Exhibit
10.1


 


Execution Copy


 


	
   

  	
   

  	
   

  



 


AMENDED AND RESTATED CREDIT AGREEMENT


 


DATED AS OF MAY 1, 2009


 


by and among


 


TRANSACTION NETWORK SERVICES, INC.,


as Borrower,


 


TNS, INC.,


as a Credit Party,


 


SUNTRUST BANK,


as Agent, Co-Administrative Agent, L/C Issuer and a Lender,


 


GENERAL ELECTRIC CAPITAL CORPORATION,


as Co-Administrative Agent and a Lender,


 


BANK OF AMERICA, N.A.,


as Syndication Agent,


 


and


 


 THE OTHER FINANCIAL INSTITUTIONS
PARTY HERETO,


as Lenders


 


 


SUNTRUST ROBINSON HUMPHREY, INC.


as Joint Lead Arranger and Sole Bookrunner


 


and


 


GE CAPITAL MARKETS, INC.


as Joint Lead Arranger


 


	
   

  	
   

  	
   

  



 

















 


Execution Copy


 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1.
  AMOUNTS AND TERMS OF LOANS

  	
  1

  
	
  1.1

  	
  Loans

  	
  1

  
	
  1.2

  	
  Interest and Applicable Margins

  	
  10

  
	
  1.3

  	
  Fees

  	
  13

  
	
  1.4

  	
  Payments

  	
  15

  
	
  1.5

  	
  Prepayments

  	
  16

  
	
  1.6

  	
  Maturity

  	
  17

  
	
  1.7

  	
  Loan Accounts

  	
  18

  
	
  1.8

  	
  Yield Protection; Illegality

  	
  19

  
	
  1.9

  	
  Taxes/Changes in Laws

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 2.
  AFFIRMATIVE COVENANTS

  	
  22

  
	
  2.1

  	
  Compliance With Laws and
  Contractual Obligations

  	
  22

  
	
  2.2

  	
  Insurance

  	
  23

  
	
  2.3

  	
  Inspection; Lender Meeting; Books
  and Records

  	
  24

  
	
  2.4

  	
  Organizational Existence

  	
  24

  
	
  2.5

  	
  Environmental Matters

  	
  24

  
	
  2.6

  	
  Payment of Taxes

  	
  25

  
	
  2.7

  	
  Further Assurances

  	
  25

  
	
  2.8

  	
  Ratings

  	
  26

  
	
   

  	
   

  	
   

  
	
  SECTION 3.
  NEGATIVE COVENANTS

  	
  26

  
	
  3.1

  	
  Indebtedness

  	
  26

  
	
  3.2

  	
  Liens and Related Matters

  	
  28

  
	
  3.3

  	
  Investments

  	
  29

  
	
  3.4

  	
  Contingent Obligations

  	
  31

  
	
  3.5

  	
  Restricted Payments

  	
  33

  
	
  3.6

  	
  Restriction on Fundamental Changes

  	
  34

  
	
  3.7

  	
  Disposal of Assets or Subsidiary
  Stock

  	
  37

  
	
  3.8

  	
  Transactions with Affiliates

  	
  38

  
	
  3.9

  	
  Compliance with Laws

  	
  38

  
	
  3.10

  	
  Conduct of Business

  	
  38

  
	
  3.11

  	
  Changes Relating to Indebtedness
  and Material Documents

  	
  39

  
	
  3.12

  	
  Fiscal Year

  	
  39

  
	
  3.13

  	
  Press Release; Public Offering
  Materials

  	
  39

  
	
  3.14

  	
  Limitation on Creation of
  Subsidiaries

  	
  40

  
	
  3.15

  	
  Hazardous Materials

  	
  40

  
	
  3.16

  	
  ERISA; Foreign Pension Plans

  	
  40

  
	
  3.17

  	
  Sale-Leasebacks

  	
  40

  
	
  3.18

  	
  Capital Stock

  	
  40

  
	
  3.19

  	
  OFAC

  	
  41

  



 


i

















 


	
  SECTION 4.
  FINANCIAL COVENANTS/REPORTING

  	
  41

  
	
  4.1

  	
  Capital Expenditure Limits

  	
  41

  
	
  4.2

  	
  Maximum Leverage Ratio

  	
  42

  
	
  4.3

  	
  Fixed Charge Coverage Ratio

  	
  42

  
	
  4.4

  	
  Financial Statements and Other
  Reports

  	
  43

  
	
  4.5

  	
  Accounting Terms; Utilization of
  GAAP for Purposes of Calculations Under Agreement

  	
  45

  
	
   

  	
   

  	
   

  
	
  SECTION 5.
  REPRESENTATIONS AND WARRANTIES

  	
  46

  
	
  5.1

  	
  Disclosure

  	
  46

  
	
  5.2

  	
  No Material Adverse Effect

  	
  46

  
	
  5.3

  	
  No Conflict; Governmental Approvals

  	
  47

  
	
  5.4

  	
  Organization, Powers,
  Capitalization and Good Standing

  	
  47

  
	
  5.5

  	
  Financial Statements and Budget

  	
  48

  
	
  5.6

  	
  Intellectual Property

  	
  48

  
	
  5.7

  	
  Investigations, Audits, Etc.

  	
  48

  
	
  5.8

  	
  Employee Matters

  	
  48

  
	
  5.9

  	
  Solvency

  	
  49

  
	
  5.10

  	
  Litigation; Adverse Facts

  	
  49

  
	
  5.11

  	
  Use of Proceeds; Margin Regulations

  	
  49

  
	
  5.12

  	
  Ownership of Property; Liens

  	
  49

  
	
  5.13

  	
  Environmental Matters

  	
  50

  
	
  5.14

  	
  ERISA; Foreign Pension Plans

  	
  51

  
	
  5.15

  	
  Brokers

  	
  52

  
	
  5.16

  	
  Taxes and Tax Returns

  	
  52

  
	
  5.17

  	
  Maintenance of Properties;
  Insurance

  	
  53

  
	
  5.18

  	
  Foreign Assets Control Regulations
  and Anti-Money Laundering

  	
  53

  
	
  5.19

  	
  Purchase Documents

  	
  53

  
	
   

  	
   

  	
   

  
	
  SECTION 6.
  DEFAULT, RIGHTS AND REMEDIES

  	
  54

  
	
  6.1

  	
  Event of Default

  	
  54

  
	
  6.2

  	
  Suspension or Termination of
  Commitments

  	
  56

  
	
  6.3

  	
  Acceleration and other Remedies

  	
  56

  
	
  6.4

  	
  Performance by Co-Administrative
  Agent

  	
  57

  
	
  6.5

  	
  Application of Proceeds

  	
  57

  
	
   

  	
   

  	
   

  
	
  SECTION 7.
  CONDITIONS TO LOANS

  	
  58

  
	
  7.1

  	
  Conditions to Acquisition Term
  Loans

  	
  58

  
	
  7.2

  	
  Conditions to All Loans

  	
  58

  
	
   

  	
   

  	
   

  
	
  SECTION 8.
  ASSIGNMENT AND PARTICIPATION

  	
  59

  
	
  8.1

  	
  Assignment and Participations

  	
  59

  
	
  8.2

  	
  Agents

  	
  62

  
	
  8.3

  	
  Set Off and Sharing of Payments

  	
  71

  
	
  8.4

  	
  Disbursement of Funds

  	
  71

  



 


ii

















 


	
  8.5

  	
  Disbursements of Advances; Payment;
  Cash Collateral

  	
  72

  
	
  8.6

  	
  Lender Credit Decision

  	
  74

  
	
   

  	
   

  	
   

  
	
  SECTION 9.
  MISCELLANEOUS

  	
  74

  
	
  9.1

  	
  Indemnities

  	
  74

  
	
  9.2

  	
  Amendments and Waivers

  	
  75

  
	
  9.3

  	
  Notices

  	
  76

  
	
  9.4

  	
  Electronic Transmissions

  	
  78

  
	
  9.5

  	
  Failure or Indulgence Not Waiver;
  Remedies Cumulative

  	
  79

  
	
  9.6

  	
  Marshaling; Payments Set Aside

  	
  80

  
	
  9.7

  	
  Severability

  	
  80

  
	
  9.8

  	
  Lenders’ Obligations Several;
  Independent Nature of Lenders’ Rights

  	
  80

  
	
  9.9

  	
  Headings

  	
  80

  
	
  9.10

  	
  Applicable Law

  	
  80

  
	
  9.11

  	
  Successors and Assigns

  	
  81

  
	
  9.12

  	
  No Fiduciary Relationship; Limited
  Liability

  	
  81

  
	
  9.13

  	
  Construction

  	
  81

  
	
  9.14

  	
  Confidentiality

  	
  81

  
	
  9.15

  	
  CONSENT TO JURISDICTION

  	
  82

  
	
  9.16

  	
  WAIVER OF JURY TRIAL

  	
  83

  
	
  9.17

  	
  Survival of Warranties and Certain
  Agreements

  	
  83

  
	
  9.18

  	
  ENTIRE AGREEMENT

  	
  83

  
	
  9.19

  	
  Counterparts; Effectiveness

  	
  84

  
	
  9.20

  	
  Replacement of Lenders

  	
  84

  
	
  9.21

  	
  Delivery of Termination Statements
  and Mortgage Releases

  	
  85

  
	
  9.22

  	
  Subordination of Intercompany Debt

  	
  85

  
	
  9.23

  	
  Patriot Act

  	
  86

  
	
  9.24

  	
  Joint and Several

  	
  86

  
	
  9.25

  	
  Reserved

  	
  86

  
	
  9.26

  	
  NO NOVATION

  	
  86

  
	
  9.27

  	
  Amendment and Restatement

  	
  86

  



 


iii

















 


INDEX OF
APPENDICES


 


	
  Annexes

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Annex A

  	
  -

  	
  Definitions

  
	
  Annex B

  	
  -

  	
  Schedule of
  Additional Closing Documents

  
	
  Annex C

  	
  -

  	
  Pro Forma

  
	
  Annex D

  	
  -

  	
  Compliance,
  Pricing and Excess Cash Flow Certificate

  
	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 1.1(a)(i)

  	
  -

  	
  Existing Term
  Note

  
	
  Exhibit 1.1(a)(ii)

  	
  -

  	
  Acquisition Term
  Note

  
	
  Exhibit 1.1(b)(i)

  	
  -

  	
  Revolving Note

  
	
  Exhibit 1.1(b)(ii)

  	
  -

  	
  Notice of
  Revolving Credit Advance

  
	
  Exhibit 1.1(c)

  	
  -

  	
  Swing Line Note

  
	
  Exhibit 1.1(d)

  	
  -

  	
  Request for
  Letter of Credit Issuance

  
	
  Exhibit 1.2(e)

  	
  -

  	
  Notice of
  Continuation/Conversion

  
	
  Exhibit 7.1(D)

  	
  -

  	
  Master Amendment
  and Reaffirmation

  
	
  Exhibit 8.1

  	
  -

  	
  Assignment
  Agreement

  
	
   

  	
   

  	
   

  
	
  Schedules

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1.1(d)

  	
  -

  	
  Existing Letters
  of Credit

  
	
  Schedule 3.1(c)

  	
  -

  	
  Indebtedness

  
	
  Schedule 3.2

  	
  -

  	
  Liens

  
	
  Schedule 3.3

  	
  -

  	
  Investments

  
	
  Schedule 3.4

  	
  -

  	
  Contingent
  Obligations

  
	
  Schedule 3.8

  	
  -

  	
  Affiliate
  Transactions

  
	
  Schedule 5.4(a)

  	
  -

  	
  Jurisdictions of
  Organization and Qualifications

  
	
  Schedule 5.4(b)

  	
  -

  	
  Capitalization

  
	
  Schedule 5.6

  	
  -

  	
  Intellectual
  Property

  
	
  Schedule 5.7

  	
  -

  	
  Investigations
  and Audits

  
	
  Schedule 5.8

  	
  -

  	
  Employee Matters

  
	
  Schedule 5.10

  	
  -

  	
  Litigation

  
	
  Schedule 5.11

  	
  -

  	
  Use of Proceeds

  
	
  Schedule 5.12

  	
  -

  	
  Real Estate

  
	
  Schedule 5.13

  	
  -

  	
  Environmental
  Matters

  
	
  Schedule 5.14

  	
  -

  	
  ERISA

  
	
  Schedule 5.17

  	
  -

  	
  Insurance

  



 


iv
















 


AMENDED AND
RESTATED CREDIT AGREEMENT


 


This AMENDED AND RESTATED CREDIT AGREEMENT is dated as
of May 1, 2009 and entered into by and among TRANSACTION NETWORK SERVICES,
INC., a Delaware corporation (“Borrower”), TNS, INC., a Delaware
corporation (“Holdings”),  the financial institutions who are or hereafter become
parties to this Agreement as Lenders, SUNTRUST BANK  (in
its individual capacity “SunTrust”), as Agent and Co-Administrative
Agent, GENERAL ELECTRIC CAPITAL CORPORATION (in its individual capacity “GE
Capital”), as Co-Administrative Agent and BANK OF AMERICA, N.A., as
Syndication Agent.


 


R  E  C  I  T  A
L  S:


 


WHEREAS, Borrower, Holdings, GE Capital Administrative
Agent and certain other parties have entered into that certain Credit Agreement
dated March 28, 2007 (as amended and in effect immediately prior to the
date hereof, the “Existing Credit Agreement”);


 


WHEREAS, Co-Administrative
Agents, the Lenders, Borrower and Holdings wish to amend and restate the
Existing Credit Agreement to (i) make available to Borrower a new term
loan to fund the Acquisition (as hereinafter defined) and pay certain expenses
in connection therewith, (ii) to appoint SunTrust as Agent,
Co-Administrative Agent, L/C Issuer and Swingline Lender and (iii) to make
certain other modifications and changes, all as more fully set forth herein on
the terms and conditions herein;


 


WHEREAS, it is the intent of
the parties hereto that this Agreement not constitute a novation of the
obligations and liabilities of the parties under the Existing Credit Agreement
and that this Agreement amend, restate and replace in its entirety the Existing
Credit Agreement and re-evidence the obligations outstanding on the Restatement
Date as contemplated hereby; and


 


WHEREAS, all capitalized terms herein shall have the
meanings ascribed thereto in Annex A hereto which is incorporated herein
by reference.


 


NOW, THEREFORE, in consideration of the premises and
the agreements, provisions and covenants herein contained, Holdings, Borrower,
Lenders and Co-Administrative Agents agree as follows:


 


SECTION 1.


AMOUNTS AND TERMS OF LOANS


 


1.1           Loans.  (a)             Term Loans.


 


(i)            Existing
Term Loan.  On the
Original Closing Date, Existing Term Lenders made a term loan to Borrower in an
aggregate amount equal to $225,000,000 (the “Existing Term Loan”).  As of the Restatement Date, the outstanding
principal balance of the


 

















 


Existing
Term Loan is $178,500,000.  Borrower
shall repay the outstanding principal amount of the Existing Term Loan through
periodic payments on the dates and in the amounts indicated below (“Existing
Term Loan Scheduled Installments”).


 


	
  Date

  	
   

  	
  Scheduled Installment

  	
   

  
	
  June 30, 2009

  	
   

  	
  $

  	
  3,346,875

  	
   

  
	
  September 30, 2009

  	
   

  	
  $

  	
  3,346,875

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  3,346,875

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  3,346,875

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  4,462,500

  	
   

  
	
  September 30, 2010

  	
   

  	
  $

  	
  4,462,500

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  4,462,500

  	
   

  
	
  March 31, 2011

  	
   

  	
  $

  	
  4,462,500

  	
   

  
	
  June 30, 2011

  	
   

  	
  $

  	
  4,462,500

  	
   

  
	
  September 30, 2011

  	
   

  	
  $

  	
  4,462,500

  	
   

  
	
  December 31, 2011

  	
   

  	
  $

  	
  4,462,500

  	
   

  
	
  March 31, 2012

  	
   

  	
  $

  	
  4,462,500

  	
   

  
	
  June 30, 2012

  	
   

  	
  $

  	
  5,578,125

  	
   

  
	
  September 30, 2012

  	
   

  	
  $

  	
  5,578,125

  	
   

  
	
  December 31, 2012

  	
   

  	
  $

  	
  5,578,125

  	
   

  
	
  March 31, 2013

  	
   

  	
  $

  	
  5,578,125

  	
   

  
	
  June 30, 2013

  	
   

  	
  $

  	
  5,578,125

  	
   

  
	
  September 30, 2013

  	
   

  	
  $

  	
  5,578,125

  	
   

  
	
  December 31, 2013

  	
   

  	
  $

  	
  5,578,125

  	
   

  
	
  March 28, 2014

  	
   

  	
  $

  	
  90,365,625

  	
   

  



 


The final installment shall in all events equal the
entire remaining principal balance of the Existing Term Loan.  Notwithstanding the foregoing, the
outstanding principal balance of the Existing Term Loan shall be due and payable
in full on the Term Loan Maturity Date. 
Amounts borrowed with respect to the Existing Term Loan and repaid may
not be reborrowed.


 


The Existing Term Loan is evidenced by the several
promissory notes issued by Borrower in substantially the form of Exhibit 1.1(a)(i) (as
amended, modified, extended, substituted or replaced from time to time, each an
“Existing Term Note” and, collectively, the “Existing Term Notes”).  Each Existing Term Note shall represent the
obligation of Borrower to pay the amount of the applicable Existing Term Lender’s
Existing Term Loan Commitment, together with interest thereon.


 


(ii)           Acquisition
Term Loan. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Holdings
and Borrower contained herein, each Acquisition Term Lender, severally and not
jointly, shall make a term loan to Borrower in one draw on the Restatement Date
in an amount equal to its Pro Rata Share of $230,000,000 (the “Acquisition
Term Loan”).  Borrower shall repay
the Acquisition Term


 


2

















 


Loan
through periodic payments on the dates and in the amounts indicated below (“Acquisition
Term Loan Scheduled Installments”).


 


	
  Date

  	
   

  	
  Scheduled Installment

  	
   

  
	
  June 30, 2009

  	
   

  	
  $

  	
  4,312,500

  	
   

  
	
  September 30, 2009

  	
   

  	
  $

  	
  4,312,500

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  4,312,500

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  4,312,500

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  5,750,000

  	
   

  
	
  September 30, 2010

  	
   

  	
  $

  	
  5,750,000

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  5,750,000

  	
   

  
	
  March 31, 2011

  	
   

  	
  $

  	
  5,750,000

  	
   

  
	
  June 30, 2011

  	
   

  	
  $

  	
  5,750,000

  	
   

  
	
  September 30, 2011

  	
   

  	
  $

  	
  5,750,000

  	
   

  
	
  December 31, 2011

  	
   

  	
  $

  	
  5,750,000

  	
   

  
	
  March 31, 2012

  	
   

  	
  $

  	
  5,750,000

  	
   

  
	
  June 30, 2012

  	
   

  	
  $

  	
  7,187,500

  	
   

  
	
  September 30, 2012

  	
   

  	
  $

  	
  7,187,500

  	
   

  
	
  December 31, 2012

  	
   

  	
  $

  	
  7,187,500

  	
   

  
	
  March 31, 2013

  	
   

  	
  $

  	
  7,187,500

  	
   

  
	
  June 30, 2013

  	
   

  	
  $

  	
  7,187,500

  	
   

  
	
  September 30, 2013

  	
   

  	
  $

  	
  7,187,500

  	
   

  
	
  December 31, 2013

  	
   

  	
  $

  	
  7,187,500

  	
   

  
	
  March 28, 2014

  	
   

  	
  $

  	
  116,437,500

  	
   

  



 


The final installment shall in all events equal the
entire remaining principal balance of the Acquisition Term Loan.  Notwithstanding the foregoing, the
outstanding principal balance of the Acquisition Term Loan shall be due and
payable in full on the Term Loan Maturity Date. 
Amounts borrowed under this Section 1.1(a)(ii) and
repaid may not be reborrowed.


 


The
Acquisition Term Loan shall be evidenced by promissory notes substantially in
the form of Exhibit 1.1(a)(ii) (as amended, modified,
extended, substituted or replaced from time to time, each a “Acquisition
Term Note” and, collectively, the “Acquisition Term Notes”), and,
except as provided in Section 1.7, Borrower shall execute and
deliver each Acquisition Term Note to the applicable Acquisition Term
Lender.  Each Acquisition Term Note shall
represent the obligation of Borrower to pay the amount of the applicable
Acquisition Term Lender’s Acquisition Term Loan Commitment, together with
interest thereon.


 


(b)           Revolving Loans.


 


(i)            Subject to
the terms and conditions of this Agreement and in reliance upon the
representations and warranties of Holdings and Borrower contained herein, each
Revolving Lender agrees, severally and not jointly, to make available to
Borrower from time to time until the Commitment Termination Date its Pro Rata
Share of advances (each a


 


3

















 


“Revolving
Credit Advance”) requested by Borrower hereunder.  The Pro Rata Share of the Revolving Loan of
any Revolving Lender (including, without duplication, Swing Line Loans) shall
not at any time exceed its separate Revolving Loan Commitment. Revolving Credit
Advances may be repaid and reborrowed; provided, that the amount of any
Revolving Credit Advance to be made at any time shall not exceed Borrowing
Availability.  All Revolving Loans shall
be repaid in full on the Commitment Termination Date.  Borrower shall execute and deliver to each
Revolving Lender a note to evidence the Revolving Loan Commitment of that
Revolving Lender.  Each note shall be in
the maximum principal amount of the Revolving Loan Commitment of the applicable
Revolving Lender substantially in the form of Exhibit 1.1(b)(i) (as
amended, modified, extended, substituted or replaced from time to time, each a “Revolving
Note” and, collectively, the “Revolving Notes”).  Revolving Loans which are Index Rate Loans
may be requested in any amount by written notice delivered by 11:00 a.m. (New York time)  one (1) Business Day prior to such funding for funding
requests equal to or greater than $5,000,000. 
For funding requests for such Loans less than $5,000,000, written notice
must be provided by 11:00 a.m.
(New York time)  on the
Business Day on which the Loan is to be made. 
All LIBOR Loans require three (3) Business Days prior written
notice which notice must be received by 11:00 a.m.
(New York time) on such date. Written notices for funding requests shall
be in the form attached as Exhibit 1.1(b)(ii) (“Notice of
Revolving Credit Advance”).


 


(c)           Swing Line Facility.


 


(i)            Agent shall
notify the Swing Line Lender upon Agent’s receipt of any Notice of Revolving
Credit Advance.  Subject to the terms and
conditions hereof and in reliance upon the representations and warranties of
Holdings and Borrower contained herein, the Swing Line Lender may, in its
discretion, make available from time to time until the Commitment Termination
Date advances (each, a “Swing Line Advance”) in accordance with any such
notice.  The provisions of this Section 1.1(c) shall
not relieve Revolving Lenders of their obligations to make Revolving Credit
Advances under Section 1.1(b); provided that if the Swing Line
Lender makes a Swing Line Advance pursuant to any such notice, such Swing Line
Advance shall be in lieu of any Revolving Credit Advance that otherwise may be
made by Revolving Lenders pursuant to such notice.  The aggregate amount of Swing Line Advances
outstanding shall not exceed at any time the lesser of (A) the Swing Line
Commitment and (B) Borrowing Availability (“Swing Line Availability”).  Until the Commitment Termination Date,
Borrower may from time to time borrow, repay and reborrow under this Section 1.1(c).  Each Swing Line Advance shall be made
pursuant to a Notice of Revolving Credit Advance delivered by Borrower to Agent
in accordance with Section 1.1(b). 
Unless the Swing Line Lender has received at least one (1) Business
Day’s prior written notice from Requisite Revolving Lenders instructing it not
to make a Swing Line Advance, the Swing Line Lender shall, notwithstanding the
failure of any condition precedent set forth in Section 7.2, be
entitled to fund that Swing Line Advance, and to have each Revolving Lender
make Revolving Credit Advances in accordance with Section 1.1(c)(iii) or
purchase participating interests in accordance with Section 1.1(c)(iv).  Notwithstanding any other provision of this
Agreement or the other Loan Documents, the Swing Line Loan shall constitute an
Index Rate Loan.  Borrower shall repay
the aggregate outstanding principal amount of the Swing Line Loan upon demand
therefor by Agent. The entire unpaid


 


4

















 


balance
of the Swing Line Loan shall be immediately due and payable in full in
immediately available funds on the Commitment Termination Date if not sooner
paid in full.


 


(ii)           Borrower
shall execute and deliver to the Swing Line Lender a promissory note to
evidence the Swing Line Commitment.  Such
note shall be in the principal amount of the Swing Line Commitment of the Swing
Line Lender and substantially in the form of Exhibit 1.1(c) (as
amended, modified, extended, substituted or replaced from time to time, the “Swing
Line Note”).  The Swing Line Note
shall represent the obligation of Borrower to pay the amount of the Swing Line
Commitment or, if less, the aggregate unpaid principal amount of all Swing Line
Advances made to Borrower together with interest thereon as prescribed in Section 1.2.


 


(iii)          The Swing
Line Lender, at any time and from time to time in its sole and absolute
discretion, may on behalf of
Borrower (and Borrower hereby irrevocably authorizes the Swing Line Lender to
so act on its behalf) request each Revolving Lender (including the Swing Line
Lender) to make a Revolving Credit Advance to Borrower (which shall be an Index
Rate Loan) in an amount equal to that Revolving Lender’s Pro Rata Share of the
principal amount of the Swing Line Loan (the “Refunded Swing Line Loan”)
outstanding on the date such notice is given. 
Unless any of the events described in Sections 6.1(f) and 6.1(g) has
occurred (in which event the procedures of Section 1.1(c)(iv) shall
apply) and regardless of whether the conditions precedent set forth in this
Agreement to the making of a Revolving Credit Advance are then satisfied, each
Revolving Lender shall disburse directly to Agent, its Pro Rata Share of a
Revolving Credit Advance on behalf of the Swing Line Lender, prior to 3:00 p.m.
(New York time), in immediately available funds on the Business Day next
succeeding the date that notice is given. 
The proceeds of those Revolving Credit Advances shall be immediately
paid to the Swing Line Lender and applied to repay the Refunded Swing Line
Loan.


 


(iv)          If, prior to
refunding a Swing Line Loan with a Revolving Credit Advance pursuant to Section 1.1(c)(iii),
one of the events described in Sections 6.1(f) or 6.1(g) has
occurred, then, subject to the provisions of Section 1.1(c)(v) below,
each Revolving Lender shall, on the date such Revolving Credit Advance was to
have been made for the benefit of Borrower, purchase from the Swing Line Lender
an undivided participation interest in the Swing Line Loan in an amount equal
to its Pro Rata Share (determined with respect to Revolving Loans) of such
Swing Line Loan.  Upon request, each Revolving
Lender shall promptly transfer to the Swing Line Lender, in immediately
available funds, the amount of its participation interest.


 


(v)           Each
Revolving Lender’s obligation to make Revolving Credit Advances in accordance
with Section 1.1(c)(iii) and to purchase participation
interests in accordance with Section 1.1(c)(iv) shall be
absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
that such Revolving Lender may have against the Swing Line Lender, Borrower or
any other Person for any reason whatsoever; (B) the occurrence or
continuance of any Default or Event of Default; (C) any inability of
Borrower to satisfy the conditions precedent to borrowing set forth in this
Agreement at any time or (D) any other circumstance, happening or event
whatsoever,


 


5

















 


whether
or not similar to any of the foregoing. 
Swing Line Lender shall be entitled to recover, on demand, from each
Revolving Lender the amounts required pursuant to Sections 1.1.(c)(iii) or
1.1(c)(iv), as the case may be.  If
any Revolving Lender does not make available such amounts to Agent or the Swing
Line Lender, as applicable, the Swing Line Lender shall be entitled to recover
such amount on demand from such Revolving Lender, together with interest
thereon for each day from the date of non-payment until such amount is paid in
full at the Federal Funds Rate for the first two Business Days and at the Index
Rate thereafter.


 


(d)           Letters of
Credit.  (i) Subject to
the terms and conditions of this Agreement and in reliance upon the
representations and warranties of Holdings and Borrower contained herein, the
Revolving Loan Commitment may, in addition to advances under the Revolving
Loan, be utilized, upon the request of Borrower, for the issuance of Letters of
Credit.  On the terms and subject to the
conditions contained herein, each L/C Issuer agrees to Issue, at the request of
Borrower, in accordance with such L/C Issuer’s usual and customary business
practices, Letters of Credit (denominated in Dollars) from time to time on any
Business Day during the period from the Restatement Date through the earlier of
the Commitment Termination Date and 7 days prior to the date specified in
clause (a) of the definition of Commitment Termination Date; provided,
however, that such L/C Issuer shall not be under any obligation to Issue any
Letter of Credit upon the occurrence of any of the following, after giving
effect to such Issuance:


 


(A)          the aggregate
outstanding principal balance of Revolving Loans would exceed the Maximum
Revolving Loan Balance or the Letter of Credit Obligations for all Letters of
Credit would exceed $5,000,000  (the “L/C
Sublimit”);


 


(B)           the expiration date
of such Letter of Credit (1) is not a Business Day, (2) is more than
one year after the date of issuance thereof or (3) is later than 7 days
prior to the date specified in clause (a) of the definition of Commitment
Termination Date; provided, however, that any Letter of Credit with a term not
exceeding one year may provide for its renewal for additional periods not
exceeding one year as long as (x) each of Borrower and such L/C Issuer
have the option to prevent such renewal before the expiration of such term or
any such period and (y) neither such L/C Issuer nor Borrower shall permit
any such renewal to extend such expiration date beyond the date set forth in
clause (3) above; or


 


(C)           (1) any fee
due in connection with, and on or prior to, such Issuance has not been paid, (2) such
Letter of Credit is requested to be issued in a form that is not acceptable to
such L/C Issuer or (3) such L/C Issuer shall not have received, each in
form and substance reasonably acceptable to it and duly executed by Borrower (and,
if such Letter of Credit is issued for the account of any Subsidiary of
Borrower, such Person), the documents that such L/C Issuer generally uses in
the ordinary course of its business for the Issuance of letters of credit of
the type of such Letter of Credit (collectively, the “L/C Reimbursement
Agreement”).


 


6

















 


(D)          For each such
Issuance, the applicable L/C Issuer may, but shall not be required to,
determine that, or take notice whether, the conditions precedent set forth in Section 7.2
have been satisfied or waived in connection with the Issuance of any Letter of
Credit; provided, however, that no Letter of Credit shall be Issued during the
period starting on the first Business Day after the receipt by such L/C Issuer
of notice from Agent or the Required Revolving Lenders that any condition
precedent contained in Section 7.2 is not satisfied and ending on
the date all such conditions are satisfied or duly waived.


 


(E)           Immediately upon
the issuance by an L/C Issuer of a Letter of Credit, and without further action
on the part of Agent or any of the Lenders, each Revolving Lender shall be
deemed to have purchased from such L/C Issuer a participation in such Letter of
Credit (or in its obligation under a risk participation agreement with respect
thereto) equal to such Revolving Lender’s Pro Rata Share of the aggregate
amount available to be drawn under such Letter of Credit.


 


(ii)           Reimbursement.  Borrower shall be irrevocably and
unconditionally obligated forthwith without presentment, demand, protest or
other formalities of any kind, to reimburse any L/C Issuer on demand in
immediately available funds for any amounts paid by such L/C Issuer with
respect to a Letter of Credit, including all reimbursement payments, reasonable
fees, Charges, and reasonable costs and expenses paid by such L/C Issuer.  Borrower hereby authorizes and directs Agent,
at Agent’s option, to debit Borrower’s account (by increasing the outstanding
principal balance of the Revolving Credit Advances or Swing Line Advances) in
the amount of any payment made by an L/C Issuer with respect to any Letter of
Credit.  All amounts paid by an L/C
Issuer with respect to any Letter of Credit that are not repaid by Borrower on
such Business Day with the proceeds of a Revolving Credit Advance, Swing Line
Advance or otherwise shall bear interest payable upon demand at the interest
rate applicable to Revolving Loans which are Index Rate Loans plus, at the
election of Requisite Revolving Lenders, an additional two percent (2.00%) per
annum.  Each Revolving Lender agrees to
fund its Pro Rata Share of any Revolving Loan made pursuant to this Section 1.1(d)(ii).  In the event Agent elects not to debit
Borrower’s account and Borrower fails to reimburse the L/C Issuer in full on
the date of any payment in respect of a Letter of Credit, Agent shall promptly
notify each Revolving Lender of the amount of such unreimbursed payment and the
accrued interest thereon and each Revolving Lender, on the next Business Day
prior to  3:00 p.m. (New York time), shall deliver to Agent an amount
equal to its Pro Rata Share thereof in same day funds.  Each Revolving Lender hereby absolutely and
unconditionally agrees to pay to the L/C Issuer upon demand by the L/C Issuer
such Revolving Lender’s Pro Rata Share of each payment made by the L/C Issuer
in respect of a Letter of Credit and not immediately reimbursed by Borrower or
satisfied through a debit of Borrower’s account.  Each Revolving Lender acknowledges and agrees
that its obligations pursuant to this subsection in respect of Letters of
Credit are absolute and unconditional and shall not be affected by any
circumstance whatsoever, including setoff, counterclaim, the occurrence and
continuance of a Default or an Event of Default or any failure by Borrower to
satisfy any of the conditions set forth in Section 7.2.  If any Revolving Lender fails to make
available to the L/C Issuer the amount of such Revolving Lender’s Pro Rata
Share of any payments made by the L/C Issuer in respect of a Letter of Credit 


 


7

















 


as
provided in this Section 1.1(d)(ii), the L/C Issuer shall be
entitled to recover such amount on demand from such Revolving Lender together
with interest at the Index Rate.


 


(iii)          Request for
Letters of Credit. 
Borrower shall give Agent at least three (3) Business Days prior
written notice specifying the date a Letter of Credit is requested to be
issued, the amount and the name and address of the beneficiary and a
description of the transactions proposed to be supported thereby and the expiry
date (or extended expiry date) of the Letter of Credit.  Each request by Borrower for the issuance of
a Letter of Credit shall be in the form of Exhibit 1.1(d).  If Agent informs Borrower that the L/C Issuer
cannot issue the requested Letter of Credit directly, Borrower may request that
L/C Issuer arrange for the issuance of the requested Letter of Credit under a
risk participation agreement with another financial institution reasonably
acceptable to Agent, L/C Issuer and Borrower. 
The issuance of any Letter of Credit under this Agreement shall be
subject to satisfaction of the conditions set forth in Section 7.2
and the conditions that the Letter of Credit (i) supports a transaction
entered into in the ordinary course of business of Borrower or another
transaction permitted by the terms of this Agreement benefiting Borrower or any
of its wholly-owned Subsidiaries and (ii) is in a form, is for an amount
and contains such terms and conditions as are reasonably satisfactory to the
L/C Issuer and, in the case of standby letters of credit, Agent.  The initial notice requesting the issuance of
a Letter of Credit shall be accompanied by the form of the Letter of Credit and
an application for a letter of credit, if any, then required by the L/C Issuer
completed in a manner reasonably satisfactory to such L/C Issuer.  If any provision of any application or
reimbursement agreement is inconsistent with the terms of this Agreement, then
the provisions of this Agreement, to the extent of such inconsistency, shall
control.


 


(iv)          Obligations
Absolute.  The obligation of
Borrower to reimburse the L/C Issuer, Agent and Lenders for payments made in
respect of Letters of Credit issued by the L/C Issuer shall be unconditional
and irrevocable and shall be paid under all circumstances strictly in
accordance with the terms of this Agreement, including the following
circumstances: (a) any lack of validity or enforceability of any Letter of
Credit; (b) any amendment or waiver of or any consent or departure from
all or any of the provisions of any Letter of Credit or any Loan Document; (c) the
existence of any claim, set-off, defense or other right which Borrower, any of
its Subsidiaries or Affiliates or any other Person may at any time have against
any beneficiary of any Letter of Credit, Agent, any L/C Issuer, any Lender or
any other Person, whether in connection with this Agreement, any other Loan
Document or any other related or unrelated agreements or transactions; (d) any
draft or other document presented under any 
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect; (e) payment under any Letter of Credit against presentation
of a draft or other document that does not substantially comply with the terms
of such Letter of Credit; or (f) any other act or omission to act or delay
of any kind of any L/C Issuer, Agent, any Lender or any other Person or any
other event or circumstance whatsoever that might, but for the provisions of
this Section 1.1(d)(iv), constitute a legal or equitable discharge
of Borrower’s obligations hereunder. 
Without limiting the generality of the foregoing, it is expressly
understood and agreed by Borrower that the absolute and unconditional
obligation of Borrower to Agent and Lenders hereunder to reimburse payments
made under a Letter of Credit will not be excused by the gross negligence or
willful misconduct of the L/C Issuer.


 


8

















 


(v)           Obligations
of L/C Issuers. 
Each L/C Issuer agrees to provide Agent (which, after receipt, Agent
shall provide to each Revolving  Lender),
in form and substance satisfactory to Agent, each of the following on the
following dates: (A) (i) on or prior to any Issuance of any Letter of
Credit by such L/C Issuer, (ii) immediately after any drawing under any
such Letter of Credit or (iii) immediately after any payment (or failure
to pay when due) by Borrower of any related L/C Reimbursement Obligation,
notice thereof, which shall contain a reasonably detailed description of such
Issuance, drawing or payment; (B) upon the request of Agent (or any
Revolving Lender through Agent), copies of any Letter of Credit Issued by such
L/C Issuer and any related L/C Reimbursement Agreement and such other documents
and information as may reasonably be requested by Agent; (C) on the first
Business Day of each calendar week, a schedule of the Letters of Credit Issued
by such L/C Issuer, in form and substance reasonably satisfactory to Agent,
setting forth the Letter of Credit Obligations for such Letters of Credit
outstanding on the last Business Day of the previous calendar week; and (D) promptly
following request by Agent, such additional information reasonably
requested by Agent from time to time with respect to the Letters of Credit
issued by such L/C Issuer.


 


(vi)          Outstanding
Letters of Credit. 
The Letters of Credit outstanding on the Restatement Date and listed on Schedule
1.1(d) hereto (the “Existing Letters of Credit”) were issued
pursuant to the Existing Credit Agreement and were the only letters of credit
issued under the Existing Credit Agreement which were outstanding as of the
Restatement Date.  Borrower, Issuer and
each of the Lenders hereby agree with respect to the Existing Letters of Credit
that such Existing Letters of Credit, for all purposes under this Agreement,
including, without limitation, Sections 1.1(d)(i), (d)(ii) and
(d)(v), shall be deemed to be Letters of Credit governed by the terms
and conditions of this Agreement and for purposes of Section 1.3(c) hereof.  On the last day of the current term of any
Existing Letter of Credit which would otherwise be renewed (automatically or
otherwise) for one or more additional terms, such Existing Letter of Credit
shall be terminated and the Borrower shall, pursuant to the terms of this Section 1.1(d),
request that SunTrust, as L/C Issuer, issue a Letter of Credit hereunder to
replace such Existing Letter of Credit.


 


(e)           Funding
Authorization.  The proceeds
of all Loans made pursuant to this Agreement on and subsequent to the
Restatement Date are to be funded by Agent by wire transfer to the account
designated by Borrower below (the “Disbursement Account”):


 


	
  Bank:

  	
   

  	
  Chevy Chase Bank

  
	
  ABA No.:

  	
   

  	
  255071981

  
	
  Bank Address:

  	
   

  	
  6200 Chevy Chase
  Drive

  
	
   

  	
   

  	
  Laurel, MD 20707

  
	
  Account No.:

  	
   

  	
  500-431622-8

  
	
  Reference:

  	
   

  	
  To the account
  of Transaction Network Services, Inc.

  



 


Borrower shall provide Agent with written notice of
any change in the foregoing instructions at least three (3) Business Days
before the desired effective date of such change.


 


9
















 


1.2           Interest
and Applicable Margins.


 


(a)           Borrower shall pay interest to Agent,
for the ratable benefit of Lenders, in accordance with the various Loans being
made by each Lender (or in the case of the Swing Line Loan, for the benefit of
the Swing Line Lender), in arrears on each applicable Interest Payment Date, at
the following rates:  (i) with
respect to the Revolving Credit Advances which are designated as Index Rate
Loans (and for all other Obligations not otherwise set forth below), the Index
Rate plus the Applicable Revolver Index Margin per annum or, with respect to
Revolving Credit Advances which are designated as LIBOR Loans, the applicable
LIBOR Rate plus the Applicable Revolver LIBOR Margin per annum; (ii) with
respect to such portion of the Term Loans  designated as
Index Rate Loans, the Index Rate plus the Applicable Term Loan Index Margin per
annum or, with respect to such portion of the Term Loans designated as LIBOR
Loans, the applicable LIBOR Rate plus the Applicable Term Loan LIBOR Margin per
annum; and (iii) with respect to the Swing Line Loan, the Index Rate plus
the Applicable Revolver Index Margin per annum.


