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Exhibit 10.1  




$35,000,000



CREDIT
AGREEMENT 


among 


SI
INTERNATIONAL, INC., 


as
Parent Borrower, 


THE
DOMESTIC SUBSIDIARIES OF THE PARENT BORROWER

FROM TIME TO TIME PARTIES HERETO,

as Subsidiary Borrowers, 


THE
LENDERS PARTIES HERETO, 


WACHOVIA
BANK, NATIONAL ASSOCIATION,

as Administrative Agent, 


and



BRANCH
BANKING AND TRUST CO. OF VIRGINIA 


and 


SUNTRUST
BANK, a Georgia banking corporation,

as Co-Documentation Agents 


Dated
as of November 15, 2002 


WACHOVIA
SECURITIES, INC.,

as Lead Arranger and Sole Book Runner 








  



 
 

TABLE OF CONTENTS    
  



	 
	 	 
	 	Page

	ARTICLE I    DEFINITIONS	 	1
	 	Section 1.1	 	Defined Terms	 	1
	 	Section 1.2	 	Other Definitional Provisions; Time References	 	21
	 	Section 1.3	 	Accounting Terms	 	22
	ARTICLE II    THE LOANS; AMOUNT AND TERMS	 	22
	 	Section 2.1	 	Revolving Loans	 	22
	 	Section 2.2	 	Letter of Credit Subfacility	 	24
	 	Section 2.3	 	Swingline Loan Subfacility	 	26
	 	Section 2.4	 	Incremental Facility	 	28
	 	Section 2.5	 	Fees	 	28
	 	Section 2.6	 	Commitment Reductions	 	29
	 	Section 2.7	 	Prepayments	 	29
	 	Section 2.8	 	Minimum Principal Amount of Tranches	 	30
	 	Section 2.9	 	Default Rate and Payment Dates	 	31
	 	Section 2.10	 	Conversion and Continuation Options	 	31
	 	Section 2.11	 	Computation of Interest and Fees	 	31
	 	Section 2.12	 	Pro Rata Treatment and Payments	 	32
	 	Section 2.13	 	Non-Receipt of Funds by the Administrative Agent	 	34
	 	Section 2.14	 	Inability to Determine Interest Rate	 	34
	 	Section 2.15	 	Illegality	 	35
	 	Section 2.16	 	Requirements of Law	 	35
	 	Section 2.17	 	Indemnity	 	36
	 	Section 2.18	 	Taxes	 	36
	 	Section 2.19	 	Indemnification; Nature of Issuing Lender's Duties	 	38
	 	Section 2.20	 	Joint and Several Liability of the Borrowers	 	39
	ARTICLE III    REPRESENTATIONS AND WARRANTIES	 	40
	 	Section 3.1	 	Financial Condition	 	40
	 	Section 3.2	 	No Change	 	40
	 	Section 3.3	 	Corporate Existence; Compliance with Law	 	40
	 	Section 3.4	 	Corporate Power; Authorization; Enforceable Obligations	 	41
	 	Section 3.5	 	Compliance with Laws; No Conflict; No Default	 	41
	 	Section 3.6	 	No Material Litigation	 	42
	 	Section 3.7	 	Investment Company Act; PUHCA; Etc.	 	42
	 	Section 3.8	 	Margin Regulations	 	42
	 	Section 3.9	 	ERISA	 	42
	 	Section 3.10	 	Environmental Matters	 	43
	 	Section 3.11	 	Purpose of Loans	 	43
	 	Section 3.12	 	Subsidiaries	 	44
	 	Section 3.13	 	Ownership; Insurance	 	44
	 	Section 3.14	 	Indebtedness	 	44
	 	Section 3.15	 	Taxes	 	44
	 	Section 3.16	 	Intellectual Property	 	44
	 	Section 3.17	 	Solvency	 	45
	 	Section 3.18	 	Investments	 	45
	 	Section 3.19	 	Location of Collateral	 	45
	 	Section 3.20	 	No Burdensome Restrictions	 	45
	 	Section 3.21	 	Brokers' Fees	 	45
	 	Section 3.22	 	Labor Matters	 	45



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	 	Section 3.23	 	Security Documents	 	45
	 	Section 3.24	 	Accuracy and Completeness of Information	 	45
	 	Section 3.25	 	Consummation of IPO	 	46
	 	Section 3.26	 	Absence of Certain Changes or Events	 	46
	 	Section 3.27	 	Material Contracts	 	46
	 	Section 3.28	 	Directors; Capitalization	 	46
	ARTICLE IV    CONDITIONS PRECEDENT	 	47
	 	Section 4.1	 	Conditions to Closing and Initial Extensions of Credit	 	47
	 	Section 4.2	 	Conditions to All Extensions of Credit	 	52
	ARTICLE V    AFFIRMATIVE COVENANTS	 	52
	 	Section 5.1	 	Financial Statements	 	52
	 	Section 5.2	 	Certificates; Other Information	 	54
	 	Section 5.3	 	Payment of Taxes and Other Obligations	 	56
	 	Section 5.4	 	Conduct of Business and Maintenance of Existence	 	56
	 	Section 5.5	 	Maintenance of Property; Insurance	 	56
	 	Section 5.6	 	Inspection of Property; Books and Records; Discussions	 	56
	 	Section 5.7	 	Notices	 	57
	 	Section 5.8	 	Environmental Laws	 	58
	 	Section 5.9	 	Financial Covenants	 	58
	 	Section 5.10	 	Additional Subsidiary Borrowers	 	59
	 	Section 5.11	 	Compliance with Law	 	59
	 	Section 5.12	 	Pledged Assets	 	59
	 	Section 5.13	 	Covenants Regarding Intellectual Property	 	59
	 	Section 5.14	 	Deposit and Securities Accounts	 	60
	 	Section 5.15	 	Post-Closing Items; Further Assurances	 	61
	ARTICLE VI    NEGATIVE COVENANTS	 	61
	 	Section 6.1	 	Indebtedness	 	61
	 	Section 6.2	 	Liens	 	62
	 	Section 6.3	 	Nature of Business	 	62
	 	Section 6.4	 	Consolidation, Merger, Sale or Purchase of Assets, etc.	 	62
	 	Section 6.5	 	Advances, Investments and Loans	 	63
	 	Section 6.6	 	Transactions with Affiliates	 	63
	 	Section 6.7	 	Ownership of Subsidiaries; Restrictions	 	64
	 	Section 6.8	 	Fiscal Year; Organizational Documents; Material Contracts	 	64
	 	Section 6.9	 	Limitation on Restricted Actions	 	64
	 	Section 6.10	 	Restricted Payments	 	64
	 	Section 6.11	 	Sale Leasebacks	 	65
	 	Section 6.12	 	No Further Negative Pledges	 	65
	 	Section 6.13	 	Amendment of Subordinated Indebtedness	 	65
	 	Section 6.14	 	Management Fees	 	65
	ARTICLE VII    EVENTS OF DEFAULT	 	65
	 	Section 7.1	 	Events of Default	 	65
	 	Section 7.2	 	Acceleration; Remedies	 	68
	ARTICLE VIII    THE AGENT	 	68
	 	Section 8.1	 	Appointment	 	68
	 	Section 8.2	 	Delegation of Duties	 	68
	 	Section 8.3	 	Exculpatory Provisions	 	69
	 	Section 8.4	 	Reliance by Administrative Agent	 	69
	 	Section 8.5	 	Notice of Default	 	69
	 	Section 8.6	 	Non-Reliance on Administrative Agent and Other Lenders	 	70



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	 	Section 8.7	 	Indemnification	 	70
	 	Section 8.8	 	Administrative Agent in Its Individual Capacity	 	70
	 	Section 8.9	 	Successor Administrative Agent	 	70
	 	Section 8.10	 	Nature of Duties	 	71
	ARTICLE IX    MISCELLANEOUS	 	71
	 	Section 9.1	 	Amendments, Waivers and Release of Collateral	 	71
	 	Section 9.2	 	Notices	 	72
	 	Section 9.3	 	No Waiver; Cumulative Remedies	 	73
	 	Section 9.4	 	Survival of Representations and Warranties	 	74
	 	Section 9.5	 	Payment of Expenses and Taxes	 	74
	 	Section 9.6	 	Successors and Assigns; Participations; Purchasing Lenders	 	74
	 	Section 9.7	 	Adjustments; Set-off	 	76
	 	Section 9.8	 	Table of Contents and Section Headings	 	77
	 	Section 9.9	 	Counterparts	 	77
	 	Section 9.10	 	Effectiveness	 	77
	 	Section 9.11	 	Severability	 	78
	 	Section 9.12	 	Integration	 	78
	 	Section 9.13	 	Governing Law	 	78
	 	Section 9.14	 	Consent to Jurisdiction and Service of Process	 	78
	 	Section 9.15	 	Arbitration	 	78
	 	Section 9.16	 	Confidentiality	 	79
	 	Section 9.17	 	Acknowledgments	 	80
	 	Section 9.18	 	Waivers of Jury Trial	 	80




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Schedules




	Schedule 1.1-1	 	Account Designation Letter
	Schedule 1.1-2	 	Permitted Liens
	Schedule 1.1-3	 	Consolidated EBITDA Adjustments
	Schedule 1.1-4	 	Existing Letters of Credit
	Schedule 2.1(a)	 	Schedule of Lenders and Commitments
	Schedule 2.1(b)(i)	 	Form of Notice of Borrowing
	Schedule 2.1(e)	 	Form of Revolving Note
	Schedule 2.3(d)	 	Form of Swingline Note
	Schedule 2.10	 	Form of Notice of Conversion/Continuation
	Schedule 2.18	 	Section 2.18 Certificate
	Schedule 3.9	 	ERISA
	Schedule 3.10	 	Environmental Matters
	Schedule 3.12	 	Subsidiaries
	Schedule 3.16	 	Intellectual Property
	Schedule 3.19(a)	 	Location of Real Property
	Schedule 3.19(b)	 	Location of Collateral
	Schedule 3.19(c)	 	Chief Executive Offices
	Schedule 3.22	 	Labor Matters
	Schedule 3.26	 	Certain Changes or Events
	Schedule 3.27	 	Material Contracts
	Schedule 3.28	 	Parent Borrower's Board of Directors and Equity Capitalization
	Schedule 4.1-1	 	Form of Secretary's Certificate
	Schedule 4.1-2	 	Mortgaged Properties
	Schedule 4.1-3	 	Form of Solvency Certificate
	Schedule 4.1-4	 	Financial Covenant Calculations
	Schedule 5.2(h)	 	Form of Borrowing Base Certificate
	Schedule 5.5(b)	 	Insurance
	Schedule 5.10	 	Form of Joinder Agreement
	Schedule 5.14	 	Deposit and Securities Accounts
	Schedule 6.1(b)	 	Indebtedness
	Schedule 9.2	 	Schedule of Lenders' Lending Offices
	Schedule 9.6(c)	 	Form of Commitment Transfer Supplement




iv









        CREDIT AGREEMENT, dated as of November 15, 2002, among SI
INTERNATIONAL, INC., a Delaware corporation, (the "Parent Borrower"), those Domestic Subsidiaries of the Parent Borrower identified as a
"Subsidiary Borrower" on the signature pages hereto and such other Domestic Subsidiaries of the Borrowers as may from time to time become a party hereto (individually a "Subsidiary
Borrower" and collectively the "Subsidiary Borrowers" and together with the Parent Borrower, each individually, a "Borrower"
and collectively the "Borrowers"), the several banks and other financial institutions as may from time to time become parties to this Agreement (individually a
"Lender" and collectively the "Lenders") and WACHOVIA BANK, NATIONAL ASSOCIATION, a national
banking association, as administrative agent for the Lenders hereunder (in such capacity, the "Administrative Agent"). 


 
 

W I T N E S S E T H:    
  


        WHEREAS, the Borrowers have requested that the Lenders make loans and other financial accommodations to the Borrowers in the amount of up to $35,000,000, as more
particularly described herein; and 


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


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


 
 

ARTICLE I    
    
    DEFINITIONS    
  


        Section 1.1    Defined
Terms.    


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



        "ABR
Default Rate" shall mean, as of any date of determination, the Alternate Base Rate plus the Applicable Percentage for Alternate Base Rate Loans in
effect on such date plus 2%. 


        "Account
Designation Letter" shall mean the Notice of Account Designation Letter dated the Closing Date from the Parent Borrower to the Administrative Agent
substantially in the form attached hereto as Schedule 1.1-1. 


        "Additional
Borrower" shall mean each Person that becomes a Subsidiary Borrower by execution of a Joinder Agreement in accordance with Section 5.10. 



        "Administrative
Agent" or "Agent" shall have the meaning set forth in the first paragraph of this Agreement and any successors
in such capacity. 


        "Affiliate"
shall mean as to any Person, any other Person (excluding any Subsidiary) which, directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. For purposes of this definition, a Person shall be deemed to be "controlled by" a Person if such Person possesses, directly or indirectly, power either
(a) to vote 10% or more of the securities having ordinary voting power for the election of directors of such Person or (b) to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise. Notwithstanding the foregoing, neither the Administrative Agent nor any Lender shall be deemed an Affiliate of any Borrower solely by reason of the
relationship created by the Credit Documents. 


        "Agreement"
shall mean this Credit Agreement, as amended, modified or supplemented from time to time in accordance with its terms. 


        "Alternate
Base Rate" shall mean, for any day, a rate per annum equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean, at any time, the rate of interest per annum 





 




publicly announced from time to time by Wachovia at its principal office in Charlotte, North Carolina as its prime rate. Each change in the Prime Rate shall be effective as of the opening of business
on the day such change in the Prime Rate occurs. The parties hereto acknowledge that the rate announced publicly by Wachovia as its Prime Rate is an index or base rate and shall not necessarily be its
lowest or best rate charged to its customers or other banks; and "Federal Funds Effective Rate" shall mean, for any day, the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published on the next succeeding Business Day, the average of the quotations for the day of such transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it. If for any reason the Administrative Agent shall have determined (which determination shall be conclusive in the absence of manifest error) that it is
unable to ascertain the Federal Funds Effective Rate, for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the definition
thereof, the Alternate Base Rate shall be determined based on the Prime Rate, until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective on the opening of business on the date of such change. 


        "Alternate
Base Rate Loans" shall mean Loans that bear interest at an interest rate based on the Alternate Base Rate. 


        "Applicable
Percentage" shall mean, for any day, the rate per annum set forth below opposite the applicable Level then in effect, it being understood that
the Applicable Percentage for (i) Alternate Base Rate Loans shall be the percentage set forth under the column "Alternate Base Rate Margin" and (ii) LIBOR Rate Loans and the Letter of
Credit Fee shall be the percentage set forth under the column "LIBOR Rate Margin/Letter of Credit Fee": 



	Level
 
	 	Leverage Ratio
	 	Alternate Base

Rate Margin
	 	LIBOR Rate Margin/

Letter of Credit Fee

	I	 	> 2.5 to 1.0 1	 	.75%	 	2.75%
	II	 	> 2.0 to 1.0 but £ 2.5 to 1.0	 	.25%	 	2.25%
	III	 	£ 2.0 to 1.0	 	1.00%	 	2.00%






        The
Applicable Percentage shall, in each case, be determined and adjusted quarterly on the date five (5) Business Days after the date on which the Administrative Agent has
received from the Parent Borrower the quarterly financial information and certifications required to be delivered to the Administrative Agent and the Lenders in accordance with the provisions of
Sections 5.1(a) and (b) and 5.2(b) (each an "Interest Determination Date"). Such Applicable Percentage shall be effective from such Interest Determination Date
until the next Interest Determination Date. The initial Applicable Percentages shall be based on Level III for the first two full fiscal quarters following the Closing Date. If the Parent Borrower
shall fail to provide the financial information and certifications in accordance with the provisions of Sections 5.1(a) and (b) and 5.2(b), the Applicable Percentage shall, on the date five
(5) Business Days after the date by which the Parent Borrower was so required to provide such financial information and certifications to the Administrative Agent and the Lenders, be based on
Level I until such time as such information and certifications are provided, whereupon the Level shall be determined by the then current Leverage Ratio. 


        "Approved
Fund" shall mean, with respect to any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and is managed by
the same investment advisor as such Lender or by an Affiliate of such investment advisor. 


        "Arranger"
shall mean Wachovia Securities, Inc., in its capacity as lead arranger and sole book runner. 


2





 



        "Asset
Coverage Ratio" shall mean with respect to the Parent Borrower and its Subsidiaries on a consolidated basis, as of any date of determination, the
ratio of (a) Net Accounts Receivable on such date of determination to (b) Funded Debt of the Parent Borrower and its Subsidiaries on such date of determination. 


        "Asset
Disposition" shall mean the disposition of any or all of the assets (including, without limitation, the Capital Stock of a Subsidiary or any ownership
interest in a joint venture) of any Borrower or any Subsidiary whether by sale, lease, transfer or otherwise. The term "Asset Disposition" shall not include any disposition pursuant to
Section 6.4(a)(i), (ii), (iv) or (vi) hereof, or any Equity Issuance. 


        "Average
Outstanding Loans" means, for any Utilization Period, the sum of the aggregate principal amount of Revolving Loans (excluding Swingline Loans) and
LOC Obligations outstanding under this
Credit Agreement as of the end of each day during such Utilization Period, divided by the number of days in such Utilization Period. 


        "Bankruptcy
Code" shall mean the Bankruptcy Code in Title 11 of the United States Code, as amended, modified, succeeded or replaced from time to time. 


        "Borrower"
or "Borrowers" shall have the meanings set forth in the first paragraph of this Agreement. For the avoidance of
doubt, "Borrower" or "Borrowers" shall not include Frontenac VII Ltd. Partnership. 


        "Borrowers'
Obligations" shall mean, without duplication, (i) all of the obligations, indebtedness and liabilities of the Borrowers to the Lenders
t(including the Issuing Lender) and the Administrative Agent, whenever arising, under this Agreement, the Notes or any of the other Credit Documents including principal, interest, fees, reimbursements
and indemnification obligations and other amounts (including, but not limited to, any interest accruing after the occurrence of a filing of a petition of bankruptcy under the Bankruptcy Code with
respect to any Borrower, regardless of whether such interest is an allowed claim under the Bankruptcy Code) and (ii) all liabilities and obligations, whenever arising, owing from any Borrower
to any Lender, or any Affiliate of a Lender, arising under any Hedging Agreement permitted by Section 6.1(e). 


        "Borrowing
Base" shall mean an amount equal to the sum of (i) 90% of Eligible Billed Government Accounts Receivable which are outstanding less than
120 days from the date of the original invoice plus (ii) 85% of Eligible Billed Commercial Accounts Receivable which are outstanding less than 90 days
from the date of the original invoice plus (iii) the lesser of (a) sum of (1) 50% of Eligible Unbilled Government Accounts Receivable and
(2) 50% of Eligible Unbilled Commercial Accounts Receivable and (b) the Unbilled Cap minus (iv) Indebtedness incurred in connection with a Permitted
Acquisition pursuant to Section 6.1(g) to the extent such Indebtedness is not subordinated to the Borrowers' Obligations on terms reasonably satisfactory to the Administrative Agent. 


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


        "Business"
shall have the meaning set forth in Section 3.10(b). 


        "Business
Day" shall mean a day other than a Saturday, Sunday or other day on which commercial banks in Charlotte, North Carolina or New York, New York are
authorized or required by law to close; provided, however, that when used in connection with a rate determination, borrowing or payment in
respect of a LIBOR Rate Loan, the term "Business Day" shall also exclude any day on which banks in London, England are not open for dealings in Dollar deposits in the London interbank market. 



        "Capital
Lease" shall mean any lease of property, real or personal, the obligations with respect to which are required to be capitalized on a balance sheet
of the lessee in accordance with GAAP. 


3





 

        "Capital
Lease Obligations" shall mean the capitalized lease obligations relating to a Capital Lease determined in accordance with GAAP. 


        "Capital
Stock" shall mean (i) in the case of a corporation, capital stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however designated) of capital stock, (iii) in the case of a partnership, partnership interests (whether general or limited),
(iv) in the case of a limited liability company, membership interests and (v) any other interest or participation that confers on a Person the right to receive a share of the profits and
losses of, or distributions of assets of, the issuing Person. 


        "Cash
Equivalents" shall mean (i) securities issued or directly and fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof) having maturities of not more than twelve months from the date of
acquisition ("Government Obligations"), (ii) U.S. dollar denominated (or foreign currency fully hedged) time deposits, certificates of deposit, Eurodollar time
deposits and Eurodollar certificates of deposit of (y) any domestic commercial bank of recognized standing having capital and surplus in excess of $250,000,000 or (z) any bank whose
short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody's is at least P-1 or the equivalent thereof (any such bank being
an "Approved Bank"), in each case with maturities of not more than 364 days from the date of acquisition, (iii) commercial paper and variable or fixed rate
notes issued by any Approved Bank (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof)
or better by S&P or P-1 (or the equivalent thereof) or better by Moody's and maturing within six months of the date of acquisition, (iv) repurchase agreements with a bank or trust
company (including a Lender) or a recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States of
America, (v) obligations of any state of the United States or any political subdivision thereof for the payment of the principal and redemption price of and interest on which there shall have
been irrevocably deposited Government Obligations maturing as to principal and interest at times and in amounts sufficient to provide such payment, and (vi) auction preferred stock rated in the
highest short-term credit rating category by S&P or Moody's. 


        "Change
of Control" shall mean the occurrence of any of the following events: (a) any "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934), other than Existing Significant Shareholders, becomes the "beneficial owner" (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934) of more than 40% of then outstanding Voting Stock of the Parent Borrower, measured by voting power rather than the number of shares; or (b) Continuing Directors shall
cease for any reason to constitute a majority of the members of the board of directors of the Parent Borrower then in office. 



        "Closing
Date" shall mean the date of this Agreement. 


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


        "Collateral"
shall mean a collective reference to the collateral which is identified in, and at any time will be covered by, the Security Documents. 


        "Commitment"
or "Revolving Commitment" shall mean, with respect to each Lender, the commitment of such Lender to make Revolving
Loans in an aggregate principal amount at any time outstanding up to the amount of such Lender's Revolving Commitment as specified on Schedule 2.1(a), as such
amount may be reduced from time to time in accordance with the provisions hereof. 


        "Commitment
Fee" shall have the meaning set forth in Section 2.5(a). 


4





 



        "Commitment
Fee Percentage" shall mean, for any Utilization Period, the percentage set forth below opposite the applicable Utilization for such Utilization
Period: 



	Utilization
	 	Commitment Fee Percentage

	> 50%	 	0.50%
	£ 50% but > 25%	 	0.75%
	£ 25%	 	1.00%






        "Commitment
Period" shall mean the period from, the Closing Date to but not including the Maturity Date. 


        "Commitment
Transfer Supplement" shall mean a Commitment Transfer Supplement, substantially in the form of
Schedule 9.6(c). 


        "Commonly
Controlled Entity" shall mean an entity, whether or not incorporated, which is under common control with any Borrower within the meaning of
Section 4001 of ERISA or is part of a group which includes any Borrower and which is treated as a single employer under Section 414 of the Code. 



        "Consolidated
Capital Expenditures" shall mean, for any period without duplication, all capital expenditures of the Parent Borrower and its Subsidiaries on a
consolidated basis for such period, including without limitation Capital Lease Obligations, as determined in accordance with GAAP. The term "Consolidated Capital Expenditures" shall not include
(a) capital expenditures assumed in connection with Permitted Acquisitions or (b) capital expenditures in respect of the reinvestment of proceeds derived from Recovery Events received by
the Parent Borrower and its Subsidiaries to the extent that such reinvestment is permitted under the Credit Documents. 


        "Consolidated
EBITDA" shall mean, for any period, without duplication, the sum of (i) Consolidated Net Income for such period,
plus (ii) an amount which, in the determination of Consolidated Net Income for such period, has been deducted for (A) Consolidated Interest Expense,
(B) total federal, state, local and foreign income, value added and similar taxes and (C) depreciation, amortization expense and other non-cash charges (except to the extent
such non-cash charges are reserves for future cash charges or in the future become cash charges), plus (iii) Permitted Acquisition EBITDA for such
period, plus (iv) adjustments set forth on Schedule 1.1-3, minus (v) amounts
received by the Credit Parties (whether from payments, reimbursements, judgments, settlements or otherwise) corresponding to the adjustments set forth on
Schedule 1.1-3, minus (vi) non-cash charges for such period to the extent such non-cash
charges increased Consolidated Net Income, all as determined in accordance with GAAP. 


        "Consolidated
Gross Revenues" shall mean total gross revenues of the Parent Borrower and its Subsidiaries on a consolidated basis as determined in accordance
with GAAP. 


        "Consolidated
Interest Expense" shall mean, for any period without duplication, all interest expense of the Parent Borrower and its Subsidiaries on a
consolidated basis (including, without limitation, the interest component under Capital Leases, but excluding any amortization of fees paid to the Lenders in connection with this Agreement), as
determined in accordance with GAAP. For purposes hereof other than the determination of Consolidated EBITDA, Consolidated Interest Expense for the first three fiscal quarters to occur after the
Closing Date shall be determined by annualizing Consolidated Interest Expense such that for the first fiscal quarter to occur after the Closing Date such interest expense would be multiplied by four
(4), the first two fiscal quarters would be multiplied by two (2) and the first three fiscal quarters would be multiplied by one and one-third (11/3);
provided that Consolidated Interest Expense for the first fiscal quarter after the Closing Date shall be equal to the actual interest expense of the Parent Borrower and
its Subsidiaries from the Closing Date to the end of such fiscal quarter. 


5





 



        "Consolidated
Net Income" shall mean, for any period without duplication, net income (excluding extraordinary items) after taxes for such period of the
Parent Borrower and its Subsidiaries on a consolidated basis, as determined in accordance with GAAP. 


        "Continuing
Directors" shall mean during any period of 24 consecutive months commencing after the Closing Date, individuals who at the beginning of such
24 month period were directors of the Parent Borrower (together with any new director whose election by the Parent Borrower's board of directors or whose nomination for election by the Parent
Borrower's shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of such period or whose election or
nomination for election was previously so approved). 


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



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


        "Copyrights"
shall mean all copyrights (other than copyrights of de minimus value) of the Parent Borrower and its Subsidiaries in all works, now existing or
hereafter created or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Copyright Office or in any similar office or agency
of the United States, any state thereof or any other country or any political subdivision thereof, or otherwise, including, without limitation, any thereof referred to in
Schedule 3.16 and all renewals thereof. 


        "Credit
Documents" shall mean this Agreement, each of the Notes, any Joinder Agreement, the Letters of Credit and any other LOC Documents, any Commitment
Transfer Supplement, the Security Documents and all other agreements, documents, certificates and instruments delivered to the Administrative Agent or any Lender by any Borrower in connection herewith
or therewith. 


        "Debt
Issuance" shall mean the issuance of any Indebtedness for borrowed money by any Borrower or any of its Subsidiaries (excluding, for purposes hereof,
any Indebtedness of any Borrower or any of its Subsidiaries permitted to be incurred pursuant to Section 6.1 hereof). 


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


        "Defaulting
Lender" shall mean, at any time, any Lender that, at such time (a) has failed to make a Loan required pursuant to the term of this
Agreement, including the funding of a Participation Interest in accordance with the terms hereof, (b) has failed to pay to the Administrative Agent or any Lender an amount owed by such Lender
pursuant to the terms of this Agreement, or (c) has been deemed insolvent or has become subject to a bankruptcy or insolvency proceeding or to a receiver, trustee or similar official. 


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


        "Domestic
Lending Office" shall mean, initially, the office of each Lender designated as such Lender's Domestic Lending Office shown on
Schedule 9.2; and thereafter, such other office of such Lender as such Lender may from time to time specify to the Administrative Agent and the Parent Borrower as
the office of such Lender at which Alternate Base Rate Loans of such Lender are to be made. 


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


6





 



        "EBITDA"
shall mean, with respect to any Person for any period of determination, without duplication, the sum of (i) net income of such Person for
such period, plus (ii) an amount which, in the determination of net income of such Person for such period, has been deducted for (A) interest expense,
(B) total federal, state, local and foreign income, value added and similar taxes and (C) depreciation, amortization expense and other non-cash charges (except to the extent
such non-cash charges are reserves for future cash charges or in the future become cash charges), all as determined in accordance with GAAP. 


        "Eligible
Billed Commercial Accounts Receivable" shall mean all accounts receivable of the Borrowers which (a) represent amounts due and owing for
products actually delivered or services actually rendered by or on behalf of a Borrower to or for the benefit of an account debtor (other than a Governmental Authority which is not a local government
or a department, agency or instrumentality thereof), (b) have been properly billed, (c) arise in the ordinary course of a Borrower's business, (d) are due, owing and not subject
to any defense, set-off or counterclaim, (e) are not final invoices and (f) are not otherwise Ineligible Receivables. 


