

  	
   

  
	
  10.04

  	
   

  	
  Attorney
  Costs, Expenses and Taxes

  	
  86

  
	
   

  	
   

  	
   

  	
   

  
	
  10.05

  	
   

  	
  Indemnification
  by the Borrowers

  	
  87

  
	
   

  	
   

  	
   

  	
   

  
	
  10.06

  	
   

  	
  Payments Set
  Aside

  	
  88

  
	
   

  	
   

  	
   

  	
   

  
	
  10.07

  	
   

  	
  Successors
  and Assigns

  	
  89

  
	
   

  	
   

  	
   

  	
   

  
	
  10.08

  	
   

  	
  Confidentiality

  	
  93

  
	
   

  	
   

  	
   

  	
   

  
	
  10.09

  	
   

  	
  Set-off

  	
  94

  
	
   

  	
   

  	
   

  	
   

  
	
  10.10

  	
   

  	
  Interest
  Rate Limitation

  	
  94

  
	
   

  	
   

  	
   

  	
   

  
	
  10.11

  	
   

  	
  Counterparts

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  10.12

  	
   

  	
  Integration

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  10.13

  	
   

  	
  Survival of
  Representations and Warranties

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  10.14

  	
   

  	
  Severability

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  10.15

  	
   

  	
  Tax Forms.

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  10.16

  	
   

  	
  Replacement
  of Lenders

  	
  97

  
	
   

  	
   

  	
   

  	
   

  
	
  10.17

  	
   

  	
  Governing
  Law

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
  10.18

  	
   

  	
  Waiver of
  Right to Trial by Jury

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
  10.19

  	
   

  	
  Time of the
  Essence

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
  10.20

  	
   

  	
  Judgment
  Currency

  	
  99

  
	
   

  	
   

  	
   

  	
   

  
	
  10.21

  	
   

  	
  Canadian
  Commitments

  	
  99

  
	
   

  	
   

  	
   

  	
   

  
	
  10.22

  	
   

  	
  No Advisory
  or Fiduciary Responsibility

  	
  99

  



 


iv

















 


	
  10.23

  	
   

  	
  USA PATRIOT
  Act Notice

  	
  100

  
	
   

  	
   

  	
   

  	
   

  
	
  SIGNATURES

  	
   

  	
   

  	
  S-1

  



 


v

















 


SCHEDULES


 


	
   

  	
  1.01(a)

  	
  Discontinued
  Operations

  
	
   

  	
  1.01(b)

  	
  Existing
  Letters of Credit

  
	
   

  	
  2.01

  	
  Commitments
  and Pro Rata Shares

  
	
   

  	
  5.06

  	
  Litigation

  
	
   

  	
  5.09

  	
  Environmental
  Matters

  
	
   

  	
  5.12

  	
  ERISA
  Compliance

  
	
   

  	
  5.13

  	
  Subsidiaries
  and Other Equity Investments

  
	
   

  	
  5.17

  	
  Intellectual
  Property Matters

  
	
   

  	
  5.18(e)

  	
  Title IV
  Compliance Disclosure

  
	
   

  	
  7.01

  	
  Existing
  Liens

  
	
   

  	
  7.03

  	
  Existing
  Indebtedness

  
	
   

  	
  10.02

  	
  Administrative
  Agent’s Office, Certain Addresses for Notices

  



 


EXHIBITS


	
   

  	
  Form of

  	
   

  
	
   

  	
  A

  	
  Committed
  Loan Notice

  
	
   

  	
  B

  	
  Swing Line
  Loan Notice

  
	
   

  	
  C-1

  	
  Company Note

  
	
   

  	
  C-2

  	
  European
  Borrower Note

  
	
   

  	
  D

  	
  Compliance
  Certificate

  
	
   

  	
  E

  	
  Assignment
  and Assumption

  
	
   

  	
  F-1

  	
  Subsidiary
  Guaranty

  
	
   

  	
  F-2

  	
  Parent
  Guaranty

  
	
   

  	
  G

  	
  Opinion
  Matters

  



 


vi

















 


CREDIT AGREEMENT


 


This CREDIT AGREEMENT (“Agreement”) is entered into as of
October 31, 2007, among CAREER EDUCATION
CORPORATION, a Delaware corporation (the “Company”), CEC EUROPE, LLC & INVESTORS S.C.S., a
limited liability partnership under the laws of Luxembourg (the “European
Borrower” and, together with the Company, the “Borrowers” and each a “Borrower”),
each lender from time to time party hereto (collectively, the “Lenders”
and individually, a “Lender”), JPMORGAN
CHASE BANK, N.A.,  as Syndication Agent, SUNTRUST BANK, as Documentation Agent and BANK OF AMERICA, N.A., as Administrative
Agent, Swing Line Lender and an L/C Issuer, the “Administrative Agent”).


 


WITNESSETH:


 


WHEREAS, the
Borrowers have requested that the Lenders provide a revolving credit facility,
and the Lenders are willing to do so on the terms and conditions set forth
herein;


 


NOW THEREFORE, in
consideration of the mutual covenants and agreements herein contained, the
parties hereto covenant and agree as follows:


 


ARTICLE I


DEFINITIONS AND ACCOUNTING TERMS


 


1.01      Defined
Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:


 


“Accrediting Body” means, with respect to any Educational
Institution, any entity or organization, whether governmental,
government-chartered, inter-governmental, private or quasi-private, which
engages in granting or withholding licensing, accreditation or similar approval
for such Educational Institution, in accordance with standards relating to the
performance, operation, financial condition and/or academic standing of private
post-secondary schools, including, as applicable, the those entities and
organizations approved pursuant to Part 602 of 34 C.F.R.


 


“Acquisition” means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly, in (a)
the acquisition of all or substantially all of the assets of a Person, or of
any line or segment of business or division of a Person, (b) the acquisition of
in excess of 50% of the capital stock, partnership interests, membership
interests or equity of any Person, or otherwise causing any Person to become a
Subsidiary, or (c) a merger or consolidation or any other combination with
another Person (other than a Person that is a Subsidiary) provided that
(i) the Company or the Subsidiary is the surviving entity or (ii) after giving
effect to such merger or consolidation, such other Person has become a
Subsidiary of the Company; provided, further that no acquisition
described in clauses (a) or (b) above shall constitute an Acquisition unless
the total consideration (including cash, assumed Indebtedness and equity) paid
in respect thereof exceeds $1,000,000; and provided  further that
in no event shall the formation or establishment of a Subsidiary or the
capitalization of or transfer to such Subsidiary of any existing assets or
business of the Company or any Subsidiary constitute an Acquisition.


 


1

















 


“Administrative Agent” means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.


 


“Administrative Agent’s Office” means, with respect to any
currency, the Administrative Agent’s address and, as appropriate, account as
set forth on Schedule 10.02 with respect to such currency, or such other
address or account with respect to such currency as the Administrative Agent
may from time to time notify the Company and the Lenders.


 


“Administrative Questionnaire” means an Administrative
Questionnaire in a form supplied by the Administrative Agent.


 


“Affiliate” means, with respect to any Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. “Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. “Controlling”
and “Controlled” have meanings correlative thereto. Without limiting the
generality of the foregoing, a Person shall be deemed to be Controlled by
another Person if such other Person possesses, directly or indirectly, power to
vote 10% or more of the securities having ordinary voting power for the
election of directors, managing general partners or the equivalent.


 


“Agent-Related Persons” means the Administrative Agent, together
with its Affiliates (including, in the case of Bank of America in its capacity
as the Administrative Agent and  the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.


 


“Aggregate Commitments” means the Commitments of all the
Lenders, which shall not exceed $185,000,000 in the aggregate, subject to
increases as provided in Section 2.14 hereof.


 


“Agreement” means this Credit Agreement, as it may hereafter be
amended, amended and restated, supplemented or otherwise modified from time to
time.


 


“Alternative Currency” means each of Canadian Dollars, Euro,
Sterling and each other lawful currency (other than Dollars) that is freely
available and freely transferable and convertible into Dollars and which is
approved by all the Lenders in accordance with Section 1.09.


 


“Alternative Currency Equivalent” means, at any time, with
respect to any amount denominated in Dollars, the equivalent amount thereof in
the applicable Alternative 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 purchases of such Alternative Currency with
Dollars.


 


“Alternative Currency Sublimit” means an amount equal to
$100,000,000. The Alternative Currency Sublimit is part of, and not in addition
to, the Aggregate Commitments.


 


“Applicable Currency” has the meaning specified in Section
3.02.


 


2

















 


“Applicable Rate” means the following percentages per annum,
based upon the Consolidated Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b):


 


Applicable Rate


 




	
  Pricing

  Level

  	
   

  	
  Consolidated

  Leverage Ratio

  	
   

  	
  Applicable Rate

  for

  Eurocurrency

  Loans, Federal

  Funds Loans

  and Letters of

  Credit

  	
   

  	
  Applicable

  Rate for

  Base Rate

  Loans

  	
   

  	
  Commitment

  Fee

  
	
  1

  	
   

  	
  <1.0:1

  	
   

  	
  0.500%

  	
   

  	
  0.000%

  	
   

  	
  0.100%

  
	
  2

  	
   

  	
  >1.0:1 but <1.5:1

  	
   

  	
  0.625%

  	
   

  	
  0.000%

  	
   

  	
  0.125%

  
	
  3

  	
   

  	
  >1.5:1 but <2.0:1

  	
   

  	
  0.750%

  	
   

  	
  0.000%

  	
   

  	
  0.150%

  
	
  4

  	
   

  	
  >2.0:1 but <2.5:1

  	
   

  	
  1.000%

  	
   

  	
  0.000%

  	
   

  	
  0.200%

  
	
  5

  	
   

  	
  >2.5:1

  	
   

  	
  1.250%

  	
   

  	
  0.000%

  	
   

  	
  0.250%

  






 


Any increase or decrease in the Applicable Rate resulting from a change
in the Consolidated Leverage Ratio shall become effective as of the first
Business Day following the date a Compliance Certificate is delivered pursuant
to Section 6.02(b); provided, however, that if a
Compliance Certificate is not delivered when due in accordance with such
Section, then Pricing Level 5 shall apply as of the first Business Day after
the date on which such Compliance Certificate was required to have been
delivered until the first Business Day after the delivery of a Compliance
Certificate demonstrating that a different Pricing Level is required. The
Applicable Rate in effect from the Closing Date through a redetermination of
the Applicable Rate in accordance with the foregoing shall be determined based
upon Pricing Level 1.


 


“Applicable Time” means with respect to any borrowings and
payments in Alternative Currencies, the local times in the place of settlement
for such Alternative Currencies as may be 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.


 


“Arranger” means Banc of America Securities LLC, in its capacity
as sole lead arranger and sole book manager.


 


“Assignment and Assumption” means an Assignment and Assumption
substantially in the form of Exhibit E.


 


“Attorney Costs” means and includes all reasonable fees,
expenses and disbursements of any law firm or other external counsel and,
without duplication, the reasonable allocated cost of internal legal services
and all reasonable expenses and disbursements of internal counsel.


 


“Attributable Indebtedness” means, on any date, (a) in respect
of any capital lease of any Person, the capitalized amount thereof that would
appear on a balance sheet of such Person


 


3

















 


prepared as of such date in
accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the
capitalized amount of the remaining lease payments under the relevant lease
that would appear on a balance sheet of such Person prepared as of such date in
accordance with GAAP if such lease were accounted for as a capital lease.


 


“Audited Financial Statements” means the audited consolidated
balance sheet of the Company and its Subsidiaries for the fiscal year ended
December 31, 2006, and the related consolidated statements of income,
shareholders’ equity and cash flows for such fiscal year of the Company and its
Subsidiaries, including the notes thereto.


 


“Availability Period” means the period from and including the
Closing Date to the earliest of (a) the Maturity Date, (b) the date of
termination of the Aggregate Commitments pursuant to Section 2.06, and
(c) the date of termination of the commitment of each Lender to make Loans and
of the obligation of the of the L/C Issuer to make L/C Credit Extensions
pursuant to Section 8.02.


 


“Banc of America Securities” means Banc of America Securities
LLC and its successors.


 


“Bank of America” means Bank of America, N.A. and its
successors.


 


“Base Rate” means for any day a fluctuating rate per annum equal
to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the
rate of interest in effect for such day as publicly announced from time to time
by Bank of America as its “prime rate.” 
The “prime rate” is a rate set by Bank of America based upon various factors
including Bank of America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate. Any change
in such rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.


 


“Base Rate Committed Loan” means a Committed Loan that is a Base
Rate Loan.


 


“Base Rate Loan” means a Loan that bears interest based on the
Base Rate.


 


“Borrower” or “Borrowers” has the meaning specified in
the introductory paragraph hereto.


 


“Borrower Materials” has the meaning specified in Section
6.02.


 


“Borrowing” means a Committed Borrowing or a Swing Line
Borrowing, as the context may require.


 


“Business Day” means any day other than a Saturday, Sunday or
other day on which commercial banks are authorized to close under the Laws of,
or are in fact closed in, the state where the Administrative Agent’s Office
with respect to Obligations denominated in Dollars is located and (a) if such
day relates to any Eurocurrency Rate Loan denominated in a currency other than
Euro, means any such day on which dealings in deposits in the relevant currency
are conducted by and between banks in the London or other applicable offshore
interbank market for


 


4

















 


such currency or (b) if such
day relates to any Eurocurrency Rate Loan denominated in Euro, means a TARGET
Day.


 


“Canadian Commitment” means, as to a Lender, its obligation to
make loans and purchase participations with respect to letters of credit under
the Canadian Facility Agreement.


 


“Canadian Dollar” means the lawful currency of Canada.


 


“Canadian Facility Agreement” means the credit agreement among
the Company’s Canadian Subsidiaries and certain lenders party thereto providing
for a revolving credit facility in the initial amount of the Dollar Equivalent
of $10,000,000, as amended and restated from time to time.


 


“Cash Collateralize” has the meaning specified in Section
2.03(g).


 


“Cash Management Bank” means any party to a Cash Management
Services Agreement with the Company or any of its Subsidiaries which party was
a Lender or an Affiliate of a Lender under this Agreement at the time it entered
into such Cash Management Services Agreement.


 


“Cash Management Services Agreement” means any agreement to
provide management services, including treasury, depository, overdraft, credit
or debit card, electronic funds transfer and other cash management services
that is entered into by and between any Loan Party and any Cash Management
Bank.


 


“Change of Control” means, with respect to any Person, an event
or series of events by which:


 


(a)           any “person” or “group”
(as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent
or other fiduciary or administrator of any such plan) becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act
of 1934, except that a person or group shall be deemed to have “beneficial
ownership” of all securities that such person or group has the right to acquire
(such right, an “option right”), whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of 35%
or more of the equity securities of such Person entitled to vote for members of
the board of directors or equivalent governing body of such Person on a
fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right); or


 


(b)           the replacement of a
majority of the Board of Directors of a Person arising from an actual
solicitation of proxies or consents initiated by or on behalf of any person or
group other than those Persons nominated or appointed by the majority of the
Board of Directors of such Person.


 


5

















 


“Closing Date” means the first date all the conditions precedent
in Section 4.01 are satisfied or waived in accordance with Section
4.01 (or, in the case of Section 4.01(b), waived by the Person
entitled to receive the applicable payment).


 


“Code” means the Internal Revenue Code of 1986.


 


“Commitment” means, as to each Lender, its obligation to (a)
make Committed Loans in Dollars to the Company or in Alternative Currencies to
the Borrowers pursuant to Section 2.01, (b) purchase participations in
L/C Obligations, and (c) purchase participations in Swing Line Loans in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender’s name on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement.


 


“Committed Borrowing” means a borrowing consisting of
simultaneous Committed Loans of the same Type, in the same currency and having
the same Interest Period made by each of the Lenders pursuant to Section
2.01.


 


“Committed Loan” has the meaning specified in Section 2.01.


 


“Committed Loan Notice” means a notice of (a) a Committed
Borrowing, (b) a conversion of Committed Loans from one Type to the other, or
(c) a continuation of Eurocurrency Rate Loans, pursuant to Section 2.02(a),
which, if in writing, shall be substantially in the form of Exhibit A.


 


“Company” has the meaning specified in the introductory paragraph
hereof.


 


“Compliance Certificate” means a certificate substantially in
the form of Exhibit D.


 


“Consolidated EBITDA” means, for any period, for the Company and
its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net
Income for such period plus (a) the following to the extent deducted in
calculating such Consolidated Net Income: (i) Consolidated Interest Charges for
such period, (ii) the provision for federal, state, local and foreign income
taxes payable by the Company and its Subsidiaries for such period, (iii) the
amount of depreciation and amortization expense deducted in determining such
Consolidated Net Income, (iv) all non-cash charges from Discontinued Operations
during such period and, during any period ending on or before December 31,
2008, all cash charges from Discontinued Operations during such period (provided
that in no event shall the amount of cash charges from Discontinued Operations
added back to Consolidated Net Income for purposes of determining Consolidated
EBITDA in the aggregate for the period from the Closing Date through December
31, 2008, exceed $100,000,000), (v) without duplication of non-cash charges in
the foregoing clause (iv), all non-cash and nonrecurring charges (including,
without limitation, all non-cash charges for rent acceleration, goodwill
impairment or any other asset impairment charges) and, without duplication, all
non-cash expenses incurred for the issuance of employee stock options and other
stock based compensation in accordance with Financial Accounting Standards
Board Statement No. 123 (revised 2004), and (vi) extraordinary charges, minus
to the extent included in such Consolidated Net Income, all nonrecurring and
extraordinary gains for such period.


 


6

















 


“Consolidated EBITR” means, for any period, an amount equal to
Consolidated EBITDA of the Company and its Subsidiaries plus, without
duplication, the consolidated rental expense of the Company and its
Subsidiaries (determined in accordance with GAAP and net of related sublease
income) for such period minus, to the extent included in the calculation of
Consolidated EBITDA, depreciation and amortization expense.


 


“Consolidated Fixed Charge Coverage Ratio” means, as of any date
of determination, the ratio of (a) the Consolidated EBITR for the period of the
four fiscal quarters most recently ended for which the Company has delivered
financial statements pursuant to Section 6.01(a), to (b)
Consolidated Fixed Charges for such period.


 


“Consolidated Fixed Charges” means, for any period, for the
Company and its Subsidiaries on a consolidated basis, the sum of, without
duplication, (a) all Consolidated Interest Charges (excluding fees and expenses
payable in connection with the closing of the Loan Documents) and (b)  all rental expense (determined in accordance
with GAAP and net of all related sublease rental income).


 


“Consolidated Funded Indebtedness” means, as of any date of
determination, for the Company and its Subsidiaries on a consolidated basis,
the sum of (a) the outstanding principal amount of all obligations, whether
current or long-term, for borrowed money (including Obligations hereunder) and
all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct
obligations arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar instruments,
(d) all obligations in respect of the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of
business), (e) Attributable Indebtedness in respect of capital leases and
Synthetic Lease Obligations, (f) without duplication, all Guarantees with
respect to outstanding Indebtedness of the types specified in clauses (a)
through (e) above of Persons other than the Company or any Subsidiary, and (g)
all Indebtedness of the types referred to in clauses (a) through (f) above of
any partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which the Company or a Subsidiary
is a general partner or joint venturer, unless such Indebtedness is expressly
made non-recourse to the Company or such Subsidiary; provided, however,
that the definition of Consolidated Funded Indebtedness shall not include any
outstanding principal amounts for new Obligations borrowed and advanced
hereunder between December 20 and December 31 of each year; provided
that the total of all new Obligations not included in the definition of
Consolidated Funded Indebtedness pursuant to the first proviso of this
paragraph, shall (i) be repaid on or before January 10 of the following year,
(ii) not exceed $75,000,000 at any time, (iii) only be excluded from the
definition of Consolidated Funded Indebtedness as of December 31 of each
applicable year and not at any other date, and (iv) only be excluded from the
definition of Consolidated Funded Indebtedness for the express purpose of
determining the Consolidated Leverage Ratio for use in determining the
Applicable Rate at December 31 of each year, based on such Consolidated
Leverage Ratio.


 


“Consolidated Interest Charges” means, for any period, for the
Company and its Subsidiaries on a consolidated basis, the sum of (a) all
interest, premium payments, debt discount, fees, charges and related expenses
of the Company and its Subsidiaries in connection


 


7

















 


with borrowed money (including
capitalized interest) or in connection with the deferred purchase price of
assets, in each case to the extent treated as interest in accordance with GAAP,
and (b) the portion of rent expense of the Company and its Subsidiaries with
respect to such period under capital leases that is treated as interest in
accordance with GAAP.


 


“Consolidated Leverage Ratio” means, as of any date of
determination, the ratio of (a) Consolidated Funded Indebtedness as of such
date to (b) the Consolidated EBITDA for the period of the four fiscal quarters
most recently ended for which the Company has delivered financial statements
pursuant to Section 6.01(a) or (b).


 


“Consolidated Net Income” means, for any period, for the Company
and its Subsidiaries on a consolidated basis, the net income of the Company and
its Subsidiaries, calculated in accordance with GAAP, for that period.


 


“Consolidated Net Revenue” means, for any period, for the
Company and its Subsidiaries on a consolidated basis, the total net revenue of
the Company and its Subsidiaries, calculated in accordance with GAAP, for that
period.


 


“Consolidated Net Worth” means, as of any date of determination,
for the Company and its Subsidiaries on a consolidated basis, Shareholders’
Equity of the Company and its Subsidiaries on that date.


 


“Contractual Obligation” means, as to any Person, any provision
of any security issued by such Person or of any material agreement, instrument
or other undertaking to which such Person is a party or by which it or any of
its property is bound.


 


“Control” has the meaning specified in the definition of “Affiliate.”


 


“Credit Extension” means each of the following: (a) a Borrowing
and (b) an L/C Credit Extension.


 


“Debtor Relief Laws” means the Bankruptcy Code of the United
States, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions, including the jurisdiction in which the European
Borrower is incorporated or organized, from time to time in effect and
affecting the rights of creditors generally.


 


“Default” means any event or condition that constitutes an Event
of Default or that, with the giving of any notice, the passage of time, or
both, would be an Event of Default.


 


“Default Rate” means an interest rate equal to (a) in the case
of Eurocurrency Rate Loans, the sum of (i) the Eurocurrency Rate for such
Loans, plus (ii) the Applicable Rate applicable to such Loans, plus
(iii) 2% per annum, (b) in the case of Base Rate Loans and for all other
purposes, the sum of (i) the Base Rate then in effect plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per
annum and (c) in the case of Federal Funds Rate


 


8

















 


Loans, the sum of (i) the
Federal Funds Rate for such Loans, plus (ii) the Applicable Rate
applicable to such Loans, plus (iii) 2% per annum.


 


“Defaulting Lender” means any Lender that (a) has failed to fund
any portion of the Committed Loans, participations in L/C Obligations or
participations in Swing Line Loans required to be funded by it hereunder within
one Business Day of the date required to be funded by it hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any other Lender
any other amount required to be paid by it hereunder within one Business Day of
the date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.


 


“Discontinued Operations” means Subsidiaries of the Company as
of the Closing Date set forth on Schedule 1.01(a) hereto.


 


“Disposition” or “Dispose” means the sale, transfer,
license, lease or other disposition (including any sale and leaseback
transaction) of any property by any Person, including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts
receivable or any rights and claims associated therewith.


 


“DOE” means the United States Department of Education and any
successor agency administering federal student financial assistance under Title
IV.


 


“DOE Ratio” means the Company ‘s composite score as of any
fiscal year end, as determined by the Secretary of the DOE pursuant to Section
668.172 of 34 C.F.R.


 


“Dollar” and “$” mean lawful money of the United States.


 


“Dollar Equivalent” means, at any time, (a) with respect to any
amount denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined by the Administrative Agent or the L/C Issuer, as the
case may be, at such time on the basis of the Spot Rate (determined in respect
of the most recent Revaluation Date) for the purchase of Dollars with such
Alternative Currency.


 


“Domestic Subsidiary” means any Subsidiary that is organized
under the laws of any political subdivision of the United States.


 


“Educational Institution” shall mean each of the Subsidiaries of
the Company and any other Acquisition pursuant to a Permitted Acquisition, in
each case, which constitutes an Eligible Facility and satisfies clause (ii) of
the definition of Permitted Acquisitions.


 


“Eligible Assignee” means any Person that meets the requirements
to be an assignee under Section 10.07(b)(iii), (v) and (vi)
(subject to such consents, if any, as may be required under Section
10.07(b)(iii)).


 


“Eligible Facility” means a vocational or similar educational
institution or any institution involved in the offering of short-term or
long-term educational corporate seminar training.


 


9

















 


“Eligible Student Accounts Receivable” means accounts receivable
from students that have been previously written-off or are fully reserved
against by the applicable Educational Institution in the calculation of
allowance for doubtful accounts in compliance with the Company’s accounting
policies.


 


“EMU” means the economic and monetary union in accordance with
the Treaty of Rome 1957, as amended by the Single European Act 1986, the
Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998, as amended from
time to time.


 


“EMU Legislation” means the legislative measures of the European
Council for the introduction of, changeover to or operation of a single or
unified European currency (whether known, as the “euro” or otherwise).


 


“Engagement Letter” means that certain Engagement Letter, dated
as of September 13, 2007, among the Company, the Administrative Agent and the
Arranger.


 


“Environmental Laws” means any and all Federal, state, local,
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or
governmental restrictions relating to pollution and the protection of the
environment or the release of any materials into the environment, including
those related to hazardous substances or wastes, air emissions and discharges
to waste or public systems.


 


Environmental Liability” means any liability,
contingent or otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities), of the Borrowers,
any other Loan Party or any of their respective Subsidiaries directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.


 


“ERISA” means the Employee Retirement Income Security Act of
1974, as amended.


 


“ERISA Affiliate” means any trade or business (whether or not
incorporated) under common control with the Company within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).


 


“ERISA Event” means (a) an unwaived Reportable Event with
respect to a Pension Plan; (b) a withdrawal by the Company or any ERISA
Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in Section 4001(a)(2)
of ERISA) or a cessation of operations that is treated as such a withdrawal
under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the
Company or any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of intent
to terminate, the treatment of a Plan amendment as a termination under Sections
4041 or 4041A of ERISA, or the commencement of proceedings


 


10

















 


by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Company
or any ERISA Affiliate.


 


“Euro” and “EUR” mean the lawful currency of the
Participating Member States introduced in accordance with the EMU Legislation.


 


“Eurocurrency Rate” means for any Interest Period with respect
to a Eurocurrency Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated
by the Administrative Agent from time to time) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, for deposits in the relevant currency (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period. If such
rate is not available at such time for any reason, then the “Eurocurrency Rate”
for such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in the relevant currency
for delivery on the first day of such Interest Period in Same Day Funds in the
approximate amount of the Eurocurrency Rate Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America’s London Branch (or other Bank of America
branch or Affiliate) to major banks in the London or other offshore interbank
market for such currency at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest Period.