 


As of the Restatement Date,
the Applicable
Margins are as follows:


 


	
  Applicable
  Revolver Index Margin

  	
   

  	
  5.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Applicable Revolver
  LIBOR Margin

  	
   

  	
  6.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Applicable Term
  Loan Index Margin

  	
   

  	
  5.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Applicable Term
  Loan LIBOR Margin

  	
   

  	
  6.00

  	
  %

  



 


The Applicable Margins shall
be adjusted (up or down) prospectively on a quarterly basis as determined by
Holdings’ and its Subsidiaries’ consolidated financial performance, commencing
with the first day of the first calendar month that occurs more than one (1) day
after delivery of Borrower’s quarterly Financial Statements to Agent for the
Fiscal Quarter ending June 30, 2009. 
Adjustments in Applicable Margins will be determined by reference to the
following grids:


 


	
  If Leverage Ratio is:

  	
   

  	
  Level of

  Applicable Margins:

  	
   

  
	
  3 3.00

  	
   

  	
  Level I

  	
   

  
	
  3 2.50 and < 3.00

  	
   

  	
  Level II

  	
   

  
	
  3 2.00 and < 2.50

  	
   

  	
  Level III

  	
   

  
	
  < 2.00

  	
   

  	
  Level IV

  	
   

  



 


	
   

  	
   

  	
  Applicable Margins

  	
   

  
	
   

  	
   

  	
  Level I

  	
   

  	
  Level II

  	
   

  	
  Level III

  	
   

  	
  Level IV

  	
   

  
	
  Applicable
  Revolver Index Margin

  	
   

  	
  5.00

  	
  %

  	
  4.75

  	
  %

  	
  4.50

  	
  %

  	
  4.25

  	
  %

  
	
  Applicable
  Revolver LIBOR Margin

  	
   

  	
  6.00

  	
  %

  	
  5.75

  	
  %

  	
  5.50

  	
  %

  	
  5.25

  	
  %

  



 


10

















 


	
   

  	
   

  	
  Applicable Margins

  	
   

  
	
   

  	
   

  	
  Level I

  	
   

  	
  Level II

  	
   

  	
  Level III

  	
   

  	
  Level IV

  	
   

  
	
  Applicable Term
  Loan Index Margin

  	
   

  	
  5.00

  	
  %

  	
  5.00

  	
  %

  	
  5.00

  	
  %

  	
  5.00

  	
  %

  
	
  Applicable Term
  Loan LIBOR Margin

  	
   

  	
  6.00

  	
  %

  	
  6.00

  	
  %

  	
  6.00

  	
  %

  	
  6.00

  	
  %

  



 


All adjustments in the
Applicable Margins after June 30, 2009 shall be implemented quarterly on a
prospective basis, for each calendar quarter commencing at least one (1) day
after the date of delivery to Agent of the quarterly unaudited Financial
Statements evidencing the need for an adjustment.  Concurrently with the delivery of those Financial
Statements, Borrower shall deliver to Agent a certificate, signed by its chief
financial officer or other officer acceptable to Agent, setting forth in
reasonable detail the basis for the continuance of, or any change in, the
Applicable Margins.  Failure to timely
deliver such Financial Statements shall, in addition to any other remedy
provided for in this Agreement, result in an increase in the Applicable Margins
to the highest level set forth in the foregoing grid, until the first day
following the delivery of those Financial Statements demonstrating that such an
increase is not required.  If any Event
of Default has occurred and is continuing at the time any reduction in the
Applicable Margins is to be implemented, that reduction shall be deferred until
the first day following the date on which all Events of Default are waived or
cured.


 


(b)           If any payment on any Loan becomes
due and payable on a day other than a Business Day, the maturity thereof will
be extended to the next succeeding Business Day (except as set forth in the
definition of LIBOR Period) and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.


 


(c)           All computations of Fees calculated
on a per annum basis and interest shall be made by Agent on the basis of a
360-day year, other than computations of interest based on the Index Rate,
which shall be made by Agent on the basis of a 365/6-day year, in each case for
the actual number of days occurring in the period for which such Fees and
interest are payable.  The Index Rate is
a floating rate determined for each day. 
Each determination by Agent of an interest rate and Fees hereunder shall
be final, binding and conclusive on Borrower, absent manifest error.


 


(d)           So long as (i) an Event of
Default has occurred and is continuing under Section 6.1(a), (f) or
(g) and without notice of any kind, or (ii) any other Event of
Default has occurred and is continuing and at the election of Requisite Lenders
confirmed by written notice from Agent to Borrower, the interest rates
applicable to the Loans and the Letter of Credit Fee shall be increased by two percentage points (2%) per annum
above the rates of interest or the rate of such Fee otherwise applicable
hereunder (“Default Rate”), and all outstanding Obligations shall bear
interest at the Default Rate applicable to such Obligations.  Interest and Letter of Credit Fees at the
Default Rate shall accrue from either (A) in the case of Events of Default
described in clause (i) above, the date of the Event of Default or (B) in
the case of an Event of Default described in clause (ii) above, the date
such Lenders make the election referred to in the first sentence or, at the
option of the Requisite Lenders, the latest of (i) the initial date of
such Event of Default, (ii) the date thirty (30) days prior to the date of
election by the Requisite Lenders or (iii) the last day of the most
recently ended Fiscal Quarter of Holdings and shall 


 


11

















 


continue until that Event of Default is cured or waived and
shall be payable upon demand, but in any event, shall be payable on the next
regularly scheduled payment date set forth herein for such Obligation.


 


(e)           Borrower
shall have the option to (i) request that any Revolving Credit Advance be
made as a LIBOR Loan, (ii) convert at any time all or any part of
outstanding Loans (other than the Swing Line Loan) from Index Rate Loans to
LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan, subject
to payment of the LIBOR Breakage Fee in accordance with Section 1.3(d) if
such conversion is made prior to the expiration of the LIBOR Period applicable
thereto, or (iv) continue all or any portion of any Loan (other than the
Swing Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR
Period and the succeeding LIBOR Period of that continued Loan shall commence on
the first day after the last day of the LIBOR Period of the Loan to be
continued.  Any Loan or group of Loans
having the same proposed LIBOR Period to be made or continued as, or converted
into, a LIBOR Loan must be in a minimum amount of $5,000,000  and integral
multiples of $100,000 in excess
of such amount.  Any such election must
be made by 1:00 p.m. (New York
time) on the 3rd Business Day prior to (1) the date of any proposed
Revolving Credit Advance which is to bear interest at the LIBOR Rate, (2) the
end of each LIBOR Period with respect to any LIBOR Loans to be continued as
such, or (3) the date on which Borrower wishes to convert any Index Rate
Loan to a LIBOR Loan for a LIBOR Period designated by Borrower in such
election.  If no election is received
with respect to a LIBOR Loan by 1:00 p.m.
(New York time) on the 3rd Business Day prior to the end of the LIBOR
Period with respect thereto, that LIBOR Loan shall be converted to an Index
Rate Loan at the end of its LIBOR Period. 
Borrower must make such election by notice to Agent in writing, by fax
or overnight courier or based on telephonic instructions of Borrower (which instructions
shall be promptly confirmed in writing by Borrower).  In the case of any conversion or
continuation, such election must be made pursuant to a written notice (a “Notice
of Conversion/Continuation”) in the form of Exhibit 1.2(e).  No Loan shall be made, converted into or
continued as a LIBOR Loan, if an Event of Default has occurred and is
continuing and Requisite Lenders have determined not to make or continue any
Loan as a LIBOR Loan as a result thereof.


 


(f)            Notwithstanding any other provision
contained in this Agreement, after giving effect to any Borrowing, or to any
continuation or conversion of any Loans, there shall not be more than seven (7) different
LIBOR Periods in effect.


 


(g)           Notwithstanding anything to the
contrary set forth in this Section 1.2, if a court of competent
jurisdiction determines in a final order that the rate of interest payable
hereunder exceeds the highest rate of interest permissible under law (the “Maximum
Lawful Rate”), then so long as the Maximum Lawful Rate would be so
exceeded, the rate of interest payable hereunder shall be equal to the Maximum
Lawful Rate; provided, however, that if at any time thereafter
the rate of interest payable hereunder is less than the Maximum Lawful Rate,
Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate
until such time as the total interest received by Agent, on behalf of Lenders,
is equal to the total interest that would have been received had the interest
rate payable hereunder been (but for the operation of this paragraph) the
interest rate payable since the Restatement Date as otherwise provided in this 


 


12

















 


Agreement.  Thereafter,
interest hereunder shall be paid at the rate(s) of interest and in the
manner provided in Sections 1.2(a) through (f), unless and until
the rate of interest again exceeds the Maximum Lawful Rate, and at that time
this paragraph shall again apply.  In no
event shall the total interest received by any Lender pursuant to the terms hereof
exceed the amount that such Lender could lawfully have received had the
interest due hereunder been calculated for the full term hereof at the Maximum
Lawful Rate.  If the Maximum Lawful Rate
is calculated pursuant to this paragraph, such interest shall be calculated at
a daily rate equal to the Maximum Lawful Rate divided by the number of days in
the year in which such calculation is made. 
If, notwithstanding the provisions of this Section 1.2(g), a
court of competent jurisdiction shall determine by a final, non-appealable
order that a Lender has received interest hereunder in excess of the Maximum
Lawful Rate, Agent shall, to the extent permitted by applicable law, promptly
apply such excess as specified in Section 1.5(e) and
thereafter shall refund any excess to Borrower or as such court of competent
jurisdiction may otherwise order.


 


1.3           Fees.


 


(a)           Fee Letter.  Borrower shall pay to SunTrust, individually,
the Fees specified in that certain fee letter dated as of February 20, 2009 among Borrower, SunTrust Robinson Humphrey, Inc. and SunTrust (the “SunTrust
Fee Letter”), at the times specified for payment therein.


 


(b)           Unused Line
Fee.  As additional
compensation for the Revolving Lenders, Borrower shall pay to Agent, for the
ratable benefit of such Lenders, in arrears, on the first Business Day of each
Fiscal Quarter prior to the Commitment Termination Date and on the Commitment
Termination Date, a fee for Borrower’s non-use of available funds (the “Applicable
Unused Line Fee”) in an amount equal to the Applicable Unused Line Fee
Margin per annum as determined below multiplied by the difference between (x) the
Maximum Amount (as it may be reduced from time to time) and (y) the
average for the period of the daily closing balances of the Revolving Loan and
the Swing Line Loan outstanding during the period for which such Applicable
Unused Line Fee is due.  As of the
Restatement Date, the Applicable Unused Line Fee Margin is 0.50%.  The
Applicable Unused Line Fee Margin shall be adjusted (up or down) prospectively
on a quarterly basis as determined by Holdings’ and its Subsidiaries’
consolidated financial performance, commencing with the first day of the first
calendar month that occurs more than one (1) day after delivery of
Borrower’s quarterly Financial Statements to Agent for the Fiscal Quarter
ending June 30, 2009.  Adjustments
in Applicable Unused Line Fee Margin will be determined by reference to the
following grids:


 


	
  If Leverage Ratio is:

  	
   

  	
  Level of

  Applicable Unused Line Fee Margins:

  	
   

  
	
  < 2.0

  	
   

  	
  Level I

  	
   

  
	
  3 2.0

  	
   

  	
  Level II

  	
   

  



 


	
   

  	
   

  	
  Level I

  	
   

  	
  Level II

  	
   

  
	
  Applicable
  Unused Line Fee Margin

  	
   

  	
  0.375

  	
  %

  	
  0.50

  	
  %

  



 


13

















 


All adjustments in the Applicable Unused Line Fee
Margin after June 30, 2009 shall be implemented quarterly on a prospective
basis, for each calendar quarter commencing at least one (1) day after the
date of delivery to Agent of the quarterly unaudited Financial Statements
evidencing the need for an adjustment. 
Concurrently with the delivery of those Financial Statements, Borrower
shall deliver to Agent a certificate, signed by its chief financial officer or
another officer acceptable to Agent, setting forth in reasonable detail the
basis for the continuance of, or any change in, the Applicable Unused Line Fee
Margin.  Failure to timely deliver such
Financial Statements shall, in addition to any other remedy provided for in
this Agreement, result in an increase in the Applicable Unused Line Fee Margin
to the highest level set forth in the foregoing grid, until the first day
following the delivery of those Financial Statements demonstrating that such an
increase is not required.  If any Event
of Default has occurred and is continuing at the time any reduction in the
Applicable Unused Line Fee Margin is to be implemented, that reduction shall be
deferred until the first day following the date on which all Events of Default
are waived or cured.


 


(c)           Letter
of Credit Fees.  Borrower agrees to pay to Agent (i) for
the benefit of each L/C Issuer with respect to each outstanding Letter of
Credit issued by such L/C Issuer, a fronting fee in an amount
equal to 0.25% multiplied
by the maximum amount available from time to time to be drawn under each such
Letter of Credit, (ii) for the benefit of Revolving Lenders and without
duplication of costs and expenses otherwise payable to Agent or Lenders
hereunder, all reasonable costs and expenses incurred by Agent or any Lender on
account of such Letter of Credit Obligations, and (iii) for the benefit of
Revolving Lenders for each month during which any Letter of Credit Obligation
shall remain outstanding, a fee (the “Letter of Credit Fee”) in an
amount equal to the Applicable Revolver
LIBOR Margin from time to time in effect multiplied by the maximum
amount available from time to time to be drawn under the applicable Letter of
Credit.  Such fees shall be paid to Agent
for the benefit of the L/C Issuers and Revolving Lenders, as the case may be,
in arrears, on the first Business Day of each Fiscal Quarter and on the
Commitment Termination Date.  In
addition, Borrower shall pay to any L/C Issuer, on demand, such fees (including
all per annum fees), charges and expenses of such L/C Issuer in respect of the
issuance, negotiation, acceptance, amendment, transfer and payment of such
Letter of Credit or otherwise payable pursuant to the application and related
documentation under which such Letter of Credit is issued.


 


(d)           LIBOR
Breakage Fee.  Upon (i) any
failure by Borrower to make any borrowing of, or to convert or continue any
LIBOR Loan following Borrower’s delivery to Agent of any LIBOR Loan request in
respect thereof, or (ii) any payment of a LIBOR Loan on any day that is
not the last day of the LIBOR Period applicable thereto (regardless of the
source of such prepayment and whether voluntary, by acceleration or otherwise),
Borrower shall pay Agent, for the benefit of all Lenders that funded or were
prepared to fund any such LIBOR Loan, the LIBOR Breakage Fee.


 


(e)           Expenses
and Attorneys Fees.  Any action taken
by any Credit Party under or with respect to any Loan Document shall be at the
expense of such Credit Party, and neither 


 


14

















 


any Co-Administrative Agent nor any other Secured
Party shall be required under any Loan Document to reimburse any Credit Party
or any Subsidiary of any Credit Party therefor except as expressly provided
therein.  Borrower agrees to promptly pay
all reasonable out-of-pocket fees, charges, costs and expenses incurred by a
Co-Administrative Agent in connection with any matters contemplated by or
arising out of the Loan Documents, in connection with the examination, review,
due diligence investigation, documentation, negotiation, closing or syndication
of the transactions contemplated herein and in connection with the continued
administration of the Loan Documents including any amendments, modifications,
terminations, consents and waivers, any other document prepared in connection
therewith or the consummation and administration of any transaction
contemplated therein, in each case including reasonable attorneys’ fees and
expenses.  Borrower agrees to promptly
pay all reasonable fees, charges, costs and expenses (including reasonable
fees, charges, costs and expenses of attorneys, auditors (whether internal or
external), appraisers, consultants and advisors) incurred by a
Co-Administrative Agent in connection with any amendment, waiver, consent with
respect to the Loan Documents, Event of Default, work-out or action to enforce
any Loan Document or to collect any payments due from Borrower or any of its
Subsidiaries.  In addition, in connection
with any work-out or action to enforce any Loan Document or to collect any
payments due from Borrower or any of its Subsidiaries, Borrower agrees to
promptly pay all reasonable fees, charges, costs and expenses incurred by
Lenders, including, without limitation, reasonable attorney fees for one (1) counsel
acting for all Lenders other than Co-Administrative Agents.  All fees, charges, costs and expenses for
which Borrower is responsible under this Section 1.3(e) shall
be deemed part of the Obligations when incurred, payable upon demand or in
accordance with the final sentence of Section 1.4 and secured by
the Collateral.


 


1.4           Payments.  All payments by Borrower of the Obligations
shall be without deduction, defense, setoff or counterclaim and shall be made
in Dollars in same day funds and, except as expressly provided in Section 1.1(d)(ii),
delivered to Agent, for the benefit of Co-Administrative Agents and Lenders, as
applicable, by wire transfer to the following account or such other place as
Agent may from time to time designate in writing.


 


Sun Trust Bank


ABA#: 
061-000-104


Credit: 
Agency Services Operating Account


Acct
#:  1000022220783


Attn: 
Agency Services


Reference: 
Transaction Network Services, Inc.


 


Borrower shall receive
credit on the day of receipt for funds received by Agent by 2:00 p.m. (New
York time).  In the absence of timely
receipt, such funds shall be deemed to have been paid on the next Business
Day.  Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day, the
payment may be made on the next succeeding Business Day and such extension of
time shall be included in the computation of the amount of interest and Fees
due hereunder.


 


15

















 


Borrower hereby
authorizes Lenders to, and Lenders may, make Revolving Credit Advances or Swing
Line Advances, on the basis of their Pro Rata Shares, for the payment of
Scheduled Installments, interest, Fees and expenses, Letter of Credit
reimbursement obligations and any amounts required to be deposited with respect
to outstanding Letter of Credit Obligations pursuant to Sections 1.5(f) or
6.3. Upon the making of such Revolving Credit Advances or Swing Line
Advances the Borrower shall be deemed to have made the representations and
reaffirmations set forth in the last sentence of Section 7.2 upon the
making thereof.


 


1.5           Prepayments.


 


(a)           Voluntary Prepayments of Loans.  At any time, Borrower may prepay the Loans,
in whole or in part, without premium or penalty subject to the payment of  (i) LIBOR Breakage Fees, if applicable and (ii) the
Prepayment Premium (as defined below), if applicable.  If Borrower prepays a Term Loan in whole or
in part at any time prior to the first anniversary of the Restatement Date with
the proceeds directly or indirectly of first lien debt financing containing
terms similar to the terms governing the facilities set forth in Section 1.1
hereof, then, at the time of such prepayment, Borrower shall pay to Agent for
the ratable benefit of the applicable Term Lenders a prepayment premium equal
to 1.00% times the principal amount of the Term Loans so prepaid (the “Prepayment
Premium”).  Prepayments of the Loans
under this Section 1.5(a) shall be applied first to any fees owed as a result of such prepayment
and then as directed by Borrower.


 


(b)           Prepayments from Excess Cash Flow.  If Holdings’ Leverage Ratio at the end of any
Fiscal Year is greater than 1.50 to 1.00 (determined by reference to the
Compliance, Pricing and Excess Cash Flow Certificate delivered pursuant to Section 4.4(l) for
such Fiscal Year), commencing with the Fiscal Year ended December 31,
2009, within five (5) Business Days after such certificate is required to
be delivered, Borrower shall prepay the Loans in an amount equal to (i) 50%
of Excess Cash Flow for such Fiscal Year if the Leverage Ratio is greater than
2.00 to 1.00 or (ii) 25% of the Excess Cash Flow for such Fiscal Year if
the Leverage Ratio is less than or equal to 2.00 to 1.00 and is greater than
1.50 to 1.00, in each case, minus voluntary prepayment of Term Loans made
during such Fiscal Year; provided, that in no event will the prepayment
required hereunder exceed Domestic Cash Availability.  Prepayments under this Section 1.5(b) shall
be applied first to Scheduled Installments of principal of the Term Loans on a
pro rata basis until the Term Loans are paid in full, and second to reduce the
outstanding principal balance of the Revolving Loans, with concurrent permanent
reduction of the Revolving Loan Commitment if and to the extent a Default or
Event of Default has occurred and is continuing at the time of such prepayments.


 


(c)           Prepayments from Asset
Dispositions.  Immediately upon
receipt of any Net Proceeds from an Asset Disposition or sale-leaseback
transaction in either case in excess of $2,000,000 for any single transaction or series of related transactions during any
Fiscal Year, Borrower shall apply such Net Proceeds first to Scheduled Installments of principal
of the Term Loans on a pro rata basis until the Term Loans are paid in full,
and second to reduce the outstanding principal balance of the Revolving Loans,
with concurrent permanent reduction of 


 


16

















 


the Revolving Loan Commitment if and to
the extent a Default or Event of Default has occurred and is continuing at the
time of such prepayments.  Notwithstanding the foregoing so long as no
Event of Default exists at the time of receipt of such Net Proceeds, Borrower
or any Subsidiary may reinvest all remaining Net Proceeds of an Asset
Disposition or sale-leaseback transaction within one hundred eighty (180) days
(or in the case of Net Proceeds received in respect of the loss, damage,
destruction, casualty or condemnation of any assets of Borrower or its
Subsidiaries, two hundred seventy (270) days) in productive fixed assets of a
kind then used or usable in the business of Borrower or its Subsidiaries.  If Borrower does not intend to so reinvest
such Net Proceeds or if the applicable period set forth in the immediately
preceding sentence expires without Borrower having reinvested such Net
Proceeds, Borrower shall prepay the Term Loans in an amount equal to such
remaining Net Proceeds applied first to Scheduled Installments of
principal of the Term Loans on a pro rata basis until the Term Loans are paid
in full, and second to reduce the outstanding principal balance of the
Revolving Loans, with concurrent permanent reduction of the Revolving Loan Commitment
if and to the extent a Default or Event of Default has occurred and is
continuing at the time of such prepayments.


 


(d)           Reserved.


 


(e)           All Prepayments.  Considering each type of Loan being prepaid
separately, any such prepayment shall be applied first to Index Rate Loans of
the type required to be prepaid before application to LIBOR Loans of the type
required to be prepaid, in each case in a manner which minimizes any resulting
LIBOR Breakage Fee.


 


(f)            Letter of Credit Obligations.  In the event any Letters of Credit are
outstanding at the time that the Revolving Loan Commitment is terminated,
Borrower shall deposit with Agent for the benefit of all Revolving Lenders cash
in an amount equal to 105% of the aggregate outstanding Letter of Credit Obligations
to be available to Agent to reimburse payments of drafts drawn under such
Letters of Credit and pay any Fees and expenses related thereto.


 


1.6           Maturity.


 


(a)           The principal amount of the Term
Loans shall be paid in installments in the amounts and on the dates set forth
in Section 1.1(a) hereof.


 


(b)           Borrower shall repay to the Lenders
in full on the date specified in clause (a) of the definition of “Commitment
Termination Date” the aggregate principal amount of the Revolving Loan and
Swing Line Loans outstanding on such date.


 


(c)           All of the Obligations shall become
due and payable as otherwise set forth herein, but in any event all of the
remaining Obligations shall become due and payable upon the Term Loan Maturity
Date.  Until the Termination Date, Agent
shall be entitled to retain the Liens on the Collateral granted under the
Collateral Documents and the ability to exercise all rights and remedies
available to it under applicable laws and Co-Administrative Agents shall be
entitled to retain their respective abilities to exercise all rights and
remedies available to them under the Loan Documents.  Notwithstanding anything contained in this
Agreement to the contrary, upon 


 


17

















 


any termination of the Revolving Loan Commitment, all of the
Obligations shall be due and payable.


 


1.7           Loan Accounts.


 


(a)           Agent, on behalf of the Lenders,
shall record on its books and records the amount of each Loan made, the
interest rate applicable, all payments of principal and interest thereon and
the principal balance thereof from time to time outstanding.  Agent shall deliver to Borrower on a monthly
basis a loan statement setting forth such record for the immediately preceding
month.  Unless Borrower notifies Agent in
writing of any objection to any such accounting (specifically describing the
basis for such objection) within forty-five (45) days after the date thereof,
such record shall, absent manifest error, be conclusive evidence of the amount
of the Loans made by the Lenders to Borrower and the interest and payments
thereon.  Any failure to so record or any
error in doing so, or any failure to deliver such loan statement shall not,
however, limit or otherwise affect the obligation of Borrower hereunder (and
under any Note) to pay any amount owing with respect to the Loans or provide
the basis for any claim against Agent.


 


(b)           Agent, acting as agent of Borrower
solely for tax purposes and solely with respect to the actions described in
this Section 1.7(b), shall establish and maintain at its address
referred to in Section 9.3 (or at such other address as Agent may
notify Borrower) (A) a record of ownership (the “Register”) in which Agent
agrees to register by book entry the interests (including any rights to receive
payment hereunder) of Agent, each Lender and each L/C Issuer in the Term Loans,
Revolving Loans, Swing Loans and Letter of Credit Obligations, each of their
obligations under this Agreement to participate in each Loan, Letter of Credit
and L/C Reimbursement Obligations, and any assignment of any such interest,
obligation or right and (B) accounts in the Register in accordance with
its usual practice in which it shall record (1) the names and addresses of
the Lenders and the L/C Issuers (and each change thereto pursuant to Sections
8.1 and 9.20), (2) the Commitments of each Lender, (3) the
amount of each Loan and each funding of any participation described in clause (A) above,
for LIBOR Rate Loans, the Interest Period applicable thereto, (4) the
amount of any principal or interest due and payable or paid, (5) the
amount of the L/C Reimbursement Obligations due and payable or paid in respect
of Letters of Credit and (6) any other payment received by Agent from
Borrower and its application to the Obligations.


 


(c)           Notwithstanding anything to the
contrary contained in this Agreement, the Loans (including any Notes evidencing
such Loans and, in the case of Revolving Loans, the corresponding obligations
to participate in Letter of Credit Obligations and Swing Loans) and the Letter
of Credit reimbursement obligations are registered obligations, the right,
title and interest of the Lenders and the L/C Issuers and their assignees in
and to such Loans or Letter of Credit reimbursement obligations, as the case
may be, shall be transferable only upon notation of such transfer in the
Register and no assignment thereof shall be effective until recorded
therein.  This Section 1.7
and Section 8.1 shall be construed so that the Loans and Letter of
Credit reimbursement obligations are at all times maintained in “registered
form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of
the IRC.


 


18
















 


(d)           The
Credit Parties, Agent, the Lenders and the L/C Issuers shall treat each Person
whose name is recorded in the Register as a Lender or L/C Issuer, as
applicable, for all purposes of this Agreement. 
Information contained in the Register with respect to any Lender or any
L/C Issuer shall be available for access by Borrower, Agent, such Lender or
such L/C Issuer at any reasonable time and from time to time upon reasonable
prior notice.  No Lender or L/C Issuer shall,
in such capacity, have access to or be otherwise permitted to review any
information in the Register other than information with respect to such Lender
or L/C Issuer unless otherwise agreed by Agent.


 


1.8           Yield Protection; Illegality.


 


(a)           Capital Adequacy and Other
Adjustments.  In the event that any Lender shall have
determined that the adoption after the date which is the 180th day prior to the Restatement Date of any law,
treaty, governmental (or quasi-governmental) rule, regulation, guideline or
order regarding capital adequacy, reserve requirements or similar requirements
or compliance by any Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy, reserve requirements or
similar requirements (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful) from any central bank or
governmental agency or body having jurisdiction does or shall have the effect
of increasing the amount of capital, reserves or other funds required to be
maintained by such Lender or any corporation controlling such Lender and
thereby reducing the rate of return on such Lender’s or such corporation’s
capital as a consequence of its obligations hereunder, then Borrower shall from
time to time within fifteen (15) days after notice and demand from such Lender
(together with the certificate referred to in the next sentence and with a copy
to Agent) pay to Agent, for the account of such Lender, additional amounts
sufficient to compensate such Lender for such reduction; provided that the
respective Lender shall not be entitled to receive additional amounts pursuant
to this Section 1.8(a) for periods prior to the 180th day
before the receipt of such notice and demand. 
A certificate as to the amount of such cost and showing the basis of the
computation of such cost submitted by such Lender to Borrower and Agent shall,
absent manifest error, be final, conclusive and binding for all purposes.


 


(b)           Increased LIBOR Funding Costs;
Illegality.  Notwithstanding anything to the contrary contained
herein, if the introduction of or any change in any law, rule, regulation,
treaty or directive (or any change in the interpretation thereof) shall make it
unlawful, or any central bank or other Governmental Authority shall assert that
it is unlawful, for any Lender to agree to make or to make or to continue to
fund or maintain any LIBOR Loan, then, unless that Lender is able to make or to
continue to fund or to maintain such LIBOR Loan at another branch or office of
that Lender without, in that Lender’s opinion, adversely affecting it or its
Loans or the income obtained therefrom, on notice thereof and demand therefor
by such Lender to Borrower through Agent, (i) the obligation of such
Lender to agree to make or to make or to continue to fund or maintain LIBOR
Loans shall terminate and (ii) Borrower shall forthwith prepay in full all
outstanding LIBOR Loans owing to such Lender, together with interest accrued
thereon, unless Borrower, within five (5) Business Days after the
delivery of such notice and demand, converts all LIBOR Loans into Index Rate
Loans. If, after the date which is the 180th 


 


19

















 


day prior to the Restatement Date,
the introduction of, change in or interpretation of any law, rule, regulation,
treaty or directive would impose or increase reserve requirements (other than
as taken into account in the definition of LIBOR) and the result of any of the
foregoing is to increase the cost to Agent or any such Lender of issuing any
Letter of Credit or making or continuing any Loan hereunder, as the case may
be, or to reduce any amount receivable hereunder by such Agent or Lender, then
Borrower shall from time to time within fifteen (15) days after notice and
demand from Agent (together with the certificate referred to in the next
sentence) pay to Agent, for itself or for the account of all such affected
Lenders, as applicable, additional amounts sufficient to compensate Agent and
such Lenders for such increased cost or reduced amount.  A certificate as to the amount of such cost
and showing the basis of the computation of such cost submitted by Agent on
behalf of all such affected Lenders to Borrower shall, absent manifest error,
be final, conclusive and binding for all purposes.


 


(c)           Reserves on LIBOR Rate Loans. 
Borrower shall pay to each Lender, as long as such Lender shall be
required under regulations of the Federal Reserve Board to maintain reserves
with respect to liabilities or assets consisting of or including Eurocurrency
funds or deposits (currently known as “Eurocurrency liabilities”), additional
costs on the unpaid principal amount of each LIBOR Loan equal to actual costs
of such reserves allocated to such Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive absent
demonstrable error), payable on each date on which interest is payable on such
Loan provided Borrower shall have received at least fifteen (15) days’ prior
written notice (with a copy to Agent) of such additional interest from the
Lender.  If a Lender fails to give notice
fifteen (15) days prior to the relevant Interest Payment Date, such additional
interest shall be payable fifteen (15) days from receipt of such notice.


 


1.9           Taxes/Changes in Laws.


 


(a)           No Deductions. 
Any and all payments or reimbursements made hereunder or under any other
Loan Document shall be made free and clear of and without deduction for, and
Borrower agrees to indemnify Agent and each Lender against, any and all
Charges, taxes, levies, imposts, deductions or withholdings, and all
liabilities with respect thereto of any nature whatsoever imposed by any taxing
authority, excluding such taxes to the extent imposed on Agent’s or a Lender’s
net income by the United States or by the jurisdiction in which Agent or such
Lender is organized or otherwise conducts business.  If Borrower shall be required by law to
deduct any such amounts from or in respect of any sum payable hereunder to any
Lender or Agent, then the sum payable hereunder shall be increased as may be
necessary so that, after making all required deductions, such Lender or Agent
receives an amount equal to the sum it would have received had no such
deductions been made.  In addition,
Borrower agrees to pay, and authorizes Agent to pay in its name, any stamp,
documentary, excise or property tax, charges or similar levies imposed by any
applicable requirement of law or Governmental Authority and all liabilities
with respect thereto (including by reason of any delay in payment thereof), in
each case arising from the execution, delivery or registration of, or otherwise
with respect to, any Loan Document or any transaction contemplated therein
(collectively, “Other Taxes”).  Within 30
days after the date of any payment of Taxes or Other Taxes by any Credit Party,
Borrower 


 


20

















 


shall furnish to Agent, at its
address referred to in Section 9.3, the original or a certified
copy of a receipt evidencing payment thereof.


 


(b)           Changes in Law. 
In the event that, subsequent to the date which is the 90th day prior to the Restatement Date, (1) any
changes in any existing law, regulation, treaty or directive or in the
administration, interpretation or application thereof, (2) any new law,
regulation, treaty or directive enacted or any administration, interpretation
or application thereof, or (3) compliance by either Co-Administrative
Agent or any Lender with any request, guideline or directive (whether or not
having the force of law) from any Governmental Authority:


 


(i)            does or shall subject either
Co-Administrative Agent or any Lender to any tax of any kind whatsoever with
respect to this Agreement, the other Loan Documents or any Loans made or
Letters of Credit issued hereunder, or change the basis of taxation of payments
to either Co-Administrative Agent or any Lender of principal, fees, interest or
any other amount payable hereunder (except for net income taxes, or franchise
taxes imposed in lieu of net income taxes, imposed generally by federal, state
or local taxing authorities with respect to interest or commitment Fees or
other Fees payable hereunder or changes in the rate of tax on the overall net
income of such Co-Administrative Agent or such Lender); or


 


(ii)           does or shall impose on either
Co-Administrative Agent or any Lender any other condition or increased cost in
connection with the transactions contemplated hereby or participations herein;
and the result of any of the foregoing is to increase the cost to any such
Co-Administrative Agent or any such Lender of issuing or maintaining any Letter
of Credit or making or continuing any Loan hereunder, as the case may be, or to
reduce any amount receivable hereunder or under any other Loan Document, then,
in any such case, Borrower shall promptly pay to such Co-Administrative Agent
or such Lender, upon its demand, any additional amounts necessary to compensate
such Co-Administrative Agent or such Lender, on an after-tax basis, for such
additional cost or reduced amount receivable, as determined by such
Co-Administrative Agent or such Lender with respect to this Agreement or the
other Loan Documents.  If such
Co-Administrative Agent or such Lender becomes entitled to claim any additional
amounts pursuant to this Section 1.9(b), it shall promptly notify
Borrower of the event by reason of which such Co-Administrative Agent or such
Lender has become so entitled within 90 days of such event.  A certificate as to any additional amounts
payable pursuant to the foregoing sentence submitted by such Co-Administrative
Agent or such Lender to Borrower (with a copy to Agent, if applicable) shall,
absent manifest error, be final, conclusive and binding for all purposes.


 


(c)           Foreign Lenders. 
Prior to becoming a Lender under this Agreement on or prior to the date
on which any such form or certification expires or becomes obsolete, after the
occurrence of any event requiring a change in the most recent form or
certification previously delivered by it pursuant to this clause and within
fifteen (15) days after a reasonable written request of Borrower or Agent (or
in the case of an SPV or a participation, the relevant Lender) from time to
time thereafter, each such Person or Lender that is not in each case a “United
States person” (as such term is defined in IRC Section 7701(a)(30)) for
U.S. federal income tax purposes (a “Foreign Lender”) shall provide to
Borrower and Agent (and in the case of an SPV 


 


21

















 


or a participation, the relevant
Lender), if it is legally entitled to, two completed originals of each of the
following, as applicable:  (A) Forms
W-8ECI (claiming exemption from U.S. withholding tax because the income is
effectively connected with a U.S. trade or business), W-8BEN (claiming
exemption from, or a reduction of, U.S. withholding tax under an income tax
treaty) and/or W-8IMY or any successor forms, (B) in the case of a Foreign
Lender claiming exemption under Sections 871(h) or 881(c) of the
Code, Form W-8BEN (claiming exemption from U.S. withholding tax under the
portfolio interest exemption) or any successor form and a certificate in form
and substance acceptable to Agent that such Foreign Lender is not (1) a “bank”
within the meaning of Section 881(c)(3)(A) of the Code, (2) a “10
percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of
the Code or (3) a “controlled foreign corporation” described in Section 881(c)(3)(C) of
the Code or (C) any other applicable document prescribed by the IRS
certifying as to the entitlement of such Foreign Lender to such exemption from
United States withholding tax or reduced rate with respect to all payments to
be made to such Foreign Lender under the Loan Documents (a “Certificate of
Exemption”).  If a Foreign Lender is
entitled to an exemption with respect to payments to be made to such Foreign
Lender under this Agreement and does not provide a Certificate of Exemption to
Borrower and Agent within the time periods set forth in the preceding sentence,
Borrower shall withhold taxes from payments to such Foreign Lender at the applicable
statutory rates and Borrower shall not be required to pay any additional
amounts as a result of such withholding, provided that all such
withholding shall cease upon delivery by such Foreign Lender of a Certificate
of Exemption to Borrower and Agent.


 


(d)           U.S. Lenders. 
Each Lender other than a Foreign Lender shall (A) on or prior to
the date such Person becomes a Lender hereunder, (B) on or prior to the
date on which any such form or certification expires or becomes obsolete, (C) after
the occurrence of any event requiring a change in the most recent form or
certification previously delivered by it pursuant to this clause (d) and (D) from
time to time if requested by Borrower or Agent (or, in the case of a
participant or SPV, the relevant Lender), provide Agent and Borrower (and, in
the case of a participant or SPV, the relevant Lender) with two completed
originals of Form W-9 (certifying that such Lender is entitled to an
exemption from U.S. backup withholding tax) or any successor form.  Each Lender having sold a participation in
any of its Obligations or identified an SPV as such to Agent shall collect from
such participant or SPV the documents described in this clause (d) and
provide them to Agent.


 


SECTION 2.

AFFIRMATIVE COVENANTS


 


Each of Borrower and Holdings jointly and severally
agrees that from and after the date hereof and until the Termination Date:


 


2.1           Compliance With Laws
and Contractual Obligations. 
Holdings and Borrower will, and will cause each of Borrower’s
Subsidiaries to, (a) comply with (i) the requirements of all
applicable laws, rules, regulations and orders of any Governmental Authority
(including, without limitation, laws, rules, regulations and orders relating to
taxes, employer and employee 


 


22

















 


contributions,
securities, employee retirement and welfare benefits, environmental protection
matters and employee health and safety) as now in effect and which may be
imposed in the future in all jurisdictions in which Holdings, Borrower or any
of Borrower’s Subsidiaries is now doing business or may hereafter be doing
business and (ii) the obligations, covenants and conditions contained in
all Contractual Obligations of Holdings, Borrower or any of Borrower’s
Subsidiaries other than in the case of (i) or (ii) where such
noncompliance could not be reasonably expected to have, either individually or
in the aggregate, a Material Adverse Effect, and (b) maintain or obtain
all licenses, qualifications and permits now held or hereafter required to be
held by Holdings, Borrower or any of Borrower’s Subsidiaries, for which the
loss, suspension, revocation or failure to obtain or renew, could reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect.  This Section 2.1
shall not preclude Holdings, Borrower or any of Borrower’s Subsidiaries from
contesting any taxes or other payments so long as (x) they are being
diligently contested in good faith in a manner which stays enforcement thereof,
(y) if appropriate, expense provisions for such taxes or other payments
have been recorded in conformity with GAAP, subject to Section 3.2
and (z) no Lien (other than a Permitted Encumbrance) in respect thereof
has been created.


 


2.2           Insurance.  Holdings and Borrower will, and will cause
each of Borrower’s Subsidiaries to, maintain or cause to be maintained, with
financially sound and reputable insurers, public liability and property damage
insurance with respect to its business and properties and the business and
properties of its Subsidiaries against loss or damage of the kinds customarily
carried or maintained by corporations of established reputation engaged in
similar businesses and in amounts reasonably acceptable to Co-Administrative
Agents and will deliver evidence thereof to each Co-Administrative Agent.  Holdings and Borrower shall cause Agent,
pursuant to endorsements and/or assignments in form and substance reasonably
satisfactory to Co-Administrative Agents, to be named as lender’s loss payee in
the case of casualty insurance, additional insured in the case of all liability
insurance and assignee in the case of all business interruption insurance, if
any, in each case for the benefit of Co-Administrative Agents and Lenders.  In the event Holdings or any of its Subsidiaries
fails to provide Co-Administrative Agents with evidence of the insurance
coverage required by this Agreement, either Co-Administrative Agent may
purchase insurance at Holdings’ or Borrower’s expense to protect Agent’s
interests in the Collateral.  This
insurance may, but need not, protect the interests of Holdings or any of its
Subsidiaries.  The coverage purchased by
a Co-Administrative Agent may not pay any claim made by Holdings or any of its
Subsidiaries or any claim that is made against Holdings or any of its
Subsidiaries in connection with the Collateral. 
Holdings or Borrower may later cancel any insurance purchased by a
Co-Administrative Agent, but only after providing Co-Administrative Agents with
evidence that Holdings or Borrower has obtained insurance as required by this
Agreement.  If a Co-Administrative Agent
purchases insurance for the Collateral, Holdings and Borrower will be
responsible for the costs of that insurance, including interest and other
Charges imposed by such Co-Administrative Agent in connection with the
placement of the insurance, until the effective date of the cancellation or
expiration of the insurance.  The costs
of the insurance may be added to the Obligations.  The costs of the insurance may be more than
the cost of insurance Holdings or Borrower is able to obtain on its own.