        "Eligible
Billed Government Accounts Receivable" shall mean all accounts receivable of the Borrowers arising from Government Contracts which
(a) represent amounts due and owing for products actually delivered or services actually rendered by or on behalf of a Borrower pursuant to a Government Contract and the payment of such amounts
requires no additional performance by any Person and is not subject to any condition of payment by any Governmental Authority; i.e., all necessary written consents and approvals of Governmental
Authorities have been obtained, whether in connection with a required contract modification or otherwise, (b) have been properly billed, (c) arise in the ordinary course of a Borrower's
business, (d) are due, owing and not subject to any defense, set-off or counterclaim, (e) are not final invoices and (f) are not otherwise Ineligible Receivables. 


        "Eligible
Unbilled Commercial Accounts Receivable" shall mean all accounts receivable of the Borrowers which (a) would constitute Eligible Billed
Commercial Accounts Receivable, except such accounts receivable have not been billed, (b) are eligible to be billed to the applicable account debtor in accordance with the corresponding
contract within thirty (30) days of the "as of" date of the applicable Borrowing Base Certificate (with no additional performance required by any person, and no condition to payment by such
account debtor, other than receipt of an appropriate invoice), (c) are not (i) cost or profit retentions, (ii) progress payments or (iii) "milestone" contract payments,
except to the extent the particular "milestone" has been achieved (with no additional performance required by any Person and no condition to payment by the applicable account debtor), (d) may,
in accordance with GAAP, be included as current assets of the Borrowers, even though such amounts have not been billed to the applicable account debtor and (e) are not Ineligible Receivables. 



        "Eligible
Unbilled Government Accounts Receivable" shall mean all accounts receivable of the Borrowers arising from work actually performed by the Borrowers
pursuant to Government Contracts which (a) would constitute Eligible Billed Government Accounts Receivable, except such accounts receivable have not been billed, (b) are eligible to be
billed to Governmental Authorities in accordance with the Government Contracts within thirty (30) days of the "as of" date of the applicable Borrowing Base Certificate (with no additional
performance required by any Person, and no condition to payment by the Governmental Authorities, other than receipt of an appropriate invoice), (c) are not (i) cost or profit retentions,
(ii) variances from approved reimbursement rates relating to Government Contracts, (iii) progress payments or (iv) "milestone" contract payments, except to the extent the
particular "milestone" has been achieved (with no additional performance required by any Person, and no condition to payment by any Government Authority; i.e., all necessary written consents and
approvals of Governmental Authorities have been obtained, whether in connection with a required contract modification or otherwise), (d) may, in accordance with GAAP, be included as current
assets of the Borrowers, even though such amounts have not been billed to Governmental Authorities and (e) are not Ineligible Receivables. 


7





 



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


        "Equity
Issuance" shall mean any issuance by any Borrower or any Subsidiary to any Person which is not a Borrower of (a) shares of its Capital Stock,
(b) any shares of its Capital Stock pursuant to the exercise of options or warrants or (c) any shares of its Capital Stock pursuant to the conversion of any debt securities to equity.
The term "Equity Issuance" shall not include (i) the IPO, (ii) an equity issuance subsequent to the IPO by the Parent Borrower consisting of an underwritten public offering of the
common Capital Stock of the Parent Borrower pursuant to an effective registration statement filed with the Securities and Exchange Commission in accordance with the Securities Exchange Act,
(iii) any shares of its Capital Stock issued in connection with the exercise of stock options held by current or former directors, officers or employees of the Borrowers, (iv) any Asset
Disposition, (v) any shares of its Capital Stock issued in connection with Permitted Acquisitions, (vi) any Debt Issuance or (vii) warrants issued to Shufro Family Holdings, LLC
or Banc of America Commercial Finance Corporation. 


        "ERISA"
shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time. 


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


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


        "Existing
Letters of Credit" shall mean the letters of credit described by date of issuance, amount, purpose and the date of expiry on
Schedule 1.1-4 hereto. 


        "Existing
Significant Shareholders" shall mean members of SI International LLC (including Frontenac VII Ltd. Partnership) and members of management of
the Parent Borrower on the Closing Date that are stockholders of the Parent Borrower immediately after the consummation of the IPO. 


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


        "Federal
Funds Effective Rate" shall have the meaning set forth in the definition of "Alternate Base Rate". 


8







   
        "Fee Letter" shall mean the letter agreement dated April 19, 2002 addressed to the Parent Borrower from the Administrative Agent and First Union
Securities, Inc. acting under the tradename Wachovia Securities, as amended, modified or otherwise supplemented. 


        "Fixed
Charge Coverage Ratio" shall mean, with respect to the Parent Borrower and its Subsidiaries on a consolidated basis for the twelve month period ending
on the last day of any fiscal quarter of the Parent Borrower, the ratio of (i) Consolidated EBITDA for such period minus Consolidated Capital Expenditures for such
period to (ii) the sum of Consolidated Interest Expense paid or payable in cash for such period plus Scheduled Funded Debt Payments for such period
plus cash taxes paid during such period. Notwithstanding the foregoing, for purposes of calculating the Fixed Charge Coverage Ratio for the first three fiscal quarters to
occur after the Closing Date, the Fixed Charge Coverage Ratio shall be determined by annualizing the components of the denominator such that for the first fiscal quarter to occur after the Closing
Date such components would be multiplied by four (4), the first two fiscal quarters would be multiplied by two (2) and the first three fiscal quarters would be multiplied by one and
one-third (11/3); provided that for purposes of calculating the denominator of the Fixed Charge Coverage Ratio for the first fiscal quarter
following the Closing Date such determination shall be made by calculating the components thereof from the Closing Date to the end of such fiscal quarter. 


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


        "Funded
Debt" shall mean, with respect to any Person, without duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (c) all obligations of such Person under
conditional sale or other title retention agreements relating to property purchased by such Person (other than customary reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business), (d) all obligations of such Person incurred, issued or assumed as the deferred purchase price of property or services purchased by such Person (other
than trade debt incurred in the ordinary course of business and due within six months of the incurrence thereof) which would appear as liabilities on a balance sheet of such Person, (e) the
principal portion of all obligations of such Person under Capital Leases, (f) the maximum amount of all letters of credit issued or bankers' acceptances facilities created for the account of
such Person and, without duplication, all drafts drawn thereunder (to the extent unreimbursed), (g) all preferred Capital Stock issued by such Person and which by the terms thereof could be (at
the request of the holders thereof or otherwise) subject to mandatory sinking fund payments, redemption or other acceleration, (h) the principal balance outstanding under any synthetic lease,
tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product, (i) obligations of such Person under non-compete
agreements, (j) all obligations of such Person under Hedging Agreements, excluding any portion thereof which would be accounted for as interest expense under GAAP, (k) all Indebtedness
of others of the
type described in clauses (a) through (j) hereof secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on,
or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed; provided
that the amount of such Indebtedness shall be deemed equal to the lesser of (i) the aggregate amount of such Indebtedness and (ii) the fair market value of the property of such Person
that secures such Indebtedness, (l) all Guaranty Obligations of such Person with respect to Indebtedness of another Person of the type described in clauses (a) through (j) hereof,
and (m) all Indebtedness of the type described in clauses (a) through (j) hereof of any partnership or unincorporated joint venture in which such Person is a general partner or a
joint venturer; provided, however, that Funded Debt shall not include Indebtedness among the Borrowers to the extent such Indebtedness would
be eliminated on a consolidated basis. 


9





 



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


        "Government
Acts" shall have the meaning set forth in Section 2.19. 


        "Government
Contract" shall mean any contract entered into between any Borrower or any of its Subsidiaries and the government of the United States of
America, or any department, agency, public corporation, or other instrumentality or agent thereof or any state government or any department, agency or instrumentality or agent thereof. 


        "Governmental
Authority" shall mean any nation or government, any state or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining to government. 



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


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


        "Indebtedness"
shall mean, with respect to any Person, without duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (c) all obligations of such Person under
conditional sale or other title retention agreements relating to property purchased by such Person (other than customary reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business), (d) all obligations of such Person issued or assumed as the deferred purchase price of property or services purchased by such Person (other than trade
debt incurred in the ordinary course of business and due within six months of the incurrence thereof) which would appear as liabilities on a balance sheet of such Person, (e) all obligations of
such Person under take-or-pay or similar arrangements or under commodities agreements, (f) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not
the obligations secured thereby have been assumed; provided that the amount of such Indebtedness shall be deemed equal to the lesser of (i) the aggregate amount of such Indebtedness and
(ii) the fair market value of the property of such Person that secures such Indebtedness, (g) all Guaranty Obligations of such Person with respect to 


10





 




Indebtedness of another Person, (h) the principal portion of all Capital Lease Obligations of such Person, (i) all obligations of such Person under Hedging Agreements, excluding any
portion thereof which would be accounted for as interest expense under GAAP, (j) the maximum amount of all letters of credit issued or bankers' acceptances facilities created for the account of
such Person and, without duplication, all drafts drawn thereunder (to the extent unreimbursed), (k) all preferred Capital Stock issued by such Person and which by the terms thereof could be (at
the request of the holders thereof or otherwise) subject to mandatory sinking fund payments, redemption or other acceleration, (l) the principal balance outstanding under any synthetic lease,
tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product, (m) the Indebtedness of any partnership or unincorporated joint
venture in which such Person is a general partner or a joint venturer and (n) obligations of such Person under non-compete agreements. 


        "Ineligible
Receivable" shall mean any account receivable of the Borrowers which is (a) evidenced by a promissory note or similar instrument,
(b) owed or payable by an account debtor pursuant to a commercial contract, if payment of twenty-five percent (25%) or more of the aggregate balance due from such account debtor is
outstanding for more than ninety-one (91) days from the date of the original invoice, (c) owed or payable by an account debtor pursuant to a Government Contract, if the
payment of fifty percent (50%) or more of the aggregate balance due from such account debtor is outstanding for more than one hundred twenty-one (121) days from the date of the
original invoice, (d) owing from
any Person that is the subject of any (i) suit, lien, levy or judgment which could reasonably be expected to affect the collectibility of such account(s), or (ii) bankruptcy, insolvency
or a similar process or proceeding, (e) owing from foreign account debtors, unless otherwise deemed eligible by the Required Lenders in their sole discretion, (f) unbilled as a result of
rate variances, retainage provisions, "milestone" requirements or any other reason, except for timing differences expressly permitted under the definition of Eligible Unbilled Government Accounts
Receivable or the definition of Eligible Unbilled Commercial Accounts Receivable, as applicable, (g) billed accounts receivable arising from any Government Contract that are subject to
additional performance by any Person, or any condition of payment by any Governmental Authority; i.e., all necessary written consents and approvals of Governmental Authorities have not been obtained,
whether in connection with a required contract modification or otherwise, (h) a final invoice, (i) an account receivable arising from contracts that are subject to surety, performance or
other similar bonds, (j) subordinate or junior in right or priority of payment to any other obligation or claim or (k) otherwise reasonably deemed ineligible by the Administrative Agent
or the Required Lenders in the exercise of commercially reasonable judgment; provided that the Administrative Agent or the Required Lenders, as applicable, must give the
Parent Borrower not less than five (5) Business Days' prior notice of any decision to treat an account receivable as an Ineligible Receivable pursuant to this clause (j). 


        "Insolvency"
shall mean, with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of such term as used in
Section 4245 of ERISA. 


        "Insolvent"
shall mean being in a condition of Insolvency. 


        "Intellectual
Property" shall mean all Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses 



        "Interest
Coverage Ratio" shall mean, with respect to the Parent Borrower and its Subsidiaries on a consolidated basis for the twelve month period ending on
the last day of any fiscal quarter of the Parent Borrower, the ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense paid or payable in cash for such
period. 


        "Interest
Payment Date" shall mean (a) as to any Alternate Base Rate Loan, the last day of each March, June, September and December and on the
Maturity Date, (b) as to any LIBOR Rate Loan having an Interest Period of three months or less, the last day of such Interest Period, and (c) as to any 


11





 




LIBOR Rate Loan having an Interest Period longer than three months, the day which is three months after the first day of such Interest Period and the last day of such Interest Period. 


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



        (i)    initially,
the period commencing on the Borrowing Date or conversion date, as the case may be, with respect to such LIBOR Rate Loan and ending one, two, three or six
months thereafter, as selected by the Parent Borrower in the notice of borrowing or notice of conversion given with respect thereto; and 


        (ii)  thereafter,
each period commencing on the last day of the immediately preceding Interest Period applicable to such LIBOR Rate Loan and ending one, two, three or six
months thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent not less than three Business Days prior to the last day of the then current Interest Period with
respect thereto; 




provided
that the foregoing provisions are subject to the following: 




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


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



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


        (D)  no
Interest Period in respect of any Loan shall extend beyond the Maturity Date; and 


        (E)  no
more than five (5) LIBOR Rate Loans may be in effect at any time. For purposes hereof, LIBOR Rate Loans with different Interest Periods shall be considered as
separate LIBOR Rate Loans, even if they shall begin on the same date and have the same duration, although borrowings, extensions and conversions may, in accordance with the provisions hereof, be
combined at the end of existing Interest Periods to constitute a new LIBOR Rate Loan with a single Interest Period. 





        "Investment"
shall mean all investments, in cash or by delivery of property, made directly or indirectly in or to any Person, whether by acquisition of
shares of Capital Stock, property, assets, indebtedness or other obligations or securities or by loan advance, capital contribution or otherwise. 



        "Issuing
Lender" shall mean Wachovia. 


        "Issuing
Lender Fees" shall have the meaning set forth in Section 2.5(c). 


        "IPO"
shall mean an equity issuance on or before the Closing Date by the Parent Borrower consisting of an underwritten primary public offering of the common
Capital Stock of the Parent Borrower (i) pursuant to the Transaction Documents (including without limitation an effective registration statement filed with the Securities and Exchange
Commission in accordance with the Securities Act) and (ii) resulting in net cash proceeds to the Parent Borrower of at least $40,000,000; and shall include the exercise thereafter of any
over-allotment option that exists based on over-subscriptions as of the Closing Date. 


12





 



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


        "Lender"
shall have the meaning set forth in the first paragraph of this Agreement. 


        "Letter
of Credit Fee" shall have the meaning set forth in Section 2.5(b). 


        "Letters
of Credit" shall mean (a) any letter of credit issued by the Issuing Lender pursuant to the terms hereof and (b) any Existing Letter
of Credit, in each case as such letter of credit may be amended, modified, extended, renewed or replaced from time to time. 



        "Leverage
Ratio" shall mean, with respect to the Parent Borrower and its Subsidiaries on a consolidated basis for the twelve month period ending on the last
day of any fiscal quarter of the Parent Borrower, the ratio of (a) Funded Debt of the Parent Borrower and its Subsidiaries on a consolidated basis on the last day of such period to
(b) Consolidated EBITDA for such period. 


        "LIBOR"
shall mean, for any LIBOR Rate Loan for any Interest Period therefor, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London interbank offered rate for deposits in Dollars at approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not available, the term "LIBOR" shall mean, for any LIBOR Rate Loan for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London interbank offered rate for deposits in Dollars at approximately 11:00 A.M. (London time)
two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of all such rates (rounded upwards, if necessary, to the nearest 1/100 of 1%). If, for any
reason, neither of such rates is available, then "LIBOR" shall mean the rate per annum at which, as determined by the Administrative Agent, Dollars in an amount comparable to the Loans then requested
are being offered to leading banks at approximately 11:00 A.M. London time, two (2) Business Days prior to the commencement of the applicable Interest Period for settlement in
immediately available funds by leading banks in the London interbank market for a period equal to the Interest Period selected. 


        "LIBOR
Lending Office" shall mean, initially, the office of each Lender designated as such Lender's LIBOR Lending Office shown on
Schedule 9.2; and thereafter, such other office of such Lender as such Lender may from time to time specify to the Administrative Agent and the Parent Borrower as
the office of such Lender at which the LIBOR Rate Loans of such Lender are to be made. 


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



	LIBOR Rate =	 	                        LIBOR               
         

1.00 — Eurodollar Reserve Percentage





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


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


        "Loan"
shall mean a Revolving Loan and/or a Swingline Loan as appropriate. 


13





 



        "LOC
Commitment" shall mean the commitment of the Issuing Lender to issue Letters of Credit and with respect to each Lender, the commitment of such Lender to
purchase participation interests in the Letters of Credit up to such Lender's LOC Committed Amount as specified in Schedule 2.1(a), as such amount may be reduced
from time to time in accordance with the provisions hereof. 


        "LOC
Commitment Percentage" shall mean, for each Lender, the percentage identified as its LOC Commitment Percentage on
Schedule 2.1(a), as such percentage may be modified in connection with any assignment made in accordance with the provisions of Section 9.6(c). 


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


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


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


        "Majority
Lenders" shall mean Lenders holding in the aggregate greater than 51% (and to the extent there are only three Lenders at any time, not less than
two Lenders of the three shall be necessary to constitute the "Majority Lenders") of (i) the Commitments (and Participation Interests therein) or (ii) if the Commitments have been
terminated, the outstanding Loans and Participation Interests (including the Participation Interests of the Issuing Lender in any Letters of Credit and of the Swingline Lender in Swingline Loans)
provided, however, that if any Lender shall be a Defaulting Lender at such time, then there shall be excluded from the determination of
Required Lenders, Obligations (including Participation Interests) owing to such Defaulting Lender and such Defaulting Lender's Commitments, or after termination of the Commitments, the principal
balance of the Obligations owing to such Defaulting Lender. 


        "Mandatory
Borrowing" shall have the meaning set forth in Section 2.2(d) and (e) and Section 2.3(b)(ii), as the context may require. 


        "Material
Adverse Effect" shall mean a material adverse effect on (a) the business, operations, property, condition (financial or otherwise) or
prospects of the Parent Borrower and its Subsidiaries taken as a whole, (b) the ability of any Borrower to perform its obligations, when such obligations are required to be performed, under
this Agreement, any of the Notes or any other Credit Document or (c) the validity or enforceability of this Agreement, any of the Notes or any of the other Credit Documents or the rights or
remedies of the Administrative Agent or the Lenders hereunder or thereunder or the perfection or priority of any Lien in favor of the Administrative Agent. 


        "Material
Contract" shall mean (a) any material partnership or joint venture agreement to which any Borrower or any of its Subsidiaries is a party
(other than normal subcontracts in the ordinary course of business), (b) any Material Government Contract, (c) any contract, agreement, permit or license, written or oral, of any
Borrower or any of its Subsidiaries involving monetary liability of or to any such Person in an amount in excess of $1,000,000 per annum and (d) any other contract, agreement, permit or
license, written or oral, of any Borrower or any of its Subsidiaries as to which the breach, nonperformance, cancellation or failure to renew by any party thereto could reasonably be expected to have
a Material Adverse Effect. 


14





 



        "Material
Customer" shall mean, for the twelve month period ending on any date of determination, any customer of a Borrower or any of its Subsidiaries that
accounts for more than 10% of the revenue for such twelve month period of the Borrowers and their Subsidiaries on a consolidated basis. 


        "Material
Government Contract" shall mean a Government Contract with a remaining term in excess of six (6) months pursuant to which the aggregate
value of goods or services to be provided thereunder exceeds $2,500,000 over the remaining term of such contract. 


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


        "Maturity
Date" shall mean November 15, 2005, as such date may be extended pursuant to Section 2.1(f). 


        "Moody's"
shall mean Moody's Investors Service, Inc. 



        "Mortgage
Instruments" shall have the meaning set forth in Section 4.1(e)(i). 


        "Mortgage
Policies" shall have the meaning set forth in Section 4.1(e)(iii). 


        "Mortgaged
Properties" shall have the meaning set forth in Section 4.1(e)(i). 


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


        "Net
Accounts Receivable" shall mean, on any date of determination, the sum of (i) all accounts receivable of the Borrowers and their Subsidiaries on
a consolidated basis on such date minus (ii) accounts receivable (other than accounts receivable for which a reserve has been established and is reflected on the
Borrower's annual financial statements) of the Borrowers and their Subsidiaries on a consolidated basis on such date deemed ineligible by the Administrative Agent in its reasonable discretion based on
an audit in accordance with Section 5.6 of such accounts receivable conducted by the Administrative Agent or its agent or designee minus (iii) reserves
reflected in the Borrowers' annual financial statements. 


        "Net
Cash Proceeds" shall mean the aggregate cash proceeds received by any Borrower or any Subsidiary in respect of any Asset Disposition, Equity Issuance or
Debt Issuance, net of (a) direct costs (including, without limitation, reasonable legal, accounting and investment banking fees, and sales commissions) and (b) taxes paid or payable as a
result thereof; it being understood that "Net Cash Proceeds" shall include, without limitation, any net cash received upon the sale or other disposition of any non-cash consideration
received by any Borrower or any Subsidiary in any Asset Disposition, Equity Issuance or Debt Issuance. 


        "Notes"
or "Revolving Notes" shall mean the promissory notes of the Borrowers in favor of each of the Lenders evidencing the
Revolving Loans provided pursuant to Section 2.1(e), individually or collectively, as appropriate, as such promissory notes may be amended, modified, supplemented, extended, renewed or replaced
from time to time. 


        "Notice
of Borrowing" shall mean the written notice of borrowing as referenced and defined in Section 2.1(b)(i) or 2.3(b)(i), as appropriate. 


        "Notice
of Conversion" shall mean the written notice of continuation or conversion as referenced and defined in Section 2.10. 


        "Participant"
shall have the meaning set forth in Section 9.6(b). 


15









   
        "Participation Interest" shall mean the purchase by a Lender of a participation interest in Letters of Credit as provided in Section 2.2 and in
Swingline Loans as provided in Section 2.3. 


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


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


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


        "Permitted
Acquisition" shall mean an acquisition or any series of related acquisitions by a Borrower of the assets or all of the Capital Stock of a Person
that is incorporated, formed or organized in the United States or any division, line of business or other business unit of a Person that is incorporated, formed or organized in the United States (such
Person or such division, line of business or other business unit of such Person referred to herein as the "Target"), in each case that is a type of business (or assets
used in a type of business) permitted to be engaged in by the Borrowers and their Subsidiaries pursuant to Section 6.3 hereof, so long as (a) no Default or Event of Default shall then
exist or will exist after giving effect thereto, (b) the Borrowers shall demonstrate to the reasonable satisfaction of the Administrative Agent and the Required Lenders that the Borrowers will
be in compliance on a pro forma basis with all of the terms and provisions of the financial covenants set forth in Section 5.9, (c) the Administrative Agent, on behalf of the Lenders,
shall have received (or shall receive in connection with the closing of such acquisition) a first priority perfected security interest in all property (including, without limitation, Capital Stock),
subject to Permitted Liens, acquired with respect to the Target and the Target, if a Person, shall have executed a Joinder Agreement in accordance with the terms of Section 5.10, (d) the
Target has EBITDA for the twelve month period ending as of the most recent fiscal quarter end prior to the acquisition date in an amount greater than $0, (e) such acquisition is not a "hostile"
acquisition and has been approved by the Board of Directors and/or shareholders of the applicable Borrower and the Target, (f) the Total Consideration (i) for all
acquisitions made during any fiscal year of the Parent Borrower shall not exceed $20,000,000 in the aggregate and (ii) for all acquisitions made during the term of this Agreement shall not
exceed $50,000,000 in the aggregate, (g) after such time as the Total Consideration for all acquisitions exceeds $20,000,000 in the aggregate, with respect to any individual acquisition
(including any acquisition that causes the Total Consideration for all such acquisitions to exceed $20,000,000 in the aggregate), Total Consideration for any such acquisition shall not exceed
$7,500,000, and (h) after giving effect to such acquisition, there shall be at least $3,000,000 of borrowing availability under the lesser of (A) the Revolving Committed Amount and
(B) the Borrowing Base. 


        "Permitted
Acquisition EBITDA" shall mean, for purposes of determining Consolidated EBITDA for any period prior to a Permitted Acquisition, the sum of
(i) EBITDA of the Target or Targets acquired in such Permitted Acquisition for such period, as approved by the Administrative Agent in its reasonable discretion
plus (ii) all adjustments to such EBITDA permitted pursuant to Regulation S-X, as determined by the Administrative Agent and, if such adjustments
exceed 25% of such EBITDA, the Required Lenders, in each case in its or their reasonable discretion. 


16





 



        "Permitted
Investments" shall mean: 



        (i)    cash
and Cash Equivalents not to exceed $5,000,000 in the aggregate over any period of five consecutive Business Days if, during such period, there are borrowings
outstanding under Section 2.1; 


        (ii)  receivables
owing to any Borrower or any of its Subsidiaries and advances to suppliers, in each case if created, acquired or made in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms; 


        (iii)  investments
or loans (pursuant to Section 6.1(d)) made by a Borrower in or to another Borrower which is a wholly-owned Subsidiary; 


        (iv)  loans
and advances to officers, directors and employees in an aggregate amount not to exceed $500,000 at any time outstanding; 



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


        (vi)  non-cash
consideration received in connection with sales of property or assets permitted under Section 6.4(a); and 


        (vii) Permitted
Acquisitions and investments assumed in connection with Permitted Acquisitions. 




        "Permitted
Liens" shall mean: 



        (i)    Liens
created by or otherwise existing, under or in connection with this Agreement or the other Credit Documents in favor of the Lenders; 


        (ii)  purchase
money Liens securing purchase money Indebtedness (and refinancings thereof) and Liens arising in connection with Capital Leases (and refinancings thereof), in
each case to the extent permitted under Section 6.1(c); 


        (iii)  Liens
for taxes, assessments, charges or other governmental levies not yet due or as to which the period of grace, if any, related thereto has not expired or which are
being contested in good faith by appropriate proceedings, provided that adequate reserves with respect thereto are maintained on the books of the Borrowers or their
Subsidiaries, as the case may be, in conformity with GAAP (or, in the case of Subsidiaries with significant operations outside of the United States of America, generally accepted accounting principles
in effect from time to time in their respective jurisdictions of incorporation); 


        (iv)  carriers',
warehousemen's, mechanics', materialmen's, repairmen's inchoate, unperfected 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 by appropriate proceedings; provided that a reserve or other appropriate provision shall have been made
therefor and the aggregate amount of such Liens is less than $75,000; 


        (v)  pledges
or deposits in connection with workers' compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements in an aggregate amount not to exceed $50,000; 


        (vi)  deposits
to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of business; 



17





 




        (vii) Liens
existing on the Closing Date and set forth on Schedule 1.1-2; provided that (A) no such Lien shall at any
time be extended to cover property or assets other than the property or assets subject thereto on the Closing Date and (B) the principal amount of the Indebtedness secured by such Liens shall
not be increased, extended, renewed, refunded or refinanced other than in accordance with the terms of Section 6.1(b); 


        (viii)  any
extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in the
foregoing clauses; provided that such extension, renewal or replacement Lien shall be limited to all or a part of the property which secured the Lien so extended, renewed
or replaced (plus improvements on such property); 


        (ix)  easements,
rights-of-way, zoning restrictions, minor defects or irregularities in title and other similar encumbrances not interfering in any
material respect with the value or use of the property to which such lien is attached; 


        (x)  Liens
in favor of a landlord on leasehold improvements in leased premises and statutory landlord Liens; 


        (xi)  Liens
on assets, the construction, improvement or acquisition of which were financed with Indebtedness permitted to be assumed pursuant to Section 6.1(h);
provided that such Liens shall extend only to the assets constructed, improved or acquired with the proceeds of such Indebtedness; and 


        (xii) other
Liens in addition to those permitted by the foregoing clauses securing Indebtedness in an aggregate amount not to exceed $2,500,000. 




        "Person"
shall mean an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever nature. 


        "Plan"
shall mean, at any particular time, any employee benefit plan which is covered by Title IV of ERISA and in respect of which any Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA. 


        "Pledge
Agreements" shall mean (i) the Pledge Agreement dated as of the Closing Date to be executed in favor of the Administrative Agent by the
Borrowers and (ii) any other Pledge Agreement executed by a Borrower to secure the Borrowers' Obligations, in each case as amended, modified, restated or supplemented from time to time. 



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


        "Pro
Forma EBITDA" shall mean Consolidated EBITDA of the Parent Borrower and its Subsidiaries after giving effect to the IPO (as reported by the Parent
Borrower and approved by the Lenders prior to the Closing Date). 


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


        "Purchasing
Lenders" shall have the meaning set forth in Section 9.6(c). 


        "Recovery
Event" shall mean theft, loss, physical destruction or damage, taking or similar event with respect to any property or assets owned by the
Borrowers or any of their Subsidiaries which results in the receipt by the Borrowers or any of their Subsidiaries of any cash insurance proceeds or condemnation award payable by reason thereof. 


        "Register"
shall have the meaning set forth in Section 9.6(d). 


18






 



        "Regulation S-X"
shall mean Regulation S-X of the Securities Act or any successor regulation thereto. 


        "Related
Fund" shall mean, with respect to any Lender or other Person who invests in commercial bank loans in the ordinary course of business, any other fund
or trust or entity that invests in commercial bank loans in the ordinary course of business and is advised or managed by such or any other Lender, by an Affiliate of such or any other Lender or other
Persons or the same investment advisor as such or any other Lender or by an Affiliate of such or any other Lender or investment advisor. 



        "Reorganization"
shall mean, with respect to any Multiemployer Plan, the condition that such Plan is in reorganization within the meaning of such term as
used in Section 4241 of ERISA. 


        "Reportable
Event" shall mean any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty-day
notice period is waived under PBGC Reg. §4043. 