 


“Eurocurrency Rate Loan” means a Committed Loan that bears interest
at a rate based on the Eurocurrency Rate. Eurocurrency Rate Loans may be
denominated in Dollars or in an Alternative Currency; provided, that all
Committed Loans to the European Borrower shall be denominated in an Alternative
Currency. All Loans denominated in an Alternative Currency must be Eurocurrency
Rate Loans.


 


“European Borrower” has the meaning specified in the
introductory paragraph hereto.


 


“Event of Default” has the meaning specified in Section 8.01.


 


“Existing Credit Agreement” means that certain Credit Agreement,
dated as of December 19, 2002, among the Borrowers, the lenders and/or agents
from time to time party thereto, and Bank of America, as administrative agent,
as amended, restated or otherwise modified from time to time.


 


“Existing Letters of Credit” means those letters of credit
specified on Schedule 1.01(b).


 


“Federal Funds Rate” means, for any day, the rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank on the
Business Day next succeeding such day; provided that (a) if such day is
not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on


 


11

















 


the next preceding Business Day
as so published on the next succeeding Business Day, and (b) if no such rate is
so published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate (rounded upward, if necessary, to a whole
multiple of 1/100 of 1%) charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.


 


“Federal Funds Rate Loan” means a Committed Loan that bears
interest at a rate based on the Federal Funds Rate. Federal Funds Rate Loans
only may be denominated in Dollars.


 


“Fiscal Year” means any period of twelve consecutive calendar
months ending on December 31; references to a Fiscal Year with a number
corresponding to any calendar year (e.g., the “2001 Fiscal Year”) refer to the
Fiscal Year ending on the December 31 occurring during such calendar year.


 


“Foreign Lender” has the meaning specified in Section
10.15(a)(i).


 


“FRB” means the Board of Governors of the Federal Reserve System
of the United States.


 


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


 


“GAAP” means generally accepted accounting principles in the
United States set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or
such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the
circumstances as of the date of determination, consistently applied.


 


“Governmental Authority” means any nation or government, any
state or other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court, administrative tribunal, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government.


 


“Guarantors” means, collectively, each Domestic Subsidiary of
the Company, whether now existing or hereafter arising.


 


“Guarantee” means, as to any Person, (a) any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation payable or
performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment or performance
of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income or


 


12

















 


cash flow of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other
manner the obligee in respect of such Indebtedness or other obligation of the
payment or performance thereof or to protect such obligee against loss in
respect thereof (in whole or in part), or (b) any Lien on any assets of such
Person securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such Person.
The amount of any Guarantee shall be deemed to be an amount equal to the stated
or determinable amount of the related primary obligation, or portion thereof,
in respect of which such Guarantee is made or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof as determined
by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a
corresponding meaning.


 


“Hazardous Materials” means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious
or medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.


 


“Honor Date” has the meaning specified in Section 2.03(c)(i).


 


“Increase Effective Date” has the meaning specified in Section
2.14(b).


 


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


 


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


 


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


 


(c)           net obligations of
such Person under any Swap Contract;


 


(d)           all obligations of
such Person to pay the deferred purchase price of property or services (other
than trade accounts payable in the ordinary course of business and, except for
those being contested in good faith, not past due for more than 90 days after
the due date on which each such trade payable or account payable was created);


 


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


 


(f)            capital leases and
Synthetic Lease Obligations;


 


13

















 


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


 


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


 


For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited liability company) in which
such Person is a general partner or a joint venturer, unless such Indebtedness
is expressly made non-recourse to such Person. The amount of any net obligation
under any Swap Contract on any date shall be deemed to be the Swap Termination
Value thereof as of such date. The amount of any capital lease or Synthetic
Lease Obligation as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date.


 


“Indemnified Liabilities” has the meaning specified in Section
10.05.


 


“Indemnitees” has the meaning specified in Section 10.05.


 


“Information” has the meaning specified in Section 10.08.


 


“Interest Payment Date” means, (a) as to any Loan other than a
Base Rate Loan or Federal Funds Rate Loan, the last day of each Interest Period
applicable to such Loan and the Maturity Date; provided, however,
that if any Interest Period for a Eurocurrency Rate Loan exceeds three months,
the respective dates that fall every three months after the beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as to any Base
Rate Loan (including a Swing Line Loan) or Federal Funds Rate Loan, the last
Business Day of each March, June, September and December and the Maturity Date.


 


“Interest Period” means, as to each Eurocurrency Rate Loan, the
period commencing on the date such Eurocurrency Rate Loan is disbursed or
converted to or continued as a Eurocurrency Rate Loan and ending on the date
one, two, three or six months thereafter, as selected by the applicable
Borrower in its Committed Loan Notice; provided that:


 


(i)            any Interest Period
that would otherwise end on a day that is not a Business Day shall be extended
to the next succeeding Business Day unless, in the case of a Eurocurrency Rate
Loan, such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;


 


(ii)           any Interest Period
pertaining to a Eurocurrency 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 calendar month at the end of such Interest Period; and


 


(iii)          no Interest Period
shall extend beyond the Maturity Date.


 


14

















 


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


 


“IP Rights” has the meaning set forth in Section 5.17.


 


“IRS” means the United States Internal Revenue Service.


 


“ISP” means, with respect to any Letter of Credit, the “International
Standby Practices 1998” published by the Institute of International Banking Law
& Practice, Inc. (or such later version thereof as may be in effect at the
time of issuance).


 


“Issuer Documents” means with respect to any Letter of Credit,
the Letter of Credit Application, and any other document, agreement and
instrument entered into by the L/C Issuer and the Company (or any Subsidiary)
or in favor of the L/C Issuer and relating to any such Letter of Credit.


 


“Judgment Currency” has the meaning specified in Section
10.17.


 


“Laws” means, collectively, all international, foreign, Federal,
state and local statutes, treaties, rules, guidelines, regulations, ordinances,
codes and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.


 


“L/C Advance” means, with respect to each Lender, such Lender’s
funding of its participation in any L/C Borrowing in accordance with its Pro
Rata Share.


 


“L/C Borrowing” means an extension of credit resulting from a
drawing under any Letter of Credit which has not been reimbursed by the Company
on the Honor Date or refinanced as a Committed Borrowing.


 


“L/C Credit Extension” means, with respect to any Letter of
Credit, the issuance thereof or extension of the expiry date thereof, or the
renewal or increase of the amount thereof.


 


“L/C Issuer” means Bank of America in its capacity as issuer of
Letters of Credit hereunder, or any successor issuer of Letters of Credit
hereunder.


 


15

















 


“L/C Obligations” means, as at any date of determination, the
aggregate undrawn amount of all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of Credit,
the amount of such Letter of Credit shall be determined in accordance with Section
1.07. For all purposes of this Agreement, if on any date of determination a
Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of
Credit shall be deemed to be “outstanding” in the amount so remaining available
to be drawn.


 


“Lender” has the meaning specified in the introductory paragraph
hereto and, as the context requires, includes each Lender with a commitment to
make Committed Loans as designated in Section 2.01, or in an Assignment
and Assumption Agreement or a joinder pursuant to which such Lender becomes a
party hereto, an L/C Issuer and the Swing Line Lender.


 


“Lending Office” means, as to any Lender, the office or offices
of such Lender described as such in such Lender’s Administrative Questionnaire,
or such other office or offices as a Lender may from time to time notify the
Borrowers and the Administrative Agent.


 


“Letter of Credit” means any standby letter of credit issued
hereunder and Existing Letters of Credit.


 


“Letter of Credit Application” means an application and
agreement for the issuance or amendment of a Letter of Credit in the form from
time to time in use by the L/C Issuer.


 


“Letter of Credit Expiration Date” means the day that is seven
days prior to the Maturity Date (or, if such day is not a Business Day, the
next preceding Business Day).


 


“Letter of Credit Sublimit” means an amount equal to the lesser
of (a) $50,000,000 and (b) the unused amount of the Aggregate Commitments at
such time. The Letter of Credit Sublimit is part of, and not in addition to,
the Aggregate Commitments.


 


“Lien” means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge, or
preference, priority or other security interest or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement, and any financing lease having substantially the same
economic effect as any of the foregoing).


 


“Loan” means an extension of credit by a Lender to a Borrower
under Article II in the form of a Committed Loan or a Swing Line Loan


 


“Loan Documents” means this Agreement, each Note, the Engagement
Letter, the Subsidiary Guaranty, the Parent Guaranty, any Issuer Documents,
each Swap Contract with a Swap Bank and each Cash Management Services Agreement
with a Cash Management Bank.


 


“Loan Parties” means, collectively, the Borrowers, and each
Guarantor.


 


16

















 


“Maintenance Capital Expenditures” means an amount equal to 5%
of Company’s Consolidated Net Revenue for the applicable trailing four quarter
period.


 


“Material Adverse Effect” means (a) a material adverse change
in, or a material adverse effect upon, the operations, business, properties,
liabilities (actual or contingent), condition (financial or otherwise) or
prospects of the Company or the Company and its Subsidiaries taken as a whole;
(b) a material impairment of the ability of the Loan Parties, taken as a whole,
to perform their obligations under the Loan Documents; or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability
against any Loan Party of any Loan Document to which it is a party.


 


“Maturity Date” means October 31, 2012.


 


“Multiemployer Plan” means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Company or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
five plan years, has made or been obligated to make contributions.


 


“Nonrenewal Notice Date” has the meaning specified in Section
2.03(b).


 


“Note” means a promissory note made by the Company or the European
Borrower in favor of a Lender evidencing Loans made by such Lender,
substantially in the form of Exhibits C-1 and C-2.


 


“Obligations” means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document (including any Swap Contract and any Cash Management Services
Agreement entered into after the date of this Agreement to which a Lender or an
Affiliate of a Lender is a party) or otherwise with respect to any Loan or
Letter of Credit, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest and fees that accrue after the
commencement by or against any Loan Party or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in
such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding. Without limiting the generality of the foregoing,
the Obligations of any Loan Party under the Loan Documents include (a) the
obligation to pay principal, interest, Letter of Credit commissions, charges,
expenses, fees, Attorney Costs and disbursements, indemnities and other amounts
payable by any Loan Party under any Loan Document and (b) the obligations of
any Loan Party to reimburse any amount in respect of any of the foregoing that
any Lender, in its sole discretion, may elect to pay or advance on behalf of
such Loan Party.


 


“Organization Documents” means, (a) with respect to any
corporation, the certificate or articles of incorporation and the bylaws (or
equivalent or comparable constitutive documents with respect to any non-U.S.
jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement;
and (c) with respect to any partnership, joint venture, trust or other form of
business entity, the partnership, joint venture or other applicable agreement
of formation or organization and any agreement, instrument, filing or notice
with respect thereto filed in connection with its formation or


 


17

















 


organization with the
applicable Governmental Authority in the jurisdiction of its formation or organization
and, if applicable, any certificate or articles of formation or organization of
such entity.


 


“Other Taxes” has the meaning specified in Section 3.01(b).


 


“Outstanding Amount” means (i) with respect to Committed Loans
and Swing Line Loans on any date, the aggregate outstanding principal Dollar
Equivalent amount thereof after giving effect to any borrowings and prepayments
or repayments of Committed Loans and Swing Line Loans, as the case may be,
occurring on such date; and (ii) with respect to any L/C Obligations on any
date, the Dollar Equivalent amount of such L/C Obligations on such date after
giving effect to any L/C Credit Extension occurring on such date and any other
changes in the aggregate amount of the L/C Obligations as of such date, including
as a result of any reimbursements of outstanding unpaid drawings under any
Letters of Credit or any reductions in the maximum amount available for drawing
under Letters of Credit taking effect on such date.


 


“Overnight Rate” means, for any day, (a) with respect to any
amount denominated in Dollars, the Federal Funds Rate and (b) with respect to
any amount denominated in an Alternative Currency, the rate of interest per
annum at which overnight deposits in the applicable Alternative Currency, in an
amount approximately equal to the amount with respect to which such rate is
being determined, would be offered for such day by a branch or Affiliate of
Bank of America located in the applicable interbank market for such currency to
major banks in such interbank market.


 


“Parent” means the Company.


 


“Parent Guaranty” means the Guaranty made by the Parent in favor
of the Administrative Agent on behalf of the Lenders, substantially in the form
of Exhibit F-2 hereto.


 


“Participant” has the meaning specified in Section 10.07(d).


 


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


 


“PBGC” means the Pension Benefit Guaranty Corporation.


 


“Pension Plan” means any “employee pension benefit plan” (as
such term is defined in Section 3(2) of ERISA), other than a Multiemployer
Plan, that is subject to Title IV of ERISA and is sponsored or maintained by
the Company or any ERISA Affiliate or to which the Company or any ERISA
Affiliate contributes or has an obligation to contribute, or in the case of a
multiple employer or other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.


 


“Permitted Acquisitions” means Acquisitions by the Company or
any of its Subsidiaries of Persons and/ or assets where no Default or Event of
Default exists either before or after the proposed Permitted Acquisition and
that meet each of the following criteria:


 


18














 


(i)            the Persons or
assets to be acquired are in (or used in) a business substantially related or
incidental to those lines of business conducted by the Company and its
Subsidiaries (including a training services business) and the prior, effective
written consent or approval of such Acquisition of the board of directors or
equivalent governing body, or the stockholders, as appropriate, of the other
party or parties has been obtained, would not be perceived by the Person or
assets to be acquired as hostile in nature;


 


(ii)           any Acquisitions
where, if the total consideration exceeds $25,000,000, and, if the target is a
Title IV eligible institution or otherwise subject to requirements of any
accrediting agency, such target is an accredited, Title IV eligible institution,
and/or is in good standing with all applicable accrediting agencies, it being
understood that, for purposes hereof, the failure to be in good standing means
the target shall have received an order, notice or other decision from a state
that has given such college authority to provide postsecondary education in
that state that such college’s authority to provide postsecondary education is
or will be withdrawn, revoked or terminated.


 


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


 


“Plan” means any “employee benefit plan” (as such term is
defined in Section 3(3) of ERISA) established by the Company or, with respect
to any such plan that is subject to Section 412 of the Code or Title IV of
ERISA, any ERISA Affiliate.


 


“Platform” has the meaning specified in Section 6.02.


 


“Pro Rata Share” means, with respect to each Lender at any time,
a fraction (expressed as a percentage, carried out to the ninth decimal place),
the numerator of which is the amount of the Commitment of such Lender at such
time and the denominator of which is the amount of the Aggregate Commitments at
such time; provided that if the commitment of each Lender to make Loans
and the obligation of the L/C Issuer to make L/C Credit Extensions have been
terminated pursuant to Section 8.02, then the Pro Rata Share of each
Lender shall be determined based on the Pro Rata Share of such Lender
immediately prior to such termination and after giving effect to any subsequent
assignments made pursuant to the terms hereof. The initial Pro Rata Share of
each Lender is set forth opposite the name of such Lender on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable.


 


“Public Lender” has the meaning specified in Section 6.02.


 


“Register” has the meaning specified in Section 10.07(c).


 


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


 


“Reportable Event” means any of the events set forth in Section
4043(c) of ERISA, other than events for which the 30 day notice period has been
waived.


 


19

















 


“Request for Credit Extension” means (a) with respect to a
Borrowing, conversion or continuation of Committed Loans, a Committed Loan
Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit
Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan
Notice.


 


“Required Lenders” means, as of any date of determination, three
or more Lenders having more than 50% of the sum of (a) the Aggregate
Commitments plus (b) the Dollar Equivalent of Canadian Commitments of
the Lenders or, if the commitment of each Lender to make Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section 8.02 or otherwise, three or more Lenders holding in
the aggregate more than 50% of the sum of (a) the Total Outstandings (with the
aggregate amount of each Lender’s risk participation and funded participation
in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for
purposes of this definition) and (b) the aggregate outstanding Dollar
Equivalent amount of loans and letters of credit of the Lenders under the
Canadian Facility Agreement; provided that the Commitment of, and the
portion of the Total Outstandings held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of Required Lenders.


 


“Responsible Officer” means the chief executive officer,
president, chief financial officer, treasurer, secretary, assistant treasurer
or assistant secretary of a Loan Party. Any document delivered hereunder that
is signed by a Responsible Officer of a Loan Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or
other action on the part of such Loan Party and such Responsible Officer shall
be conclusively presumed to have acted on behalf of such Loan Party.


 


“Restricted Payment” means any dividend or other distribution
(whether in cash, securities or other property) with respect to any capital
stock or other equity interest of the Company or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such capital stock or other
equity interest or of any option, warrant or other right to acquire any such
capital stock or other equity interest or on account of any warrant or other
right to acquire any such capital stock or other equity interest, or on account
of any return of capital to the Company’s stockholders, partners or members (or
the equivalent Persons thereof) or the issuance of any equity interest or
acceptance of any capital contributions.


 


“Revaluation Date” means each of the following:  (a) each date of a Borrowing of a
Eurocurrency Rate Loan denominated in an Alternative Currency, (b) each date of
a continuation of a Eurocurrency Rate Loan denominated in an Alternative
Currency pursuant to Section 2.02 or Section 2.16, (c) each date
of issuance of a Letter of Credit denominated in an Alternative Currency, (d)
each date of an amendment of any such Letter of Credit having the effect of
increasing the amount thereof, and (e) such additional dates as the
Administrative Agent or the Required Lenders shall specify.


 


“Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.


 


20

















 


“Same Day Funds” means (a) with respect to disbursements and
payments in Dollars, immediately available funds, and (b) with respect to
disbursements and payments in an Alternative Currency, same day or other funds
as may be determined by the Administrative Agent to be customary in the place
of disbursement or payment for the settlement of international banking transactions
in the relevant Alternative Currency.


 


“SEC” means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.


 


“Secretary” means the Secretary of the DOE or an official or
employee of the DOE acting for the Secretary under a delegation of authority.


 


“Shareholders’ Equity” means, as of any date of determination,
consolidated shareholders’ equity of the Company and its Subsidiaries as of
that date determined in accordance with GAAP.


 


“Special Notice Currency” 
means at any time an Alternative Currency, other than the currency of
Japan or of a country that is a member of the Organization for Economic
Cooperation and Development at such time located in North America or Europe.


 


“Spot Rate” for a currency means the rate quoted by Bank of
America as the spot rate for the purchase by Bank of America of such currency
with another currency through its principal foreign exchange trading office at
approximately 11:00 a.m., New York time, on the date two Business Days prior to
the date as of which the foreign exchange computation is made.


 


“Sterling” means the lawful currency of the United Kingdom.


 


“Subsidiary” of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares or securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or
both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary”
or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the
Company.


 


“Subsidiary Guaranty” means the Guaranty and Subordination
Agreement made by the Guarantors in favor of the Administrative Agent on behalf
of the Lenders, substantially in the form of Exhibit F-1.


 


“Swap Bank” means any Lender or an Affiliate of a Lender in its
capacity as a party to a Swap Contract entered into after the date of this
Agreement.


 


“Swap Contract” means (a) any and all rate swap transactions,
basis swaps, credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options, bond or bond price or bond index swaps or
options or forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange transactions, cap
transactions, floor


 


21

















 


transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of
the foregoing), whether or not any such transaction is governed by or subject
to any master agreement, and (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.


 


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


 


“Swing Line” means the revolving credit facility made available
by the Swing Line Lender pursuant to Section 2.04.


 


“Swing Line Borrowing” means a borrowing of a Swing Line Loan
pursuant to Section 2.04.


 


“Swing Line Lender” means Bank of America in its capacity as
provider of Swing Line Loans, or any successor swing line lender hereunder.


 


“Swing Line Loan” has the meaning specified in Section
2.04(a).


 


“Swing Line Loan Notice” means a notice of a Swing Line
Borrowing pursuant to Section 2.04(b), which, if in writing, shall be
substantially in the form of Exhibit B.


 


“Swing Line Sublimit” means an amount equal to the lesser of (a)
$10,000,000  and (b) the Aggregate
Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.


 


“Synthetic Lease Obligation” means the monetary obligation of a
Person under (a) a so-called synthetic, off-balance sheet or tax retention
lease, or (b) an agreement for the use or possession of property creating
obligations that do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).


 


“TARGET Day” means any day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if
such clearing system


 


22

















 


ceases to be operative, such
other payment system (if any) determined by the Administrative Agent to be a
suitable replacement) is open for settlement of payments.


 


“Taxes” has the meaning specified in Section 3.01(a).


 


“Title IV” means Title IV of the Higher Education Act of 1965,
as amended, 20 U.S.C.A. (S)1070, and any amendments or successor statutes
thereto.


 


“Title IV Programs” means the Title IV Programs as defined in Section
668.1(c) of 34 C.F.R.


 


“Total Outstandings” means the aggregate Outstanding Amount of
all Loans and all L/C Obligations.


 


“Type” means, with respect to a Committed Loan, its character as
a Base Rate Loan, Federal Funds Rate Loan or a Eurocurrency Rate Loan.


 


“Unfunded Pension Liability” means the excess of a Pension Plan’s
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan’s assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.


 


“United States” and “U.S.” mean the United States of
America.


 


“Unreimbursed Amount” has the meaning specified in Section
2.03(c)(i).


 


1.02      Other
Interpretive Provisions. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:


 


(a)           The meanings of defined terms are
equally applicable to the singular and plural forms of the defined terms.


 


(b)           (i)            The
words “herein,” “hereto,” “hereof” and “hereunder”
and words of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.


 


(ii)           Article, Section,
Exhibit and Schedule references are to the Loan Document in which such
reference appears.


 


(iii)          The term “including”
is by way of example and not limitation.


 


(iv)          The term “documents”
includes any and all instruments, documents, agreements, certificates, notices,
reports, financial statements and other writings, however evidenced, whether in
physical or electronic form.


 


(c)           In the computation of periods of time
from a specified date to a later specified date, the word “from” means “from
and including;” the words “to” and “until” each mean “to but
excluding;” and the word “through” means “to and including.”


 


23

















 


(d)           Each reference to “basis points” or “bps”
shall be interpreted in accordance with the convention that 100 bps = 1.0%.


 


(e)           Section headings herein and in the
other Loan Documents are included for convenience of reference only and shall
not affect the interpretation of this Agreement or any other Loan Document.


 


1.03      Accounting
Terms. (a)  All
accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial
ratios and other financial calculations) required to be submitted pursuant to
this Agreement shall be prepared in conformity with, GAAP applied on a consistent
basis, as in effect from time to time, applied in a manner consistent with that
used in preparing the Audited Financial Statements, except as otherwise
specifically prescribed herein.


 


(a)           If at any time any change in GAAP
would affect the computation of any financial ratio or requirement set forth in
any Loan Document, and either the Company or the Required Lenders shall so
request, the Administrative Agent, the Lenders and the Company shall negotiate
in good faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided  that, until so amended, (i) such
ratio or requirement shall continue to be computed in accordance with GAAP
prior to such change therein and (ii) the Company shall provide to the
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.


 


(b)           If at any time any regulatory change
in the DOE Ratio would affect the computation of the DOE Ratio or Section
7.11(d), and either the Company or the Required Lenders shall so request,
the Administrative Agent, the Lenders and the Company shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in the DOE Ratio; provided that, until
so amended, such ratio or requirement shall continue to be computed in
accordance with regulations referred to in the definition of the DOE Ratio
prior to such change therein.


 


1.04      Rounding.
Any financial ratios required to be maintained by the Company pursuant to this
Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of
places by which such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number).


 


1.05      References
to Agreements and Laws. Unless otherwise expressly
provided herein, (a) references to Organization Documents, agreements
(including the Loan Documents) and other contractual instruments shall be
deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other modifications are
not prohibited by any Loan Document; and (b) references to any Law shall
include all statutory and


 


24

















 


regulatory
provisions consolidating, amending, replacing, supplementing or interpreting
such Law.


 


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


 


1.07      Letter
of Credit Amounts. Unless otherwise specified, all
references herein to the amount of a Letter of Credit at any time shall be
deemed to mean the maximum face amount of such Letter of Credit after giving
effect to all increases thereof contemplated by such Letter of Credit or the
Letter of Credit Application therefor, whether or not such maximum face amount
is in effect at such time.


 


1.08      Exchange
Rates; Currency Equivalents.


 


(a)           The Administrative Agent shall
determine the Spot Rates as of each Revaluation Date to be used for calculating
Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts
denominated in Alternative Currencies. Such Spot Rates shall become effective
as of such Revaluation Date and shall be the Spot Rates employed in converting
any amounts between the applicable currencies until the next Revaluation Date
to occur. Except for purposes of financial statements delivered by Loan Parties
hereunder or calculating financial covenants hereunder or except as otherwise
provided herein, the applicable amount of any currency for purposes of the Loan
Documents shall be such Dollar Equivalent amount as so determined by the
Administrative Agent.


 


(b)           Wherever in this Agreement in
connection with a Borrowing, conversion, continuation or prepayment of a Loan
or the issuance, amendment or extension of a Letter of Credit, an amount, such
as a required minimum or multiple amount, is expressed in Dollars, but such
Borrowing, Loan or Letter of Credit is denominated in an Alternative Currency,
such amount shall be the relevant Alternative Currency Equivalent of such
Dollar amount (rounded to the nearest 1,000 units of such Alternative
Currency), as determined by the Administrative Agent.


 


1.09      Additional
Alternative Currencies. The Borrowers may from time to
time request that Committed Loans be made in a currency other than those
specifically listed in the definition of “Alternative Currency;” provided
that such requested currency otherwise meets the requirements set forth in such
definition. Any such request shall be made to the Administrative Agent (which
shall promptly notify each Lender thereof) not later than 11:00 a.m., Chicago
time, 10  Business Days prior to the date
of the desired loans. Each Lender shall notify the Administrative Agent, not
later than 11:00 a.m., Chicago time, 5 Business Days after receipt of such
request whether it consents, in its sole discretion, to making Committed Loans
in such requested currency. Any failure by a Lender to respond to such request
within the time period specified in the preceding sentence shall be deemed to
be a refusal by such Lender to make Committed Loans in such requested currency.
If all the Lenders consent to making Committed Loans in such requested
currency, the Administrative Agent shall so notify the Borrowers and such
currency shall thereupon be deemed for all purposes to be an Alternative
Currency hereunder.


 


25

















 


1.10      Redenomination
of Certain Alternative Currencies.


 


(a)           Each obligation of the Borrowers 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 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 Borrowing in the
currency of such member state is outstanding immediately prior to such date,
such replacement shall take effect, with respect to such Borrowing, at the end
of the then current Interest Period.