 


23

















 


2.3           Inspection; Lender Meeting; Books
and Records.  (a)  Each of Holdings and Borrower will, and will cause
each of their Subsidiaries to, permit any authorized representatives of either
Co-Administrative Agent to visit, audit and inspect any of the properties of
Holdings, Borrower or any of their Subsidiaries, including such parties’
financial and accounting records, and to make copies and take extracts
therefrom, and to discuss such parties’ affairs, finances and business with
such parties’ officers and certified public accountants, at such reasonable
times during normal business hours and as often as may be reasonably requested
(collectively, a “Field Review”); provided that, unless a Default or
Event of Default has occurred and is continuing, (i) each
Co-Administrative Agent shall be limited to two (2) Field Reviews per
Fiscal Year and (ii) Borrower shall not be responsible for reimbursement
of a Co-Administrative Agent for the costs thereof for any Field Review of any
person that is not a Credit Party or for more than one (1) Field Review
per Fiscal Year of any Credit Party made by such Co-Administrative Agent.  Representatives of each Lender will be
permitted to accompany representatives of a Co-Administrative Agent during each
visit, inspection and discussion referred to in the immediately preceding
sentence.  Without in any way limiting
the foregoing, Holdings and Borrower will, and will cause each other Credit
Party to, participate and will cause key management personnel of each Credit
Party to participate in a meeting with Co-Administrative Agents and Lenders at
least once during each year, which meeting shall be held at such time and such
place as may be reasonably requested by mutual agreement of the
Co-Administrative Agents.


 


(b)           Each of Holdings and Borrower will,
and will cause each of their Subsidiaries to, keep proper  books
of record and account in which full, true and correct, in all material
respects, entries shall be made of all material dealings and transactions in
relation to its business and activities to the extent necessary to prepare the
consolidated financial statements of Holdings and its Subsidiaries in
conformity with GAAP.


 


2.4           Organizational
Existence.  Borrower will at all
times preserve and keep in full force and effect its organizational existence
and all rights and franchises material to its business.  Except as otherwise permitted by Section 3.6
or except as could not reasonably be expected to have a Material Adverse
Effect, Holdings will, and Borrower will cause each of Borrower’s Subsidiaries
to, at all times preserve and keep in full force and effect its organizational
existence and all rights and franchises material to its business.


 


2.5           Environmental
Matters.  Each of Holdings and
Borrower will, and will cause each of Borrower’s Subsidiaries and each other
Person within its control to: (a) conduct its operations and keep and
maintain its Real Estate in compliance with all Environmental Laws and
Environmental Permits other than noncompliance that could not reasonably be
expected to have a Material Adverse Effect; (b) implement any and all
investigation, remediation, removal and response actions that are appropriate or
necessary to maintain the value and marketability of the Real Estate or to
otherwise comply in all material respects with Environmental Laws and
Environmental Permits pertaining to the presence, generation, treatment,
storage, use, disposal, transportation or Release of any Hazardous Material on,
at, in, under, above, to, from or about any of its Real Estate; (c) notify
each Co-Administrative Agent promptly after such Person becomes aware of any
violation of Environmental Laws or Environmental Permits or any Release on, at,
in, under, above, to, from or about any Real Estate that is reasonably likely
to


 


24

















 


result in
Environmental Liabilities to Holdings, Borrower or any of Borrower’s
Subsidiaries in excess of $1,000,000;
and (d) promptly forward to each Co-Administrative Agent a copy of any
order, notice of actual or alleged violation or liability, request for
information or any communication or report received by such Person in
connection with any such violation or Release or any other matter relating to
any Environmental Laws or Environmental Permits that could reasonably be
expected to result in Environmental Liabilities to Holdings, Borrower or any of
Borrower’s Subsidiaries in excess of $1,000,000,
in each case whether or not the Environmental Protection Agency or any
Governmental Authority has taken or threatened any action in connection with
any such violation, Release or other matter. 
If Co-Administrative Agents at any time have a reasonable basis to believe
that there may be a violation of any Environmental Laws or Environmental
Permits by Holdings, Borrower, any Subsidiary of Borrower or any Person under
Borrower’s control or any Environmental Liability arising thereunder, or a
Release of Hazardous Materials on, at, in, under, above, to, from or about any
of its Real Estate, that, in each case, could reasonably be expected to have a
Material Adverse Effect, then Holdings and Borrower shall, and shall cause each
Subsidiary of Borrower to, upon a Co-Administrative Agent’s written request (i) cause
the performance of such environmental audits including subsurface sampling of
soil and groundwater, and preparation of such environmental reports, at
Borrower’s expense, as such Co-Administrative Agent may from time to time
reasonably request, which shall be conducted by reputable environmental
consulting firms reasonably acceptable to Co-Administrative Agents and shall be
in form and substance reasonably acceptable to Co-Administrative Agents, (ii) if
the Credit Parties fail to perform (or cause to be performed) any environmental
audit under clause (i) of this sentence within a reasonable time after
receiving a written request from a Co-Administrative Agent, Credit Parties
shall permit Co-Administrative Agents or their representatives to have access
to all Real Estate for the purpose of conducting such environmental audits and
testing as Co-Administrative Agents deem appropriate, including subsurface
sampling of soil and groundwater. 
Borrower shall reimburse Co-Administrative Agents for the costs of such
audits and tests and the same will constitute a part of the Obligations secured
hereunder.


 


2.6           Payment of Taxes.  Each Credit Party shall timely pay and
discharge (or cause to be paid and discharged) all material taxes, assessments
and governmental and other charges or levies imposed upon it or upon its income
or profits, or upon property belonging to it; provided that such Credit Party
shall not be required to pay any such tax, assessment, charge or levy that is
being contested in good faith by appropriate proceedings and for which the
affected Credit Party shall have set aside on its books adequate reserves with
respect thereto in conformance with GAAP.


 


2.7           Further Assurances.


 


(a)           Holdings and Borrower shall, shall
cause each Domestic Subsidiary to and, to the extent required under Section 2.7(c),
shall cause each Foreign Subsidiary to, from time to time, execute such
guaranties, financing statements, documents, security agreements and reports as
either Co-Administrative Agent or Requisite Lenders at any time may reasonably
request to evidence, perfect or otherwise implement the guaranties and security
for repayment of the Obligations contemplated by the Loan Documents.


 


25

















 


(b)           In the event Holdings or any of the
Domestic Subsidiaries acquires a fee interest in real property after the
Restatement Date (other than the Lacey Property), Holdings or Borrower shall,
or shall cause the respective Domestic Subsidiary to, deliver to Agent a fully
executed mortgage or deed of trust over such real property in form and
substance reasonably satisfactory to Co-Administrative Agents, together with
such title insurance policies, surveys, appraisals, evidence of insurance,
legal opinions, environmental assessments and other documents and certificates
as shall be reasonably required by Co-Administrative Agents.


 


(c)           Each of Holdings and Borrower shall (i) cause
each Person, upon its becoming a Domestic Subsidiary of Holdings or Borrower
(provided that this shall not be construed to constitute consent by any of the
Lenders to any transaction not expressly permitted by the terms of this
Agreement), promptly to guaranty the Obligations and to grant to Agent, for the
benefit of Co-Administrative Agents and Lenders, a security interest in the
real, personal and mixed property of such Person to secure the Obligations and (ii) pledge,
or cause to be pledged, to Agent, for the benefit of Co-Administrative Agents
and Lenders, all of the Stock of each Domestic Subsidiary and the Stock of any
Foreign Subsidiary, to secure the Obligations; provided that the pledge
of Stock of any Foreign Subsidiary of Borrower or any Domestic Subsidiary shall
be limited to sixty-five percent (65%) of all classes of voting Stock of such
Subsidiary and one hundred percent (100%) of all other classes of Stock in the
case of First-Tier Foreign Subsidiaries and shall not be required for other
Foreign Subsidiaries; provided, further, that no Foreign
Subsidiary of Borrower shall be required to pledge any Stock or other property
pursuant to this Section 2.7, and; provided, even  further,
that the certificates representing the Stock of any Foreign Subsidiary that is
not a Credit Party shall not be required to be delivered to Agent unless an
Event of Default has occurred and is continuing.  The documentation for such guaranty, security
and pledge shall be substantially similar to the Loan Documents executed
concurrently herewith with such modifications as are reasonably requested by
Co-Administrative Agents.


 


2.8           Ratings.


 


Borrower shall at all
times maintain a corporate credit rating from S&P and a corporate family
rating from Moody’s.


 


SECTION 3.

NEGATIVE COVENANTS


 


Each of Holdings and Borrower jointly and severally
agrees that from and after the date hereof and until the Termination Date:


 


3.1           Indebtedness.  Holdings and Borrower shall not and shall not
cause or permit Borrower’s Subsidiaries directly or indirectly to create,
incur, assume, or otherwise become or remain directly or indirectly liable with
respect to any Indebtedness (other than pursuant to a Contingent Obligation
permitted under Section 3.4) except:


 


(a)           the Obligations;


 


26

















 


(b)           (i) intercompany Indebtedness
arising from loans made by Borrower to any Domestic Subsidiary that is a
Guarantor or made by any Domestic
Subsidiary to Borrower or any other Domestic Subsidiary that is a Guarantor and
(ii) intercompany Indebtedness arising from loans made by any
Foreign Subsidiary to Borrower or any of Borrower’s Subsidiaries and (iii) intercompany
Indebtedness arising from loans made by Borrower or any Domestic Subsidiary to
any Foreign Subsidiary provided that, in the case of clause (iii), (A) the
sum of (1) the aggregate principal amount of such loans described in such
clause (iii) made (and not yet repaid) in the then current Fiscal Year plus
(2) the aggregate amount of other Investments pursuant to Section 3.3(l) in
such Fiscal Year made by Borrower or any Domestic Subsidiary in any Foreign
Subsidiary plus (3) the aggregate amount of Contingent Obligations
incurred by Borrower or any Domestic Subsidiary for the benefit of any Foreign
Subsidiary in such Fiscal Year pursuant to Sections 3.4(g) and (h) which
remain outstanding at such time does not exceed the Foreign Investment Basket
for such Fiscal Year and (B) no Event of Default exists at the time of the
making of any such intercompany loan or would result therefrom;


 


(c)           Indebtedness of Borrower and its
Subsidiaries outstanding on the Restatement Date and listed on Schedule 3.1(c) hereto
and any Indebtedness resulting from the refinancing of any such Indebtedness; provided,
however, that (i) the principal amount of any such refinancing
Indebtedness (as determined as of the date of the incurrence of such
refinancing Indebtedness in accordance with GAAP) does not exceed the principal
amount of the Indebtedness refinanced thereby on such date plus the
amount of (A) any contractually stated call and/or redemption premium, if
any, and (B) any transaction fees, in each case, paid in connection with
the refinancing of such outstanding Indebtedness, (ii) the weighted
average life to maturity of such Indebtedness is not decreased, (iii) the
obligor(s) with respect to such refinancing Indebtedness are the same
Persons which are obligors with respect to the Indebtedness refinanced thereby,
and (iv) in the case of any such refinancing Indebtedness, (A) the
covenants, defaults and similar provisions applicable to such refinancing
Indebtedness or obligations are no more restrictive in any material respect
than the provisions contained in this Agreement and do not conflict with, or
cause a breach of, any provision of this Agreement or any other Loan Document
and (B) such refinancing Indebtedness is otherwise upon terms and subject
to definitive documentation which is customary for Indebtedness of this type
incurred by a similarly situated borrower;


 


(d)           Indebtedness of Borrower or any of
its Subsidiaries under (i) Interest Rate Agreements entered into to
protect Borrower or any of its Subsidiaries against fluctuations in interest
rates in respect of Indebtedness otherwise permitted under this Agreement or (ii) Other
Hedging Agreements providing protection against fluctuations in currency values
or in the price of commodities and raw materials in connection with Borrower’s
or any of its Subsidiaries’ operations so long as such Other Hedging Agreements
are used for business purposes and not for speculative purposes;


 


(e)           Indebtedness of Borrower or any of
its Subsidiaries consisting of (i) Capital Lease Obligations, (ii) debt
incurred to finance the cost (including the cost of construction) of
acquisition of property and/or (iii) Indebtedness of a Subsidiary of
Borrower outstanding on the date such Person becomes a Subsidiary pursuant to a
Permitted Acquisition


 


27

















 


(other than Indebtedness issued as
consideration in, or to provide any portion of the funds utilized to
consummate, such Permitted Acquisition) (collectively, “Purchase Money
Indebtedness”), provided the aggregate principal amount of all
Indebtedness described in clauses (i), (ii) and (iii) shall not
exceed $10,000,000  at any time
outstanding (the “Purchase Money Basket”);


 


(f)            Contingent Obligations permitted
under Section 3.4;


 


(g)           unsecured, Subordinated Debt of
Holdings evidenced by promissory notes in form and substance reasonably
satisfactory to Agent in an aggregate principal amount not exceeding $5,000,000
at any time outstanding and issued solely as consideration for the repurchase
or redemption of any Stock of Holdings held by any officers or managers of
Holdings or any of its Subsidiaries;


 


(h)           unsecured Indebtedness of Holdings
owing to Borrower to evidence any advances made by Borrower to Holdings solely
for the purposes set forth in Sections 3.5(a), and 3.5(c);


 


(i)            customary earn-out obligations owing
by Holdings or any Subsidiary in connection with any Permitted Acquisition,
provided that such Indebtedness shall constitute Subordinated Debt and shall be
on such other terms and conditions reasonably satisfactory to Co-Administrative
Agents;


 


(j)            unsecured, Subordinated Debt of
Holdings or any Subsidiary issued as consideration for any Permitted
Acquisition, provided that (i) after such Permitted Acquisition and after
giving effect thereto on a pro forma basis, no Default or Event of Default
shall then exist, (ii) such Subordinated Debt is on terms and conditions
reasonably satisfactory to Co-Administrative Agents, and (iii) such Indebtedness
shall not have any principal payments due prior to March 28, 2015;


 


(k)           Indebtedness of any Foreign
Subsidiaries to Persons other than Borrower or any Subsidiary in support of the
working capital needs of such Foreign Subsidiary not to exceed $10,000,000 in
the aggregate at any time outstanding; and


 


(l)            any other unsecured Indebtedness not
to exceed $5,000,000  in the
aggregate at any time outstanding.


 


3.2           Liens and Related Matters.


 


(a)           No Liens. 
Holdings and Borrower shall not and shall not cause or permit Borrower’s
Subsidiaries to directly or indirectly create, incur, assume or permit to exist
any Lien on or with respect to any property or asset of Holdings, Borrower, or
any such Subsidiary, whether now owned or hereafter acquired, or any income or
profits therefrom, except Permitted Encumbrances (including, without
limitation, those Liens constituting Permitted Encumbrances existing on the
Restatement Date and renewals and extensions thereof, as set forth on Schedule
3.2).


 


28
















 


(b)           No Negative
Pledges.  Holdings and
Borrower shall not and shall not cause or permit Borrower’s Subsidiaries to
directly or indirectly enter into or assume any agreement (other than the Loan
Documents) prohibiting the creation or assumption of any Lien upon its
properties or assets, whether now owned or hereafter acquired, other than (i) agreements
governing Purchase Money Indebtedness or Indebtedness incurred under Section 3.1(k) otherwise
permitted hereby so long as such prohibition or limitation shall apply only
against the assets financed  thereby
and to proceeds thereof; (ii) provisions restricting subletting or
assignment under any lease governing a leasehold interest or lease of personal
property: (iii) restrictions with respect to a Subsidiary imposed pursuant
to any agreement which has been entered into for the sale or disposition of all
or substantially all of the equity interests or assets of such Subsidiary, so
long as such sale or disposition of all or substantially all of the equity
interests or assets of such Subsidiary is permitted under this Agreement; and (iv) restrictions
on assignments or sublicensing of licensed Intellectual Property.


 


(c)           No
Restrictions on Subsidiary Distributions to Borrower.  Except as provided herein or except pursuant
to agreements relating to Indebtedness incurred under Section 3.1(k),
Holdings and Borrower shall not and shall not cause or permit Borrower’s
Subsidiaries to directly or indirectly create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any such Subsidiary to: (1) pay dividends or make any
other distribution on any of such Person’s Stock owned by Borrower or any other
Subsidiary; (2) pay any Indebtedness owed to Borrower or any other
Subsidiary; (3) make loans or advances to Borrower or any other
Subsidiary; or (4) except in respect of transfers of property or assets
financed or licensed pursuant to agreements governing Purchase Money
Indebtedness or Licenses permitted hereby, transfer any of its property or
assets to Borrower or any other Subsidiary.


 


(d)           Purchase
Money Indebtedness. 
If requested by a lender of Purchase Money Indebtedness in connection
with an extension of credit to Borrower or any Subsidiary which is otherwise
permitted by this Agreement, any Lien or security interest of Agent for the
benefit of the Lenders in or upon the asset(s) being acquired by Borrower
or any Subsidiary and financed by such lender of Purchase Money Indebtedness
may be released or expressly subordinated to the Lien or security interest
therein of such lender of Purchase Money Indebtedness on terms and conditions
reasonably acceptable to Co-Administrative Agents and such lender of Purchase
Money Indebtedness, which terms may include an agreement by Co-Administrative
Agents not to foreclose upon the asset(s) being financed by the lender of
Purchase Money Indebtedness without the prior written consent of such lender of
Purchase Money Indebtedness, and the Lenders hereby severally authorize
Co-Administrative Agents to enter into such an agreement.


 


3.3           Investments.  Holdings and
Borrower shall not and shall not cause or permit Borrower’s Subsidiaries to
directly or indirectly make or own any Investment in any Person except:


 


29

















 


(a)           Borrower and
its Subsidiaries may make and own Investments in Cash Equivalents and hold cash
in deposit accounts or securities accounts in the ordinary course of business;


 


(b)           Holdings and
its Subsidiaries may make intercompany loans to each other to the extent
permitted under Sections 3.1(b) and (h);


 


(c)           Borrower and
its Subsidiaries may hold the Investments existing on the Restatement Date and
identified on Schedule 3.3, plus any additions thereto otherwise permitted
by this Section 3.3;


 


(d)           Borrower and
its Subsidiaries may acquire and hold 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;


 


(e)           Borrower and
its Subsidiaries may enter into Interest Rate Agreements and Other Hedging
Agreements as permitted under Section 3.1;


 


(f)            Borrower and
its Subsidiaries may make deposits made in the ordinary course of business
consistent with past practices to suppliers or servicers and to secure the
performance of leases;


 


(g)           Borrower and
its Subsidiaries may incur guarantees permitted by Section 3.4;


 


(h)           Borrower and
its Subsidiaries may make loans and advances to employees for moving,
entertainment, travel and other similar expenses of Borrower and its
Subsidiaries in the ordinary course of business not to exceed $2,000,000 in the
aggregate at any time outstanding;


 


(i)            (i) Holdings
may make Investments in Borrower, (ii) Borrower may make Investments in
any Subsidiary that is a Guarantor and any Subsidiary that is a Guarantor may
make Investments in any other Subsidiary that is a Guarantor, and (iii) any
Subsidiary that is not a Guarantor may make Investments in any other Subsidiary
that is not a Guarantor.


 


(j)            Borrower and
its Subsidiaries may hold Investments consisting of non-cash consideration
received in connection with Asset Dispositions permitted under Section 3.7(b)(iii);


 


(k)           Borrower and
its Subsidiaries may effect Permitted Acquisitions in accordance with the
requirements of Section 3.6;


 


(l)            Borrower and
its Domestic Subsidiaries may make Investments in any Foreign Subsidiary so
long as (i) the sum of (A) the aggregate amount of such Investments
made in the then current Fiscal Year plus (B) the aggregate amount
of intercompany Indebtedness


 


30

















 


pursuant to Section 3.1(b)(iii) incurred
in such Fiscal Year by Foreign Subsidiaries and not yet repaid plus (C) the
aggregate amount of Contingent Obligations incurred by Borrower or any Domestic
Subsidiary for the benefit of any Foreign Subsidiary in such Fiscal Year
pursuant to Sections 3.4(g) and (h) which remain
outstanding at such time does not exceed the Foreign Investment Basket for such
Fiscal Year and (ii) no Event of Default exists at the time of the making
of any such Investment or would result therefrom;


 


(m)          Holdings may
hold promissory notes issued by any officer or employee of Holdings or any of
its Subsidiaries solely as consideration for the purchase of Holdings Common
Stock;


 


(n)           Borrower may
create new Subsidiaries in accordance with Section 3.14 so long as
any Investment made in any new Foreign Subsidiary is otherwise permitted by
this Section 3.3;


 


(o)           Borrower and
its Subsidiaries may make Investments constituting endorsements for collection
or deposit in the ordinary course of business;


 


(p)           Borrower and
its Subsidiaries may make other Investments not expressly permitted by clauses (a) through
(o) above so long as (i) both before and after giving effect to such
Investment on a Pro Forma Basis, Borrower is in compliance with the covenants
set forth in Section 4.2 and 4.3 and Borrower has a pro
forma Leverage Ratio of not more than 1.5 to 1.0 and (ii) such Investments
do not exceed (1) $10,000,000 in the aggregate in any Fiscal Year or (2) $25,000,000
in the aggregate at any time outstanding; and


 


(q)           Borrower and
it Subsidiaries may make other Investments not expressly permitted by clauses (a) through
(p) above, so long as such Investments do not exceed (i) $5,000,000
in the aggregate in any Fiscal Year or (ii) $12,500,000 in the aggregate
at any time outstanding.


 


 


3.4           Contingent Obligations.  Holdings and
Borrower shall not and shall not cause or permit Borrower’s Subsidiaries to
directly or indirectly create or become or be liable with respect to any
Contingent Obligation except:


 


(a)           Letter of
Credit Obligations;


 


(b)           those
resulting from endorsement of negotiable instruments for collection in the
ordinary course of business;


 


(c)           those
existing on the Restatement Date and described in Schedule 3.4;


 


(d)           those
arising under indemnity agreements to title insurers to cause such title
insurers to issue to Agent mortgagee title insurance policies;


 


(e)           those
arising with respect to customary indemnification obligations or purchase price
(including purchase price adjustments as a result of working capital tests)


 


31

















 


adjustments incurred in connection
with Asset Dispositions permitted hereunder, Permitted Acquisitions or the
Acquisition;


 


(f)            those
incurred in the ordinary course of business with respect to surety and appeal
bonds, performance and return-of-money bonds and other similar obligations;


 


(g)           those
incurred with respect to Indebtedness permitted by Section 3.1,
provided that (i) any such Contingent Obligation is subordinated to the
Obligations to the same extent as the Indebtedness to which it relates is
subordinated to the Obligations, (ii) the sum of (A) the aggregate
amount of such Contingent Obligations incurred in such Fiscal Year by Borrower
or the Domestic Subsidiaries for the benefit of any Foreign Subsidiary which
remain outstanding at such time plus (B) the aggregate amount of
Contingent Obligations incurred by Borrower or any Domestic Subsidiary for the
benefit of any Foreign Subsidiary in such Fiscal Year pursuant to Section 3.4(h) which
remain outstanding, plus (C) the aggregate amount of intercompany
Indebtedness pursuant to Section 3.1(b)(iii) incurred in such
Fiscal Year by Foreign Subsidiaries and not yet repaid plus (D) the
aggregate amount of Investments pursuant to Section 3.3(l) in
such Fiscal Year by Borrower or any Domestic Subsidiary in any Foreign
Subsidiary does not exceed the Foreign Investment Basket for such Fiscal Year, (iii) except
as provided in clause (ii) above, neither Borrower nor any Guarantor may
incur Contingent Obligations under this clause (g) in respect of
Indebtedness of any Person that is not the Borrower or a Guarantor and no other
Subsidiary of Borrower may incur Contingent Obligations under this clause (g) in
respect of Indebtedness of any Person that is not a Subsidiary of Borrower and (iv) no
Event of Default may exist at the time of the incurrence of such Contingent
Obligation or would result therefrom;


 


(h)           those
incurred for the benefit of any Subsidiary of Borrower (other than those
incurred with respect to Indebtedness permitted by Section 3.1) if
the primary obligation is not prohibited by this Agreement, provided that (i) any
such Contingent Obligation is subordinated to the Obligations to the same
extent as the primary obligation to which it relates is subordinated to the
Obligations, (ii) the sum of (A) the aggregate amount of such
Contingent Obligations incurred in such Fiscal Year by Borrower or any Domestic
Subsidiary for the benefit of any Foreign Subsidiary which remain outstanding
at such time plus (B) the aggregate amount of Contingent
Obligations incurred by Borrower or any Domestic Subsidiary for the benefit of
any Foreign Subsidiary in such Fiscal Year pursuant to Section 3.4(g) which
remain outstanding, plus (C) the aggregate amount of intercompany
Indebtedness pursuant to Section 3.1(b)(iii) incurred in such
Fiscal Year by Foreign Subsidiaries and not yet repaid plus (D) the
aggregate amount of Investments pursuant to Section 3.3(l) in
such Fiscal Year by Borrower or any Domestic Subsidiary in any Foreign
Subsidiary does not exceed the Foreign Investment Basket for such Fiscal Year
and (iii) no Event of Default exists at the time of the incurrence of such
Contingent Obligation or would result therefrom; and


 


(i)            any other
Contingent Obligations not expressly permitted by clauses (a) through (h) above,
so long as any such other Contingent Obligations, in the aggregate at any time
outstanding, do not exceed $4,000,000.


 


32

















 


3.5           Restricted Payments.  Holdings and
Borrower shall not and shall not cause or permit Borrower’s Subsidiaries to
directly or indirectly declare, order, pay, make or set apart any sum for any
Restricted Payment, except that:


 


(a)           Borrower may
make payments and distributions to Holdings that are used by Holdings to pay
federal, state and local income taxes then due and owing and interest and
penalties with respect thereto, franchise taxes and other similar licensing
expenses, Inside Directors’ fees not to exceed $100,000 per director in any
Fiscal Year of Borrower, directors’ fees to directors other than Inside
Directors consistent with fees paid by other similarly situated public
companies, directors’ and officers’ insurance premiums, claims for
indemnification made by an officer or director in accordance with applicable
law and pursuant to the organizational documents of the relevant Credit Party,
accounting expenses, de minimis corporate expenses, expenses related to filings
with the SEC and other Governmental Authorities, in each case incurred in the
ordinary course of business; provided that Borrower’s aggregate
contribution to taxes as a result of the filing of a consolidated or combined
return by Holdings shall not be greater, nor the aggregate receipt of tax
benefits less, than they would have been had Borrower not filed a consolidated
or combined return with Holdings; provided  further that any
material refund not applied to future tax liabilities shall be promptly
returned by Holdings to Borrower;


 


(b)           Wholly-owned
Subsidiaries of Borrower or another Credit Party may make Restricted Payments
to their direct parents and non wholly-owned Subsidiaries of Borrower or
another Credit Party may make Restricted Payments pro rata to the holders of
their Stock; provided that, (i) the Borrower may not make Restricted
Payments to Holdings under this clause (b) and (ii) Transaction
Network Services (Bermuda) Ltd. may not make Restricted Payments to the holders
of its Stock so long as it is not a wholly-owned Subsidiary of Borrower or
another Credit Party;


 


(c)           Borrower may
pay dividends to Holdings to permit Holdings to repurchase Stock owned by
employees of Borrower whose employment with Borrower and its Affiliates has
been terminated and to repurchase Stock remitted back to Holdings by employees
of Borrower with respect to restricted stock units of such employees, provided
that such dividend payments shall not exceed $5,000,000 in any fiscal year and
provided that no Event of Default exists at the time of such Restricted Payment
or would occur as a result thereof (provided that (i) the foregoing
proviso shall not apply to amounts expended by Holdings pursuant to this clause
(c) solely from (x) cash proceeds received from new issuances of
Holdings Common Stock if received substantially contemporaneously with and used
solely to effect a redemption of an executive’s Stock and (y) the proceeds
of key man life insurance if the proceeds are used to repurchase the Stock
described above from a deceased or incapacitated employee or manager, and (ii) Holdings
may repurchase Holdings Common Stock from management of Borrower or any
Subsidiary through the cancellation of Indebtedness owing by such officer or
manager);


 


(d)           To the
extent that such payments are Restricted Payments, any payments or
distributions made by Holdings or any of its Subsidiaries to employees under Section 2.02(a)(vi) and
Section 6.01(e) of the Purchase Agreement (as in effect on the
Restatement Date) in an amount not to exceed $2,300,000; and


 


33

















 


(e)           In addition
to the Stock repurchases permitted by the foregoing clause (c), Borrower may
make Restricted Payments to Holdings to permit Holdings to make dividends to
its stockholders and repurchase its Stock, so long as such Restricted Payments,
when aggregated with all Restricted Payments previously made after the
Restatement Date pursuant to this Section 3.5(e), do not exceed an
amount equal to 20% of the sum of (i) cumulative positive Net Income of
Borrower and its Subsidiaries for the period from January 1, 2009 through
the end of the most recent Fiscal Quarter or Fiscal Year for which Borrower has
delivered the financial statements required pursuant to Section 4.5(a) or
(b) plus (ii) non-cash stock compensation expense as the
result of any grant of Stock to any employees or management of Holdings, Borrower or any of their Subsidiaries
for such period plus (iii) amortization associated with intangible
assets of Holdings, Borrower or any of their Subsidiaries for such period;
provided, that (A) any such Restricted Payment may not be made prior to
the date which is eighteen months following the Restatement Date, (B) at
the time of such Restricted Payment there shall exist no Default or Event of
Default, (C) both before and after giving effect to such Restricted
Payment on a Pro Forma Basis, Borrower is in compliance with the covenants set
forth in Sections 4.2 and 4.3 and has a pro forma Leverage Ratio
of not more than 1.5 to 1.0, and (D) after giving effect to such
Restricted Payment, at least $15,000,000 of Required Availability would exist.


 


3.6           Restriction
on Fundamental Changes.


 


Holdings and Borrower shall not and shall not cause or
permit Borrower’s Subsidiaries to directly or indirectly:  (a) amend, modify or waive any term or
provision of its organizational documents, including its articles of
incorporation, certificates of designations pertaining to preferred stock,
by-laws, partnership agreement or operating agreement unless required by law
except if such amendment, modification, or waiver could not reasonably be
expected to have an adverse effect on Co-Administrative Agents or Lenders or
affect in any respect any Liens in favor of Agent and Lenders; (b) enter
into any transaction of merger or consolidation except (i) pursuant to a
Permitted Acquisition, or (ii) upon not less than five (5) Business
Days prior written notice to Agent, any Subsidiary of Borrower may be merged
with or into any wholly-owned Subsidiary of Borrower so long as if either such
Subsidiary was a Guarantor prior to such merger, the surviving Subsidiary is a
Guarantor; (c) liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution); provided that any liquidation, wind-up or
dissolution of Transaction Network Services (Bermuda) Ltd. shall be permitted
hereunder so long as any assets held by such entity at the time of such
liquidation, wind-up or dissolution are disposed of in accordance with Section 3.7
hereof; or (d) acquire by purchase or otherwise all or any substantial
part of the business or assets of, or a business line, unit or division of, any
other Person except pursuant to the Acquisition or a Permitted Acquisition or
any Investment permitted under Section 3.3(p) or Section 3.3(q).


 


Notwithstanding the foregoing, Borrower or its
Subsidiaries may acquire all or substantially all of the assets or Stock of, or
a business line, unit or division of, any Person (the “Target”) (in each
case, a “Permitted Acquisition”) subject to the satisfaction of each of
the following conditions or waiver thereof by the Requisite Lenders:


 


34

















 


(i)            Each
Co-Administrative Agent shall receive at least 15 Business Days’ prior written
notice of such proposed Permitted Acquisition, which notice shall include a
reasonably detailed description of such proposed Permitted Acquisition;


 


(ii)           such
Permitted Acquisition shall only involve a business (a) of the type
engaged in by Borrower and its Subsidiaries as of the Restatement Date, (b) substantially
similar to the business engaged in by Borrower and its Subsidiaries as of the
Restatement Date or (c) that transports on behalf of third parties data
communications and which business would not subject either Co-Administrative
Agent or any Lender to regulatory or third party approvals in connection with
the exercise of its rights and remedies under this Agreement or any other Loan
Documents other than approvals applicable to the exercise of such rights and
remedies with respect to Borrower prior to such Permitted Acquisition;


 


(iii)          such
Permitted Acquisition shall be consensual and shall have been approved by the
Target’s board of directors;


 


(iv)          no
additional Indebtedness, Guaranteed Indebtedness, Contingent Obligations or
other liabilities other than Purchase Money Indebtedness permitted pursuant to Section 3.1(e)(iii) shall
be incurred, assumed or otherwise be reflected on a consolidated balance sheet
of Borrower and Target after giving effect to such Permitted Acquisition,
except (A) Loans made hereunder, and (B) ordinary course trade
payables, accrued expenses and other Indebtedness of the Target to the extent
permitted by Section 3.1 or 3.4;


 


(v)           (A) both
before or after giving effect to the proposed Permitted Acquisition on a Pro
Forma Basis, Borrower is in compliance with the financial covenants set forth
in Sections 4.2 and 4.3, and (B)(1) if either before or
after giving effect to the proposed Permitted Acquisition on a Pro Forma Basis,
Borrower has a pro forma Leverage Ratio of more than 2.0 to 1.0, the aggregate
consideration (I) in connection with any single Permitted Acquisition
shall not exceed $20,000,000, (II) in connection with Permitted
Acquisitions in any Fiscal Year shall not exceed $30,000,000 and (III) in
connection with all Permitted Acquisitions since the Restatement Date shall not
exceed $75,000,000, or (2) if both before and after giving effect to the
proposed Permitted Acquisition on a Pro Forma Basis, Borrower has a pro forma
Leverage Ratio of not more than 2.0 to 1.0, the aggregate consideration (I) in
connection with any single Permitted Acquisition shall not exceed $30,000,000,
and (II) in connection with all Permitted Acquisitions since the
Restatement Date shall not exceed $100,000,000, in each case, excluding up to
$15,000,000 per acquisition of consideration paid in the form of Holdings Common
Stock and including all transaction costs and all Indebtedness, liabilities and
Contingent Obligations incurred or assumed in connection therewith or otherwise
reflected on a consolidated balance sheet of Borrower and Target.


 


(vi)          the business
and assets acquired in such Permitted Acquisition shall be free and clear of
all Liens (other than Permitted Encumbrances);


 


(vii)         at or prior
to the closing of any Permitted Acquisition, Agent will be granted a first
priority perfected Lien (to the extent required by the Collateral Documents and


 


35

















 


subject
to Permitted Encumbrances) in all assets acquired pursuant thereto or in the
assets and Stock of the Target as and to the extent required by Section 2.7(c),
and Holdings and Borrower and the Target shall have executed such documents and
taken such actions as may be required by Agent in connection therewith;


 


(viii)        concurrently
with delivery of the notice referred to in clause (i) above,
Borrower shall have delivered to each Co-Administrative Agent, in form and
substance reasonably satisfactory to Co-Administrative Agents:


 


(A)          a pro forma
consolidated balance sheet, income statement and cash flow statement of Holdings and its Subsidiaries (the “Acquisition
Pro Forma”), based on recent financial statements, which shall be complete
and shall fairly present in all material respects the assets, liabilities,
financial condition and results of operations of Holdings and its Subsidiaries in accordance with GAAP consistently
applied, but taking into account such Permitted Acquisition and the funding of
all Loans in connection therewith, and such Acquisition Pro Forma shall reflect
that (x) average daily Required Availability for the 60-day period
preceding the consummation of such Permitted Acquisition would have exceeded
$5,000,000 on a pro forma basis (after giving effect to such Permitted
Acquisition and all Loans funded in connection therewith as if made on the
first day of such period) and the Acquisition Projections (as hereinafter
defined) shall reflect that such Required Availability of $5,000,000 shall
continue for at least 60 days after the consummation of such Permitted
Acquisition and (y) on a pro forma basis, no Event of Default has occurred
and is continuing or would result after giving effect to such Permitted
Acquisition and Holdings and its Subsidiaries would have been in compliance
with the financial covenants set forth in Section 4  for the four quarter period reflected in the
Compliance, Pricing, and Excess Cash Certificate most recently delivered to
Agent pursuant to Section 4.4(l) prior to the consummation of
such Permitted Acquisition (after giving effect to such Permitted Acquisition
and all Loans funded in connection therewith as if made on the first day of
such period);


 


(B)           solely in
respect of any Permitted Acquisition where the total aggregate consideration
exceeds $10,000,000, projections covering the 1 year period commencing on the
date of such Permitted Acquisition setting forth in form and substance
reasonably satisfactory to Co-Administrative Agents the anticipated results of
operations of the Target and Holdings and its Subsidiaries (the “Acquisition
Projections”) based upon historical financial data for the Target of a
recent date reasonably satisfactory to Co-Administrative Agents; which
Acquisition Projections shall evidence that on a pro forma basis, after giving
effect to any add-backs approved by Co-Administrative Agents, (i) EBITDA
for the four quarter period immediately following such Permitted Acquisition
will be at least $1 greater than if such acquisition had not occurred and (ii) Holdings
and its Subsidiaries shall continue to be in compliance with the financial
covenants set forth in Section 4 for the 1 year period thereafter;


 


(C)           a certificate
of the chief financial officer (or another officer acceptable to
Co-Administrative Agents) of Borrower to the effect that:  (v) Holdings and its Subsidiaries when
taken as a whole will be Solvent upon the consummation of the Permitted
Acquisition; (w) the Acquisition Pro Forma fairly presents in all material
respects the financial


 


36

















 


condition of Holdings and its Subsidiaries (on a consolidated basis) as of the
date thereof after giving effect to the Permitted Acquisition; (y) the
Acquisition Projections are a reasonable estimate of the future financial
performance of Holdings and its Subsidiaries subsequent to the date thereof
based upon the historical performance of Holdings and its Subsidiaries and
Target and (z) Holdings and
its Subsidiaries have completed their due diligence investigation with respect
to the Target and such Permitted Acquisition, which investigation was conducted
in a manner similar to that which would have been conducted by a prudent
purchaser of a comparable business and the results of which investigation were
delivered to each Co-Administrative Agent;


 


(ix)           at least
five (5) Business Days prior to the date of such Permitted Acquisition,
each Co-Administrative Agent shall have received, in form and substance
reasonably satisfactory to Co-Administrative Agents, copies of the acquisition
agreement and related agreements and instruments, and all opinions,
certificates, lien search results, copies of all environmental reports and memoranda
related thereto to the extent prepared in connection with such Permitted
Acquisition, and other documents reasonably requested by Co-Administrative
Agents, including those specified in Section 2.7; and


 


(x)            at the time
of such Permitted Acquisition and after giving effect thereto, no Default or
Event of Default has occurred and is continuing.


 


3.7           Disposal of Assets or Subsidiary Stock. 
Holdings and Borrower shall not and shall not cause or permit any Credit
Party to directly or indirectly convey, sell, lease, sublease, transfer or
otherwise dispose of, or grant any Person an option to acquire, in one
transaction or a series of related transactions, any of its property, business
or assets, whether now owned or hereafter acquired, except for (a) sales
of  inventory and equipment in good faith
to customers for fair value in the ordinary course of business and dispositions
of obsolete or worn out equipment not used or useful in the business; (b) Asset
Dispositions by Borrower and Subsidiaries of Borrower that are Credit Parties
(excluding sales of Accounts and Stock of any of Holdings’ Subsidiaries) if all
of the following conditions are met:  (i) the
market value of assets sold or otherwise disposed of in any single transaction
or series of related transactions does not exceed $7,500,000 and the aggregate
market value of assets sold or otherwise disposed of in any Fiscal Year does
not exceed $10,000,000; (ii) the consideration received is at least equal
to the fair market value of such assets; (iii) at least 85% of the
consideration received is cash; (iv) the Net Proceeds of such Asset
Disposition are applied as required by Section 1.5(c); (v) after
giving effect to the Asset Disposition and the repayment of Indebtedness with
the proceeds thereof, Holdings and its Subsidiaries are in compliance on a pro
forma basis with the covenants set forth in Section 4 recomputed
for the most recently ended quarter
for which information is available; and (vi) no Default or Event of
Default then exists or would result from such Asset Disposition; (c) Investments
made to the extent permitted by Section 3.3; (d) leases,
licenses, subleases and sublicenses in the ordinary course of business and
provided such lease, license, sublease or sublicense does not materially interfere
with the conduct of the business of such Credit Party or any other Credit
Party; (e) liquidations of Cash Equivalents in the ordinary course of
business and consistent with past practices; and (f) sales or discounts,
in each case without recourse and in the ordinary course of business, of
Accounts arising in the ordinary course of business (i) which are overdue,
or (ii) which Borrower may reasonably determine are difficult to collect,
but in each


 


37

















 


case only in
connection with the compromise or collection thereof consistent with customary
industry practice (and not as part of any bulk sale or financing of
receivables).