        "Required
Lenders" shall mean Lenders holding in the aggregate greater than 662/3% (and to the extent there are only three Lenders at any
time, not less than two Lenders of the three shall be necessary to constitute the "Required Lenders") of (i) the Commitments (and Participation Interests therein) or (ii) if the
Commitments have been terminated, the outstanding Loans and Participation Interests (including the Participation Interests of the Issuing Lender in any Letters of Credit and of the Swingline Lender in
Swingline Loans) provided, however, that if any Lender shall be a Defaulting Lender at such time, then there shall be excluded from the
determination of Required Lenders, Obligations (including Participation Interests) owing to such Defaulting Lender and such Defaulting Lender's Commitments, or after termination of the Commitments,
the principal balance of the Obligations owing to such Defaulting Lender. 


        "Requirement
of Law" shall mean, as to any Person, the Certificate of Incorporation and By-laws or other organizational or governing documents of
such Person, and each law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject. 


        "Responsible
Officer" shall mean, as to (a) the Parent Borrower, any of the President, the Chief Executive Officer or the Chief Financial Officer or
(b) any other Borrower, any duly authorized officer thereof. 


        "Restricted
Payment" shall mean (a) any dividend or other distribution, direct or indirect, on account of any shares of any class of Capital Stock of
the Borrowers or any of their Subsidiaries, now or hereafter outstanding, (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or
indirect, of any shares of any class of Capital Stock of the Borrowers or any of their Subsidiaries, now or hereafter outstanding, (c) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class of Capital Stock of the Borrowers or any of their Subsidiaries, now or hereafter outstanding, (d) any payment or
prepayment of principal or premium, if any, or interest upon the redemption, purchase, retirement, defeasance, sinking fund or similar payment with respect to any Subordinated Debt (other than
Subordinated Debt between or among Borrowers or payments on Subordinated Debt permitted by the Required Lenders), or (e) the payment by the Borrowers or any of their Subsidiaries of any
management or consulting fee to any Person or of any salary, bonus or other form of compensation to any Person who is directly or indirectly a significant partner, shareholder, owner or executive
officer of any such Person, to the extent such salary, bonus or other form of compensation is not included in the corporate overhead of such Borrower or such Subsidiary. 


19





 



        "Revolving
Commitment Percentage" shall mean, for each Lender, the percentage identified as its Revolving Commitment Percentage on
Schedule 2.1(a), as such percentage may be modified in connection with any assignment made in accordance with the provisions of Section 9.6(c). 


        "Revolving
Committed Amount" shall have the meaning set forth in Section 2.1. 


        "Revolving
Loans" shall have the meaning set forth in Section 2.1. 


        "S&P"
shall mean Standard & Poor's Ratings Group, a division of The McGraw Hill Companies, Inc. 



        "Scheduled
Funded Debt Payments" shall mean, as of any date of determination for the Parent Borrower and its Subsidiaries, the sum of all scheduled payments
of principal on Funded Debt for the applicable period ending on the date of determination (including the principal component of payments due on Capital Leases during the applicable period ending on
the date of determination). 


        "Securities
Act" shall mean the Securities Act of 1933, together with any amendment thereto or replacement thereof and any rules or regulations promulgated
thereunder. 


        "Securities
Exchange Act" shall mean the Securities Exchange Act of 1934, together with any amendment thereto or replacement thereof and any rules or
regulations promulgated thereunder. 


        "Security
Agreements" shall mean (i) the Security Agreement dated as of the Closing Date given by the Borrowers to the Administrative Agent and
(ii) any other Security Agreement executed by a Borrower to secure the Borrowers' Obligations, in each case as amended, modified or supplemented from time to time in accordance with its terms. 


        "Security
Documents" shall mean the Security Agreement, the Pledge Agreement, the Mortgage Instruments and any other documents executed and delivered in
connection with the granting, attachment and perfection of the Administrative Agent's security interests and liens arising thereunder. 


        "Single
Employer Plan" shall mean any Plan which is not a Multiemployer Plan. 


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


        "STA
Note" shall mean that certain seller note identified as the "STA Note" on Schedule 6.1(b). 


        "Subordinated
Debt" shall mean any Indebtedness incurred by any Borrower which by its terms is specifically subordinated in right of payment to the prior
payment of the Borrowers' Obligations on terms and conditions satisfactory to the Required Lenders. 


        "Subsidiary"
shall mean, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of the
Borrowers. 


        "Swingline
Commitment" shall mean the commitment of the Swingline Lender to make Swingline Loans in an aggregate principal amount at any time outstanding up
to the Swingline Committed Amount, and the commitment of the Lenders to purchase participation interests in the Swingline Loans as provided in Section 2.3(b)(ii), as such amounts may be reduced
from time to time in accordance with the provisions hereof. 


20





 



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



        "Swingline
Lender" shall mean Wachovia. 


        "Swingline
Loan" or "Swingline Loans" shall have the meaning set forth in Section 2.3(a). 


        "Swingline
Note" shall mean the promissory note of the Borrowers in favor of the Swingline Lender evidencing the Swingline Loans provided pursuant to
Section 2.3(d), as such promissory note may be amended, modified, supplemented, extended, renewed or replaced from time to time. 



        "Target"
shall have the meaning set forth in the definition of "Permitted Acquisitions." 


        "Taxes"
shall have the meaning set forth in Section 2.18(a). 


        "Total
Consideration" shall mean, with respect to any Permitted Acquisition, total consideration paid or payable including, without limitation, cash, stock,
assumed debt and earnout obligations. 


        "Trademark
License" shall mean any agreement, whether written or oral, providing for the grant by or to a Person of any right to use any Trademark,
including, without limitation, any thereof referred to in Schedule 3.16 to this Credit Agreement. 



        "Trademarks"
shall mean all trademarks, trade names, corporate names, company names, business names, fictitious business names, service marks, elements of
package or trade dress of goods or services, logos and other source or business identifiers (other than such items that are of de minimus value), together with the goodwill associated therewith, now
existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, including, without limitation, any thereof referred to in
Schedule 3.16 to this Credit Agreement, and (ii) all renewals thereof including, without limitation, any thereof referred to in Schedule 3.16. 



        "Tranche"
shall mean the collective reference to LIBOR Rate Loans whose Interest Periods begin and end on the same day. A Tranche may sometimes be referred
to as a "LIBOR Tranche". 


        "Transaction
Documents" shall mean the Form S-1 Registration Statement filed by the Parent Borrower on May 10, 2002, as amended and
in effect as of the Closing Date and such other agreements and documents delivered in connection with the IPO. 


        "Transfer
Effective Date" shall have the meaning set forth in each Commitment Transfer Supplement. 


        "2.18
Certificate" shall have the meaning set forth in Section 2.18. 


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


        "Unbilled
Cap" shall mean the product of (a) the sum of (i) 90% of Eligible Billed Government Accounts Receivable which are outstanding less
than 120 days from the date of the original invoice plus (ii) 85% of Eligible Billed Commercial Accounts Receivable which are outstanding less than
90 days from the date of the original invoice and (b) .3334. 



        "Utilization"
shall mean, for any Utilization Period, the percentage obtained by dividing the Average Outstanding Loans during such Utilization Period by the
average of the daily Revolving Committed Amount during such Utilization Period. 


        "Utilization
Period" shall mean each calendar quarter, except that the initial Utilization Period shall commence on the Closing Date and end on
tSeptember 30, 2002, and the final Utilization Period shall end on the Maturity Date. 


        "Voting
Stock" shall mean, with respect to any Person, Capital Stock issued by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right so to vote has been suspended by the happening of such a
contingency. 


        "Wachovia"
shall mean Wachovia National Bank, a national banking association. 


        "Works"
shall mean all works which are subject to copyright protection pursuant to Title 17 of the United States Code. 


        Section 1.2    Other
Definitional Provisions; Time References.    



        (a)  Unless
otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the Notes or other Credit Documents or any
certificate or other document made or delivered pursuant hereto. 


        (b)  The
words "hereof", "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section, subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. 



21







  




        (c)  The
meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. 



        (d)  Unless
otherwise expressly indicated, each time reference in any Credit Document shall be to Charlotte, North Carolina time. 




        Section 1.3    Accounting
Terms.    


        Unless
otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to
be delivered hereunder shall be prepared in accordance with GAAP applied on a basis consistent with the most recent audited consolidated financial statements of the Parent Borrower delivered to the
Lenders; provided that, if the Parent Borrower shall notify the Administrative Agent that it wishes to amend the Asset Coverage Ratio test in Section 2.1(f) or any
covenant in Section 5.9 to eliminate the effect of any change in GAAP on the operation of such covenant (or if the Administrative Agent notifies the Parent Borrower that the Required Lenders
wish to amend the Asset Coverage Ratio test in Section 2.1(f) or Section 5.9 for such purpose), then the Borrowers' compliance with such covenant shall be determined on the basis of GAAP
in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to the Parent Borrower and the
Required Lenders. 


        The
Parent Borrower shall deliver to the Administrative Agent and each Lender at the same time as the delivery of any annual, quarterly or monthly financial statements given in
accordance with the provisions of Section 5.1, (a) a description in reasonable detail of any material change in the application of accounting principles employed in the preparation of
such financial statements from those applied in the most recently preceding monthly, quarterly or annual financial statements as to which no objection shall have been made in accordance with the
provisions above and (b) a reasonable estimate of the effect on the financial statements on account of such changes in application. 


 
 

ARTICLE II    
    
    THE LOANS; AMOUNT AND TERMS    
  


        Section 2.1    Revolving
Loans.    


        (a)    Revolving
Commitment.    During the Commitment Period, subject to the terms and conditions hereof, each Lender severally agrees to
make revolving credit loans ("Revolving Loans") to the Borrowers from time to time in an aggregate principal amount of up to such Lender's Revolving Commitment Percentage
of THIRTY-FIVE MILLION DOLLARS ($35,000,000) (as such aggregate maximum amount may be increased as provided in Section 2.4 or reduced
from time to time as provided in Section 2.6, the "Revolving Committed Amount") for the purposes hereinafter set forth; provided,
however, that (i) with regard to each Lender individually, the sum of such Lender's share of outstanding Revolving Loans plus such
Lender's Revolving Commitment Percentage of outstanding Swingline Loans plus such Lender's LOC Commitment Percentage of outstanding LOC Obligations shall not exceed such
Lender's Revolving Commitment, and (ii) with regard to the Lenders collectively, the sum of the outstanding Revolving Loans plus outstanding Swingline Loans
plus outstanding LOC Obligations shall not exceed the lesser of (A) the Revolving Committed Amount and (B) the Borrowing Base. Revolving Loans may consist of
Alternate Base Rate Loans or LIBOR Rate Loans, or a combination thereof, as the Parent Borrower may request, and may be repaid and reborrowed in accordance with the provisions hereof. LIBOR Rate Loans
shall be made by each Lender at its LIBOR Lending Office and Alternate Base Rate Loans at its Domestic Lending Office. 


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        (b)    Revolving
Loan Borrowings.    



        (i)    Notice of Borrowing.    The Parent Borrower may request a Revolving Loan borrowing
by written notice (or telephone notice promptly confirmed in writing which confirmation may be by facsimile) to the Administrative Agent not later than 11:00 a.m. on the date of the requested
borrowing in the case of Alternate Base Rate Loans, and on the third Business Day prior to the date of the requested borrowing in the case of LIBOR Rate Loans. Each such request for borrowing shall be
irrevocable and shall specify (A) that a Revolving Loan is requested, (B) the date of the requested borrowing (which shall be a Business Day), (C) the aggregate principal amount
to be borrowed, (D) the applicable Borrower or Borrowers with respect thereto and (E) whether the borrowing shall be comprised of Alternate Base Rate Loans, LIBOR Rate Loans or a
combination thereof, and if LIBOR Rate Loans are requested, the Interest Period(s) therefor. A form of Notice of Borrowing (a "Notice of Borrowing") is attached as
Schedule 2.1(b)(i). If the Parent Borrower shall fail to specify in any such
Notice of Borrowing (I) an applicable Interest Period in the case of a LIBOR Rate Loan, then such notice shall be deemed to be a request for an Interest Period of one month, or (II) the
type of Revolving Loan requested, then such notice shall be deemed to be a request for an Alternate Base Rate Loan hereunder. The Administrative Agent shall give notice to each Lender promptly upon
receipt of each Notice of Borrowing, the contents thereof and each such Lender's share thereof. All Revolving Loans made on the Closing Date and on any of the three Business Days following the Closing
Date shall bear interest at the Alternate Base Rate. 


        (ii)    Minimum Amounts.    Each Revolving Loan which is an Alternate Base Rate Loan
shall be in a minimum aggregate amount of $250,000 and in integral multiples of $50,000 in excess thereof (or the remaining amount of the Revolving Committed Amount, if less). Each Revolving Loan
which is a LIBOR Rate Loan shall be in a minimum aggregate amount of $500,000 and in integral multiples of $250,000 in excess thereof. 



        (iii)    Advances.    Each Lender will make its Revolving Commitment Percentage of each
Revolving Loan borrowing available to the Administrative Agent for the account of the Borrower at the office of the Administrative Agent specified in Schedule 9.2,
or at such other office as the Administrative Agent may designate in writing, by 1:00 p.m. on the date specified in the applicable Notice of Borrowing in Dollars and in funds immediately
available to the Administrative Agent. Such borrowing will then be made available to the applicable Borrower by the Administrative Agent by crediting the account of the Parent Borrower on the books of
such office with the aggregate of the amounts made available to the Administrative Agent by the Lenders and in like funds as received by the Administrative Agent. 




        (c)    Repayment.    The
principal amount of all Revolving Loans shall be due and payable in full on the Maturity Date. 


        (d)    Interest.    Subject
to the provisions of Section 2.9, Revolving Loans shall bear interest as follows: 



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


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




        Interest
on Revolving Loans shall be payable in arrears on each Interest Payment Date. 



        (e)    Revolving
Notes.    Each Lender's Revolving Commitment shall be evidenced by a duly executed promissory note of the Borrowers to
such Lender in substantially the form of Schedule 2.1(e). 


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        (f)    Option
to Extend Maturity Date.    The Parent Borrower shall have the right, so long as no Default or Event of Default shall have
occurred and be continuing, by written notice to the Administrative Agent (which shall promptly notify the Lenders) prior to March 30, 2005, to extend the Maturity Date for an additional one
year period; provided that the Parent Borrower (i) shall have demonstrated to the reasonable satisfaction of the Administrative Agent that the Asset Coverage Ratio
shall be not less than 1.40 to 1.0 on a pro forma basis as of April 30, 2005 and (ii) shall have paid to the Administrative Agent, for the pro rata benefit of each Lender as of the
original Maturity Date, an extension fee equal to 0.50% of each such Lender's Revolving Commitment as of the original Maturity Date. 


        Section 2.2    Letter
of Credit Subfacility.    


        (a)    Issuance.    Subject
to the terms and conditions hereof and of the LOC Documents, if any, and any other terms and conditions which
the Issuing Lender may reasonably require, during the Commitment Period the Issuing Lender shall issue, and the Lenders shall participate in, Letters of Credit for the account of the Borrowers from
time to time upon request by the Parent Borrower in a form acceptable to the Issuing Lender; provided, however, that (i) the aggregate
amount of LOC Obligations shall not at any time exceed THREE MILLION DOLLARS ($3,000,000) (the "LOC Committed Amount"),
(ii) the sum of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding LOC Obligations shall not at any time
exceed the lesser of (A) the Revolving Committed Amount and (B) the Borrowing Base, (iii) all Letters of Credit shall be denominated in U.S. Dollars and (iv) Letters of
Credit shall be issued for lawful corporate purposes and may be issued as standby letters of credit, including in connection with workers' compensation and other insurance programs. Except as
otherwise expressly agreed upon by all the Lenders, no Letter of Credit shall have an original expiry date more than one year from the date of issuance; provided,
however, so long as no Default or Event of Default has occurred and is continuing and subject to the other terms and conditions to the issuance of Letters of Credit
hereunder, the expiry dates of Letters of Credit may be extended annually or periodically from time to time on the request of the Parent Borrower or by operation of the terms of the applicable Letter
of Credit to a date not more than one year from the date of extension; provided, further, that no Letter of Credit, as originally issued or as
extended, shall have an expiry date extending beyond the date that is thirty (30) days prior to the Maturity Date. Each Letter of Credit shall comply with the related LOC Documents;
provided, however, to the extent there is any discrepancy between a provision of any LOC Document and a provision of this Agreement, the
provision of this Agreement shall govern the subject matter thereof. The issuance and expiry date of each Letter of Credit shall be a Business Day. Wachovia shall be the Issuing Lender on all Letters
of Credit issued after the Closing Date. The Borrowers' reimbursement obligations in respect of each Existing Letter of Credit, and each Lender's participation obligations in connection therewith,
shall be governed by the terms of this Credit Agreement. 


        (b)    Notice
and Reports.    The request for the issuance of a Letter of Credit shall be submitted by the Parent Borrower to the Issuing
Lender at least three (3) Business Days prior to the requested date of issuance. The Issuing Lender will promptly upon request provide to the Administrative Agent for dissemination to the
Lenders a detailed report specifying the Letters of Credit which are then issued and outstanding and any activity with respect thereto which may have occurred since the date of any prior report, and
including therein, among other things, the account party, the beneficiary, the face amount, expiry date as well as any payments or expirations which may have occurred. The Issuing Lender will further
provide to the Administrative Agent promptly upon request copies of the Letters of Credit. The Issuing Lender will provide to the Administrative Agent promptly upon request a summary report of the
nature and extent of LOC Obligations then outstanding. 


        (c)    Participations.    Each
Lender, (i) on the Closing Date with respect to each Existing Letter of Credit and (ii) upon
issuance of any other Letter of Credit, shall be deemed to have purchased without recourse a risk participation from the Issuing Lender in such Letter of Credit and the obligations 


24





 




arising thereunder and any collateral relating thereto, in each case in an amount equal to its LOC Commitment Percentage of the obligations under such Letter of Credit and shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety, and be obligated to pay to the Issuing Lender therefor and discharge when due, its LOC Commitment Percentage of the
obligations arising under such Letter of Credit. Without limiting the scope and nature of each Lender's participation in any Letter of Credit, to the extent that the Issuing Lender has not been
reimbursed as required hereunder or under any LOC Document, each such Lender shall pay to the Issuing Lender its LOC Commitment Percentage of such unreimbursed drawing in same day funds on the day of
notification by the Issuing Lender of an unreimbursed drawing pursuant to and in accordance with the provisions of subsection (d) hereof. The obligation of each Lender to so reimburse the
Issuing Lender shall be absolute and unconditional and shall not be affected by the occurrence of a Default, an Event of Default or any other occurrence or event. Any such reimbursement shall not
relieve or otherwise impair the obligation of the Borrowers jointly and severally to reimburse the Issuing Lender under any Letter of Credit, together with interest as hereinafter provided. 


        (d)    Reimbursement.    In
the event of any drawing under any Letter of Credit, the Issuing Lender will promptly notify the Parent
Borrower and the Administrative Agent. The Borrowers jointly and severally shall reimburse the Issuing Lender on the day of drawing under any Letter of Credit (with the proceeds of a Revolving Loan
obtained hereunder or otherwise) in same day funds as provided herein or in the LOC Documents. If the Borrowers shall fail to reimburse the Issuing Lender as provided herein, the unreimbursed amount
of such drawing shall bear interest at a per annum rate equal to the ABR Default Rate for so long as such amount shall be unreimbursed. Unless the Borrowers shall immediately notify the Issuing Lender
and the Administrative Agent of their intent to otherwise reimburse the Issuing Lender, the Borrowers shall be deemed to have requested a Revolving Loan (a "Mandatory
Borrowing") in the amount of the drawing as provided in subsection (e) hereof, the proceeds of which will be used to satisfy the reimbursement obligations. The Borrowers'
reimbursement obligations hereunder shall be absolute and unconditional under all circumstances irrespective of any rights of set-off, counterclaim or defense to payment any Borrower may
claim or have against the Issuing Lender, the Administrative Agent, the Lenders, the beneficiary of the Letter of Credit drawn upon or any other Person, including without limitation any defense based
on any failure of any Borrower to receive consideration or the legality, validity, regularity or unenforceability of the Letter of Credit. The Issuing Lender will promptly notify the other Lenders of
the amount of any unreimbursed drawing and each Lender shall promptly pay to the Administrative Agent for the account of the Issuing
Lender in Dollars and in immediately available funds, the amount of such Lender's LOC Commitment Percentage of such unreimbursed drawing. Such payment shall be made on the day such notice is received
by such Lender from the Issuing Lender if such notice is received at or before 2:00 p.m., otherwise such payment shall be made at or before 12:00 Noon on the Business Day next succeeding the
day such notice is received. If such Lender does not pay such amount to the Issuing Lender in full upon such request, such Lender shall, on demand, pay to the Administrative Agent for the account of
the Issuing Lender interest on the unpaid amount during the period from the date of such drawing until such Lender pays such amount to the Issuing Lender in full at a rate per annum equal to, if paid
within two (2) Business Days of the date of drawing, the Federal Funds Effective Rate and thereafter at a rate equal to the Alternate Base Rate. Each Lender's obligation to make such payment to
the Issuing Lender, and the right of the Issuing Lender to receive the same, shall be absolute and unconditional, shall not be affected by any circumstance whatsoever and without regard to the
termination of this Agreement or the Commitments hereunder, the existence of a Default or Event of Default or the acceleration of the Borrowers' Obligations hereunder and
shall be made without any offset, abatement, withholding or reduction whatsoever. 


        (e)    Repayment
with Revolving Loans.    On any day on which the Borrowers shall have requested, or been deemed to have requested, a
Revolving Loan to reimburse a drawing under a Letter of Credit, the Administrative Agent shall give notice to the Lenders that a Revolving Loan has been requested or 


25





 




deemed requested in connection with a drawing under a Letter of Credit, in which case a Revolving Loan borrowing comprised entirely of Alternate Base Rate Loans (each such borrowing, a
"Mandatory Borrowing") shall be immediately made (without giving effect to any termination of the Commitments pursuant to Section 7.2) pro
rata based on each Lender's respective Revolving Commitment Percentage (determined before giving effect to any termination of the Commitments pursuant to Section 7.2). The
proceeds of such Mandatory Borrowing shall be paid directly to the Issuing Lender for application to the respective LOC Obligations. Each Lender hereby irrevocably agrees to make such Revolving Loans
immediately upon any such request or deemed request on account of each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the same such date
notwithstanding (i) the amount of Mandatory Borrowing may not comply with the minimum amount (or integral amount in excess thereof) for borrowings of Revolving
Loans otherwise required hereunder, (ii) whether any conditions specified in Section 4.2 are then satisfied, (iii) whether a Default or an Event of Default then exists,
(iv) failure of any such request or deemed request for Revolving Loan to be made by the time otherwise required in Section 2.1(b), (v) the date of such Mandatory Borrowing, or
(vi) any reduction in the Revolving Committed Amount after any such Letter of Credit may have been drawn upon. In the event that any Mandatory Borrowing cannot for any reason be made on the
date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code), then each such Lender hereby agrees that it shall forthwith
fund (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrowers on or after such date and prior to such purchase) its
Participation Interests in the outstanding LOC Obligations; provided, further, that in the event any Lender shall fail to fund its
Participation Interest on the day the Mandatory Borrowing would otherwise have occurred, then the amount of such Lender's unfunded Participation Interest therein shall bear interest payable by such
Lender to the Issuing Lender upon demand, at the rate equal to, if paid within two (2) Business Days of such date, the Federal Funds Effective Rate, and thereafter at a rate equal to the
Alternate Base Rate. 


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



        (g)    Uniform
Customs and Practices.    The Issuing Lender shall have the Letters of Credit be subject to The Uniform Customs and
Practice for Documentary Credits, as published as of the date of issue by the International Chamber of Commerce (the "UCP"), in which case the UCP may be incorporated
therein and deemed in all respects to be a part thereof. 


        Section 2.3    Swingline
Loan Subfacility.    


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


        (b)    Swingline
Loan Borrowings.    



        (i)    Notice of Borrowing and Disbursement.    The Swingline Lender will make Swingline
Loans available to any Borrower on any Business Day upon request made by the Parent Borrower not later than 12:00 Noon on such Business Day. A notice of request for Swingline Loan borrowing shall be
made in the form of Schedule 2.1(b)(i) with appropriate modifications. 



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Swingline Loan borrowings hereunder shall be made in minimum amounts of $100,000 and in integral amounts of $50,000 in excess thereof. 


        (ii)    Repayment of Swingline Loans.    Each Swingline Loan borrowing shall be due and
payable on the earlier of (A) the seventh day after the date of such Swingline Loan borrowing and (B) the Maturity Date. The Swingline Lender may, at any time, in its sole discretion, by
written notice to the Parent Borrower and the Administrative Agent, demand repayment of its Swingline Loans by way of a Revolving Loan borrowing, in which case the Borrowers shall be deemed to have
requested a Revolving Loan borrowing comprised entirely of Alternate Base Rate Loans in the amount of such Swingline Loans; provided, however,
that, in the following circumstances, any such demand shall also be deemed to have been given one Business Day prior to each of (w) the Maturity Date, (x) the occurrence of any Event of
Default described in Section 7.1(e), (y) upon acceleration of the Borrowers' Obligations hereunder, whether on account of an Event of Default described in Section 7.1(e) or any
other Event of
Default, and (z) the exercise of remedies in accordance with the provisions of Section 7.2 hereof (each such Revolving Loan borrowing made on account of any such deemed request therefor
as provided herein being hereinafter referred to as "Mandatory Borrowing"). Each Lender hereby irrevocably agrees to make such Revolving Loans promptly upon any such
request or deemed request on account of each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the same such date
notwithstanding (I) the amount of Mandatory Borrowing may not comply with the minimum amount for borrowings of Revolving Loans otherwise required hereunder,
(II) whether any conditions specified in Section 4.2 are then satisfied, (III) whether a Default or an Event of Default then exists, (IV) failure of any such request or
deemed request for Revolving Loans to be made by the time otherwise required in Section 2.1(b)(i), (V) the date of such Mandatory Borrowing, or (VI) any reduction in the Revolving
Commitment or termination of the Revolving Commitments immediately prior to such Mandatory Borrowing or contemporaneously therewith. In the event that any Mandatory Borrowing cannot for any reason be
made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code), then each Lender hereby agrees that it shall
forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrowers on or after such date and prior to such purchase)
from the Swingline Lender such participations in the outstanding Swingline Loans as shall be necessary to cause each such Lender to share in such Swingline Loans ratably based upon its respective
Revolving Commitment Percentage (determined before giving effect to any termination of the Commitments pursuant to Section 7.2); provided that (1) all
interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date as of which the respective participation is purchased, and (2) at the time any purchase
of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay to the Swingline Lender interest on the principal amount of such participation purchased
for each day from and including the day upon which the purchase occurs hereunder to but excluding the date of payment for such participation, at the rate equal to, if paid within two
(2) Business Days of the date of the Mandatory Borrowing, the Federal Funds Effective Rate, and thereafter at a rate equal to the Alternate Base Rate. 




        (c)    Interest
on Swingline Loans.    Subject to the provisions of Section 2.9, Swingline Loans shall bear interest at a per
annum rate equal to the Alternate Base Rate plus the applicable Percentage for Revolving Loans that are Alternate Base Rate Loans. Interest on Swingline Loans shall be
payable in arrears on each Interest Payment Date. 


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


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        Section 2.4    Incremental
Facility.    


        Subject
to the terms and conditions set forth herein, the Parent Borrower shall have the right, at any time and from time to time during the period from the Closing Date until the second
anniversary of
the Closing Date (but not to exceed three (3) increases in the aggregate), to incur additional Indebtedness under this Agreement in the form of an increase to the Revolving Committed Amount
(each an "Incremental Facility") by an aggregate amount of up to $25,000,000. The following terms and conditions shall apply to each Incremental Facility: (a) the
loans made under any such Incremental Facility (each an "Additional Loan") shall constitute Borrowers' Obligations and will be secured and
guaranteed with the other Borrowers' Obligations on a pari passu basis, (b) any such Incremental Facility shall have the same terms (including interest rate and
maturity date) as the existing Revolving Loans, (c) any such Incremental Facility shall be entitled to the same voting rights as the existing Revolving Loans and shall be entitled to receive
proceeds of prepayments on the same basis as the existing Revolving Loans, (d) any such Incremental Facility shall be obtained from existing Lenders or from other banks, financial institutions
or investment funds, in each case in accordance with the terms set forth below, (e) any such Incremental Facility shall be in a minimum principal amount of $5,000,000 and integral multiples of
$1,000,000 in excess thereof, (f) the proceeds of any Additional Loan will be used for the purposes set forth in Section 3.11, (g) the Borrowers shall execute such promissory
notes as are necessary to reflect the Additional Loans under any such Incremental Facility, (h) the conditions to Extensions of Credit in Section 4.2 shall have been satisfied and
(i) the Administrative Agent shall have received from the Parent Borrower updated financial projections and an officer's certificate, in each case in form and substance reasonably satisfactory
to the Administrative Agent, demonstrating that, after giving effect to any such Incremental Facility on a pro forma basis, the Borrowers will be in compliance with the financial covenants set forth
in Section 5.9. Participation in the Incremental Facility shall be offered first to each of the existing Lenders, but each such Lender shall have no obligation to provide all or any portion of
the Incremental Facility. If the amount of the Incremental Facility requested by the Parent Borrower shall exceed the commitments which the existing Lenders are willing to provide with respect to such
Incremental Facility, then the Parent Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to the Administrative Agent to join this Agreement as Lenders
hereunder for the portion of such Incremental Facility not taken by existing Lenders, provided that such other banks, financial institutions and investment funds shall enter into such joinder
agreements to give effect thereto as the Administrative Agent and the Parent Borrower may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any
amendment to this Agreement or any other Credit Document as may be necessary to incorporate the terms of any new Incremental Facility therein. 