 


(b)           Each provision of this 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.


 


ARTICLE II


THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01      Committed
Loans. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a “Committed
Loan”) to the Company in Dollars or, subject to Section 2.15, to the
Borrowers in one or more Alternative Currencies from time to time, on any
Business Day during the Availability Period, in an aggregate amount not to
exceed at any time outstanding the amount of such Lender’s Commitment; provided,
however, that after giving effect to any Committed Borrowing, the Dollar
Equivalent of (i) the Total Outstandings shall not exceed the Aggregate
Commitments, (ii) the aggregate Outstanding Amount of the Committed Loans of
any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount
of all L/C Obligations, plus such Lender’s Pro Rata Share of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Commitment, and (iii) the aggregate Outstanding Amount of all Loans and L/C
Obligations denominated in Alternative Currencies shall not exceed the
Alternative Currency Sublimit. Within the limits of each Lender’s Commitment,
and subject to the other terms and conditions hereof, the Borrowers may borrow
under this Section 2.01, prepay under Section 2.05, and reborrow
under this Section 2.01. Committed Loans may be Base Rate Loans or
Eurocurrency Rate Loans or, if available to all the Lenders, Federal Funds Rate
Loans, as further provided herein.


 


2.02      Borrowings,
Conversions and Continuations of Committed Loans.


 


(a)           Each Committed Borrowing, each
conversion of Committed Loans from one Type to the other, and each continuation
of Eurocurrency Rate Loans shall be made upon the applicable Borrower’s
irrevocable notice to the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Administrative Agent not later than 11:00
a.m. (i) three Business Days prior to the requested date of any Borrowing of,
conversion to or


 


26

















 


continuation of Eurocurrency
Rate Loans denominated in Dollars or of any conversion of Eurocurrency Rate
Loans denominated in Dollars to Base Rate Committed Loans, (ii) four Business
Days (or five Business Days in the case of a Special Notice Currency) prior to
the requested date of any Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans denominated in Alternative Currencies, and (iii) on the
requested date of any Borrowing of Base Rate Committed Loans. Each telephonic
notice by the Company pursuant to this Section 2.02 (a) must be
confirmed promptly by delivery to the Administrative Agent of a written
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the Company. Each Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans in Dollars shall be in a principal amount of $5,000,000
or a whole multiple of $1,000,000 in excess thereof. Each Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans in Alternative
Currencies shall be in a principal Dollar Equivalent amount of or approximating
$5,000,000. Except as provided in Sections 2.03(c) and 2.04(c),
each Borrowing of or conversion to Base Rate Committed Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.
Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether
the Borrowing is for the account of the Company or the European Borrower, (ii)
whether such Borrower is requesting a Committed Borrowing, a conversion of
Committed Loans from one Type to the other, or a continuation of Eurocurrency
Rate Loans, (iii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iv) the
principal amount of Committed Loans to be borrowed, converted or continued, (v)
the Type of Committed Loans to be borrowed or to which existing Committed Loans
are to be converted, (vi) if applicable, the duration of the Interest Period
with respect thereto and (vii) the currency of the Committed Loans to be
borrowed; provided, however, that if as of the date of any
Committed Loan Notice requesting a Committed Borrowing, there are Swing Line
Loans and/or L/C Borrowings outstanding, the Borrowers shall be deemed to have
requested that a portion of the requested Committed Loans in a principal amount
equal to the outstanding principal amount of such Swing Line Loans and L/C
Borrowings be denominated in Dollars. If the Company fails to specify a
currency in a Committed Loan Notice requesting a Borrowing, then the Committed
Loans so requested shall be made in Dollars and if the European Borrower fails
to specify a currency in a Committed Loan Notice, then the Committed Loans so
requested shall be made in Euros. If a Borrower fails to specify a Type of
Committed Loan in a Committed Loan Notice or if the Borrowers fail to give a
timely notice requesting a conversion or continuation, then the applicable
Committed Loans shall be made as, or converted to, Base Rate Loans; provided,
however, that in the case of a failure to timely request a continuation
of Committed Loans denominated in Alternative Currencies, such Loans shall be
continued as Eurocurrency Rate Loans in their original currency with an
Interest Period of one month. Any automatic conversion to Base Rate Loans shall
be effective as of the last day of the Interest Period then in effect with
respect to the applicable Eurocurrency Rate Loans. If a Borrower requests a
Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any
such Committed Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month. No Committed Loan may
be converted into or continued as a Committed Loan denominated in a different
currency, but instead must be prepaid in the original currency of such Loan and
reborrowed in the other currency.


 


(b)           Following receipt of a Committed Loan
Notice, the Administrative Agent shall promptly notify each Lender of the
amount (and currency) of its Pro Rata Share of the applicable


 


27

















 


Committed Loans, and if no
timely notice of a conversion or continuation is provided by a Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans or continuation of Committed Loans denominated in
a currency other than Dollars, in each case as described in the preceding
subsection (a). In the case of a Committed Borrowing, each Lender shall make
the amount of its Committed Loan available to the Administrative Agent in Same
Day Funds at the Administrative Agent’s Office for the applicable currency not
later than 1:00 p.m., in the case of any Committed Loan denominated in Dollars,
and not later than the Applicable Time specified by the Administrative Agent in
the case of any Committed Loan in an Alternative Currency, in each case on the
Business Day specified in the applicable Committed Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 4.02
(and, if such Borrowing is the initial Credit Extension, Section 4.01),
the Administrative Agent shall make all funds so received available to the
applicable Borrower in like funds as received by the Administrative Agent
either by (i) crediting the account of such Borrower on the books of Bank of
America with the amount of such funds or (ii) wire transfer of such funds, in
each case in accordance with instructions provided to (and reasonably
acceptable to) the Administrative Agent by such Borrower; provided, however,
that if, on the date the Committed Loan Notice, with respect to such Committed  Borrowing, is given
by the Company, there are Swing Line Loans or L/C Borrowings outstanding, then
the proceeds of such Committed Borrowing shall be applied, first, to the
payment in full of any such L/C Borrowings, second, to the payment in
full of any such Swing Line Loans, and third, to the Company as provided
above.


 


(c)           Except as otherwise provided herein,
a Eurocurrency Rate Loan may be continued or converted only on the last day of
an Interest Period for such Eurocurrency Rate Loan. During the existence of a
Default, no Loans may be requested as, converted to or continued as
Eurocurrency Rate Loans without the consent of the Required Lenders, and the
Required Lenders may demand that (i) any or all of the then outstanding
Eurocurrency Rate Loans denominated in Dollars be converted immediately to Base
Rate Loans and (ii) any or all of the then outstanding Eurocurrency Rate Loans
denominated in an Alternative Currency be prepaid or, with respect to any
Eurocurrency Rate Loan for the account of the Company, redenominated into
Dollars in the amount of the Dollar Equivalent thereof on the last day of the
then current Interest Period with respect thereto.


 


(d)           The Administrative Agent shall
promptly notify the Company and the Lenders of the interest rate applicable to
any Interest Period for Eurocurrency Rate Loans upon determination of such
interest rate. At any time that Federal Funds Rate Loans are outstanding and
the weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System is not published for any Business Day,
the Administrative Agent shall notify the Company and the Lenders of the
average rate charged to Bank of America on such day promptly following the
public announcement of such amount. The determination of the Eurocurrency Rate
and Federal Funds Rate by the Administrative Agent shall be conclusive in the
absence of manifest error. At any time that Base Rate Loans are outstanding,
the Administrative Agent shall notify the Company and the Lenders of any change
in Bank of America’s prime rate used in determining the Base Rate promptly
following the public announcement of such change.


 


28

















 


(e)           After giving effect to all Committed
Borrowings, all conversions of Committed Loans from one Type to the other, and
all continuations of Committed Loans as the same Type, there shall not be more
than ten (10) Interest Periods in effect with respect to Committed Loans.


 


(f)            The failure of any Lender to make
any Loan to be made by it as part of any Committed Borrowing shall not relieve
any other Lender of its obligation, if any, hereunder to make its Loan on the
date of such Committed Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make any Loan to be made by such other Lender on
the date of any Committed Borrowing.


 


2.03      Letters
of Credit.


 


(a)           The Letter of Credit Commitment.


 


(i)            Subject to the
terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance
upon the agreements of the other Lenders set forth in this Section 2.03,
(1) from time to time on any Business Day during the period from the Closing
Date until the Letter of Credit Expiration Date, to issue Standby Letters of
Credit denominated in Dollars or in one or more Alternative Currencies for the
account of the Company, and to amend or renew Letters of Credit previously
issued by it, in accordance with subsection (b) below, and (2) to honor drafts
under the Letters of Credit; and (B) the Lenders severally agree to participate
in Letters of Credit issued for the account of the Company; provided
that the L/C Issuer shall not be obligated to make any L/C Credit Extension
with respect to any Letter of Credit, and no Lender shall be obligated to
participate in any Letter of Credit if as of the date of such L/C Credit
Extension, the Dollar Equivalent of (w) the Total Outstandings would exceed the
Aggregate Commitments, (x) the aggregate Outstanding Amount of the Committed
Loans of any Lender, plus such Lender’s Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata
Share of the Outstanding Amount of all Swing Line Loans, of such Lender would
exceed such Lender’s Commitment, (y) the Outstanding Amount of the L/C
Obligations would exceed the Letter of Credit Sublimit or (z) the aggregate
Outstanding Amount of all L/C Obligations and all Loans denominated in
Alternative Currencies would exceed the Alternative Currency Sublimit. Within
the foregoing limits, and subject to the terms and conditions hereof, the
Company’s ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Company may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed. All Existing Letters of Credit shall be deemed to have
been issued pursuant hereto, and from and after the Closing Date shall be
subject to and governed by the terms and conditions hereof.


 


(ii)           The L/C Issuer
shall be under no obligation to issue any Letter of Credit if:


 


(A)          any order, judgment
or decree of any Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain the L/C Issuer from issuing such Letter of
Credit, or any Law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any


 


29

















 


Governmental
Authority with jurisdiction over the L/C Issuer shall prohibit, or request that
the L/C Issuer refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon the L/C Issuer with
respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated hereunder) not
in effect on the Closing Date, or shall impose upon the L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on the Closing Date
and which the L/C Issuer in good faith deems material to it;


 


(B)           the expiry date of
such requested Letter of Credit would occur more than twelve months after the
date of issuance or last renewal, unless the Required Lenders have approved
such expiry date;


 


(C)           the expiry date of
such requested Letter of Credit would occur more than a year after the Letter of
Credit Expiration Date, unless all the Lenders have approved such expiry date
(provided, that any Letter of Credit outstanding after the Letter of Credit
Expiration Date shall be Cash Collaterized in accordance with Section
2.03(g));


 


(D)          the issuance of such
Letter of Credit would violate one or more policies of the L/C Issuer;


 


(E)           such Letter of
Credit is to be denominated in a currency other than Dollars or an Alternative
Currency or is a commercial letter of credit; or


 


(F)           such Letter of
Credit has automatic renewal provisions.


 


(iii)          The L/C Issuer
shall be under no obligation to amend any Letter of Credit if (A) the L/C
Issuer would have no obligation at such time to issue such Letter of Credit in
its amended form under the terms hereof, or (B) the beneficiary of such Letter
of Credit does not accept the proposed amendment to such Letter of Credit.


 


(iv)          The L/C Issuer shall
act on behalf of the Lenders with respect to any Letters of Credit issued by it
and the documents associated therewith, and the L/C Issuer shall have all of
the benefits and immunities (A) provided to the Administrative Agent in Article
IX with respect to any acts taken or omissions suffered by the L/C Issuer
in connection with Letters of Credit issued by it or proposed to be issued by
it and Issuer Documents pertaining to such Letters of Credit as fully as if the
term “Administrative Agent” as used in Article IX included the L/C
Issuer with respect to such acts or omissions, and (B) as additionally provided
herein with respect to the L/C Issuer.


 


(b)           Procedures for Issuance and
Amendment of Letters of Credit.


 


(i)            Each Letter of
Credit shall be issued or amended, as the case may be, upon the request of the
Company delivered to the L/C Issuer (with a copy to the Administrative Agent)
in the form of a Letter of Credit Application, appropriately completed and
signed by a Responsible Officer of the Company. Such Letter of Credit
Application must be


 


30

















 


received by
the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least
two Business Days (or such later date and time as the L/C Issuer may agree in a
particular instance in its sole discretion) prior to the proposed issuance date
or date of amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a Business
Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing
thereunder; (G) the purpose and nature of the requested Letter of Credit; and
(H) such other matters as the L/C Issuer may require. In the case of a request
for an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C Issuer (w)
the Letter of Credit to be amended; (x) the proposed date of amendment thereof
(which shall be a Business Day); (y) the nature of the proposed amendment; and
(z) such other matters as the L/C Issuer may require. Additionally, the Company
shall furnish to L/C Issuer and the Administrative Agent such other documents
and information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may require.


 


(ii)           Promptly after
receipt of any Letter of Credit Application, the L/C Issuer will confirm with
the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Company
and, if not, the L/C Issuer will provide the Administrative Agent with a copy
thereof. Upon receipt by the L/C Issuer of confirmation from the Administrative
Agent that the requested issuance or amendment is permitted in accordance with
the terms hereof, then, subject to the terms and conditions hereof, the L/C
Issuer shall, on the requested date, issue a Letter of Credit for the account
of the Company or enter into the applicable amendment, as the case may be, in
each case in accordance with the L/C Issuer’s usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the L/C Issuer a risk participation in such Letter of Credit in
an amount equal to the product of such Lender’s Pro Rata Share times the
amount of such Letter of Credit.


 


(iii)          Promptly after its
delivery of any Letter of Credit or any amendment to a Letter of Credit to an
advising bank with respect thereto or to the beneficiary thereof, the L/C
Issuer will also deliver to the Company and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.


 


(c)           Drawings and Reimbursements;
Funding of Participations.


 


(i)            Upon receipt from
the beneficiary of any Letter of Credit of any notice of a drawing under such
Letter of Credit, the L/C Issuer shall notify the Company and the
Administrative Agent thereof. In the case of a Letter of Credit denominated in
an Alternative Currency, the Company shall reimburse the L/C Issuer in such
Alternative


 


31

















 


Currency,
unless (A) the L/C Issuer (at its option) shall have specified in such notice
that it will require reimbursement in Dollars, or (B) in the absence of any
such requirement for reimbursement in Dollars, the Company shall have notified
the L/C Issuer promptly following receipt of the notice of drawing that the Company
will reimburse the L/C Issuer in Dollars. In the case of any such reimbursement
in Dollars of a drawing under a Letter of Credit denominated in an Alternative
Currency, the L/C Issuer shall notify the Company of the Dollar Equivalent of
the amount of the drawing promptly following the determination thereof. Not
later than 11:00 a.m. on the date of any payment by the L/C Issuer under a
Letter of Credit to be reimbursed in Dollars, or the Applicable Time on the
date of any payment by the L/C Issuer under a Letter of Credit to be reimbursed
in an Alternative Currency (each such date, an “Honor Date”), the
Company shall reimburse the L/C Issuer through the Administrative Agent in an
amount equal to the amount of such drawing and in the applicable currency. If
the Company fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date, the
amount of the unreimbursed drawing (expressed in Dollars in the amount of the
Dollar Equivalent thereof in the case of a Letter of Credit denominated in an
Alternative Currency) (the “Unreimbursed Amount”) and the amount of such
Lender’s Applicable Percentage thereof. In such event, the Company shall be
deemed to have requested a Committed Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02
for the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Commitments and the conditions set forth in
Section 4.02 (other than the delivery of a Committed Loan Notice). Any
notice given by the L/C Issuer or the Administrative Agent pursuant to this Section
2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.


 


(ii)           Each Lender
(including the Lender acting as L/C Issuer) shall upon any notice pursuant to Section
2.03(c)(i) make funds available to the Administrative Agent for the account
of the L/C Issuer, in Dollars, at the Administrative Agent’s Office for Dollar
denominated payments in an amount equal to its Applicable Percentage of the
Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in
such notice by the Administrative Agent, whereupon, subject to the provisions
of Section 2.03(c)(iii), each Lender that so makes funds available shall
be deemed to have made a Base Rate Committed Loan to the Company in such amount.
The Administrative Agent shall remit the funds so received to the L/C Issuer.


 


(iii)          With respect to any
Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of
Base Rate Loans because the conditions set forth in Section 4.02 cannot
be satisfied or for any other reason, the Company shall be deemed to have
incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which L/C Borrowing shall be due and payable
on demand (together with interest) and shall bear interest at the Default Rate.
In such event, each Lender’s payment to the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be
deemed payment in respect of its participation in


 


32

















 


such L/C
Borrowing and shall constitute an L/C Advance from such Lender in satisfaction
of its participation obligation under this Section 2.03.


 


(iv)          Until each Lender
funds its Committed Loan or L/C Advance pursuant to this Section 2.03(c)
to reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s Applicable Percentage of such amount shall
be solely for the account of the L/C Issuer.


 


(v)           Each Lender’s
obligation to make Committed Loans or L/C Advances to reimburse the L/C Issuer
for amounts drawn under Letters of Credit, as contemplated by this Section
2.03(c), shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against the L/C Issuer, the
Administrative Agent, the Company or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make
Committed Loans pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 4.02 (other than delivery by a Borrower
of a Committed Loan Notice). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the Company to reimburse the L/C Issuer for
the amount of any payment made by the L/C Issuer under any Letter of Credit,
together with interest as provided herein.


 


(vi)          If any Lender fails
to make available to the Administrative Agent for the account of the L/C Issuer
any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender
(acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on
which such payment is immediately available to the L/C Issuer at a rate per
annum equal to the Overnight Rate from time to time in effect, plus any
administrative, processing or similar fees customarily charged by the L/C
Issuer in connection with the foregoing. If such Lender pays such amount (with
interest and fees as aforesaid), the amount so paid shall constitute such
Lender’s Loan included in the relevant Borrowing or L/C Advance in respect to
the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer
submitted to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (vi) shall be conclusive absent manifest error.


 


(d)           Repayment of Participations.


 


(i)            At any time after
the L/C Issuer has made a payment under any Letter of Credit and has received
from any Lender such Lender’s L/C Advance in respect of such payment in
accordance with Section 2.03(c), if the Administrative Agent receives
for the account of the L/C Issuer any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from the Company or
otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such Lender
its Pro Rata Share thereof (appropriately adjusted, in the


 


33

















 


case of
interest payments, to reflect the period of time during which such Lender’s L/C
Advance was outstanding) in the same funds as those received by the
Administrative Agent.


 


(ii)           If any payment
received by the Administrative Agent for the account of the L/C Issuer pursuant
to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 10.06 (including pursuant to any
settlement entered into by the L/C Issuer in its discretion), each Lender shall
pay to the Administrative Agent for the account of the L/C Issuer its Pro Rata
Share thereof on demand of the Administrative Agent, plus interest thereon from
the date of such demand to the date such amount is returned by such Lender, at
a rate per annum equal to the Federal Funds Rate from time to time in effect. The
obligations of the Lenders under this clause shall survive the payment in full
of the Obligations and the termination of this Agreement.


 


(e)           Obligations Absolute. The
obligation of the Company to reimburse the L/C Issuer for each drawing under
each Letter of Credit and to repay each L/C Borrowing shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with
the terms of this Agreement under all circumstances, including the following:


 


(i)            any lack of
validity or enforceability of such Letter of Credit, this Agreement, any other
Loan Document or any other agreement or instrument relating hereto or thereto;


 


(ii)           the existence of
any claim, counterclaim, set-off, defense or other right that the Borrowers may
have at any time against any beneficiary or any transferee of such Letter of
Credit (or any Person for whom any such beneficiary or any such transferee may
be acting), the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or
any agreement or instrument relating thereto, or any unrelated transaction;


 


(iii)          any draft, demand,
certificate or other document presented under such Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under such Letter of Credit;


 


(iv)          any payment by the
L/C Issuer under such Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such Letter of Credit to
any Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of such
Letter of Credit, including any arising in connection with any proceeding under
any Debtor Relief Law;


 


(v)           any adverse change
in the relevant exchange rates or in the ability of the relevant Alternative
Currency to the Borrowers or any Subsidiary of the Company or in the relevant
currency markets generally; or


 


34

















 


(vi)          any other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Borrowers.


 


The Company shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim
of noncompliance with the Company’s instructions or other irregularity, the
Company will immediately notify the L/C Issuer. The Company shall be conclusively
deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.


 


(f)            Role of L/C Issuer. Each
Lender and the Borrowers agree that, in paying any drawing under a Letter of
Credit, the L/C Issuer shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or delivering any
such document. None of the L/C Issuer, any Agent-Related Person nor any of the
respective correspondents, participants or assignees of the L/C Issuer shall be
liable to any Lender for (i) any action taken or omitted in connection herewith
at the request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. The Company hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended
to, and shall not, preclude the Company’s pursuing such rights and remedies as
it may have against the beneficiary or transferee at law or under any other
agreement. None of the L/C Issuer, any Agent-Related Person, nor any of the
respective correspondents, participants or assignees of the L/C Issuer, shall
be liable or responsible for any of the matters described in clauses (i)
through (v) of Section 2.03(e); provided, however, that
anything in such clauses to the contrary notwithstanding, the Company may have
a claim against the L/C Issuer, and the L/C Issuer may be liable to the
Company, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Company which the Company
proves were caused by the L/C Issuer’s willful misconduct or gross negligence
or the L/C Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and the L/C Issuer shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.


 


(g)           Cash Collateral. Upon the
request of the Administrative Agent, (i) if the L/C Issuer has honored any full
or partial drawing request under any Letter of Credit and such drawing has
resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration
Date, any Letter of Credit may for any reason remain outstanding and partially
or wholly undrawn, the Company shall immediately Cash Collateralize the then
Outstanding Amount of all L/C


 


35

















 


Obligations
(in an amount equal to the Dollar Equivalent of such Outstanding Amount
determined as of the date of such L/C Borrowing or the Letter of Credit
Expiration Date, as the case may be). For purposes hereof, “Cash
Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant
to documentation in form and substance satisfactory to the Administrative Agent
and the L/C Issuer (which documents are hereby consented to by the Lenders). Derivatives
of such term have corresponding meanings. The Company hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Cash collateral shall be maintained in blocked,
non-interest bearing deposit accounts at Bank of America. If at any time the
Administrative Agent determines that any funds held as Cash Collateral are
subject to any right or claim of any Person other than the Administrative Agent
or that the total amount of such funds is less than the aggregate Outstanding
Amount of L/C Obligations, the Company will forthwith, upon demand by the
Administrative Agent, pay to the Administrative Agent, as additional funds to
be deposited and held in deposit accounts at Bank of America as aforesaid, an
amount equal to the excess of (i) such aggregate Outstanding Amount over (ii)
the total amount of funds, if any, then held as Cash Collateral that the
Administrative Agent determines to be free and clear of any such right and
claim. Upon the drawing of any Letter of Credit for which funds are on deposit
as Cash Collateral, such funds shall be applied, to the extent permitted under
applicable law, to reimburse the L/C Issuer. The Administrative Agent may, at
any time and from time to time after the initial deposit of Cash Collateral,
request that additional Cash Collateral be provided in order to protect against
the results of exchange rate fluctuations.


 


(h)           Applicability of ISP98. Unless
otherwise expressly agreed by the L/C Issuer and the Company when a Letter of
Credit is issued (including any such agreement applicable to an Existing Letter
of Credit), the rules of the ISP shall apply to each standby Letter of Credit.


 


(i)            Letter of Credit Fees. The
Company shall pay to the Administrative Agent for the account of each Lender in
accordance with its Pro Rata Share a Letter of Credit fee for each Letter of
Credit equal to the Applicable Rate times the daily maximum amount
available to be drawn under such Letter of Credit (whether or not such maximum
amount is then in effect under such Letter of Credit). Such letter of credit
fees shall be computed on a quarterly basis in arrears. Such letter of credit
fees shall be due and payable on the last Business Day of each March, June, September
and December, commencing with the first such date to occur after the issuance
of such Letter of Credit, on the Letter of Credit Expiration Date and
thereafter on demand. If there is any change in the Applicable Rate during any
quarter, the daily maximum amount of each Letter of Credit shall be computed
and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect. Notwithstanding anything to
the contrary contained herein, upon the request of the Required Lenders, while
any Event of Default exists, all Letter of Credit Fees shall accrue at the
Default Rate.


 


(j)            Fronting Fee and Documentary and
Processing Charges Payable to L/C Issuer. The Company shall pay directly to
the L/C Issuer for its own account, in Dollars, a fronting fee with respect to
each Letter of Credit in an amount equal to 12.5 basis points of the maximum
amount available to be drawn under such Letter of Credit on the date of (i)
issuance, (ii)


 


36

















 


extension/renewal,
or (iii) increase in the amount of the Letter of Credit payable on such date. In
addition, the Company shall pay directly to the L/C Issuer for its own account,
in Dollars, the customary issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such customary
fees and standard costs and charges are due and payable on demand and are
nonrefundable.


 


(k)           Conflict with Letter of Credit
Application. In the event of any conflict between the terms hereof and the
terms of any Letter of Credit Application, the terms hereof shall control.


 


2.04      Swing
Line Loans.


 


(a)           The Swing Line. Subject to the
terms and conditions set forth herein, the Swing Line Lender agrees, in
reliance upon the agreements of the other Lenders set forth in this Section
2.04, to make loans in Dollars (each such loan, a “Swing Line Loan”)
to the Company from time to time on any Business Day during the Availability
Period in an aggregate amount not to exceed at any time outstanding the amount
of the Swing Line Sublimit, notwithstanding the fact that such Swing Line
Loans, when aggregated with the Dollar Equivalent, Pro Rata Share of the
Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting
as Swing Line Lender, may exceed the amount of such Lender’s Commitment; provided,
however, that after giving effect to any Swing Line Loan, the Dollar
Equivalent of (i) the Total Outstandings shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans
of any Lender, plus such Lender’s Pro Rata Share of the Outstanding
Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Commitment, and provided, further, that the Company shall not use
the proceeds of any Swing Line Loan to refinance any outstanding Swing Line
Loan. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Company may borrow under this Section 2.04,
prepay under Section 2.05, and reborrow under this Section 2.04. Each
Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing
Line Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such
Lender’s Pro Rata Share times the amount of such Swing Line Loan.