 


3.8           Transactions with Affiliates. 
Holdings and Borrower shall not and shall not cause or permit the other
Credit Parties to directly or indirectly enter into or permit to exist any
transaction (including the purchase, sale, lease or exchange of any property or
the rendering of any management, consulting, investment banking, advisory or other
similar services) with any Affiliate or with any director, officer or employee
of any Credit Party, except (a) as set forth on Schedule 3.8, (b) transactions
in the ordinary course of and pursuant to the reasonable requirements of the
business of any such Credit Party or any of its Subsidiaries and upon fair and
reasonable terms that are no less favorable to any such Credit Party or any of
its Subsidiaries than would be obtained in a comparable arm’s length
transaction with a Person that is not an Affiliate, (c) payment of
reasonable compensation to officers and employees for services actually
rendered to any such Credit Party or any of its Subsidiaries (including the
issuance of Holdings Common Stock to management employees of Borrower or its
Subsidiaries), (d) payment of directors’ fees, (e) transactions
expressly permitted by Sections 3.3(h) and 3.5, and (f) transactions
among the Credit Parties expressly permitted by this Agreement.


 


3.9           Compliance with Laws.  Each Credit
Party (i) is in compliance with the requirements of all applicable laws,
rules, regulations and orders of any Governmental Authority (including, without
limitation, Executive Order No. 13224 on Terrorist Financing, effective September 24,
2001, and the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56)
and the obligations, conditions and covenants contained in all Contractual
Obligations other than those laws, rules, regulations, orders and provisions of
such Contractual Obligations the noncompliance with which could not be
reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect, and (ii) maintains all licenses, qualifications
and permits for which the loss, suspension, revocation or failure to obtain or
maintain could reasonably be expected to have a Material Adverse Effect.


 


3.10         Conduct of Business.


 


(a)           The Credit
Parties shall not and shall not cause or permit their Subsidiaries to directly
or indirectly engage in any business other than a business (a) of the type
engaged in by Borrower and the other Credit Parties as of the  Restatement Date, (b) substantially
similar to the business engaged in by Borrower and the other Credit Parties as
of the  Restatement Date, or (c) that
transports on behalf of third parties data communications.


 


(b)           Holdings
will engage in no business other than (i) its ownership of the Stock of
Borrower, (ii) its declaration and payment of the Restricted Payments
permitted under Section 3.5 and activities incidental thereto and (iii) the
issuance of Stock to the extent not prohibited by Section 3.18.  Notwithstanding the foregoing, Holdings may
engage in those activities that are incidental to (A) the maintenance of
its corporate existence in compliance with applicable law, and its status as a
publicly held company (B) legal, tax and accounting matters in connection
with any of the foregoing activities, (C) entering into, and performing
its obligations


 


38

















 


under, the Loan Documents to which it
is a party and (D) entering into, and performing its obligations under
transactions expressly permitted to be entered into by Holdings hereunder.


 


3.11         Changes
Relating to Indebtedness and Material Documents.  Holdings and Borrower shall not and shall not
cause or permit Borrower’s Subsidiaries to directly or indirectly change or
amend the terms of any of its Indebtedness permitted by Section 3.1(c), (i) or (j):  (A) having
an outstanding principal balance in excess of $10,000,000 if the effect
of such amendment is to: (i) increase the interest rate on such
Indebtedness by more than 3.00% over the amount set forth in the original
documentation governing such Indebtedness; (ii) accelerate the dates upon
which payments of principal or interest are due on or increase the principal
amount of or change the redemption or prepayment provisions of such
Indebtedness or, directly or indirectly, voluntarily purchase, redeem, defease
or prepay any principal of, premium, if any, interest or other amount payable
in respect of any such Indebtedness, other than Indebtedness secured by a
Permitted Encumbrance if the asset securing such Indebtedness has been sold or
otherwise disposed of in accordance with Section 3.7(b); (iii) add
or make more restrictive any event of default or any covenant with respect to
such Indebtedness; or (iv) change or amend any other term if such change
or amendment would materially increase the obligations of the obligor or confer
additional material rights on the holder of such Indebtedness in a manner
adverse to Holdings or any of its Subsidiaries or Lenders; or (B) which is
Subordinated Debt if the effect of such amendment is to: (i) change the
subordination provisions thereof (or the subordination terms of any guaranty
thereof); or (ii) increase the portion of interest payable in cash with
respect to any Indebtedness for which interest is payable by the issuance of
payment-in-kind notes or is permitted to accrue.


 


(b)           Holdings and
Borrower shall not and shall not cause or permit Borrower’s Subsidiaries to,
directly or indirectly, change, amend, supplement or otherwise modify (pursuant
to a waiver or otherwise) the terms and conditions of any of the Purchase
Documents without the prior written consent of Co-Administrative Agents if such
change could reasonably be expected to have a material adverse effect on
Co-Administrative Agents or Lenders or affect in any material respect any Liens
or any Collateral in favor of Agent on behalf of the Lenders.


 


3.12         Fiscal Year.  Each of
Holdings and Borrower shall not change its Fiscal Year or permit any of
Borrower’s Subsidiaries to change its respective Fiscal Years.


 


3.13         Press Release; Public Offering Materials. 
Holdings and Borrower each agrees that neither it nor its Affiliates
will issue any press releases or other public disclosure using the name of
SunTrust or its affiliates or referring to this Agreement, the other Loan
Documents or the Related Transactions Documents without at least two (2) Business
Days’ prior notice to SunTrust and without the prior written consent of
SunTrust unless, except as set forth below, such Person is required to do so
under law and then, in any event, such Person will consult (unless prohibited
by law) with SunTrust before issuing such press release or other public
disclosure; provided however, such Person need not obtain such written consent
to use SunTrust’s name to refer to this Agreement to the extent such disclosure
is in connection with a prospectus, proxy statement or other securities filing
with the SEC or other Governmental Authority.


 


39
















 


3.14         Limitation on Creation of Subsidiaries. 
Holdings and Borrower shall not and shall not permit Borrower’s
Subsidiaries to directly or indirectly establish, create or acquire any new
Subsidiary, except that Borrower or any of its Subsidiaries may acquire,
pursuant to a Permitted Acquisition, establish or create one or more
wholly-owned Subsidiaries and transfer assets to such newly established or
created Subsidiaries so long as the provisions of Section 2.7 are
complied with and, in the case of an Investment in one or more Foreign
Subsidiaries, the provisions of Section 3.3(1) have been
complied with.


 


3.15         Hazardous Materials.  Holdings and
Borrower shall not and shall not cause or permit Borrower’s Subsidiaries to
cause or permit a Release of any Hazardous Material on, at, in, under, above,
to, from or about any of the Real Estate where such Release would (a) violate
in any respect, or form the basis for any Environmental Liabilities by the
Credit Parties or any of their Subsidiaries under, any Environmental Laws or
Environmental Permits or (b) otherwise adversely impact the value or
marketability of any of the Real Estate or any of the Collateral, other than in
the case of (a) or (b), such violations or Environmental Liabilities that
could not reasonably be expected to have a Material Adverse Effect.


 


3.16         ERISA; Foreign
Pension Plans.


 


(a)           Holdings and
Borrower shall not and shall not cause or permit any ERISA Affiliate to cause
or permit to occur an ERISA Event to the extent such ERISA Event could reasonably
be expected to have a Material Adverse Effect.


 


(b)           Holdings and
Borrower shall not and shall not cause or permit their Subsidiaries to
establish, maintain and operate any Foreign Pension Plan that is not in
compliance with all the requirements of all applicable laws, rules, regulations
and orders of any Governmental Authority or the respective requirements of the
governing documents for such Foreign Pension Plan, where the failure to comply
could reasonably be expected to have a Material Adverse Effect.


 


3.17         Sale-Leasebacks.  Holdings and
Borrower shall not and shall not cause or permit any of their Subsidiaries to
engage in any sale-leaseback, synthetic lease or similar transaction involving
any of its assets; provided that Holdings, Borrower or any of their
Subsidiaries shall be able to enter into any sale-leaseback transaction
involving the Lacey Property so long as the proceeds of such transaction are
applied in accordance with Section 1.5(c).


 


3.18         Capital Stock.


 


(a)           Holdings
will not issue (i) any preferred stock other than Permitted Holdings
Preferred Stock or (ii) any redeemable common stock; and


 


(b)           Holdings
will not permit any Subsidiary of Holdings to issue any Stock (including by way
of sales of treasury stock) or any options or warrants to purchase, or
securities convertible into, Stock, except (i) for transfers and
replacements of the then outstanding shares of Stock,  (ii) for stock splits, stock dividends
and additional issuances which do not decrease the percentage ownership of
Holdings or any of its Subsidiaries in any class of the Stock of


 


40

















 


Borrower or such Subsidiary, (iii) in
the case of Foreign Subsidiaries of Borrower, to qualify directors to the
extent required under applicable law, (iv) Subsidiaries of Borrower formed
after the Restatement Date pursuant to Section 3.14 may issue Stock
to Borrower or the respective Subsidiary of Borrower which owns such Stock in
accordance with the requirements of Section 3.14 and (v) any Foreign
Subsidiary formed after the Restatement Date pursuant to Section 3.14
may issue Stock to Borrower, any Subsidiary and any other investor if the
Investment in such Foreign Subsidiary by Borrower and its Subsidiaries is made
in accordance with Section 3.3. 
All Stock issued in accordance with this Section 3.18(b) shall,
to the extent required by a Pledge Agreement, be delivered to Agent and pledged
pursuant to a Pledge Agreement.


 


3.19         OFAC.  No Credit
Party shall, and no Credit Party shall permit any of its Subsidiaries to (i) become
a person whose property or interests in property are blocked or subject to
blocking pursuant to Section 1 of Executive Order 13224 of September 23,
2001 Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit or Support Terrorism (66 Fed. Reg. 49079(2001), (ii) engage
in any dealings or transactions prohibited by Section 2 of such executive
order, or be otherwise knowingly associated with any such person in any  manner violative of Section 2, (iii) be
a person on the list of Specially Designated Nationals and Blocked Persons (an “SDN”)
under the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”)
regulations, or (iv) conduct business with an SDN or in a country in
violation of an economic sanctions program of the United States administered by
OFAC or any successor agency (a “Sanctions Program”).


 


SECTION 4.

FINANCIAL COVENANTS/REPORTING


 


Borrower covenants and agrees that from and after the
date hereof until the Termination Date, Borrower shall perform and comply with,
and shall cause each of the other Credit Parties to perform and comply with,
all covenants in this Section 4 applicable to such Person.


 


4.1           Capital Expenditure
Limits.


 


(a)           Borrower and
its Subsidiaries on a consolidated basis shall not make Capital Expenditures
during any Fiscal Year that exceed the amount set forth in the table below
opposite the applicable Fiscal Year (the “Capex Limit”); provided,
however, that the Capex Limit for each subsequent Fiscal Year referenced
below (commencing with the 2010 Fiscal Year) will be increased, if at all, by
the positive amount equal to the lesser of (i) 50% of the Capex Limit then
in effect for the immediately preceding Fiscal Year (after giving effect to any
increase pursuant to this provision), and (ii) the amount (if any), equal
to the difference obtained by taking the Capex Limit then in effect for the
immediately preceding Fiscal Year (after giving effect to any increase pursuant
to this provision) minus the actual amount of any Capital Expenditures
expended during such preceding Fiscal Year (the “Carry Over Amount”); provided,
further, the Carry Over Amount for purposes of measuring compliance
herewith for the 2009 Fiscal Year shall be deemed to be $0.


 


41

















 




	
  Fiscal Year

  	
   

  	
  Capex Limit

  	
   

  
	
  2009

  	
   

  	
  $

  	
  57,500,000

  	
   

  
	
  2010

  	
   

  	
  $

  	
  50,000,000

  	
   

  
	
  2011

  	
   

  	
  $

  	
  55,000,000

  	
   

  
	
  2012

  	
   

  	
  $

  	
  55,000,000

  	
   

  
	
  2013
  and each Fiscal Year thereafter

  	
   

  	
  $

  	
  60,000,000

  	
   

  






 


(b)           Notwithstanding
the foregoing, Borrower and its Subsidiaries may make additional Capital
Expenditures (which Capital Expenditures will not be included in any
determination under the foregoing clause (a)) as follows: (i) Capital
Expenditures with the Net Proceeds received by Borrower or any of its
Subsidiaries from any Asset Disposition so long as such Capital Expenditures
are to be made or contractually committed to be made within 180 days (or in the
case of Net Proceeds received in respect of the loss, damage, destruction,
casualty or condemnation of any assets of Borrower or its Subsidiary, 270 days)
following the date of such Asset Disposition or to replace or restore any
properties or assets in respect to which such Net Proceeds were paid to the
extent such Net Proceeds are not required to be applied to repay the Term Loan
pursuant to Section 1.5(c); and (ii) Capital Expenditures
constituting the Acquisition or any Permitted Acquisition.


 


4.2           Maximum Leverage Ratio.  Holdings,
Borrower and its Subsidiaries on a consolidated basis shall have, at the end of
each Fiscal Quarter set forth below, a Leverage Ratio as of the last day of
such Fiscal Quarter and for the 12-month period then ended of not more than the
following:


 


2.80 to 1.0 for the Fiscal Quarter ending March 31,
2009;


3.25 to 1.0 for the Fiscal Quarter ending June 30,
2009;


3.25 to 1.0 for the Fiscal Quarter ending September 30,
2009;


3.00 to 1.0 for the Fiscal Quarter ending December 31,
2009;


3.00 to 1.0 for the Fiscal Quarter ending March 31,
2010;


2.75 to 1.0 for the Fiscal Quarter ending June 30,
2010;


2.75 to 1.0 for the Fiscal Quarter ending September 30,
2010;


2.50 to 1.0 for the Fiscal Quarter ending December 31,
2010;


2.50 to 1.0 for the Fiscal Quarter ending March 31,
2011;


2.25 to 1.0 for the Fiscal Quarter ending June 30,
2011;


2.25 to 1.0 for the Fiscal Quarter ending September 30,
2011;


2.25 to 1.0 for the Fiscal Quarter ending December 31,
2011;


2.00 to 1.0 for each Fiscal Quarter ending thereafter.


 


4.3           Fixed Charge
Coverage Ratio.


 


Holdings, Borrower
and its Subsidiaries on a consolidated basis shall have a Fixed Charge Coverage
Ratio of not less than 1.20 to 1.00 as of the last day of each Fiscal Quarter
and for the 12-month period then ended.


 


42

















 


4.4           Financial Statements and Other Reports.  Holdings and Borrower will maintain,
and cause each of its Subsidiaries to maintain, a system of accounting
established and administered in accordance with sound business practices to
permit preparation of Financial Statements in conformity with GAAP (it being
understood that quarterly Financial Statements are not required to have
footnote disclosures).  Borrower will
deliver each of the Financial Statements and other reports described below in
electronic form to Agent and Agent will deliver, or cause to be delivered,
copies thereof to the Lenders:


 


(a)           Quarterly
Financials.  Not later
than the earlier of (i) 45 days after the end of each of the first three
Fiscal Quarters of each Fiscal Year of Holdings (commencing with the Fiscal
Quarter ended March 31, 2009), and (ii) the public filing with the
SEC of Holdings’ Form 10-Q for each such Fiscal Quarter, Borrower will
deliver to Agent a copy of such Form 10-Q for such Fiscal Quarter and, to
the extent not included therein, (1) the consolidated balance sheets of
Holdings and its Subsidiaries, as at the end of such Fiscal Quarter, and the
related consolidated statements of income, stockholders’ equity and cash flow
for such Fiscal Quarter and for the period from the beginning of the then current
Fiscal Year of Holdings to the end of such Fiscal Quarter and (2) a report
setting forth in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year; provided that the filing
with the SEC by Holdings of its quarterly report on Form 10-Q for the
applicable Fiscal Quarter within the time period set forth in this Section 4.4(a) shall
satisfy the requirements of this Section 4.4(a).


 


(b)           Year-End
Financials.  Not later
than the earlier of (A) 90 days after the end of each Fiscal Year of
Holdings (commencing with the Fiscal Year ended December 31, 2009) and (B) the
public filing with the SEC of Holdings’ Form 10-K for such Fiscal Year,
Borrower will deliver to Agent a copy of such Form 10-K for such Fiscal
Year and, to the extent not included therein, (1) the consolidated balance
sheets of Holdings and its Subsidiaries, as at the end of such year, and the
related consolidated statements of income, stockholders’ equity and cash flow
for such Fiscal Year, and (2) a report with respect to the consolidated
Financial statements from a firm of Certified Public Accountants selected by
Borrower and reasonably acceptable to Agent, which report shall be prepared in
accordance with Statement of Auditing Standards No. 58 (the “Statement”)
“Reports on Audited Financial Statements” and such report shall be “Unqualified”
(as such term is defined in such Statement); provided that the filing with the
SEC by Holdings of its annual report on Form 10-K for the applicable
Fiscal Year within the time period set forth in this Section 4.4(b) shall
satisfy the requirements of this Section 4.4(b).


 


(c)           Reserved.


 


(d)           Appraisals.  From time to time, if Agent or any Lender
determines that obtaining appraisals is necessary in order for Agent or such
Lender to comply with applicable laws or regulations, Agent will, at Borrower’s
expense, obtain appraisal reports in form and substance and from appraisers
satisfactory to Agent stating the then current fair market values of all or any
portion of the Real Estate owned by Credit Parties.  In addition to the foregoing, at Borrower’s
expense, at any time while and so long as an Event of Default shall have
occurred and be continuing, and in the absence of an Event of Default not more
than once during each calendar year, Agent may obtain appraisal reports in form
and substance and from appraisers


 


43

















 


satisfactory to Agent stating the
then current market values of all or any portion of the Real Estate and
personal property owned by any of the Credit Parties.


 


(e)           Budget.  As soon as available and in any event no
later than sixty (60) days after the last day of each of Holdings’ Fiscal
Years, Borrower will deliver a Budget of Holdings and its Subsidiaries for the
forthcoming Fiscal Year, prepared on a quarter by quarter basis.


 


(f)            Reserved.


 


(g)           Events of
Default, Etc.  Promptly upon
any Responsible Officer of Holdings or Borrower obtaining knowledge of any of
the following events or conditions, Borrower shall deliver copies of all
notices given or received by Borrower or Holdings or any of their respective
Subsidiaries with respect to any such event or condition and a certificate of
Borrower’s chief executive officer specifying the nature and period of
existence of such event or condition and what action Holdings, Borrower or any
of their respective Subsidiaries has taken, is taking and proposes to take with
respect thereto (1) any condition or event that constitutes, or which
could reasonably be expected to result in the occurrence of, an Event of
Default or Default, (2) any notice that any Person has given to Borrower
or any of its Subsidiaries or any other action taken with respect to a claimed
default or event or condition of the type referred to in Section 6.1(b),  (3) any notice given or action taken in
respect of a claimed material default or breach of the Purchase Documents and
any claim for indemnification or reimbursement made with respect to the
Purchase Documents by any party thereto, or (4) any event or condition
that could reasonably be expected to result in any Material Adverse Effect.


 


(h)           Litigation.  Promptly upon any Responsible Officer of
Holdings or Borrower obtaining knowledge of (1) the institution of any
action, charge, claim, demand, suit, proceeding, petition, governmental
investigation, tax audit or arbitration now pending or threatened against or
affecting any Credit Party or any of its Subsidiaries or any property of any
Credit Party or any of its Subsidiaries (“Litigation”) not previously
disclosed by Borrower to Co-Administrative Agents or (2) any material
development in any action, suit, proceeding, governmental investigation or
arbitration at any time pending against or affecting any Credit Party or any of
its Subsidiaries or any property of any Credit Party or any of its Subsidiaries
which, in each case, could reasonably be expected to have a Material Adverse
Effect, Borrower will promptly give notice thereof to each Co-Administrative
Agents and provide such other information as may be reasonably available to
them to enable Co-Administrative Agents and their counsel to evaluate such
matter.


 


(i)            Notice of
Corporate and other Changes. 
Borrower shall provide prompt written notice of (1) any change
after the Restatement Date in the authorized and issued Stock of any Credit
Party (other than Holdings) or any Subsidiary of any Credit Party (other than
any change in the authorized and issued Stock of such Subsidiary held by
Borrower or any of its Subsidiaries) or any amendment to the articles or certificate
of incorporation, by-laws, partnership agreement or other organizational
documents of any Credit Party, (2) any Subsidiary created or acquired by
any Credit Party or any of its Subsidiaries after the Restatement Date,


 


44

















 


such notice, in each case, to
identify the applicable jurisdictions, capital structures or Subsidiaries, as
applicable, (3) any changes to the list of Subsidiaries that are Credit
Parties, (4) any amendment, supplement or other modification to any of the
Purchase Documents, (5) the occurrence of any ERISA Event that alone, or
together with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of Holdings and its Subsidiaries in an
aggregate amount exceeding $2,000,000, and (6) any other event that occurs
after the Restatement Date which would cause any of the representations and
warranties in Section 5 of this Agreement (except to the extent
such representation or warranty is made only as of the Restatement Date) or in
any other Loan Document to be untrue or misleading in any material
respect.  The foregoing notice
requirement shall not be construed to constitute consent by any of the Lenders
to any transaction referred to above which is not expressly permitted by the
terms of this Agreement.


 


(j)            Customer Concentration.  Borrower shall provide prompt written notice
if any customer which was one of Borrower’s and its Subsidiaries’ largest five (5) customers
on a consolidated basis in terms of revenue in the prior Fiscal Year gives
notice that it intends to cancel its contract or significantly reduce its usage
of services (or Borrower has reason to believe that such usage will be so
reduced) if as a result thereof such customer could reasonably be expected to
cease to be one of Borrower’s and its Subsidiaries’ largest ten (10) customers
on a consolidated basis in the then current Fiscal Year.


 


(k)           Other
Information.  With
reasonable promptness, Borrower will deliver such other information and data
with respect to Holdings or any Subsidiary of Holdings as from time to time may
be reasonably requested by a Co-Administrative Agent.


 


(l)            Compliance,
Pricing and Excess Cash Flow Certificate.  Together with each delivery of Financial
Statements of Holdings and its
Subsidiaries pursuant to Sections 4.4(a) and (b), Borrower
will deliver a fully and properly completed Compliance, Pricing and Excess Cash
Flow Certificate (in substantially the same form as Annex D (the “Compliance,
Pricing and Excess Cash Flow Certificate”) signed by Borrower’s chief
executive officer, chief financial officer or other officer acceptable to
Agent; provided that the Excess Cash Flow portion of such certificate is only
required to be delivered annually.


 


4.5           Accounting Terms; Utilization of GAAP for Purposes of
Calculations Under Agreement.  For purposes
of this Agreement, all accounting terms not otherwise defined herein shall have
the meanings assigned to such terms in conformity with GAAP.  Financial statements and other information
furnished to Agent pursuant to Section 4.4 or any other section
(unless specifically indicated otherwise) shall be prepared in accordance with
GAAP as in effect at the time of such preparation; provided that to the
extent an Accounting Change results in a material change in the method of
accounting in the financial statements required to be furnished to Agent
hereunder or in the calculation of financial covenants, standards or terms
contained in this Agreement, the parties hereto agree to enter into good faith
negotiations to amend such provisions so as equitably to reflect such changes
to the end that the criteria for evaluating the financial condition and
performance of the Credit Parties will be the same after such changes as they
were before such changes; and if the parties fail to agree on the amendment of
such


 


45

















 


provisions,
Borrower will furnish financial statements in accordance with such changes but
shall provide calculations for all financial covenants, perform all financial
covenants and otherwise observe all financial standards and terms in accordance
with applicable accounting principles and practices in effect immediately prior
to such changes; provided further that Borrower shall prepare footnotes
to the Financial Statements required to be delivered hereunder that show the
differences between the Financial Statements delivered (which reflect such
Accounting Changes) and the basis for calculating financial covenant compliance
(without reflecting such Accounting Changes).  
All such adjustments described in clause (c) of the definition of
the term Accounting Changes resulting from expenditures made subsequent to the
Restatement Date (including capitalization of costs and expenses or payment of
pre-Restatement Date liabilities) shall be treated as expenses in the period
the expenditures are made.


 


SECTION 5.

REPRESENTATIONS AND WARRANTIES


 


To induce Agent and Lenders to enter into the Loan
Documents, to make Loans and to issue or cause to be issued Letters of Credit,
Holdings and Borrower, jointly and severally, represent, warrant and covenant
to Agent and each Lender that the following statements are and, after giving
effect to the Related Transactions and the Acquisition, will remain true, correct
and complete until the Termination Date:


 


5.1           Disclosure.  (a)     To the knowledge of any Responsible
Officer of Holdings or Borrower, no representation or warranty of any Credit
Party contained in this Agreement, the Financial Statements referred to in Section 5.5,
the other Related Transactions Documents or any other document, certificate or
written statement furnished to Agent or any Lender by or on behalf of any such
Person for use in connection with the Loan Documents or the Related
Transactions Documents when taken as a whole contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order
to make the statements contained herein or therein not misleading in light of
the circumstances in which the same were made.


 


(b)           As of the
Restatement Date, immediately prior to giving effect to this Agreement on the
Restatement Date, (i) each representation and warranty of any Credit Party
set forth in the Existing Credit Agreement was true and correct in all material
respects (without duplication of any materiality qualifier contained therein
and except with respect to any representation or warranty that was as of a date
certain in which case such representation or warranty was true and correct in
all material respects as of such date (without duplication of any materiality
qualifier contained therein) and (ii) no “Default” or “Event of Default”
(as each such term was defined in the Existing Credit Agreement) had occurred
and was continuing under or with respect to the Existing Credit Agreement.


 


5.2           No Material Adverse Effect. 
Since December 31, 2008, there have been no events or changes in
facts or circumstances affecting Holdings or any of its Subsidiaries which had
or could reasonably be expected to have a Material Adverse Effect and that have
not been disclosed herein or in the attached Disclosure Schedules.


 


46

















 


5.3           No Conflict; Governmental Approvals. 
The consummation of the Related Transactions does not and will not
violate or conflict with any laws, rules, regulations or orders of any
Governmental Authority or violate, conflict with, result in a breach of, or
constitute a default (with due notice or lapse of time or both) under any
Contractual Obligation or organizational documents of Holdings or any of its
Subsidiaries except if such violations, conflicts, breaches or defaults have
not had and could not reasonably be expected to have, either individually or in
the aggregate, a Material Adverse Effect. 
The execution, delivery and performance by Holdings and Borrower of this
Agreement, and by each Credit Party of the other Loan Documents to which it is
a party do not require any consent or approval of, registration or filing with,
or any action by, any Governmental Authority or any other Person except those
as have been obtained or made and are in full force and effect or where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to have  a Material Adverse Effect.


 


5.4           Organization, Powers,
Capitalization and Good Standing.


 


(a)           Organization
and Powers.  Holdings and
each of its Subsidiaries is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and qualified to do
business in all states where such qualification is required except where
failure to be so qualified could not reasonably be expected to have a Material
Adverse Effect.  The (i) jurisdiction
of organization of Holding and each of its Subsidiaries and (ii) jurisdictions
in which Holdings and each of its Subsidiaries is as of the Restatement Date
qualified to do business are set forth on Schedule 5.4(a).  Holdings and each of its Subsidiaries has all
requisite organizational power and authority to own and operate its properties,
to carry on its business as now conducted and proposed to be conducted, to
enter into each Related Transactions Document to which it is a party and to
incur the Obligations, grant liens and security interests in the Collateral and
carry out the Related Transactions.  As
of the Restatement Date, the Subsidiaries of Holdings that are Credit Parties
are indicated as such on Schedule 5.4(a).


 


(b)           Capitalization.  As of the Restatement Date:  (i) the authorized Stock of Holdings and
each of its Subsidiaries is as set forth on Schedule 5.4(b); (ii) all
issued and outstanding Stock of Holdings and each of its Subsidiaries is duly
authorized and validly issued, fully paid and nonassessable, and such Stock was
issued in compliance in all material respects with all applicable state,
federal and foreign laws concerning the issuance of securities; (iii) all
issued and outstanding Stock of Borrower and each of its Subsidiaries is free
and clear of all Liens other than those in favor of Agent for the benefit of
Agent and Lenders; (iv) the identity of the holders of the Stock of each
of Borrower and its Subsidiaries and the percentage of their fully-diluted
ownership of the Stock of each of Borrower and its Subsidiaries is set forth on
Schedule 5.4(b); and (v) no Stock of Borrower or any of its
Subsidiaries, other than those described above, are issued and
outstanding.  Except as provided in Schedule
5.4(b),  as of the Restatement Date, there are no preemptive or other
outstanding rights, options, warrants, conversion rights or similar agreements
or understandings for the purchase or acquisition from Holdings or any of its
Subsidiaries of any Stock of any such entity.


 


47
















 


(c)           Binding
Obligation.  This
Agreement is, and the other Related Transactions Documents when executed and
delivered will be, the legally valid and binding obligations of the applicable
parties thereto, each enforceable against each of such parties, as applicable,
in accordance with their respective terms except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally and the effects of general principles of equity.


 


5.5           Financial Statements and Budget. 
All Financial Statements concerning Holdings, Borrower and
their respective Subsidiaries which have been or will hereafter be
furnished to Agent pursuant to this Agreement have been or will be prepared in
accordance with GAAP consistently applied (except as disclosed therein) and do
or will present fairly in all material respects the financial condition of the
entities covered thereby as at the dates thereof and the results of their
operations for the periods then ended, subject to, in the case of unaudited
Financial Statements, the absence of footnotes and normal year-end adjustments.


 


Each Budget delivered pursuant to Section 4.4(e) of
this Agreement represent or will represent as of the date thereof the good
faith estimate of Borrower and its senior management concerning the most
probable course of its business it being understood that projections are
subject to inherent uncertainties and that actual results may differ.


 


5.6           Intellectual Property.  Each of
Holdings and its Subsidiaries owns, is licensed to use or otherwise has the
right to use, all Intellectual Property used in or necessary for the conduct of
its business as currently conducted except where such failure could not be
reasonably expected to have a Material Adverse Effect and all registered
Intellectual Property is properly registered and is identified on Schedule
5.6.  Except as disclosed in Schedule
5.6, to the knowledge of any Responsible Officer of Holdings or Borrower,
the use of such Intellectual Property by Holdings and its Subsidiaries and the
conduct of their businesses does not and has not been alleged by any Person to
infringe on the rights of any Person.


 


5.7           Investigations, Audits, Etc. 
As of the Restatement Date, except as set forth on Schedule 5.7,
neither Holdings nor any of its Subsidiaries has any knowledge or has received
any formal notice that it is the subject of any review or audit by the IRS or
any governmental investigation concerning the violation or possible violation
of any law.


 


5.8           Employee Matters.  Except as set
forth on Schedule 5.8, (a) neither Holdings nor any Domestic
Subsidiary nor any of their respective employees is subject to any collective
bargaining agreement, (b) no petition for certification or union election
is pending with respect to the employees of Holdings or any Domestic Subsidiary
and no union or collective bargaining unit has sought such certification or
recognition with respect to the employees of Holdings or any Domestic
Subsidiary, (c) there are no strikes, slowdowns, work stoppages or
controversies pending or, to the knowledge of any Responsible Officer of
Holdings or Borrower after due inquiry, threatened between Holdings or any
other Credit Party and its respective employees, other than employee grievances
arising in the ordinary course of business which could not reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect and (d) hours worked by and payment made to employees of each of
Holdings and its Domestic


 


48

















 


Subsidiaries
comply in all material respects with the Fair Labor Standards Act and each
other federal, state, local or foreign law applicable to such matters.


 


5.9           Solvency.  Holdings and
its Subsidiaries when taken as a whole are Solvent.


 


5.10         Litigation; Adverse Facts. 
Except as set forth on Schedule 5.10, there are no judgments
outstanding against Holdings or any of its Subsidiaries or affecting any
property of Holdings or any of its Subsidiaries, nor is there any significant
Litigation pending, or to the knowledge of any Responsible Officer of Holdings
or Borrower threatened, against Holdings or any of its Subsidiaries.  None of such outstanding judgments or pending
or threatened Litigation could reasonably be expected to result in a Material
Adverse Effect.


 


5.11         Use of Proceeds;
Margin Regulations.


 


(a)           No part of
the proceeds of any Loan will be used for “buying” or “carrying” “margin stock”
which would result in any Loan being “directly or indirectly secured” by such
margin stock within the respective meanings of such terms under
Regulation U of the Board of Governors of the Federal Reserve System as
now and from time to time hereafter in effect or for any other purpose that
violates the provisions of the regulations of the Board of Governors of the
Federal Reserve System.  If requested by
Agent, Holdings and Borrower will, and will cause each of Borrower’s
Subsidiaries to, furnish to Agent and each Lender a statement to the foregoing
effect in conformity with the requirements of FR Form G-3 or FR Form U-1,
as applicable, referred to in Regulation U.


 


(b)           Borrower
shall utilize the proceeds of (i) the Acquisition Term Loan solely to
finance the Acquisition (and to pay any related transaction expenses), and (ii) the
Revolving Loan and the Swingline Loan to finance Borrower’s ordinary working
capital and general corporate needs (including, without limitation, for
Investments, Permitted Acquisitions, Restricted Payments and payments with
respect to Indebtedness expressly permitted hereunder).  Schedule 5.11 contains a description
of Borrower’s sources and uses of funds as of the Restatement Date, including
Loans and Letter of Credit Obligations to be made or incurred on that date, and
a funds flow memorandum detailing how funds from each source are to be
transferred for particular uses.


 


(c)           None of Holdings, Borrower or any of its
Subsidiaries is an “investment company” as defined in, or subject to regulation
under, the Investment Company Act of 1940.


 


5.12         Ownership of Property; Liens. 
As of the Restatement Date, the real estate (“Real Estate”)
listed in Schedule 5.12 constitutes all of the real property owned,
leased, subleased, or used by any Credit Party. 
Each of the Credit Parties owns good and marketable fee simple title to
all of its owned Real Estate, and valid and marketable leasehold interests in
all of its leased Real Estate, all as described on Schedule 5.12, and
copies of each material lease or a summary of terms thereof reasonably
satisfactory to Co-Administrative Agents have been delivered to the
Co-Administrative Agents.  Schedule
5.12 further describes any Real Estate with respect to which any Credit
Party is a lessor, sublessor or assignor as of the Restatement Date.  Each of the Credit Parties and each of its Subsidiaries
also has good and marketable title to, or valid


 


49

















 


leasehold
interests in, all of its personal property and assets.  As of the Restatement Date, none of the
properties and assets of any Credit Party or any of its Subsidiaries are
subject to any Liens other than Permitted Encumbrances, and there are no facts,
circumstances or conditions known to any Responsible Officer of Borrower that
may result in any Liens (including Liens arising under Environmental Laws)
other than Permitted Encumbrances against the properties or assets of any
Credit Party.  Each of the Credit Parties
has received all deeds, assignments, waivers, consents, nondisturbance and
attornment or similar agreements, bills of sale and other documents, and has
duly effected all recordings, filings and other actions necessary to establish,
protect and perfect such Credit Party’s right, title and interest in and to all
such Real Estate and other properties and assets except where the failure to do
so could not reasonably be expected to have a Material Adverse Effect.  Schedule 5.12 also describes any
purchase options, rights of first refusal or other similar contractual rights
pertaining to any Real Estate.  As of the
Restatement Date, no portion of any Credit Party’s Real Estate has suffered any
material damage by fire or other casualty loss that has not heretofore been
repaired and restored in all material respects to its original condition or
otherwise remedied.  As of the Restatement
Date, all material permits required to have been issued or appropriate to
enable the Real Estate to be lawfully occupied and used for all of the purposes
for which it is currently occupied and used have been lawfully issued and are
in full force and effect.


 


5.13         Environmental
Matters.


 


(a)           Except as
set forth in Schedule 5.13 as of the Restatement Date: (i) the Real
Estate is free of contamination from any Hazardous Material except for such
contamination that could not reasonably be expected to adversely impact the
value or marketability of such Real Estate and that could not reasonably be
expected to result in Environmental Liabilities of Holdings or its Subsidiaries
in excess of $1,000,000 in the aggregate; (ii) neither Holdings nor any
Subsidiary of Holdings has caused or suffered to occur any Release of Hazardous
Materials on, at, in, under, above, to, from or about any of their Real Estate;
(iii) Holdings and its Subsidiaries are and have been in compliance with
all Environmental Laws, except for such noncompliance that could not reasonably
be expected to result in Environmental Liabilities of Holdings or its
Subsidiaries in excess of $1,000,000 in the aggregate; (iv) Holdings and
its Subsidiaries have obtained, and are in compliance with, all Environmental
Permits required by Environmental Laws for the operations of their respective
businesses as presently conducted or as proposed to be conducted, except where
the failure to so obtain or comply with such Environmental Permits could not
reasonably be expected to result in Environmental Liabilities of Holdings or
its Subsidiaries in excess of $1,000,000 in the aggregate, and all such
Environmental Permits are valid, uncontested and in good standing; (v) neither
Holdings nor any Subsidiary of Holdings is involved in operations or knows of
any facts, circumstances or conditions, including any Releases of Hazardous
Materials, that are likely to result in any Environmental Liabilities of
Holdings or any Subsidiary of Holdings which could reasonably be expected to be
in excess of $1,000,000 in the aggregate, and neither Holdings nor any
Subsidiary of Holdings has permitted any current or former tenant or occupant
of the Real Estate to engage in any such operations; (vi) there is no
Litigation arising under or related to any Environmental Laws, Environmental
Permits or Hazardous Material that seeks damages, penalties, fines, costs or
expenses in excess of  $1,000,000 in
the aggregate or injunctive relief against, or that alleges criminal misconduct


 


50

















 


by, Holdings or any Subsidiary of
Holdings; (vii) no notice has been received by Holdings or any Subsidiary
of Holdings identifying any of them as a “potentially responsible party” or
requesting information under CERCLA or analogous state statutes, and to the
knowledge of any Responsible Officer of any the Credit Parties, there are no
facts, circumstances or conditions that could reasonably be expected to result
in any of Holdings or its Subsidiaries being identified as a “potentially
responsible party” under CERCLA or analogous state statutes; and (viii) Holdings
and its Subsidiaries have provided to Agent copies of all environmental
reports, reviews and audits and all written information pertaining to actual or
potential Environmental Liabilities, in each case relating to any of Holdings
or its Subsidiaries to the extent the foregoing are in the possession, custody
or control of Holdings or its Subsidiaries.


 


(b)           Holdings and
Borrower each hereby acknowledges and agrees that Agent (i) is not now,
and has not ever been, in control of any of the Real Estate or affairs of
Holdings or its Subsidiaries and (ii) does not have the capacity through
the provisions of the Loan Documents or otherwise to influence Holding’s or its
Subsidiaries’ conduct with respect to the ownership, operation or management of
any of their Real Estate or compliance with Environmental Laws or Environmental
Permits.


 


5.14         ERISA; Foreign
Pension Plans.


 


(a)           Schedule
5.14 lists all material Plans and material Foreign Pension Plans
that are sponsored or maintained by any Credit Party and all Title IV Plans,
Multiemployer Plans that any Credit Party or ERISA Affiliate contributes to,
sponsors or maintains.  Copies of all Title
IV Plans, together with a copy of the latest Form 5500-series report for
each such Title IV Plan have been made available to Agent.  Except with respect to Multiemployer Plans,
each Qualified Plan has received a favorable determination from the IRS, is
maintained under a prototype plan and may rely upon a favorable opinion letter
issued by the IRS with respect to such prototype plan, or is within the
applicable remedial amendment period. 
Except as would not be reasonably expected to have a Material Adverse
Effect: (i) each Plan is in compliance with the applicable provisions of
ERISA and the IRC, (ii) neither any Credit Party nor ERISA Affiliate has
failed to make any contribution or pay any amount due as required by either Section 412
of the IRC or Section 302 of ERISA or the terms of any Title IV Plan and (iii) neither
any Credit Party nor ERISA Affiliate has engaged in a non-exempt “prohibited
transaction,” as defined in Section 406 of ERISA and Section 4975 of
the IRC, in connection with any Plan, that would subject any Credit Party to a
tax on prohibited transactions imposed by Section 502(i) of ERISA or Section 4975
of the IRC.