        Section 2.5    Fees.    



        (a)    Commitment
Fee.    In consideration of the Revolving Commitments, the Borrowers jointly and severally agree to pay to the
Administrative Agent, for the ratable benefit of the Lenders, during the Commitment Period, a commitment fee (the "Commitment Fee") in an amount equal to the Commitment
Fee Percentage per annum on the average daily unused amount of the Revolving Committed Amount. The Commitment Fee shall be payable quarterly in arrears on the 15th day following the last day of each
calendar quarter for the prior calendar quarter. 


        (b)    Letter
of Credit Fees.    In consideration of the LOC Commitments, the Borrowers jointly and severally agree to pay to the Issuing
Lender, for the benefit of the Lenders, a fee (the "Letter of Credit Fee") equal to the Applicable Percentage per annum on the average daily maximum amount available to be
drawn under each Letter of Credit from the date of issuance to the date of expiration. In addition to such Letter of Credit Fee, the Issuing Lender may charge, and retain for its own account without
sharing by the other Lenders, an additional facing fee of one-fourth of one percent (1/4%) per annum on the average daily maximum amount available to be drawn under each
such Letter of Credit issued by
it. The Issuing Lender shall promptly pay over to the Administrative Agent for the ratable benefit of the Lenders, for the benefit of all Lenders having a Revolving Commitment (including the Issuing
Lender), the Letter of Credit Fee. The Letter of Credit Fee shall be payable quarterly in arrears on the 15th day following the last day of each calendar quarter for such calendar quarter. 


        (c)    Issuing
Lender Fees.    In addition to the Letter of Credit Fees payable pursuant to subsection (b) hereof, the Borrowers
jointly and severally shall pay to the Issuing Lender, for its own account without sharing by the other Lenders, the reasonable and customary charges from time to time of the Issuing Lender with
respect to the amendment, transfer, administration, cancellation and conversion of, and drawings under, such Letters of Credit (collectively, the "Issuing Lender Fees"). 


28







   
        (d)    Administrative Fee.    The Borrowers jointly and severally agree to pay to the Administrative Agent the annual administrative fee
as described in the Fee Letter. 


        Section 2.6    Commitment
Reductions.    


        (a)    Voluntary
Reductions.    The Borrowers shall have the right to terminate or permanently reduce the unused portion of the Revolving
Committed Amount at any time or from time to time upon not less than three (3) Business Days' prior notice from the Parent Borrower to the Administrative Agent (which shall notify the Lenders
thereof as soon as practicable) of each such termination or reduction, which notice shall specify the effective date thereof and the amount of any such reduction which shall be in a minimum amount of
$500,000 or a whole multiple of $250,000 in excess thereof and shall be irrevocable and effective upon receipt by the Administrative Agent; provided that no such reduction
or termination shall be permitted if after giving effect thereto, and to any prepayments of the Loans made on the effective date thereof, the sum of the outstanding Revolving Loans plus outstanding
Swingline Loans plus outstanding LOC Obligations would exceed the Revolving Committed Amount. 


        (b)    Mandatory
Reductions.    On any date that the Revolving Loans are required to be prepaid pursuant to the terms of
Section 2.7(b)(ii)—(iv), the Revolving Committed Amount shall be automatically permanently reduced by the amount of such required prepayment and/or reduction;
provided that the Revolving Committed Amount shall not be reduced to an amount less than $35,000,000 pursuant to this Section 2.6(b) or Section 2.7(b)(v). 



        (c)    Maturity
Date.    The Revolving Commitment, the Swingline Commitment and the LOC Commitment shall automatically terminate on the
Maturity Date. 


        Section 2.7    Prepayments.    



        (a)    Optional
Prepayments.    The Borrowers shall have the right to prepay Loans in whole or in part from time to time;
provided, however, that (i) each partial prepayment of an Alternate Base Rate Loan shall be in a minimum principal amount of $250,000
and integral multiples of $50,000 in excess thereof, (ii) each partial prepayment of a LIBOR Rate Loan shall be in a minimum principal amount of $500,000 and integral multiples of $100,000 in
excess thereof and (iii) each partial prepayment of a
Swingline Loan shall be in a minimum principal amount of $100,000 and integral multiples of $50,000 in excess thereof. The Parent Borrower shall give three Business Days' irrevocable notice in the
case of LIBOR Rate Loans and one Business Day's irrevocable notice in the case of Alternate Base Rate Loans to the Administrative Agent (which shall notify the Lenders thereof as soon as practicable).
Each prepayment pursuant to this Section 2.7(a) shall be applied to the outstanding Loans as the Parent Borrower may elect; provided,
however, each prepayment shall be applied first to Alternate Base Rate Loans and then to LIBOR Rate Loans in direct order of Interest Period maturities. All prepayments
under this Section 2.7(a) shall be subject to Section 2.17, but otherwise without premium or penalty. Interest on the principal amount prepaid shall be payable on the next occurring
Interest Payment Date that would have occurred had such Loan not been prepaid or, at the request of the Administrative Agent, interest on the principal amount prepaid shall be payable on any date that
a prepayment is made hereunder through the date of prepayment. 


        (b)    Mandatory
Prepayments.    



        (i)    Revolving Committed Amount.    If at any time after the Closing Date, the sum of
the outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding LOC Obligations shall exceed the lesser of (A) the Revolving Committed Amount and (B) the Borrowing
Base, the Borrowers immediately shall prepay the Revolving Loans in an amount sufficient to eliminate such excess (such prepayment to be applied as set forth in clause (v) below). 



29





 

        (ii)    Asset Dispositions.    Promptly following one or more Asset Dispositions in
excess of $750,000 in the aggregate in any fiscal year (excluding for purposes hereof superfluous, obsolete or uneconomic property and/or assets acquired in connection with any Permitted Acquisition,
in an aggregate amount not to exceed $5,000,000 during the term of this Agreement, to the extent such property and/or assets are sold or disposed of within 270 days after the consummation of
such Permitted Acquisition), the Borrowers shall prepay the Loans in an aggregate amount equal to the Net Cash Proceeds in excess of $750,000 derived from such Asset Dispositions (such prepayment to
be applied as set forth in clause (v) below); provided, however, that such Net Cash Proceeds shall not be required to be so applied to the extent the Parent Borrower delivers to the
Administrative Agent a certificate stating that the Borrowers intend to use such Net Cash Proceeds to acquire fixed or capital assets in replacement of the disposed assets within 180 days of
the receipt of such Net Cash Proceeds, it being expressly agreed that any Net Cash Proceeds not so reinvested shall be applied to repay the Loans (such prepayment to be applied as set forth in
clause (v) below) immediately following the 180th day occurring after the receipt by a Borrower of such Net Cash Proceeds. 


        (iii)    Issuances.    Immediately upon receipt by any Borrower or any of its
Subsidiaries of proceeds from (A) any Debt Issuance, the Borrowers shall prepay the Loans in an aggregate amount equal to one hundred percent (100%) of the Net Cash Proceeds of such Debt
Issuance to the Lenders (such prepayment to be applied as set forth in clause (v) below) or (B) any Equity Issuance, the Borrowers shall prepay the Loans in an aggregate amount equal to
fifty percent (50%) of the Net Cash Proceeds of such Equity Issuance (such prepayment to be applied as set forth in clause (v) below). 


        (iv)    Recovery Event.    To the extent cash proceeds received in connection with all
Recovery Events in any fiscal year exceeds $500,000 in the aggregate and are not used to acquire fixed or capital assets in replacement of the assets subject to such Recovery Events within
180 days of the receipt of such cash proceeds, immediately following the 180th day occurring after the receipt of such cash proceeds, the Borrowers shall prepay the Loans in an aggregate amount
equal to one hundred percent (100%) of such cash proceeds (such prepayment to be applied as set forth in clause (v) below). 



        (v)    Application of Mandatory Prepayments.    All amounts required to be paid pursuant
to this Section 2.7(b) shall be applied as follows: (A) with respect to all amounts prepaid pursuant to Section 2.7(b)(i), (1) first to the outstanding Swingline Loans
(without any reduction in the Revolving Commitments), (2) second to the outstanding Revolving Loans (without any reduction in the Revolving Commitments) and (3) third to a cash
collateral account in respect of outstanding LOC Obligations, (B) with respect to all amounts prepaid pursuant to Sections 2.7(b)(ii) through (iv), (1) first to the outstanding
Swingline Loans (with a corresponding reduction in the Revolving Commitments, subject to the terms of Section 2.6(b), (2) second to the outstanding Revolving Loans (with a corresponding
reduction in the Revolving Commitments, subject to the terms of Section 2.6(b) and (3) third to a cash collateral account in respect of outstanding LOC Obligations. Within the parameters
of the applications set forth above, prepayments shall be applied first to Alternate Base Rate Loans and then to LIBOR Rate Loans in direct order of Interest Period maturities. All prepayments under
this Section 2.7(b) shall be subject to Section 2.17 and be accompanied by interest on the principal amount prepaid through the date of prepayment. 




        Section 2.8    Minimum
Principal Amount of Tranches.    


        All
borrowings, payments and prepayments in respect of Revolving Loans shall be in such amounts and be made pursuant to such elections so that after giving effect thereto the aggregate
principal amount of the Revolving Loans shall be (a) with respect to Alternate Base Rate Loans, in an outstanding amount equal to $250,000 and integral multiples of $50,000 in excess thereof
and (b) with 


30





 





respect to LIBOR Rate Loans, in an outstanding amount equal to $500,000 and integral multiples of $250,000 in excess thereof. 


        Section 2.9    Default
Rate and Payment Dates.    


        Upon
the occurrence, and during the continuance, of an Event of Default, at the election of the Required Lenders, the principal of and, to the extent permitted by law, interest on the
Loans and any other amounts owing hereunder or under the other Credit Documents shall bear interest, payable on demand, at a per annum rate 2% greater than the rate which would otherwise be applicable
(or if no rate is applicable, whether in respect of interest, fees or other amounts, then at the ABR Default Rate). 


        Section 2.10    Conversion
and Continuation Options.    


        (a)  The
Borrowers may, in the case of Revolving Loans, elect from time to time to convert Alternate Base Rate Loans to LIBOR Rate Loans, by the Parent Borrower giving the
Administrative Agent at least three Business Days' prior irrevocable written notice of such election. A form of Notice of Conversion/Continuation is attached as
Schedule 2.10. If the date upon which an Alternate Base Rate Loan is to be converted to a LIBOR Rate Loan is not a Business Day, then such conversion shall be made
on the next succeeding Business Day and during the period from such last day of an Interest Period to such succeeding Business Day such Loan shall bear interest as if it were an Alternate Base Rate
Loan. All or any part of outstanding Alternate Base Rate Loans may be converted as provided herein, provided that (i) no Loan may be converted into a LIBOR Rate
Loan when any Default or Event of Default has occurred and is continuing and (ii) partial conversions shall be in an aggregate principal amount of $500,000 or a whole multiple of $250,000 in
excess thereof. 


        (b)  Any
LIBOR Rate Loans may be continued as such upon the expiration of an Interest Period with respect thereto by compliance by the Borrowers with the notice provisions
contained in Section 2.10(a); provided, that no LIBOR Rate Loan may be continued as such when any Default or Event of Default has occurred and is continuing, in
which case such Loan shall be automatically converted to an Alternate Base Rate Loan at the end of the applicable Interest Period with respect thereto. If the Parent Borrower shall fail to give timely
notice of an election to continue a LIBOR Rate Loan, or the continuation of LIBOR Rate Loans is not permitted hereunder, such LIBOR Rate Loans shall be automatically converted to Alternate Base Rate
Loans at the end of the applicable Interest Period with respect thereto. 


        Section 2.11    Computation
of Interest and Fees.    


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


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


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


        Section 2.12    Pro
Rata Treatment and Payments.    


        (a)  Each
borrowing of Revolving Loans and any reduction of the Revolving Commitments shall be made pro rata according to the respective
Revolving Commitment Percentages of the Lenders. Each payment (other than prepayments) of principal or interest under this Agreement or any Note shall be applied, first, to any fees then due and owing
by the Borrowers pursuant to Section 2.5, second, to interest then due and owing hereunder and under the Notes and, third, to principal then due and owing hereunder and under the Notes. Each
payment on account of any fees pursuant to Section 2.5 shall be made pro rata in accordance with the respective amounts due and owing (except as to the portion of the Letter of Credit retained
by the Issuing Lender and the Issuing Lender Fees). Each optional prepayment of the Loans shall be applied in accordance with Section 2.7(a) and each mandatory prepayment of the Loans shall be
applied in accordance with Section 2.7(b). Prepayments made pursuant to Section 2.15 shall be applied in accordance with such section. All payments (including prepayments) to be made by
the Borrowers on account of principal, interest and fees shall be made without defense, set-off or counterclaim (except as provided in Section 2.18(b)) and shall be made to the
Administrative Agent for the account of the Lenders at the Administrative Agent's office specified on Schedule 9.2 in Dollars and in immediately available funds not
later than 12:00 Noon on the date when due. The Administrative
Agent shall distribute such payments to the Lenders entitled thereto promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the LIBOR Rate Loans) becomes due
and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension. If any payment on a LIBOR Rate Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business
Day. 


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        (b)    Allocation
of Payments After Event of Default.    Notwithstanding any other provisions of this Credit Agreement to the contrary,
after the occurrence and during the continuance of an Event of Default, all amounts collected or received by the Administrative Agent or any Lender on account of the Borrowers' Obligations or any
other amounts outstanding under any of the Credit Documents or in respect of the Collateral shall be paid over or delivered as follows: 



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


        SECOND,
to the payment of all reasonable out-of-pocket costs and expenses (including without limitation, reasonable attorneys' and consultants' fees) of the
Administrative Agent and each of the Lenders in connection with enforcing its rights under the Credit Documents or otherwise with respect to the Borrowers' Obligations owing to such Lender; 



        THIRD,
to the payment of all of the Borrowers' Obligations consisting of accrued fees and interest, and including with respect to any Hedging Agreement between any Borrower and any
Lender, or any Affiliate of a Lender, to the extent such Hedging Agreement relates to Indebtedness outstanding under this Agreement and is permitted by Section 6.1(e), any fees, premiums and
scheduled periodic payments due under such Hedging Agreement and any interest accrued thereon; 


        FOURTH,
to the payment of the outstanding principal amount of the Borrowers' Obligations and the payment or cash collateralization of the outstanding LOC Obligations, and including with
respect to any Hedging Agreement between any Borrower and any Lender, or any Affiliate of a Lender, to the extent such Hedging Agreement relates to Indebtedness outstanding under this Agreement and is
permitted by Section 6.1(e), any breakage, termination or other payments due under such Hedging Agreement and any interest accrued thereon; 


        FIFTH,
to all other Borrowers' Obligations and other obligations which shall have become due and payable under the Credit Documents or otherwise and not repaid pursuant to clauses
"FIRST" through "FOURTH" above; and 


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




In
carrying out the foregoing, (i) amounts received shall be applied in the numerical order provided until exhausted prior to application to the next succeeding category; (ii) each of
the Lenders shall receive an amount equal to its pro rata share (based on the proportion that the then outstanding Loans, LOC Obligations and obligations outstanding under the Hedge Agreements (if
any) permitted by Section 6.1(e) held by such Lender (and its Affiliates in the case of Hedge Agreement obligations) bears to the aggregate then outstanding Loans, LOC Obligations and
obligations outstanding under the Hedge Agreements between any Borrower and any Lender or any Affiliate of a Lender that are permitted by Section 6.1(e)) of amounts available to be applied
pursuant to clauses "THIRD" and "FOURTH" above; and (iii) to the extent that any amounts available for distribution pursuant to clause "FOURTH" above are attributable to the issued but undrawn
amount of outstanding Letters of Credit, such amounts shall be held by the Administrative Agent in a cash collateral account and applied (A) first, to reimburse the Issuing Lender from time to
time for any drawings under such Letters of Credit and (B) then, following the expiration of all Letters of Credit, to all other obligations of the types described in clauses "FOURTH" and
"FIFTH" above in the manner provided in this Section 2.12(b). 


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        Section 2.13    Non-Receipt
of Funds by the Administrative Agent.    


        (a)  Unless
the Administrative Agent shall have been notified in writing by a Lender prior to the date a Loan is to be made by such Lender (which notice shall be effective
upon receipt) that such Lender does not intend to make the proceeds of such Loan available to the Administrative Agent, the Administrative Agent may assume that such Lender has made such proceeds
available to the Administrative Agent on such date, and the Administrative Agent may in reliance upon such assumption (but shall not be required to) make available to the Borrowers a corresponding
amount. If such corresponding amount is not in fact made available to the Administrative Agent, the Administrative Agent shall be able to recover such corresponding amount from such Lender. If such
Lender does not pay such corresponding amount forthwith upon the Administrative Agent's demand therefor, in accordance with the terms hereof, the Administrative Agent will promptly notify the Parent
Borrower, and the Borrowers shall immediately pay such corresponding amount to the Administrative Agent. The Administrative Agent shall also be entitled to recover from the Lender or the Borrowers, as
the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the Borrowers to the date such
corresponding amount is recovered by the Administrative Agent at a per annum rate equal to
(i) from the Borrowers at the applicable rate for the applicable borrowing pursuant to the Notice of Borrowing and (ii) from a Lender at the Federal Funds Effective Rate. 



        (b)  Unless
the Administrative Agent shall have been notified in writing by the Parent Borrower, prior to the date on which any payment is due from it hereunder (which notice
shall be effective upon receipt) that the Borrowers do not intend to make such payment, the Administrative Agent may assume that the Borrowers have made such payment when due, and the Administrative
Agent may in reliance upon such assumption (but shall not be required to) make available to each Lender on such payment date an amount equal to the portion of such assumed payment to which such Lender
is entitled hereunder, and if the Borrowers have not in fact made such payment to the Administrative Agent, such Lender shall, on demand, repay to the Administrative Agent the amount made available to
such Lender. If such amount is repaid to the Administrative Agent on a date after the date such amount was made available to such Lender, such Lender shall pay to the Administrative Agent on demand
interest on such amount in respect of each day from the date such amount was made available by the Administrative Agent to such Lender to the date such amount is recovered by the Administrative Agent
at a per annum rate equal to the Federal Funds Effective Rate. 


        (c)  A
certificate of the Administrative Agent submitted to the Parent Borrower or any Lender with respect to any amount owing under this Section 2.13 shall be
conclusive in the absence of manifest error. 


        Section 2.14    Inability
to Determine Interest Rate.    


        Notwithstanding
any other provision of this Agreement, if (i) the Administrative Agent shall reasonably determine (which determination shall be conclusive and binding absent
manifest error) that, by reason of circumstances affecting the relevant market, reasonable and adequate means do not exist for ascertaining LIBOR for such Interest Period, or (ii) the Required
Lenders shall reasonably determine (which determination shall be conclusive and binding absent manifest error) that the LIBOR Rate does not adequately and fairly reflect the cost to such Lenders of
funding LIBOR Rate Loans that the Parent Borrower has requested be outstanding as a LIBOR Tranche during such Interest Period, the Administrative Agent shall forthwith give telephone notice of such
determination, confirmed in writing, to the Parent Borrower, and the Lenders at least two Business Days prior to the first day of such Interest Period. Unless the Parent Borrower shall have notified
the Administrative Agent upon receipt of such telephone notice that they wish to rescind or modify their request regarding such LIBOR Rate Loans, any Loans that were requested to be made as LIBOR Rate
Loans shall be made as Alternate Base Rate Loans and any Loans that were requested to be converted into or 


34





 




continued as LIBOR Rate Loans shall remain as or be converted into Alternate Base Rate Loans. Until any such notice has been withdrawn by the Administrative Agent, no further Loans shall be made as,
continued as, or converted into, LIBOR Rate Loans for the Interest Periods so affected. 


        Section 2.15    Illegality.    



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


        Section 2.16    Requirements
of Law.    


        (a)  If
the adoption of or any change in any Requirement of Law or in the interpretation or application thereof or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof: 



        (i)    shall
subject such Lender to any tax of any kind whatsoever with respect to any Letter of Credit or any application relating thereto, any LIBOR Rate Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof (except for tax on the overall net income of such Lender and changes in the rate of such tax); 


        (ii)  shall
impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or
for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender which is not otherwise included in the determination of the LIBOR
Rate hereunder; or 


        (iii)  shall
impose on such Lender any other condition; 




and
the result of any of the foregoing is to increase the cost to such Lender of making or maintaining LIBOR Rate Loans or the Letters of Credit or to reduce any amount receivable hereunder or under
any Note, LIBOR Rate Loan or Letter of Credit, then, in any such case, the Borrowers jointly and severally shall promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such additional cost or reduced amount receivable which such Lender 


35





 


reasonably deems to be material as determined by such Lender with respect to its LIBOR Rate Loans or Letters of Credit. A certificate as to any additional amounts payable pursuant to this Section
submitted by such Lender, through the Administrative Agent, to the Parent Borrower shall be conclusive in the absence of manifest error. Each Lender agrees to use reasonable efforts (including
reasonable efforts to change its Domestic Lending Office or LIBOR Lending Office, as the case may be) to avoid or to minimize any amounts which might otherwise be payable pursuant to this paragraph of
this Section; provided, however, that such efforts shall not cause the imposition on such Lender of any additional costs or legal or
regulatory burdens deemed by such Lender to be material. 


        (b)  If
any Lender shall have reasonably determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any
central bank or Governmental Authority made subsequent to the date hereof does or shall have the effect of reducing the rate of return on such Lender's or such corporation's capital as a consequence
of its obligations hereunder to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender's or
such corporation's policies with respect to capital adequacy) by an amount reasonably deemed by such Lender to be material, then from time to time, within fifteen (15) days after demand by such
Lender, the Borrowers jointly and severally shall pay to such Lender such additional amount as shall be certified by such Lender as being required to compensate it for such reduction. Such a
certificate as to any additional amounts payable under this Section submitted by a Lender (which certificate shall include a description of the basis for the computation), through the Administrative
Agent, to the Borrower shall be conclusive absent manifest error. 


        (c)  The
agreements in this Section 2.16 shall survive the termination of this Agreement and payment of the Notes and all other amounts payable hereunder. 


        Section 2.17    Indemnity.    


        The
Borrowers hereby jointly and severally agree to indemnify each Lender and to hold such Lender harmless from any funding loss or expense which such Lender may sustain or incur as a
consequence of (a) default by the Borrowers in payment of the principal amount of or interest on any Loan by such Lender in accordance with the terms hereof, (b) default by the Borrowers
in accepting a borrowing after the Parent Borrower has given a notice in accordance with the terms hereof, (c) default by the Borrowers in making any prepayment after the Parent Borrower has
given a notice in accordance with
the terms hereof, and/or (d) the making by the Borrowers of a prepayment of a Loan, or the conversion thereof, on a day which is not the last day of the Interest Period with respect thereto, in
each case including, but not limited to, any such loss or expense arising from interest or fees payable by such Lender to lenders of funds obtained by it in order to maintain its Loans hereunder. A
certificate as to any additional amounts payable pursuant to this Section submitted by any Lender, through the Administrative Agent, to the Parent Borrower shall be conclusive in the absence of
manifest error. The agreements in this Section shall survive termination of this Agreement and payment of the Notes and all other amounts payable hereunder. 


        Section 2.18    Taxes.    



        (a)  All
payments made by the Borrowers hereunder or under any Note shall be, except as provided in Section 2.18(b), made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any Governmental Authority or by any political
subdivision or taxing authority thereof or therein with respect to such payments (but excluding any tax imposed on or measured by the receipts or the net income or profits of a Lender pursuant to the
laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or applicable 


36





 




lending office of such Lender is located or any subdivision thereof or therein) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxes,
levies, imposts, duties, fees, assessments or other charges being referred to collectively as "Taxes"). If any Taxes on payments made by the Borrowers hereunder are levied
or imposed, the Borrowers jointly and severally agree to pay the full amount of such Taxes, and such additional amounts as may be necessary so that every payment of all amounts due under this
Agreement or under any Note, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Note. The Parent Borrower will furnish to
the Administrative Agent as soon as practicable after the date the payment of any Taxes is due pursuant to applicable law certified copies (to the extent reasonably available and required by law) of
tax receipts evidencing such payment by the Borrowers. The Borrowers jointly and severally agree to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the
amount of any Taxes so levied or imposed and paid by such Lender. 


        (b)  Each
Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) agrees to deliver to the Parent Borrower and the
Administrative Agent on or prior to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 9.6(d) (unless the
respective Lender was already a Lender hereunder immediately prior to such assignment or transfer), on the date of such assignment or transfer to such Lender, (i) if the Lender is a "bank"
within the meaning of Section 881(c)(3)(A) of the Code, two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8ECI (or
successor forms) certifying such Lender's entitlement to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement and under any Note, or
(ii) if the Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, either Internal Revenue Service Form W-8BEN or W-8ECI as set
forth in clause (i) above, or (x) a certificate substantially in the form of Schedule 2.18 (any such certificate, a "2.18
Certificate") and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8 (or successor form) certifying such Lender's
entitlement to an exemption from United States withholding tax with respect to
payments of interest to be made under this Agreement and under any Note. In addition, each Lender agrees that it will deliver upon the Parent Borrower's request updated versions of the foregoing, as
applicable, whenever the previous certification has become obsolete or inaccurate in any material respect, together with such other forms as may be required in order to confirm or establish the
entitlement of such Lender to a continued exemption from or reduction in United States withholding tax with respect to payments under this Agreement and any Note. Notwithstanding anything to the
contrary contained in Section 2.18(a), but subject to the immediately succeeding sentence, (x) the Borrowers shall be entitled, to the extent they are required to do so by law, to deduct
or withhold Taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable hereunder for the account of any
Lender which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that such Lender has not provided to
the Parent Borrower U.S. Internal Revenue Service Forms that establish a complete exemption from such deduction or withholding and (y) the Borrowers shall not be obligated pursuant to
Section 2.18(a) hereof to gross-up payments to be made to a Lender in respect of Taxes imposed by the United States if (I) such Lender has not provided to the Parent Borrower
the Internal Revenue Service Forms required to be provided to the Parent Borrower pursuant to this Section 2.18(b) or (II) in the case of a payment, other than interest, to a Lender
described in clause (ii) above, to the extent that such Forms do not establish a complete exemption from withholding of such Taxes. Notwithstanding anything to the contrary contained in the
preceding sentence or elsewhere in this Section 2.18, the Borrowers jointly and severally agree to pay additional amounts and to indemnify each Lender in the manner set forth in
Section 2.16(a) or 2.18(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any amounts deducted or withheld by it as described in the
immediately preceding sentence as a result of 


37





 




any changes after the Closing Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of
Taxes. 


        (c)  Each
Lender agrees to use reasonable efforts (including reasonable efforts to change its Domestic Lending Office or LIBOR Lending Office, as the case may be) to avoid or
to minimize any amounts which might otherwise be payable pursuant to this Section; provided, however, that such efforts shall not cause the imposition on such Lender of any additional costs or legal
or regulatory burdens deemed by such Lender in its sole discretion to be material. 


        (d)  If
the Borrowers pay any additional amount pursuant to this Section 2.18 with respect to a Lender, such Lender shall use reasonable efforts to obtain a refund of
tax or credit against its tax liabilities on account of such payment; provided that such Lender shall have no obligation to use such reasonable efforts if either
(i) it is in an excess foreign tax credit position or (ii) it believes in good faith, in its sole discretion, that claiming a refund or credit would cause adverse tax consequences to it.
In the event that such Lender receives such a refund or credit, such Lender shall pay to the Parent Borrower an amount that such Lender reasonably determines is equal to the net tax benefit obtained
by such Lender as a result of such payment by the Borrowers. In the event that no refund or credit is obtained with respect to the Borrowers' payments to such Lender pursuant to this
Section 2.18, then such Lender shall upon request provide a certification that such Lender has not received a refund or credit for such payments. 


        (e)  The
agreements in this Section 2.18 shall survive the termination of this Agreement and the payment of the Notes and all other amounts payable hereunder. 



        Section 2.19    Indemnification;
Nature of Issuing Lender's Duties.    


        (a)  In
addition to its other obligations under Section 2.2, the Borrowers jointly and severally hereby agree to protect, indemnify, pay and save each Issuing Lender
harmless from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable attorneys' fees) that the Issuing Lender may incur or be subject
to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit or (ii) the failure of the Issuing Lender to honor a drawing under a Letter of Credit as a result of
any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or governmental authority (all such acts or omissions, herein called
"Government Acts"). 