 


(b)           Borrowing Procedures. Each
Swing Line Borrowing shall be made upon the Company’s irrevocable notice to the
Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the requested borrowing date,
and shall specify (i) the amount to be borrowed, which shall be a minimum of
$100,000, and (ii) the requested borrowing date, which shall be a Business Day.
Each such telephonic notice must be confirmed promptly by delivery to the Swing
Line Lender and the Administrative Agent of a written Swing Line Loan Notice,
appropriately completed and signed by a Responsible Officer of the Company. Promptly
after receipt by the Swing Line Lender of any telephonic Swing Line Loan
Notice, the Swing Line Lender will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has also received such
Swing Line Loan Notice and, if not, the Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of


 


37

















 


the contents thereof. Unless
the Swing Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Lender) prior to 2:00
p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing
Line Lender not to make such Swing Line Loan as a result of the limitations set
forth in the proviso to the first sentence of Section 2.04(a), or (B)
that one or more of the applicable conditions specified in Article IV is
not then satisfied, then, subject to the terms and conditions hereof, the Swing
Line Lender will, not later than 3:00 p.m. on the borrowing date specified in
such Swing Line Loan Notice, make the amount of its Swing Line Loan available
to the Company at its office by crediting the account of the Company on the
books of the Swing Line Lender in immediately available funds.


 


(c)           Refinancing of Swing Line Loans.


 


(i)            The Swing Line
Lender at any time in its sole and absolute discretion may request, on behalf
of the Company (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Lender make a Base Rate Committed Loan in an
amount equal to such Lender’s Pro Rata Share of the amount of Swing Line Loans
then outstanding. Such request shall be made in writing (which written request
shall be deemed to be a Committed Loan Notice for purposes hereof) and in
accordance with the requirements of Section 2.02, without regard to the
minimum and multiples specified therein for the principal amount of Base Rate
Loans, but subject to the unutilized portion of the Aggregate Commitments and
the conditions set forth in Section 4.02. The Swing Line Lender shall
furnish the Company with a copy of the applicable Committed Loan Notice
promptly after delivering such notice to the Administrative Agent. Each Lender
shall make an amount equal to its Pro Rata Share of the amount specified in
such Committed Loan Notice available to the Administrative Agent in immediately
available funds for the account of the Swing Line Lender at the Administrative
Agent’s Office for Dollar denominated payments not later than 1:00 p.m. on the
day specified in such Committed Loan Notice, whereupon, subject to Section
2.04(c)(ii), each Lender that so makes funds available shall be deemed to
have made a Base Rate Committed Loan to the Company in such amount. The
Administrative Agent shall remit the funds so received to the Swing Line
Lender.


 


(ii)           If for any reason
any Swing Line Loan cannot be refinanced by such a Committed Borrowing in
accordance with Section 2.04(c)(i), the request for Base Rate Committed
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to
be a request by the Swing Line Lender that each of the Lenders fund its risk
participation in the relevant Swing Line Loan and each Lender’s payment to the
Administrative Agent for the account of the Swing Line Lender pursuant to Section
2.04(c)(i) shall be deemed payment in respect of such participation.


 


(iii)          If any Lender fails
to make available to the Administrative Agent for the account of the Swing Line
Lender any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from such
Lender (acting through the Administrative Agent), on demand, such amount with
interest thereon


 


38

















 


for the period
from the date such payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum equal to the
Federal Funds Rate from time to time in effect, plus any administrative,
processing or similar fees customarily charged by the Swing Line Lender in
connection with the foregoing. If such Lender pays such amount (with interest
and fees as aforesaid), the amount so paid shall constitute such Lender’s Loan
included on the relevant Borrowing or funded participation in the relevant
Swing Line Loan, as the case may be. A certificate of the Swing Line Lender
submitted to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (iii) shall be conclusive absent manifest
error.


 


(iv)          Each Lender’s
obligation to make Committed Loans or to purchase and fund risk participations
in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute
and unconditional and shall not be affected by any circumstance, including (A)
any set-off, counterclaim, recoupment, defense or other right which such Lender
may have against the Swing Line Lender, the Borrowers or any other Person for
any reason whatsoever, (B) the occurrence or continuance of a Default, or (C)
any other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender’s obligation to
make Committed Loans pursuant to this Section 2.04(c) is subject to the
conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair the obligation of the Company
to repay Swing Line Loans, together with interest as provided herein.


 


(d)           Repayment of Participations.


 


(i)            At any time after
any Lender has purchased and funded a risk participation in a Swing Line Loan,
if the Swing Line Lender receives any payment on account of such Swing Line
Loan, the Swing Line Lender will distribute to such Lender its Pro Rata Share
of such payment (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender’s risk participation was
funded) in the same funds as those received by the Swing Line Lender.


 


(ii)           If any payment
received by the Swing Line Lender in respect of principal or interest on any
Swing Line Loan is required to be returned by the Swing Line Lender under any
of the circumstances described in Section 10.06 (including pursuant to
any settlement entered into by the Swing Line Lender in its discretion), each
Lender shall pay to the Swing Line Lender its Pro Rata Share thereof on demand
of the Administrative Agent, plus interest thereon from the date of such demand
to the date such amount is returned, at a rate per annum equal to the Federal
Funds Rate. The Administrative Agent will make such demand upon the request of
the Swing Line Lender. The obligations of the Lenders under the clause shall
survive the payment in full of the Obligations and termination of this
Agreement.


 


(e)           Interest for Account of Swing Line
Lender. The Swing Line Lender shall be responsible for invoicing the
Company for interest on the Swing Line Loans. Until each Lender funds its Base
Rate Committed Loan or risk participation pursuant to this Section 2.04
to


 


39

















 


refinance such Lender’s Pro
Rata Share of any Swing Line Loan, interest in respect of such Pro Rata Share
shall be solely for the account of the Swing Line Lender.


 


(f)            Payments Directly to Swing Line
Lender. The Company shall make all payments of principal and interest in
respect of the Swing Line Loans directly to the Swing Line Lender.


 


2.05      Prepayments.


 


(a)           The Borrowers may, in the case of
Committed Loans, upon notice to the Administrative Agent, at any time or from
time to time voluntarily prepay Committed Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received by
the Administrative Agent not later than 11:00 a.m. (A) three Business Days
prior to any date of prepayment of Eurocurrency Rate Loans denominated in
Dollars and four Business Days (or five in the case of prepayment of Loans
denominated in Special Notice Currencies) prior to any date of prepayment of
Eurocurrency Rate Loans denominated in Alternative Currencies, and (B) on the
date of prepayment of Base Rate Committed Loans; (ii) any prepayment of
Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount
of $5,000,000 or a whole multiple of $1,000,000 in excess thereof, (iii) any
prepayment of Eurocurrency Rate Loans in Alternative Currencies shall be in a
minimum Dollar equivalent principal amount of or approximating $5,000,000; and
(iv) any prepayment of Base Rate Committed Loans shall be in a principal amount
of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case,
if less, the entire principal amount thereof then outstanding. Each such notice
shall specify the date and amount of such prepayment and the Type(s) of
Committed Loans to be prepaid. The Administrative Agent will promptly notify
each Lender of its receipt of each such notice, and of the amount of such
Lender’s Pro Rata Share of such prepayment. If such notice is given by the
Company, such Loan Party shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued
interest thereon, together with any additional amounts required pursuant to Section
3.05. Each such prepayment shall be applied to the Committed Loans of the
Lenders in accordance with their respective Pro Rata Shares.


 


(b)           The Company may, upon notice to the
Swing Line Lender (with a copy to the Administrative Agent), at any time or
from time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be
in a minimum principal amount of $100,000 or, if less, the entire principal
amount thereof then outstanding. Each such notice shall specify the date and
amount of such prepayment. If such notice is given by the Company, the Company
shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein.


 


(c)           (i)            If
the Administrative Agent notifies the Company at any time that the Dollar
Equivalent of the Outstanding Amount of all Loans and L/C Obligations at such
time exceeds the Aggregate Commitments then in effect, the Borrowers shall,
within two Business Days after receipt of such notice, prepay Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount sufficient to reduce
the Dollar Equivalent of such Outstanding Amount as


 


40

















 


of such date of payment to an
amount not to exceed 100% of the Aggregate Commitments then in effect. The
Administrative Agent may, at any time and from time to time after the initial
deposit of such Cash Collateral, request that additional Cash Collateral be
provided in order to protect against the results of further exchange rate
fluctuations.


 


(ii)           If the Administrative Agent notifies
the Company at any time that the Dollar Equivalent of the Outstanding Amount of
all Loans and L/C Obligations denominated in Alternative Currencies at such
time exceeds the Alternative Currency Sublimit then in effect, the Borrowers
shall, within two Business Days after receipt of such notice, prepay Loans
and/or Cash Collateralize the L/C Obligations in an aggregate amount sufficient
to reduce the Dollar Equivalent of such Outstanding Amount as of such date of
payment to an amount not to exceed 100% of the Alternative Currency Sublimit
then in effect. The Administrative Agent may, at any time and from time to time
after the initial deposit of such Cash Collateral, request that additional Cash
Collateral be provided in order to protect against the results of further
exchange rate fluctuations.


 


(iii)          If the Administrative Agent notifies
the Company at any time that the Dollar Equivalent of the Outstanding Amount of
all L/C Obligations at such time exceeds the Letter of Credit Sublimit then in
effect, the Company shall, within two Business Days after receipt of such
notice, Cash Collateralize the L/C Obligations in an aggregate amount
sufficient to reduce the Dollar Equivalent of such Outstanding Amount as of
such date of payment to an amount not to exceed 100% of the Letter of Credit
Sublimit then in effect. The Administrative Agent may, at any time and from
time to time after the initial deposit of such Cash Collateral, request that
additional Cash Collateral be provided in order to protect against the results
of further exchange rate fluctuations.


 


2.06      Termination
or Reduction of Commitments. The Borrowers may, upon
notice to the Administrative Agent, terminate the Aggregate Commitments, or
from time to time permanently reduce the Aggregate Commitments; provided
that (i) any such notice shall be received by the Administrative Agent not
later than 11:00 a.m. five Business Days prior to the date of termination or
reduction, (ii) any such partial reduction shall be in an aggregate amount of
$10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the
Borrowers shall not terminate or reduce the Aggregate Commitments if, after
giving effect thereto and to any concurrent prepayments hereunder, the Total
Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving
effect to any reduction of the Aggregate Commitments, the Letter of Credit
Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate
Commitments, such Sublimit shall be automatically reduced by the amount of such
excess. The Administrative Agent will promptly notify the Lenders of any such
notice of termination or reduction of the Aggregate Commitments. Any reduction
of the Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Pro Rata Share. All fees accrued until the effective date of
any termination of the Aggregate Commitments shall be paid on the effective
date of such termination.


 


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2.07      Repayment
of Loans.


 


(a)           The Borrowers shall repay to the
Lenders on the Maturity Date the aggregate principal amount of Committed Loans
outstanding on such date.


 


(b)           The Company shall repay each Swing
Line Loan on the earlier of (i) the demand of the Swing Line Lender and (ii) the
Maturity Date.


 


2.08      Interest.


 


(a)           Subject to the provisions of
subsection (b) below, (i) each Eurocurrency Rate Loan shall bear interest on
the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the Eurocurrency Rate for such Interest Period plus the
Applicable Rate; (ii) each Base Rate Committed Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate plus the Applicable Rate; and
(iii) each Swing Line Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate plus the Applicable Rate.


 


(b)           If any amount payable by the
Borrowers under any Loan Document is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or
otherwise, such amount shall thereafter bear interest at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws. Furthermore, while any Event of Default exists,
the Borrowers shall pay interest on the principal amount of all of its
outstanding Obligations hereunder at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws. Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.


 


(c)           Interest on each Loan shall be due
and payable in arrears on each Interest Payment Date applicable thereto and at
such other times as may be specified herein. Interest hereunder shall be due
and payable in accordance with the terms hereof before and after judgment, and
before and after the commencement of any proceeding under any Debtor Relief
Law.


 


(d)           For the purposes of the Interest Act
(Canada), (i) whenever a rate of interest or fee rate hereunder is calculated
on the basis of a year (the “deemed year”) that contains fewer days than the
actual number of days in the calendar year of calculation, such rate of
interest or fee rate shall be expressed as a yearly rate by multiplying such
rate of interest or fee rate by the actual number of days in the calendar year
of calculation and dividing it by the number of days in the deemed year, (ii)
the principle of deemed reinvestment of interest shall not apply to any
interest calculation hereunder and (iii) the rates of interest stipulated
herein are intended to be nominal rates and not effective rates or yields.


 


2.09      Fees.
In addition to certain fees described in subsections (i) and (j) of Section
2.03:


 


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(a)           Commitment Fee. The Company
shall pay to the Administrative Agent for the account of each Lender in
accordance with its Pro Rata Share, a commitment fee in Dollars equal to the
Applicable Rate times the actual daily amount by which the Aggregate
Commitments exceed the sum of (i) the Outstanding Amount of Committed Loans and
(ii) the Outstanding Amount of L/C Obligations. The commitment fee shall accrue
at all times during the Availability Period, including at any time during which
one or more of the conditions in Article IV is not met, and shall be due
and payable quarterly in arrears on the last Business Day of each March, June,
September and December, commencing with the first such date to occur after the
Closing Date, and on the Maturity Date. The commitment fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.


 


(b)           Other Fees. (i)  The Company shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in the amounts and
at the times specified in the Engagement Letter. Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever.


 


(ii)           The Company shall
pay to the Lenders such fees as shall have been separately agreed upon in
writing in the amounts and at the times so specified. Such fees shall be fully
earned when paid and shall not be refundable for any reason whatsoever.


 


2.10      Computation
of Interest and Fees.


 


(a)           All computations of interest for Base
Rate Loans when the Base Rate is determined by Bank of America’s “prime rate”
shall be made on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed. All other computations of fees and interest shall be
made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year) or, in the case of interest in respect of Loans denominated
in Alternative Currencies as to which market practice differs from the
foregoing, in accordance with such market practice. Interest shall accrue on
each Loan for the day on which the Loan is made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion is
paid, provided that any Loan that is repaid on the same day on which it
is made shall, subject to Section 2.12(a), bear interest for one day. Each
determination by the Administrative Agent of an interest rate or fee hereunder
shall be conclusive and binding for all purposes, absent manifest error.


 


(b)           If, as a result of any restatement or
other adjustment to the financial statements of the Company used to determine
the Applicable Rate (other than adjustments arising from normal year-end
adjustments of unaudited quarterly financial statements or from changes in
GAAP), the Company or the Lenders determine in good faith that (i) the
Consolidated Leverage Ratio as calculated by the Company as of any applicable
date was inaccurate and (ii) the proper calculation of the Consolidated
Leverage Ratio would have resulted in higher pricing for such period, the
Borrowers shall immediately and retroactively be obligated to pay to the
Administrative Agent for the account for the applicable Lenders, promptly on
demand by the Administrative Agent (or, after the occurrence of an actual or
deemed entry of an order for relief


 


43














 


with respect
to either Borrower under the Bankruptcy Code in the United States,
automatically and without further action by the Administrative Agent, any
Lender or the L/C Issuer), an amount equal to the excess of the amount of
interest and fees that should have been paid for such period over the amount of
interest and fees actually paid for such period. This paragraph shall not limit
the right to the Administrative Agent, any Lender or the L/C Issuer as the case
may be under Sections 2.03(c)(iii), 2.03(i) or 2.08(b) or Article
VIII. The Borrowers’ obligations under this paragraph shall survive the
termination of the Aggregate Commitment and the repayment of all other
Obligations hereunder.


 


2.11      Evidence of Debt.


 


(a)           The Credit Extensions
made by each Lender shall be evidenced by one or more accounts or records
maintained by such Lender and by the Administrative Agent in the ordinary
course of business. The accounts or records maintained by the Administrative
Agent and each Lender shall be conclusive absent manifest error of the amount
of the Credit Extensions made by the Lenders to the applicable Borrower and the
interest and payments thereon. Any failure to so record or any error in doing
so shall not, however, limit or otherwise affect the obligation of the
applicable Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error. Upon the
request of any Lender made through the Administrative Agent, the applicable
Borrower shall execute and deliver to such Lender (through the Administrative
Agent) a Note, which shall evidence such Lender’s Loans in addition to such
accounts or records. Each Lender may attach schedules to its Note and endorse
thereon the date, Type (if applicable), amount and maturity of its Loans and
payments with respect thereto.


 


(b)           In addition to the
accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice
accounts or records evidencing the purchases and sales by such Lender of
participations in Letters of Credit and Swing Line Loans. In the event of any
conflict between the accounts and records maintained by the Administrative
Agent and the accounts and records of any Lender in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error.


 


(c)           Entries made in good
faith by the Administrative Agent in the Register pursuant to subsection (b)
above, and by each Lender in its accounts pursuant to subsections (a) and
(b)  above, shall be prima facie evidence
of the amount of principal and interest due and payable or to become due and
payable from the Company or the European Borrower, as the case may be, to, in
the case of the Register each Lender and, in the case of such account or
accounts, such Lender, under this Agreement and the other Loan Documents,
absent manifest error; provided that the failure of the Administrative
Agent or such Lender to make any entry, or any finding that an entry is
incorrect, in the Register or such account or accounts shall not limit or
otherwise affect the obligations of the Company or the European Borrower under
this Agreement and the other Loan Documents.


 


44

















 


2.12      Payments Generally.


 


(a)           All payments to be made
by the Company or the European Borrower, as the case may be, shall be made
without condition or deduction for any counterclaim, defense, recoupment or
setoff. Except as otherwise expressly provided herein and except with respect
to principal of and interest on Loans denominated in an Alternative Currency,
all payments by the Company or the European Borrower, as the case may be,
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent’s
Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date
specified herein. Except as otherwise expressly provided herein, all payments
by the Company or the European Borrower, as the case may be, hereunder with
respect to principal and interest on Loans denominated in an Alternative
Currency shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the applicable Administrative
Agent’s Office in such Alternative Currency and in Same Day Funds not later
than the Applicable Time specified by the Administrative Agent on the dates
specified herein. The Administrative Agent will promptly distribute to each
Lender its Pro Rata Share (or other applicable share as provided herein) of
such payment in like funds as received by wire transfer to such Lender’s
Lending Office. All payments received by the Administrative Agent (i) after
2:00 p.m., in the case of Dollars, or (ii) later than the Applicable Time
specified by the Administrative Agent in the case of payments in an Alternative
Currency, shall in each case be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue.


 


(b)           If any payment to be
made by the Company or the European Borrower, as the case may be, shall come
due on a day other than a Business Day, payment shall be made on the next
following Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be; provided, however,
that, if such extension would cause payment of interest on or principal of
Eurocurrency Rate Loans to be made in the next succeeding calendar month, such
payment shall be made on the immediately preceding Business Day.


 


(c)           Unless the Company, the
European Borrower or any Lender has notified the Administrative Agent, prior to
the date any payment is required to be made by it to the Administrative Agent
hereunder, that the Company, the European Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that
the Company, the European Borrower or such Lender, as the case may be, has
timely made such payment and may (but shall not be so required to), in reliance
thereon, make available a corresponding amount to the Person entitled thereto. If
and to the extent that such payment was not in fact made to the Administrative
Agent in Same Day Funds, then:


 


(i)            if
the Company or the European Borrower, as the case may be, failed to make such
payment, each Lender shall forthwith on demand repay to the Administrative
Agent the portion of such assumed payment that was made available to such
Lender in Same Day Funds, together with interest thereon in respect of each day
from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the
Administrative Agent in Same Day Funds at the Overnight Rate from time to time
in effect; and


 


45

















 


(ii)           if
any Lender failed to make such payment, such Lender shall forthwith on demand
pay to the Administrative Agent the amount thereof in Same Day Funds, together
with interest thereon for the period from the date such amount was made
available by the Administrative Agent to either Borrower to the date such
amount is recovered by the Administrative Agent (the “Compensation Period”)
at a rate per annum equal to the Overnight Rate from time to time in effect. If
such Lender pays such amount to the Administrative Agent, then such amount
shall constitute such Lender’s Committed Loan included in the applicable
Borrowing. If such Lender does not pay such amount forthwith upon the
Administrative Agent’s demand therefor, the Administrative Agent may make a
demand therefor upon the applicable Borrower and such Borrower shall pay such
amount to the Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest applicable
to the applicable Borrowing. Nothing herein shall be deemed to relieve any
Lender from its obligation to fulfill its Commitment or to prejudice any rights
which the Administrative Agent or the Borrowers may have against any Lender as
a result of any default by such Lender hereunder.


 


A notice of the Administrative Agent to any Lender or the Company with
respect to any amount owing under this subsection (c) shall be conclusive,
absent manifest error.


 


(d)           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 a Borrower by the Administrative Agent
because the conditions to the applicable Credit Extension set forth in Article
IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.


 


(e)           The obligations of the
Lenders hereunder to make Committed Loans and to fund participations in Letters
of Credit and Swing Line Loans and to make payments pursuant to Section
10.05(b) are several and not joint. The failure of any Lender to make any
Committed Loan or to fund any such participation and to make payments pursuant
to Section 10.05(b) 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
Committed Loan or purchase its participation.


 


(f)            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.


 


(g)           Each of the Company and
the European Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder (after any cure
periods therefor) to charge from time to time against any and all of the
Borrowers’ accounts, as applicable, with such Lender any amount so due.


 


2.13      Sharing of Payments. If,
other than as expressly provided elsewhere herein, any Lender shall obtain on
account of the Committed Loans made by it, or the participations in


 


46

















 


L/C
Obligations or in Swing Line Loans held by it, any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its ratable share (or other share contemplated hereunder) thereof,
such Lender shall immediately (a) notify the Administrative Agent of such fact,
and (b) purchase from the other Lenders such participations in the Committed
Loans made by them and/or such subparticipations in the participations in L/C
Obligations or Swing Line Loans held by them, as the case may be, as shall be
necessary to cause such purchasing Lender to share the excess payment in
respect of such Committed Loans or such participations, as the case may be, pro
rata with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from the purchasing
Lender under any of the circumstances described in Section 10.06
(including pursuant to any settlement entered into by the purchasing Lender in
its discretion), such purchase shall to that extent be rescinded and each other
Lender shall repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender’s ratable share (according
to the proportion of (i) the amount of such paying Lender’s required repayment
to (ii) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect of
the total amount so recovered, without further interest thereon. Each Borrower
agrees that any Lender so purchasing a participation from another Lender may,
to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09) with
respect to such participation as fully as if such Lender were the direct
creditor of such Borrower in the amount of such participation. The
Administrative Agent will keep records (which shall be conclusive and binding
in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such purchases
or repayments. Each Lender that purchases a participation pursuant to this
Section shall from and after such purchase have the right to give all notices,
requests, demands, directions and other communications under this Agreement
with respect to the portion of the Obligations purchased to the same extent as
though the purchasing Lender were the original owner of the Obligations
purchased.


 


2.14      Increase in Commitments.


 


(a)           At any time during the
term of this Agreement, provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Borrowers
may request, without the consent of the Administrative Agent and the Lenders,
an increase in the Aggregate Commitments to  an
amount not exceeding $300,000,000. At the time of sending such notice, the
Borrowers (in consultation with the Administrative Agent) shall specify the
time period within which each Lender is requested to respond (which shall in no
event be less than ten Business Days from the date of delivery of such notice
to the Lenders). Each Lender shall notify the Administrative Agent within such
time period whether or not it agrees to increase its Commitment and, if so,
whether by an amount equal to, greater than, or less than its Pro Rata Share of
such requested increase. Any Lender not responding within such time period
shall be deemed to have declined to increase its Commitment. The Administrative
Agent shall notify the Company and each Lender of the Lenders’ responses to the
request made hereunder. To achieve the full amount of a requested increase, the
Borrowers in consultation with the Administrative Agent may also invite
additional Eligible Assignees to become Lenders


 


47

















 


pursuant to a
joinder agreement in form and substance satisfactory to the Administrative
Agent and its counsel.


 


(b)           If the Aggregate
Commitments are increased in accordance with this Section, the Administrative
Agent and the Borrowers shall determine the effective date (the “Increase
Effective Date”) and the final allocation of such increase. The
Administrative Agent shall promptly notify the Borrowers and the Lenders of the
final allocation of such increase and the Increase Effective Date. As a
condition precedent to such increase, the Company shall deliver to the
Administrative Agent a certificate of each Loan Party dated as of the Increase
Effective Date (in sufficient copies for each Lender) signed by a Responsible
Officer of such Loan Party (i) certifying and attaching the resolutions adopted
by such Loan Party approving or consenting to such increase, and (ii) in the
case of such Borrower, certifying that, before and after giving effect to such
increase, (A) the representations and warranties contained in Article V
and the other Loan Documents are true and correct in all material respects on
and as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they are true and correct in all material respects as of such earlier
date, and except that for purposes of this Section 2.14, the
representations and warranties contained in subsections (a) and (b) of Section
5.05 shall be deemed to refer to the most recent statements furnished
pursuant to subsections (a) and (b), respectively, of Section 6.01, and
(B) no Default exists. The Borrowers shall prepay any Committed Loans
outstanding on the Increase Effective Date (and pay any additional amounts
required pursuant to Section 3.05) to the extent necessary to keep the
outstanding Committed Loans ratable with any revised Pro Rata Shares arising
from any nonratable increase in the Aggregate Commitments under this Section.


 


(c)           This Section shall
supersede any provisions in Sections 2.13 or 10.01 to the
contrary.


 


2.15      European Borrower.


 


(a)           Effective as of the
date hereof the European Borrower shall be a borrower hereunder and may receive
Committed Loans in any Alternative Currency for its account in an aggregate
amount, together with all Loans to the Company denominated in an Alternative
Currency, at any one time outstanding not exceeding the Alternative Currency
Sublimit and otherwise upon and in accordance with the terms and conditions set
forth in this Agreement.


 


(b)           The Obligations of the
Company and the European Borrower shall be several in nature. The Obligations
of the European Borrower shall be guaranteed by the Company pursuant to the
Parent Guaranty.


 


(c)           The European Borrower
hereby irrevocably appoints the Company as its agent for all purposes relevant
to this Agreement and each of the other Loan Documents, including (i) the
giving and receipt of notices, (ii) the execution and delivery of all
documents, instruments and certificates contemplated herein and all
modifications hereto, and (iii) the receipt of the proceeds of any Loans made
by the Lenders, to the European Borrower hereunder. Any acknowledgment,
consent, direction, certification or other action which might otherwise be
valid or effective only if given or taken by the Company and European Borrower
acting singly, shall be valid and


 


48

















 


effective if given or taken
only by the Company, whether or not the European Borrower joins therein. Any
notice, demand, consent, acknowledgement, direction, certification or other
communication delivered to the Company in accordance with the terms of this
Agreement shall be deemed to have been delivered to the European Borrower.


 


(d)           The Company may from
time to time, upon not less than 15 Business Days’ notice from the Company to
the Administrative Agent (or such shorter period as may be agreed by the
Administrative Agent in its sole discretion), terminate the European Borrower’s
status as such, provided that there are no outstanding Loans payable by
the European Borrower, or other amounts payable by the European Borrower on
account of any Loans made to it, as of the effective date of such termination.
The Administrative Agent will promptly notify the Lenders of any such
termination of the European Borrower’s status.