 


(b)           Except as
set forth in Schedule 5.14: (i) no Title IV Plan has any Unfunded
Pension Liability; (ii) no ERISA Event or event described in Section 4062(e) of
ERISA with respect to any Title IV Plan has occurred or is reasonably expected
to occur; (iii) there are no pending, or to the knowledge of any
Responsible Officer of Borrower, threatened claims (other than claims for
benefits in the normal course), sanctions, actions or lawsuits, asserted or
instituted against any Plan or any Person as fiduciary or sponsor of any Plan
that could reasonably be expected to have a Material Adverse Effect; (iv) no
Credit Party or ERISA Affiliate has incurred or reasonably expects to incur a
material liability as a result of a


 


51

















 


complete or partial withdrawal from a
Multiemployer Plan; and (v) within the last five years no Title IV Plan of
any Credit Party or ERISA Affiliate has been terminated, whether or not in a “standard
termination” as that term is used in Section 4041(b)(1) of ERISA.


 


(c)           (i)            Except as
would not reasonably be expected to have a Material Adverse Effect, each
Foreign Pension Plan is in compliance and in good standing (to the extent such
concept exists in the relevant jurisdiction) in all material respects with all
laws, regulations and rules applicable thereto, including all funding
requirements, and the respective requirements of the governing documents for
such Foreign Pension Plan; (ii) with respect to each Foreign Pension Plan
maintained or contributed to by any Credit Party or any Subsidiary of a Credit
Party, (A) that is required by applicable law to be funded in a trust or
other funding vehicle, such Foreign Pension Plan is in compliance with
applicable law regarding funding requirements except to the extent permitted
under applicable law and (B) that is not required by applicable law to be
funded in a trust or other funding vehicle, reasonable reserves have been
established where required by ordinary accounting practices in the jurisdiction
in which such Foreign Pension Plan is maintained; and (iii) no actions or
proceedings have been taken or instituted to terminate or wind-up a Foreign
Pension Plan with respect to which the Credit Parties or any Subsidiary of a
Credit Party could reasonably be expected to have any material liability.


 


5.15         Brokers.  No broker or
finder acting on behalf of any Credit Party or Affiliate thereof brought about
the obtaining, making or closing of the Loans, the Related Transactions or the
Acquisition, and no Credit Party or Affiliate thereof has any obligation to any
Person in respect of any finder’s or brokerage fees in connection therewith.


 


5.16         Taxes and
Tax Returns.


 


(a)           As of the
Restatement Date, (i) all Tax Returns required to be filed by the Credit
Parties have been timely and properly filed and (ii) all taxes that are
due (other than taxes being contested in good faith by appropriate proceedings
and for which adequate reserves have been provided for in accordance with GAAP)
have been paid, except where the failure to file Tax Returns or pay Taxes would
not reasonably be expected to have a Material Adverse Effect.  No Governmental Authority has asserted any
claim for taxes, or to any Credit Party’s knowledge, has threatened to assert
any claim for taxes that would, if not paid by a Credit Party, have a Material
Adverse Effect.  All taxes required by
law to be withheld or collected and remitted (including, without limitation,
income tax, unemployment insurance and workmen’s compensation premiums) with
respect to the Credit Parties have been withheld or collected and paid to the
appropriate Governmental Authorities (or are properly being held for such
payment), except for amounts the nonpayment of which or the failure of which to
collect, withhold or remit would not be reasonably likely to have a Material
Adverse Effect.


 


(b)           None of the
Credit Parties has been notified that either the IRS, or any other Governmental
Authority, has raised or intends to raise, any adjustments with respect to
Taxes of the Credit Parties, which adjustments would be reasonably likely to
have a Material Adverse Effect.


 


52

















 


5.17         Maintenance of Properties; Insurance. 
All material properties used in the business of Holdings and its
Subsidiaries are maintained in good repair, working order and condition
(ordinary wear and tear and casualty excepted) and all appropriate repairs, renewals
and replacements thereof have been made or will be made in a timely
manner.  All insurance described in Section 2.2
is maintained by Holdings and its Subsidiaries. 
Schedule 5.17 lists all insurance policies of any nature
maintained, as of the Restatement Date, for current occurrences by each Credit
Party, as well as a summary of the key business terms of each such policy such
as deductibles, coverage limits and term of policy.


 


5.18         Foreign
Assets Control Regulations and Anti-Money Laundering.


 


(a)           OFAC.  Neither any Credit Party nor any Subsidiary
of any Credit Party (i) is a person whose property or interest in property
is blocked or subject to blocking pursuant to Section 1 of Executive Order
13224 of September 23, 2001 Blocking Property and Prohibiting Transactions
With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg.
49079 (2001)), (ii) engages in any dealings or transactions prohibited by Section 2
of such executive order, or is otherwise knowingly associated with any such
person in any manner violative of Section 2, (iii) is an SDN, or (iv) conducts
business with an SDN or in a country in violation of a Sanctions Program.


 


(b)           Bank Secrecy
Act.  Each of the Credit
Parties and each of their respective Subsidiaries are in compliance, in all
material respects, with the Bank Secrecy Act (31 U.S.C. §§ 5311 et seq.),
as amended by Title III of the Patriot Act, International Money Laundering
Abatement and Anti-terrorism Financing Act of 2001.


 


(c)           Foreign
Corrupt Practices Act. 
No part of the proceeds of the Loans will be used, directly or
indirectly, for any payments to any governmental official or employee,
political party, official of a political party, candidate for political office,
or anyone else acting in an official capacity, in order to obtain, retain or
direct business or obtain any improper advantage, in violation of the United
States Foreign Corrupt Practices Act of 1977, as amended.


 


5.19         Purchase
Documents.


 


(a)           Borrower has
furnished to Agent true, complete and correct copies of all material Purchase
Documents.  The Purchase Documents have
not subsequently been amended, supplemented, or modified (other than (i) amendments,
supplements and modifications, if any, delivered to Agent on or prior to the
Restatement Date and consented to or approved on or prior to the Restatement
Date by Agent or (ii) as expressly permitted by this Agreement after the
Restatement Date) and constitute the complete understanding among the parties
thereto in respect of the matters and transactions covered thereby.


 


(b)           The
requirements of Article VIII of the Purchase Agreement have been satisfied
(or with the written consent of Agent, waived) as of the Restatement Date.


 


(c)           The
consummation of the Acquisition does not and will not violate or conflict with
any laws, rules, regulations or orders of any Governmental Authority or
violate,


 


53

















 


conflict with, result in a breach of,
or constitute a default (with due notice or lapse of time or both) under any
Loan Document or other Contractual Obligation or organizational documents of
Holdings or any of its Subsidiaries except if such violations, conflicts,
breaches or defaults have not had and could not reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect.


 


(d)           Holdings and
each of its Subsidiaries has all requisite organizational power and authority
to enter into the Purchase Documents to which it is a party and to carry out
the Acquisition.


 


SECTION 6.

DEFAULT, RIGHTS AND REMEDIES


 


6.1           Event of
Default.


 


“Event of Default” shall mean the occurrence or
existence of any one or more of the following:


 


(a)           Payment.  (1) Failure to pay any installment or
other payment of principal of any Loan when due, or to repay Revolving Loans to
reduce their balance to the maximum amount of Revolving Loans then permitted to
be outstanding or to reimburse any L/C Issuer for any payment made by such L/C
Issuer under or in respect of any Letter of Credit when due or (2) failure
to pay, within three (3) Business Days after the due date, any interest on
any Loan or any other amount due under this Agreement or any of the other Loan
Documents; or


 


(b)           Default in
Other Agreements. 
(1) Any Credit Party or any of its Subsidiaries fails to pay when
due or within any applicable grace period any principal or interest on
Indebtedness (other than the Loans) or any Contingent Obligations or (2) breach
or default of any Credit Party or any of its Subsidiaries, or the occurrence of
any condition or event, with respect to any Indebtedness (other than the Loans)
or any Contingent Obligations, in each case, if the effect of such failure to
pay, breach, default or occurrence is to cause or to permit the holder or
holders then to cause, Indebtedness and/or Contingent Obligations having a
principal amount in excess of $2,500,000  individually
or in excess of $5,000,000 in the aggregate to become or be declared due prior
to their stated maturity; or


 


(c)           Breach of
Certain Provisions. 
Failure of any Credit Party to perform or comply with any term or
condition contained in (1) the SunTrust Fee Letter or (2) that
portion of Section 2.2 relating to the Credit Parties’ obligation
to maintain insurance, Section 2.3, Section 2.4, Section 3
or Section 4; or


 


(d)           Breach of
Warranty.  Any representation,
warranty, certification or other statement made by any Credit Party in any Loan
Document or in any statement or certificate at any time given by such Person in
writing pursuant or in connection with any Loan Document is


 


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false in any material respect
(without duplication of materiality qualifiers contained therein) on the date
made; or


 


(e)           Other
Defaults Under Loan Documents. 
Any Credit Party defaults in the performance of or compliance with any
term contained in this Agreement or the other Loan Documents (other than
occurrences described in other provisions of this Section 6.1 for
which a different grace or cure period is specified, or for which no cure
period is specified and which constitute immediate Events of Default) and such
default is not remedied or waived within thirty (30) days after the earlier of (1) receipt
by Borrower of notice from either Co-Administrative Agent or Requisite Lenders
of such default or (2) actual knowledge of a Responsible Officer of
Holdings or Borrower of such default; or


 


(f)            Involuntary
Bankruptcy; Appointment of Receiver, Etc.  (1) A court enters a decree or order for
relief with respect to any Credit Party in an involuntary case under the
Bankruptcy Code, which decree or order is not stayed or other similar relief is
not granted under any applicable federal or state law; or (2) the
continuance of any of the following events for sixty (60) days unless
dismissed, bonded or discharged:  (a) an
involuntary case is commenced against  any Credit
Party, under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect; or (b) a decree or order of a court for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or other
officer having similar powers over  any Credit
Party, or over all or a substantial part of its property, is entered; or (c) a
receiver, trustee or other custodian is appointed without the consent of a
Credit Party, for all or a substantial part of the property of  the Credit Party; or (d) an order, judgment or decree
is entered against any Credit Party decreeing the dissolution or split up of
such Credit Party; or


 


(g)           Voluntary
Bankruptcy; Appointment of Receiver, Etc.  (1) Any Credit Party commences a voluntary
case under the Bankruptcy Code, or consents to the entry of an order for relief
in an involuntary case or to the conversion of an involuntary case to a
voluntary case under any such law or consents to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; or (2) any Credit Party makes any assignment for the
benefit of creditors; or (3) the Board of Directors of any Credit Party
adopts any resolution or otherwise authorizes action to approve any of the
actions referred to in this Section 6.1(g); or


 


(h)           Judgment and
Attachments.  Any money
judgment, writ or warrant of attachment, or similar process (other than those
described elsewhere in this Section 6.1) involving an amount in
excess of $2,000,000 (in any individual case or in the aggregate) in either
case to the extent not adequately covered by insurance in Agent’s sole
discretion as to which the insurance company has acknowledged coverage, is
entered or filed against one or more of the Credit Parties or their
Subsidiaries or any of their respective assets and remains undischarged,
unvacated, unbonded or unstayed for a period of thirty (30) days or in any
event later than five (5) Business Days prior to the date of any proposed
sale thereunder; or


 


(i)            Solvency.  The Credit Parties when taken as a whole
cease to be Solvent; or


 


55
















 


(j)                                     Invalidity of Loan Documents /
Purchase Documents.  (1) Any of the Loan Documents for any
reason, other than a partial or full release in accordance with the terms
thereof, ceases to be in full force and effect or is declared to be null and
void, or any Credit Party denies that it has any further liability under any
Loan Documents to which it is party, or gives notice to such effect; or (2) the
Purchase Documents shall cease to be valid and binding agreements against any
party thereto other than in accordance with their express terms to the extent
such cessation affects any indemnification provisions provided in the Purchase
Documents or is otherwise adverse in any material respect to the Agent and the
Lenders; or


 


(k)                                  Change of Control. 
A Change of Control occurs; or


 


(l)                                     Subordinated Indebtedness. 
The failure of Holdings or any of its Subsidiaries or any creditor of
Holdings or any of its Subsidiaries to comply with the material terms of any
subordination or intercreditor agreement or any subordination provisions of any
note or other document, running to the benefit of Agent or Lenders in respect
of any Indebtedness, or if any such document becomes null and void or, with
respect to Indebtedness having an outstanding principal amount of $2,500,000 individually
or $5,000,000 in the aggregate, any party denies further liability under any
such document or provides notice to that effect.


 


6.2                                 Suspension
or Termination of Commitments. 
Subject to Section 6.3, upon the occurrence of any Event of
Default, Agent, at the request of Requisite Revolving Lenders, shall, without
notice or demand, immediately suspend or terminate all or any portion of
Lenders’ obligations to make additional Loans or issue or cause to be issued
Letters of Credit under the Revolving Loan Commitment; provided that, if
the Event of Default is waived by Requisite Revolving Lenders, the Commitments
shall be reinstated.


 


6.3                                 Acceleration
and other Remedies.  Upon the
occurrence of any Event of Default described in Sections 6.1(f) or
6.1(g), the Commitments shall be immediately terminated and all of the
Obligations, including the Revolving Loans, shall automatically become
immediately due and payable, without presentment, demand, protest, notice of
intent to accelerate, notice of acceleration or other requirements of any kind,
all of which are hereby expressly waived by Borrower, and the Commitment shall
thereupon terminate.  Upon the occurrence
and during the continuance of any other Event of Default, Agent, at the request
of the Requisite Lenders, shall, by written notice to Borrower (a) reduce
the aggregate amount of the Commitments from time to time, (b) declare all
or any portion of the Loans and all or any portion of the other Obligations to
be, and the same shall forthwith become, immediately due and payable together
with accrued interest thereon, (c) terminate all or any portion of the
obligations of Agent, L/C Issuers and Lenders to make Revolving Credit Advances
and issue Letters of Credit, (d) demand that Borrower immediately deliver
cash to Agent for the benefit of L/C Issuers (and Borrower shall then
immediately so deliver) in an amount equal to 105% of the aggregate outstanding
Letter of Credit Obligations and (e) exercise any other remedies which may
be available under the Loan Documents or applicable law.  Borrower hereby grants to Agent, for the
benefit of L/C Issuers and each Lender with a participation in any Letters of
Credit then outstanding, a security interest in such cash collateral to secure
all of the Letter of Credit Obligations. 
Any such cash collateral 


 


56

















 


shall be made available
by Agent to L/C Issuers to reimburse L/C Issuers for payments of drafts drawn
under such Letters of Credit and any fees, Charges and reasonable expenses of
L/C Issuers with respect to such Letters of Credit and the unused portion
thereof, after all such Letters of Credit shall have expired or been fully
drawn upon, shall be applied to repay any other Obligations.  After all such Letters of Credit shall have
expired or been fully drawn upon and all Obligations shall have been satisfied
and paid in full, the balance, if any, of such cash collateral shall be
(subject to any rights of third parties and except as otherwise directed by a
court of competent jurisdiction) returned to Borrower.  Borrower shall from time to time execute and
deliver to Agent such further documents and instruments as Agent may request
with respect to such cash collateral.


 


6.4                                 Performance
by Co-Administrative Agent.  If any
Credit Party shall fail to perform any covenant, duty or agreement contained in
any of the Loan Documents and as a result thereof an Event of Default shall
have occurred and be continuing, the Co-Administrative Agents may perform or
attempt to perform such covenant, duty or agreement on behalf of such Credit
Party.  In such event, Holdings or
Borrower shall, at the request of a Co-Administrative Agent, promptly pay any
amount reasonably expended by such Co-Administrative Agent in such performance
or attempted performance to such Co-Administrative Agent, together with
interest thereon at the applicable rate of interest in effect upon the
occurrence of an Event of Default as specified in Section 1.2(d) from
the date of such expenditure until paid. 
Notwithstanding the foregoing, it is expressly agreed that no
Co-Administrative Agent shall have any liability or responsibility for the
performance of any obligation of any Credit Party under this Agreement or any
other Loan Document.


 


6.5                                 Application
of Proceeds.  Notwithstanding
anything to the contrary contained in this Agreement, upon the occurrence and
during the continuance of an Event of Default, Borrower irrevocably waives the
right to direct the application of any and all payments at any time or times
thereafter received by Agent from or on behalf of Borrower, and Agent shall
have the continuing and exclusive right to apply and to reapply any and all
payments received at any time or times after the occurrence and during the
continuance of an Event of Default. 
Notwithstanding anything to the contrary contained in this Agreement
(including, without limitation, Section 1.1 and 1.5 hereof),
all payments (including the proceeds of any Asset Disposition or other sale of,
or other realization upon, all or any part of the Collateral) received after
acceleration of the Obligations shall be applied:  first, to all Fees, costs and expenses
incurred by or owing to Agent and any Lender with respect to this Agreement,
the other Loan Documents or the Collateral; second, to accrued and
unpaid interest on the Obligations (including any interest which but for the
provisions of the Bankruptcy Code, would have accrued on such amounts); third,
to the principal amount of the Obligations outstanding (other than Obligations
owed under an Interest Rate Agreement or an Other Hedging Agreement) and to
cash collateralize outstanding Letters of Credit (pro rata among all such
Obligations based upon the principal amount thereof or the outstanding face
amount of such Letters of Credit, as applicable, and with respect to amounts
applied to Term Loans, pro rata among all remaining Scheduled Installments
thereof); and fourth to any other Obligations of Borrower owing to Agent
or any Lender under the Loan Documents or any Interest Rate Agreement or Other
Hedging 


 


57

















 


Agreement.  Any balance remaining shall be delivered to
Borrower or to whomever may be lawfully entitled to receive such balance or as
a court of competent jurisdiction may direct.


 


SECTION 7.

CONDITIONS TO LOANS


 


The obligations of
Lenders and L/C Issuers to make Loans and to issue or cause to be issued
Letters of Credit are subject to satisfaction of all of the applicable
conditions set forth below.


 


7.1                                 Conditions
to Acquisition Term Loans.  The
obligations of Lenders and L/C Issuers to make Loans and issue Letters of
Credit on the Restatement Date are, in addition to the conditions precedent
specified in Section 7.2, subject to the delivery of all documents
listed on, the taking of all actions set forth on and the satisfaction of all
other conditions precedent listed in Annex B or in the closing
checklist, all in form and substance, or in a manner, reasonably satisfactory
to Co-Administrative Agents and Lenders.


 


7.2                                 Conditions
to All Loans.  Except as otherwise
expressly provided herein, no Lender or L/C Issuer shall be obligated to fund
any Advance or incur any Letter of Credit Obligation, if, as of the date
thereof (the “Funding Date”):


 


(a)                                  any representation or warranty by
any Credit Party contained herein or in any other Loan Document is untrue or
incorrect in any material respect (without duplication of any materiality
qualifier contained therein) as of such date, except to the extent that such
representation or warranty expressly relates to an earlier date in which case
if such representation or warranty is untrue or incorrect in any material
respect (without duplication of any materiality qualifier contained therein) as
of such earlier date, unless Co-Administrative Agents and the Requisite
Revolving Lenders have determined to make such Advance or incur such Letter of
Credit Obligation notwithstanding the fact that such warranty or representation
is untrue or incorrect;


 


(b)                                 any Default or Event of Default has
occurred and is continuing or would result after giving effect to any Advance
(or the incurrence of any Letter of Credit Obligation), unless
Co-Administrative Agents and the Requisite Revolving Lenders shall have
determined to make any Advance or incur any Letter of Credit Obligation
notwithstanding the occurrence and continuance of such Default or Event of
Default; or


 


(c)                                  after giving effect to any Advance
(or the incurrence of any Letter of Credit Obligations), the outstanding amount
of the Revolving Loan would exceed remaining Borrowing Availability.


 


The request and
acceptance by Borrower of the proceeds of any Advance, the incurrence of any
Letter of Credit Obligations or the conversion or continuation of any Loan
into, or as, a LIBOR Loan shall be deemed to constitute, as of the date
thereof, (i) a representation and warranty by 


 


58

















 


Borrower that the
conditions in this Section 7.2 
have been satisfied and (ii) a reaffirmation by Borrower of the
granting and continuance of Agent’s Liens, on behalf of itself and Lenders,
pursuant to the Collateral Documents.


 


SECTION 8.

ASSIGNMENT AND PARTICIPATION


 


8.1                                 Assignment and Participations.


 


(a)                                  Subject to the terms of this Section 8.1,
any Lender may make assignments to a Person (other than a natural Person or to
any Credit Party or an Affiliate thereof) of, or sell participations in, at any
time or times, the Loan Documents, Loans, Letter of Credit Obligations and any
Commitment or any portion thereof or interest therein, including any Lender’s
rights, title, interests, remedies, powers or duties thereunder.  Any assignment by a Lender (a “Sale”) shall
be for a fixed and not a varying percentage of the assigning Lender’s
respective Loans, Commitments and Letter of Credit Obligations (but do not have
to be ratable between the Revolving Loans and Term Loans) and shall:  (i) require the consent of Agent (which
consent shall not be unreasonably withheld or delayed) if (A) in the case
of an assignment of any unfunded Commitment, such assignment is to any Person
that is not a Lender with an existing Commitment in respect of the same
facility as the assigned Commitment, an Affiliate of such assigning Lender or
an investment fund managed by the same investment advisor as the assigning
Lender, or (B) in the case of an assignment of any Loan, such assignment
is not a Lender Group Assignment; (ii) except with respect to any Lender
Group Assignment or as approved in writing by the Agent and Borrower, after
giving effect to any such partial assignment, the assignee Lender shall have
Loans and Commitments in an amount at least equal to $1,000,000 and the assigning Lender shall have retained Loans and
Commitments in an amount at least equal to $1,000,000 (unless all of the Loans and Commitments of such assigning
Lender have been assigned); (iii) require the consent of Borrower (which consent shall not be unreasonably
withheld or delayed) if (A) no Event of Default has occurred and is
continuing, and (B) such assignment is not a Lender Group Assignment; and (iv) if
such assignment is an assignment of Revolving Loans or a Revolving Loan
Commitment, require the consent of the Swingline Lender and L/C Issuer (which
consent shall not be unreasonably withheld or delayed).  The parties to each Sale (other than those
described in clause (g) or (h) below) shall execute and deliver to
Agent an Assignment via an electronic settlement system designated by Agent
(or, if previously agreed with Agent, via a manual execution and delivery of
the Assignment) evidencing such Sale, together with any existing Note subject
to such Sale (or any affidavit of loss therefor acceptable to Agent), any tax
forms required to be delivered pursuant to Section 1.9 and payment
of an assignment fee in the amount of $3,500, provided that (1) if a Sale
is a Lender Group Assignment under clause (ii) or (iii) of the
definition thereof then no assignment fee shall be due in connection with such
Sale, and (2) if a Sale by a Lender is not a Lender Group Assignment under
Clause (ii) or (iii) of the definition thereof, and concurrently such
Lender makes a Lender Group Assignment under Clause (ii) or (iii) of
the definition thereof, then only one assignment fee of $3,500 shall be due in
connection with such Sale; provided further that if a Sale is an assignment
whereby GE Capital is either an assignee or assignor thereunder, then, so 


 


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long as GE Capital is a Co-Administrative Agent hereunder, no
such assignment fee shall be due and owing in connection with such
assignment.  Upon receipt of all the
foregoing, and conditioned upon such receipt and, if such Assignment is not a
Lender Group Assignment, upon Agent (and Borrower, if applicable) consenting to
such Assignment (if required), from and after the effective date specified in
such Assignment, Agent shall record or cause to be recorded in the Register the
information contained in such Assignment. 
Subject to the recording of an Assignment by Agent in the Register
pursuant to Section 1.7(b), (i) the assignee thereunder shall
become a party hereto and, to the extent that rights and obligations under the
Loan Documents have been assigned to such assignee pursuant to such Assignment,
shall have the rights and obligations of a Lender, (ii) any applicable Note
shall be transferred to such assignee through such entry and (iii) the
assignor thereunder shall, to the extent that rights and obligations under this
Agreement have been assigned by it pursuant to such Assignment, relinquish its
rights (except for those surviving the termination of the Commitments and the
payment in full of the Obligations) and be released from its obligations under
the Loan Documents, other than those relating to events or circumstances
occurring prior to such assignment (and, in the case of an Assignment covering
all or the remaining portion of an assigning Lender’s rights and obligations
under the Loan Documents, such Lender shall cease to be a party hereto).  Borrower hereby acknowledges and agrees that
any assignment shall give rise to a direct obligation of Borrower to the
assignee and that the assignee shall be considered to be a “Lender.”  In all instances, each Lender’s liability to
make Loans hereunder shall be several and not joint and shall be limited to
such Lender’s Pro Rata Share of the applicable Commitment.  In the event Agent or any Lender assigns or
otherwise transfers all or any part of the Obligations, Agent or any such
Lender shall so notify Borrower and Borrower shall, upon the request of Agent
or such Lender, execute new Notes in exchange for the Notes, if any, being
assigned.


 


(b)                                 Any participation by a Lender of all
or any part of its Commitments shall be made with the understanding that all
amounts payable by Borrower hereunder shall be determined as if that Lender had
not sold such participation, and that the holder of any such participation
shall not be entitled to require such Lender to take or omit to take any action
hereunder except actions directly affecting (i) any reduction in the
principal amount of, or interest rate or Fees payable with respect to, any Loan
in which such holder participates, (ii) any extension of the scheduled
amortization of the principal amount of any Loan in which such holder
participates or the final maturity date thereof, and (iii) any release of
all or substantially all of the Collateral or release any one or more
Guarantors if the effect of such release would be to diminish all or
substantially all of the collective value of the credit support provided by the
Guaranties (other than in accordance with the terms of this Agreement, the
Collateral Documents or the other Loan Documents).  Solely for purposes of Sections 1.8, 1.9,
8.3 and 9.1, Borrower acknowledges and agrees that a participation shall
give rise to a direct obligation of Borrower to the participant and the
participant shall be considered to be a “Lender.”  Except as set forth in the preceding sentence
neither Borrower nor any other Credit Party shall have any obligation or duty
to any participant.  Neither Agent nor
any Lender (other than the Lender selling a participation) shall have any duty
to any participant and may continue to deal solely with the Lender selling a
participation as if no such sale had occurred.


 


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(c)                                  Except as expressly provided in this
Section 8.1, no Lender shall, as between Borrower and that Lender,
or Agent and that Lender, be relieved of any of its obligations hereunder as a
result of any sale, assignment, transfer or negotiation of, or granting of participation
in, all or any part of the Loans, the Notes or other Obligations owed to such
Lender.


 


(d)                                 Holdings and Borrower shall assist
each Lender permitted to sell assignments or participations under this Section 8.1
as required to enable the assigning or selling Lender to effect any such
assignment or participation, including the execution and delivery of any and
all agreements, notes and other documents and instruments as shall be requested
and the prompt preparation of informational materials for, and the
participation of management in meetings with, potential assignees or
participants, all on a timetable established by Agent in its sole
discretion.  Holdings and Borrower shall
certify the correctness, completeness and accuracy of all descriptions of the
Credit Parties and their respective affairs contained in any selling materials
provided by it and all other information provided by it and included in such
materials, except that any Budget delivered by Borrower shall only be certified
by Borrower as having been prepared by Borrower in compliance with the
representations contained in Section 5.5.


 


(e)                                  A Lender may furnish any information
concerning Credit Parties in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants);
provided that such Lender shall obtain from assignees or participants
confidentiality covenants substantially equivalent to those contained in Section 9.14.


 


(f)                                    So long as
no Event of Default has occurred and is continuing, no Lender shall assign or
sell participations in any portion of its Loans or Commitments to a potential
Lender or participant, if, as of the date of the proposed assignment or sale,
the assignee Lender or participant would be subject to capital adequacy or
similar requirements under Section 1.8(a), increased costs or an
inability to fund LIBOR Loans under Section 1.8(b), or withholding
taxes in accordance with Section 1.9.


 


(g)                                 In addition to the other rights
provided in this Section 8.1, each Lender may grant a security
interest in, or otherwise assign as collateral, any of its rights under this
Agreement, whether now owned or hereafter acquired (including rights to
payments of principal or interest on the Loans), to (A) any federal
reserve bank (pursuant to Regulation A of the Federal Reserve Board), without
notice to Agent or (B) any holder of, or trustee for the benefit of the
holders of, such Lender’s Indebtedness or equity securities, by notice to
Agent; provided, however, that no such holder or trustee, whether because of
such grant or assignment or any foreclosure thereon (unless such foreclosure is
made through an assignment in accordance with clause (a) above), shall be
entitled to any rights of such Lender hereunder and no such Lender shall be
relieved of any of its obligations hereunder.


 


(h)                                 In addition to the other rights
provided in this Section 8.1, each Lender may, (x) with notice
to Agent, grant to an SPV the option to make all or any part of any Loan that
such Lender would otherwise be required to make hereunder (and the exercise of
such option by such SPV and the making of Loans pursuant thereto shall satisfy
the obligation of such Lender to make such Loans hereunder) and such SPV may
assign to such Lender the right to 


 


61

















 


receive payment with respect to any Obligation and (y) without
notice to or consent from Agent or Borrower, sell participations to one or more
Persons in or to all or a portion of its rights and obligations under the Loan
Documents (including all its rights and obligations with respect to the Term
Loans, Revolving Loans and Letters of Credit); provided, however, that, whether
as a result of any term of any Loan Document or of such grant or participation,
(i) no such SPV or participant shall have a commitment, or be deemed to
have made an offer to commit, to make Loans hereunder, and, except as provided
in the applicable option agreement, none shall be liable for any obligation of
such Lender hereunder, (ii) such Lender’s rights and obligations, and the
rights and obligations of the Credit Parties and the Secured Parties towards
such Lender, under any Loan Document shall remain unchanged and each other
party hereto shall continue to deal solely with such Lender, which shall remain
the holder of the Obligations in the Register, except that (A) each such
participant and SPV shall be entitled to the benefit of Section 1.9,
but, with respect to Section 1.9(c), only to the extent such
participant or SPV delivers the tax forms such Lender is required to collect
pursuant to Section 1.9 and then only to the extent of any amount
to which such Lender would be entitled in the absence of any such grant or
participation and (B) each such SPV may receive other payments that would
otherwise be made to such Lender with respect to Loans funded by such SPV to
the extent provided in the applicable option agreement and set forth in a
notice provided to Agent by such SPV and such Lender, provided, however, that
in no case (including pursuant to clause (A) or (B) above) shall an
SPV or participant have the right to enforce any of the terms of any Loan
Document, and (iii) the consent of such SPV or participant shall not be
required (either directly, as a restraint on such Lender’s ability to consent
hereunder or otherwise) for any amendments, waivers or consents with respect to
any Loan Document or to exercise or refrain from exercising any powers or
rights such Lender may have under or in respect of the Loan Documents
(including the right to enforce or direct enforcement of the Obligations),
except for those described in clauses (ii) and (iii) of Section 9.2(c) with
respect to amounts, or dates fixed for payment of amounts, to which such
participant or SPV would otherwise be entitled and, in the case of
participants, except for those described in clause (v) of Section 9.2(c).  No party hereto shall institute (and each of
Borrower and Holdings shall cause each other Credit Party not to institute)
against any SPV grantee of an option pursuant to this clause (h) any
bankruptcy, reorganization, insolvency, liquidation or similar proceeding,
prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper of such SPV; provided, however, that each Lender
having designated an SPV as such agrees to indemnify each Credit Party against
any Liability that may be incurred by, or asserted against, such Credit Party
as a result of failing to institute such proceeding (including a failure to get
reimbursed by such SPV for any such Liability). 
The agreement in the preceding sentence shall survive the termination of
the Commitments and the payment in full of the Obligations.


 


8.2                                 Agents.


 


(a)                                  Appointment. 
Each Lender and each L/C Issuer hereby designates and appoints (i) each
of SunTrust and GE Capital as its Co-Administrative Agent under this Agreement
and the other Loan Documents and (ii) SunTrust as its Agent under this
Agreement and the other Loan Documents. 
Each Lender hereby irrevocably authorizes Agent to execute and deliver
the Collateral Documents and authorizes the Co-Administrative Agents to take
such 


 


62

















 


action or to refrain from taking such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers as are set forth herein or therein, together with such
other powers as are reasonably incidental thereto.  Co-Administrative Agents are authorized and
empowered to amend, modify, or waive any provisions of this Agreement or the
other Loan Documents on behalf of Lenders subject to the requirement that
certain of Lenders’ consent be obtained in certain instances as provided in
this Section 8.2 and Section 9.2.  The provisions of this Section 8.2
are solely for the benefit of Co-Administrative Agents and Lenders and neither
Holdings nor any of its Subsidiaries shall have any rights as a third party
beneficiary of any of the provisions hereof. 
In performing their functions and duties under this Agreement, Co-Administrative
Agents shall act solely as agents of Lenders and do not assume and shall not be
deemed to have assumed any obligation toward or relationship of agency or trust
with or for Holdings or any of its Subsidiaries.  Co-Administrative Agents may perform any of
their duties hereunder, or under the Loan Documents, by or through their agents
or employees.  Each Lender and
Co-Administrative Agent acknowledges that any Co-Administrative Agent’s legal
counsel in connection with the transactions contemplated by this Agreement is
acting as counsel to such Co-Administrative Agent and is not acting as counsel
to such Lender or other Co-Administrative Agent.  The rights and duties of a Co-Administrative
Agent under this Agreement or any other Loan Document may not be amended,
modified, terminated or waived without the written consent of such
Co-Administrative Agent in addition to any other consent required hereunder.


 


(b)                                 Duties
as Collateral and Disbursing Agent. 
Without limiting the generality of clause (a) above, Agent shall
have the sole and exclusive right and authority (to the exclusion of the GE
Capital Administrative Agent, the Lenders and L/C Issuers), and is hereby
authorized, to (i) act as the disbursing and collecting agent for the
Lenders and the L/C Issuers with respect to all payments and collections
arising in connection with the Loan Documents (including in any proceeding
described in Section 6.1(f) or (g) or any other
bankruptcy, insolvency or similar proceeding), and each Person making any
payment in connection with any Loan Document to any Secured Party is hereby
authorized to make such payment to Agent, (ii) file and prove claims and
file other documents necessary or desirable to allow the claims of the Secured
Parties with respect to any Obligation in any proceeding described in Section 6.1(f) or
(g) or any other bankruptcy, insolvency or similar proceeding (but
not to vote, consent or otherwise act on behalf of such Person), (iii) act
as collateral agent for each Secured Party for purposes of the perfection of
all Liens created by such agreements and all other purposes stated therein, (iv) manage,
supervise and otherwise deal with the Collateral, (v) take such other
action as is necessary or desirable to maintain the perfection and priority of
the Liens created or purported to be created by the Loan Documents, and (vi) except
as may be otherwise specified in any Loan Document, exercise all remedies given
to Agent and the other Secured Parties with respect to the Collateral, whether
under the Loan Documents, applicable requirements of law or otherwise;
provided, however, that Agent hereby appoints, authorizes and directs the GE
Capital Administrative Agent,
each Lender and each L/C Issuer to act as collateral sub-agent for Agent, the
Lenders and the L/C Issuers for purposes of the perfection of all Liens with
respect to the Collateral, including any deposit account maintained by
Holdings, Borrower or any Domestic Subsidiary with, and cash and Cash
Equivalents held by, the GE Capital Administrative Agent, such Lender or such
L/C Issuer, and may further authorize and direct the GE Capital 


 


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Administrative Agent, the Lenders and the L/C Issuers to take
further actions as collateral sub-agents for purposes of enforcing such Liens
or otherwise to transfer the Collateral subject thereto to Agent, and the GE
Capital Administrative Agent, each Lender and each L/C Issuer hereby agrees to
take such further actions to the extent, and only to the extent, so authorized
and directed.


 


(c)                                  Limited Duties. 
Under the Loan Documents, Co-Administrative Agents (i) are acting
solely on behalf of the Lenders and the L/C Issuers (except to the limited
extent provided in Section 1.7(b) with respect to the
Register), with duties that are entirely administrative in nature,
notwithstanding the use of the defined terms “Agent”, “Co-Administrative Agent”,
“SunTrust Administrative Agent”, “GE Capital Administrative Agent”, the terms “agent”,
“Agent” and “collateral agent” and similar terms in any Loan Document to refer
to either Co-Administrative Agent, which terms are used for title purposes
only, (ii) are not assuming any obligation under any Loan Document other
than as expressly set forth therein or any role as agent, fiduciary or trustee
of or for any Lender, L/C Issuer or any other Person and (iii) shall have
no implied functions, responsibilities, duties, obligations or other
liabilities under any Loan Document, and each Lender and L/C Issuer hereby
waives and agrees not to assert any claim against either Co-Administrative
Agent based on the roles, duties and legal relationships expressly disclaimed
in clauses (i) through (iii) above.


 


(d)                                 Binding Effect. 
Each Lender and each L/C Issuer agrees that (i) any action taken by
a Co-Administrative Agent or the Required Lenders (or, if expressly required
hereby, a greater proportion of the Lenders) in accordance with the provisions
of the Loan Documents, (ii) any action taken by a Co-Administrative Agent
in reliance upon the instructions of Required Lenders (or, where so required,
such greater proportion) and (iii) the exercise by a Co-Administrative
Agent or the Required Lenders (or, where so required, such greater proportion)
of the powers set forth herein or therein, together with such other powers as
are reasonably incidental thereto, shall be authorized and binding upon all of
the Secured Parties.


 


(e)                                  Use of Discretion; No Action without Instructions.  Co-Administrative Agents shall not be
required to exercise any discretion or take, or to omit to take, any action,
including with respect to enforcement or collection, except any action it is
required to take or omit to take (i) under any Loan Document or (ii) pursuant
to instructions from the Required Lenders (or, where expressly required by the
terms of this Agreement, a greater proportion of the Lenders).


 


(f)                                    Right Not to Follow Certain
Instructions.  Notwithstanding clause (a) above, a
Co-Administrative Agent shall not be required to take, or to omit to take, any
action (i) unless, upon demand, such Co-Administrative Agent receives an
indemnification satisfactory to it from the Lenders (or, to the extent
applicable and acceptable to such Co-Administrative Agent, any other Person)
against all Liabilities that, by reason of such action or omission, may be
imposed on, incurred by or asserted against such Co-Administrative Agent or any
of its officers, directors, employees or agents thereof or (ii) that is,
in the opinion of such Co-Administrative Agent or its counsel, contrary to any
Loan Document or applicable requirement of law.


 


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(g)                                 Delegation of Rights and Duties. 
A Co-Administrative Agent may, upon any term or condition it specifies,
delegate or exercise any of its rights, powers and remedies under, and delegate
or perform any of its duties or any other action with respect to, any Loan
Document by or through any trustee, co-agent, employee, attorney-in-fact and
any other Person (including any Secured Party). 
Any such Person shall benefit from this Article VIII to the extent
provided by such Co-Administrative Agent.


 


(h)                                 Rights, Exculpation, Etc. 
No Co-Administrative Agent nor any of their officers, directors,
employees or agents shall be liable to any other Co-Administrative Agent or any
Lender for any action taken or omitted by them hereunder or under any of the
Loan Documents, or in connection herewith or therewith, except that a
Co-Administrative Agent shall be liable to the extent of its own gross
negligence or willful misconduct as determined by a final non-appealable order
by a court of competent jurisdiction. 
Agent shall not be liable for any apportionment or distribution of
payments made by it in good faith and if any such apportionment or distribution
is subsequently determined to have been made in error the sole recourse of any
Lender to whom payment was due but not made, shall be to recover from other
Lenders any payment in excess of the amount to which they are determined to be
entitled (and such other Lenders hereby agree to return to such Lender any such
erroneous payments received by them).  In
no event shall either Co-Administrative Agent be liable for punitive, special,
consequential, incidental, exemplary or other similar damages.  No Co-Administrative Agent nor any of its
agents or representatives shall be responsible to any other Co-Administrative
Agent or any Lender for any recitals, statements, representations or warranties
herein or for the execution, effectiveness, genuineness, validity,
enforceability, collectability, or sufficiency of this Agreement or any of the
Loan Documents or the transactions contemplated thereby, or for the financial
condition of any Credit Party.  No
Co-Administrative Agent shall be required to make any inquiry concerning either
the performance or observance of any of the terms, provisions or conditions of
this Agreement or any of the Loan Documents or the financial condition of any
Credit Party, or the existence or possible existence of any Default or Event of
Default.  A Co-Administrative Agent may
at any time request instructions from Requisite Lenders, Requisite Revolving
Lenders or all affected Lenders with respect to any actions or approvals which
by the terms of this Agreement or of any of the Loan Documents such
Co-Administrative Agent is permitted or required to take or to grant.  If such instructions are promptly requested,
such Co-Administrative Agent shall be absolutely entitled to refrain from
taking any action or to withhold any approval and shall not be under any
liability whatsoever to any Person for refraining from any action or
withholding any approval under any of the Loan Documents until it shall have
received such instructions from the Requisite Lenders, Requisite Revolving
Lenders or such other portion of the Lenders as shall be prescribed by this
Agreement.  Without limiting the
foregoing, no Lender or Co-Administrative Agent shall have any right of action
whatsoever against a Co-Administrative Agent as a result of such Co-Administrative
Agent acting or refraining from acting under this Agreement or any of the other
Loan Documents in accordance with the instructions of Requisite Lenders,
Requisite Revolving Lenders or all affected Lenders, as applicable; and,
notwithstanding the instructions of Requisite Lenders, Requisite Revolving
Lenders or all affected Lenders, as applicable, no Co-Administrative Agent
shall have any obligation to take any action if it believes, in good faith,
that such action is deemed to be illegal 


 


65

















 


by such Co-Administrative Agent or exposes such
Co-Administrative Agent to any liability for which it has not received
satisfactory indemnification in accordance with Section 8.2(j).