        (b)  As
between the Borrowers and the Issuing Lender, the Borrowers shall assume all risks of the acts, omissions or misuse of any Letter of Credit by the beneficiary
thereof. The Issuing Lender shall not be responsible: (i) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with
the application for and issuance of any Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the
validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, that may prove to be invalid or ineffective for any reason; (iii) for failure of the beneficiary of a Letter of Credit to comply fully with conditions required in order to draw upon a
Letter of Credit; (iv) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in
cipher; (v) for errors in interpretation of technical terms; (vi) for any loss or delay in the transmission or otherwise of any document required in order to make a drawing under a
Letter of Credit or of the proceeds thereof; and (vii) for any consequences arising from causes beyond the control of the Issuing Lender, including, without limitation, any Government Acts.
None of the above shall affect, impair, or prevent the vesting of the Issuing Lender's rights or powers hereunder. 


        (c)  In
furtherance and extension and not in limitation of the specific provisions hereinabove set forth, any action taken or omitted by the Issuing Lender, under or in
connection with any Letter of 


38





 




Credit or the related certificates, if taken or omitted in good faith, shall not put the Issuing Lender under any resulting liability to the Borrowers. It is the intention of the parties that this
Agreement shall be construed and applied to protect and indemnify the Issuing Lender against any and all risks involved in the issuance of the Letters of Credit, all of which risks are hereby assumed
by the Borrowers, including, without limitation, any and all risks of the acts or omissions, whether rightful or wrongful, of any Government Authority. The Issuing Lender shall not, in any way, be
liable for any failure by the Issuing Lender or anyone else to pay any drawing under any Letter of Credit as a result of any Government Acts or any other cause beyond the control of the Issuing
Lender. 


        (d)  Nothing
in this Section 2.19 is intended to limit the reimbursement obligation of the Borrowers contained in Section 2.2(d) hereof. The obligations of the
Borrowers under this Section 2.19 shall survive the termination of this Agreement. No act or omissions of any current or prior beneficiary of a Letter of Credit shall in any way affect or
impair the rights of the Issuing Lender to enforce any right, power or benefit under this Agreement. 


        (e)  Notwithstanding
anything to the contrary contained in this Section 2.19, the Borrowers shall have no obligation to indemnify the Issuing Lender in respect of any
liability incurred by the Issuing Lender arising out of the gross negligence or willful misconduct of the Issuing Lender (including action not taken by an Issuing Lender), as determined by a court of
competent jurisdiction. 


        Section 2.20    Joint
and Several Liability of the Borrowers.    


        (a)  Each
of the Borrowers is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the Lenders under this Credit
Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in consideration of the undertakings of each of the Borrowers to accept joint and several liability for the
obligations of each of them. 


        (b)  Each
of the Borrowers jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several
liability with the other Borrowers with respect to the payment and performance of all of the obligations arising under this Credit Agreement and the other Credit Documents, it being the intention of
the parties hereto that all of the Borrowers' Obligations shall be the joint and several obligations of each of the Borrowers without preferences or distinction between them. 


        (c)  If
and to the extent that any of the Borrowers shall fail to make any payment with respect to any of the obligations hereunder as and when due or to perform any of such
obligations in accordance with the terms thereof, then in each such event, the other Borrowers will jointly and severally make such payment with respect to, or perform, such obligation. 


        (d)  The
obligations of each Borrower under the provisions of this Section 2.20 constitute full recourse obligations of such Borrower, enforceable against it to the
full extent of its properties and assets; 


        (e)  The
provisions of this Section 2.20 are made for the benefit of the Administrative Agent, the Lenders and their successors and assigns, and may be enforced by
them from time to time against any of the Borrowers as often as occasion therefor may arise and without requirement on the part of the Lenders first to marshall any of its claims or to exercise any of
its rights against any other Borrower or to exhaust any remedies available to it against any other Borrower or to resort to any other source or means of obtaining payment of any of the Borrowers'
Obligations hereunder or to elect any other
remedy. The provisions of this Section 2.20 shall remain in effect until all the Borrowers' Obligations hereunder shall have been paid in full or otherwise fully satisfied, all of the
Commitments and Credit Documents shall have been terminated. If at any time, any payment, or any part thereof, made in respect of any of the Borrowers' Obligations, is rescinded or must otherwise be
restored or returned by the Lenders upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise, the provisions of this Section 2.20 will forthwith be reinstated and
in effect as though such payment had not been made. 


        (f)    Notwithstanding
any provision to the contrary contained herein or in any of the other Credit Documents, to the extent the obligations of any Borrower shall be
adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the
obligations of such Borrower hereunder shall be limited to the maximum amount that is permissible under applicable law (whether federal or state and including, without limitation, the Bankruptcy
Code). 


39







  





        (g)  Without in any way limiting the provisions of this Section 2.20, for record-keeping purposes only, the Borrowers may allocate between themselves the individual
Loans made hereunder. 


 
 

ARTICLE III    
    
    REPRESENTATIONS AND WARRANTIES    
  


        To induce the Lenders to enter into this Agreement and to make the Extensions of Credit herein provided for, the Borrowers hereby represent and warrant to the
Administrative Agent and to each Lender that: 


        Section 3.1    Financial
Condition.    


        (a)  (i) The
audited consolidated financial statements of the Parent Borrower and its Subsidiaries for the fiscal years ended December 31, 1999, 2000 and 2001,
together with the related consolidated statements of income or operations, equity and cash flows for the fiscal years ended on such dates, (ii) the unaudited consolidated financial statements
of the Parent Borrower and its Subsidiaries at and for the nine-month period ending September 28, 2002 and (iii) the pro forma balance sheet of the Parent Borrower and its
Subsidiaries for the most recently ended month for which such information is available ending prior to the Closing Date: 



        (A)  were
prepared in accordance with GAAP (to the extent applicable) consistently applied throughout the period covered thereby, except as otherwise expressly noted therein,
by an independent nationally recognized accounting firm (except with respect to the unaudited financial statements and pro forma financial statements); 


        (B)  fairly
present the financial condition of the Parent Borrower and its Subsidiaries as of the date or dates thereof (subject, in the case of the unaudited financial
statements, to normal year-end adjustments and, in the case of the pro forma balance sheet referred to in subsection (iii) above, such information is
true and correct in all material respects and has been determined in good faith based upon reasonable assumptions) and results of operations for the period covered thereby; and 


        (C)  show
all Indebtedness and other liabilities, direct or contingent, of the Parent Borrower and its Subsidiaries as of the date thereof in accordance with GAAP, including
liabilities for taxes, (provided that with respect to the pro forma balance sheet referred to in subclause (iii) above, such information is true and correct in all material respects and has
been determined in good faith based upon reasonable assumptions) and as to the audited consolidated financial statements, contingent obligations. 




        (b)  The
2002 annual budget of the Parent Borrower and its Subsidiaries made available to the Lenders prior to the date hereof and the projections of the Parent Borrower and
its Subsidiaries through December 31, 2004 made available to the Lenders prior to the date hereof have been prepared in good faith based upon reasonable assumptions at the time such budgets and
projections were made. 


        Section 3.2    No
Change.    


        Since
December 31, 2001 (and, after delivery of annual audited financial statements in accordance with Section 5.1(a), from the date of the most recently delivered annual
audited financial statements) there has been no development or event which, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect. 


        Section 3.3    Corporate
Existence; Compliance with Law.    


        Each
of the Borrowers (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has the requisite power and
authority and the legal right to own and operate all its property, to lease the property it operates as lessee and to conduct the business 


40





 




in which it is currently engaged, (c) is duly qualified to conduct business and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification except to the extent that the failure to so qualify or be in good standing could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect and (d) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. 


        Section 3.4    Corporate
Power; Authorization; Enforceable Obligations.    


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


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


        (a)  The
execution, delivery and performance by each Borrower of the Credit Documents to which such Borrower is a party, in accordance with their respective terms, the
borrowings hereunder and the transactions contemplated hereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any approval or consent from any
Governmental Authority (other than such approvals or consents which have been obtained or made and not subject to suspension, revocation or termination) or violate any Requirement of Law relating to
such Borrower, (ii) conflict with, result in a breach of or constitute a default under the articles of incorporation, bylaws, articles of organization, operating agreement or other
organizational documents of such Borrower or any material indenture, agreement or other instrument to which such Person is a party or by which any of its properties may be bound or any approval or
consent from any Governmental Authority relating to such Person, or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter
acquired by such Person other than Liens arising under the Credit Documents. 


        (b)  Each
Borrower (i) (x) has all approvals and consents from all Governmental Authorities required by law for it to conduct its business, each of which is in full
force and effect, (y) each such approval and consent is final and not subject to review on appeal and (z) each such approval and consent is not the subject of any pending or, to the best
of its knowledge, threatened attack by direct or collateral proceeding, and (ii) is in compliance with each rule and regulation of each Governmental Authority applicable to it and in compliance
with all other Requirements of Law relating to it or any of its respective properties, in each case except to the extent the failure to obtain or maintain such approval or consent or failure to comply
with such rules and regulations or Requirement of Law could not reasonably be expected to have a Material Adverse Effect. 



        (c)  None
of the Borrowers is in default under or with respect to any of its Material Contracts or under or with respect to any of its other material Contractual Obligations,
or any judgment, order or 


41





 




decree to which it is a party, in any respect which could reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing. 


        Section 3.6    No
Material Litigation.    


        No
litigation, investigation, bankruptcy or insolvency, injunction, order or claim affecting or relating to any Borrower or any of its Subsidiaries, any such Person's properties or
revenues, or any Credit Document is pending or, to the best knowledge of the Borrowers, threatened by or against any Borrower or any of its Subsidiaries or against any of its or their respective
properties or revenues that has not been settled, dismissed, vacated, discharged or terminated which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, and no
judgments are outstanding which could reasonably be expected to have a Material Adverse Effect. 


        Section 3.7    Investment
Company Act; PUHCA; Etc.    


        No
Borrower is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended. No Borrower is subject
to regulation under the Public Utility Holding Company Act of 1935, as amended, the Federal Power Act, the Interstate Commerce Act, or any federal or state statute or regulation limiting its ability
to incur the Borrowers' Obligations. 


        Section 3.8    Margin
Regulations.    


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


        Section 3.9    ERISA.    


        Except
as set forth in Schedule 3.9, neither a Reportable Event nor an "accumulated funding deficiency" (within the meaning of Section 412 of
the Code or Section 302 of ERISA) has occurred during the five-year period prior to the date on which this representation is made or deemed made with respect to any Plan, and each
Plan has complied in all material respects with the applicable provisions of ERISA and the Code, except to the extent that any such occurrence or failure to comply would not reasonably be expected to
have a Material Adverse Effect. No termination of a Single Employer Plan has occurred resulting in any liability that has remained underfunded, and no Lien in favor of the PBGC or a Plan has arisen,
during such five-year period which could reasonably be expected to have a Material Adverse Effect. The present value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Plan
allocable to such accrued benefits by an amount which, as determined in accordance with GAAP, could reasonably be expected to have a Material Adverse Effect. Neither any Borrower, nor any of its
Subsidiaries nor any Commonly Controlled Entity is currently subject to any liability for a complete or partial withdrawal from a Multiemployer Plan which could reasonably be expected to have a
Material Adverse Effect. 


42





 

        Section 3.10    Environmental
Matters.    


        Except
as set forth in Schedule 3.10 which, either individually or in the aggregate, could not be reasonably expected to result in a Material Adverse
Effect: 


        (a)  The
facilities and properties owned, leased or operated by the Borrowers or any of their Subsidiaries (the "Properties") do not to the
knowledge of the Borrowers contain any Materials of Environmental Concern in amounts or concentrations which (i) constitute a material violation of, or (ii) could give rise to material
liability under, any Environmental Law. 


        (b)  The
Properties and all operations of the Borrowers and their Subsidiaries at the Properties are in compliance, and have in the last five years been in compliance, in all
material respects with all applicable Environmental Laws, and to the knowledge of the Borrowers there is no contamination at, under or about the Properties or violation of any Environmental Law with
respect to the Properties or the business operated by the Borrowers or any of their Subsidiaries (the "Business"). 


        (c)  No
Borrower nor any Subsidiary thereof has received any written or actual notice of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Properties or the Business, nor does any Borrower nor any Subsidiary thereof have knowledge or
reason to believe that any such notice will be received or is being threatened. 



        (d)  To
the knowledge of the Borrowers, materials of Environmental Concern have not been transported or disposed of from the Properties in violation of, or in a manner or to
a location which could give rise to any material liability under any Environmental Law, nor, to the knowledge of the Borrowers have any Materials of Environmental Concern been generated, treated,
stored or disposed of at, on or under any of the Properties in violation of, or in a manner that could give rise to any material liability under, any applicable Environmental Law. 


        (e)  No
judicial proceeding or governmental or administrative action is pending or, to the knowledge of any Borrower or any Subsidiary thereof, threatened, under any
Environmental Law to which any Borrower or any Subsidiary thereof is or will be named as a party with respect to the Properties or the Business, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other administrative or judicial requirements outstanding under any Environmental Law with respect to the Properties or the Business. 


        (f)    There
has been no release or threat of release of Materials of Environmental Concern at or from the Properties, or arising from or related to the operations of any
Borrower or any Subsidiary thereof in connection with the Properties or otherwise in connection with the Business, in violation of or in amounts or in a manner that could give rise to any material
liability under Environmental Laws. 


        Section 3.11    Purpose
of Loans.    


        The
proceeds of the Extensions of Credit shall be used solely by the Borrowers as follows: 


        (a)  with
respect to the Revolving Loans and Swingline Loans, to (i) finance Permitted Acquisitions, (ii) pay certain costs, fees and expenses in connection
with the IPO and Permitted Acquisitions, (iii) refinance certain existing indebtedness of the Borrowers, (iv) pay fees and expenses owing to the Lenders and the Administrative Agent in
connection with this Agreement and (v) provide for working capital, capital expenditures and other general corporate purposes; and 


        (b)  the
Letters of Credit shall be used only for or in connection with appeal bonds, reimbursement obligations arising in connection with leases, surety and reclamation
bonds, reinsurance, domestic or international trade transactions and obligations not otherwise aforementioned relating to transactions entered into by the applicable account party in the ordinary
course of business. 


43





 

        Section 3.12    Subsidiaries.    


        Set
forth on Schedule 3.12 is a complete and accurate list of all Subsidiaries of the Borrowers as of the Closing Date. Information on the attached
Schedule includes state of incorporation or organization; the number of authorized shares of each class of Capital Stock or other equity interests; the number of outstanding shares of each class of
Capital Stock or other equity interests, the owner thereof and the percentage of such ownership; and the number and effect, if exercised, of all outstanding options, warrants, rights of conversion or
purchase and similar rights. The outstanding Capital Stock and other equity interests of all such Subsidiaries is validly issued, fully paid and non-assessable and is owned free and clear
of all Liens (other than those arising under or contemplated in connection with the Credit Documents). 


        Section 3.13    Ownership;
Insurance.    


        Each
of the Borrowers is the owner of, and has good and marketable title to and adequate insurance coverage for, all of its respective assets which, together with assets leased or
licensed by the Borrowers, represents all assets individually or in the aggregate material to the conduct of the businesses of the Borrowers taken as a whole, and none of such assets is subject to any
Lien other than Permitted Liens. Each Borrower enjoys peaceful and undisturbed possession under all of its material leases and all such leases are valid and subsisting and in full force and effect.
The Borrowers have delivered complete and accurate copies of all material leases in effect at the Closing Date to the Administrative Agent. 


        Section 3.14    Indebtedness.    



        Except
as otherwise permitted under Section 6.1, the Borrowers and their Subsidiaries have no Indebtedness. 


        Section 3.15    Taxes.    



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


        Section 3.16    Intellectual
Property.    


        Each
of the Borrowers and its Subsidiaries owns, or has the legal right to use, all trademarks, tradenames, copyrights, patents, technology, know-how and processes necessary
for each of them to conduct its business as currently conducted. Set forth on Schedule 3.16 is a list of all Intellectual Property owned by the Borrowers and their
Subsidiaries or that any Borrower or any of its Subsidiaries has the right to use as of the Closing Date. Except as provided on Schedule 3.16, as of the Closing
Date no claim has been asserted and is pending by any Person challenging or questioning the use of any such Intellectual Property or the validity or effectiveness of any such Intellectual Property,
nor does any Borrower or any of its Subsidiaries know of any such claim, and, to the knowledge of any Borrower and its Subsidiaries, the use of such Intellectual Property by any Borrower or any of its
Subsidiaries does not infringe on the rights of any Person, except for such claims and infringements that in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
Schedule 3.16 shall be updated from time to time by the Parent Borrower to indicate changes in Intellectual Property by giving written notice thereof to the
Administrative Agent. 


44





 

        Section 3.17    Solvency.    



        The
fair saleable value of each Borrower's assets, measured on a going concern basis, exceeds all probable liabilities including those to be incurred pursuant to this Agreement. None of
the Borrowers (a) has unreasonably small capital in relation to the business in which it is or proposes to be engaged or (b) has incurred, or believes that it will incur after giving
effect to the transactions contemplated by this Agreement, debts beyond its ability to pay such debts as they become due. 


        Section 3.18    Investments.    



        All
Investments of each of the Borrowers and their Subsidiaries are Permitted Investments. 


        Section 3.19    Location
of Collateral.    


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


        Section 3.20    No
Burdensome Restrictions.    


        None
of the Borrowers or any of its Subsidiaries is a party to any agreement or instrument or subject to any other obligation or any charter or corporate restriction or any provision of
any applicable law, rule or regulation which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. 


        Section 3.21    Brokers'
Fees.    


        None
of the Borrowers or any of its Subsidiaries have any obligation to any Person in respect of any finder's, broker's, investment banking or other similar fee in connection with any of
the transactions contemplated under the Credit Documents other than the closing and other fees payable pursuant to this Agreement and the Fee Letter. 


        Section 3.22    Labor
Matters.    


        As
of the Closing Date, there are no collective bargaining agreements or Multiemployer Plans covering the employees of the Borrowers or any of their Subsidiaries as of the Closing Date,
other than as set forth in Schedule 3.22 hereto, and none of the Borrowers or any of its Subsidiaries (i) has suffered any strikes, walkouts, work stoppages
or other material labor difficulty within the last five years, other than as set forth in Schedule 3.22 hereto or (ii) has knowledge of any potential or
pending strike, walkout or work stoppage. 


        Section 3.23    Security
Documents.    


        The
Security Documents create valid security interests in, and Liens on, the Collateral purported to be covered thereby, which security interests and Liens are currently (or will be,
upon the filing of appropriate financing statements and grants of security in Intellectual Property, and the recordation of the applicable Mortgage Instruments, in each case in favor of the
Administrative Agent) perfected security interests and Liens, prior to all other Liens other than Permitted Liens. 


        Section 3.24    Accuracy
and Completeness of Information.    


        All
factual information heretofore, contemporaneously or hereafter furnished by or on behalf of any Borrower or any of its Subsidiaries to the Administrative Agent or any Lender for
purposes of or in connection with this Agreement or any other Credit Document, or any transaction contemplated hereby or thereby, is or will be true and accurate in all material respects and not
incomplete by 


45





 




omitting to state any material fact necessary to make such information not misleading. There is no fact now known to any Borrower or any of its Subsidiaries which has, or could reasonably be expected
to have, a Material Adverse Effect. 


        Section 3.25    Consummation
of IPO.    


        The
IPO and related transactions have been consummated substantially in accordance with the terms of the Transaction Documents. As of the Closing Date, the Transaction Documents have not
been altered, amended or otherwise modified or supplemented in any material respect nor has any material condition thereof been waived without the prior written consent of the Administrative Agent. 


        Section 3.26    Absence
of Certain Changes or Events.    


        As
of the Closing Date, since December 31, 2001, except as set forth on Schedule 3.26, none of the Borrowers has (i) issued any stock,
bonds or other corporate securities, (ii) borrowed any amount or incurred any liabilities (absolute or contingent), other than in the ordinary course of business, in excess of $100,000,
(iii) discharged or satisfied any Lien or incurred or paid any obligation or liability (absolute or contingent), other than in the ordinary course of business in excess of $100,000,
(iv) declared or made any payment or distribution to stockholders or purchased or redeemed any shares of its Capital Stock or other securities, (v) mortgaged, pledged or subjected to
Lien any of its assets, tangible or intangible, (vi) sold, assigned or transferred any of its tangible assets, or canceled any debts or claims other than in the ordinary course of business,
(vii) sold, assigned or transferred any Intellectual Property or other intangible assets other than in the ordinary course of business, (viii) suffered any losses of property, or waived
any rights of substantial value, (ix) granted any bonuses other than in the ordinary course of business or granted any extraordinary salary increases, (x) entered into any transaction
involving consideration in excess of $250,000 except as otherwise contemplated hereby other than in the ordinary course of business or (xi) entered into any agreement or transaction, or amended
or terminated any agreement with any Affiliate. To the knowledge of the Borrowers, no material adverse change in the business, operations, property, condition (financial or otherwise) or prospects of
the Borrowers, taken as a whole, is threatened or reasonably likely to occur. 


        Section 3.27    Material
Contracts.    


        Schedule 3.27
sets forth a complete and accurate list of all Material Contracts of the Borrowers and their Subsidiaries in effect as of the Closing
Date. As of the Closing Date, other than as set forth in Schedule 3.27, each such Material Contract is, and after giving effect to the transactions contemplated by
the Credit Documents will be, in full force and effect in accordance with the terms thereof and no Borrower or Subsidiary thereof has violated in any material respect any such Material Contract. The
Borrowers have delivered to the Administrative Agent for its review a correct and complete copy of each written agreement listed in Schedule 3.27 (as amended to
date) and a written summary setting forth the terms and conditions of each oral agreement referred to in such Schedule. 


        Section 3.28    Directors;
Capitalization.    


        Set
forth on Schedule 3.28 is a list of the members of the Parent Borrower's board of directors as of the Closing Date. As of the Closing Date, after
giving effect to the IPO and the transactions contemplated herein, the capitalization of the Parent Borrower shall be as set forth on Schedule 3.28. 


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ARTICLE IV    
    
    CONDITIONS PRECEDENT    
  


        Section 4.1    Conditions
to Closing and Initial Extensions of Credit.    



        This
Agreement shall become effective upon the satisfaction of the following conditions precedent (it being understood and agreed that delivery by a Lender of an executed signature page
to this Agreement shall constitute its agreement that the following conditions precedent have been satisfied): 


        (a)    Execution
of Credit Documents.    The Administrative Agent shall have received (i) counterparts of this Agreement,
(ii) for the account of each applicable Lender, a Revolving Note, (iii) for the account of the Swingline Lender, the Swingline Note, and (iv) counterparts of the Security
Agreement, the Pledge Agreement and each Mortgage Instrument, in each case conforming to the requirements of this Agreement and executed by a duly authorized officer of each party thereto, and in each
case in form and substance reasonably satisfactory to the Lenders. 


        (b)    Authority
Documents.    The Administrative Agent shall have received the following: 



        (i)    Articles of Incorporation/Charter Documents.    Copies of the articles of
incorporation or other charter documents, as applicable, of each Borrower certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state of its
incorporation. 


        (ii)    Resolutions.    Copies of resolutions of the board of directors of each Borrower
approving and adopting the Credit Documents, the transactions contemplated therein and authorizing execution and delivery thereof, certified by a secretary or assistant secretary of such Borrower
(pursuant to a secretary's certificate in substantially the form of Schedule 4.1-1 attached hereto) as of the Closing Date to be true and correct and in
force and effect as of such date. 


        (iii)      Bylaws/Operating Agreement.    A copy of the bylaws or comparable
operating agreement of each Borrower certified by a secretary or assistant secretary of such Borrower (pursuant to a secretary's certificate in substantially the form of
Schedule 4.1-1 attached hereto) as of the Closing Date to be true and correct and in force and effect as of such date. 


        (iv)    Good Standing.    Copies of certificates of good standing, existence or its
equivalent with respect to the each Borrower certified as of a recent date by the appropriate Governmental Authorities of the state of incorporation or organization and each other state in which the
failure to so qualify and be in good standing could reasonably be expected to have a Material Adverse Effect on the business or operations of the Borrowers and their Subsidiaries in such state. 


        (v)    Incumbency.    An incumbency certificate of each Borrower certified by a secretary
or assistant secretary (pursuant to a secretary's certificate in substantially the form of Schedule 4.1-1 attached hereto) to be true and correct as of
the Closing Date. 




        (c)    Legal
Opinions of Counsel.    The Administrative Agent shall have received opinions of legal counsel (including local counsel to
the extent required by the Administrative Agent) for the Borrowers, dated the Closing Date and addressed to the Administrative Agent and the Lenders, which opinions shall provide, among other things,
that, after giving effect to the consummation of the IPO and the other transactions to occur on the Closing Date, the execution and delivery of the Credit Documents will not result in a default and/or
otherwise conflict with any specified material agreements to which the Borrowers are a party or to which their properties and/or assets are bound or any Borrower's organizational documents, and which
shall otherwise be in form and substance reasonably acceptable to the Administrative Agent. 


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



        (i)    searches
of Uniform Commercial Code filings in the jurisdiction of the chief executive office of each Borrower, the state of incorporation or organization of each
Borrower and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect the Administrative Agent's security interest in the Collateral, copies of the
financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens; 


        (ii)  UCC
financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent's sole discretion, to perfect the Administrative Agent's
security interest in the Collateral; 


        (iii)    searches
of ownership of Intellectual Property in the appropriate governmental offices and such patent/trademark/copyright filings as requested by the
Administrative Agent in order to perfect the Administrative Agent's security interest in the Intellectual Property; 


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


        (v)  all
instruments (excluding checks) and chattel paper in the possession of any of the Borrowers, together with allonges or assignments as may be necessary or appropriate
to perfect the Administrative Agent's security interest in such instruments and chattel paper; 



        (vi)  with
respect to any Collateral held by a warehouseman or a bailee, such estoppel letter, consent and waiver from such warehousemen or bailee as may be reasonably
required by the Administrative Agent; 


        (vii) in
the case of any warehouse, plant or other real property material to the Borrowers' business that is leased by a Borrower, such estoppel letters, consents and
waivers from the landlords on such real property as may be required by the Administrative Agent; 


        (viii)  with
respect to the deposit accounts and securities accounts of the Borrowers, such control agreements as may be required by the Administrative Agent; 



        (ix)  with
respect to any Material Contract, such collateral assignment and consent to collateral assignment as may be required by the Administrative Agent; and 


        (x)  such
other duly executed agreements or consents as are necessary, in the Administrative Agent's reasonable discretion, to perfect the Administrative Agent's security
interest in the Collateral. 




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



        (i)    fully
executed and notarized mortgages, deeds of trust or deeds to secure debt (each, as the same may be amended, modified, restated or supplemented from time to time, a
"Mortgage Instrument" and collectively the "Mortgage Instruments") encumbering the fee interest in the properties listed in
Schedule 4.1-2 as properties owned by the Borrowers and, to the extent required by the Administrative Agent, the leasehold interest in the properties
listed in Schedule 4.1-2 as properties that are warehouses, plants or other real properties material to the conduct of the Borrowers' business and are
leased by the Borrowers (each a "Mortgaged Property" and collectively the "Mortgaged Properties"); 


        (ii)  a
title report in respect of each of the Mortgaged Properties; 



48





 




        (iii)  with
respect to each Mortgaged Property, an ALTA mortgagee title insurance policy issued by a title insurance company (the "Title Insurance
Company") selected by the Administrative Agent and reasonably acceptable to the Parent Borrower (the "Mortgage Policies"), in amounts satisfactory to the
Administrative Agent, assuring the Administrative Agent that each of the Mortgage Instruments creates a valid and enforceable first priority mortgage lien on the applicable Mortgaged Property, free
and clear of all defects and encumbrances except Permitted Liens, which Mortgage Policies shall be in form and substance reasonably satisfactory to the Administrative Agent and shall provide for
affirmative insurance and such reinsurance as the Administrative Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Administrative Agent; 


        (iv)  evidence
as to (A) whether any Mortgaged Property is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide
hazards (a "Flood Hazard Property") and (B) if any Mortgaged Property is a Flood Hazard Property, (1) whether the community in which such Mortgaged Property
is located is participating in the National Flood Insurance Program, (2) the applicable Borrower's written acknowledgment of receipt of written notification from the Administrative Agent
(y) as to the fact that such Mortgaged Property is a Flood Hazard Property and (z) as to whether the community in which each such Flood Hazard Property is located is participating in the
National Flood Insurance Program and (3) copies of insurance policies or certificates of insurance
of the Borrowers and their Subsidiaries evidencing flood insurance reasonably satisfactory to the Administrative Agent and naming the Administrative Agent as loss payee on behalf of the Lenders; 


        (v)  maps
or plats of an as-built survey of (A) the sites of the owned Mortgaged Properties and (B) to the extent reasonably required by the
Administrative Agent, the leased Mortgaged Properties, in each case certified to the Administrative Agent and the Title Insurance Company in a manner reasonably satisfactory to them, dated a date
satisfactory to each of the Administrative Agent and the Title Insurance Company by an independent professional licensed land surveyor selected by the Parent Borrower and reasonably satisfactory to
each of the Administrative Agent and the Title Insurance Company, which maps or plats and the surveys on which they are based shall be sufficient to delete any standard printed survey exception
contained in the applicable Mortgage Policy and be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title
Association and the American Congress on Surveying and Mapping in 1992, and, without limiting the generality of the foregoing, there shall be surveyed and shown on such maps, plats or surveys the
following: (A) the locations on such sites of all the buildings, structures and other improvements and the established building setback lines; (B) the lines of streets abutting the sites
and width thereof; (C) all access and other easements appurtenant to the sites necessary to use the sites; (D) all roadways, paths, driveways, easements, encroachments and overhanging
projections and similar encumbrances affecting the site, whether recorded, apparent from a physical inspection of the sites or otherwise known to the surveyor; (E) any encroachments on any
adjoining property by the building structures and improvements on the sites; and (F) if the site is described as being on a filed map, a legend relating the survey to such map; 


        (vi)  satisfactory
environmental reviews of all owned Mortgaged Properties, including but not limited to Phase I environmental assessments, together with reliance letters in
favor of the Lenders; 


        (vii) opinions
of counsel to the Borrowers for each jurisdiction in which the Mortgaged Properties are located; 



        (viii)  to
the extent readily available, zoning letters from each municipality or other Governmental Authority for each jurisdiction in which the Mortgaged
Properties are located; 



49





 




        (ix)  an
appraisal of each owned Mortgaged Property, in form and substance satisfactory to the Administrative Agent; and 



        (x)  to
the extent requested by the Administrative Agent, with respect to each leased Mortgaged Property (i) a survey certified to the Administrative Agent by a firm
of surveyors reasonably satisfactory to the
Administrative Agent and (ii) a landlord waiver in form and substance satisfactory to the Administrative Agent. 