 


ARTICLE III


TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01      Taxes.


 


(a)           Subject to Section
10.15, any
and all payments by the Company or the European Borrower to or for the account
of the Administrative Agent or any Lender under any Loan Document shall be made
free and clear of and without deduction for any and all present or future
taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or
similar charges, and all liabilities with respect thereto, excluding, in
the case of the Administrative Agent and each Lender, income, franchise or
similar taxes imposed on (or measured by) its overall net income, by the
jurisdiction (or any political subdivision thereof) under the Laws of which the
Administrative Agent or such Lender, as the case may be, is organized or
maintains a lending office (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as “Taxes”). Subject to Section
10.15,  if
the Company or the European Borrower shall be required by any Laws to deduct
any Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section), each of the
Administrative Agent and such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Company or the
European Borrower, as the case may be, shall make such deductions, (iii) the
Company shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable Laws, and (iv) within 30 days
after the date of such payment, the Company or the European Borrower, as the
case may be, shall furnish to the Administrative Agent (which shall forward the
same to such Lender) the original or a certified copy of a receipt evidencing
payment thereof.


 


(b)           In addition, the
Company and the European Borrower each agree to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or registration
of, or otherwise with respect to, any Loan Document (hereinafter referred to as
“Other Taxes”).


 


49

















 


(c)           If the Company or the
European Borrower shall be required to deduct or pay any Taxes or Other Taxes
from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Company or the European Borrower, as
the case may be, shall also pay to the Administrative Agent or to such Lender,
as the case may be, at the time interest is paid, such additional amount that
the Administrative Agent or such Lender specifies is necessary to preserve the
after-tax yield (after factoring in all taxes, including taxes imposed on or
measured by net income) that the Administrative Agent or such Lender would have
received if such Taxes or Other Taxes had not been imposed.


 


(d)           The Company and the
European Borrower each agree to indemnify the Administrative Agent, the L/C
Issuer and each Lender for (i) the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section) paid by the Administrative Agent and such
Lender, (ii) amounts payable under Section 3.01, and (iii) any liability (including
additions to tax, penalties, interest and expenses) arising therefrom or with
respect thereto, in each case whether or not such Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
Payment under this subsection (d) shall be made within 30 days after the date
the Lender or the Administrative Agent makes a demand therefor.


 


3.02      Illegality. If any
Lender determines that any Law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or its applicable
Lending Office to make, maintain or fund Eurocurrency Rate Loans (whether
denominated in Dollars or an Alternative Currency (the “Applicable Currency”)),
or to determine or charge interest rates based upon the Eurocurrency Rate, or
any Governmental Authority has imposed material restrictions on the authority
of such Lender to purchase or sell, or to take deposits of, any Applicable
Currency in the applicable interbank market, then, on notice thereof by such
Lender to the Company or the European Borrower through the Administrative
Agent, any obligation of such Lender to make or continue Eurocurrency Rate
Loans or to convert Base Rate Committed Loans to Eurocurrency Rate Loans shall
be suspended until such Lender notifies the Administrative Agent and the
Company or the European Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, the Company or the
European Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable and such Loans are denominated
in Dollars, convert all Eurocurrency Rate Loans of such Lender to such Borrower
to Base Rate Loans, either on the last day of the Interest Period therefor, if
such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to
such day, or immediately, if such Lender may not lawfully continue to maintain
such Eurocurrency Rate Loans. Upon any such prepayment or conversion, the
Company or the European Borrower shall also pay accrued interest on the amount
so prepaid or converted. Each Lender agrees to designate a different Lending
Office if such designation will avoid the need for such notice and will not, in
the good faith judgment of such Lender, otherwise be materially disadvantageous
to such Lender.


 


3.03      Inability to Determine Rates.
If the Required Lenders determine that for any reason (i) deposits in the
relevant currency are not being offered to banks in the applicable offshore
interbank market for such currency for the applicable amount and Interest
Period of such Eurocurrency Rate Loan, (ii) adequate and reasonable means do
not exist for determining


 


50

















 


the
Eurocurrency Rate for any requested Interest Period with respect to a proposed
Eurocurrency Rate Loan, or (iii) that the Eurocurrency Rate for any requested
Interest Period with respect to a proposed Eurocurrency Rate Loan does not
adequately and fairly reflect the cost to such Lenders of funding such Loan, the
Administrative Agent will promptly so notify the Company and each Lender. Thereafter,
the obligation of the Lenders to make or maintain Eurocurrency Rate Loans shall
be suspended until the Administrative Agent (upon the instruction of the
Required Lenders) revokes such notice. Upon receipt of such notice, the Company
or the European Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurocurrency Rate Loans or, failing that, will
be deemed to have converted such request into a request by the Company for a
Committed Borrowing of Base Rate Loans in the amount specified therein.


 


3.04      Increased Cost and Reduced
Return; Capital Adequacy; Reserves on Eurocurrency Rate Loans.


 


(a)           If any Lender or the
L/C Issuer determines that as a result of the introduction of or any change in
or in the interpretation of any Law, or such Lender’s compliance therewith,
there shall be any increase in the cost to such Lender of agreeing to make or
making, funding or maintaining Eurocurrency Rate Loans or (as the case may be)
issuing or participating in Letters of Credit, or a reduction in the amount
received or receivable by such Lender in connection with any of the foregoing
(excluding for purposes of this subsection (a) any such increased costs or
reduction in amount resulting from (i) Taxes or Other Taxes (as to which Section
3.01 shall govern), (ii) changes in the basis of taxation of overall net
income or overall gross income by the United States or any foreign jurisdiction
or any political subdivision of either thereof under the Laws of which such
Lender is organized or has its Lending Office, and (iii) reserve requirements
contemplated by Section 3.04(e)), then from time to time upon demand of
such Lender (with a copy of such demand to the Administrative Agent), the
Company or the European Borrower, as the case may be, shall pay to such Lender
such additional amounts as will compensate such Lender for such increased cost
or reduction.


 


(b)           If any Lender or the
L/C Issuer determines that the introduction of any Law regarding capital
adequacy or any change therein or in the interpretation thereof, or compliance
by such Lender or L/C Issuer (or its Lending Office) therewith, has the effect
of reducing the rate of return on the capital of such Lender or L/C Issuer or
any corporation controlling such Lender or L/C Issuer as a consequence of such
Lender’s obligations hereunder (taking into consideration its policies with
respect to capital adequacy and its desired return on capital), then from time
to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Company or the European Borrower, as the case may
be, shall pay to such Lender or L/C Issuer such additional amounts as will
compensate such Lender for such reduction.


 


(c)           A certificate of a
Lender or the L/C Issuer setting forth the amount or amounts necessary to
compensate such Lender or the L/C Issuer or its holding company, as the case
may be, as specified in subsection (a) or (b) of this Section and delivered
to the Company shall be conclusive absent manifest error. The Borrowers shall
pay such Lender or the L/C Issuer, as the case may be, the amount shown as due
on any such certificate within 10 days after receipt thereof.


 


51

















 


(d)           Failure or delay on the
part of any Lender or the L/C Issuer to demand compensation pursuant to the
foregoing provisions of this Section shall not constitute a waiver of such
Lender’s or the L/C Issuer’s right to demand such compensation, provided
that the Borrowers shall not be required to compensate a Lender or the L/C
Issuer pursuant to the foregoing provisions of this Section for any increased
costs incurred or reductions suffered more than 180 days prior to the date that
such Lender or the L/C Issuer, as the case may be, notifies the Company of the
Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the L/C Issuer’s intention to claim compensation therefor.


 


(e)           The Company or the
European Borrower, as the case may be, shall pay to each Lender, as long as
such Lender shall be required to maintain reserves with respect to liabilities
or assets consisting of or including Eurocurrency funds or deposits (currently
known as “Eurocurrency liabilities”), additional interest on the unpaid
principal amount of each Eurocurrency Rate Loan equal to the actual costs of
such reserves allocated to such Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive), which shall be
due and payable on each date on which interest is payable on such Loan, provided
the Company shall have received at least 15 days’ prior notice (with a copy to
the Administrative Agent) of such additional interest from such Lender. If a
Lender fails to give notice 15 days prior to the relevant Interest Payment
Date, such additional interest shall be due and payable 15 days from receipt of
such notice.


 


3.05      Funding Losses. Upon
demand of any Lender (with a copy to the Administrative Agent) from time to
time, the Company or the European Borrower, as the case may be, shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:


 


(a)           any continuation,
conversion, payment or prepayment of any Loan other than a Base Rate Loan on a
day other than the last day of the Interest Period for such Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise);


 


(b)           any failure by the
Company or the European Borrower (for a reason other than the failure of such
Lender to make a Loan) to prepay, borrow, continue or convert any Loan other
than a Base Rate Loan on the date or in the amount notified by the Company or
the European Borrower;


 


(c)           any failure by the Company
or the European Borrower to make payment of any Loan or drawing under any
Letter of Credit (or interest due thereon) denominated in an Alternative
Currency on its scheduled due date or any payment thereon in a different
currency; or


 


(d)           any assignment of a
Eurocurrency Rate Loan on a day other than the last day of the Interest Period
therefor as a result of a request by a Borrower pursuant to Section 10.16;
including any loss of anticipated profits, any foreign exchange losses and any
loss or expense arising from the liquidation or reemployment of funds obtained
by it to maintain such Loan or from fees payable to terminate the deposits from
which such funds were obtained. The Company


 


52

















 


shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.


 


For purposes
of calculating amounts payable by the Company or the European Borrower to the
Lenders under this Section 3.05, each Lender shall be deemed to have
funded each Eurocurrency Rate Loan made by it at the Eurocurrency Rate for such
Loan by a matching deposit or other borrowing in the applicable offshore
interbank market for such currency for a comparable amount and for a comparable
period, whether or not such Eurocurrency Rate Loan was in fact so funded.


 


3.06      Matters Applicable to all
Requests for Compensation.


 


(a)           A
certificate of the Administrative Agent or any Lender claiming compensation
under this Article III and setting forth the additional amount or amounts
to be paid to it hereunder shall be conclusive in the absence of manifest error.
In determining such amount, the Administrative Agent or such Lender may use any
reasonable averaging and attribution methods.


 


(b)           Upon
any Lender’s making a claim for compensation under Section 3.01 or 3.04,
the Company may replace such Lender in accordance with Section 10.16.


 


3.07      Survival. All of the
Company ‘s and the European Borrower’s obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.


 


ARTICLE IV


CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


4.01      Conditions of Initial Credit
Extension. The obligation of each Lender to make its initial Credit
Extension hereunder is subject to satisfaction or waiver of the following
conditions precedent:


 


(a)           The Administrative
Agent’s receipt of the following, each of which shall be originals or
facsimiles (followed promptly by originals) unless otherwise specified, each
properly executed by a Responsible Officer of the signing Loan Party, each
dated the Closing Date (or, in the case of certificates of governmental
officials, a recent date before the Closing Date) and each in form and
substance satisfactory to the Administrative Agent and its legal counsel and
each of the Lenders:


 


(i)            executed
counterparts of this Agreement, the Parent Guaranty and the Subsidiary
Guaranty, sufficient in number for distribution to the Administrative Agent,
each Lender and the Borrowers;


 


(ii)           a
Note executed by the applicable Borrower in favor of each Lender requesting a
Note;


 


(iii)          such
certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the
Administrative


 


53

















 


Agent may
require evidencing the identity, authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in connection with
this Agreement and the other Loan Documents to which such Loan Party is a
party;


 


(iv)          such
documents and certifications as the Administrative Agent may reasonably require
to evidence that each Loan Party is duly organized or formed, and that each
Borrower and each Guarantor is validly existing, in good standing and qualified
to engage in business in each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification, except to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect, including, certified copies of each
Borrower’s Organization Documents, certificates of good standing and/or
qualification to engage in business and tax clearance certificates;


 


(v)           a
favorable opinion of Katten Muchin Rosenman LLP, counsel to the Loan Parties,
addressed to the Administrative Agent and each Lender, as to the matters set
forth in Exhibit G and such other matters concerning the Loan Parties
and the Loan Documents as the Required Lenders may reasonably request;


 


(vi)          a
certificate of a Responsible Officer of each Loan Party either (A) attaching
copies of all consents, licenses and approvals required in connection with the
execution, delivery and performance by such Loan Party and the validity against
such Loan Party of the Loan Documents to which it is a party, and such
consents, licenses and approvals shall be in full force and effect, or (B)
stating that no such consents, licenses or approvals are so required;


 


(vii)         a
certificate signed by a Responsible Officer of the Company certifying (A) that
the conditions specified in Sections 4.02(a) and (b) have been
satisfied, and (B) that, except as disclosed in any filings made with the SEC,
there has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect;


 


(viii)        evidence
that the Existing Credit Agreement has been or concurrently with the Closing
Date is being terminated and all Liens, if any, securing obligations under the
Existing Credit Agreement have been or concurrently with the Closing Date are
being released; and


 


(ix)           such
other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required
Lenders reasonably may require.


 


(b)           Any fees and expenses
required to be paid on or before the Closing Date shall have been paid.


 


(c)           The Company shall have
paid all Attorney Costs of the Administrative Agent to the extent invoiced
prior to or on the Closing Date, plus such additional amounts of Attorney Costs
as shall constitute its reasonable estimate of Attorney Costs incurred or to be
incurred by it


 


54

















 


through the closing proceedings
(provided that such estimate shall not thereafter preclude a final
settling of accounts between the Company and the Administrative Agent).


 


(d)           Without limiting the
generality of the last paragraph of Section 9.03, for purposes of determining
compliance with the conditions specified in this Section 4.01, each
Lender that has signed this Agreement shall redeem to have consented to,
approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


 


4.02      Conditions to all Credit
Extensions. The obligation of each Lender to honor any Request for Credit
Extension (other than a Committed Loan Notice requesting only a conversion of
Committed Loans to the other Type, or a continuation of Eurocurrency Rate
Loans) and an increase in Commitments in accordance with Section 2.14 is
subject to the following conditions precedent:


 


(a)           The representations and
warranties of the Borrowers and each other Loan Party contained in Article V
or any other Loan Document, or which are contained in any document furnished by
the Borrowers or any other Loan Party at any time under or in connection
herewith or therewith, shall be true and correct in all material respects on
and as of the date of such Credit Extension and any Increase Effective Date,
except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they shall be true and correct in all
material respects as of such earlier date, and except that for purposes of this
Section 4.02, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 shall be deemed to refer to the
most recent statements furnished pursuant to clauses (a) and (b), respectively,
of Section 6.01.


 


(b)           No Default shall exist,
or would result from such proposed Credit Extension or increase in Aggregate
Commitments in accordance with Section 2.14.


 


(c)           The Administrative
Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have
received a Request for Credit Extension or the certificate referred to in Section
2.14(b) with respect to any increase in Aggregate Commitments, as
applicable, in
accordance with the requirements hereof.


 


Each Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Committed Loans to the other Type or a
Committed Loan Notice) and certificate referred to in Section 2.14(b)
with respect to any increase in the Aggregate Commitments, as applicable, submitted by the
Borrowers shall be deemed to be a representation and warranty that the
conditions specified in Sections 4.02(a) and (b) have been
satisfied on and as of the date of the applicable Credit Extension or the
Increase Effective Date, as applicable.


 


ARTICLE V


REPRESENTATIONS AND WARRANTIES


 


Each of the Company and the European Borrower (solely with respect to
the following Sections 5.01 – 5.04, Section 5.05(c), Sections
5.06 – 5.11, Section 5.13 – 5.16 and Section 5.17


 


55

















 


in the case of
the European Borrower) represents and warrants to the Administrative Agent and
the Lenders that:


 


5.01      Existence, Qualification and
Power; Compliance with Laws. Each Loan Party (a) is a corporation,
partnership or limited liability company duly organized or formed, validly
existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and
all requisite governmental licenses, authorizations, consents and approvals to
(i) own its assets and carry on its business and (ii) execute, deliver and
perform its obligations under the Loan Documents to which it is a party, (c) is
duly qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (d) is in
compliance with all Laws; except in each case referred to in clause (b)(i), (c)
or (d), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.


 


5.02      Authorization; No
Contravention. The execution, delivery and performance by each Loan Party
of each Loan Document to which such Person is party, have been duly authorized
by all necessary corporate or other organizational action, and do not and will
not (a) contravene the terms of any of such Person’s Organization Documents;
(b) conflict with or result in any breach or contravention of, or the creation
of any Lien under, (i) any Contractual Obligation to which such Person is a
party or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Person or its property is
subject; or (c) violate any Law. No Subsidiary of a Borrower is in breach of
any Contractual Obligation, the breach of which could be reasonably likely to
have a Material Adverse Effect.


 


5.03      Governmental Authorization;
Other Consents. No approval, consent, exemption, authorization, or other
action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution,
delivery or performance by, or enforcement against, any Loan Party of this
Agreement or any other Loan Document.


 


5.04      Binding Effect. This
Agreement has been, and each other Loan Document, when delivered hereunder,
will have been, duly executed and delivered by each Loan Party that is party
thereto. This Agreement constitutes, and each other Loan Document when so
delivered will constitute, a legal, valid and binding obligation of such Loan
Party, enforceable against each Loan Party that is party thereto in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditor’s
rights generally or by equitable principles relating to enforceability.


 


5.05      Financial Statements; No
Material Adverse Effect.


 


(a)           The most recently
delivered Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present in all material respects
the financial condition of the Company and its Subsidiaries as of the date
thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied


 


56

















 


throughout the period covered
thereby, except as otherwise expressly noted therein; and (iii) show all
material indebtedness and other liabilities, direct or contingent, of the
Company and its Subsidiaries as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness.


 


(b)           The most recently
delivered unaudited consolidated financial statements of the Company and its
Subsidiaries and the related consolidated statements of income, shareholders’
equity and cash flows for the fiscal quarter ended on that date (i) were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein, and (ii) fairly
present in all material respects the financial condition of the Company and its
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments.


 


(c)           Except as disclosed in
any filings made with the SEC, since the date of the Audited Financial
Statements, there has been no event or circumstance, either individually or in
the aggregate, that has had or could reasonably be expected to have a Material
Adverse Effect.


 


5.06      Litigation. Except as
set forth on Schedule 5.06 hereto, there are no actions, suits,
proceedings, claims or disputes pending or, to the knowledge of the Borrowers
after due and diligent investigation, threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, by or against
either Borrower or any of its Subsidiaries or against any of their properties
or revenues (collectively “Pending Litigation”) that (a) purport to
affect or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby, or (b) either individually or in the
aggregate, if determined adversely, could reasonably be expected to have a
Material Adverse Effect. All Pending Litigation, where the amount claimed is
more than $1,000,000, is disclosed on Schedule 5.06 hereto.


 


5.07      No Default. Neither
Borrower nor any Subsidiary is in default under or with respect to any
Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has
occurred and is continuing or would result from the consummation of the
transactions contemplated by this Agreement or any other Loan Document.


 


5.08      Ownership of Property; Liens.
Each of the Borrowers and each Subsidiary has good record and marketable title
in fee simple to, or valid leasehold interests in, all real property necessary
or used in the ordinary conduct of its business, except for such defects in
title as could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. The property of each of the Borrowers and its
Subsidiaries is subject to no Liens, other than Liens permitted by Section
7.01.


 


5.09      Environmental Compliance.
To the best current knowledge of each Borrower and its subsidiaries, there are
no existing or threatened claims against Borrower and its subsidiaries for
violation of any Environmental Law in the operation of their respective business
and properties that, except as specifically disclosed in Schedule 5.09,
such claims for violation


 


57

















 


of
Environmental Laws could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.


 


5.10      Insurance. The
properties of each Borrower and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of either Borrower, in
such amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar
properties in localities where such Borrower or the applicable Subsidiary
operates.


 


5.11      Taxes. Each Borrower and
its Subsidiaries have filed all Federal, state and other material tax returns
and reports required to be filed, except to the extent that failure to have
done so would not result in a Material Adverse Effect, and have paid all
Federal, state and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings diligently conducted and for which adequate reserves
have been provided in accordance with GAAP. To the best knowledge of each
Borrower and its Subsidiaries, there is no proposed tax assessment against such
Borrower or any Subsidiary that would, if made, have a Material Adverse Effect.


 


5.12      ERISA Compliance.


 


(a)           Except as disclosed on Schedule
5.12, each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received
a favorable determination letter from the IRS or an application for such a
letter is currently being processed by the IRS with respect thereto and, to the
best knowledge of the Company, nothing has occurred which would prevent, or
cause the loss of, such qualification. Except as disclosed on Schedule 5.12,
the Company and each ERISA Affiliate have made all required contributions to
each Plan subject to Section 412 of the Code, and no application for a funding
waiver or an extension of any amortization period pursuant to Section 412 of
the Code has been made with respect to any Plan.


 


(b)           There are no pending
or, to the best knowledge of the Company, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan
that could be reasonably be expected to have a Material Adverse Effect. There
has been no prohibited transaction or violation of the fiduciary responsibility
rules with respect to any Plan that has resulted or could reasonably be
expected to result in a Material Adverse Effect.


 


(c)           Except as disclosed on Schedule
5.12, (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the
Company nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Company nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Sections 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the Company
nor


 


58

















 


any ERISA Affiliate has engaged
in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.


 


5.13      Subsidiaries. As of the
Closing Date, neither  Borrower has
any Subsidiaries other than those specifically disclosed in Part (a) of Schedule
5.13 and neither has any equity investments in any other corporation or
entity other than those specifically disclosed in Part(b) of Schedule 5.13.


 


5.14      Margin Regulations;
Investment Company Act.


 


(a)           Neither Borrower is
engaged and neither will engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the FRB), or extending credit for the purpose
of purchasing or carrying margin stock and no proceeds of any Loans or drawings
under any Letter of Credit will be used to purchase or carry any margin stock
or to extend credit to others for the purpose of purchasing or carrying margin
stock.


 


(b)           None of the Borrowers, any
Person Controlling either Borrower, or any Subsidiary is or is required to be
registered as an “investment company” under the Investment Company Act of 1940.
Neither the making of the Loans, nor the issuance of the Letters of Credit or
the application of the proceeds or repayment thereof by the Borrowers, nor the
consummation of other transactions contemplated hereunder, will violate any
provision of any such Act or any rule, regulation or order of the SEC.


 


5.15      Disclosure. The
Borrowers have disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. No report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on behalf of any
Loan Party to the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact (known to the Borrowers in the case
of any document not furnished by the Borrowers) or omits to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that,
with respect to projected financial information, each Borrower represents only
that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time, it being recognized by the Lenders that
such projections as to future events are not viewed as facts and that actual
results during the period or periods covered by any such projections may differ
significantly from the projected results.


 


5.16      Compliance with Laws. Each
Borrower and each Subsidiary is in compliance in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a)
such requirement of Law or order, writ, injunction or decree is being contested
in good faith by appropriate proceedings diligently conducted or (b) the
failure to comply therewith, either


 


59

















 


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


 


5.17      Intellectual Property;
Licenses, Etc. Each Borrower and its Subsidiaries own, or possess the right
to use, all of the material trademarks, service marks, trade names, copyrights,
patents, patent rights, franchises, licenses and other intellectual property
rights (collectively, “IP Rights”) that are reasonably necessary for the
operation of their respective businesses and, except as disclosed in Schedule
5.17, are not aware of any conflicts between such rights and the rights of
any other Person which could reasonably be expected to have a Material Adverse
Effect. Except as specifically disclosed in Schedule 5.17, no claim or
litigation regarding any IP Rights is pending or, to the knowledge of either
Borrower, threatened, which, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.


 


5.18      Title IV Compliance. With
respect to each Educational Institution which participates in Title IV:


 


(a)           Each Educational
Institutional is (or, in the case of any Educational Institution acquired on or
after the Closing Date, immediately prior to the acquisition such Educational
Institution was, and in the ordinary course of review by the DOE, will be) an “eligible
proprietary institution of higher education,” as defined in 34 C.F.R. Section
600.5.


 


(b)           Each Educational Institution
has (or, in the case of any Educational Institution acquired on or after the
Closing Date, immediately prior to the acquisition such Educational Institution
was, and in the ordinary course of review by the DOE, will have) received an
eligibility notification, as that term is defined in 34 C.F.R. Section 600.21.


 


(c)           Each Educational
Institution has (or, in the case of any Educational Institution acquired on or
after the Closing Date, immediately prior to the acquisition such Educational
Institution was, and in the ordinary course of review by the DOE, will have)
met the standards for participation in Title IV Programs as set forth in 34
C.F.R. Section 668.16, and has a current program participation agreement with
the Secretary.


 


(d)           Each Educational
Institution has at all times during which it has been owned by the Company or a
Subsidiary of the Company acted with the competency and integrity necessary to
qualify as a fiduciary in the administration of Title IV Programs, as provided
by 34 C.F.R. Section 668.82.


 


(e)           To the best of the
Company ‘s and each of its Subsidiary’s knowledge, and except as disclosed on Schedule
5.18(e), the Company and each such Subsidiary’s operations with respect to
each Educational Institution at all times during which it has been owned by the
Company or a Subsidiary of the Company, have, in all material respects, been
conducted in all material respects in accordance with all relevant standards
imposed by Accrediting Bodies, agencies administering state or federal government
student aid programs in which any such Subsidiary participates, and all other
applicable laws and regulations. The Company and each of its Subsidiaries, at
all times during which it has been owned by the Company or a Subsidiary of the
Company, have submitted all reports, audits and other information, whether
periodic in


 


60

















 


nature or
pursuant to specific requests, for each Educational Institution (“Compliance
Reports”) to all agencies or other entities with which such filings are
required relating to its compliance with (i) applicable accreditation standards
governing its activities or (ii) laws or regulations governing programs
pursuant to which any Subsidiary or its students receive funding, and (iii) all
articulation agreements, if any, with degree-granting colleges and universities
in effect as of the date of this Agreement, except to the extent that failure
to submit any such Compliance Report would not result in a Material Adverse
Effect. To the best of the Company’s and each such Subsidiary’s knowledge, all
such forms and records with respect to each Educational Institution have, at
all times during which it has been owned by the Company or a Subsidiary of the
Company, been prepared, completed, maintained and filed in all material
respects in accordance with all applicable federal and state laws and
regulation, and are true and correct in all material respects. To the best
knowledge of the Company and each Subsidiary of the Company, all financial aid grants
and loans, disbursements and record keeping relating thereto with respect to
each Educational Institution, at all times during which it has been owned by
the Company or a Subsidiary of the Company, have been completed in substantial
compliance with all federal and state requirements, and there are no material
deficiencies in respect thereto. To the best of the Company’s and each of its
Subsidiaries’ knowledge and except as previously disclosed in prior audits by
DOE, no student at any Educational Institution has been funded prior to the
date for which such student was eligible for funding, except to the extent that
such prior funding would not have a Material Adverse Effect, and such student’s
records conform in all material respects in form and substance to all relevant
regulatory requirements.