 


(i)                                     Reliance. 
Co-Administrative Agents may, without incurring any liability hereunder,
(i) treat the payee of any Note as its holder until such Note has been
assigned in accordance with Section 8.1, (ii) consult with any
of its officers, directors, employees or agents and, whether or not selected by
it, any other advisors, accountants and other experts (including advisors to,
and accountants and experts engaged by, any Credit Party) and (iii) rely
and act upon any document and information (including those transmitted by
Electronic Transmission) and any telephone message or conversation, in each
case believed by it to be genuine and transmitted, signed or otherwise
authenticated by the appropriate parties. 
Agent may, without incurring any liability hereunder, rely on the
Register to the extent set forth herein. 
Each Co-Administrative Agent shall be entitled to rely upon the advice
of legal counsel, independent accountants, and other experts selected by such
Co-Administrative Agent in its sole discretion.


 


(j)                                     Expenses; Indemnification. 
(i) Each Lender agrees to reimburse each Co-Administrative Agent
and each of its officers, directors, and agents (to the extent not reimbursed
by any Credit Party) promptly upon demand, severably and ratably, of any costs
and expenses (including fees, charges and disbursements of financial, legal and
other advisors and Taxes paid in the name of, or on behalf of, any Credit
Party) that may be incurred by such Co-Administrative Agent or any of its
officers, directors, and agents in connection with the preparation,
syndication, execution, delivery, administration, modification, consent, waiver
or enforcement (whether through negotiations, through any work-out, bankruptcy,
restructuring or other legal or other proceeding or otherwise) of, or legal
advice in respect of its rights or responsibilities under, any Loan
Document,  (ii) Each Lender agrees
to reimburse and indemnify each Co-Administrative Agent and each of its
officers, directors and agents for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, attorneys’ fees and expenses),
advances or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against such Co-Administrative Agent in any way
relating to or arising out of this Agreement or any of the Loan Documents or
any action taken or omitted by such Co-Administrative Agent under this
Agreement or any of the Loan Documents, in proportion to each Lender’s Pro Rata
Share, but only to the extent that any of the foregoing is not reimbursed by
Borrower; provided, however, that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, advances or disbursements of a
Co-Administrative Agent to the extent resulting from such Co-Administrative
Agent’s gross negligence or willful misconduct as determined by a final
non-appealable order by a court of competent jurisdiction.  If any indemnity furnished to a
Co-Administrative Agent for any purpose shall, in the opinion of such
Co-Administrative Agent, be insufficient or become impaired, such
Co-Administrative Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against even if so directed by the
Requisite Lenders, Requisite Revolving Lenders or such other portion of the
Lenders as shall be prescribed by this Agreement until such additional
indemnity is furnished.  The obligations
of Lenders under this Section 8.2(j) shall survive the payment
in full of the Obligations and the termination of this Agreement.


 


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(k)                                  Agents Individually. 
With respect to its Commitments hereunder, SunTrust, GE Capital (or any
successor Co-Administrative Agent (including any successor Agent)) shall have
and may exercise the same rights and powers hereunder and is subject to the same
obligations and liabilities as and to the extent set forth herein for any other
Lender.  The terms “Lenders,” “Requisite
Lenders,” “Requisite Revolving Lenders” or any similar terms shall, unless the
context clearly otherwise indicates, include SunTrust, GE Capital (or any
successor Co-Administrative Agent (including any successor Agent)) in its
individual capacity as a Lender or one of the Requisite Lenders or Requisite
Revolving Lenders.  SunTrust, GE Capital
(or any successor Co-Administrative Agent (including any successor Agent)),
either directly or through strategic affiliations, may lend money to, acquire
equity or other ownership interests in, provide advisory services to and
generally engage in any kind of banking, trust or other business with any
Credit Party and any Subsidiary of any Credit Party as if it were not acting as
Co-Administrative Agent (including as Agent) 
pursuant hereto and without any duty to account therefor to Lenders.  SunTrust, GE Capital (or any successor
Co-Administrative Agent (including any successor Agent)), either directly or
through strategic affiliations, may accept fees and other consideration from
any Credit Party and any Subsidiary of any Credit Party for services in
connection with this Agreement or otherwise without having to account for the
same to Lenders.


 


(l)                                     Successor Agent.


 


(i)                                     Resignation and Removal. 
(A) Either Co-Administrative Agent may resign from the performance
of all its agency functions and duties hereunder at any time by giving at least
thirty (30) Business Days’ (or, if at such time there is another
Co-Administrative Agent hereunder, ten (10) Business Days’) prior written
notice to Borrower and Lenders and (B) Borrower may remove a
Co-Administrative Agent if that Co-Administrative Agent is a Defaulting
Lender.  Such resignation or removal
shall take effect (A) at the expiration of such ten (10) Business Day
period if, at such time, there is another Co-Administrative Agent hereunder or (B) otherwise,
upon the acceptance by a successor Agent of appointment pursuant to clause (ii) below
or as otherwise provided in clause (ii) below.


 


(ii)                                  Appointment of Successor. 
Upon any such notice of resignation or removal pursuant to clause (i) above,
if, at such time, there is another Co-Administrative Agent hereunder, the
remaining Co-Administrative Agent shall serve as Agent and sole
Co-Administrative Agent.  Upon any such
notice of resignation or removal of both Co-Administrative Agents or if, at
such time of resignation or removal, there is only one Co-Administrative,
Requisite Lenders shall appoint a successor Agent to serve as Agent and sole
Co-Administrative Agent which, unless an Event of Default has occurred and is
continuing, shall be reasonably acceptable to Borrower.  If a successor Agent and Co-Administrative
Agent shall not have been so appointed within the thirty (30) Business Day
period referred to in clause (i) above, the retiring Co-Administrative
Agent(s), upon notice to Borrower, shall then appoint a successor
Co-Administrative Agent who shall serve as Agent and sole Co-Administrative
Agent until such time, if any, as Requisite Lenders appoint a successor Agent
as provided above.


 


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(iii)                               Successor Agent. 
Upon the acceptance of any appointment as Agent and Co-Administrative
under the Loan Documents by a successor Agent and Co-Administrative Agent, such
successor Agent and Co-Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring Agent and Co-Administrative Agent, and the retiring Co-Administrative
Agent shall be discharged from its duties and obligations under the Loan
Documents.  After any retiring
Co-Administrative Agent’s resignation as Co-Administrative Agent and, if
applicable, Agent, the provisions of this Section 8.2 shall
continue to inure to its benefit as to any actions taken or omitted to be taken
by it in its capacity as Co-Administrative Agent (including, as applicable, in
its capacity as Agent).


 


(m)                               Collateral Matters.


 


(i)                                     Release of Collateral and Related
Guaranties.  Secured Parties hereby irrevocably authorize
Agent, at its option and in its discretion, to release any Lien granted to or
held by Agent upon any Collateral (w) upon termination of the Commitments
and payment and satisfaction of all Obligations (other than contingent
indemnification obligations to the extent no claims giving rise thereto have
been asserted), (x) constituting property being sold or disposed of if
Borrower certifies to Agent that the sale or disposition is made in compliance
with the provisions of this Agreement (and Agent may rely in good faith
conclusively on any such certificate, without further inquiry), (y) in
accordance with Section 3.2(d) or (z) in accordance with
the provisions of the next sentence.  In
addition, with the consent of Requisite Lenders (or all Lenders to the extent
required by Section 9.2), Agent may release any Lien granted to or
held by agent upon any Collateral. 
Secured Parties hereby irrevocably authorize Agent, at its option and in
its discretion, to release any Subsidiary from the Subsidiary Guaranty upon the
sale of all Stock of such Subsidiary to a Person that is not an Affiliate of
Holdings in a disposition permitted hereunder or otherwise approved by the
Requisite Lenders.


 


(ii)                                  Confirmation of Authority; Execution
of Releases.  Without in any manner limiting Agent’s
authority to act without any specific or further authorization or consent by
Lenders (as set forth in Section 8.2(m)(i)), each Lender agrees to
confirm in writing, upon request by Agent or Borrower, the authority to release
any Collateral conferred upon Agent under clauses (x) and (y) of Section 8.2(m)(i).  Upon receipt by Agent of any required
confirmation from the Requisite Lenders of its authority to release any
particular item or types of Collateral, and upon at least ten (10) Business
Days’ prior written request by Borrower, Agent shall (and is hereby irrevocably
authorized by Lenders to) execute such documents as may be necessary to
evidence the release of the Liens granted to Agent upon such Collateral; provided,
however, that (x) Agent shall not be required to execute any such
document on terms which, in Agent’s opinion, would expose Agent to liability or
create any obligation or entail any consequence other than the release of such
Liens without recourse or warranty, and (y) such release shall not in any
manner discharge, affect or impair the Obligations or any Liens upon (or
obligations of any Credit Party, in respect of), all interests retained by any
Credit Party, including the proceeds of any sale, all of which shall continue
to constitute part of the Collateral.


 


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(iii)                               Absence of Duty. 
Agent shall have no obligation whatsoever to any Lender or any other
Person to assure that the property covered by the Collateral Documents exists
or is owned by Borrower or any other Credit Party or is cared for, protected or
insured or has been encumbered or that the Liens granted to Agent have been
properly or sufficiently or lawfully created, perfected, protected or enforced
or are entitled to any particular priority, or to exercise at all or in any
particular manner or under any duty of care, disclosure or fidelity, or to
continue exercising, any of the rights, authorities and powers granted or
available to Agent in this Section 8.2(m) or in any of the
Loan Documents, it being understood and agreed that in respect of the property
covered by the Collateral Documents or any act, omission or event related
thereto, Agent may act in any manner it may deem appropriate, in its
discretion, given Agent’s own interest in property covered by the Collateral
Documents as one of the Lenders and that Agent shall have no duty or liability
whatsoever to any of the other Lenders, provided that Agent shall
exercise the same care which it would in dealing with loans for its own
account.


 


(n)                                 Notice of Default. 
No Co-Administrative Agent shall be deemed to have knowledge or notice
of the occurrence of any Default or Event of Default except with respect to
defaults in the payment of principal, interest and Fees required to be paid to
such Co-Administrative Agent for the account of Lenders, unless such
Co-Administrative Agent shall have received written notice from a Lender or
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a “notice of default”.  Co-Administrative Agents will use reasonable
efforts to notify each Lender of its receipt of any such notice unless such
notice is with respect to defaults in the payment of principal, interest and
fees, in which case Co-Administrative Agents will notify each Lender of its
receipt of such notice.  Agent shall take
such action with respect to such Default or Event of Default as may be
requested by Requisite Lenders in accordance with Section 6.  Unless and until Agent has received any such
request, 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 or in the best interests of Lenders.


 


(o)                                 Additional Secured Parties. 
The benefit of the provisions of the Loan Documents directly relating to
the Collateral or any Lien granted thereunder shall extend to and be available
to any Secured Party that is not a Lender or L/C Issuer party hereto as long
as, by accepting such benefits, such Secured Party agrees, as among Agent and
all other Secured Parties, that such Secured Party is bound by (and, if requested
by Agent, shall confirm such agreement in a writing in form and substance
acceptable to Agent) this Article VIII, Section 9.6, Section 9.12,
Section 9.14, Section 9.15, Section 9.16, Section 9.21,
and Section 1.9 and the decisions and actions of Co-Administrative
Agents and the Required Lenders (or, where expressly required by the terms of
this Agreement, a greater proportion of the Lenders or other parties hereto as
required herein) to the same extent a Lender is bound; provided, however, that,
notwithstanding the foregoing, (a) such Secured Party shall be bound by Section 8.2(j) only
to the extent of liabilities, costs and expenses with respect to or otherwise
relating to the Collateral held for the benefit of such Secured Party, in which
case the obligations of such Secured Party thereunder shall not be limited by
any concept of pro rata share or similar concept, (b) each of
Co-Administrative Agents, the Lenders and the L/C Issuers party hereto shall be
entitled to act at its sole discretion, without regard to the interest of such
Secured Party, regardless of whether any 


 


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Obligation to such Secured Party thereafter remains
outstanding, is deprived of the benefit of the Collateral, becomes unsecured or
is otherwise affected or put in jeopardy thereby, and without any duty or
liability to such Secured Party or any such Obligation and (c) except as
otherwise set forth herein, such Secured Party shall not have any right to be
notified of, consent to, direct, require or be heard with respect to, any
action taken or omitted in respect of the Collateral or under any Loan
Document.


 


(p)                                 Agent Reports. 
Each Lender may from time to time receive one or more reports or other
information (each, a “Report”) prepared by or on behalf of a
Co-Administrative Agent (or one or more of such Co-Administrative Agent’s
Affiliates).  With respect to each
Report, each Lender hereby agrees that:


 


(i)                                     Co-Administrative Agents (and their
Affiliates) shall have no duties or obligations in connection with or as a
result of a Lender receiving a copy of a Report, which will be provided solely
as a courtesy, without consideration. 
Each Lender will perform its own diligence and will make its own independent
investigation of the operations, financial conditions and affairs of the Credit
Parties and will not rely on any Report or make any claim that it has done
so.  In addition, each Lender releases,
and agrees that it will not assert, any claim against a Co-Administrative Agent
(or one or more of such Co-Administrative Agent’s Affiliates) that in any way
relates to any Report or arises out of a Lender having access to any Report or
any discussion of its contents, and each Lender agrees to indemnify and hold
harmless each Co-Administrative Agent (and such Co-Administrative Agent’s
Affiliates) and their respective officers, directors, employees, agents and
attorneys from all claims, liabilities and expenses relating to a breach by a
Lender or any of its personnel of this Section or otherwise arising out of
a Lender’s access to any Report or any discussion of its contents;


 


(ii)                                  Each Report may not be complete and
certain information and findings obtained by a Co-Administrative Agent (or one
or more of a Co-Administrative Agent’s Affiliates) regarding the operations and
condition of the Credit Parties may not be reflected in each Report.  Co-Administrative Agents (and their
Affiliates) make no representations or warranties of any kind with respect to (i) any
existing or proposed financing; (ii) the accuracy or completeness of the
information contained in any Report or in any other related documentation; (iii) the
scope or adequacy of a Co-Administrative Agent’s (and such Co-Administrative
Agent’s Affiliates’) due diligence, or the presence or absence of any errors or
omissions contained in any Report or in any other related documentation; and (iv) any
work performed by a Co-Administrative Agent (or one or more of a
Co-Administrative Agent’s Affiliates) in connection with or using any report or
any related documentation; and


 


(iii)                               Each Lender agrees to safeguard each
Report and any related documentation with the same care which it uses with
respect to information of its own which it does not desire to disseminate or
publish, and agrees not to reproduce or distribute or provide copies of or
disclose any Report or any other related documentation or any related
discussions to anyone except to the extent such distribution or disclosure
would be permitted if the Report were confidential information subject to Section 9.14.


 


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(q)                                 Lender Actions Against Collateral. 
Each Lender agrees that it will not take any enforcement action, nor
institute any actions or proceedings, with respect to the Loans, against Borrower
or any Credit Party hereunder or under the other Loan Documents or against any
of the Collateral (including any exercise of any right of set-off) without the
consent of the Co-Administrative Agents or Required Lenders.  All such enforcement actions and proceedings
shall be (i) taken in concert and (ii) at the direction of or with
the consent of the Co-Administrative Agents or Requisite Lenders.  Co-Administrative Agents are authorized to
issue all notices to be issued by or on behalf of Lenders with respect to any
Subordinated Debt.  With respect to any
action by a Co-Administrative Agent to enforce the rights and remedies of
Co-Administrative Agents and the Lenders under this Agreement and the other
Loan Documents, each Lender hereby consents to the jurisdiction of the court in
which such action is maintained, and agrees to deliver its Notes to Agent to
the extent necessary to enforce the rights and remedies of Agent for the
benefit of the Lenders under the Collateral Documents in accordance with the
provisions hereof.


 


8.3                                 Set
Off and Sharing of Payments.  Subject
to Section 8.2(o), in addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
during the continuance of any Event of Default, each Lender is hereby
authorized by Borrower at any time or from time to time, with reasonably prompt
subsequent notice to Borrower (any prior or contemporaneous notice being hereby
expressly waived) to set off and to appropriate and to apply any and all (A) balances
held by such Lender at any of its offices for the account of Borrower or any of
its Subsidiaries (regardless of whether such balances are then due to Borrower
or its Subsidiaries), and (B) other property at any time held or owing by
such Lender to or for the credit or for the account of Borrower or any of its
Subsidiaries, against and on account of any of the Obligations; except that no
Lender shall exercise any such right without the prior written consent of
Agent.  Notwithstanding anything herein
to the contrary, the failure to give notice of any set off and application made
by such Lender to Borrower shall not affect the validity of such set off and
application.  Any Lender exercising a
right to set off shall purchase for cash (and the other Lenders shall sell)
interests in each of such other Lender’s Pro Rata Share of the Obligations as
would be necessary to cause all Lenders to share the amount so set off with
each other Lender entitled to share in the amount so set off in accordance with
their respective Pro Rata Shares. 
Borrower agrees, to the fullest extent permitted by law, that any Lender
may exercise its right to set off with respect to amounts in excess of its Pro
Rata Share of the Obligations and upon doing so shall deliver such amount so
set off to Agent for the benefit of all Lenders entitled to share in the amount
so set off in accordance with their Pro Rata Shares.


 


8.4                                 Disbursement
of Funds.  Agent may, on behalf of
Lenders, disburse funds to Borrower for Loans requested.  Each Lender shall reimburse Agent on demand
for all funds disbursed on its behalf by Agent, or if Agent so requests, each
Lender will remit to Agent its Pro Rata Share of any Loan before Agent
disburses same to Borrower.  If Agent
elects to require that each Lender make funds available to Agent prior to a
disbursement by Agent to Borrower, Agent shall advise each Lender by telephone
or fax of the amount of such Lender’s Pro Rata Share of the Loan requested by
Borrower no later than 1:00 p.m. (New York time) on the Funding Date
applicable thereto, and each such Lender shall pay Agent such Lender’s Pro Rata
Share of such requested Loan, in same day funds, by wire transfer to Agent’s
account on such Funding Date.  If 


 


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any Lender fails to pay
the amount of its Pro Rata Share within one (1) Business Day after Agent’s
demand, Agent shall promptly notify Borrower, and Borrower shall immediately
repay such amount to Agent.  Any
repayment required pursuant to this Section 8.4 shall be without
premium or penalty.  Nothing in this Section 8.4
or elsewhere in this Agreement or the other Loan Documents, including the
provisions of Section 8.5, shall be deemed to require Agent to
advance funds on behalf of any Lender or to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights that
Agent or Borrower may have against any Lender as a result of any default by
such Lender hereunder.


 


8.5                                 Disbursements of Advances; Payment;
Cash Collateral.


 


(a)                                  Advances; Payments.


 


(i)                                     Revolving Lenders shall refund or
participate in the Swing Line Loan in accordance with clauses (iii) and (iv) of
Section 1.1(c).  If the Swing
Line Lender declines to make a Swing Line Loan or if Swing Line Availability is
zero, Agent shall notify Revolving Lenders, promptly after receipt of a Notice
of Revolving Credit Advance and in any event prior to 1:00 p.m. (New York time)  on the date
such Notice of a Revolving Credit Advance is received, by fax, telephone or
other similar form of transmission.  Each
Revolving Lender shall make the amount of such Lender’s Pro Rata Share of such
Revolving Credit Advance available to Agent in same day funds by wire transfer
to Agent’s account as set forth in Section 1.1(e) not later
than 3:00 p.m. (New York time)  on the requested Funding Date in the case of an Index Rate
Loans and not later than 11:00 a.m.
(New York time)  on the
requested Funding Date in the case of a LIBOR Loan.  After receipt of such wire transfers (or, in
Agent’s sole discretion, before receipt of such wire transfers), subject to the
terms hereof, Agent shall make the requested Revolving Credit Advance to
Borrower as designated by Borrower in the Notice of Revolving Credit
Advance.  All payments by each Revolving
Lender shall be made without setoff, counterclaim or deduction of any kind.


 


(ii)                                  At least once each calendar week or
more frequently at Agent’s election (each, a “Settlement Date”), if the
Agent has received any payments by Borrower hereunder, Agent shall advise each
Lender by telephone or fax of the amount of such Lender’s Pro Rata Share of
principal, interest and Fees paid for the benefit of Lenders with respect to
each applicable Loan.  Provided that each
Lender has funded all payments and Advances required to be made by it and
funded all purchases of participations required to be funded by it under this
Agreement and the other Loan Documents as of such Settlement Date and subject
to Section 9.20(a)(ii), Agent shall pay to each Lender such Lender’s Pro
Rata Share of principal, interest and Fees paid by Borrower since the previous
Settlement Date for the benefit of such Lender on the Loans held by it. Such
payments shall be made by wire transfer to such Lender’s account (as on record
with the Agent) not later than 2:00 p.m.
(New York time)  on the next
Business Day following each Settlement Date. To the extent that any Lender
becomes a Defaulting Lender, Agent shall be entitled to set off any funding
obligation short-fall against such Defaulting Lender’s Pro Rata Share of
all payments received from Borrower.


 


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(b)                                 Availability of Lender’s Pro Rata
Share.  Agent may assume that each Revolving Lender
will make its Pro Rata Share of each Revolving Credit Advance available to
Agent on each Funding Date.  If such Pro
Rata Share is not, in fact, paid to Agent by such Revolving Lender when due,
Agent will be entitled to recover such amount on demand from such Revolving
Lender without setoff, counterclaim or deduction of any kind.  If any Revolving Lender fails to pay the
amount of its Pro Rata Share forthwith upon Agent’s demand, Agent shall
promptly notify Borrower and Borrower shall immediately repay such amount to
Agent.  Nothing in this Section 8.5(b) or
elsewhere in this Agreement or the other Loan Documents shall be deemed to
require Agent to advance funds on behalf of any Revolving Lender or to relieve
any Revolving Lender from its obligation to fulfill its Commitments hereunder
or to prejudice any rights that Borrower may have against any Revolving Lender
as a result of any default by such Revolving Lender hereunder.  To the extent that Agent advances funds to
Borrower on behalf of any Revolving Lender and is not reimbursed therefor on
the same Business Day as such Advance is made, Agent shall be entitled to
retain for its account all interest accrued on such Advance until reimbursed by
the applicable Revolving Lender.


 


(c)                                  Return of Payments.


 


(i)                                     If Agent pays an amount to a Lender
under this Agreement in the belief or expectation that a related payment has
been or will be received by Agent from Borrower and such related payment is not
received by Agent, then Agent will be entitled to recover such amount from such
Lender on demand without setoff, counterclaim or deduction of any kind.


 


(ii)                                  If Agent determines at any time that
any amount received by Agent under this Agreement must be returned to any
Credit Party or paid to any other Person pursuant to any insolvency law or
otherwise, then, notwithstanding any other term or condition of this Agreement
or any other Loan Document, Agent will not be required to distribute any
portion thereof to any Lender.  In
addition, each Lender will repay to Agent on demand any portion of such amount
that Agent has distributed to such Lender, together with interest at such rate,
if any, as Agent is required to pay to Borrower or such other Person, without
setoff, counterclaim or deduction of any kind.


 


(d)                                 Defaulting Lenders. 
The failure of any Lender to make any Revolving Credit Advance or any
payment required by it hereunder, or to fund any purchase of any participation
in any Swing Line Loan to be made or funded by it on the date specified
therefor shall not relieve any other Lender (each such other Revolving Lender,
an “Other Lender”) of its obligations to make such Advance or fund the
purchase of any such participation on such date, but neither any Other Lender
nor Agent shall be responsible for the failure of any Defaulting Lender to make
an Advance, fund the purchase of a participation or make any other payment
required hereunder.  Notwithstanding
anything set forth herein to the contrary, a Defaulting Lender shall not have
any voting or consent rights under or with respect to any Loan Document or
constitute a “Lender” or a “Revolving Lender” (or be included in the
calculation of “Requisite Lenders” or “Requisite Revolving Lenders” hereunder)
for any voting or consent rights under or with respect to any Loan Document.


 


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(e)                                  Cash Collateral. 
If any Lender becomes, and during the period it remains, a Defaulting
Lender, and if any Letter of Credit or Swing Line Loan is at the time
outstanding, each L/C Issuer and the Swing Line Lender, as the case may be,
may, by notice to Borrower and such Defaulting Lender through Agent, require
Borrower to Cash Collateralize (as defined below) the obligations of Borrower
to such L/C Lender and the Swing Line Lender in respect of such Letter of
Credit or Swing Line Loan in amount at least equal to the aggregate amount of
the funding obligations (contingent or otherwise) of such Defaulting Lender in
respect thereof, or to make other arrangements satisfactory to Agent, and to
the L/C Issuers and the Swing Line Lender, as the case may be, in their sole
discretion to protect them against the risk of non-payment by such Defaulting
Lender.   For purposes hereof, “Cash
Collateralize” means, in respect of an obligation, provide and pledge (as a
first priority perfected Lien) cash collateral in Dollars, at a location and
pursuant to documentation in form and substance reasonably satisfactory to
Agent.


 


8.6                                 Lender
Credit Decision.  Each Lender and
each L/C Issuer acknowledges that it shall, independently and without reliance
upon Agent, any Lender or L/C Issuer or any of their officers, directors or
agents or upon any document (including any offering and disclosure materials in
connection with the syndication of the Loans) solely or in part because such
document was transmitted by Agent or any of its officers, directors or agents,
conduct its own independent investigation of the financial condition and
affairs of each Credit Party and make and continue to make its own credit
decisions in connection with entering into, and taking or not taking any action
under, any Loan Document or with respect to any transaction contemplated in any
Loan Document, in each case based on such documents and information as it shall
deem appropriate.  Except for documents
expressly required by any Loan Document to be transmitted by Agent to the
Lenders or L/C Issuers, Agent shall not have any duty or responsibility to
provide any Lender or L/C Issuer with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any Credit Party or any Affiliate of any
Credit Party that may come in to the possession of Agent or any of its
officers, directors or agents.


 


SECTION 9.

MISCELLANEOUS


 


9.1                                 Indemnities.  Borrower agrees to indemnify, pay, and hold
each Co-Administrative Agent, each Lender, each L/C Issuer and their respective
Affiliates, officers, directors, employees, agents, and attorneys (the “Indemnitees”)
harmless from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, costs and expenses
(including all reasonable fees and expenses of counsel to such Indemnitees) of
any kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the Indemnitees in any matter relating to or arising out of, in
connection with or as a result of (i) any Loan Document, any Related
Transaction Document, the Acquisition, any Obligation (or the repayment
thereof), any Letter of Credit, the use or intended use of the proceeds of any
Loan or the use of any Letter of Credit or any securities filing of, or with
respect to, any Credit Party, (ii) any Contractual Obligation entered into
in connection with any E-Systems or other Electronic 


 


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Transmissions, (iii) any
actual or prospective investigation, litigation or other proceeding, whether or
not brought by any such Indemnitee or any of its officers, directors or agents
(and including reasonable attorneys’ fees in any case), whether or not any such
Indemnitee, officer, director or agent is a party thereto, and whether or not
based on any securities or commercial law or regulation or any other
requirement of law or theory thereof, including common law, equity, contract,
tort or otherwise or (iv) any other act, event or transaction related,
contemplated in or attendant to any of the foregoing (collectively, the “Indemnified
Matters”); provided, that Borrower shall have no obligation to an
Indemnitee hereunder with respect to any Indemnified Matter to the extent
resulting from the gross negligence, bad faith or willful misconduct of that
Indemnitee or its Affiliates, officers, directors, employees, agents or
attorneys as determined by a court of competent jurisdiction or with respect to
disputes among Indemnitees.  If and to
the extent that the foregoing undertaking may be unenforceable for any reason,
Borrower agrees to make the maximum contribution to the payment and
satisfaction thereof which is permissible under applicable law.


 


9.2                                 Amendments and Waivers.


 


(a)                                  Except for actions expressly
permitted to be taken by Agent, no amendment, modification, termination or
waiver of any provision of this Agreement or any other Loan Document, or any
consent to any departure by any Credit Party therefrom, shall in any event be
effective unless the same shall be in writing and signed by Borrower, and by
Requisite Lenders, Requisite Revolving Lenders or all affected Lenders, as
applicable.  Except as set forth in
clauses (b) and (c) below, all such amendments, modifications,
terminations or waivers requiring the consent of any Lenders shall require the
written consent of Requisite Lenders.


 


(b)                                 No amendment, modification,
termination or waiver of or consent with respect to any provision of this
Agreement that waives compliance with the conditions precedent set forth in Section 7.2
to the making of any Loan or the incurrence of any Letter of Credit Obligations
shall be effective unless the same shall be in writing and signed by Agent,
Requisite Revolving Lenders and Borrower. 
Notwithstanding anything contained in this Agreement to the contrary, no
waiver or consent with respect to any Default or any Event of Default shall be
effective for purposes of the conditions precedent to the making of Loans or
the incurrence of Letter of Credit Obligations set forth in Section 7.2
unless the same shall be in writing and signed by Agent, Requisite Revolving
Lenders and Borrower.


 


(c)                                  No amendment, modification,
termination or waiver shall, unless in writing and signed by Agent and each
Lender directly affected thereby:  (i) increase
the principal amount or postpone or extend the scheduled date of expiration of
any Lender’s Commitment (which action shall be deemed only to affect those
Lenders whose Commitments are increased or the scheduled date of expiration of
whose Commitments are postponed or extended and may be approved by Requisite
Lenders, including those Lenders whose Commitments are increased or the
scheduled date of expiration of whose Commitments are postponed or extended); (ii) reduce
the principal of, rate of interest (other than any determination or waiver to
charge or not charge interest or fees at the Default Rate) on or Fees payable
with respect to any Loan or Letter of Credit Obligations of any affected
Lender; (iii) extend any scheduled payment date or final 


 


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maturity date of the principal amount
of any Loan of any affected Lender or postpone or extend the scheduled date of
expiration of any Letter of Credit beyond the date set forth in clause (b) of
the initial sentence of Section 1.1(d)(i)(B); (iv) waive,
forgive, defer, extend or postpone any payment of interest or Fees as to any
affected Lender (which action shall be deemed only to affect those Lenders to
whom such payments are made); (v) release any Guaranty except as otherwise
permitted in Section 8.2(m) or, release all or substantially
all of the Collateral (which action shall be deemed to directly affect all
Lenders); (vi) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans that shall be required for
Lenders or any of them to take any action hereunder except to adjust such
percentages or amounts to incorporate the addition of one more additional
tranches of Loans to the Obligations on terms consistent with the existing
tranches; and (vii) amend or waive this Section 9.2 or the
definitions of the terms “Requisite Lenders” or “Requisite Revolving Lenders”
insofar as such definitions affect the substance of this Section 9.2
or the term “Pro Rata Share” except, in each case, as may be necessary to add
one or more additional tranches thereto on terms consistent with the existing
tranches (which action shall be deemed to directly affect all Lenders).  Furthermore, no amendment, modification,
termination or waiver affecting the rights or duties of Agent, Swing Line
Lender or L/C Issuers under this Agreement or any other Loan Document shall be
effective unless in writing and signed by Agent, Swing Line Lender or L/C Issuers,
as the case may be, in addition to Lenders required hereinabove to take such
action.  Each amendment, modification,
termination or waiver shall be effective only in the specific instance and for
the specific purpose for which it was given. 
No amendment, modification, termination or waiver shall be required for
Agent to take additional Collateral pursuant to any Loan Document.  No amendment, modification, termination or
waiver of any provision of any Note shall be effective without the written
concurrence of the holder of that Note. 
No notice to or demand on any Credit Party in any case shall entitle
such Credit Party or any other Credit Party to any other or further notice or
demand in similar or other circumstances. 
Any amendment, modification, termination, waiver or consent effected in
accordance with this Section 9.2 shall be binding upon each holder
of the Notes at the time outstanding and each future holder of the Notes.


 


9.3                                 Notices.


 


(a)                                  All notices, demands, requests,
directions and other communications required or expressly authorized to be made
by this Agreement shall, whether or not specified to be in writing but unless
otherwise expressly specified to be given by any other means, be given in
writing and (i) addressed to the address set forth below, (ii) sent
by facsimile to the facsimile number set forth below, (iii) in the case of
notices and other communications among the Lenders, (A) posted to Syndtrak
Online® (to the extent such system is available and set up by or at the
direction of Agent prior to posting) in an appropriate location by uploading
such notice, demand, request, direction or other communication to www.syndtrak.com
or using such other means of posting to Syndtrak Online® as may be available
and reasonably acceptable to Agent prior to such posting, or (B) posted to
any other E-System set up by or at the direction of Agent or (iv) addressed
to such other address as shall be notified in writing (A) in the case of
Borrower, Agent and the Swing Line Lender, to the other parties hereto and (B) in
the case of all other parties, to Borrower and Agent.  Transmission by electronic mail (not
including facsimile transmissions) 


 


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(including E-Fax, even if transmitted to the fax numbers set
forth above) shall not be sufficient or effective to transmit any such notice
under this clause (a) unless such transmission is an available
means to post to any E-System.


 


	
  If to Borrower:

  	
   

  	
  Transaction Network Services, Inc.

  
	
   

  	
   

  	
  11480 Commerce
  Park Drive - Suite 600

  
	
   

  	
   

  	
  Reston, Virginia
  20191

  
	
   

  	
   

  	
  ATTN: Chief
  Financial Officer

  
	
   

  	
   

  	
  Fax: (703)
  453-8599

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Transaction Network Services, Inc.

  
	
   

  	
   

  	
  11480 Commerce
  Park Drive - Suite 600

  
	
   

  	
   

  	
  Reston, Virginia
  20191

  
	
   

  	
   

  	
  ATTN: General
  Counsel

  
	
   

  	
   

  	
  Fax: (703) 453-8397

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  and,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Kirkland &
  Ellis LLP

  
	
   

  	
   

  	
  300 North
  LaSalle

  
	
   

  	
   

  	
  Chicago,
  Illinois 60654

  
	
   

  	
   

  	
  ATTN: Jocelyn A.
  Hirsch

  
	
   

  	
   

  	
  Fax: (312)
  862-2200

  
	
   

  	
   

  	
   

  
	
  If to Agent, Co-Administrative

  	
   

  	
   

  
	
  Agents or SunTrust:

  	
   

  	
  SunTrust Bank

  
	
   

  	
   

  	
  303 Peachtree
  Street, 24th Floor

  
	
   

  	
   

  	
  Atlanta, GA
  30308

  
	
   

  	
   

  	
  ATTN: Timothy M.
  O’Leary

  
	
   

  	
   

  	
  Fax: (404)
  827-6514

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  SunTrust Banks, Inc.

  
	
   

  	
   

  	
  Mail Code:  GA-ATL-7662

  
	
   

  	
   

  	
  303 Peachtree Street, 25th Floor

  
	
   

  	
   

  	
  Atlanta, GA 30308

  
	
   

  	
   

  	
  ATTN: Agency Services

  
	
   

  	
   

  	
  Fax: 404-221-2001

  
	
   

  	
   

  	
   

  
	
  If to Co-Administrative Agents

  	
   

  	
   

  
	
  or GE Capital:

  	
   

  	
  General Electric Capital Corporation

  
	
   

  	
   

  	
  500 West Monroe

  
	
   

  	
   

  	
  Chicago,
  Illinois 60661

  
	
   

  	
   

  	
  ATTN: Transaction Network Services Account Officer

  
	
   

  	
   

  	
  Fax: (312)
  441-7920

  



 


77

















 


	
  With a copy to:

  	
   

  	
  General Electric Capital Corporation

  
	
   

  	
   

  	
  201 Merritt 7

  
	
   

  	
   

  	
  P.O. Box
  5201

  
	
   

  	
   

  	
  Norwalk,
  Connecticut 06856-5201

  
	
   

  	
   

  	
  ATTN: General
  Counsel, Global Sponsor Finance

  
	
   

  	
   

  	
  Fax: (203)
  956-4216

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  General Electric
  Capital Corporation

  
	
   

  	
   

  	
  500 West Monroe
  Street

  
	
   

  	
   

  	
  Chicago,
  Illinois 60661

  
	
   

  	
   

  	
  ATTN: Corporate
  Counsel, Global Sponsor Finance

  
	
   

  	
   

  	
  Fax: (312)
  441-6876

  
	
   

  	
   

  	
   

  
	
  If to a Lender:

  	
   

  	
  To the address set forth on the signature
  page hereto or in the applicable Assignment Agreement

  



 


(b)                                 Effectiveness. 
All communications described in clause (a) above and all
other notices, demands, requests and other communications made in connection
with this Agreement shall be effective and be deemed to have been received (i) if
delivered by hand, upon personal delivery, (ii) if delivered by overnight
courier service, 1 Business Day after delivery to such courier service properly
addressed, (iii) if delivered by mail, 4 Business Days after deposit in
the mail with proper postage, (iv) if delivered by facsimile (other than
to post to an E-System pursuant to clause (a)(iii) above), upon sender’s
receipt of confirmation of proper transmission, and (v) if delivered by
posting to any E-System, on the later of the date of such posting and the date
access to such posting is given to the recipient thereof in accordance with the
standard procedures applicable to such E-System; provided, however,
that no communications to Agent pursuant to Article I shall be effective
until received by Agent.


 


(c)                                  Each Lender shall notify Agent in
writing of any changes in the address to which notices to such Lender should be
directed, of addresses of its Lending Office, of payment instructions in
respect of all payments to be made to it hereunder and of such other
administrative information as Agent shall reasonably request.


 


9.4                                 Electronic Transmissions.


 


(a)                                  Authorization. 
Subject to the provisions of Section 9.3(a), each of
Co-Administrative Agents, Lenders, each Credit Party and each of their
officers, directors and agents, is authorized (but not required) to transmit,
post or otherwise make or communicate, in its sole discretion, Electronic
Transmissions in connection with any Loan Document and the transactions
contemplated therein.  Each Credit Party
and each Secured Party hereto acknowledges and agrees that the use of
Electronic Transmissions is not necessarily secure and that there are risks
associated with such use, including risks of interception, disclosure and abuse



 


78

















 


and each indicates it assumes and accepts such risks by
hereby authorizing the transmission of Electronic Transmissions.


 


(b)                                 Signatures. 
Subject to the provisions of Section 9.3(a), (i)(A) no
posting to any E-System shall be denied legal effect merely because it is made
electronically, (B) each E Signature on any such posting shall be deemed
sufficient to satisfy any requirement for a “signature” and (C) each such
posting shall be deemed sufficient to satisfy any requirement for a “writing”,
in each case including pursuant to any Loan Document, any applicable provision
of any UCC, the federal Uniform Electronic Transactions Act, the Electronic
Signatures in Global and National Commerce Act and any substantive or
procedural Requirement of Law governing such subject matter, (ii) each
such posting that is not readily capable of bearing either a signature or a
reproduction of a signature may be signed, and shall be deemed signed, by
attaching to, or logically associating with such posting, an E-Signature, upon
which each Secured Party and each Credit Party may rely and assume the
authenticity thereof, (iii) each such posting containing a signature, a
reproduction of a signature or an E-Signature shall, for all intents and
purposes, have the same effect and weight as a signed paper original and (iv) each
party hereto or beneficiary hereto agrees not to contest the validity or
enforceability of any posting on any E-System or E-Signature on any such
posting under the provisions of any applicable Requirement of Law requiring
certain documents to be in writing or signed; provided, however,
that nothing herein shall limit such party’s or beneficiary’s right to contest
whether any posting to any E-System or E-Signature has been altered after
transmission.


 


(c)                                  Separate Agreements. 
All uses of an E-System shall be governed by and subject to, in addition
to Section 9.3 and this Section 9.4, separate terms and
conditions posted or referenced in such E-System and related Contractual
Obligations executed by Agent and Credit Parties in connection with the use of
such E-System.


 


(d)                                 LIMITATION OF LIABILITY. 
ALL E-SYSTEMS AND ELECTRONIC TRANSMISSIONS SHALL BE PROVIDED “AS IS” AND
“AS AVAILABLE”.  NONE OF EITHER
CO-ADMINISTRATIVE AGENT, ANY LENDER OR ANY OF THEIR OFFICERS, DIRECTORS OR
AGENTS WARRANTS THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY E-SYSTEMS OR
ELECTRONIC TRANSMISSION AND DISCLAIMS ALL LIABILITY FOR ERRORS OR OMISSIONS
THEREIN.  NO WARRANTY OF ANY KIND IS MADE
BY AGENT, ANY LENDER OR ANY OF THEIR OFFICERS, DIRECTORS OR AGENTS IN
CONNECTION WITH ANY E SYSTEMS OR ELECTRONIC COMMUNICATION, INCLUDING ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT
OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS.  Each of Borrower, each other Credit Party
executing this Agreement and each Secured Party agrees that Agent has no
responsibility for maintaining or providing any equipment, software, services
or any testing required in connection with any Electronic Transmission or
otherwise required for any E-System.