        (f)    Liability,
Casualty and Business Interruption Insurance.    The Administrative Agent shall have received copies of insurance
policies or certificates of insurance evidencing liability and casualty insurance meeting the requirements set forth herein or in the Security Documents and business interruption insurance reasonably
satisfactory to the Administrative Agent. The Administrative Agent shall be named as additional loss payee or mortgagee, as its interest may appear, and/or additional insured with respect to such
insurance, and each provider of any such insurance shall agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to the Administrative Agent, that it
will give the Administrative Agent thirty (30) days prior written notice before any such policy or policies shall be altered or canceled. 


        (g)    Fees.    The
Administrative Agent and the Lenders shall have received all fees, if any, then owing pursuant to the Fee Letter and
Section 2.5. 


        (h)    Litigation.    There
shall not exist any material pending litigation, investigation, bankruptcy or insolvency, injunction, order
or claim with respect to any Borrower or any of its Subsidiaries, this Agreement and the other Credit Documents or the IPO, that has not been settled, dismissed, vacated, discharged or terminated
prior to the Closing Date. 


        (i)    Solvency
Certificate.    The Administrative Agent shall have received an officer's certificate prepared by the chief financial
officer of the Parent Borrower as to the financial condition, solvency and related matters of each Borrower, in each case after giving effect to the IPO and the initial borrowings under the Credit
Documents, in substantially the form of Schedule 4.1-3 hereto. 


        (j)    Account
Designation Letter.    The Administrative Agent shall have received the executed Account Designation Letter in the form of
Schedule 1.1-1 hereto. 


        (k)    Corporate
Structure.    The corporate, capital and ownership structure of the Borrowers and their Subsidiaries (after giving
effect to the IPO) shall be as described in Schedule 3.12, and shall otherwise be reasonably satisfactory to the Administrative Agent and the Lenders. The
Administrative Agent and the Lenders shall be reasonably satisfied with the management of the Borrowers and their Subsidiaries and with all legal, tax, accounting, business and other matters relating
the IPO or to the Borrowers and their Subsidiaries, in each case after giving effect to the IPO. 


        (l)    Transaction
Documents.    The Administrative Agent shall have reviewed and approved in its sole discretion all of the Transaction
Documents and there shall not have been any material modification, amendment, supplement or waiver to the Transaction Documents without the prior written consent of the Administrative Agent, and the
IPO shall have been consummated in accordance with the terms of
the Transaction Documents (without waiver of any conditions precedent to the obligations of any party thereto). The Administrative Agent shall be reasonably satisfied with the aggregate amount of fees
and expenses payable in connection with the consummation of the IPO. The Administrative Agent shall have received a copy, certified by an officer of the Parent Borrower as true and complete, of each
Transaction Document as originally executed and delivered, together with all exhibits and schedules thereto. 


        (m)    IPO
Proceeds.    The Parent Borrower shall have received (or simultaneously with the closing of the Loans hereunder, the Parent
Borrower will receive) gross cash equity proceeds from the IPO in 


50





 




an amount not less than $40,000,000 on terms and conditions reasonably acceptable to the Administrative Agent. 


        (n)    Consents.    The
Administrative Agent shall have received evidence that all governmental, shareholder, board of director and third
party consents and approvals necessary in connection with the financings and other transactions contemplated hereby (including the IPO) have been obtained and all applicable waiting periods have
expired without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on such transactions or that could seek or threaten any of such
transactions. 


        (o)    Due
Diligence.    The Administrative Agent and the Arranger (i) shall have completed in form and scope reasonably
satisfactory thereto their business, legal, financial and environmental due diligence of the Borrowers and their Subsidiaries (including due diligence relating to management, strategy, material
customers and contracts) and (ii) shall have received a formal review of the Borrowers' and their Subsidiaries' outstanding accounts receivable, contract processing procedures and accounts
receivable billing procedures, in form and substance reasonably satisfactory to the Administrative Agent and the Arranger. 


        (p)    Compliance
with Laws.    The financings and other transactions contemplated hereby shall be in compliance with all applicable laws
and regulations (including all applicable securities and banking laws, rules and regulations). 


        (q)    Bankruptcy.    There
shall be no bankruptcy or insolvency proceedings with respect to the any Borrower or any of its Subsidiaries. 


        (r)    Material
Adverse Effect.    No material adverse change shall have occurred since December 31, 2001 in the business,
properties, operations or financial condition of the Parent Borrower or any of its Subsidiaries. 


        (s)    Minimum
Pro Forma EBITDA.    The Administrative Agent shall have received evidence reasonably satisfactory thereto provided by the
Parent Borrower that Pro Forma EBITDA of the Borrowers and their Subsidiaries is not less than $9,300,000 for the twelve fiscal month period ending as of the fiscal quarter end most recently occurring
prior to the Closing Date for which such information is available. 


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


        (u)    Termination
of Existing Funded Debt.    All existing Funded Debt of the Parent Borrower and its Subsidiaries (other than the
Funded Debt listed on Schedule 6.1(b)), after giving effect to the IPO, shall have been repaid in full and terminated and all Liens relating thereto shall have been
terminated. 


        (v)    Officer's
Certificates.    The Administrative Agent shall have received a certificate executed by a Responsible Officer of the
Parent Borrower as of the Closing Date stating that (i) except as disclosed to the Administrative Agent in writing, no pending or, to the knowledge of any Borrower, threatened litigation,
investigation, bankruptcy or insolvency, injunction, order or claim affecting or relating to any Borrower or any of its Subsidiaries, this Agreement and the other Credit Documents or the IPO, that has
not been settled, dismissed, vacated, discharged or terminated prior to the Closing Date and (ii) immediately after giving effect to this Credit Agreement (including the initial Extensions of
Credit hereunder), the other Credit Documents, the IPO and the Transaction Documents and all the transactions contemplated therein to occur on such date, (A) no Default or Event of Default
exists, (B) all representations and warranties contained herein and in the other Credit Documents are true and correct in all material respects, and (C) the Borrowers are in compliance
with each of the financial covenants set forth in Section 5.9 on a pro forma basis (which for purposes hereof shall be calculated in the manner set forth on
Schedule 4.1-4), and demonstrating compliance with such financial covenants. 


        (w)    Borrowing
Base Certificate.    The Lenders shall have received a certificate from the chief financial officer of the Parent
Borrower substantially in the form of Schedule 5.2(h), attached hereto detailing the Borrowing Base (i) as of the most recent month end if the Closing Date
occurs after the 15th day of the month and (ii) as of the second most recent month end if the Closing Date occurs prior to the 15th day of the month. 


51







  





        (x)    Additional Matters.    All other documents and legal matters in connection with the transactions contemplated by this Agreement
shall be reasonably satisfactory in form and substance to the Administrative Agent and its counsel. 


        Section 4.2    Conditions
to All Extensions of Credit.    


        The
obligation of each Lender to make any Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent on the date of making such Extension of
Credit: 


        (a)    Representations
and Warranties.    The representations and warranties made by the Borrowers herein, in the Security Documents or
which are contained in any certificate furnished at any time under or in connection herewith shall be true and correct on and as of the date of such Extension of Credit as if made on and as of such
date, except for those representations and warranties made as of a specific date. 


        (b)    No
Default or Event of Default.    No Default or Event of Default shall have occurred and be continuing on such date or after
giving effect to such Extension of Credit. 


        (c)    Compliance
with Commitments.    Immediately after giving effect to the making of any such Extension of Credit (and the application
of the proceeds thereof), (i) the sum of outstanding Revolving Loans plus outstanding Swingline Loans plus outstanding LOC Obligations
shall not exceed the lesser of (x) the Revolving Committed Amount and (y) the Borrowing Base, (ii) the LOC Obligations shall not exceed the LOC Committed Amount and
(iii) the Swingline Loans shall not exceed the Swingline Committed Amount. 


        (d)    Additional
Conditions to Revolving Loans.    If a Revolving Loan is requested, all conditions set forth in Section 2.1
shall have been satisfied. 


        (e)    Additional
Conditions to Letters of Credit.    If the issuance of a Letter of Credit is requested, all conditions set forth in
Section 2.2 shall have been satisfied. 


        (f)    Additional
Conditions to Swingline Loans.    If a Swingline Loan is requested, all conditions set forth in Section 2.3
shall have been satisfied. 


        Each
request for an Extension of Credit and each acceptance by the Borrowers of any such Extension of Credit shall be deemed to constitute representations and warranties by the Borrowers
as of the date of such Extension of Credit that the applicable conditions in paragraphs (a) through (f) of this Section have been satisfied. 


 
 

ARTICLE V    
    
    AFFIRMATIVE COVENANTS    
  


        The Borrowers hereby covenant and agree that on the Closing Date, and thereafter for so long as this Agreement is in effect and until the Commitments have
terminated, no Note remains outstanding and unpaid and the Borrowers' Obligations together with interest, Commitment Fee and all other amounts owing to the Administrative Agent or any Lender
hereunder, are paid in full, the Borrowers shall, and shall cause each of their Subsidiaries (other than in the case of Sections 5.1, 5.2 or 5.7 hereof), to: 


        Section 5.1    Financial
Statements.    


        Furnish
to the Administrative Agent and each of the Lenders: 


        (a)    Annual
Financial Statements.    As soon as available, but in any event within ninety (90) days after the end of each fiscal
year of the Parent Borrower, a copy of the consolidated and consolidating (upon the reasonable request of the Administrative Agent) balance sheet of the Parent Borrower and its consolidated
Subsidiaries as at the end of such fiscal year and the related consolidated and 


52





 




consolidating (upon the reasonable request of the Administrative Agent) statements of income and retained earnings and of cash flows of the Parent Borrower and its consolidated Subsidiaries for such
year which, other than in the case of the consolidating statements (to the extent required), shall be audited by a firm of independent certified public accountants of nationally recognized standing
reasonably acceptable to the Required Lenders, setting forth in each case in comparative form the figures for the previous year, reported on without a "going concern" or like qualification or
exception, or qualification indicating that the scope of the audit was inadequate to permit such independent certified public accountants to certify such financial statements without such
qualification; 


        (b)    Quarterly
Financial Statements.    As soon as available and in any event within forty-five (45) days after the
end of each of the first three fiscal quarters of the Parent Borrower, a copy of the consolidated and consolidating (upon the reasonable request of the Administrative Agent) balance sheet of the
Parent Borrower and its consolidated Subsidiaries as at the end of such period and related consolidated and consolidating (upon the reasonable request of the Administrative Agent) statements of income
and retained earnings and of cash flows for the Parent Borrower and its consolidated Subsidiaries for such quarterly period and for the portion of the fiscal year ending with such period, in each case
setting forth in comparative form consolidated and consolidating (to the extent required) figures for the corresponding period or periods of the preceding fiscal year and current year budget (subject
to normal recurring year-end audit adjustments); 


        (c)    Monthly
Financial Statements.    As soon as available and in any event within thirty (30) days after the end of each month
of the Parent Borrower, a consolidated and consolidating (upon the reasonable request of the Administrative Agent) balance sheet of the Parent and its consolidated Subsidiaries as at the end of such
period and related consolidated and consolidating (upon the reasonable request of the Administrative Agent) statements of income and retained earnings and of cash flows for the Parent Borrower and its
consolidated Subsidiaries for such monthly period and for the portion of the fiscal year ending with such period, including without limitation an accounts receivable analysis demonstrating billed and
unbilled amounts, an accounts receivable aging report and such other information reasonably requested by the Administrative Agent, in each case setting forth in comparative form consolidated and
consolidating (to the extent required) figures for the corresponding period or periods of the preceding fiscal year and current year budget (subject to normal recurring year-end audit
adjustments), in form and detail reasonably satisfactory to the Administrative Agent; and 


        (d)    Annual
Operating Budget and Cash Flow.    As soon as available, but in any event within thirty (30) days after the end of
each fiscal year, a copy of the detailed annual operating budget or plan including cash flow projections of the Parent Borrower and its Subsidiaries for the next four fiscal quarter period prepared on
a quarterly basis, in form and detail reasonably acceptable to the Administrative Agent and the Lenders, together with a summary of the material assumptions made in the preparation of such annual
budget or plan; 


all
such financial statements to be complete and correct in all material respects (subject, in the case of interim statements, to normal recurring year-end audit adjustments) and to be
prepared in reasonable detail and, in the case of the annual and quarterly financial statements provided in accordance with subsections (a) and (b) above, in accordance with GAAP applied
consistently throughout the periods reflected therein and further accompanied by a description of, and an estimation of the effect on the financial statements on account of, a change, if any, in the
application of accounting principles as provided in Section 1.3. 


53





 



        Section 5.2    Certificates;
Other Information.    


        Furnish
to the Administrative Agent and each of the Lenders: 


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


        (b)  concurrently
with the delivery of the financial statements referred to in Sections 5.1(a) and (b) above, a certificate of a Responsible Officer in the form of
Schedule 4.1-4 stating that, to the best of such Responsible Officer's knowledge, each of the Borrowers during such period observed or performed in all
material respects all of its covenants and other agreements, and satisfied in all material respects every condition contained in this Agreement to be observed, performed or satisfied by it, and that
such Responsible Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate and such certificate shall include the calculations in reasonable detail
required to indicate compliance with Section 5.9 as of the last day of such period and that the financial information provided have been prepared in accordance with GAAP applied consistently
for the periods related thereto; 


        (c)  within
ninety (90) days after the end of each fiscal year of the Parent Borrower, a certificate containing information regarding the amount of all Asset
Dispositions, Debt Issuances, and Equity Issuances that were made during the prior fiscal year and amounts received in connection with any Recovery Event during the prior fiscal year; 



        (d)  promptly
upon receipt thereof, a copy of any other report or "management letter" submitted by independent accountants to the Parent Borrower or any of its Subsidiaries
in connection with any annual, interim or special audit of the books of such Person; 


        (e)  concurrently
with the delivery of the financial statements referred to in Sections 5.1(a) and 5.1(b) above, a management report (i) describing the operations and
financial condition of the Borrowers for the quarter or year, as applicable, then ended and the portion of the current fiscal year then elapsed (or for the fiscal year then ended in the case of
year-end financials), (ii) setting forth in comparative form the corresponding figures for the corresponding periods of the previous fiscal year and the corresponding figures from
the most recently provided annual operating budget, and (iii) discussing the reasons for any significant variations. The information above shall be presented in reasonable detail and shall be
certified by the chief financial officer of the Parent Borrower to the effect that such information fairly presents the results of operations and financial condition of the Borrowers as at the dates
and for the periods indicated, subject to normal year end audit adjustments in the case of interim financial statements; 


        (f)    promptly
after the same are sent or upon their becoming available, copies of (i) all Securities and Exchange Commission reports of the Borrowers, (ii) all
financial statements, reports, notices and proxy statements sent or made available by the Parent Borrower to its public equityholders, (iii) all regular and periodic reports and all
registration statements and prospectuses, if any, filed by any of the Borrowers with any securities exchange or with the Securities and Exchange Commission or any governmental or private regulatory
authority, and (iv) all press releases and other written statements made available by any of the Borrowers to the public concerning material developments in the business of any of the
Borrowers; 


54





 

        (g)  not
less than twenty (20) Business Days prior to the consummation of any Permitted Acquisition: 



        (i)    a
reasonably detailed description of the material terms of such Permitted Acquisition (including, without limitation, the purchase price and method and structure of
payment) and of each Target; 


        (ii)  audited
financial statements of the Target for its two (2) most recent fiscal years prepared by independent certified public accountants reasonably acceptable to
the Administrative Agent and unaudited fiscal year-to-date statements for the two (2) most recent interim periods, in each case to the extent available for such Target;
provided that, notwithstanding the foregoing, if the Target would account for, on a pro forma basis, at least 25% of the Consolidated EBITDA of the Parent Borrower and its
Subsidiaries for the twelve month period most recently ended for which information has been provided pursuant to Section 5.1(a) or 5.1(b), then audited financial statements or a financial
review of the Target, as applicable, for its two (2) most recent fiscal years prepared by independent certified public accountants reasonably acceptable to the Administrative Agent shall be
furnished to the Administrative Agent and each of the Lenders; 


        (iii)  consolidated
projected income statements of the Parent Borrower and its consolidated Subsidiaries (giving effect to such Permitted Acquisition and the consolidation
with the applicable Borrower of each relevant Target) for the three (3)-year period following the consummation of such Permitted Acquisition, in reasonable detail, together with any
appropriate statement of assumptions and pro forma adjustments reasonably acceptable to the Required Lenders; 


        (iv)  a
certificate, in form and substance reasonably satisfactory to the Administrative Agent, executed by a Responsible Officer of the Parent Borrower (A) setting
forth the best good faith estimate of the Total Consideration to be paid for each Target, (B) certifying that (y) such Permitted Acquisition complies with the requirements of this Credit
Agreement and (z) after giving effect to such Permitted Acquisition and any borrowings in connection therewith, the Borrowers believe in good faith that they will have sufficient availability
under the Revolving Commitments to meet its ongoing working capital requirements and (C) demonstrating compliance with clauses (b), (c), (d) and (e) of the definition of the
Permitted Acquisition; and 


        (v)  any
due diligence reports (including, but not limited to, reports prepared by a firm of independent certified public accountant of nationally recognized standing and
customer surveys) prepared by, or on behalf of, any Borrower with respect to the Target; 




        (h)  as
soon as available, but in any event within twenty-five (25) days (unless requested sooner by the Administrative Agent or the Required Lenders)
after the end of each fiscal month, a Borrowing Base Certificate for the fiscal month most recently ended substantially in the form of Schedule 5.2(h) (as amended,
restated, supplemented or otherwise modified from time to time), together with a summary report of billed and unbilled accounts receivable (including a summary of billed accounts receivable by aging
category and unbilled accounts receivable due within 30 days), certified by the Chief Financial Officer of the Parent Borrower to be true and correct as of the end of such prior month thereof;
and 


        (i)    promptly,
such additional financial and other information (including, without limitation, information regarding account concentration and other matters pertaining to
Material Contracts and details of billed and unbilled accounts receivable) as the Administrative Agent, or any Lender through the Administrative Agent, may from time to time reasonably request;
provided, however, that in no event shall any Borrower be required to provide the Administrative Agent or any Lender any classified or other information provided to such Borrower by a Governmental
Authority that the Borrower is prohibited from disclosing pursuant to applicable law or the direction of a Governmental Authority. 


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        Section 5.3    Payment
of Taxes and Other Obligations.    


        Pay,
discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its taxes (Federal, state, local and any other taxes) and any
additional costs that are imposed as a result of any failure to so pay, discharge or otherwise satisfy such taxes, except when the amount or validity of any such taxes, or additional costs is
currently being contested in good faith by appropriate proceedings and reserves, if applicable, in conformity with GAAP with respect thereto have been provided on the books of the Borrowers. 



        Section 5.4    Conduct
of Business and Maintenance of Existence.    


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


        Section 5.5    Maintenance
of Property; Insurance.    


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


        (b)  Maintain
with financially sound and reputable insurance companies (i) insurance on all its property (including without limitation its tangible Collateral) and
(ii) business interruption insurance, in each case insuring against at least such risks as are usually insured against in the same general area by companies engaged in the same or a similar
business; and furnish to the Administrative Agent, upon written request, full information as to the insurance carried. The Administrative Agent shall be named as additional loss payee or mortgagee, as
its interest may appear, or an additional insured, as applicable, with respect to such insurance policies, and each provider of such insurance policies shall agree, by endorsement upon the policy or
policies issued by it or by independent instruments furnished to the Administrative Agent, that it will give the Administrative Agent thirty (30) days prior written notice before any such
policy or policies shall be altered or canceled. The present insurance coverage of the Borrowers as of the Closing Date is outlined as to carrier, policy number, expiration date, type and amount on
Schedule 5.5(b). 


        (c)  In
case of any material loss, damage to or destruction of the Collateral of any Borrower or any part thereof, such Borrower shall promptly give written notice thereof to
the Administrative Agent generally describing the nature and extent of such damage or destruction. In case of any loss, damage to or destruction of the Collateral of any Borrower or any part thereof,
such Borrower, whether or not the insurance proceeds, if any, received on account of such damage or destruction shall be sufficient for that purpose, at such Borrower's cost and expense,
(i) will promptly repair or replace the Collateral of such Borrower so lost, damaged or destroyed or (ii) shall apply such proceeds as set forth in
Section 2.7(b)(iv). 


        Section 5.6    Inspection
of Property; Books and Records; Discussions.    


        Keep
proper books of records and accounts in which full, true and correct entries shall be made of all dealings and transactions in relation to its businesses and activities, such
entries to be in conformity with GAAP and all Requirements of Law; and permit, during regular business hours and upon reasonable notice by the Administrative Agent or any Lender, the Administrative
Agent or any Lender (or any agent or designee of the Administrative Agent or any Lender) to visit and inspect (subject to any confidentiality and secrecy requirements imposed by any Governmental
Authority) any of its 


56





 




properties, examine and make abstracts from any of its books and records and/or conduct an audit of its accounts receivable, at any reasonable time upon reasonable advance notice to the extent no
Default or Event of Default shall have occurred and be continuing, and as often as may reasonably be desired, to discuss the business, operations, accounts receivable, properties and financial and
other condition of the Borrowers and their Subsidiaries with officers and employees of the Borrowers and with its independent certified public accountants; provided that
Borrowers shall only be responsible for the cost of one inspection or visit per year from any Lender (other than the Administrative Agent). 


        Section 5.7    Notices.    



        Give
prompt notice (but in any event (x) within two (2) Business Days after any Borrower knows or has reason to know of the events described in subsection (a) below
and (y) within five (5) Business Days after any Borrower knows or has reason to know of any event described in subsections (b)-(h) below) thereof in writing to the Administrative Agent
of: 


        (a)  the
occurrence of any Default or Event of Default; 


        (b)  the
occurrence of any default or event of default under any Contractual Obligation of any Borrower or any of its Subsidiaries which could reasonably be expected to have
a Material Adverse Effect or involve a monetary claim in excess of $1,000,000; 


        (c)  any
litigation or any investigation or proceeding (i) affecting any Borrower or any of its Subsidiaries which, if adversely determined, could reasonably be
expected to have a Material Adverse Effect or involve a monetary claim in excess of $1,000,000, (ii) affecting or with respect to this Agreement or any other Credit Document or
(iii) involving an environmental claim or potential liability under Environmental Laws in excess of $1,000,000; 


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


        (e)  any
notice of any material violation of any Requirement of Law received by any Borrower or any of its Subsidiaries from any Governmental Authority including, without
limitation, any notice of violation of Environmental Laws; 


        (f)    any
labor controversy that has resulted in, or threatens to result in, a strike or other work action against any Borrower or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect; 


        (g)  any
attachment, judgment, lien, levy or order exceeding $1,000,000 that may be assessed against or threatened against any Borrower other than Permitted Liens; and 


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


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


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        Section 5.8    Environmental
Laws.    


        (a)  Comply
in all material respects with, and take reasonable steps to ensure compliance in all material respects by all tenants and subtenants, if any, with, all applicable
Environmental Laws and obtain and comply in all material respects with and maintain, and take reasonable steps to ensure that all tenants and subtenants obtain and comply in all material respects with
and maintain, any and all licenses, approvals, notifications, registrations or permits required by applicable Environmental Laws except to the extent that failure to comply therewith could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; 


        (b)  Conduct
and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under Environmental Laws and promptly comply
in all material respects with all lawful orders and directives of all Governmental Authorities regarding Environmental Laws except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not reasonably be expected to have a Material Adverse Effect; and 


        (c)  Defend,
indemnify and hold harmless the Administrative Agent and the Lenders, and their respective employees, agents, officers and directors, from and against any and
all claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature known or unknown, contingent or otherwise, arising out of, or in any way
relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to the operations of the Borrowers or any of their Subsidiaries or the Properties, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without limitation, reasonable attorney's and consultant's fees, investigation and laboratory fees, response costs, court costs and litigation
expenses, except to the extent that any of the foregoing arise out of the gross negligence or willful misconduct of the party seeking indemnification therefor as determined by a court of competent
jurisdiction in a final and non-appealable judgment. The agreements in this paragraph shall survive repayment of the Borrowers' Obligations. 


        Section 5.9    Financial
Covenants.    


        Commencing
on the day immediately following the Closing Date, the Borrowers shall comply with the following financial covenants: 


        (a)    Leverage
Ratio.    As of the last day of each fiscal quarter of the Parent Borrower and its Subsidiaries, the Leverage Ratio shall
be less than or equal to 3.00 to 1.0. 


        (b)    Interest
Coverage Ratio.    The Interest Coverage Ratio as of the last day of each fiscal quarter of the Parent Borrower and its
Subsidiaries occurring during the periods set forth below shall be greater than or equal to the ratios corresponding to such periods: 



	Period
	 	Minimum Ratio

	Closing Date through June 30, 2003	 	2.50 to 1.0
	July 1, 2003 and thereafter	 	3.00 to 1.0





        (c)    Fixed
Charge Coverage Ratio.    The Fixed Charge Coverage Ratio as of the last day of each fiscal quarter of the Parent Borrower
and its Subsidiaries shall be greater than or equal to 1.25 to 1.0. 


        (d)    Consolidated
Capital Expenditures.    Consolidated Capital Expenditures made in cash by the Borrowers during any fiscal year shall
not exceed 2.0% of Consolidated Gross Revenues. 


        For
purposes of computing the financial covenants set forth in Section 5.9 (other than the financial covenant set forth in Section 5.9(d)), for any applicable test period,
any Permitted Acquisition or permitted sale of assets (including a stock sale) shall have been deemed to have taken place as of the 


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first day of such applicable test period (giving effect on such day to the incurrence or satisfaction of any Funded Debt in connection with such Permitted Acquisition). 


        Section 5.10    Additional
Subsidiary Borrowers.    


        The
Borrowers will cause each of their Domestic Subsidiaries, whether newly formed, after acquired or otherwise existing, to promptly become a Borrower hereunder by way of execution of a
Joinder Agreement. In connection therewith, the Borrowers shall give notice to the Administrative Agent not less than fifteen (15) days prior to creating a Subsidiary, or acquiring the Capital
Stock of any other Person. The obligations of any such Additional Borrower shall be secured by, among other things, the Collateral of the Additional Borrower and a pledge of 100% of the Capital Stock
of its Domestic Subsidiaries and 65% (or such higher percentage that would not result in material adverse tax consequences for such Additional Borrower) of the voting Capital Stock and 100% of the
non-voting Capital Stock of its first-tier Foreign Subsidiaries. In connection with the foregoing, the Borrowers shall deliver to the Administrative Agent such charter and
organizational documents and opinions of counsel as the Administrative Agent may reasonably request. 


        Section 5.11    Compliance
with Law.    


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



        Section 5.12    Pledged
Assets.    


        (a)  Each
Borrower will, and will cause each of its Subsidiaries to, cause 100% of the Capital Stock of each of its direct or indirect Domestic Subsidiaries and 65% of the
voting Capital Stock and 100% of the non-voting Capital Stock of each of its first-tier Foreign Subsidiaries to be subject at all times to a first priority, perfected Lien in
favor of the Administrative Agent pursuant to the terms and conditions of the Security Documents or such other security documents as the Administrative Agent shall reasonably request. 