 


(f)            To the best of the
Company’s and each of its Subsidiaries knowledge, they have received no notice
as to the calculation or publication of the cohort default rates for any
Educational Institution for the federal cohort year 2007.


 


As used in
this section, all terms, unless otherwise defined herein, shall have the
meanings as set forth in the citations referred to above or as otherwise
defined in 34 C.F.R., Part 600 or Part 668, as the context requires.


 


ARTICLE VI


AFFIRMATIVE COVENANTS


 


So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Company shall, and shall (except in the
case of the covenants set forth in Sections 6.01, 6.02, 6.03
and 6.11) cause each Subsidiary to, and the European Borrower shall
(solely with respect to the last paragraph of Section 6.02 and all of Sections
6.03 – 6.13):


 


6.01      Financial Statements. Deliver
to the Administrative Agent and each Lender, in form and detail satisfactory to
the Administrative Agent and the Required Lenders:


 


(a)           as soon as available,
but in any event within 95 days after the end of each fiscal year of the
Company, a consolidated balance sheet of the Company and its Subsidiaries as at
the end of such fiscal year, and the related consolidated statements of income,
shareholders’ equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for


 


61

















 


the previous fiscal year, all
in reasonable detail and prepared in accordance with GAAP, audited and
accompanied by a report and opinion of an independent certified public
accountant of nationally recognized standing reasonably acceptable to the
Administrative Agent, which report and opinion shall be prepared in accordance
with generally accepted auditing standards and shall not be subject to any “going
concern” or like qualification or exception or any qualification or exception
as to the scope of such audit; and


 


(b)           as soon as available,
but in any event within 50 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company, a consolidated balance sheet of
the Company and its Subsidiaries as at the end of such fiscal quarter, and the
related consolidated statements of income, shareholders’ equity and cash flows
for such fiscal quarter and for the portion of the Company’s fiscal year then
ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail and certified by
a Responsible Officer of the Company as fairly presenting in all material
respects the financial condition, results of operations, shareholders’ equity
and cash flows of the Company and its Subsidiaries in accordance with GAAP,
subject only to normal year-end audit adjustments and the absence of footnotes.


 


As to any
information contained in materials furnished pursuant to Section 6.02(e),
the Company shall not be separately required to furnish such information under
clause (a) or (b) above, but the foregoing shall not be in derogation of the
obligation of the Company to furnish the information and materials described in
subsections (a) and (b) above at the times specified therein.


 


6.02      Certificates; Other
Information. Deliver to the Administrative Agent and each Lender, in form
and detail satisfactory to the Administrative Agent and the Required Lenders:


 


(a)           concurrently with the
delivery of the financial statements referred to in Section 6.01(a), a
certificate of its independent certified public accountants certifying such
financial statements and stating that in making the examination necessary
therefor no knowledge was obtained of any Default under the financial covenants
set forth herein or, if any such Default shall exist, stating the nature and
status of such event setting forth the details of such Default and the action
that the Company has taken or proposes to take with respect thereto;


 


(b)           concurrently with the
delivery of the financial statements referred to in Sections 6.01(a) and
(b), a duly completed Compliance Certificate signed by a Responsible
Officer of the Company;


 


(c)           promptly after any
request by the Administrative Agent, copies of any detailed audit reports,
management letters or recommendations submitted to the board of directors (or
the audit committee of the board of directors) of the Company by independent
accountants in connection with the accounts or books of the Company or any
Subsidiary, or any audit of any of them;


 


(d)           [intentionally
omitted];


 


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(e)           promptly after the same
are available, copies of each annual report, proxy or financial statement or
other report or communication sent to the stockholders of the Company, and
copies of all annual, regular, periodic and special reports and registration
statements which the Company may file or be required to file with the SEC under
Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise
required to be delivered to the Administrative Agent pursuant hereto; and


 


(f)            promptly, such
additional information regarding the business, financial or corporate affairs
of the Company or any Subsidiary, or compliance with the terms of the Loan
Documents, as the Administrative Agent or any Lender may from time to time
reasonably request.


 


Documents required to be delivered pursuant to Sections 6.01(a)
or (b) or Section 6.02(e) (to the extent any such documents are
included in materials otherwise filed with the SEC) may be delivered
electronically and if so delivered, shall be deemed to have been delivered on
the date (i) on which the Company posts such documents, or provides a link
thereto on the Company’s website on the Internet at the website address listed
on Schedule 10.02; or (ii) on which such documents are posted on the
Company’s behalf on IntraLinks/IntraAgency 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: (x) the Company shall deliver paper copies of
such documents to the Administrative Agent or any Lender that requests the
Company to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and
(y) the Company shall notify (which may be by facsimile or electronic mail) the
Administrative Agent and each Lender of the posting of any such documents and
provide to the Administrative Agent by electronic mail electronic versions (i.e.,
soft copies) of such documents. Notwithstanding anything contained herein, in
every instance the Company shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(b) to the
Administrative Agent and each of the Lenders. Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Company with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.


 


The Borrowers hereby acknowledge that (a) the Administrative Agent
and/or the Lead Arranger will make available to the Lenders and the L/C Issuer
materials and/or information provided by or on behalf of the Borrowers
hereunder (collectively, “Borrower Materials”) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”)
and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that
do not wish to receive material non-public information with respect to the
Borrowers or their securities) (each, a “Public Lender”). The Borrowers
hereby agree that (i) all Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum,
shall mean that the word “PUBLIC” shall appear prominently on the first page
thereof; (ii) by marking the Borrower Materials “PUBLIC,” the Borrowers shall
be deemed to have authorized the Administrative Agent, the Arranger, the L/C
Issuer and the Lenders to treat the Borrower Materials as not containing any
material non-public


 


63

















 


information with respect to the
Borrowers or their respective securities for purposes of United States Federal
and state securities laws (provided, however that to the extent
such borrowed materials constitute Information they shall be treated as set
forth in Section 10.08); (iii) 
all Borrower Materials marked as “PUBLIC” are permitted to be made
available to a portion of the Platform designated as “Public Investor;” and
(iv) the Administrative Agent and the Arranger shall be entitled to treat any
Borrower Materials that are not marked “PUBLIC” as being suitable only for
posting on a portion of the Platform not designated “Public Investor.”  Notwithstanding the foregoing, neither
Borrower shall be under any obligation to mark any borrower material “PUBLIC”. Notwithstanding
anything herein to the contrary, Borrower Materials delivered pursuant to Section
6.02(c) shall be deemed to be and treated as private documents and shall
not be distributed to Public Lenders.


 


6.03      Notices. Promptly notify
the Administrative Agent and each Lender:


 


(a)           of the occurrence of
any Default;


 


(b)           of any matter that has
resulted or could reasonably be expected to result in a Material Adverse
Effect, including (i) any material breach or material non-performance of, or
any material default under, a Contractual Obligation of either Borrower or any
Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
suspension between either Borrower or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting either Borrower or any Subsidiary, including
pursuant to any applicable Environmental Laws;


 


(c)           of the occurrence of
any ERISA Event;


 


(d)           of any material change
in accounting policies or financial reporting practices by either Borrower or
any Subsidiary; and


 


Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer of the Company setting forth details of the
occurrence referred to therein and stating what action the Company has taken
and proposes to take with respect thereto. Each notice pursuant to Section
6.03(a) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.


 


6.04      Payment of Obligations. Pay
and discharge as the same shall become due and payable, all its obligations and
liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are
being contested in good faith by appropriate proceedings diligently conducted
and adequate reserves in accordance with GAAP are being maintained by each
Borrower or such Subsidiary; (b) all lawful claims which, if unpaid, would by
law become a Lien upon its property; and (c) all Indebtedness, as and when due
and payable, but subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness unless the same are being
contested in good faith by appropriate proceedings diligently conducted and
adequate reserves in accordance with GAAP are being maintained by each Borrower
or such Subsidiary.


 


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6.05      Preservation of Existence,
Etc. (a) Preserve, renew and maintain in full force and effect its legal
existence and good standing under the Laws of the jurisdiction of its
organization except in a transaction permitted by Sections 7.04 or 7.05,
and except that (i) the Company shall not be required to maintain the existence
or good standing of any Subsidiary which (A) when taken together with all other
Subsidiaries which have been dissolved pursuant hereto in the aggregate during
any consecutive twelve (12) month period, accounts for less than ten percent
(10%) of Consolidated EBITDA for such twelve (12) month period and (B)
preservation thereof is no longer desirable in the conduct of business of the
Company or its Subsidiaries and (ii) so long as any Committed Loans to the
European Borrower are outstanding or the Commitment to make Committed Loans to
the European Borrower is in effect, (A) the Company and the European Borrower
shall be required to maintain the existence of the European Borrower, and (B)
the Company shall retain a 100% ownership interest, either directly or
indirectly through one or more wholly-owned Subsidiaries, in the European
Borrower; (b) take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or desirable in the normal conduct
of its business, except to the extent that failure to do so (other than with
respect to the European Borrower) could not reasonably be expected to have a
Material Adverse Effect; and (c) preserve or renew all of its registered
patents, trademarks, trade names and service marks, the non-preservation of
which (other than with respect to the European Borrower) could reasonably be
expected to have a Material Adverse Effect.


 


6.06      Maintenance of Properties.
(a) Maintain, preserve and protect all of its material properties and equipment
necessary in the operation of its business in good working order and condition,
ordinary wear and tear excepted; (b) make all necessary repairs thereto and
renewals and replacements thereof except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (c) use the
standard of care typical in the industry in the operation and maintenance of
its facilities.


 


6.07      Maintenance of Insurance.
Maintain with financially sound and reputable insurance companies not
Affiliates of either Borrower, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar business, of such types and in such
amounts as are customarily carried under similar circumstances by such other
Persons.


 


6.08      Compliance with Laws. Comply
in all material respects with the requirements of all Laws and all orders,
writs, injunctions and decrees applicable to it or to its business or property,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or a bona fide dispute exists with respect
thereto; or (b) the failure to comply therewith could not reasonably be
expected to have a Material Adverse Effect.


 


6.09      Books and Records. (a)  Maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Company or such Subsidiary, as the case may be; and
(b) maintain such books of record and account in


 


65

















 


material
conformity with all applicable requirements of any Governmental Authority having
regulatory jurisdiction over either Borrower or such Subsidiary, as the case
may be.


 


6.10      Inspection Rights. Permit
not more than two times per year representatives and independent contractors of
the Administrative Agent and each Lender, at its expense, to visit and inspect
any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its directors, officers, and independent
public accountants, all at the expense of the Administrative Agent or such
Lender, as applicable, and at such reasonable times during normal business
hours, upon reasonable advance notice to the applicable Borrower; provided,
however, that when an Event of Default exists the Administrative Agent
or any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the Borrowers as
often as may be desired during normal business hours and without advance
notice.


 


6.11      Use of Proceeds. Use the
proceeds of the Credit Extensions for Permitted Acquisitions, to refinance
certain existing indebtedness outstanding, to support the issuance of standby
letters of credit and for general corporate purposes not in contravention of
any Law or of any Loan Document.


 


6.12      Additional Guarantors. Notify
the Administrative Agent at the time that any Person becomes a Domestic
Subsidiary, and promptly thereafter (and in any event within 30 days), cause
such Person to (a) become a Guarantor by executing and delivering to the
Administrative Agent a counterpart of the Subsidiary Guaranty or such other
document as the Administrative Agent shall deem appropriate for such purpose,
and (b) deliver to the Administrative Agent documents of the types referred to
in clauses (iii) and (iv) of Section 4.01(a) and favorable opinion(s) of
counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to in
clause (a)), all in form, content and scope reasonably satisfactory to the
Administrative Agent.


 


6.13      Acquisitions. Prior to
consummating any Acquisition with a value in excess of $25,000,000, the Company
shall have delivered to the Administrative Agent (in form and detail reasonably
satisfactory to each Lender and in sufficient copies for each Lender) the
following:


 


(i)            Simultaneously
with, or as soon as practicable after, the first public announcement of the
Company’s intention to consummate an Acquisition, a brief summary of the
substantive terms thereof, or if available, a copy of the executed purchase or
merger agreement, together with a copy of such announcement;


 


(ii)           At
least 10 days prior to the consummation of such Acquisition (unless the first public
announcement thereof or the execution of the relevant purchase or merger
agreement occurs later, in which case upon such later date), a copy, certified
by a Responsible Officer of the Company, of the executed purchase contract or
merger agreement relating to such Acquisition; and


 


66

















 


(iii)          An
Officer’s certificate, executed by a Responsible Officer of the Company, dated
the date of consummation of such Acquisition, certifying that immediately
before and after giving effect to such Acquisition (A) no Default has occurred
and is continuing or will exist, (B) that the Company will be in compliance on
a pro forma basis with each of the financial ratios specified in Section
7.11 as of the end of the fiscal quarter immediately preceding such
Acquisition for which financial statements have been delivered pursuant to Section
6.01 for the twelve-month period preceding such fiscal quarter end,
together with a reasonably detailed worksheet setting forth the calculation of
such ratios and (C) that the Acquisition is a Permitted Acquisition.


 


6.14      Title IV Compliance. The
Company and (i) each of its Subsidiaries with annual revenues of more than
$15,000,000 and (ii) its Subsidiaries representing no less than 85% of the
aggregate annual revenues of the Company and its Subsidiaries on a consolidated
basis shall:


 


(a)           Other than actions in
connection with an Acquisition for which the Company shall use its best efforts
to obtain favorable DOE review of a pre-acquisition review application in
connection with the Acquisition, take no action which would cause any
Educational Institution to fail to qualify as an “eligible institution,” as
defined in 34 C.F.R. Section 600.2, including without limitation, under 34
C.F.R. Section 600.40;


 


(b)           Other than actions in
connection with an Acquisition for which the Company shall use its best efforts
to obtain favorable DOE review of a pre-acquisition review application in
connection with the Acquisition, take no action which would cause any
Educational Institution to fail to qualify as a Proprietary Institution of
Higher Education in accordance with 34 C.F.R. Section 600.5;


 


(c)           Not permit more than
ninety percent (90%) of each Educational Institution’s revenues during the most
recent fiscal year to be derived from Title IV Program Funds based on the
formula set forth in 34 C.F.R. Section 600.5(d) and with respect to any
Educational Institution acquired after the Closing Date, the Company shall have
until the end of the next subsequent fiscal year of the Company to bring such
Educational Institution in compliance with the first clause of this Section
6.14(c);


 


(d)           Other than actions in
connection with an Acquisition, maintain each Educational Institution as an
institution that is accredited, as defined in 34 C.F.R. Section 600.2;


 


(e)           Submit a materially
complete application for a renewal of certification to the Secretary at least
ninety (90) days prior to the expiration of such Educational Institution’s
current period of participation or, in the event of the Secretary’s selection
of an Educational Institution for recertification, submit a materially
completed application for renewal to the Secretary on or before the date
specified in the notice of selection for recertification;


 


(f)            Comply with the
application procedures set forth in 34 C.F.R. Section 600.20;


 


(g)           Other than actions in
connection with an Acquisition for which the Company shall use its best efforts
to obtain favorable DOE review of a pre-acquisition review application in
connection with the Acquisition, take no action that would cause any
Educational Institution


 


67

















 


to undergo a change of
ownership that would result in a change of control, as set forth in 34 C.F.R.
Section 600.31;


 


(h)           Cause each Educational
Institution to meet the standards for participation in Title IV Programs in 34
C.F.R., Part 668, Subpart B, and to have a current program participation
agreement with the Secretary or in the case of an Acquisition, immediately following
approval by the DOE, take such action as is necessary to comply with the
foregoing;


 


(i)            Monitor and use its
best efforts to prevent the Federal student aid published cohort default rate
for each Educational Institution from exceeding twenty-five percent (25%) for
any three consecutive 12-month periods or forty percent (40%) for any twelve
month period; and


 


(j)            Cause each Educational
Institution to comply with the standard of conduct required of a fiduciary in
the administration of Title IV Programs, as set forth in 34 C.F.R. Section
668.82.


 


As used in
this section, all terms shall have the meanings as set forth in the citations
referred to above or as otherwise defined in 34 C.F.R., Part 600 or Part 668,
as the context requires.


 


ARTICLE VII


NEGATIVE COVENANTS


 


So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Company shall not, nor shall it permit any
Subsidiary to, directly or indirectly:


 


7.01      Liens. Create, incur,
assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, other than the following:


 


(a)           Liens pursuant to any
Loan Document;


 


(b)           Liens existing on the
date hereof and listed on Schedule 7.01 and any renewals or extensions
thereof, provided that the property covered thereby is not increased and
any renewal or extension of the obligations secured or benefited thereby is
permitted by Section 7.03(b);


 


(c)           Liens for taxes not yet
due or which are being contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves with respect thereto are maintained
on the books of the applicable Person in accordance with GAAP;


 


(d)           carriers’, warehousemen’s,
mechanics’, materialmen’s, repairmen’s or other like Liens arising in the
ordinary course of business which are not overdue for a period of more than 30
days or which are being contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves with respect thereto are maintained
on the books of the applicable Person in accordance with GAAP;


 


68














 


(e)           pledges or deposits in
the ordinary course of business in connection with workers’ compensation,
unemployment insurance and other social security legislation, other than any
Lien imposed by ERISA;


 


(f)            deposits to secure the
performance of bids, trade contracts and leases (other than Indebtedness),
statutory obligations, surety bonds (other than bonds related to judgments or
litigation), performance bonds and other obligations of a like nature incurred
in the ordinary course of business;


 


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


 


(h)           Liens securing
judgments for the payment of money not constituting an Event of Default under Section
8.01(h) or securing appeal or other surety bonds related to such judgments;


 


(i)            Liens securing
Indebtedness permitted under Section 7.03(e); provided that (i)
such Liens do not at any time encumber any property other than the property
financed by such Indebtedness and (ii) the Indebtedness secured thereby does
not exceed the cost or fair market value, whichever is lower, of the property
being acquired on the date of acquisition;


 


(j)            Liens on fixed assets
when acquired in connection with Permitted Acquisitions;


 


(k)           Liens arising from
precautionary uniform commercial code financing statements filed under any
lease, consignment arrangement or bailment permitted by this Agreement;


 


(l)            Liens on the Company’s
assets in favor of Guarantors securing loans and advances to the Company which
have been subordinated pursuant to the Subsidiary Guaranty; and


 


(m)          Liens in an aggregate
amount not to exceed $30,000,000 at any time outstanding securing Indebtedness
permitted hereunder.


 


7.02      Investments. Make any
Investments, except:


 


(a)           Investments held by the
Company or such Subsidiary in the form of cash equivalents or short-term
marketable debt securities;


 


(b)           advances to officers,
directors and employees of the Company and Subsidiaries in an aggregate amount
not to exceed $1,000,000 at any time outstanding, for travel, entertainment,
relocation and analogous ordinary business purposes to the extent permitted
under Sarbanes-Oxley;


 


(c)           Investments of the
Company in any Guarantor and Investments of any Subsidiary in the Company or in
any Guarantor;


 


69

















 


(d)           Existing Investments by
the Company in any Subsidiary which is not a Guarantor and additional
Investments not exceeding $50,000,000 at any one time outstanding;


 


(e)           Investments consisting
of extensions of credit in the nature of accounts receivable or notes
receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent reasonably
necessary in order to prevent or limit loss;


 


(f)            Guarantees permitted
by Section 7.03;


 


(g)           Permitted Acquisitions;
and


 


(h)           other Investments not
exceeding 15% of Consolidated Net Worth.


 


7.03      Indebtedness. Create,
incur, assume or suffer to exist any Indebtedness, except:


 


(a)           Indebtedness under the
Loan Documents and the Canadian Facility Agreement;


 


(b)           Indebtedness
outstanding on the date hereof and listed on Schedule 7.03 and any
refinancings, refundings, renewals or extensions thereof; provided that
the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder;


 


(c)           Guarantees of any Loan
Party in respect of Indebtedness otherwise permitted hereunder of any other
Loan Party;


 


(d)           obligations (contingent
or otherwise) of the Company or any Subsidiary existing or arising under any
Swap Contract, provided that (i) such obligations are (or were) entered
into by such Person in the ordinary course of business for the purpose of
directly mitigating risks associated with liabilities, commitments,
investments, assets, or property held or reasonably anticipated by such Person,
or changes in the value of securities issued by such Person, and not for
purposes of speculation or taking a “market view;” and (ii) such Swap Contract
does not contain any provision exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the defaulting
party;


 


(e)           Indebtedness in respect
of capital leases, Synthetic Lease Obligations and purchase money obligations
for fixed or capital assets within the limitations set forth in Section
7.01(i); provided, however, that the aggregate amount of all
such Indebtedness at any one time outstanding shall not exceed $50,000,000;


 


(f)            so long as no Default
has occurred and is continuing or would result therefrom,  unsecured
Indebtedness in an aggregate principal amount not to exceed $100,000,000 at any
time outstanding; provided
that such Indebtedness is not senior in right of payment to the payment of the
Indebtedness arising under this Agreement and the Loan Documents; and


 


 


70

















 


(g)           Indebtedness in an
aggregate principal amount not to exceed $50,000,000 at any time outstanding in
respect of surety bonds and similar instruments issued in the ordinary course
of business.


 


7.04      Fundamental Changes. Merge,
dissolve, liquidate, consolidate with or into another Person, or Dispose of
(whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person, except that, so long as no Default exists or would
result therefrom:


 


(a)           any Subsidiary (i)
other than the European Borrower may merge with the Company, provided
that the Company shall be the continuing or surviving Person, or (ii) may merge
with any one or more other Subsidiaries, provided that (A) when any
Guarantor is merging with another Subsidiary, the Guarantor shall be the
continuing or surviving Person; and (B) when the European Borrower is merging
with another Subsidiary, the European Borrower shall be the continuing or
surviving Person; and


 


(b)           any Subsidiary other
than the European Borrower may Dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to the Company or to another
Subsidiary; provided that if the transferor in such a transaction is a
wholly-owned Subsidiary, then the transferee must either be the Company or a
wholly-owned Subsidiary.


 


7.05      Dispositions. Make any
Disposition or enter into any agreement to make any Disposition, except:


 


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


 


(b)           Dispositions of
inventory in the ordinary course of business;


 


(c)           Dispositions of
equipment or real property to the extent that (i) such property is exchanged
for credit against the purchase price of similar replacement property or (ii)
the proceeds of such Disposition are reasonably promptly applied to the
purchase price of such replacement property within 180 days of such
Disposition;


 


(d)           Dispositions of
property by any Subsidiary other than the European Borrower to the Company or
to a wholly-owned Subsidiary; provided that if the transferor of such
property is a Guarantor, the transferee thereof must either be the Company or a
Guarantor;


 


(e)           Dispositions permitted
by Section 7.04;


 


(f)            Dispositions of
Eligible Student Accounts Receivable; provided, however, that the
gross book value of all Dispositions of Eligible Student Accounts Receivable
permitted by this Section 7.05(f) shall not, in the aggregate, exceed
$50,000,000 in any Fiscal Year;


 


(g)           Dispositions of the
Discontinued Operations; and


 


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(h)           any other Disposition
not otherwise permitted under this Section 7.05 so long as (i) no Event
of Default has occurred and is continuing immediately before and after giving
effect to such Disposition and (ii) the book value of the assets so Disposed of
as permitted by this Section 7.05(h) shall not, in the aggregate, exceed
five percent (5%) of the total assets of the Company and its Subsidiaries;


 


provided,
however, that any Disposition pursuant to clauses (a) through (h) shall
be for fair market value.


 


7.06      Restricted Payments. Declare
or make, directly or indirectly, any Restricted Payment, or incur any
obligation (contingent or otherwise) to do so, except that:


 


(a)           each Subsidiary may
make Restricted Payments to the Company and to wholly-owned Subsidiaries (and,
in the case of a Restricted Payment by a non-wholly-owned Subsidiary, to the
Company and any Subsidiary and to each other owner of capital stock or other
equity interests of such Subsidiary on a pro rata basis based on their relative
ownership interests);


 


(b)           the Company and each
Subsidiary may declare and make dividend payments or other distributions
payable solely in the common stock or other common equity interests of such
Person;


 


(c)           the Company and each
Subsidiary may purchase, redeem or otherwise acquire shares of its common stock
or other common equity interests or warrants or options to acquire any such
shares with the proceeds received from the substantially concurrent issue of
new shares of its common stock or other common equity interests;


 


(d)           the Company and each Subsidiary
may make any other Restricted Payment not otherwise permitted under this Section
7.06, so long as the Consolidated Net Worth of the Company and its
Subsidiaries is equal to or greater than $750,000,000 (net of charges arising
from or relating to the Disposition of any Discontinued Operations) and no
Default or Event of Default shall have occurred and be continuing both
immediately before and immediately after giving effect to such Restricted
Payment; and


 


(e)           the Company may make
payment in its common stock in connection with a Permitted Acquisition.


 


7.07      Change in Nature of Business.
Engage in any material line of business substantially different from those
lines of business conducted by the Company and its Subsidiaries on the date
hereof or any business substantially related or incidental thereto.


 


7.08      Transactions with Affiliates.
Enter into any transaction of any kind with any Affiliate of the Company,
whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to the Company or such Subsidiary
as would be obtainable by the Company or such Subsidiary at the time in a
comparable arm’s length transaction with a Person other than an Affiliate.


 


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7.09      Burdensome Agreements. Enter
into any Contractual Obligation (other than this Agreement or any other Loan
Document) that (a) limits the ability (i) of any Subsidiary to make Restricted
Payments to the Company or any Guarantor or to otherwise transfer property to
the Company or any Guarantor, (ii) of any Subsidiary to Guarantee the
Indebtedness of the Company or (iii) of the Company or any Subsidiary to
create, incur, assume or suffer to exist Liens on property of such Person; provided,
however, that this clause (iii) shall not prohibit any negative pledge
incurred or provided in favor of any holder of Indebtedness permitted under Section
7.03(e) solely to the extent any such negative pledge relates to the
property financed by or the subject of such Indebtedness; or (b) requires the
grant of a Lien to secure an obligation of such Person if a Lien is granted to
secure another obligation of such Person.


 


7.10      Use of Proceeds. Use or
permit the European Borrower to the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose.


 


7.11      Financial Covenants.


 


(a)           Consolidated Fixed
Charge Coverage Ratio. Permit the Consolidated Fixed Charge Coverage Ratio
as of the end of any fiscal quarter of the Company from and after September 30,
2007 to be less than 1.50:1.00.