 


9.5                                 Failure
or Indulgence Not Waiver; Remedies Cumulative.  No failure or delay on the part of either
Co-Administrative Agent or any Lender to exercise, nor any partial exercise of,



 


79

















 


any power, right or
privilege hereunder or under any other Loan Documents shall impair such power,
right, or privilege or be construed to be a waiver of any Default or Event of
Default.  All rights and remedies
existing hereunder or under any other Loan Document are cumulative to and not
exclusive of any rights or remedies otherwise available.


 


9.6                                 Marshaling;
Payments Set Aside.  No
Co-Administrative Agent nor any Lender shall be under any obligation to marshal
any assets in payment of any or all of the Obligations.  To the extent that Borrower makes payment(s) or
Agent enforces its Liens or Agent or any Lender exercises its right of set-off,
and such payment(s) or the proceeds of such enforcement or set-off is
subsequently invalidated, declared to be fraudulent or preferential, set aside,
or required to be repaid by anyone (whether as a result of any demand,
litigation, settlement or otherwise), then to the extent of such recovery, the
Obligations or part thereof originally intended to be satisfied, and all Liens,
rights and remedies therefor, shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or set-off had
not occurred.


 


9.7                                 Severability.  The invalidity, illegality, or
unenforceability in any jurisdiction of any provision under the Loan Documents
shall not affect or impair the legality or enforceability of remaining
provisions in the Loan Documents.


 


9.8                                 Lenders’
Obligations Several; Independent Nature of Lenders’ Rights.  The obligation of each Lender hereunder is
several and not joint and no Lender shall be responsible for the obligation or
commitment of any other Lender hereunder. 
In the event that any Lender at any time should fail to make a Loan as
herein provided, the Lenders, or any of them, at their sole option, may make
the Loan that was to have been made by the Lender so failing to make such
Loan.  Nothing contained in any Loan
Document and no action taken by Agent or any Lender pursuant hereto or thereto
shall be deemed to constitute Lenders to be a partnership, an association, a
joint venture or any other kind of entity. 
The amounts payable at any time hereunder to each Lender shall be a
separate and independent debt.


 


9.9                                 Headings.  Section and subsection headings are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purposes or be given substantive effect.


 


9.10                           Applicable
Law.  THIS AGREEMENT AND EACH OF THE
OTHER LOAN DOCUMENTS WHICH DOES NOT EXPRESSLY SET FORTH APPLICABLE LAW SHALL BE
GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).  NOTES ISSUED PRIOR TO THE RESTATEMENT DATE
SHALL BE GOVERNED BY ILLINOIS LAW UNLESS THE HOLDER OF SUCH NOTE RETURNS ITS
NOTE FOR REISSUE ON OR AFTER THE RESTATEMENT DATE.


 


80

















 


9.11                           Successors
and Assigns.  This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns; provided, that any assignment by
any Lender shall be subject to the provisions of Section 8.1
hereof, and provided further that Borrower may not assign its rights or
obligations hereunder without the written consent of all Lenders and any such
purported assignment without such consent shall be void ab initio.


 


9.12                           No
Fiduciary Relationship; Limited Liability. 
No provision in the Loan Documents and no course of dealing between the
parties shall be deemed to create any fiduciary duty owing to any Credit Party
by any Co-Administrative Agent or any Lender. 
Holdings and Borrower each agrees on behalf of itself and each other Credit
Party, that no Co-Administrative Agent nor any Lender shall have liability to
any Credit Party (whether sounding in tort, contract or otherwise) for losses
suffered by any Credit Party in connection with, arising out of, or in any way
related to the transactions contemplated and the relationship established by
the Loan Documents, or any act, omission or event occurring in connection
therewith, unless and to the extent that it is determined that such losses
resulted from the gross negligence or willful misconduct of the party from
which recovery is sought as determined by a final non-appealable order by a
court of competent jurisdiction.  No
Co-Administrative Agent nor any Lender shall have any liability with respect
to, and Holdings and Borrower each hereby on behalf of itself and each other
Credit Party, waives, releases and agrees not to sue for, any special, indirect
or consequential damages suffered by any Credit Party in connection with,
arising out of, or in any way related to the Loan Documents or the transactions
contemplated thereby.  This Agreement is
made and entered into for the sole protection and legal benefit of Borrower,
the Lenders, the L/C Issuers, Co-Administrative Agents and, subject to the
provisions of Section 9.11 hereof, each other Secured Party, and
their permitted successors and assigns, and no other Person shall be a direct
or indirect legal beneficiary of, or have any direct or indirect cause of
action or claim in connection with, this Agreement or any of the other Loan
Documents.  No Co-Administrative Agent
nor any Lender shall have any obligation to any Person not a party to this
Agreement or the other Loan Documents.


 


9.13                           Construction.  Co-Administrative Agents, each Lender,
Holdings and Borrower acknowledge that each of them and each other Credit Party
has had the benefit of legal counsel of its own choice and has been afforded an
opportunity to review the Loan Documents with its legal counsel and that the
Loan Documents shall be construed as if jointly drafted by Co-Administrative
Agents, each Lender, Holdings, Borrower and each other Credit Party.  The parties hereto acknowledge that this
Agreement and other Loan Documents may use several different limitations, tests
or measurements to regulate the same or similar matters, and that such
limitations, tests and measurements are cumulative and must each be performed,
except as expressly stated to the contrary in this Agreement.


 


9.14                           Confidentiality.  Each Co-Administrative Agent and each Lender
agree to keep confidential, using the same standard of care as used in
protecting their own confidential information (but no less than a reasonable
degree of care), any non-public information delivered pursuant to the Loan
Documents and not to disclose such information to Persons other than  (A) to
potential assignees or participants, (B)  to Persons employed by or
engaged by a 


 


81

















 


Co-Administrative Agent,
a Lender or a Lender’s assignees or participants including attorneys,
auditors  and  professional consultants,  and (C) to rating
agencies, insurance industry associations, lenders, investors or other
financing sources or potential  lenders, investors or
other financing sources of such Lender or Lender’s assignees or
participants, and portfolio management services; provided in the case of each
of the foregoing clauses (A) through (C) such Persons are subject to
a duty of confidentiality with respect to the information disclosed that is at
least as restrictive as the confidentiality obligations contained in this Section 9.14.
The confidentiality provisions contained in this Section 9.14 shall not
apply to disclosures (i) required to be made by a Co-Administrative Agent
or any Lender to any regulatory or governmental agency or pursuant to law,
rule, regulations or legal process; provided that such Co-Administrative Agent
or such Lender shall endeavor (to the extent permitted by any regulatory or
governmental agency) to provide Borrower with prompt notice of such requested
disclosure so that Borrower may seek a protective order or other appropriate
remedy and, in any event, such Co-Administrative Agent or such Lender will
endeavor to provide only that portion of such information which, in the
reasonable judgment of such Co-Administrative Agent or such Lender, as the case
may be, is relevant or legally required to provide or (ii) consisting of
general portfolio information that does not specifically identify Borrower.
Holdings and Borrower each consent to the publication by either
Co-Administrative Agent or any Lender of a tombstone or similar advertising
material relating to the financing transactions contemplated by this Agreement.
Such Co-Administrative Agent or such Lender shall provide a draft of any such
tombstone or similar advertising material to Holdings and Borrower for review
and comment prior to the publication thereof. Agent reserves the right to
provide to industry trade organizations information necessary and customary for
inclusion in league table measurements. The obligations of Co-Administrative
Agents and Lenders under this Section 9.14 shall supersede and replace the
obligations of Co-Administrative Agent and Lenders under any confidentiality
agreement in respect of this financing executed and delivered by
Co-Administrative Agent or any Lender prior to the Restatement Date. In no
event shall either Co-Administrative Agent or any Lender be obligated or
required to return any such information or other materials furnished by any
Credit Party.


 


9.15                           CONSENT
TO JURISDICTION.  EACH PARTY HERETO
HEREBY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT
COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND OF THE SUPREME COURT OF THE
STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND ANY APPELLATE COURT FROM ANY
THEREOF AND IRREVOCABLY AGREES THAT, SUBJECT TO AGENT’S ELECTION, ALL ACTIONS
OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS  SHALL BE LITIGATED IN SUCH
COURTS.  EACH PARTY HERETO EXPRESSLY
SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY
DEFENSE OF FORUM NON CONVENIENS. 
BORROWER AND CREDIT PARTIES HEREBY WAIVE PERSONAL SERVICE OF ANY AND ALL
PROCESS AND AGREE THAT ALL SUCH SERVICE OF PROCESS  MAY BE
MADE UPON BORROWER AND CREDIT PARTIES BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, ADDRESSED TO BORROWER, AT THE ADDRESS SET FORTH IN THIS
AGREEMENT AND SERVICE  SO MADE SHALL
BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED.  BORROWER
AND CREDIT PARTIES IN 


 


82

















 


ANY
EVENT WILL USE ALL COMMERCIALLY REASONABLE EFFORTS TO PRODUCE IN ANY SUCH
DISPUTE RESOLUTION PROCEEDING, AT THE TIME AND IN THE MANNER REQUESTED BY AGENT
OR ANY LENDER, ALL PERSONS, DOCUMENTS (WHETHER IN TANGIBLE, ELECTRONIC OR OTHER
FORM) OR OTHER THINGS UNDER THEIR CONTROL AND RELATING TO THE DISPUTE.


 


9.16                           WAIVER
OF JURY TRIAL.  BORROWER, CREDIT
PARTIES, EACH CO-ADMINISTRATIVE AGENT 
AND EACH LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS.  BORROWER,
CREDIT PARTIES, EACH CO-ADMINISTRATIVE AGENT AND EACH LENDER ACKNOWLEDGE THAT
THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP,
THAT EACH HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR
RELATED FUTURE DEALINGS.  BORROWER,
CREDIT PARTIES, EACH CO-ADMINISTRATIVE AGENT AND EACH LENDER WARRANT AND REPRESENT
THAT EACH HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL
COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.


 


9.17                           Survival
of Warranties and Certain Agreements. 
All agreements, representations and warranties made herein shall survive
the execution and delivery of this Agreement, the making of the Loans,
issuances of Letters of Credit and the execution and delivery of the
Notes.  Notwithstanding anything in this
Agreement or implied by law to the contrary, the agreements of Borrower set
forth in Sections 1.3(e), 1.8, 1.9 and 9.1 shall survive the
repayment of the Obligations and the termination of this Agreement.


 


9.18                           ENTIRE
AGREEMENT.  THIS AGREEMENT, THE NOTES
AND THE OTHER LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT AMONG THE PARTIES
HERETO AND SUPERSEDE ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND
UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF
(OTHER THAN THE SUNTRUST FEE LETTER), AND MAY NOT BE CONTRADICTED OR
VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR
DISCUSSIONS OF THE PARTIES HERETO.  IN
THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS AGREEMENT AND ANY OTHER
LOAN DOCUMENT, THE TERMS OF THIS AGREEMENT SHALL GOVERN (UNLESS SUCH TERMS OF
SUCH OTHER LOAN DOCUMENTS ARE NECESSARY TO COMPLY WITH APPLICABLE REQUIREMENTS
OF LAW, IN WHICH CASE SUCH TERMS SHALL GOVERN TO THE EXTENT NECESSARY TO COMPLY
THEREWITH).  ALL EXHIBITS, SCHEDULES AND
ANNEXES REFERRED TO HEREIN ARE INCORPORATED IN THIS AGREEMENT BY REFERENCE AND
CONSTITUTE A PART OF THIS AGREEMENT.


 


83
















 


9.19         Counterparts; Effectiveness.  This Agreement and any amendments, waivers,
consents or supplements may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all of which
counterparts together shall constitute but one in the same instrument.  Signature pages may be detached from
multiple separate counterparts and attached to a single counterpart.  Delivery of an executed signature page of
this Agreement by facsimile transmission or Electronic Transmission shall be as
effective as delivery of a manually executed counterpart hereof.  This Agreement shall become effective upon
the execution of a counterpart hereof by each of the parties hereto.  Thereafter, it shall be binding upon and
inure to the benefit of, but only to the benefit of, Holdings, Borrower, the
other Credit Parties hereto (in each case except for Article VIII),
each Co-Administrative Agent, each Lender and L/C Issuer party hereto and, to
the extent provided in Section 8.2, each other Secured Party and,
in each case, their respective successors and permitted assigns.  Except as expressly provided in any Loan
Document (including in Section 8.2), none of Holdings, Borrower,
any other Credit Party, any L/C Issuer or any Co-Administrative Agent shall
have the right to assign any rights or obligations hereunder or any interest
herein.


 


9.20         Replacement
of Lenders.


 


(a)           Within fifteen (15) days after
receipt by Borrower of written notice and demand from any Lender for payment
pursuant to Section 1.8 or 1.9 or, as provided in this Section 9.20(a),
in the case of certain refusals by any Lender to consent to certain proposed
amendments, modifications, terminations or waivers with respect to this
Agreement that have been approved by Requisite Lenders, Requisite Revolving
Lenders or all affected Lenders, as applicable (any such Lender demanding such
payment or refusing to so consent being referred to herein as an “Affected
Lender”), Borrower may, at its option, notify Agent and such Affected
Lender of its intention to do one of the following:


 


(i)            Borrower may obtain, at Borrower’s
expense, a replacement Lender (“Replacement Lender”) for such Affected
Lender, which Replacement Lender shall be reasonably satisfactory to
Agent.  In the event Borrower obtains a
Replacement Lender that will purchase all outstanding Obligations owed to such
Affected Lender and assume its Commitments hereunder within thirty (30) days
following notice of Borrower’s intention to do so, the Affected Lender shall
sell and assign all of its rights and delegate all of its obligations under
this Agreement to such Replacement Lender in accordance with the provisions of Section 8.1,
provided that Borrower has reimbursed such Affected Lender for any
administrative fee payable pursuant to Section 8.1 and, in any case
where such replacement occurs as the result of a demand for payment pursuant to
Section 1.8 or 1.9, paid all amounts required to be paid to such
Affected Lender pursuant to Section 1.8 or 1.9 through the date of
such sale and assignment; or


 


(ii)           Borrower may, with Agent’s consent,
prepay in full all outstanding Obligations owed to such Affected Lender and
terminate such Affected Lender’s Pro Rata Share of the Revolving Loan
Commitment and Pro Rata Share of the Term Commitment, in which case the
Revolving Loan Commitment and Term Loan Commitment will be reduced by the
amount of such Pro Rata Share.  Borrower
shall, within ninety (90) days following notice of its intention to


 


84

















 


do so, prepay in full all outstanding
Obligations owed to such Affected Lender (including, in any case where such
prepayment occurs as the result of a demand for payment for increased costs,
such Affected Lender’s increased costs for which it is entitled to
reimbursement under this Agreement through the date of such prepayment), and
terminate such Affected Lender’s obligations under the Revolving Loan
Commitment and Term Loan Commitment.


 


(b)           In the case of a Defaulting Lender
pursuant to Section 8.5(a), at Borrower’s request, Agent or a
Person acceptable to Agent and Borrower shall have the right with Agent’s and
Borrower’s consent and in Agent’s sole discretion (but shall have no obligation)
to purchase from any Defaulting Lender, and each Defaulting Lender agrees that
it shall, at Agent’s request, sell and assign to Agent or such Person, all of
the Loans and Commitments of such Defaulting Lender for an amount equal to the
principal balance of all Loans held by such Defaulting Lender and all accrued
interest and Fees with respect thereto through the date of sale, such purchase
and sale to be consummated pursuant to an executed Assignment Agreement.


 


9.21         Delivery of Termination Statements
and Mortgage Releases.  On the
Termination Date, termination of the Commitments and a release of all claims,
if any, against Agent and Lenders, and so long as no suits, actions
proceedings, or claims are pending or threatened against any Indemnitee asserting
any damages, losses or liabilities that are indemnified liabilities hereunder,
Agent shall deliver to Borrower termination statements, mortgage releases and
other documents necessary or appropriate to evidence the termination of the
Liens securing payment of the Obligations.


 


9.22         Subordination
of Intercompany Debt.


 


(a)   Each Credit Party hereby agrees that any
intercompany Indebtedness or other intercompany payables or receivables, or
intercompany advances directly or indirectly made by or owed to such Credit
Party by any other Credit Party (collectively, “Intercompany Debt”), of
whatever nature at any time outstanding shall be subordinate and subject in
right of payment to the prior payment in full in cash of the Obligations.  Each Credit Party hereby agrees that it will
not, while any Event of Default under Section 6.1(a), (f),
or (g) is continuing, accept any payment, including by offset, on
any Intercompany Debt until the Termination Date, in each case, except with the
prior written consent of the Co-Administrative Agents.


 


(b)   In the event that any payment on any
Intercompany Debt shall be received by a Credit Party other than as permitted
by this Section 9.22 before the Termination Date, such Credit Party
shall receive such payments and hold the same in trust for, segregate the same
from its own assets and shall immediately pay over to, Agent for the benefit of
Co-Administrative Agents and Lenders all such sums to the extent necessary so
that Co-Administrative Agents and the Lenders shall have been paid in full, in
cash, all Obligations owed or which may become owing.


 


(c)   Upon any payment or distribution of any
assets of any Credit Party of any kind or character, whether in cash, property
or securities by set-off, recoupment or otherwise, to


 


85

















 


creditors in any
liquidation or other winding-up of such Credit Party or in the event of any
Proceeding, Co-Administrative Agents and Lenders shall first be entitled to
receive payment in full in cash, in accordance with the terms of the
Obligations, before any payment or distribution is made on, or in respect of,
any Intercompany Debt, in any such Proceeding, any distribution or payment, to
which either Co-Administrative Agent or any Lender would be entitled except for
the provisions hereof shall be paid by such Credit Party, or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution directly to Agent (for the benefit of Co-Administrative
Agents and the Lenders) to the extent necessary to pay all such Obligations in
full in cash, after giving effect to any concurrent payment or distribution to
Co-Administrative Agents and Lenders (or to Agent for the benefit of
Co-Administrative Agents and Lenders).


 


9.23         Patriot Act.  Each Lender that is subject to the Patriot
Act hereby notifies Borrower that pursuant to the requirements of the Patriot
Act, it is required to obtain, verify and record information that identifies
Borrower, which information includes the name and address of Borrower and other
information that will allow such Lender to identify Borrower in accordance with
the Patriot Act.


 


9.24         Joint and Several.  The obligations of the Credit Parties
hereunder and under the other Loan Documents are joint and several.


 


9.25         Reserved.


 


9.26         NO NOVATION.  THE
PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT SOLELY TO AMEND AND RESTATE THE
TERMS OF THE EXISTING CREDIT AGREEMENT. 
THE PARTIES HERETO DO NOT INTEND THIS AGREEMENT NOR THE TRANSACTIONS
CONTEMPLATED HEREBY TO BE, AND THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING
BY BORROWER OR ANY OTHER CREDIT PARTY UNDER OR IN CONNECTION WITH THE EXISTING
CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.


 


9.27         Amendment and Restatement.  The
parties hereto agree that, on the Restatement Date, the following transactions
shall be deemed to occur automatically, without further action by any party
hereto:  (a) the Existing Credit
Agreement shall be deemed to be amended and restated in its entirety in the
form of this Agreement; (b) all Obligations under the Existing Credit
Agreement outstanding on the Restatement Date shall in all respects be
continuing and shall be deemed to be Obligations outstanding hereunder; (c) the
Guaranties and other Collateral Documents, including the Liens created
thereunder in favor of GE Capital (in its capacity as agent under the Existing
Credit Agreement) for the benefit of the Lenders as assigned to SunTrust
Administrative Agent and securing payment of the Obligations under this
Agreement, shall remain in full force and effect with respect to the
Obligations and are hereby reaffirmed; (d) all Existing Letters of Credit
outstanding under the Existing Credit Agreement on the Restatement Date shall
be deemed to be Letters of Credit outstanding on the Restatement Date under
this Agreement; and (e) all references in the other Loan Documents to the
Existing Credit Agreement shall be deemed to refer without further amendment to
this Agreement.  The parties


 


86

















 


hereto further acknowledge and agree that this
Agreement constitutes an amendment of the Existing Credit Agreement made under
and in accordance with the terms of Section 9.2 of the Existing Credit
Agreement.


 


87

















 


Witness the due execution hereof by the respective
duly authorized officers of the undersigned as of the date first written above.


 


 


	
   

  	
   

  	
  TRANSACTION
  NETWORK SERVICES, INC. as Borrower, and

  
	
   

  	
   

  	
  TNS,
  INC., as a Credit Party

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Henry H.
  Graham, Jr.

  
	
   

  	
   

  	
  Name:

  	
  Henry H. Graham,
  Jr.

  
	
   

  	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SUNTRUST
  BANK,

  
	
   

  	
   

  	
  as Agent,
  Co-Administrative Agent, an L/C Issuer and a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Timothy
  M. O’Leary

  
	
   

  	
   

  	
  Name:

  	
  Timothy M.
  O’Leary

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GENERAL
  ELECTRIC CAPITAL CORPORATION,

  
	
   

  	
   

  	
  as
  Co-Administrative Agent and a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Richard
  O’Neill

  
	
   

  	
   

  	
  Name:

  	
  Richard O’Neill

  
	
   

  	
   

  	
  Title:

  	
  Duly Authorized
  Signatory

  



 


[Signature Page to
TNS Amended and Restated Credit Agreement]


 
















 


ANNEX A


to


AMENDED
AND RESTATED CREDIT AGREEMENT


 


DEFINITIONS


 


Capitalized terms used in the Loan Documents shall
have (unless otherwise provided elsewhere in the Loan Documents) the following
respective meanings and all references to Sections, Exhibits, Schedules or
Annexes in the following definitions shall refer to Sections, Exhibits,
Schedules or Annexes of or to the Agreement:


 


“Account Debtor” means any Person who may
become obligated to any Credit Party under, with respect to, or on account of,
an Account, Chattel Paper or General Intangibles (including a payment
intangible).


 


“Accounting Changes” means:  (a) changes in accounting principles
required by GAAP and implemented by Holdings or any of its Subsidiaries; (b) changes
in accounting principles recommended by Holdings’ certified public accountants
and implemented by Holdings; and (c) changes in carrying value of Holdings’
or any of its Subsidiaries’ assets, liabilities or equity accounts resulting
from (i) the application of purchase accounting principles (A.P.B. 16
and/or 17, FASB 141 and EITF 88-16 and FASB 109) to the Related Transactions or
(ii) as the result of any other adjustments that, in each case, were
applicable to, but not included in, the Pro Forma.


 


“Accounts” means all “accounts,” as such term
is defined in the Code, now owned or hereafter acquired by Holdings or any
Domestic Subsidiary, and in any event, including, (a) all accounts
receivable, other receivables, book debts and other forms of obligations (other
than forms of obligations evidenced by Chattel Paper or Instruments),
(including any such obligations that may be characterized as an account or
contract right under the Code), (b) all of Holdings’ or any Domestic
Subsidiary’s rights in, to and under all purchase orders or receipts for goods
or services rendered by Holdings or any Domestic Subsidiary, (c) all of
Holdings’ or any Domestic Subsidiary’s rights to any goods represented by any
of the foregoing, (d) all rights to payment due to Holdings or any
Domestic Subsidiary for property sold, leased, licensed, assigned or otherwise
disposed of, for a policy of insurance issued or to be issued, for a secondary
obligation incurred or to be incurred, for energy provided or to be provided,
for the use or hire of a vessel under a charter or other contract, arising out
of the use of a credit card or charge card, or for services rendered or to be
rendered by Holdings or any Domestic Subsidiary or in connection with any other
transaction (whether or not yet earned by performance on the part of Holdings
or any Domestic Subsidiary), (e) all healthcare insurance receivables, and
(f) all collateral security of any kind, now or hereafter in existence,
given by any Account Debtor or other Person with respect to any of the
foregoing.


 


“Acquisition” means the acquisition of the
Communications Services Group of the Target pursuant to the terms of the
Purchase Agreement.


 


A-1

















 


“Acquisition Term Lenders” means those Lenders
having Acquisition Term Loan Commitments.


 


“Acquisition Term Loan” has the meaning
ascribed to it in Section 1.1(a)(ii).


 


“Acquisition Term Loan Commitment” means (a) as
to any Lender, the commitment of such Lender to make its Pro Rata Share of the
Acquisition Term Loan (as set forth in the Register) in the maximum aggregate
amount set forth in Section 1.1(a)(ii) or in the most recent
Assignment Agreement, if any, executed by such Lender and (b) as to all
Lenders, the aggregate commitment of all Lenders to make the Acquisition Term Loan.  The Acquisition Term Loan Commitment with
respect to the Acquisition Term Loan shall reduce automatically by the amount
prepaid or repaid in respect of the Acquisition Term Loan (but solely by the
amount of such prepayment or repayment allocable to a Lender, for purposes of
clause (a) of this definition).


 


“Acquisition Term Loan Scheduled Installments”
has the meaning ascribed to it in Section 1.1(a)(ii).


 


“Acquisition Term Note” has the meaning
ascribed to it in Section 1.1(a)(ii).


 


“Advances” means any Revolving Credit Advance
or Swing Line Advance, as the context may require.


 


“Affected Lender” has the meaning ascribed to
it in Section 9.20(a).


 


“Affiliate” means, with respect to any Person, (a) each
Person that, directly or indirectly, owns or controls, whether beneficially, or
as a trustee, guardian or other fiduciary, 10% or more of the Stock having ordinary voting power in the
election of directors of such Person, (b) each Person that controls, is
controlled by or is under common control with such Person and (c) each of
such Person’s officers, directors, joint venturers and partners.  For the purposes of this definition, “control”
of a Person shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of its management or policies, whether through
the ownership of voting securities, by contract or otherwise; provided, however,
that the term “Affiliate” shall specifically exclude each
Co-Administrative Agent and each Lender.


 


“Agent” means the SunTrust Administrative Agent
or a successor agent pursuant to Section 8.2.


 


“Agreement” means this Amended and Restated
Credit Agreement (including all schedules, subschedules, annexes and exhibits
hereto), as the same may be amended, supplemented, restated or otherwise modified
from time to time.


 


“Applicable Margins” means collectively the
Applicable Revolver Index Margin, the Applicable Term Loan Index Margin, the
Applicable Revolver LIBOR Margin and the Applicable Term Loan LIBOR Margin.


 


A-2

















 


“Applicable Revolver Index Margin” means the
per annum interest rate margin from time to time in effect and payable in
addition to the Index Rate applicable to the Revolving Loan, as determined by
reference to Section 1.2(a).


 


“Applicable Revolver LIBOR Margin” means the
per annum interest rate from time to time in effect and payable in addition to
the LIBOR Rate applicable to the Revolving Loan, as determined by reference to Section 1.2(a).


 


“Applicable Term Loan Index Margin” means the
per annum interest rate from time to time in effect and payable in addition to
the Index Rate applicable to the Term Loans, as determined by reference to Section 1.2(a).


 


“Applicable Term Loan LIBOR Margin” means the
per annum interest rate from time to time in effect and payable in addition to
the LIBOR Rate applicable to the Term Loans, as determined by reference to Section 1.2(a).


 


“Applicable Unused Line Fee” has the meaning
ascribed to it in Section 1.3(b).


 


“Applicable Unused Line Fee Margin” means the
per annum fee margin from time to time in effect and payable with respect to
the Applicable Unused Line Fee, as determined by reference to Section 1.3(b).


 


“Asset Disposition” means the disposition
whether by sale, lease, transfer, loss, damage, destruction, casualty,
condemnation or otherwise of any of the following:  (a) any of the Stock or other equity or
ownership interest of any of Borrower’s Subsidiaries that are Credit Parties or
(b) any or all of the assets of Borrower or any of its Subsidiaries that
are Credit Parties; provided, however, that (i) any sale or
transfer of Inventory in the ordinary course of business, (ii) any sale or
other disposition of surplus, worn out or obsolete assets which are no longer
useful in the business of Borrower or any of its Subsidiaries that are Credit
Parties, (iii) any asset sale or series of related asset sales described
above having a fair market value not in excess of $500,000, (iv) the
liquidation of any Cash Equivalents in the ordinary course of business, (v) the
leasing or licensing of real or personal property (including Intellectual
Property) in the ordinary course of business, (vi) sales of accounts
receivable to the extent permitted by Section 3.7(f) and (vii) sales,
leases, licenses and transfers of Stock or assets of (A) Borrower or a
Domestic Subsidiary to Borrower or to another Domestic Subsidiary who is a
Guarantor and (B) a Foreign Subsidiary of Borrower to Borrower or another
Subsidiary of Borrower, in each case for valid business reasons, and for fair
market value and subject to the provisions of Section 2.7, shall,
in each case, not be deemed an “Asset Disposition” for purposes of this
Agreement.


 


“Assignment” means an assignment agreement
entered into by a Lender, as assignor, and any Person, as assignee, pursuant to
the terms and provisions of Section 8.1(a) (with the consent
of any party whose consent is required by Section 8.1(a)), accepted
by Agent, in substantially the form of Exhibit 8.1 or any other form
approved by Agent.


 


A-3

















 


“Bankruptcy Code” means the provisions of Title
11 of the United States Code, 11 U.S.C. §§ 101 et seq. or any other
applicable bankruptcy, insolvency or similar laws as amended and in effect from
time to time and the regulations issued from time to time thereunder.


 


“Borrower” has the meaning ascribed to it in
the preamble to the Agreement.


 


“Borrower Pledge Agreement” means the Pledge
Agreement dated as of the Original Closing Date executed by Borrower in favor
of Agent (as successor to GE Capital (in its capacity as agent under the
Existing Credit Agreement)), on behalf of itself and Lenders, pledging Stock of
its Subsidiaries, if any, and shall include any foreign pledges or charges in
respect of pledges of Stock of any Foreign Subsidiary.


 


“Borrowing Availability” means as of any date
of determination the Maximum Amount less the sum of (i) the
Revolving Loan then outstanding (including, without duplication, the
outstanding balance of Letter of Credit Obligations), and (ii) the Swing Line Loan then outstanding.


 


“Borrower Information” has the meaning ascribed
to it in Section 1.10.


 


“Budget” means Holdings’ forecasted
consolidated:  (a) balance sheets; (b) profit
and loss statements; and (c) cash flow statements, all prepared on a
division-by-division basis, if applicable, and otherwise consistent with the
historical Financial Statements of Holdings, together with appropriate
supporting details and a statement of underlying assumptions.


 


“Business Day” means any day that is not a
Saturday, a Sunday or a day on which banks are required or authorized to be
closed in the State of New York, in the State of Virginia or in the State of Georgia and in
reference to LIBOR Loans shall mean any such day that is also a LIBOR Business
Day.


 


“Capex Limit” has the meaning ascribed to it in
Section 4.1.


 


“Capital Expenditures” has the meaning ascribed
to it in Section 4.1 of Schedule 1 to Annex D.


 


“Capital Lease” means, with respect to any
Person, any lease of any property (whether real, personal or mixed) by such
Person as lessee that, in accordance with GAAP, would be required to be
classified and accounted for as a capital lease on a balance sheet of such
Person.


 


“Capital Lease Obligation” means, with respect
to any Capital Lease of any Person, the amount of the obligation of the lessee
thereunder that, in accordance with GAAP, would appear on a balance sheet of
such lessee in respect of such Capital Lease.


 


“Carry Over Amount” has the meaning ascribed to
it in Section 4.1.


 


A-4

















 


“Cash Equivalents” means:  (i) marketable securities (A) issued
or directly and unconditionally guaranteed as to interest and principal by the
United States or British government or (B) issued by any agency of the
United States or British government the obligations of which are backed by the
full faith and credit of the United States or England, as applicable, in each
case maturing within one year after acquisition thereof; (ii) marketable
direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof,
in each case maturing within one year after acquisition thereof and having, at
the time of acquisition, a rating of at least A-1 from S&P or at least P-1
from Moody’s; (iii) commercial paper maturing no more than one year from
the date of acquisition and, at the time of acquisition, having a rating of at
least A-1 from S&P or at least P-1 from Moody’s; (iv) Dollar, Canadian
dollar, Euro or Sterling denominated (or other foreign currency fully hedged)
time deposits,  certificates of deposit or bankers’ acceptances issued or
accepted by (1) any Lender, (2) any commercial bank organized under
the laws of the United States of America or any state thereof or the District
of Columbia that is at least (A) “adequately capitalized” (as defined in
the regulations of its primary Federal banking regulator) and (B) has Tier
1 capital (as defined in such regulations) of not less than $250,000,000 or (3) a
non-United States commercial banking institution which is either currently
ranked among the 100 largest banks in the world (by assets by American
Banker), has combined capital and surplus and undivided profits of not less
than $500,000,000 or whose commercial paper (or the commercial paper of such
bank’s holding company) has a rating of at least A-1 from S&P or at least
P-1 from Moody’s, in each case maturing within one year after issuance or
acceptance thereof; and (v) shares of any money market mutual or similar
funds that (A) has substantially all of its assets invested continuously
in the types of investments referred to in clauses (i) through (iv) above,
(B) has net assets of not less than $500,000,000 and (C) has the
highest rating obtainable from either S&P or Moody’s.


 


“Certificate of Exemption” has the meaning
ascribed to it in Section 1.9(c).


 


“Change of Control”
means any of the following:  (a) any
person or group of persons (within the meaning of the Securities Exchange Act
of 1934) (excluding any employee benefit plan of such person or its Affiliates
or any Person acting as trustee or fiduciary of such plan) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
SEC under the Securities Exchange Act of 1934) of more than 25% of the issued
and outstanding shares of Stock of Holdings having the right to vote for the
election of directors of Holdings under ordinary circumstances; (b) during
any period of twelve consecutive calendar months, individuals who at the
beginning of such period constituted the board of directors of Holdings
(together with any new directors whose election by the board of directors of
Holdings or whose nomination for election by the Stockholders of Holdings was
approved by a vote of at least a majority 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) cease for any reason other
than death or disability to constitute a majority of the directors then in
office; (c) Holdings ceases to own and control all of the economic and
voting rights associated with all of the outstanding Stock of Borrower free and
clear of all Liens other than Liens in favor of Agent and Permitted
Encumbrances arising as a matter of law; or (d) the occurrence of a “Change
of Control” (or other similarly used defined term) under and as defined in any 


 


A-5

















 


instrument or agreement
under which Indebtedness in excess of $5,000,000 of Holdings or any of its
Subsidiaries is created, issued and or otherwise incurred from time to time.


 


“Charges” means all federal, state, county,
city, municipal, local, foreign or other governmental premiums and other amounts
(including premiums and other amounts owed to the PBGC at the time due and
payable), levies, assessments, charges, liens, claims or encumbrances upon or
relating to (a) the Collateral, (b) the Obligations, (c) the
employees, payroll, income or gross receipts of any Credit Party, (d) any
Credit Party’s ownership or use of any properties or other assets, or (e) any
other aspect of any Credit Party’s business.


 


“Chattel Paper”
means any “chattel paper,” as such term is defined in the Code, including
electronic chattel paper, now owned or hereafter acquired by Holdings or any
Domestic Subsidiary, wherever located.


 


“Co-Administrative Agents” means the Agent and
the GE Capital Administrative Agent or a successor Co-Administrative Agent
pursuant to Section 8.2.


 


“Code” means the Uniform Commercial Code as the
same may, from time to time, be enacted and in effect in the State of New York; provided, that to the
extent that the Code is used to define any term herein or in any Loan Document
and such term is defined differently in different Articles or Divisions of the
Code, the definition of such term contained in Article or Division 9 shall
govern; provided further, that in the event that, by reason of mandatory
provisions of law, any or all of the attachment, perfection or priority of, or
remedies with respect to, Agent’s or any Lender’s Lien on any Collateral is
governed by the Uniform Commercial Code as enacted and in effect in a
jurisdiction other than the State of New
York, the term “Code” shall mean the Uniform Commercial Code as
enacted and in effect in such other jurisdiction solely for purposes of the
provisions thereof relating to such attachment, perfection, priority or
remedies and for purposes of definitions related to such provisions.


 


“Collateral” means the property covered by any
of the Security Agreement, the
Mortgages or the other Collateral Documents and any other property, real
or personal, tangible or intangible, now existing or hereafter acquired, that
may at any time be or become subject to a security interest or Lien in favor of
Agent (either directly or as a successor to GE Capital (in its capacity as
agent under the Existing Credit Agreement)), on behalf of itself and Lenders,
to secure the Obligations or any portion thereof or delivered to the Lenders or
Agent (either directly or as a successor to GE Capital (in its capacity as
agent under the Existing Credit Agreement)) pursuant to or in connection with
the transactions contemplated hereby.


 


“Collateral Assignment of Purchase Documents”
means a Collateral Assignment of Purchase Documents dated as of the Restatement
Date and entered into by Borrower in favor of Agent.


 


“Collateral Documents” means the Security
Agreement, the Pledge Agreements, the
Guaranties, the Mortgages, the Patent Security Agreements, the Trademark
Security Agreements, the Copyright Security Agreements, the Master Amendment
and Reaffirmation, the Collateral Assignment of Purchase Documents and all
similar agreements entered into 


 


A-6

















 


guaranteeing payment of, or granting a Lien upon
property as security for payment of, the Obligations or any portion thereof,
and all financing statements (or comparable documents now or hereafter filed in
accordance with the UCC or comparable law) against any such Person as debtor in
favor of Agent (either directly or as a successor to GE Capital (in its
capacity as agent under the Existing Credit Agreement)) for the benefit of
Agent, the Lenders and the other Secured Parties, as secured party, as any of
the foregoing may be amended, restated and/or modified from time to time.


 


“Commitment Termination Date” means the
earliest of (a) March 28, 2013, (b) the date of termination of
Lenders’ obligations to make Advances and to incur Letter of Credit Obligations
or permit existing Loans to remain outstanding pursuant to Section 6.3,
and (c) the date of (i) prepayment in full in cash by Borrower of the
Loans, (ii) the cancellation and return of all Letters of Credit or the
cash collateralization or, with the consent of Agent in each instance, the
backing with standby letters of credit acceptable to Agent of all Letter of
Credit Obligations pursuant to and in the amount required by Section 1.5(f),
and (iii) the permanent reduction of the Commitments to zero dollars ($0).


 


“Commitments” means (a) as to any Lender,
the aggregate of such Lender’s Revolving Loan Commitment, Existing Term Loan
Commitment and Acquisition Term Loan Commitment as set forth in the Register
and (b) as to all Lenders, the aggregate of all Lenders’ Revolving Loan
Commitments, Existing Term Loan Commitments and Acquisition Term Loan
Commitments, which aggregate commitment shall be Four Hundred Twenty Three
Million Five Hundred Thousand Dollars  ($423,500,000)
on the Restatement Date, as such Commitments may be reduced, amortized or
adjusted from time to time in accordance with the Agreement.


 


“Compliance, Pricing, and Excess Cash Flow
Certificate” has the meaning ascribed to it in Section 4.4(l).


 


“Consolidated Net Income” has the meaning ascribed
to it in Schedule 1 to Annex D.


 


“Contingent Obligation” means, as applied to
any Person, means any direct or indirect liability of that Person:  (i) with respect to Guaranteed
Indebtedness and with respect to any Indebtedness, lease, dividend or other
obligation of another Person if the purpose or intent of the Person incurring
such liability, or the effect thereof, is to provide assurance to the obligee
of such liability that such liability will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
liability will be protected (in whole or in part) against loss with respect
thereto; (ii) with respect to any letter of credit issued for the account
of that Person or as to which that Person is otherwise liable for reimbursement
of drawings; (iii) under any foreign exchange contract, currency swap
agreement, interest rate swap agreement (including Interest Rate Agreements) or
other similar agreement or arrangement designed to alter the risks of that
Person arising from fluctuations in currency values or interest rates, (iv) any
agreement, contract or transaction involving commodity options or future
contracts, (v) to make take-or-pay or similar payments if required
regardless of nonperformance by any other party or parties to an agreement, or (vi) pursuant
to any agreement to purchase, repurchase or otherwise 


 


A-7

















 


acquire any obligation or any property constituting
security therefor, to provide funds for the payment or discharge of such
obligation or to maintain the solvency, financial condition or any balance
sheet item or level of income of another. 
The amount of any Contingent Obligation shall be equal to the amount of
the obligation so guaranteed or otherwise supported or, if not a fixed and
determined amount, the maximum amount so guaranteed or supported.