        (b)  If,
subsequent to the Closing Date, a Borrower shall acquire any securities, instruments (except checks), chattel paper or other personal property required for
perfection to be delivered to the Administrative Agent as Collateral hereunder or under any of the Security Documents, the Borrower shall promptly (and in any event within three (3) Business
Days) after such acquisition notify the Administrative Agent of same. Each Borrower shall, and shall cause each of its Subsidiaries to, take such action at its own expense as may be necessary or
otherwise requested by the Administrative Agent (including, without limitation, any of the actions described in Sections 4.1(e) and (f) hereof) to ensure that the Administrative Agent has a
first priority perfected Lien to secure the Borrowers' Obligations in (i) all personal property Collateral of the Borrowers located in the United States, (ii) to the extent deemed to be
material by the Administrative Agent or the Required Lenders in its or their sole reasonable discretion, all other personal property Collateral of the Borrowers and (iii) to the extent required
by the Administrative Agent or the Required Lenders in its or their sole reasonable discretion, all real property owned by the Borrowers, subject in each case only to Permitted Liens. 


        (c)  If,
subsequent to the Closing Date, a Borrower acquires a fee interest in any real property, such Borrower shall deliver to the Administrative Agent within
90 days following the date of such acquisition, such Mortgage Instruments and other documentation as necessary to perfect the Administrative Agents security interest therein in accordance with
the provisions of Section 4.1(f). 


        (d)  If,
subsequent to the Closing Date, a Borrower leases a warehouse, plant or other real property material to such Borrower's business, such Borrower shall deliver to the
Administrative Agent within 90 days following the date of such lease such estoppel letters, consents and waivers from the landlord on such real property as may be required by the Administrative
Agent or to the extent deemed necessary by the Administrative Agent, leasehold mortgages in accordance with the provisions of Section 4.1(f). 



        Section 5.13    Covenants
Regarding Intellectual Property.    


        (a)  Each
Borrower shall notify the Administrative Agent promptly if it knows that any application, letters patent or registration relating to any Patent, Patent License,
Trademark or Trademark License of such Borrower or any of its Subsidiaries may become abandoned, or of any adverse determination or development (including, without limitation, the institution of, or
any such determination or development in, any proceeding in the United States Patent and Trademark Office or any court) regarding such Borrower's or any of its Subsidiary's ownership of any Patent or
Trademark, its right to patent or register the same, or to enforce, keep and maintain the same, or its rights under any Patent License or Trademark License. 


59







  





        (b)  Each Borrower shall notify the Administrative Agent promptly after it knows of any adverse determination or development (including, without limitation, the institution
of, or any such determination or development in, any proceeding in any court) regarding any Copyright or Copyright License of such Borrower or any of its Subsidiaries, whether (i) such
Copyright or Copyright License may become invalid or unenforceable prior to its expiration or termination, or (ii) such Borrower's or any of its Subsidiary's ownership of such Copyright, its
right to register the same or to enforce, keep and maintain the same, or its rights under such Copyright License, may become affected. 



(c)  (i)  Each
Borrower shall promptly notify the Administrative Agent of any filing by such Borrower or any of its Domestic Subsidiaries, either itself or through any agent,
employee, licensee or designee (but in no event later than the fifteenth day following such filing), of any application for registration of any Intellectual Property with the United States Copyright
Office or United States Patent and Trademark Office or any similar office or agency in any other country or any political subdivision thereof. 


        (ii)  Concurrently
with the delivery of the quarterly and annual financial statements of the Borrower pursuant to Section 5.1(a) and (b) hereof, the Borrower
shall provide to the Administrative Agent and its counsel a complete and correct list of all new Intellectual Property owned by or licensed to the Borrower or any of its Domestic Subsidiaries with
respect to which the Administrative Agent has not filed a notice of grant of security interest with the United States Patent and Trademark Office or the United States Copyright Office or any similar
office or agency in any other country or any political subdivision thereof, as applicable. 



        (iii)  Upon
request of the Administrative Agent, each Borrower shall execute and deliver any and all agreements, instruments, documents, and papers as the Administrative
Agent may reasonably request to evidence the Administrative Agent's security interest in the Intellectual Property and the general intangibles (including goodwill) related thereto or represented
thereby. 




        (d)  The
Borrowers and their Subsidiaries will take all necessary actions, including, without limitation, in any proceeding before the United States Patent and Trademark
Office or the United States Copyright Office, to maintain each item of Intellectual Property of the Borrowers and their Subsidiaries, including, without limitation, payment of maintenance fees, filing
of applications for renewal, affidavits of use, affidavits of incontestability and opposition, interference and cancellation proceedings. 


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



        Section 5.14    Deposit
and Securities Accounts.    


        Schedule 5.14
sets forth each of the deposit and securities accounts of the Borrowers as of the Closing Date. Prior to the date which is ninety
(90) days after the Closing Date, the Borrowers shall have established (and shall thereafter maintain) each of their deposit and securities accounts with (a) a Lender or (b) a
financial institution that shall have entered into an account control agreement in form and substance satisfactory to the Administrative Agent. Upon the request of the Administrative Agent or upon the
occurrence of an Event of Default, the Borrowers shall promptly execute such account control agreements and/or other documentation as deemed necessary by the Administrative Agent to 


60





 




perfect the Administrative Agent's security interest in all of the Borrowers' deposit and securities accounts. 


        Section 5.15    Post-Closing
Items; Further Assurances.    



        (a)    Landlord Waivers.    Within 90 days after the Closing Date, the Borrowers
will use their commercially reasonable best efforts to deliver to the Administrative Agent landlord waivers for the leasehold locations in Colorado Springs (Bijou), Colorado, McLean, Virginia and
Rockville, Maryland, in form and substance reasonably satisfactory to the Administrative Agent. 


        (b)    Federal Assignment of Claims Act.    Within 60 days after the Closing Date
(or such extended period of time as agreed to by the Administrative Agent), the Borrowers will execute all documents necessary to comply with the Federal Assignment of Claims Act and comparable state
law with respect to the accounts arising from the Material Government Contracts and such other Government Contracts as reasonably required by the Administrative Agent, such documents to be held in
escrow by the Administrative Agent in accordance with the terms of Section 5(f) of the Security Agreement. 


        (c)    Further Assurances.    Upon the request of the Administrative Agent promptly
perform or cause to be performed any and all acts (including, without limitation, subject to the terms of the Security Agreement, all acts required to comply with the Federal Assignment of Claims Act
and comparable state law) and execute or cause to be executed any and all documents (including, without limitation,
subject to the terms of the Security Agreement, all documents necessary to comply with the Federal Assignment of Claims Act and comparable state law) which are necessary or advisable to create or
maintain in favor of the Administrative Agent, for the benefit of the Lenders, Liens on the Collateral that are duly perfected in accordance with all applicable Requirements of Law. 



 
 

ARTICLE VI    
    
    NEGATIVE COVENANTS    
  


        The Borrowers hereby covenant and agree that on the Closing Date, and thereafter for so long as this Agreement is in effect and until the Commitments have
terminated, no Note remains outstanding and unpaid and the Borrowers' Obligations together with interest, Commitment Fee and all other amounts owing to the Administrative Agent or any Lender
hereunder, are paid in full that: 


        Section 6.1    Indebtedness.    



        Each
of the Borrowers will not, nor will it permit any Subsidiary to, contract, create, incur, assume or permit to exist any Indebtedness, except: 


        (a)  Indebtedness
arising or existing under this Agreement and the other Credit Documents; 


        (b)  Indebtedness
existing as of the Closing Date set forth in Schedule 6.1(b)) hereto and renewals, refinancings or extensions thereof in
a principal amount not in excess of that outstanding as of the date of such renewal, refinancing or extension; 


        (c)  Indebtedness
incurred after the Closing Date consisting of Capital Leases or Indebtedness incurred to provide all or a portion of the purchase price or cost of
construction of an asset provided that (i) such Indebtedness when incurred shall not exceed the purchase price or cost of construction of such asset; (ii) no such Indebtedness shall be
refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing; and (iii) the total amount of all such Indebtedness shall not exceed
$500,000 at any time outstanding; 


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        (d)  Unsecured
intercompany Indebtedness among the Borrowers; provided that any such Indebtedness shall be fully subordinated to the Borrowers'
Obligations hereunder on terms reasonably satisfactory to the Administrative Agent; 


        (e)  Indebtedness
and obligations owing under Hedging Agreements relating to the Loans hereunder and other Hedging Agreements entered into in order to manage existing or
anticipated interest rate or exchange rate risks and not for speculative purposes; 


        (f)    Indebtedness
and obligations of Borrowers owing under documentary letters of credit for the purchase of goods or other merchandise (but not under standby, direct pay or
other letters of credit except for the Letters of Credit permitted hereunder) generally; and 


        (g)  Indebtedness
consisting of seller notes or earnout obligations incurred in connection with Permitted Acquisitions that constitutes all or a portion of the Total
Consideration for such Permitted Acquisitions; provided that the aggregate amount of such Indebtedness shall be subtracted from the Borrowing Base to the extent such
Indebtedness is not subordinated to the Borrowers' Obligations on terms reasonably satisfactory to the Administrative Agent; 



        (h)  Indebtedness
assumed in connection with Permitted Acquisitions (including Indebtedness of a Person existing at the time such Person becomes a Subsidiary) that
constitutes all or a portion of the Total Consideration for such Permitted Acquisitions in an aggregate amount not to exceed $5,000,000 during the term of this Agreement, so long as such Indebtedness
was not incurred in contemplation of any such Permitted Acquisition; 


        (i)    Guaranty
Obligations of any Borrower with respect to obligations of a Borrower to suppliers, licensors or lessors to the extent such obligations are incurred in the
ordinary course of business and otherwise permitted hereunder; and 


        (j)    other
Indebtedness of the Borrowers and their Subsidiaries which does not exceed $500,000 in the aggregate at any time outstanding. 


        Section 6.2    Liens.    



        Each
of the Borrowers will not, nor will it permit any Subsidiary to, contract, create, incur, assume or permit to exist any Lien with respect to any of its property or assets of any
kind (whether real or personal, tangible or intangible), whether now owned or hereafter acquired, except for Permitted Liens. Notwithstanding the foregoing, if a Borrower shall grant a Lien on any of
its assets in violation of this Section 6.2, then it shall be deemed to have simultaneously granted an equal and ratable Lien on any
such assets in favor of the Administrative Agent for the benefit of the Lenders, to the extent such a Lien has not already been granted to the Administrative Agent. 


        Section 6.3    Nature
of Business.    


        Each
of the Borrowers will not, nor will it permit any Subsidiary to, alter the character of its business in any material respect from that conducted as of the Closing Date. 


        Section 6.4    Consolidation,
Merger, Sale or Purchase of Assets, etc.    


        Each
of the Borrowers will not, nor will it permit any Subsidiary to: 



        (a)  dissolve,
liquidate or wind up its affairs, sell, transfer, lease to a third party or otherwise dispose of its property or assets or agree to do so at a future time
except the following, without duplication, shall be expressly permitted: 



        (i)    Specified
Sales; 


        (ii)  the
disposition of property or assets as a result of a Recovery Event; 




62





 





        (iii)  the
sale, lease, transfer or other disposition of property and assets no longer used or useful in the conduct of the business of the Borrower or any of its
Subsidiaries (including the disposition of superfluous, obsolete or uneconomic property and/or assets acquired in connection with any Permitted Acquisition, subject to the provisions of
Section 2.7(b)(ii)); 


        (iv)  the
sale, lease or transfer of property or assets between Borrowers, so long as the Liens of the Administrative Agent with respect to such property or assets remain in
full force and effect and fully perfected after giving effect to such transaction; 


        (v)  the
sale, lease or transfer of property or assets not to exceed $500,000 in the aggregate in any fiscal year and $1,000,000 in the aggregate during the term of this
Agreement; and 


        (vi)  the
sale, grant or transfer of licenses and sublicenses in the ordinary course of business; 




provided,
that in each case (other than with respect to clause (iv) above) (A) at least 50% of the consideration received therefor by any Borrower or any
such Subsidiary shall be in the form of cash or Cash Equivalents, (B) after giving effect to the sale, lease, transfer or other disposition of such property or assets and the repayment of
Indebtedness (if any) with the proceeds thereof, the Borrowers shall be in compliance on a pro forma basis with the financial covenants set forth in Section 5.9 hereof and shall be in
compliance with all other terms and conditions of this Agreement, and (C) no Event of Default shall exist or shall result from such sale, lease, transfer or other disposition of property or
assets; provided, further, that with respect to any sale or transfer of property or assets permitted hereunder to an unrelated third party,
the Administrative Agent shall be entitled, without the consent of the Lenders or the Required Lenders, to release its Liens relating to the particular property or assets sold; or 


        (b)  (i)  purchase,
lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person (other than
purchases or other acquisitions of inventory, materials, property, equipment and intellectual property in the ordinary course of business, except as otherwise limited or prohibited herein) or
(ii) enter into any transaction of merger or consolidation, except for (A) investments or acquisitions (including Permitted Acquisitions) permitted pursuant to Section 6.5, and
(B) the merger or consolidation of a Borrower with and into another Borrower; provided that if the Parent Borrower is a party thereto, the Parent Borrower will be
the surviving corporation. 




        Section 6.5    Advances,
Investments and Loans.    


        Each
of the Borrowers will not, nor will it permit any Subsidiary to, lend money or extend credit or make advances to any Person, or purchase or acquire any Capital Stock, obligations or
securities of, or any other interest in, or make any capital contribution to, any Person except for Permitted Investments. 


        Section 6.6    Transactions
with Affiliates.    


        Except
as permitted in subsection (iv) of the definition of Permitted Investments, each of the Borrowers will not, nor will it permit any Subsidiary to, enter into any transaction
or series of transactions, whether or not in the ordinary course of business, with any officer, director, shareholder or Affiliate other than on terms and conditions substantially as favorable as
would be obtainable in a comparable arm's-length transaction with a Person other than an officer, director, shareholder or Affiliate. 


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        Section 6.7    Ownership
of Subsidiaries; Restrictions.    


        Each
of the Borrowers will not, nor will it permit any Subsidiary to, create, form or acquire any Subsidiaries (excluding for purposes hereof a Subsidiary which is created for the
purposes of acquiring a Person in connection with a Permitted Acquisition to the extent such Subsidiary is merged with or into such Person upon the consummation of such Permitted Acquisition and the
surviving Person becomes a Borrower hereunder pursuant to Section 5.10 hereof), except for wholly-owned Domestic Subsidiaries which are joined as Additional Borrowers in accordance with the
terms hereof. Each of the Borrowers (other than the Parent Borrower to the extent not otherwise prohibited hereunder) will not, nor will it permit any Subsidiary to, sell, transfer, pledge or
otherwise dispose of any Capital Stock or other equity interests in any of its Subsidiaries, nor will it, or permit any Subsidiary to, issue, sell, transfer, pledge or otherwise dispose of any of its
Capital Stock or other equity interests, except as required by the Credit Documents or pursuant to a transaction permitted by Section 6.4(a)(iv). 



        Section 6.8    Fiscal
Year; Organizational Documents; Material Contracts.    


        Each
of the Borrowers will not, nor will it permit any of its Subsidiaries to, change its fiscal year. Each of the Borrowers will not, nor will they permit any of its Subsidiaries to,
amend, modify or change their articles of incorporation (or corporate charter or other similar organizational document), operating agreement or bylaws (or other similar document) in any material
respect without the prior written consent of the Required Lenders. Each of the Borrowers will not, nor will it permit any of its Subsidiaries to, without the prior written consent of the
Administrative Agent, amend, modify, cancel or terminate or fail to renew or extend or permit the amendment, modification, cancellation or termination of any of the Material Contracts (other than in
the ordinary course of business), except in the event that such amendments, modifications, cancellations or terminations could not, either individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. 


        Section 6.9    Limitation
on Restricted Actions.    


        Each
of the Borrowers will not, nor will it permit any Subsidiary to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Person to (a) pay dividends or make any other distributions to any Borrower on its Capital Stock or with respect to any other interest or participation
in, or measured by, its profits, (b) pay any Indebtedness or other obligation owed to any Borrower, (c) make loans or advances to any Borrower, (d) sell, lease or transfer any of
its properties or assets to any Borrower, or (e) act as a Borrower and pledge its assets pursuant to the Credit Documents or any renewals, refinancings, exchanges, refundings or extension
thereof, except (in respect of any of the matters referred to in clauses (a)-(e) above) for such encumbrances or restrictions existing under or by reason of (i) this Agreement and the other
Credit Documents, (ii) applicable law, (iii) any document or instrument governing Indebtedness incurred pursuant to Section 6.1(c), provided that any such restriction contained
therein relates only to the asset
or assets constructed or acquired in connection therewith or (iv) any Permitted Lien or any document or instrument governing any Permitted Lien, provided that any
such restriction contained therein relates only to the asset or assets subject to such Permitted Lien. 


        Section 6.10    Restricted
Payments.    


        Each
of the Borrowers will not, nor will it permit any Subsidiary to, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, except
(a) to make dividends payable solely in the form of common stock or equivalent equity interests of such Person, (b) to make dividends or other distributions payable to any Borrower
(directly or indirectly through Subsidiaries), (c) to make payments to redeem warrants issued to Banc of America Commercial Finance Corporation with proceeds from the IPO on the Closing Date in
an aggregate amount not to exceed the amount set forth on Schedule 1.1-3 with respect to the pay-off of such warrants, and (d) to
make payments with respect to, and repay in full, the obligations of the Borrowers under the STA Note. 


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        Section 6.11    Sale
Leasebacks.    


        Each
of the Borrowers will not, nor will it permit any Subsidiary to, directly or indirectly, become or remain liable as lessee or as guarantor or other surety with respect to any lease,
whether an operating lease or a Capital Lease, of any property (whether real, personal or mixed), whether now owned or hereafter acquired, (a) which any Borrower or any of its Subsidiaries has
sold or transferred or is to sell or transfer to a Person which is not a Borrower or a Subsidiary thereof or (b) which any Borrower or any of its Subsidiaries intends to use for substantially
the same purpose as any other property which has been sold or is to be sold or transferred by any Borrower or any of its Subsidiaries to another Person which is not a Borrower or Subsidiary thereof in
connection with such lease. 


        Section 6.12    No
Further Negative Pledges.    


        Each
of the Borrowers will not, nor will it permit any Subsidiary to, enter into, assume or become subject to any agreement prohibiting or otherwise restricting the creation or
assumption of any Lien upon its properties or assets, whether now owned or hereafter acquired, or requiring the grant of any security to secure obligations under such agreement if security is given
for some other obligation, except (a) pursuant to this Agreement and the other Credit Documents, (b) pursuant to any document or instrument governing Indebtedness incurred pursuant to
Section 6.1(c), provided that any such restriction contained therein relates only to the asset or assets constructed or acquired in connection therewith,
(c) in connection with any Permitted Lien or any document or instrument governing any Permitted Lien, provided that any such restriction contained therein relates
only to the asset or assets
subject to such Permitted Lien, and (d) restrictions on the creation of Liens on Government Contracts under applicable laws. 


        Section 6.13    Amendment
of Subordinated Indebtedness.    


        Each
of the Borrowers will not, nor will it permit any Subsidiary to, after the issuance thereof, amend or modify (or permit the amendment or modification of) any of the terms of any
Subordinated Debt of such Borrower or Subsidiary if such amendment or modification would add or change any terms in a manner adverse to the Lenders, or shorten the final maturity or average life to
maturity or require any payment to be made sooner than originally scheduled or increase the interest rate applicable thereto or change any subordination provision thereof. 


        Section 6.14    Management
Fees.    


        Each
of the Borrowers will not, nor will it permit any Subsidiary to, directly or indirectly, pay any management, consulting or similar fees to any Affiliate or to any manager, director,
officer or employee of the Borrowers or any of their Subsidiaries without the prior written consent of the Required Lenders. 


 
 

ARTICLE VII    
    
    EVENTS OF DEFAULT    
  


        Section 7.1    Events
of Default.    


        An
Event of Default shall exist upon the occurrence of any of the following specified events (each an "Event of Default"): 



        (a)  The
Borrowers shall fail to pay any principal on any Loan when due (whether at maturity, by reason of acceleration or otherwise) in accordance with the terms hereof; or
the Borrowers shall fail to reimburse the Issuing Lender for any LOC Obligations when due (whether at maturity, by reason of acceleration or otherwise) in accordance with the terms hereof; or the
Borrowers shall fail to pay any
interest on any Loan or other Borrower Obligation or any fee or other amount payable hereunder when due (whether at maturity, by reason of acceleration or 



65





 


otherwise) in accordance with the terms hereof and such failure to pay shall continue unremedied for five (5) Business Days; or 


        (b)  Any
representation or warranty made or deemed made herein, in the Security Documents or in any of the other Credit Documents or which is contained in any certificate,
document or financial or other statement furnished at any time under or in connection with this Agreement shall prove to have been incorrect, false or misleading in any material respect on or as of
the date made or deemed made; or 


        (c)  (i) Any
Borrower shall fail to perform, comply with or observe any term, covenant or agreement applicable to it contained in Sections 5.1, 5.2, 5.4, 5.7 or 5.9 or
Article VI hereof; or (ii) any Borrower shall fail to comply with any other covenant, contained in this Agreement or the other Credit Documents or any other agreement, document or
instrument among any Borrower, the Administrative Agent and the Lenders or executed by any Borrower in favor of the Administrative Agent or the Lenders (other than as described in Sections 7.1(a) or
7.1(c)(i) above), and in the event such breach or failure to comply is capable of cure, is not cured within the time prescribed therein, or to the extent not prescribed therein, within thirty
(30) days of its occurrence; or 


        (d)  Any
Borrower or any of its Subsidiaries shall (i) default in any payment of principal of or interest on any Indebtedness (other than the Indebtedness hereunder)
in a principal amount outstanding of at least $1,000,000 in the aggregate for the Borrowers and their Subsidiaries beyond the period of grace, if any, provided in the instrument or agreement under
which such Indebtedness was created; or (ii) default in the observance or performance of any other agreement or condition relating to any Indebtedness (other than the Indebtedness hereunder) in
a principal amount outstanding of at least $500,000 in the aggregate for the Borrowers and their Subsidiaries or contained in any instrument or agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (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
become due prior to its stated maturity; or 


        (e)  (i) Any
Borrower or any of its Subsidiaries shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to have it judged bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Borrower or any of its Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Borrower or any of its Subsidiaries any case, proceeding or other action of a nature referred
to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there
shall be commenced against any Borrower or any of its Subsidiaries any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all
or any substantial part of their assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within
60 days from the entry thereof; or (iv) any Borrower or any of its Subsidiaries shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any Borrower or any of its Subsidiaries shall generally not, or shall be unable to, or shall admit in writing
its inability to, pay its debts as they become due; or 



66





 




        (f)    One
or more judgments, orders, decrees or arbitration awards shall be entered against any Borrower or any of its Subsidiaries involving in the aggregate a liability (to
the extent not covered by third-party insurance) of $500,000 or more and all such judgments, orders, decrees or arbitration awards shall not have been paid and satisfied, vacated, discharged, stayed
or bonded pending appeal within 30 Business Days from the entry thereof or any injunction, temporary restraining order or similar decree shall be issued against any Borrower or any of its Subsidiaries
that could reasonably be expected to result in a Material Adverse Effect; or 


        (g)  (i) Any
Person shall engage in any "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan
(other than a Permitted Lien) shall arise on the assets of any Borrower, any of its Subsidiaries or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings
or appointment of a Trustee is, in the reasonable opinion of the Required Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer
Plan shall terminate for purposes of Title IV of ERISA, (v) any Borrower, any of its Subsidiaries or any Commonly Controlled Entity shall, or in the reasonable opinion of the Required Lenders
is likely to, incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization of, any Multiemployer Plan or (vi) any other similar event or condition shall occur
or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, could have a
Material Adverse Effect in the reasonable determination of the Lenders; or 


        (h)  There
shall occur a Change of Control; or 


        (i)    Any
other Credit Document shall fail to be in full force and effect or to give the Administrative Agent and/or the Lenders the security interests, liens, rights, powers
and privileges purported to be created thereby (except as such documents may be terminated or no longer in force and effect in accordance with the terms thereof, other than those indemnities and
provisions which by their terms shall survive) or any Lien shall fail to be perfected on a material portion of the Collateral; or 



        (j)    Any
uninsured damage to or loss, theft or destruction of any assets of any Borrower or any of its Subsidiaries shall occur that is in excess of $1,000,000; or 


        (k)  (i) A
default under any Material Government Contract or other Material Contract shall exist beyond (x) the expiration of any cure period available to any
Borrower or Subsidiary party thereto pursuant to the terms of such Material Government Contract or other Material Contract or (y) the date on which the other contracting party is entitled to
exercise its rights and remedies under such Material Government Contract or other Material Contract as a consequence of such default, and the effect of any such default would reasonably be expected to
have a Material Adverse Effect; or 


        (l)    (i) Any
Borrower or any Subsidiary thereof is debarred or suspended from contracting with any Governmental Authority; (ii) a notice of debarment or
suspension has been issued to or received by any Borrower or any Subsidiary thereof; or (iii) an investigation or inquiry by any Governmental Authority relating to any Borrower or any
Subsidiary thereof and involving fraud, deception or willful misconduct shall have been commenced in connection with any Government Contract or other Material Contract or any Borrower's or any
Subsidiary's activities which would reasonably be expected to have a Material Adverse Effect; or (iv) the actual termination of a 



67





 





Government Contract or other Material Contract due to alleged fraud, deception or willful misconduct which would reasonably be expected to have a Material Adverse Effect; or 


        (m)  Any
loss by a Borrower or any of its Subsidiaries of a Material Customer. 




        Section 7.2    Acceleration;
Remedies.    


        Upon
the occurrence and during the continuation of an Event of Default, then, (a) if such event is an Event of Default specified in Section 7.1(e) above, automatically the
Commitments shall immediately terminate and the Loans (with accrued interest thereon), and all other Borrowers' Obligations under the Credit Documents (including without limitation the maximum amount
of all contingent liabilities under Letters of Credit) shall immediately become due and payable, and the Borrower shall immediately pay to the Administrative Agent cash collateral as security for the
LOC Obligations for subsequent drawings under then outstanding Letters of Credit in an amount equal to the maximum amount which may be drawn under Letters of Credit then outstanding and (b) if
such event is any other Event of Default, any of the following actions may be taken: with the written consent of the Required Lenders, the Administrative Agent may, or upon the written request of the
Required Lenders, the Administrative Agent shall, (i) by notice to the Parent Borrower declare all or any portion of the Commitments to be terminated forthwith, whereupon such Commitments shall
immediately terminate, (ii) by notice of default to the Parent Borrower, declare the Loans (with accrued interest thereon) and all other Borrowers' Obligations under the Credit Documents
(including without limitation the maximum amount of all contingent liabilities under Letters of Credit) to be due and payable forthwith
and direct the Borrowers to pay to the Administrative Agent cash collateral as security for the LOC Obligations for subsequent drawings under then outstanding Letters of Credit an amount equal to the
maximum amount of which may be drawn under Letters of Credit then outstanding, whereupon the same shall immediately become due and payable, (iii) hire, at the expense of the Borrowers, one or
more consultants and the Borrowers agree to cooperate with such consultants, (iv) exercise any rights or remedies of the Administrative Agent or the Lenders under this Agreement or any other
Credit Document, including, without limitation, any rights or remedies with respect to the Collateral, and (v) exercise any rights or remedies available to the Administrative Agent or Lenders
under applicable law. 


 
 

ARTICLE VIII    
    
    THE AGENT    
  


        Section 8.1    Appointment.    


        Each
Lender hereby irrevocably designates and appoints Wachovia as the Administrative Agent of such Lender under this Agreement, and each such Lender irrevocably authorizes Wachovia, as
the Administrative Agent for such Lender, to take such action on its behalf under the provisions of this Agreement and to exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement,
the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise exist against the Administrative Agent. 


        Section 8.2    Delegation
of Duties.    


        The
Administrative Agent may execute any of its duties under this Agreement by or through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected
by it with reasonable care. Without limiting the foregoing, the Administrative Agent may appoint one of its affiliates as its agent to perform the functions of the Administrative Agent hereunder
relating to the advancing of funds to the Borrowers and distribution of funds to the Lenders and to perform such other related functions of the Administrative Agent hereunder as are reasonably
incidental to such functions. 


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        Section 8.3    Exculpatory Provisions.    


        Neither
the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement (except for its or such Person's own gross negligence or willful misconduct) or
(ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by the Borrowers or any officer thereof contained in this Agreement 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 for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any of the Credit Documents or for any failure of the Borrowers to perform their obligations hereunder or thereunder. The Administrative
Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance by the Borrowers of any of the agreements contained in, or conditions of, this
Agreement, or to inspect the properties, books or records of the Borrowers. 


        Section 8.4    Reliance
by Administrative Agent.    


        The
Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any Note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or other document or conversation believed by it in good faith 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, without limitation, counsel to the Borrowers), independent accountants and other experts selected by
the Administrative Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless (a) a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent and (b) the Administrative Agent shall have received the written agreement of such assignee to be bound hereby as fully and
to the same extent as if such assignee were an original Lender party hereto, in each case in form satisfactory to the Administrative Agent. The Administrative Agent shall be fully justified in failing
or refusing to take any action under this Agreement unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate or 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 any of the Credit Documents in accordance with a request of the Required Lenders or all of the Lenders, as may be required under this
Agreement, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Notes. 