 


(b)           Consolidated
Leverage Ratio. Permit the Consolidated Leverage Ratio as of the end of any
fiscal quarter of the Company to be greater than 3.00:1.00.


 


(c)           DOE Financial
Responsibility Composite Ratio. Permit the DOE Ratio, for the Company and
its Subsidiaries on a consolidated basis, as of the last day of any fiscal year
of the Company to be less than 1.50.


 


ARTICLE VIII      

EVENTS OF DEFAULT AND REMEDIES


 


8.01      Events of Default. Any
of the following shall constitute an Event of Default:


 


(a)           Non-Payment. Either
Borrower or any other Loan Party fails to pay (i) when and as required to be
paid herein, and in the currency required hereunder, any amount of principal of
any Loan or any L/C Obligation, or (ii) within three days after the same
becomes due, any interest on any Loan or on any L/C Obligation, or any
commitment or other fee due hereunder, or (iii) within five days after the same
becomes due, any other amount payable hereunder or under any other Loan Document;
or


 


(b)           Specific Covenants.
(i) the Company fails to perform or observe any term, covenant or agreement
contained in any of Section 6.01, 6.02, 6.05, 6.10
or 6.11 or Article VII, (ii) the Parent fails to perform or
observe any term, covenant or agreement contained in the Parent Guaranty or any
Guarantor fails to perform or observe any term, covenant or agreement contained
in the Subsidiary Guaranty, or (iii) the European Borrower fails to perform or
observe


 


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any term,
covenant or agreement contained in any of Section 6.01, 6.02, 6.05,
6.10 or 6.11 or Article VII applicable to it; or


 


(c)           Other Defaults. Any
Loan Party fails to perform or observe any other covenant or agreement (not
specified in subsection (a) or (b) above) contained in any Loan Document on its
part to be performed or observed and such failure continues for 30 days after
the earlier of (i) knowledge by an executive officer of such Loan Party or (ii)
notice thereof has been received by either Borrower from the Administrative
Agent or any Lender; or


 


(d)           Representations and
Warranties. Any representation, warranty, certification or statement of
fact made or deemed made by or on behalf of the Borrowers or any other Loan
Party herein, in any other Loan Document, or in any document delivered in
connection herewith or therewith shall be materially incorrect or misleading
when made or deemed made; or


 


(e)           Cross-Default. (i)
The Borrowers or any Subsidiary (A) fail to make any payment when due (whether
by scheduled maturity, required prepayment, acceleration, demand, or otherwise)
in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder
and Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing
to all creditors under any combined or syndicated credit arrangement) of more
than $10,000,000, or (B) fail to observe or perform any other agreement or
condition relating to any such Indebtedness or Guarantee or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event occurs, the effect of which default or other event is to cause, or to
permit the holder or holders of such Indebtedness or the beneficiary or
beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder
or holders or beneficiary or beneficiaries) to cause, with the giving of notice
if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an
offer to repurchase, prepay, defease or redeem such Indebtedness to be made,
prior to its stated maturity, or such Guarantee to become payable or cash
collateral in respect thereof to be demanded; or (ii) there occurs under any
Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which a
Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or (B) any Termination Event (as so defined) under such Swap Contract
as to which a Borrower or any Subsidiary is an Affected Party (as so defined)
and, in either event, the Swap Termination Value owed by a Borrower or such
Subsidiary as a result thereof is greater than $10,000,000; or (iii) there
occurs any event of default under the Canadian Facility Agreement; or


 


(f)            Insolvency
Proceedings, Etc. Any Loan Party or any of its Subsidiaries institutes or
consents to the institution of any proceeding under any Debtor Relief Law, or
makes an assignment for the benefit of creditors; or applies for or consents to
the appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or
consent of such Person and the appointment continues undischarged or unstayed
for 60 calendar days; or any proceeding under any Debtor Relief Law relating to
any such Person or to all or any material part of its


 


74

















 


property is
instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or


 


(g)           Inability to Pay
Debts; Attachment. (i) The Borrowers or any Subsidiary become unable or
admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the property of
any such Person and is not released, vacated or fully bonded within 30 days
after its issue or levy; or


 


(h)           Judgments. There
is entered against either Borrower or any Subsidiary (i) a final judgment or
order for the payment of money in an aggregate amount exceeding $20,000,000 (to
the extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage), or (ii) any one or more non-monetary final
judgments that have, or could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B)
there is a period of 30 consecutive days during which a stay of enforcement of
such judgment, by reason of a pending appeal or otherwise, is not in effect; or


 


(i)            ERISA. (i) An ERISA
Event occurs with respect to a Pension Plan or Multiemployer Plan which has
resulted or could reasonably be expected to result in liability of the Company
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in
an aggregate amount in excess of $10,000,000, or (ii) the Company or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in
excess of the $10,000,000; or


 


(j)            Invalidity of Loan
Documents. Any Loan Document, at any time after its execution and delivery
and for any reason other than as expressly permitted hereunder or satisfaction
in full of all the Obligations, ceases to be in full force and effect; or any
Loan Party or any other Person contests in any manner the validity or
enforceability of any Loan Document; or any Loan Party denies that it has any
or further liability or obligation under any Loan Document, or purports to
revoke, terminate or rescind any Loan Document;


 


(k)           Regulatory
Noncompliance. The Company or any Subsidiary fails to comply in any
material respect with any of the terms and provisions of any material license,
permit or regulation issued by the DOE or of any Governmental Authority; or


 


(l)            Change of Control.
There occurs any Change of Control with respect to the Company.


 


8.02      Remedies Upon Event of
Default. If any Event of Default occurs and is continuing, the Administrative
Agent shall, at the request of, or may, with the consent of, the Required
Lenders, take any or all of the following actions:


 


(a)           declare the commitment
of each Lender to make Loans and any obligation of the L/C Issuer to make L/C
Credit Extensions to be terminated, whereupon such commitments and obligation
shall be terminated;


 


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(b)           declare the unpaid
principal amount of all outstanding Loans, all interest accrued and unpaid
thereon, and all other amounts owing or payable hereunder or under any other
Loan Document to be immediately due and payable, without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived
by the Borrowers;


 


(c)           require that the
Company Cash Collateralize the L/C Obligations (in an amount equal to the
Dollar Equivalent Outstanding Amount thereof); and


 


(d)           exercise on behalf of
itself, the Lenders and the L/C Issuer all rights and remedies available to it,
the Lenders and the L/C Issuer under the Loan Documents or applicable law;


 


provided,
however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Company under the Bankruptcy Code of the
United States or equivalent with respect to the European Borrower under any
applicable Debtor Relief Law, the obligation of each Lender to make Loans and
any obligation of the L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans
and all interest and other amounts as aforesaid shall automatically become due
and payable, and the obligation of the Company to Cash Collateralize the L/C
Obligations as aforesaid shall automatically become effective, in each case
without further act of the Administrative Agent or any Lender.


 


8.03      Application of Funds. After
the exercise of remedies provided for in Section 8.02 (or after the
Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section 8.02), any amounts received on account
of the Obligations shall be applied by the Administrative Agent in the
following order:


 


First, to payment of that portion of the
Obligations constituting fees, indemnities, expenses and other amounts
(including Attorney Costs and amounts payable under Article III) payable
to the Administrative Agent in its capacity as such;


 


Second, to payment of that portion of the
Obligations constituting fees, indemnities and other amounts (other than
principal and interest) payable to the Lenders (including Attorney Costs and
amounts payable under Article III), ratably among them in proportion to
the amounts described in this clause Second payable to them;


 


Third, to payment of that portion of the
Obligations constituting accrued and unpaid interest on the Loans and L/C
Borrowings, ratably among the Lenders in proportion to the respective amounts
described in this clause Third payable to them;


 


Fourth, to payment of that portion of the
Obligations constituting unpaid principal of the Loans and L/C Borrowings,
ratably among the Lenders in proportion to the respective amounts described in
this clause Fourth held by them;


 


Fifth, to the Administrative Agent for the
account of the L/C Issuer, to Cash Collateralize that portion of L/C
Obligations comprised of the aggregate undrawn amount of Letters of Credit; and


 


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Last, the balance, if any, after all of the
Obligations have been indefeasibly paid in full, to the Company or the European
Borrower, as the case may be, or as otherwise required by Law.


 


Subject to Section
2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of
Letters of Credit pursuant to clause Fifth above shall be applied to
satisfy drawings under such Letters of Credit as they occur. If any amount
remains on deposit as Cash Collateral after all Letters of Credit have either
been fully drawn or expired, such remaining amount shall be applied to the other
Obligations, if any, in the order set forth above.


 


ARTICLE IX

ADMINISTRATIVE AGENT


 


9.01      Appointment and
Authorization of Administrative Agent.


 


(a)           Each Lender hereby
irrevocably appoints, designates and authorizes the Administrative Agent to
take such action on its behalf under the provisions of this Agreement and each
other Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere herein or in any other Loan
Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent or any Agent-Related Person have or be deemed to have (i)
any fiduciary relationship with any Lender or participant, and no implied
fiduciary or other covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent and Agent-Related Persons,
regardless of whether a Default has occurred and is continuing; or (ii) except
as expressly set forth herein and in any other Loan Document, any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to any of the Company or the European Borrower or any of their
respective Affiliates that is communicated to or obtained by the Person serving
at the Administrative Agent or any of its Affiliates in any capacity. Without
limiting the generality of the foregoing sentence, the use of the term “agent”
herein and in the other Loan Documents with reference to the Administrative Agent
is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable Law. Instead, such
term is used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting
parties.


 


(b)           The Administrative
Agent shall not liable for any action taken or not taken by it (i) with the
consent of or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent
shall in good faith shall be necessary, under the circumstances as provided in Sections
10.01 and 8.02) or (ii) in the absence of its own gross negligence
or willful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent by the Company, the European Borrower, any
Lender or the L/C Issuer.


 


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(c)           The Administrative
Agent shall not be responsible for or have any duty to,  ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement or any
other Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or
therewith, (iii) the performance or observance of any covenants, agreements or
other terms or conditions set forth herein or therein or the occurrence of any
Default, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement, any other Loan Document or any other agreement, instrument or
document or (v) the satisfaction of any condition set forth in Article IV
or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.


 


(d)           The L/C Issuer shall
act on behalf of the Lenders with respect to any Letters of Credit issued by it
and the documents associated therewith, and the L/C Issuer shall have all of
the benefits and immunities (i) provided to the Administrative Agent in this Article
IX with respect to any acts taken or omissions suffered by the L/C Issuer
in connection with Letters of Credit issued by it or proposed to be issued by
it and the applications and agreements for letters of credit pertaining to such
Letters of Credit as fully as if the term “Administrative Agent” as used in
this Article IX and in the definition of “Agent-Related Person” included
the L/C Issuer with respect to such acts or omissions, and (ii) as additionally
provided herein with respect to the L/C Issuer.


 


9.02      Delegation of Duties. The
Administrative Agent may execute any of its duties under this Agreement or any
other Loan Document by or through agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel and other consultants or experts
concerning all matters pertaining to such duties. The Administrative Agent
shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.


 


9.03      Liability of Administrative
Agent. No Agent-Related Person shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Agreement
or any other Loan Document or the transactions contemplated hereby (except for
its own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any Lender
or participant for any recital, statement, representation or warranty made by
any Loan Party or any officer thereof, contained herein or in any other Loan
Document, or in any certificate, report, statement or other document referred
to or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of any Loan Party or any other
party to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party or
any Affiliate thereof.


 


9.04      Reliance by
Administrative Agent.


 


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(a)           The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any writing, communication, signature, resolution, representation, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, electronic mail message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to any Loan Party), independent accountants
and other experts selected by the Administrative Agent. The Administrative
Agent shall be fully justified in failing or refusing to take any action under
any Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or consent of
the Required Lenders (or such greater number of Lenders as may be expressly
required hereby in any instance) and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders.


 


(b)           For purposes of determining
compliance with the conditions specified in Section 4.01, each Lender
that has signed this Agreement shall be deemed to have consented to, approved
or accepted or to be satisfied with, each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to a
Lender unless the Administrative Agent shall have received notice from such
Lender prior to the proposed Closing Date specifying its objection thereto.


 


9.05      Notice of Default. The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default, except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Administrative Agent
for the account of the Lenders, unless the Administrative Agent shall have
received written notice from a Lender or the Borrowers referring to this
Agreement, describing such Default and stating that such notice is a “notice of
default.”  The Administrative Agent will
notify the Lenders of its receipt of any such notice. The Administrative Agent
shall take such action with respect to such Default as may be directed by the
Required Lenders in accordance with Article VIII; provided, however,
that unless and until the Administrative Agent has received any such direction,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default as it shall
deem advisable or in the best interest of the Lenders.


 


9.06      Credit Decision; Disclosure
of Information by Administrative Agent. Each Lender acknowledges that no
Agent-Related Person has made any representation or warranty to it, and that no
act by the Administrative Agent hereafter taken, including any consent to and
acceptance of any assignment or review of the affairs of any Loan Party or any
Affiliate thereof, shall be deemed to constitute any representation or warranty
by any Agent-Related Person to any Lender as to any matter, including whether
Agent-Related Persons have disclosed material information in their possession. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and


 


79

















 


investigation
into the business, prospects, operations, property, financial and other
condition and creditworthiness of the Loan Parties and their respective
Subsidiaries, and all applicable bank or other regulatory Laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Borrowers and the other Loan Parties
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrowers
and the other Loan Parties. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Administrative Agent
herein, the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the
business, prospects, operations, property, financial and other condition or
creditworthiness of any of the Loan Parties or any of their respective
Affiliates which may come into the possession of any Agent-Related Person.


 


9.07      Indemnification of
Administrative Agent. Whether or not the transactions contemplated hereby
are consummated, the Lenders shall indemnify upon demand each Agent-Related
Person (to the extent not reimbursed by or on behalf of any Loan Party and
without limiting the obligation of any Loan Party to do so), pro rata, and hold
harmless each Agent-Related Person from and against any and all Indemnified
Liabilities incurred by it; provided, however, that no Lender
shall be liable for the payment to any Agent-Related Person of any portion of
such Indemnified Liabilities to the extent determined in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from such
Agent-Related Person’s own gross negligence or willful misconduct; provided,
however, that no action taken in accordance with the directions of the
Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. In the case of any investigation,
litigation or proceeding giving rise to Indemnified Liabilities, this Section
9.07 applies whether any such investigation, litigation or proceeding is
brought by any Lender or any other Person. Without limitation of the foregoing, each
Lender shall reimburse the Administrative Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any
other Loan Document, or any document contemplated by or referred to herein, to
the extent that the Administrative Agent is not reimbursed for such expenses by
or on behalf of the Borrowers. The undertaking in this Section shall survive
termination of the Aggregate Commitments, the payment of all other Obligations
and the resignation of the Administrative Agent.


 


9.08      Administrative Agent in its
Individual Capacity. Bank of America and its Affiliates may make loans to,
issue letters of credit for the account of, accept deposits from, acquire
equity interests in and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with each of the Loan Parties and
their respective Affiliates as though Bank of America were not the
Administrative Agent or the L/C Issuer hereunder and


 


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without notice
to or consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, Bank of America or its Affiliates may receive information regarding
any Loan Party or its Affiliates (including information that may be subject to
confidentiality obligations in favor of such Loan Party or such Affiliate) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, Bank of America
shall have the same rights and powers under this Agreement as any other Lender
and may exercise such rights and powers as though it were not the
Administrative Agent or the L/C Issuer, and the terms “Lender” and “Lenders”
include Bank of America in its individual capacity.


 


9.09      Successor Administrative
Agent. The Administrative Agent may resign as Administrative Agent upon 30
days’ notice to the Lenders; provided that any such resignation by Bank
of America shall also constitute its resignation as L/C Issuer and Swing Line
Lender. If the Administrative Agent resigns under this Agreement, the Required
Lenders shall appoint from among the Lenders a successor administrative agent
for the Lenders, which successor administrative agent shall be consented to by
the Company at all times other than during the existence of an Event of Default
(which consent of the Company shall not be unreasonably withheld or delayed). If
no successor administrative agent is appointed prior to the effective date of
the resignation of the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and the Company, a successor
administrative agent from among the Lenders. Upon the acceptance of its
appointment as successor administrative agent hereunder, the Person acting as
such successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent, L/C Issuer and Swing Line Lender
and the respective terms “Administrative Agent,” “L/C Issuer” and “Swing Line
Lender” shall mean such successor administrative agent, Letter of Credit issuer
and swing line lender, and the retiring Administrative Agent’s appointment,
powers and duties as Administrative Agent shall be terminated and the retiring
L/C Issuer’s and Swing Line Lender’s rights, powers and duties as such shall be
terminated, without any other or further act or deed on the part of such
retiring L/C Issuer or Swing Line Lender or any other Lender, other than the
obligation of the successor L/C Issuer to issue letters of credit in
substitution for the Letters of Credit, if any, existing at the time of such succession or to make other
arrangements satisfactory to the retiring L/C Issuer to effectively assume the
obligations of the retiring L/C Issuer with respect to such Letters of Credit. After
any retiring Administrative Agent’s resignation hereunder as Administrative
Agent, the provisions of this Article IX and Sections 10.04 and 10.05
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent’s notice of
resignation, the retiring Administrative Agent’s resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above.


 


9.10      Administrative Agent May
File Proofs of Claim. In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and


 


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payable as
herein expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Company) shall be
entitled and empowered, by intervention in such proceeding or otherwise:


 


(a)             to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary
or advisable in order to have the claims of the Lenders, the L/C Issuer and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other
amounts due to the Lenders, the L/C Issuer and the Administrative Agent under Sections
2.03(i) and (j), 2.09 and 10.04) allowed in such
judicial proceeding; and


 


(b)             to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


 


and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender and/or the L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders or L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections
2.09 and 10.04.


 


Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.


 


9.11      Guaranty Matters. The
Lenders irrevocably authorize the Administrative Agent, at its option and in
its discretion to release any Guarantor from its obligations under the
Subsidiary Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder. Upon request by the Administrative Agent at
any time, the Required Lenders will confirm in writing the Administrative Agent’s
authority to release any Guarantor from its obligations under the Subsidiary
Guaranty pursuant to this Section 9.12.


 


9.12      Other Agents; Arrangers and
Managers. None of the Lenders or other Persons identified on the facing
page or signature pages of this Agreement as a “syndication agent,” “documentation
agent,” “co-agent,” “book manager,” “bookrunner,” “lead manager,” “arranger,” “lead
arranger” or “co-arranger” shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be deemed
to have any fiduciary relationship with any Lender. Each Lender  acknowledges that it has not relied, and
will not rely, on any of the


 


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Lenders or
other Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.


 


ARTICLE X          

MISCELLANEOUS


 


10.01    Amendments, Etc. No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Borrowers or any other Loan
Party therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders and the Borrowers or the applicable
Loan Party, as the case may be, and acknowledged by the Administrative Agent,
and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however,
that no such amendment, waiver or consent shall:


 


(a)           waive any condition set
forth in Sections 4.01(a) or 4.03(a) without the written consent
of each Lender;


 


(b)           extend or increase the
Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section
8.02) without the written consent of such Lender;


 


(c)           postpone any date fixed
by this Agreement or any other Loan Document for any payment of principal,
interest, fees or other amounts due to the Lenders (or any of them) or any
scheduled or mandatory reduction of the Aggregate Commitments hereunder or
under any other Loan Document without the written consent of each Lender
directly affected thereby;


 


(d)           reduce the principal
of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or
(subject to clause iv of the second proviso to this Section 10.01) any
fees or other amounts payable hereunder or under any other Loan Document, or
change the manner of computation of any financial ratio (including any change
in any applicable defined term) used in determining the Applicable Rate that
would result in a reduction of any interest rate on any Loan or any fee payable
hereunder without the written consent of each Lender directly affected thereby;
provided, however, that only the consent of the Required Lenders
shall be necessary to amend the definition of “Default Rate” or to waive any
obligation of the Borrowers to pay interest or Letter of Credit Fees at the
Default Rate;


 


(e)           change Section 2.13
or Section 8.03 in a manner that would alter the pro rata sharing of
payments required thereby without the written consent of each Lender;


 


(f)            change any provision
of this Section or the definition of “Required Lenders” or any other provision
hereof specifying the number or percentage of Lenders required to amend, waive
or otherwise modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender;


 


(g)           except as permitted by Section
9.11, release all or substantially all of the Guarantors from the
Subsidiary Guaranty or the Parent from the Parent Guaranty without the written
consent of each Lender;


 


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(h)           amend Section 1.09
or the definition of “Alternative Currency” without the written consent of each
Lender;


 


and, provided
further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any
Issuer Document relating to any Letter of Credit issued or to be issued by it;
(ii) no amendment, waiver or consent shall, unless in writing and signed by the
Swing Line Lender in addition to the Lenders required above, affect the rights
or duties of the Swing Line Lender under this Agreement; (iii) no amendment,
waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Lenders required above, affect the rights or duties of
the Administrative Agent under this Agreement or any other Loan Document; (iv) the Engagement Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto; and (v) each Swap Contract may be amended, or rights
and privileges thereunder waived, in a writing executed only by the parties
thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender
shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender.


 


10.02    Notices and Other
Communications; Facsimile Copies.


 


(a)           General. Unless
otherwise expressly provided herein, all notices and other communications
provided for hereunder shall be in writing (including by facsimile
transmission). All such written notices shall be mailed, faxed or delivered to
the applicable address, facsimile number or (subject to subsection (c) below)
electronic mail address, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:


 


(i)            if
to the Borrowers, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, facsimile number, electronic mail address or telephone
number specified for such Person on Schedule 10.02 or to such other
address, facsimile number, electronic mail address or telephone number as shall
be designated by such party in a notice to the other parties; and


 


(ii)           if
to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in its Administrative Questionnaire.


 


All such
notices and other communications shall be deemed to be given or made upon the
earlier to occur of (i) actual receipt by the relevant party hereto and (ii)
(A) if delivered by hand or by courier, when signed for by or on behalf of the
relevant party hereto; (B) if delivered by mail, four Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of subsection (c)
below), when delivered; provided, however, that notices and other
communications to the Administrative Agent, the L/C Issuer and the Swing Line
Lender pursuant to Article II shall not be effective until actually


 


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received by
such Person. In no event shall a voicemail message be effective as a notice,
communication or confirmation hereunder.


 


(b)           Effectiveness of
Facsimile Documents and Signatures. Loan Documents may be transmitted
and/or signed by facsimile. The effectiveness of any such documents and
signatures shall, subject to applicable Law, have the same force and effect as
manually-signed originals and shall be binding on all Loan Parties, the
Administrative Agent and the Lenders. The Administrative Agent may also require
that any such documents and signatures be confirmed by a manually-signed
original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.


 


(c)           Electronic
Communications. Notices and other communications to the Lenders and the L/C
Issuer hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall
not apply to notices to any Lender or the L/C Issuer pursuant to Article II
if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Company
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided
that approval of such procedures may be limited to particular notices or
communications.


 


Unless the Administrative Agent otherwise prescribes, (i) notices
and other communications sent to an e-mail address shall be deemed received
upon the sender’s receipt of an acknowledgement from the intended recipient
(such as by the “return receipt requested” function, as available, return
e-mail or other written acknowledgement), provided that if such notice
or other communication is not sent during the normal business hours of the
recipient, such notice or communication shall be deemed to have been sent at
the opening of business on the next business day for the recipient, and
(ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at
its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying the
website address therefor.


 


(d)           The Platform. THE
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT
WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY
OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS
FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER
MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of
its Related Parties (collectively, the “Agent Parties”) have any
liability to any Borrower, any Lender, the L/C Issuer or any other Person for
losses, claims, damages, liabilities or expenses of any kind (whether in tort,
contract or otherwise) arising out of any Borrower’s or


 


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the
Administrative Agent’s transmission of Borrower Materials through the Internet,
except to the extent that such losses, claims, damages, liabilities or expenses
are determined by a court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Agent Party; provided, however, that in no event shall any
Agent Party have any liability to any Borrower, any Lender, the L/C Issuer or
any other Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages).


 


(e)           Change of Address,
Etc. Each of the Borrowers, the Administrative Agent, the L/C Issuer and
the Swing Line Lender may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the other parties
hereto. Each other Lender may change its address, telecopier or telephone
number for notices and other communications hereunder by notice to the Company,
the Administrative Agent, the L/C Issuer and the Swing Line Lender. In
addition, each Lender agrees to notify the Administrative Agent from time to
time to ensure that the Administrative Agent has on record (i) an effective
address, contact name, telephone number, telecopier number and electronic mail
address to which notices and other communications may be sent and (ii) accurate
wire instructions for such Lender.


 


(f)            Reliance by
Administrative Agent and Lenders. Reliance by Administrative Agent and
Lenders. The Administrative Agent and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Committed Loan Notices, and
Swing Line Loan Notices) purportedly given by or on behalf of either Borrower
even if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrowers shall indemnify each Agent-Related
Person and each Lender from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by
or on behalf of the Borrowers. All telephonic notices to and other
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.


 


10.03    No Waiver; Cumulative Remedies.
No failure by any Lender or the Administrative Agent to exercise, and no delay
by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.


 


10.04    Attorney Costs, Expenses and
Taxes. The Borrowers agree (a) to pay or reimburse the Administrative Agent
for all costs and expenses incurred in connection with the preparation,
negotiation and execution of this Agreement, and the other Loan Documents and
any amendment, waiver, consent or other modification of the provisions hereof
and thereof (whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs (subject to
limitations set forth in the Engagement Letter), and (b) to pay or reimburse
the Administrative Agent and each Lender for all costs and expenses


 


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incurred in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement, or the other Loan Documents (including
all such costs and expenses incurred during any “workout” or restructuring in
respect of the Obligations and during any legal proceeding, including any
proceeding under any Debtor Relief Law), including all Attorney Costs. The
foregoing costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and other
out-of-pocket expenses incurred by the Administrative Agent and the cost of
independent public accountants and other outside experts retained by the
Administrative Agent or any Lender. All amounts due under this Section 10.04
shall be payable within ten Business Days after demand therefor. The agreements
in this Section shall survive the termination of the Aggregate Commitments and
repayment of all other Obligations.


 


10.05    Indemnification by the
Borrowers.


 


(a)           Indemnity.
Whether or not the transactions contemplated hereby are consummated, the
Borrowers shall indemnify and hold harmless each Agent-Related Person, the L/C
Issuer, each Lender and their respective Affiliates, directors, officers,
employees, counsel, agents and attorneys-in-fact (collectively the “Indemnities”)
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses and
disbursements (including Attorney Costs) of any kind or nature whatsoever which
may at any time be imposed on, incurred by or asserted against any such
Indemnity in any way relating to or arising out of or in connection with (a)
the execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection
with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit
or the use or proposed use of the proceeds therefrom (including any refusal by
the L/C Issuer to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (c) any actual or alleged presence or
release of Hazardous Materials on or from any property currently or formerly
owned or operated by the Borrowers, any Subsidiary or any other Loan Party, or
any Environmental Liability related in any way to the Borrowers, any Subsidiary
or any other Loan Party, or (d) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, investigation, litigation
or proceeding) and regardless of whether any Indemnity is a party thereto (all
the foregoing, collectively, the “Indemnified Liabilities”); provided
that such indemnity shall not, as to any Indemnity, be available to the extent
that such liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, costs, expenses or disbursements are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnity. No Indemnity shall be liable for any damages arising from the
use by others of any information or other materials obtained through IntraLinks
or other similar information transmission systems in connection with this
Agreement, nor shall any Indemnity have any liability for any indirect or
consequential damages relating to this Agreement or any other Loan Document or
arising out of its activities in connection herewith or therewith (whether
before or after the Closing Date). In the case of an investigation, litigation
or proceeding to which the indemnity in this Section 10.05 applies, such


 


87

















 


indemnity
shall be effective whether or not such investigation, litigation or proceeding
is brought by a Borrower or any of its Subsidiaries, its directors,
stockholders or auditors or an Indemnity or any other Person, whether or not
any Indemnity is otherwise a party thereto and whether or not any of the
transactions contemplated hereunder or under any of the other Loan Documents is
consummated. All amounts due under this Section 10.05 shall be payable
within ten Business Days after demand therefor. The agreements in this Section
shall survive the resignation of the Administrative Agent, the replacement of
any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.


 


(b)           Reimbursement by
Lenders. To the extent that either Borrower for any reason fails to indefeasibly
pay any amount required under subsection (a) or (b) of this Section
to be paid by it to the Administrative Agent (or any sub-agent thereof), the
L/C Issuer or any Related Party of any of the foregoing, each Lender severally
agrees to pay to the Administrative Agent (or any such sub-agent), the L/C
Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity
as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with
such capacity. The obligations of the Lenders under this subsection (b)
are subject to the provisions of Section 2.12(e).


 


(c)           Waiver of
Consequential Damages, Etc. To the fullest extent permitted by applicable
law, no Borrower shall assert, and each hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby, the transactions contemplated
hereby or thereby, any Loan or Letter of Credit or the use of the proceeds
thereof. No Indemnitee referred to in subsection (a) above shall be liable for
any damages arising from the use by unintended recipients of any information or
other materials distributed by it through telecommunications, electronic or
other information transmission systems in connection with this Agreement or the
other Loan Documents or the transactions contemplated hereby or thereby.


 


(d)           Payments. All
amounts due under this Section shall be payable not later than ten Business
Days after demand therefor.


 


(e)           Survival. The
agreements in this Section shall survive the resignation of the Administrative
Agent and the L/C Issuer, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.


 


10.06    Payments Set Aside. To the
extent that any payment by or on behalf of a Borrower is made to the
Administrative Agent or any Lender, or the Administrative Agent or any Lender
exercises its right of set-off, and such payment or the proceeds of such
set-off or any


 


88

















 


part thereof
(or the Dollar Equivalent amount thereof) is subsequently invalidated, declared
to be fraudulent or preferential, set aside or required (including pursuant to
any settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such set-off had not occurred,
and (b) each Lender severally agrees to pay to the Administrative Agent upon
demand its applicable share of any amount so recovered from or repaid by the
Administrative Agent, plus interest thereon from the date of such demand to the
date such payment is made at a rate per annum equal to the Federal Funds Rate
from time to time in effect in the applicable currency of such recovery or
payment.


 


10.07    Successors and Assigns.


 


(a)           Successors and
Assigns Generally. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby, except that no Borrower may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent, and each Lender and no Lender may assign
or otherwise transfer any of its rights or obligations hereunder except (i) to
an Eligible Assignee in accordance with the provisions of subsection (b) of
this Section 10.07, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section 10.07, or (iii) by way of
pledge or assignment of a security interest subject to the restrictions of
subsection (f) of this Section (and any other attempted assignment or transfer
by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section 10.07
and, to the extent expressly contemplated hereby, the Indemnities any legal or
equitable right, remedy or claim under or by reason of this Agreement.


 


(b)           Assignments by
Lender. Any Lender may at any time assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this
subsection (b), participations in L/C Obligations and in Swing Line Loans) at
the time owing to it); provided that any such assignment shall be
subject to the following conditions:


 


(i)            Minimum
Amounts.


 


(A)          in
the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and


 


(B)           in
any case not described in subsection (b)(i)(A) of this Section, the aggregate
amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such


 


89

















 


assignment,
determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be
less than $5 million unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Company otherwise consents
(each such consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group
will be treated as a single assignment for purposes of determining whether such
minimum amount has been met, provided, further, that concurrent
assignments to members of an Assignee Group and concurrent assignments from
members of an Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been
met.


 


(ii)           Proportionate
Amounts. Each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under
this Agreement with respect to the Loans or the Commitment assigned, except
that this clause (ii) shall not apply to the Swing Line Lender’s rights
and obligations in respect of Swing Line Loans;


 


(iii)          Required
Consents. No consent shall be required for any assignment except to the
extent required by subsection (b)(i)(B) of this Section and, in addition:


 


(A)          the
consent of the Company (such consent not to be unreasonably withheld or
delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a
Lender, an Affiliate of a Lender or an Approved Fund;


 


(B)           the
consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required if such assignment is to a Person that
is not a Lender, an Affiliate of such Lender or an Approved Fund with respect
to such Lender;


 


(C)           the
consent of the L/C Issuer (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit
(whether or not then outstanding); and


 


(D)          the
consent of the Swing Line Lender (such consent not to be unreasonably withheld
or delayed) shall be required for any assignment.


 


(iv)          Assignment
and Assumption. The parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and


 


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recordation
fee in the amount of $3,500; provided, however, that the
Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment. The assignee, if
it is not a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.


 


(v)           No
Assignment to a Borrower. No such assignment shall be made to a Borrower or
any of their respective Affiliates or Subsidiaries.


 


(vi)          No
Assignment to Natural Persons. No such assignment shall be made to a
natural person.


 


Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section 10.07, from and after the
effective date specified in each Assignment and Assumption, the Eligible
Assignee thereunder shall be a party to this Agreement and, to the extent of
the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto) but shall continue to be entitled to the benefits of Sections
3.01, 3.04, 3.05, 10.04 and 10.05 with respect
to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, each Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section 10.07.


 


(c)           Register. The
Administrative Agent, acting solely for this purpose as an agent of the
Borrowers, shall maintain at the Administrative Agent’s Office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive, and the Borrowers, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by each Borrower and the L/C Issuer at any reasonable
time and from time to time upon reasonable prior notice. In addition, at any
time that a request for a consent for a material or other substantive change of
the Loan Documents is pending, any Lender may request and receive from the
Administrative Agent a copy of the Register.


 


(d)           Participations. Any
Lender may at any time, without the consent of, or notice to, any Borrower or
the Administrative Agent, sell participations to any Person (other than a
natural person or either Borrower or any of their respective Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender’s participations in L/C
Obligations and/or Swing Line Loans) owing to it); provided that
(i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain


 


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solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrowers, the Administrative Agent, the Lenders and the L/C
Issuer shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement.


 


(i)            Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any  provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other
modification described in the first proviso to Section 10.01 that
directly affects such Participant. Subject to subsection (e) of this Section,
each Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05  to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section 10.07. To the
extent permitted by Law, each Participant also shall be entitled to the benefits
of Section 10.09  as
though it were a Lender; provided such Participant agrees to be subject
to Section 2.13 as though it were a Lender.


 


(e)           Limitation upon
Participant’s Rights. A Participant shall not be entitled to receive any
greater payment under Section 3.01 or 3.04  than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Company’s prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Company is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrowers to comply with Section
10.15 as though it were a Lender.


 


(f)            Certain Pledges.
Any Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement (including under its Note, if any)
to secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided that no such
pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.


 


(g)           Electronic Execution
of Assignments. The words “execution,” “signed,” “signature,” and words of
like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of
which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act, or any other
similar state Laws based on the Uniform Electronic Transactions Act.


 


(h)           Resignation as L/C
Issuer or Swing Line Lender after Assignment. Notwithstanding anything to
the contrary contained herein, if at any time Bank of America assigns all of
its Commitment and Loans pursuant to subsection (b) above, Bank of America


 


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may, (i) upon
30 days’ notice to the Company and the Lenders, resign as L/C Issuer and/or
(ii) upon 30 days’ notice to the Company, resign as Swing Line Lender. In the
event of any such resignation as L/C Issuer or Swing Line Lender, the Company
shall be entitled to appoint from among the Lenders a successor L/C Issuer or
Swing Line Lender hereunder; provided, however, that no failure
by the Company to appoint any such successor shall affect the resignation of
Bank of America as L/C Issuer or Swing Line Lender, as the case may be. If Bank
of America resigns as L/C Issuer, it shall retain all the rights, powers,
privileges and duties of the L/C Issuer hereunder with respect to all Letters
of Credit outstanding as of the effective date of its resignation as L/C Issuer
and all L/C Obligations with respect thereto (including the right to require
the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)). If Bank of America resigns as
Swing Line Lender, it shall retain all the rights of the Swing Line Lender
provided for hereunder with respect to Swing Line Loans made by it and
outstanding as of the effective date of such resignation, including the right
to require the Lenders to make Base Rate Loans or fund risk participations in
outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the
appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the
case may be, and (b) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to Bank of America to
effectively assume the obligations of Bank of America with respect to such
Letters of Credit.


 


10.08    Confidentiality. Each of
the Administrative Agent and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates’ directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential); (b) to the extent requested by any regulatory authority; (c) to
the extent  required by applicable laws
or regulations or by any subpoena or similar legal process; (d) to any other
party to this Agreement; (e) in connection with the exercise of any remedies
hereunder or any suit, action or proceeding relating to this Agreement or the
enforcement of rights hereunder; (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any Eligible
Assignee of or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any direct or indirect contractual counterparty or prospective counterparty (or
such contractual counterparty’s or prospective counterparty’s professional
advisor) to any credit derivative transaction relating to obligations of the
Loan Parties; (g) with the consent of the Company; (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach
of this Section or (ii) becomes available to the Administrative Agent or any
Lender on a nonconfidential basis from a source other than the Borrowers; or
(i) to the National Association of Insurance Commissioners or any other similar
organization. In addition, the Administrative Agent and the Lenders may
disclose the existence of this Agreement and information about this Agreement
to market data collectors, similar service providers to the lending industry,
and service providers to the Administrative Agent and the Lenders in connection
with the administration and management of this Agreement, the other Loan
Documents, the Commitments, and the Credit Extensions. For the purposes of this
Section,


 


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“Information”
means all information received from any Loan Party relating to any Loan Party
or its business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by any Loan Party; provided that, in the case of information
received from a Loan Party after the date hereof, such information is clearly
identified in writing at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.


 


Each of the Administrative Agent, the Lenders, and the L/C Issuer
acknowledges that (a) the Information may include material non-public
information concerning the Borrowers, the European Borrower or a Subsidiary, as
the case may be, (b) it has developed compliance procedures regarding the use
of material non-public information and (c) it will handle such material
non-public information in accordance with applicable Law, including U.S.
Federal and state securities Law.


 


10.09    Set-off.
In addition to any rights and remedies of the Lenders and L/C Issuer provided
by law, upon the occurrence and during the continuance of any Event of Default,
each Lender, the L/C Issuer and each of their Affiliates is authorized at any
time and from time to time, without prior notice to the Borrowers, any other
Loan Party, any such notice being waived by the Borrowers (on their own behalf
and on behalf of each Loan Party) to the fullest extent permitted by Law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held by, and other
obligations (in whatever currency) at any time owing by, such Lender to or for
the credit or the account of the respective Loan Parties against any and all Obligations
owing to such Lender, the L/C Issuer or such Affiliate hereunder or under any
other Loan Document, now or hereafter existing, irrespective of whether or not
the Administrative Agent or such Lender, L/C Issuer or Affiliate shall have
made demand under this Agreement or any other Loan Document and although such
Obligations may be contingent or unmatured or denominated in a currency
different from that of the applicable deposit or indebtedness. Each Lender and
the L/C Issuer agrees promptly to notify the Borrowers and the Administrative
Agent after any such set-off and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender, the L/C
Issuer in their Affiliates under this Section are in addition to other rights
and remedies (including other rights of set-off) of such Lender, the L/C Issuer
or their respective Affiliate may have.


 


10.10    Interest
Rate Limitation. Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the “Maximum Rate”). If the
Administrative Agent or any Lender shall receive interest in an amount that
exceeds the Maximum Rate, the excess interest shall be applied to the principal
of the Loans or, if it exceeds such unpaid principal, refunded to the
applicable Borrower. In determining whether the interest contracted for,
charged, or received by the Administrative Agent or a Lender exceeds the
Maximum Rate, such Person may, to the extent permitted by applicable Law, (a)
characterize any payment that is not principal as an expense, fee, or 


 


94

















 


premium rather
than interest, (b) exclude voluntary prepayments and the effects thereof, and
(c) amortize, prorate, allocate, and spread in equal or unequal parts the total
amount of interest throughout the contemplated term of the Obligations
hereunder.


 


10.11    Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.


 


10.12    Integration.
This Agreement, together with the other Loan Documents, comprises the complete
and integrated agreement of the parties on the subject matter hereof and
thereof and supersedes all prior agreements, written or oral, on such subject
matter. In the event of any conflict between the provisions of this Agreement
and those of any other Loan Document, the provisions of this Agreement shall
control; provided that the inclusion of supplemental rights or remedies
in favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was
drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.


 


10.13    Survival
of Representations and Warranties. All representations
and warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.


 


10.14    Severability.
If any provision of this Agreement or the other Loan Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.


 


10.15    Tax
Forms.


 


(a)         (i)            Each Lender that is not a “United
States person” within the meaning of Section 7701(a)(30) of the Code (a “Foreign
Lender”) shall deliver to the Administrative Agent, prior to receipt of any
payment subject to withholding under the Code (or upon accepting an assignment
of an interest herein), two duly signed completed copies of either IRS Form
W-8BEN or any successor thereto (relating to such Foreign Lender and entitling
it to an exemption 


 


95

















 


from, or
reduction of, withholding tax on all payments to be made to such Foreign Lender
by the Company or the European Borrower pursuant to this Agreement) or IRS Form
W-8ECI or any successor thereto (relating to all payments to be made to such
Foreign Lender by the Company or the European Borrower pursuant to this
Agreement) or such other evidence satisfactory to the Company and the
Administrative Agent that such Foreign Lender is entitled to an exemption from,
or reduction of, U.S. withholding tax, including any exemption pursuant to
Section 881(c) of the Code. Thereafter and from time to time, each such Foreign
Lender shall (A) promptly submit to the Administrative Agent such additional
duly completed and signed copies of one of such forms (or such successor forms
as shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to the Company and
the Administrative Agent of any available exemption from or reduction of,
United States withholding taxes in respect of all payments to be made to such
Foreign Lender by the Company or the European Borrower pursuant to this
Agreement, (B) promptly notify the Administrative Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction, and (C) take such steps as shall not be materially disadvantageous
to it, in the reasonable judgment of such Lender, and as may be reasonably
necessary (including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws that the Company or the European Borrower make
any deduction or withholding for taxes from amounts payable to such Foreign
Lender.


 


(ii)           Each Foreign
Lender, to the extent it does not act or ceases to act for its own account with
respect to any portion of any sums paid or payable to such Lender under any of
the Loan Documents (for example, in the case of a typical participation by such
Lender), shall deliver to the Administrative Agent on the date when such
Foreign Lender ceases to act for its own account with respect to any portion of
any such sums paid or payable, and at such other times as may be necessary in
the determination of the Administrative Agent (in the reasonable exercise of
its discretion), (A) two duly signed completed copies of the forms or
statements required to be provided by such Lender as set forth above, to
establish the portion of any such sums paid or payable with respect to which
such Lender acts for its own account that is not subject to U.S. withholding
tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or any
successor thereto), together with any information such Lender chooses to
transmit with such form, and any other certificate or statement of exemption
required under the Code, to establish that such Lender is not acting for its
own account with respect to a portion of any such sums payable to such Lender.


 


(iii)          Neither Borrower
shall be required to pay any additional amount to any Foreign Lender under Section
3.01 (A) with respect to any Taxes required to be deducted or withheld on
the basis of the information, certificates or statements of exemption such
Lender transmits with an IRS Form W-8IMY pursuant to this Section 10.15(a)
or (B) if such Lender shall have failed to satisfy the foregoing
provisions of this Section 10.15(a); provided that if such Lender
shall have satisfied the requirement of this Section 10.15(a) on the
date such Lender became a Lender or ceased to act for its own account with
respect to any payment under any of the Loan Documents, nothing in this Section
10.15(a) shall relieve each Borrower of its obligation to pay any amounts
pursuant to 


 


96

















 


Section 3.01
in the event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account of which
such Lender receives any sums payable under any of the Loan Documents is not
subject to withholding or is subject to withholding at a reduced rate; provided,
further, that should such Lender become subject to Taxes because of its
failure to satisfy the foregoing provisions of this Section 10.15(a) the
Borrowers shall take steps as such Lender shall reasonably request to assist
such Lender in recovering such Taxes.


 


(iv)          The Administrative
Agent may, without reduction, withhold any Taxes required to be deducted and
withheld from any payment under any of the Loan Documents with respect to which
the Company or the European Borrower is not required to pay additional amounts
under Section 3.01 or this Section 10.15(a).


 


(b)           Upon the request of the
Administrative Agent, each Lender that is a “United States person” within the
meaning of Section 7701(a)(30) of the Code shall deliver to the Administrative
Agent two duly signed completed copies of IRS Form W-9. If such Lender fails to
deliver such forms, then the Administrative Agent may withhold from any
interest payment to such Lender an amount equivalent to the applicable back-up
withholding tax imposed by the Code, without reduction.


 


(c)           If any Governmental Authority asserts
that the Administrative Agent did not properly withhold or backup withhold, as
the case may be, any Tax or other amount from payments made to or for the
account of any Lender, such Lender shall indemnify the Administrative Agent
therefor, including all penalties and interest, any Taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent under this
Section, and costs and expenses (including Attorney Costs) of the
Administrative Agent. The obligation of the Lenders under this Section shall
survive the termination of the Aggregate Commitments, repayment of all other
Obligations hereunder and the resignation of the Administrative Agent.


 


10.16    Replacement
of Lenders. Under any circumstances set forth herein
providing that the Borrowers shall have the right to replace a Lender as a
party to this Agreement, the Borrowers may, upon notice to such Lender and the
Administrative Agent, replace such Lender by causing such Lender to assign its
Commitment (with the assignment fee to be paid by the Borrowers in such
instance) pursuant to Section 10.07(b) to one or more other Lenders or
Eligible Assignees procured by the Borrowers; provided, however,
that if the Borrowers elect to exercise such right with respect to any Lender
pursuant to Section 3.06(b), they shall be obligated to replace all
Lenders that have made similar requests for compensation pursuant to Section
3.01 or 3.04. The Borrowers shall (x) pay in full all principal,
interest, fees and other amounts owing to such Lender through the date of
replacement (including any amounts payable pursuant to Section 3.05),
and (y) release such Lender from its obligations under the Loan Documents. Any
Lender being replaced shall execute and deliver an Assignment and Assumption
with respect to such Lender’s Commitment and outstanding Loans and
participations in L/C Obligations and Swing Line Loans.


 


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10.17    Governing
Law.


 


(a)           THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED
THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.


 


(b)           ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF ILLINOIS SITTING IN COOK COUNTY OR OF THE UNITED STATES
FOR THE NORTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS,
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. EACH
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY THE LAW OF SUCH STATE.


 


(c)           THE EUROPEAN BORROWER APPOINTS THE
COMPANY ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE SERVICE OF ANY AND ALL
PROCESS WHICH MAY BE SERVED IN ANY SUIT, ACTION OR PROCEEDING OF THE NATURE
REFERRED TO IN THIS SECTION 10.17.


 


10.18    Waiver
of Right to Trial by Jury. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO
OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.


 


10.19    Time
of the Essence. Time is of the essence of the Loan
Documents.


 


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10.20    Judgment
Currency. If, for the purposes of obtaining judgment
in any court, it is necessary to convert a sum due hereunder or any other Loan
Document in one currency into another currency, the rate of exchange used shall
be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the first currency with such other currency
on the Business Day preceding that on which final judgment is given. The
obligation of the Borrowers in respect of any such sum due from them to the
Administrative Agent or the Lenders hereunder or under the other Loan Documents
shall, notwithstanding any judgment in a currency (the “Judgment Currency”)
other than that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the “Agreement Currency”), be discharged
only to the extent that on the Business Day following receipt by the
Administrative Agent of any sum adjudged to be so due in the Judgment Currency,
the Administrative Agent may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency. If the amount of
the Agreement Currency so purchased is less than the sum originally due to the
Administrative Agent from the Borrowers in the Agreement Currency, each
Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Administrative Agent or the Person to whom such
obligation was owing against such loss. If the amount of the Agreement Currency
so purchased is greater than the sum originally due to the Administrative Agent
in such currency, the Administrative Agent agrees to return the amount of any
excess to the applicable Borrower (or to any other Person who may be entitled
thereto under applicable law).


 


10.21    Canadian
Commitments. Any Lender now or hereafter becoming
party to the Canadian Facility Agreement shall notify the Agent of the Dollar
Equivalent amount of its Canadian Commitment and of any change to such amount.


 


10.22    No
Advisory or Fiduciary Responsibility. In connection
with all aspects of each transaction contemplated hereby (including in
connection with any amendment, waiver or other modification hereof or of any
other Loan Document), each Borrower acknowledges and agrees that: (i) (A) the
arranging and other services regarding this Agreement provided by the
Administrative Agent, the Arranger and other Agent-Related Persons are arm’s-length
commercial transactions between such Borrower, and its Affiliates, on the one
hand, and the Administrative Agent, the Arranger and other Agent-Related
Persons on the other hand, (B)  each  such Borrower has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed
appropriate, and (C) each Borrower and the European Borrower is capable of
evaluating, and understands and accepts, the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Document; (ii) (A) the
Administrative Agent, the Arranger and the other Agent-Related Persons each is
and has been acting solely as a principal and, except as expressly agreed in
writing by the relevant parties, has not been, is not, and will not be acting
as an advisor, agent or fiduciary for such Borrower, or any of its Affiliates,
or any other Person and (B) neither the Administrative Agent, the Arranger nor
any other Agent-Related Person has any obligation to either Borrower or any of
its respective Affiliates with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Loan
Documents; and (iii) the Administrative Agent, the Arranger and the other
Agent-Related Persons and their respective Affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of Borrowers
and their respective Affiliates, and neither the Administrative Agent, the
Arranger nor any other Agent-Related 


 


99

















 


Persons has
any obligation to disclose any of such interests to the Borrowers or any of their
respective Affiliates. To the fullest extent permitted by law, each of the
Borrowers hereby waives and releases any claims that it may have against the
Administrative Agent, the Arranger and each other Agent-Related Person with
respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.


 


10.23    USA
PATRIOT Act Notice. Each Lender that is party hereto
and the Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrowers that pursuant to the requirements of the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)), it is
required to obtain, verify and record information that identifies the
Borrowers, which information includes the name and address of each Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify each Borrower in accordance with such Act.


 


100

















 


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


 


	
   

  	
  CAREER EDUCATION CORPORATION

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ MICHAEL
  J. GRAHAM

  	
   

  
	
   

  	
  Name:

  	
  Michael J.
  Graham

  	
   

  
	
   

  	
  Title: 

  	
  Executive
  Vice President, Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CEC EUROPE, LLC & INVESTORS S.C.S.

  
	
   

  	
  By: 

  	
  /s/ MICHAEL
  J. GRAHAM

  	
   

  
	
   

  	
  Name: 

  	
  Michael J.
  Graham

  	
   

  
	
   

  	
  Title: 

  	
  Manager of
  CEC Europe, LLC

  	
   

  
										



 


 


Credit
Agreement


Signature
Page


 

















 


	
   

  	
  BANK OF AMERICA, N.A., as

  
	
   

  	
  Administrative
  Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ MICHAEL
  BRASHLER

  	
   

  
	
   

  	
  Name: 

  	
  Michael
  Brashler

  	
   

  
	
   

  	
  Title: 

  	
  Vice
  President

  	
   

  
						



 


 


Credit
Agreement


Signature
Page


 

















 


	
   

  	
  BANK OF AMERICA, N.A., as a Lender, an L/C

  
	
   

  	
  Issuer and
  Swing Line Lender

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ ADAM M.
  GOETTSCHE

  	
   

  
	
   

  	
  Name:

  	
  Adam M.
  Goettsche

  	
   

  
	
   

  	
  Title: 

  	
  Senior Vice
  President

  	
   

  
					



 


 


Credit
Agreement


Signature
Page


 

















 


	
   

  	
  JP MORGAN CHASE BANK, N.A., as 

  Syndication Agent and a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ SABIR A.
  HASHMY

  	
   

  
	
   

  	
  Name:

  	
  Sabir A.
  Hashmy

  	
   

  
	
   

  	
  Title: 

  	
  Vice
  President

  	
   

  
					



 


 


Credit
Agreement


Signature
Page


 

















 


	
   

  	
  SUNTRUST BANK, as Documentation Agent and

  a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ DANIEL
  S. KOMITOR

  	
   

  
	
   

  	
  Name: 

  	
  Daniel S.
  Komitor

  	
   

  
	
   

  	
  Title: 

  	
  Director

  	
   

  
							



 


 


Credit
Agreement


Signature
Page


 

















 


	
   

  	
  FIFTH THIRD BANK (CHICAGO) A 

  MICHIGAN BANKING CORPORATION, as a 

  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ KIM
  PUSZCZEWICZ

  	
   

  
	
   

  	
  Name:

  	
  Kim
  Puszczewicz

  	
   

  
	
   

  	
  Title: 

  	
  Vice
  President

  	
   

  
						



 


 


Credit
Agreement


Signature
Page


 

















 


	
   

  	
  HSBC BANK USA, N.A., as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ ANDREW
  BICKER

  	
   

  
	
   

  	
  Name: 

  	
  Andrew
  Bicker

  	
   

  
	
   

  	
  Title: 

  	
  Vice
  President

  	
   

  
					



 


 


Credit
Agreement


Signature
Page