        Section 8.5    Notice
of Default.    


        The
Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless the Administrative Agent has received
notice from a Lender or the Parent Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders; provided, however, that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default
as it shall deem advisable in the best interests of the Lenders except to the extent that this Agreement expressly requires that such action be taken, or not taken, only with the consent or upon the
authorization of the Required Lenders, or all of the Lenders, as the case may be. 


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        Section 8.6    Non-Reliance
on Administrative Agent and Other Lenders.    


        Each
Lender expressly acknowledges that neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or affiliates
has made any representation or warranty to it and that no act by the Administrative Agent hereinafter taken, including any review of the affairs of the Borrowers, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each Lender represents to the Administrative Agent that it has, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without
reliance upon the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrowers. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrowers which may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates. 


        Section 8.7    Indemnification.    



        The
Lenders agree to indemnify the Administrative Agent in its capacity hereunder (to the extent not reimbursed by the Borrowers and without limiting the obligation of the Borrowers to
do so), ratably according to their respective Revolving Commitment Percentages in effect on the date on which indemnification is sought under this Section, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including, without limitation, at any time following
the payment of the Notes) be imposed on, incurred by or asserted against the Administrative Agent in any way relating to or arising out of any Credit Document or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent under or in connection with any of the foregoing;
provided, however, that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to the extent resulting from the Administrative Agent's gross negligence or willful misconduct, as determined by a court of competent
jurisdiction. The agreements in this Section 8.7 shall survive the termination of this Agreement and payment of the Notes and all other amounts payable hereunder. 


        Section 8.8    Administrative
Agent in Its Individual Capacity.    


        The
Administrative Agent and its affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Borrowers, their Subsidiaries and Affiliates as
though the Administrative Agent were not the Administrative Agent hereunder. With respect to its Loans made or renewed by it and any Note issued to it, the Administrative Agent shall have the same
rights and powers under this Agreement as any Lender and may exercise the same as though it were not the Administrative Agent, and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity. 


        Section 8.9    Successor
Administrative Agent.    


        The
Administrative Agent may resign as Administrative Agent upon 30 days' prior notice to the Parent Borrower and the Lenders. If the Administrative Agent shall resign as
Administrative Agent 


70





 




under this Agreement and the Notes, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall be approved by the Parent Borrower
with such approval not to be unreasonably withheld (provided, however if an Event of Default shall exist at such time, no approval of the Borrowers shall be required hereunder), whereupon such
successor agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term "Administrative Agent" shall mean such successor agent effective upon such appointment and
approval, and the former Administrative Agent's rights, powers and duties as Administrative Agent shall be terminated, without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any holders of the Notes. After any retiring Administrative Agent's resignation as Administrative Agent, the provisions of this
Section 8.9 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. 


        Section 8.10    Nature
of Duties.    


        Except
as otherwise expressly stated herein, any agent (other than the Administrative Agent) or co-lead arranger listed from time to time on the cover page of this Agreement
shall have no obligations, responsibilities or duties under this Agreement or under any other Credit Document other than obligations, responsibilities and duties applicable to all Lenders in their
capacity as Lenders; provided, however, that such agents and co-lead arrangers shall be entitled to the same rights, protections, exculpations and indemnifications granted to the
Administrative Agent under this Article VIII in their capacity as an agent or co-lead arranger. 


 
 

ARTICLE IX    
    
    MISCELLANEOUS    
  


        Section 9.1    Amendments,
Waivers and Release of Collateral.    


        Neither
this Agreement, nor any of the Notes, nor any of the other Credit Documents, nor any terms hereof or thereof may be amended, supplemented, waived or modified except in accordance
with the provisions of this Section nor may any Collateral be released except as specifically provided herein or in the Security Documents or in accordance with the provisions of this
Section 9.1. The Required Lenders may, or, with the written consent of the Required Lenders, the Administrative Agent may, from time to time, (a) enter into with the Borrowers written
amendments, supplements or modifications hereto and to the other Credit Documents for the purpose of adding any provisions to this Agreement or the other Credit Documents or changing in any manner the
rights of the Lenders or of the Borrowers hereunder or thereunder or (b) waive, on such terms and conditions as the Required Lenders may specify in such instrument, any of the requirements of
this Agreement or the other Credit Documents or any Default or Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, waiver, supplement, modification or release shall: 



        (i)    (A)
reduce the amount or extend the scheduled date of maturity of any Loan or Note or any installment thereon, (B) extend the expiration date of a Letter of
Credit beyond the Maturity Date, (C) reduce the stated rate of any interest or fee payable hereunder (other than interest at the increased post-default rate) or extend the scheduled
date of any payment thereof, or (D) increase the amount or
extend the expiration date of any Lender's Commitment, in each case without the written consent of each Lender directly affected thereby, or 


        (ii)  amend,
modify or waive any provision of this Section 9.1 or change the percentage specified in the definition of Required Lenders, without the written consent of
all the Lenders, or 


        (iii)    amend,
modify or waive any provision of Article VIII without the written consent of the then Administrative Agent, or 



71





 




        (iv)  release
any Borrower from its obligations under the Credit Documents without the written consent of all of the Lenders, or 


        (v)  release
all or substantially all of the Collateral, without the written consent of all of the Lenders, or 


        (vi)  amend,
modify or waive any provision of the Credit Documents requiring consent, approval or request of the Required Lenders or all Lenders, without the written consent
of all of the Required Lenders or Lenders as appropriate and, provided, further, that no amendment, waiver or consent affecting the rights or
duties of the Administrative Agent or the Issuing Lender under any Credit Document shall in any event be effective, unless in writing and signed by the Administrative Agent and/or the Issuing Lender,
as applicable, in addition to the Lenders required hereinabove to take such action; or 


        (vii) permit
any Borrower to acquire any Person other than in connection with a Permitted Acquisition without the written consent or approval of the Majority Lenders;
provided that, if any such acquisition (other than a Permitted Acquisition) would result in the occurrence of a Default or an Event of Default that could not be amended or
waived without the approval of the Required Lenders, then such acquisition shall only be permitted upon the consent of, or with the approval of, the Required Lenders. 




        Any
such waiver, any such amendment, supplement or modification and any such release shall apply equally to each of the Lenders and shall be binding upon the Borrowers, the Lenders, the
Issuing Lender, the Administrative Agent and all future holders of the Notes. In the case of any waiver, the Borrowers, the other Borrowers, the Lenders, the Issuing Lender and the Administrative
Agent shall be restored to their former position and rights hereunder and under the outstanding Loans and Notes and other Credit Documents, and any Default or Event of Default waived shall be deemed
to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. 


        Notwithstanding
any of the foregoing to the contrary, (x) the consent of the Borrower shall not be required for any amendment, modification or waiver of the provisions of
Article VIII (other than the provisions of Section 8.9); provided, however, that the Administrative Agent will provide written
notice to the Parent Borrower of any such amendment, modification or waiver. In addition, the Borrowers and the Lenders hereby authorize the Administrative Agent to modify this Agreement by
unilaterally amending or supplementing Schedule 2.1(a) and Schedule 9.2 and Section 9.2 from time to time in the manner
requested by the Parent Borrower, the Administrative Agent or any Lender in order to reflect any assignments or transfers of the Loans or change in the Administrative Agent as provided for hereunder;
provided, however, that the Administrative Agent shall promptly deliver a copy of any such modification to the Parent Borrower and each
Lender, and (y) any waiver of, or modification to, Section 2.6 and Section 2.7(b)(ii)—(v) or any definition used in such Section, shall only require the consent
of the Required Lenders. 


        Notwithstanding
the fact that the consent of all the Lenders is required in certain circumstances as set forth above, (x) each Lender is entitled to vote as such Lender sees fit
on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent
provisions set forth herein and (y) the Required Lenders may consent to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding. 


        Section 9.2    Notices.    



        Except
as otherwise provided in Article II, all notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by telecopy),
and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made (a) when delivered by hand, (b) when transmitted via telecopy (or other facsimile device)
to the number set out 


72





 




herein, (c) the next weekday following the day on which the same has been delivered prepaid to a reputable national overnight air courier service, or (d) the third Business Day
following the day on which the same is sent by certified or registered mail, postage prepaid, in each case, addressed as follows in the case of the Parent Borrower, the other Borrowers and the
Administrative Agent, and as set forth on Schedule 9.2 in the case of the Lenders, or to such other address as may be hereafter notified by the respective parties
hereto and any future holders of the Notes: 



	The Parent Borrower

and the Subsidiary

Borrowers:	 	SI International, Inc.

8484 W. Park Drive

Suite 600

McLean, Virginia

Attention: Thomas E. Dunn, Executive Vice President and Chief Financial Officer

Telecopier: (703) 762-0086

Telephone: (703) 762-0062
	

 	
 	

with a copy to:
	

 	
 	

SI International, Inc.

4040 East Bijou Street

Colorado Springs, CO 80909-6822

Attention: Rick Kasch, Executive Vice President and Treasurer

Telecopier: (719) 380-8702

Telephone: (719) 637-0500
	

The Administrative Agent:	
 	

Wachovia Bank, National Association, as Administrative Agent

Charlotte Plaza

201 South College Street, CP-23

Charlotte, North Carolina 28288-0680

Attention: Syndication Agency Services

Telecopier: (704) 383-0288

Telephone: (704) 383-3721
	

 	
 	

with a copy to:
	

 	
 	

Wachovia Bank, National Association

One Wachovia Center, DC-5

Charlotte, North Carolina 28288-0737

Attention: Mr. Scott Santa Cruz

Telecopier: (704) 374-4793

Telephone: (704) 383-1988





        Section 9.3    No
Waiver; Cumulative Remedies.    


        No
failure to exercise and no delay in exercising, on the part of the Administrative Agent or any Lender, 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. 


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        Section 9.4    Survival
of Representations and Warranties.    


        All
representations and warranties made hereunder and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and
delivery of this Agreement and the Notes and the making of the Loans, provided that all such representations and warranties shall terminate on the date upon which the
Commitments have been terminated and all amounts owing hereunder and under any Notes have been paid in full. 


        Section 9.5    Payment
of Expenses and Taxes.    


        The
Borrowers jointly and severally agree (a) to pay or reimburse each Lender and the Administrative Agent for all its reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation, negotiation, printing and execution of, and any amendment, supplement or modification to, this Agreement and the other Credit
Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, together with the
reasonable fees and disbursements of counsel to each Lender and the Administrative Agent, (b) to pay or reimburse each Lender and the Administrative Agent for all its costs and expenses
incurred in connection with the enforcement or preservation of any rights under this Agreement, the Notes and any such other documents, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent and to the Lenders (including reasonable allocated costs of in-house legal counsel), and (c) on demand, to pay, indemnify, and
hold each Lender and the Administrative Agent harmless from, any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and
other similar taxes, if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, the Credit Documents and any such other documents, and (d) to pay, indemnify,
and hold each Lender and the Administrative Agent and their Affiliates harmless from and against, any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of the Credit Documents and any such other
documents and the use, or proposed use, of proceeds of the Loans (all of the foregoing, collectively, the "indemnified liabilities");
provided, however, that the Borrowers shall not have any obligation hereunder to the Administrative Agent or any Lender with respect to
indemnified liabilities arising from the gross
negligence or willful misconduct of the Administrative Agent or any such Lender, as determined by a court of competent jurisdiction in a final and non-appealable judgment. The agreements
in this Section 9.5 shall survive repayment of the Loans, Notes and all other amounts payable hereunder. 


        Section 9.6    Successors
and Assigns; Participations; Purchasing Lenders.    


        (a)  This
Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders, the Administrative Agent, all future holders of the Notes and their
respective successors and assigns, except that the Borrowers may not assign or transfer any of their rights or obligations under this Agreement or the other Credit Documents without the prior written
consent of each Lender. 


        (b)  Any
Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more banks or other entities
("Participants") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender, or any other interest of such
Lender hereunder. In the event of any such sale by a Lender of participating interests to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note for all purposes under this Agreement, and the Borrowers
and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations 


74





 




under this Agreement. No Lender shall transfer or grant any participation under which the Participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit
Document except to the extent such amendment or waiver would (i) extend the scheduled maturity of any Loan or Note or any installment thereon in which such Participant is participating, or
reduce the stated rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of interest at the increased post-default rate) or reduce the principal
amount thereof, or increase the amount of the Participant's participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default shall not
constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without consent of any participant if the Participant's participation is not
increased as a result thereof), (ii) release all or substantially all of the Collateral, or (iii) consent to the assignment or transfer by the Borrowers of any of their rights and
obligations under this Agreement. In the case of any such participation, the Participant shall not have any rights under this Agreement or any of the other Credit Documents (the Participant's rights
against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the Participant relating thereto) and all amounts payable by the
Borrowers hereunder shall be determined as if such Lender had not sold such participation, provided that each Participant shall be entitled to the benefits of Sections
2.16, 2.17, 2.18 and 9.5 with respect to its participation in the Commitments and the Loans outstanding from time to time; provided, that no Participant shall be entitled
to receive any greater amount pursuant to such Sections than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred. 


        (c)  Any
Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time, sell or assign to any Lender or any
affiliate or Related Fund thereof and, with the consent of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Parent Borrower (in each case, which consent
shall not be unreasonably withheld), to one or more additional banks or financial institutions or entities ("Purchasing Lenders"), all or any part of its rights and
obligations under this Agreement and the Notes in minimum amounts of $5,000,000 (or, if less, the entire amount of such Lender's interests and obligations), pursuant to a Commitment Transfer
Supplement, executed by such Purchasing Lender and such transferor Lender (and, in the case of a Purchasing Lender that is not then a Lender or an affiliate or Related Fund thereof, the Administrative
Agent and, so long as no Event of Default has occurred and is continuing, the Parent Borrower), and delivered to the Administrative Agent for its acceptance and recording in the Register. Upon such
execution, delivery, acceptance and recording, from and after the Transfer Effective Date specified in such Commitment Transfer Supplement, (x) the Purchasing Lender thereunder shall be a party
hereto and, to the extent provided in such Commitment Transfer Supplement, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the transferor
Lender thereunder shall, to the extent provided in such Commitment Transfer Supplement, be released from its obligations under this Agreement (and, in the case of a Commitment Transfer Supplement
covering all or the remaining portion of a transferor Lender's rights and obligations under this Agreement, such transferor Lender shall cease to be a party hereto). Such Commitment Transfer
Supplement shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Purchasing Lender and the resulting adjustment of Revolving
Commitment Percentages arising from the purchase by such Purchasing Lender of all or a portion of the rights and obligations of such transferor Lender under this Agreement and the Notes. On or prior
to the Transfer Effective Date specified in such Commitment Transfer Supplement, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent in exchange for the Notes
delivered to the Administrative Agent pursuant to such Commitment Transfer Supplement new Notes to the order of such Purchasing Lender in an amount equal to the Commitment assumed by it pursuant to
such Commitment Transfer Supplement and, unless the transferor Lender has not retained a Commitment hereunder, new Notes to the order of the transferor Lender in an amount 


75





 




equal to the Commitment retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Notes replaced thereby. The Notes surrendered by the
transferor Lender shall be returned by the Administrative Agent to the Parent Borrower marked "canceled". 


        (d)  The
Administrative Agent shall maintain at its address referred to in Section 9.2 a copy of each Commitment Transfer Supplement delivered to it and a register
(the "Register") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to
time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the
Register as the owner of the Loan recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Parent Borrower or any Lender at any reasonable time and
from time to time upon reasonable prior notice. 


        (e)  Upon
its receipt of a duly executed Commitment Transfer Supplement, together with payment to the Administrative Agent by the transferor Lender or the Purchasing Lender,
as agreed between them, of a registration and processing fee of $3,500.00 for each Purchasing Lender (other than an affiliate of such Lender or a Related Fund) listed in such Commitment Transfer
Supplement and the Notes subject to
such Commitment Transfer Supplement, the Administrative Agent shall (i) accept such Commitment Transfer Supplement, (ii) record the information contained therein in the Register and
(iii) give prompt notice of such acceptance and recordation to the Lenders and the Parent Borrower. 


        (f)    The
Borrowers authorize each Lender to disclose to any Participant or Purchasing Lender (each, a "Transferee") and any prospective
Transferee any and all financial information in such Lender's possession concerning the Borrowers and their Affiliates which has been delivered to such Lender by or on behalf of the Borrowers pursuant
to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender's credit evaluation of the Borrowers and their Affiliates prior to becoming
a party to this Agreement, in each case subject to Section 9.16. 


        (g)  At
the time of each assignment pursuant to this Section 9.6 to a Person which is not already a Lender hereunder and which is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Parent Borrower and the Administrative Agent the
appropriate Internal Revenue Service Forms (and, if applicable, a 2.18 Certificate) described in Section 2.18. 



        (h)  Any
Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Credit Agreement to secure obligations of such Lender,
including any such pledge or assignment to a Federal Reserve Bank, and this Section 9.6 shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such assignee for such
Lender as a party hereto. 


        Section 9.7    Adjustments;
Set-off.    


        (a)  Each
Lender agrees that if any Lender (a "benefited Lender") shall at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in
Section 7.1(e), or otherwise) in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of such other Lender's Loans, or interest thereon,
such benefited Lender shall purchase for cash from the other Lenders a participating interest in such portion of each such other Lender's Loan, or shall provide such other Lenders with the benefits of
any such collateral, or the proceeds thereof, as shall be necessary to cause such benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter 


76





 




recovered from such benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Borrowers agree that
each Lender so purchasing a portion of another Lender's Loans may exercise all rights of payment (including, without limitation, rights of set-off) with respect to such portion as fully as
if such Lender were the direct holder of such portion. 


        (b)  In
addition to any rights and remedies of the Lenders provided by law (including, without limitation, other rights of set-off), each Lender shall have the
right, without prior notice to the Parent Borrower, any such notice being expressly waived by the Borrowers to the extent permitted by applicable law, upon the occurrence of any Event of Default, to
setoff and appropriate and apply any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of the
Borrowers, or any part thereof in such amounts as such Lender may elect, against and on account of the obligations and liabilities of the Borrowers to such Lender hereunder and claims of every nature
and description of such Lender against the Borrowers, in any currency, whether arising hereunder, under the Notes or under any documents contemplated by or referred to herein or therein, as such
Lender may elect, whether or not such Lender has made any demand for payment and although such obligations, liabilities and claims may be contingent or unmatured. The aforesaid right of
set-off may be exercised by such Lender against the Borrowers or against any trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receiver or execution,
judgment or attachment creditor of the Borrowers, or against anyone else claiming through or against the Borrowers or any such trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor, notwithstanding the fact that such right of set-off shall not have been exercised by such Lender prior to the occurrence
of any Event of Default. Each Lender agrees promptly to notify the Parent Borrower 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. 


        Section 9.8    Table
of Contents and Section Headings.    


        The
table of contents and the Section and subsection headings herein are intended for convenience only and shall be ignored in construing this Agreement. 


        Section 9.9    Counterparts.    



        This
Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement signed by all the parties shall be lodged with the Parent Borrower and the Administrative Agent. 



        Section 9.10    Effectiveness.    


        This
Agreement shall become effective on the date on which all of the parties have signed a copy hereof (whether the same or different copies) and shall have delivered the same to the
Administrative Agent pursuant to Section 9.2 or, in the case of the Lenders, shall have given to the Administrative
Agent written, telecopied or telex notice (actually received) at such office that the same has been signed and mailed to it. 


77





 

        Section 9.11    Severability.    



        Any
provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. 


        Section 9.12    Integration.    


        This
Agreement and the Notes represent the agreement of the Borrowers, the Administrative Agent and the Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent, the Borrowers or any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the
Notes. 


        Section 9.13    Governing
Law.    


        This
Agreement and the Notes and the rights and obligations of the parties under this Agreement and the Notes shall be governed by, and construed and interpreted in accordance with, the
law of the State of North Carolina. 


        Section 9.14    Consent
to Jurisdiction and Service of Process.    


        All
judicial proceedings brought against the Borrowers with respect to this Agreement, any Note or any of the other Credit Documents may be brought in any state or federal court of
competent jurisdiction in the State of North Carolina, and, by execution and delivery of this Agreement, each of the Borrowers accepts, for itself and in connection with its properties, generally and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts and irrevocably agrees to be bound by any final judgment rendered thereby in connection with this Agreement from
which no appeal has been taken or is available. Each of Borrowers irrevocably agrees that all service of process in any such proceedings in any such court may be effected by mailing a copy thereof by
registered or certified mail (or any
substantially similar form of mail), postage prepaid, to it at its address set forth in Section 9.2 or at such other address of which the Administrative Agent shall have been notified pursuant
thereto, such service being hereby acknowledged by the Borrowers to be effective and binding service in every respect. Each of the Borrower, the Administrative Agent and the Lenders irrevocably waives
any objection, including, without limitation, 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 such action
or proceeding in any such jurisdiction. Nothing herein shall affect the right to serve process in any other manner permitted by law or shall limit the right of the Administrative Agent or any Lender
to bring proceedings against the Borrowers in the court of any other jurisdiction. 


        Section 9.15    Arbitration.    



        (a)  Notwithstanding
the provisions of Section 9.14 to the contrary, upon demand of any party hereto, whether made before or within three (3) months after
institution of any judicial proceeding, any dispute, claim or controversy arising out of, connected with or relating to this Credit Agreement and the other Credit Documents ("Disputes") between or
among parties to this Credit Agreement shall be resolved by binding arbitration as provided herein. Institution of a judicial proceeding by a party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without limitation, tort claims, counterclaims, disputes as to whether a matter is subject to arbitration, claims brought as class actions, claims arising
from Credit Documents executed in the future, or claims arising out of or connected with the transaction reflected by this Credit Agreement. 


        Arbitration
shall be conducted under and governed by the Commercial Arbitration Rules (the "Arbitration Rules") of the American Arbitration Association (the "AAA") and Title 9 of the
U.S. Code. All arbitration hearings shall be conducted in Charlotte, North Carolina. A hearing shall begin within 90 days of demand for arbitration and all hearings shall be concluded within
120 days of demand for arbitration. These time limitations may not be extended unless a party shows cause for extension 


78





 




and then no more than a total extension of 60 days. The expedited procedures set forth in Rule 51 et seq. of the Arbitration Rules shall be applicable to
claims of less than $1,000,000. All applicable statutes of limitation shall apply to any Dispute. A judgment upon the award may be entered in any court having jurisdiction. Arbitrators shall be
licensed attorneys selected from the Commercial Financial Dispute Arbitration Panel of the AAA. The parties hereto do not waive applicable Federal or state substantive law except as provided herein.
Notwithstanding the foregoing, this arbitration provision does not apply to disputes under or related to Hedging Agreements. 


        (b)  Notwithstanding
the preceding binding arbitration provisions, the Agent, the Lenders and the Borrowers agree to preserve, without diminution, certain remedies that the
Agent on behalf of the Lenders may employ or exercise freely, independently or in connection with an arbitration proceeding or after an arbitration action is brought. The Agent on behalf of the
Lenders shall have the right to proceed in any court of proper jurisdiction or by self-help to exercise or prosecute the following remedies, as applicable (i) all rights to
foreclose against any real or personal property or other security by exercising a power of sale granted under Credit Documents or under applicable law or by judicial foreclosure and sale, including a
proceeding to confirm the sale; (ii) all rights of self-help including
peaceful occupation of real property and collection of rents, set-off, and peaceful possession of personal property; (iii) obtaining provisional or ancillary remedies including
injunctive relief, sequestration, garnishment, attachment, appointment of receiver and filing an involuntary bankruptcy proceeding; and (iv) when applicable, a judgment by confession of
judgment. Preservation of these remedies does not limit the power of an arbitrator to grant similar remedies that may be requested by a party in a Dispute. 



        (c)  The
parties hereto agree that they shall not have a remedy of punitive or exemplary damages against the other in any Dispute and hereby waive any right or claim to
punitive or exemplary damages they have now or which may arise in the future in connection with any Dispute whether the Dispute is resolved by arbitration or judicially. 


        (d)  By
execution and delivery of this Credit Agreement, each of the parties hereto accepts, for itself and in connection with its properties, generally and unconditionally,
the non-exclusive jurisdiction relating to any arbitration proceedings conducted under the Arbitration Rules in Charlotte, North Carolina and irrevocably agrees to be bound by any final
judgment rendered thereby in connection with this Credit Agreement from which no appeal has been taken or is available. 


        Section 9.16    Confidentiality.    



        The
Administrative Agent and each of the Lenders agrees that it will use its commercially reasonable efforts not to disclose without the prior consent of the Borrower (other than to its
employees, affiliates, auditors or counsel or to another Lender) any information with respect to the Borrowers and their Subsidiaries which is furnished pursuant to this Agreement, any other Credit
Document or any documents contemplated by or referred to herein or therein and which information is (i) designated by the Parent Borrower to the Lenders in writing as confidential,
(ii) otherwise reasonably clear such information is not public, or (iii) information customarily kept as confidential in transactions of this nature, except that any Lender may disclose
any such information (a) as has become generally available to the public other than by a breach of this Section 9.16, (b) as may be required or appropriate in any report,
statement or testimony submitted to any municipal, state or federal regulatory body having or claiming to have jurisdiction over such Lender or to the Federal Reserve Board or the Federal Deposit
Insurance Corporation or the OCC or the NAIC or similar organizations (whether in the United States or elsewhere) or their successors, (c) as may be required or appropriate in response to any
summons or subpoena or any law, order, regulation or ruling applicable to such Lender, (d) to any prospective Participant or assignee in connection with any contemplated transfer pursuant to
Section 9.6 (provided that such prospective transferee shall have been made aware of this Section 9.16 and shall have agreed to be bound by its provisions as
if it were a party to this Agreement) or rating agencies and/or auditors, (e) to Gold Sheets and other similar bank trade 


79





 




publications (such information to consist of deal terms and other information regarding the credit facilities evidenced by this Agreement customarily found in such publications). 



        Section 9.17    Acknowledgments.    


        The
Borrowers each hereby acknowledges that: 


        (a)  it
has been advised by counsel in the negotiation, execution and delivery of each Credit Document; 


        (b)  neither
the Administrative Agent nor any Lender has any fiduciary relationship with or duty to the Borrowers arising out of or in connection with this Agreement and the
relationship between Administrative Agent and Lenders, on one hand, and the Borrowers, on the other hand, in connection herewith is solely that of debtor and creditor; and 



        (c)  no
joint venture exists among the Lenders or among the Borrowers and the Lenders. 


        Section 9.18    Waivers
of Jury Trial.    


        THE
BORROWERS, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN. 


80








        IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by its proper and duly authorized officers as of the day and year first above written. 



	PARENT BORROWER:	 	SI INTERNATIONAL, INC.,

a Delaware corporation
	

 	
 	

By:	

/s/  TED DUNN      

	 	 	Name:	Thomas E. Dunn

	 	 	Title:	Executive Vice President and Chief Finanical Officer

	

 	
 	

 	

 
	SUBSIDIARY

BORROWERS:	 	SI INTERNATIONAL TELECOM CORPORATION,

a Delaware corporation
	 	 	SI INTERNATIONAL APPLICATION DEVELOPMENT, INC.,

a Maryland corporation
	 	 	SI INTERNATIONAL ENGINEERING, INC.,

a Colorado corporation
	 	 	SI INTERNATIONAL CONSULTING, INC.,

a Delaware corporation
	 	 	SI INTERNATIONAL LEARNING, INC.,

a Maryland corporation
	

 	
 	

By:	

/s/  TED DUNN      

	 	 	Name:	Thomas E. Dunn

	 	 	Title:	Chief Financial Officer and Treasurer of each of

the foregoing Subsidiary Borrowers








	

ADMINISTRATIVE AGENT

AND LENDERS:	
 	

 	

 
	

 	
 	

WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent and as a Lender
	

 	
 	

By:	

/s/  SCOTT SANTA CRUZ      

	 	 	Name:	Scott Santa Cruz

	 	 	Title:	Director

	

 	
 	

BRANCH BANKING AND TRUST CO. OF VIRGINIA,

as a Lender
	

 	
 	

By:	

/s/  RONALD P. GUDBRANDSEN      

	 	 	Name:	Ronald P. Gudbrandsen

	 	 	Title:	Senior Vice President

	

 	
 	

SUNTRUST BANK, a Georgia banking corporation,

as a Lender
	

 	
 	

By:	

/s/  LINDA L. BERGMANN      

	 	 	Name:	Linda L. Bergmann

	 	 	Title:	Vice President










 
 

Schedules available upon request
  to SI International, Inc.    










QuickLinks


TABLE OF CONTENTS


W I T N E S S E T H

ARTICLE I DEFINITIONS


ARTICLE II THE LOANS; AMOUNT AND TERMS


ARTICLE III REPRESENTATIONS AND WARRANTIES

ARTICLE IV CONDITIONS PRECEDENT


ARTICLE V AFFIRMATIVE COVENANTS


ARTICLE VI NEGATIVE COVENANTS

ARTICLE VII EVENTS OF DEFAULT

ARTICLE VIII THE AGENT


ARTICLE IX MISCELLANEOUS


Schedules available upon request to SI International, Inc.