 


“Contractual Obligations” means, as applied to
any Person, any provision of any security issued by such Person or any
indenture, mortgage, deed of trust, contract, undertaking, agreement or other
instrument to which that Person is a party or by which it or any of its
properties is bound or to which it or any of its properties is subject
including the Related Transactions Documents.


 


“Copyright License” means any and all rights
now owned or hereafter acquired by Holdings or any Domestic Subsidiary under
any written agreement granting any right to use any Copyright or Copyright
registration.


 


“Copyright Security Agreements” means the
Copyright Security Agreement dated as of the Original Closing Date and each
other copyright security agreement made in favor of Agent (either directly or
as a successor to GE Capital (in its capacity as agent under the Existing
Credit Agreement)), on behalf of itself and Lenders, by Holdings or any
Domestic Subsidiary, as applicable.


 


“Copyrights” means all of the following now
owned or acquired by Holdings or any Domestic Subsidiary: (a) all
copyrights and General Intangibles of like nature (whether registered or unregistered),
all registrations and recordings thereof, and all applications in connection
therewith, including all registrations, recordings and applications in the
United States Copyright Office or in any similar office or agency of the United
States, any state or territory thereof, or any other country or any political
subdivision thereof; and (b) all reissues, extensions or renewals thereof.


 


“Credit Parties” means Holdings, Borrower, each
of their respective Domestic Subsidiaries and each of their Foreign
Subsidiaries which either (i) the consolidated total assets of which were
more than 5% of Holdings and its Subsidiaries consolidated total assets as of
the end of the most recently completed Fiscal Year of Holdings for which
audited financial statements are available or (ii) the consolidated total
revenues of which were more than 5% of Holdings’ consolidated total revenues
for such period; provided that, in the event the aggregate of the total assets
of all Foreign Subsidiaries that do not constitute Credit Parties exceeds 15%
of Holdings’ consolidated total assets as of such date or the consolidated
total revenues of such Foreign Subsidiaries exceeds 15% of Holdings’
consolidated total revenues as of such date, Borrower (or Agent, in the event
Borrower has failed to do so promptly (and in any event within thirty (30)
Business Days) after request therefor by Agent) shall, to the extent necessary,
designate, on a reasonable basis, sufficient Foreign Subsidiaries to be deemed
to be “Credit Parties” to eliminate such excess, and such designated Foreign
Subsidiaries shall thereafter constitute Credit Parties.  Assets of Foreign Subsidiaries shall be
valued in Dollars at the rates 


 


A-8

















 


used for purposes of preparing the consolidated
balance sheet of Holdings included in such audited financial statements.


 


“Default” means any event that, with the
passage of time or notice or both, would, unless cured or waived during such
time, become an Event of Default.


 


“Default Rate” has the meaning ascribed to it
in Section 1.2(d).


 


“Defaulting Lender” means, at any time, a
Lender as to which Agent has notified Borrower that (i) such Lender has
failed for two (2) or more Business Days to comply with its obligations
under this Agreement to make a Revolving Loan, make a payment to an L/C Issuer
of its funding obligations owing to such L/C Issuer pursuant to Section 1.1(d)(ii) and/or
make a payment to the Swing Line Lender in respect of a Swing Line Advance
pursuant to Section 1.1(c)(iii) (each a “funding obligation”),
(ii) such Lender has notified Agent, or has stated publicly, that it will
not comply with any such funding obligation hereunder, (iii) such Lender
has, for two (2) or more Business Days, failed to confirm in writing to Agent,
in response to a written request of Agent, that it will comply with its funding
obligations hereunder, or (iv) a Lender Insolvency Event has occurred and
is continuing with respect to such Lender. 
Any determination that a Lender is a Defaulting Lender under clauses (i) through
(iv) above will be made by Agent in its sole discretion acting in good
faith.  Agent will promptly send to all
parties hereto a copy of any notice to Borrower provided for in this
definition.


 


“Disbursement Account” has the meaning ascribed
to it in Section 1.1(e).


 


“Disclosure Schedules” means the Schedules
prepared by Borrower and denominated as Schedules 3.1(c) through 5.17
in the index to the Agreement.


 


“Documents” means any “document,” as such term
is defined in the Code, including electronic documents, now owned or hereafter
acquired by any Credit Party, wherever located.


 


“Dollars” or “$” means lawful currency
of the United States of America.


 


“Domestic Cash Availability” has the meaning
ascribed to it in Schedule 2 to Annex D.


 


“Domestic Subsidiary”
means any Subsidiary of a Credit Party that is organized under the laws of any
State of the United States, the District of Columbia, or any territory or
possession of the United States.


 


“EBITDA” has the meaning ascribed to it in
Schedule 1 to Annex D.


 


“Electronic Transmission” means each document,
instruction, authorization, file, information and any other communication
transmitted, posted or otherwise made or communicated by e-mail or E-Fax, or
otherwise to or from an E-System or other equivalent service.


 


A-9
















 


“Environmental Laws” means all applicable
federal, state, local and foreign laws, statutes, ordinances, codes, rules,
standards and regulations, now or hereafter in effect, and any applicable
judicial or administrative interpretation thereof, including any applicable
judicial or administrative order, consent decree, order or judgment, imposing
liability or standards of conduct for or relating to the regulation and
protection of human health, safety, the environment and natural resources
(including ambient air, surface water, groundwater, wetlands, land surface or
subsurface strata, wildlife, aquatic species and vegetation).  Environmental Laws include the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. §§
9601 et seq.) (“CERCLA”); the Hazardous Materials Transportation
Authorization Act of 1994 (49 U.S.C. §§ 5101 et seq.); the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§ 136 et seq.);
the Solid Waste Disposal Act (42 U.S.C. §§ 6901 et seq.); the Toxic
Substance Control Act (15 U.S.C. §§ 2601 et seq.); the Clean Air Act (42
U.S.C. §§ 7401 et seq.); the Federal Water Pollution Control Act (33
U.S.C. §§ 1251 et seq.); the Occupational Safety and Health Act (29
U.S.C. §§ 651 et seq.); and the Safe Drinking Water Act (42 U.S.C.
§§ 300(f) et seq.), and any and all regulations promulgated
thereunder, and all analogous state, local and foreign counterparts or
equivalents and any transfer of ownership notification or approval statutes.


 


“Environmental Liabilities” means, with respect
to any Person, all liabilities, obligations, responsibilities, response,
remedial and removal costs, investigation and feasibility study costs, capital
costs, operation and maintenance costs, losses, damages, punitive damages, property
damages, natural resource damages, consequential damages, treble damages, costs
and expenses (including all reasonable fees, disbursements and expenses of
counsel, experts and consultants), fines, penalties, sanctions and interest
incurred as a result of or related to any claim, suit, action, investigation,
proceeding or demand by any Person, whether based in contract, tort, implied or
express warranty, strict liability, criminal or civil statute or common law,
arising under or related to any Environmental Laws, Environmental Permits, or
in connection with any Release or threatened Release or presence of a Hazardous
Material whether on, at, in, under, from or about or in the vicinity of any
real or personal property.


 


“Environmental Permits” means all permits,
licenses, authorizations, certificates, approvals or registrations required by
any Governmental Authority under any Environmental Laws.


 


“Equipment” means all “equipment,” as such term
is defined in the Code, now owned or hereafter acquired by Holdings or any
Domestic Subsidiary, wherever located and, in any event, including all such
Holdings’ or any Domestic Subsidiary’s machinery and equipment, including
processing equipment, conveyors, machine tools, data processing and computer
equipment, including embedded software and peripheral equipment and all
engineering, processing and manufacturing equipment, office machinery,
furniture, materials handling equipment, tools, attachments, accessories,
automotive equipment, trailers, trucks, forklifts, molds, dies, stamps, motor
vehicles, rolling stock and other equipment of every kind and nature, trade
fixtures and fixtures not forming a part of real property, together with all
additions and accessions thereto, replacements therefor, all parts therefor, all
substitutes for any of the foregoing, fuel therefor, and all manuals, drawings,
instructions, warranties and rights with 


 


A-10

















 


respect thereto, and all products and proceeds thereof
and condemnation awards and insurance proceeds with respect thereto.


 


“ERISA” means the Employee Retirement Income
Security Act of 1974, as amended from time to time, and any regulations
promulgated thereunder.


 


“ERISA Affiliate” means, with respect to
Holdings or any Domestic Subsidiary, any trade or business (whether or not
incorporated) that, together with such Person, are treated as a single employer
within the meaning of Sections 414(b) or (c) of the IRC.


 


“ERISA Event” means, with respect to Holdings
or any ERISA Affiliate, (a) any event described in Section 4043(c) of
ERISA with respect to a Title IV Plan; (b) the withdrawal of Holdings or
ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (c) the complete or partial withdrawal of Holdings or any ERISA
Affiliate from any Multiemployer Plan; (d) the filing of a notice of
intent to terminate a Title IV Plan or the treatment of a plan amendment as a
termination under Section 4041 of ERISA; (e) the institution of
proceedings to terminate a Title IV Plan or Multiemployer Plan by the PBGC; (f) the
failure by Holdings or ERISA Affiliate to make when due required contributions
to a Multiemployer Plan or Title IV Plan unless such failure is cured within 30
days; (g) any other event or condition that might reasonably be expected
to constitute grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Title IV Plan or
Multiemployer Plan or for the imposition of liability under Section 4069
or 4212(c) of ERISA; (h) the termination of a Multiemployer Plan
under Section 4041A of ERISA or the reorganization or insolvency of a
Multiemployer Plan under Section 4241 or 4245 of ERISA; or (i) the
loss of a Qualified Plan’s qualification or tax exempt status; or (j) the
termination of a Plan described in Section 4064 of ERISA.


 


“Event of Default” has the meaning ascribed to
it in Section 6.1.


 


“Excess Cash Flow” has the meaning ascribed to
it in Schedule 2 to Annex D.


 


“Existing Credit Agreement” has the meaning
ascribed thereto in the recitals to the Agreement.


 


“Existing Letter of Credit” has the meaning
ascribed to it in Section 1.1(d)(vi).


 


“Existing Term Lenders” means those Lenders
having Existing Term Loan Commitments.


 


“Existing Term Loan” has the meaning ascribed
to it in Section 1.1(a)(i).


 


“Existing Term Loan Commitment” means (a) as
to any Lender, the commitment of such Lender with respect to the Existing Term
Loan (as set forth in the Register) and (b) as to all Lenders, the
aggregate commitment of all Lenders with respect to the Existing Term
Loan.  The Existing Term Loan Commitment
with respect to the Existing Term Loan shall reduce 


 


A-11

















 


automatically by the amount prepaid or repaid in
respect of the Existing Term Loan (but solely by the amount of such prepayment
or repayment allocable to a Lender, for purposes of clause (a) of this
definition).


 


“Existing Term Loan Scheduled Installments” has
the meaning ascribed to it in Section 1.1(a)(i).


 


“Existing Term Note” has the meaning ascribed
to it in Section 1.1(a)(i).


 


“E-Fax” means any system used to receive or
transmit faxes electronically.


 


“E-Signature” means the process of attaching to
or logically associating with an Electronic Transmission an electronic symbol,
encryption, digital signature or process (including the name or an abbreviation
of the name of the party transmitting the Electronic Transmission) with the
intent to sign, authenticate or accept such Electronic Transmission.


 


“E-System” means any electronic system,
including Syndtrak Online®, Intralinks® and ClearPar® and any other Internet or
extranet-based site, whether such electronic system is owned, operated or
hosted by Agent, any of its officers, directors or agents, or any other Person,
providing for access to data protected by passcodes or other security system.


 


“Fair Labor Standards Act” means the Fair Labor
Standards Act, 29 U.S.C. §201 et seq.


 


“Federal Funds Rate” means, for any day, a
floating rate equal to the weighted average of the rates on overnight federal
funds transactions among members of the Federal Reserve System arranged by
federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day, provided that if no such
rate is so published on such Business Day, the Federal Funds Rate for such day
shall be the average rate quoted to Agent on such day, as determined by Agent in
its sole discretion, which determination shall be final, binding and conclusive
(absent manifest error).


 


“Federal Reserve Board” means the Board of
Governors of the Federal Reserve System or any entity succeeding to any of its
principal functions.


 


“Fees” means any and all fees payable to Agent
or any Lender pursuant to the Agreement or any of the other Loan Documents.


 


“Field Review” has the meaning ascribed to it
in Section 2.3.


 


“Financial Statements” means the consolidated
income statements, statements of cash flows and balance sheets of Holdings and its Subsidiaries
delivered in accordance with Section 4.4.


 


A-12

















 


“First-Tier Foreign Subsidiary” means a Foreign
Subsidiary more than fifty percent (50%) of the voting Stock (directly or
through ownership of Stock Equivalents) of which are held directly by Borrower
or directly by one or more Domestic Subsidiaries.


 


“Fiscal Quarter” means any of the quarterly
accounting periods of Holdings, ending on March 31, June 30, September 30
and December 31 of each year.


 


“Fiscal Year” means any of the annual
accounting periods of Holdings, Borrower or any Subsidiaries of Borrower ending
on December 31 of each year.


 


“Fixed Charge Coverage Ratio” means, for any
period, the ratio of (a) EBITDA for such period less Capital Expenditures for such period less taxes paid in cash by Holdings and
its Subsidiaries for such period to (b) Fixed Charges.


 


“Fixed Charges”  has the meaning ascribed to it in
Schedule 1 to Annex D.


 


“Fixtures” means all “fixtures” as such term is
defined in the Code, now owned or hereafter acquired by Holdings or any
Domestic Subsidiary.


 


“Foreign Excess Cash Flow” has the meaning
ascribed to it in Schedule 2 to Annex D.


 


“Foreign Excess Cash Offset” has the meaning
ascribed to it in Schedule 2 to Annex D.


 


“Foreign Investment Basket” means an amount per
Fiscal Year equal to $15,000,000.


 


“Foreign Lender” has the meaning ascribed to it
in Section 1.9(c).


 


“Foreign Pension Plan” means any plan, fund
(including, without limitation, any super-annuation fund) or other similar
program established or maintained outside of the United States of America by
any Credit Party or any Subsidiary of any Credit Party primarily for the
benefit of employees of such Credit Party or Subsidiary residing outside the
United States of America, which plan, fund, or similar program provides or
results in retirement income, a deferral of income in contemplation of
retirement or payments to be made upon termination of employment, and which is
not subject to ERISA or the IRC.


 


“Foreign Subsidiary”
means any Subsidiary of a Credit Party which is not a Domestic Subsidiary.


 


“Funded Debt” means, with respect to any
Person, without duplication, all Indebtedness for borrowed money evidenced by
notes, bonds, debentures, or similar evidences of Indebtedness and that by its
terms matures more than one year from, or is directly or indirectly renewable
or extendible at such Person’s option under a revolving credit or similar
agreement obligating the lender or lenders to extend credit over a period of
more than one year from the 


 


A-13

















 


date of creation thereof, and specifically including
Capital Lease Obligations, current maturities of long-term debt, revolving
credit and short-term debt extendible beyond one year at the option of the
debtor, and also including, in the case of Borrower, the Obligations (including
Letter of Credit Obligations) and, without duplication, Guaranteed Indebtedness
consisting of guaranties of Funded Debt of other Persons.


 


“Funding Date” has the meaning ascribed to it
in Section 7.2.


 


“GAAP” means generally accepted accounting
principles set forth from time to time in the opinions and pronouncements of
the Accounting Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and
authority within the accounting profession), which are applicable to the
circumstances as of the date of determination, consistently applied.


 


“GE Capital” has the meaning ascribed to it in
the Preamble.


 


“GE Capital Administrative Agent” means GE
Capital in its capacity as agent for Lenders.


 


“General Intangibles” means “general
intangibles,” as such term is defined in the Code, now owned or hereafter
acquired by Holdings or any Domestic Subsidiary, and, in any event, including
all right, title and interest that such Person may now or hereafter have in or
under any Contractual Obligation, all payment intangibles, Software, customer
lists, Licenses, Intellectual Property and (without duplication) all reissues,
extensions and renewals thereof, interests in partnerships, joint ventures and
other business associations, licenses, permits, trade secrets, proprietary or
confidential information, inventions (whether or not patented or patentable),
technical information, procedures, designs, knowledge, know-how, software, data
bases, data, skill, expertise, experience, processes, models, drawings,
materials and records, goodwill (including the goodwill associated with any
Trademark or Trademark License), all rights and claims in or under insurance
policies (including insurance for fire, damage, loss and casualty, whether
covering personal property, real property, tangible rights or intangible
rights, all liability, life, key man and business interruption insurance, and
all unearned premiums), uncertificated securities, chooses in action, deposit,
checking and other bank accounts, rights to receive tax refunds and other
payments, rights to receive dividends, distributions, cash, Instruments and
other property in respect of or in exchange for pledged Stock and Investment
Property, rights of indemnification, all books and records, correspondence,
credit files, invoices and other papers, including all tapes, cards, computer
runs and other papers and documents in the possession or under the control of
such Person or any computer bureau or service company from time to time acting
for such Person.


 


“Goods” means any “goods,” as such term is
defined in the Code, now owned or hereafter acquired by Holdings or any
Domestic Subsidiary, wherever located, and, in any event, including Inventory,
Equipment, Fixtures, embedded software to the extent included in “goods” 


 


A-14

















 


as defined in the Code, manufactured homes, standing
timber that is cut and removed for sale and unborn young of animals.


 


“Governmental Authority” means any nation or
government, any state or other political subdivision thereof, any central bank
(or similar monetary or regulatory authority) and any agency, department or
other entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government and any corporation or
other entity owned or controlled, through stock or capital ownership or
otherwise by any of the foregoing.


 


“Guaranteed Indebtedness” means, as to any
Person, any obligation of such Person guaranteeing, providing comfort or
otherwise supporting any Indebtedness, lease, dividend, or other obligation (“primary
obligation”) of any other Person (the “primary obligor”) in any
manner, including any obligation or arrangement of such Person to (a) purchase
or repurchase any such primary obligation, (b) advance or supply funds (i) for
the purchase or payment of any such primary obligation or (ii) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet condition of the
primary obligor, (c) purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation, (d) protect
the beneficiary of such arrangement from loss (other than product warranties
given in the ordinary course of business) or (e) indemnify the owner of
such primary obligation against loss in respect thereof.  The amount of any Guaranteed Indebtedness at
any time shall be deemed to be an amount equal to the lesser at such time of (x) the
stated or determinable amount of the primary obligation in respect of which
such Guaranteed Indebtedness is incurred and (y) the maximum amount for
which such Person may be liable pursuant to the terms of the instrument
embodying such Guaranteed Indebtedness, or, if not stated or determinable, the
maximum reasonably anticipated liability (assuming full performance) in respect
thereof.


 


“Guaranties” means,
collectively, the Holdings Guaranty, each Subsidiary Guaranty and any other
guaranty executed by any Guarantor in favor of Agent (either directly or as a successor to GE
Capital (in its capacity as agent under the Existing Credit Agreement)) and Lenders in respect of the Obligations.


 


“Guarantors” means Holdings, each Domestic Subsidiary (other than Borrower) and each
other Person, if any, that executes a guaranty or other similar agreement in
favor of Agent, for itself and the ratable benefit of Lenders, in connection
with the transactions contemplated by the Agreement and the other Loan
Documents.


 


“Hazardous Material” means any substance,
material or waste that is regulated by, or forms the basis of liability now or
hereafter under, any Environmental Laws, including any material or substance
that is (a) defined as a “solid waste,” “hazardous waste,” “hazardous
material,” “hazardous substance,” “dangerous goods,” “extremely hazardous
waste,”  “restricted hazardous waste,” “pollutant,”
“contaminant,” “hazardous constituent,” “special waste,” “toxic substance” or
other similar term or phrase under any Environmental Laws, or (b) petroleum
or 


 


A-15

















 


any fraction or by-product thereof, asbestos,
polychlorinated biphenyls (PCB’s), or any radioactive substance.


 


“Holdings” has the
meaning ascribed thereto in the recitals to the Agreement.


 


“Holdings Common
Stock” means the common stock of Holdings, par value $0.001 per share.


 


“Holdings Guaranty”
means the Holdings Guaranty dated as of the Original Closing Date executed by
Holdings in favor of Agent (as successor to GE Capital (in its capacity as agent under the
Existing Credit Agreement)), on behalf
of itself and Lenders.


 


“Holdings Pledge Agreement” means the Pledge
Agreement dated as of the Original Closing Date executed by Holdings in favor
of Agent (as successor to GE Capital (in its capacity as agent under the
Existing Credit Agreement)), on behalf of itself and Lenders, pledging all
Stock of Borrower.


 


“Indebtedness” means, with respect to any
Person, without duplication (a) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property payment for which
is deferred six (6) months or more, but excluding obligations to trade
creditors incurred in the ordinary course of business that are unsecured and
not overdue by more than six (6) months unless being contested in good
faith, (b) all reimbursement and other obligations with respect to letters
of credit, bankers’ acceptances and surety bonds, whether or not matured, (c) all
obligations evidenced by notes, bonds, debentures or similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e) all
Capital Lease Obligations and the present value (discounted at the Index Rate as
in effect on the Restatement Date) of future rental payments under all
synthetic leases, (f) all obligations of such Person under commodity
purchase or option agreements or other commodity price hedging arrangements, in
each case whether contingent or matured, (g) all net payment obligations
of such Person under any foreign exchange contract, currency swap agreement,
interest rate swap (including Interest Rate Agreements), cap or collar
agreement or other similar agreement or arrangement designed to alter the risks
of that Person arising from fluctuations in currency values or interest rates,
in each case whether contingent or matured, (h) all obligations, whether
or not contingent, to purchase, redeem, retire, defease or otherwise acquire
for value any of its own Stock or Stock Equivalents (or any Stock or Stock
Equivalent of a direct or indirect parent entity thereof) on a date certain
prior to the date that is 180 days after the final scheduled installment
payment date for a Term Loan, valued at, in the case of redeemable preferred
Stock, the greater of the voluntary liquidation preference and the involuntary
liquidation preference of such Stock plus accrued and unpaid dividends; (i) all
Indebtedness referred to above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien upon or in property or other assets (including accounts and contract
rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness, (j) “earnouts” and 


 


A-16

















 


similar payment obligations valued at such amount as
is required by GAAP, and (k) the Obligations.


 


“Indemnitees” has the meaning ascribed to it in
Section 9.1.


 


“Index Rate” means, for any date of
determination, a floating rate equal to the higher of (i) the per annum
rate which SunTrust Bank announces from time to time as its prime lending rate,
as in effect from time to time (the “SunTrust Prime Lending Rate”), (ii) the
Federal Funds Rate, as in effect from time to time, plus one-half of one
percent and (iii) the one month LIBOR Rate (taking into consideration the last sentence
set forth in the definition of “LIBOR Rate” and calculated as of such date of
determination in accordance with the definition of “LIBOR Rate”) determined on
a daily basis, plus one percent. 
The SunTrust Prime Lending Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any customer.  SunTrust Bank may make commercial loans or
other loans at rates of interest at, above or below the SunTrust Prime Lending
Rate.  Each change in any interest rate
provided for in the Agreement based upon the Index Rate shall take effect at
the time of such change in the Index Rate.


 


“Index Rate Loan” means a Loan or portion
thereof bearing interest by reference to the Index Rate.


 


“Inside Director” means a member of the Board
of Directors of Holdings that is also an employee of or a member of management
of any Credit Party.


 


“Instruments” means all “instruments,” as such
term is defined in the Code, now owned or hereafter acquired by Holdings or any
Domestic Subsidiary, wherever located, and, in any event, including all
certificated securities, all certificates of deposit, and all promissory notes
and other evidences of indebtedness, other than instruments that constitute, or
are a part of a group of writings that constitute, Chattel Paper.


 


“Intellectual Property” means any and all
Licenses, Patents, Copyrights, Trademarks (including the goodwill associated
with such Trademarks) and all domain names, databases, computer programs and
software of Holdings or any of its Subsidiaries.


 


“Intercompany Debt” has the meaning ascribed to
it in Section 9.22.


 


“Interest Payment Date” means (a) as to
any Index Rate Loan, the first Business Day of each calendar quarter to occur
while such Loan is outstanding, and (b) as to any LIBOR Loan, the last day
of the applicable LIBOR Period; provided,
that in the case of any LIBOR Period greater than three months in duration,
interest shall be payable at three month intervals and on the last day of such
LIBOR Period; and  provided
further  that, in addition to the foregoing, each of (x) the
date upon which all of the Commitments have been terminated and the Loans have
been paid in full, (y) the Commitment Termination Date shall be deemed to
be an “Interest Payment Date” with respect to any interest that has then
accrued with respect to Revolving Loans or Swing Line Loans under the Agreement
and (z) the Term Loan Maturity Date shall be 


 


A-17

















 


deemed to be an “Interest Payment Date” with
respect to any interest that has then accrued with respect to the Term Loans
under the Agreement.


 


“Interest Rate Agreement” means any interest
rate swap agreement, interest rate cap agreement, interest rate collar
agreement or similar agreement or arrangement designed to protect Borrower
against fluctuations in interest rates.


 


“Inventory” means any “inventory,” as such term
is defined in the Code, now owned or hereafter acquired by Holdings or any
Domestic Subsidiary, wherever located, and, in any event, including inventory,
merchandise, goods and other personal property that are held by or on behalf of
Holdings or any Domestic Subsidiary for sale or lease or are furnished or are
to be furnished under a contract of service, or that constitute raw materials,
work in process, finished goods, returned goods, supplies or materials of any
kind, nature or description used or consumed or to be used or consumed in such
Person’s business or in the processing, production, packaging, promotion,
delivery or shipping of the same, including all supplies and embedded software.


 


“Investment” means (i) any direct or indirect
purchase or other acquisition by Borrower or any of its Subsidiaries of any
Stock, or other ownership interest in, any other Person, and (ii) any
direct or indirect loan, advance or capital contribution by Borrower or any of
its Subsidiaries to any other Person, including all indebtedness and accounts
receivable due from that other Person that are not current assets and did not
arise from sales to that other Person in the ordinary course of business.  The amount of any Investment shall be the
original cost of such Investment plus the cost of all additions thereto,
without any adjustments for increases or decreases in value, or write ups,
write downs or write offs with respect to such Investment.


 


“Investment Property” means all “investment
property,” as such term is defined in the Code, now owned or hereafter acquired
by Holdings or any Domestic Subsidiary, wherever located, including: (i) all
securities, whether certificated or uncertificated, including stocks, bonds,
interests in limited liability companies, partnership interests, treasuries,
certificates of deposit, and mutual fund shares; (ii) all securities
entitlements of Holdings or any Domestic Subsidiary, including the rights of
such Person to any securities account and the financial assets held by a
securities intermediary in such securities account and any free credit balance
or other money owing by any securities intermediary with respect to that
account; (iii) all securities accounts of Holdings or any Domestic
Subsidiary; (iv) all commodity contracts of Holdings or any Domestic
Subsidiary; and (v) all commodity accounts held by Holdings or any
Domestic Subsidiary.


 


“IRC” means the Internal Revenue Code of 1986,
as amended, and all regulations promulgated thereunder.


 


“IRS” means the United States Internal Revenue
Service.


 


“Issue” means, with respect to any Letter of
Credit, to issue, extend the expiration date of, renew (including by failure to
object to any automatic renewal on the last day such objection is permitted),
increase the face amount of, or reduce or eliminate any scheduled 


 


A-18

















 


decrease in the face amount of, such Letter of Credit,
or to cause any Person to do any of the foregoing.  The terms “Issued” and “Issuance” have correlative
meanings.


 


“L/C Issuer” means SunTrust or other legally
authorized Person selected by or acceptable to Agent in its sole discretion, in
such Person’s capacity as an issuer of Letters of Credit hereunder and, in any
event, shall be deemed to include any Person who issued an Existing Letter of
Credit so long as such Letter of Credit remains outstanding.


 


“L/C Sublimit” has the meaning ascribed to it
in Section 1.1(d).


 


“Lacey Property” means that certain Real Estate
located at 4501 Intelco Loop SE, Lacey, Washington 98503.


 


“Lender Group Assignment” means an assignment
by a Lender to (i) a Person that is a Lender prior to the date of such
assignment, (ii) an Affiliate of the assigning Lender, (iii) an
investment fund that invests primarily in commercial loans (an “investment
fund”) managed by the same investment advisor as the assigning Lender or (iv) an
investment fund managed by an investment advisor that acts in such capacity for
another Person that is a Lender prior to the date of such assignment.


 


“Lender Insolvency Event” means that (i) a
Lender is insolvent, or is generally unable to pay its debts as they become
due, or admits in writing its inability to pay its debts as they become due, or
makes a general assignment for the benefit of its creditors, or (ii) such
Lender is the subject of a bankruptcy, insolvency, reorganization, liquidation
or similar proceeding, or a receiver, trustee, conservator, intervenor or
sequestrator or the like has been appointed for such Lender, or such Lender has
taken any action in furtherance of or indicating its consent to or acquiescence
in any such proceeding or appointment.


 


“Lenders” means SunTrust, GE Capital, the other
Lenders named on the signature pages of the Agreement, and, if any such
Lender shall decide to assign all or any portion of the Obligations, such term
shall include any assignee of such Lender.


 


“Letter of Credit Fee” has the meaning ascribed
to it in Section 1.3(c).


 


“Letter of Credit Obligations” means all
outstanding obligations incurred by Agent and Lenders at the request of
Borrower, whether direct or indirect, contingent or otherwise, due or not due,
in connection with the issuance of Letters of Credit by L/C Issuers or the
purchase of a participation as set forth in Section 1.1(d) with
respect to any Letter of Credit.  The
amount of such Letter of Credit Obligations shall equal the maximum amount that
may be payable by Agent and Lenders thereupon or pursuant thereto.


 


“Letters of Credit” means standby letters of
credit issued for the account of Borrower (or, as long as Borrower remains
responsible for the payment in full of all amounts drawn thereunder and related
fees, costs and expenses, for the account of any Subsidiary of Borrower) by L/C
Issuers, and bankers’ acceptances issued by Borrower, for which Agent and
Lenders have incurred Letter of Credit Obligations.


 


A-19
















 


“Leverage Ratio” has the meaning ascribed to it
in Section 4.2 of Schedule 1 to Annex D.


 


“LIBOR Breakage Fee” means an amount equal to
the amount of any losses, expenses, liabilities (including, without limitation,
any loss (including interest paid) and lost opportunity cost (consisting of the
present value of the difference between the LIBOR Rate in effect for the
Interest Period and any lower LIBOR Rate in effect at the time of prepayment
for the remainder of the Interest Period) in connection with the re-employment
of such funds) that any Lender may sustain as a result of (i) any failure
by Borrower to make any borrowing of, or to convert or continue any LIBOR Loan
following Borrower’s delivery to Agent of any LIBOR Loan request in respect
thereof or (ii) any payment of a LIBOR Loan on any day that is not the
last day of the LIBOR Period applicable thereto (regardless of the source of
such prepayment and whether voluntary, by acceleration or otherwise).  For purposes of calculating amounts payable
to a Lender under Section 1.3(d), each Lender shall be deemed to
have actually funded its relevant LIBOR Loan through the purchase of a deposit
bearing interest at LIBOR in an amount equal to the amount of that LIBOR Loan
and having a maturity and repricing characteristics comparable to the relevant
LIBOR Period; provided, however, that each Lender may fund each
of its LIBOR Loans in any manner it sees fit, and the foregoing assumption
shall be utilized only for the calculation of amounts payable under Section 1.3(d).


 


“LIBOR Business Day” means a Business Day on
which banks in the City of London are generally open for interbank or foreign
exchange transactions.


 


“LIBOR Loans” means a Loan or any portion
thereof bearing interest by reference to the LIBOR Rate.


 


“LIBOR Period” means, with respect to any LIBOR
Loan, each period commencing on a LIBOR Business Day selected by Borrower
pursuant to this Agreement and ending one,
two, three, six, or if acceptable to all Lenders for the relevant Loan, nine or
twelve, months thereafter, as selected by Borrower’s irrevocable notice
to Agent as set forth in Section 1.2(e); provided, that the
foregoing provision relating to LIBOR Periods is subject to the following:


 


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


 


(b)           (i) any LIBOR Period for a
Revolving Loan that would otherwise extend beyond the date set forth in clause (a) of
the definition of “Commitment Termination Date” shall end two (2) LIBOR
Business Days prior to such date and (ii) any LIBOR Period for a Term Loan
that would otherwise extend beyond the Term Loan Maturity Date shall end two (2) LIBOR
Business Days prior to such date;


 


A-20

















 


(c)           any LIBOR Period that begins on the
last LIBOR Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such LIBOR
Period) shall end on the last LIBOR Business Day of a calendar month;


 


(d)           Borrower shall select LIBOR Periods
so as not to require a payment or prepayment of any LIBOR Loan during a LIBOR
Period for such Loan;


 


(e)           Borrower shall select LIBOR Periods
so that there shall be no more than seven (7) separate LIBOR Loans in
existence at any one time; and


 


(f)            no LIBOR Period may be selected for
any portion of a Term Loan if a Scheduled Installment for such Term Loan is
payable during such LIBOR Period and the portion of such Term Loan which
constitutes an Index Rate Loan does not equal or exceed the amount of such
Scheduled Installment.


 


“LIBOR Rate” means for each LIBOR Period, a
rate of interest determined by Agent equal to the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen
LIBOR01 Page (or any successor page) as the London interbank offered rate
for deposits in Dollars at approximately 11:00 a.m. (London, England time)
two LIBOR Business Days prior to the first day of such LIBOR Period for a term
comparable to such LIBOR Period.  If for
any reason such rate is not available, LIBOR Rate shall be, for any LIBOR
Period, the rate per annum reasonably determined by Agent as the rate of
interest at which Dollar deposits in the approximate amount of the LIBOR Loan
to be borrowed, converted or continued as a LIBOR Loan would be offered by
Agent to major banks in the London interbank Eurodollar market at their request
at or about 11:00 a.m. (London, England time) two LIBOR Business Days
prior to the first day of such LIBOR Period for a term comparable to such LIBOR
Period.  Notwithstanding the foregoing,
the LIBOR Rate (including for purposes of calculating the Index Rate in
accordance with the definition thereof) shall in no event be less than 3.50% at
any time.


 


“License” means any Copyright License, Patent
License, Trademark License or other license of rights or interests now held or
hereafter acquired by Holdings or any Domestic Subsidiary.


 


“Lien” means any mortgage or deed of trust,
pledge, hypothecation, assignment, deposit arrangement, lien, charge, claim,
security interest, easement or encumbrance, or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
(including any lease or title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of, or agreement to give, any financing statement perfecting a security
interest under the Code or comparable law of any jurisdiction).  For the avoidance of doubt, “Lien” shall not
be deemed to include any license (including any License).


 


“Litigation” has the meaning ascribed to it in Section 4.4(h).


 


“Loan Account” has the meaning ascribed to it
in Section 1.7.


 


A-21

















 


“Loan Documents” means the Agreement, the
Notes, the Collateral Documents, the SunTrust Fee Letter, the subordination
provisions applicable to any Subordinated Debt and intercreditor provisions
applicable to any Indebtedness that is pari
passu in right of payment to the Obligations, and all other
agreements, instruments, documents and certificates identified on Annex B
executed and delivered by a Credit Party to, or in favor of, Agent (either
directly or as a successor to GE Capital (in its capacity as agent under the
Existing Credit Agreement)) or any Lenders and including all other pledges,
powers of attorney, consents, assignments, contracts, notices, and all other
documents and instruments whether heretofore, now or hereafter executed by or
on behalf of any Credit Party, and delivered to Agent (either directly or as a
successor to GE Capital (in its capacity as agent under the Existing Credit
Agreement)) or any Lender in connection with the Agreement or the transactions
contemplated thereby.  Any reference in
the Agreement or any other Loan Document to a Loan Document shall include all
appendices, exhibits or schedules thereto, and all amendments, restatements,
supplements or other modifications thereto, and shall refer to the Agreement or
such Loan Document as the same may be in effect at any and all times such
reference becomes operative.


 


“Loans” means the Revolving Loan, the Swing
Line Loan and the Term Loans.


 


“Master Amendment and Reaffirmation” has the
meaning ascribed to it in clause D of Annex D.


 


“Material Adverse Effect”
means a material adverse effect on (a) the financial condition, collateral,
operations, industry or business of Borrower, or Borrower and all of its
Subsidiaries taken as a whole, (b) Borrower’s
ability to pay any of the Loans or any of the other Obligations in accordance
with the terms of the Agreement or any other Credit Party’s ability to pay any
of its Obligations, (c) the Collateral or Agent’s Liens, on behalf of
itself and Lenders, on the Collateral or the priority of such Liens, or (d) Agent’s
or any Lender’s rights and remedies under the Agreement and the other Loan
Documents.


 


“Maximum Amount” means, as of any date of
determination, an amount equal to the Revolving Loan Commitment of all Lenders
as of that date.


 


“Maximum Lawful Rate” has the meaning ascribed
to it in Section 1.2(g).


 


“Moody’s” means Moody’s Investor’s Services, Inc.


 


“Mortgages” means
each of the mortgages, deeds of trust, leasehold mortgages, leasehold deeds of
trust, collateral assignments of leases or other real estate security documents
delivered by Holdings, Borrower or any Domestic Subsidiary to Agent (either directly or as a successor to GE
Capital (in its capacity as agent under the Existing Credit Agreement)) on behalf of itself and Lenders with respect
to the Real Estate.


 


“Multiemployer Plan” means a “multiemployer
plan” as defined in Section 4001(a)(3) of ERISA, and to which
Holdings, any Domestic Subsidiary or any ERISA Affiliate is making, is
obligated to make or has made or been obligated to make during the last six
years, contributions on behalf of participants who are or were employed by any
of them.


 


A-22

















 


“Net Proceeds” means cash proceeds received by
Borrower or any other Credit Party from any Asset Disposition (including
insurance proceeds, awards of condemnation, and payments under notes or other
debt securities received in connection with any Asset Disposition) or
sale-leaseback transaction, net of (i) the costs of such Asset Disposition
or sale-leaseback transaction (including taxes attributable to such sale, lease
or transfer) and any commissions and other customary transaction fees, costs
and expenses, other than any costs payable to any Affiliate of a Credit Party
except to the extent such costs are permitted to be paid pursuant to Section 3.8,
(ii) amounts applied to repayment of Indebtedness (other than the
Obligations) secured by a Lien permitted under this Agreement on the asset or
property disposed and (iii) any portion of any such proceeds which Borrower
determines in good faith should be reserved for post-closing adjustments and
indemnities (to the extent Borrower delivers to Agent a certificate signed by
the Chief Financial Officer of Borrower as to such determination), it being
understood and agreed that on the day that all such post-closing adjustments
have been determined (which shall not be later than six months following the
date of the respective Asset Disposition or sale-leaseback transaction), the
amount (if any) by which the reserved amount in respect of such sale or
disposition exceeds the actual post-closing adjustments payable by Borrower or
any other Credit Party shall constitute Net Proceeds on such date received by
Borrower or any of its Subsidiaries.  Any
proceeds received in a currency other than Dollars shall, for purposes of the
calculation of the amount of Net Proceeds, be in an amount equal to the Dollar
equivalent thereof as of the date of receipt thereof by such Person.


 


“Notes” means,
collectively, the Revolving Notes, the Swing Line Note and the Term Notes.


 


“Notice of Conversion/Continuation” has the
meaning ascribed to it in Section 1.2(e).


 


“Notice of Revolving Credit Advance” has the
meaning ascribed to it in Section 1.1(b).


 


“Obligations” means all loans, advances, debts,
liabilities and obligations, for the performance of covenants, tasks or duties
or for payment of monetary amounts (whether or not such performance is then
required or contingent, or such amounts are liquidated or determinable),
including obligations pursuant to Interest Rate Agreements, Other Hedging
Agreements and Letter of Credit Obligations, owing by any Credit Party to
either Co-Administrative Agent, any Lender or any Secured Swap Provider, and all covenants and duties regarding
such amounts, of any kind or nature, present or future, whether or not
evidenced by any note, agreement or other instrument, arising under the
Agreement or any of the other Loan Documents. 
This term includes all principal, interest (including all interest that
accrues after the commencement of any case or proceeding by or against any
Credit Party in bankruptcy, whether or not allowed in such case or proceeding),
Fees, Charges, reasonable expenses, reasonable attorneys’ fees and any other
sum chargeable to any Credit Party under the Agreement or any of the other Loan
Documents.


 


“OFAC” has the meaning ascribed to it in Section 3.19.


 


A-23

















 


“Original Closing Date”
means March 28, 2007.


 


“Other Hedging Agreements” means any foreign
exchange contract, currency swap agreement, futures contract, commodity
agreements, option contract, synthetic cap or other similar agreement entered
into by Borrower.


 


“Other Lender” has the meaning ascribed to it
in Section 8.5(d).


 


“Patent License” means rights under any written
agreement now owned or hereafter acquired by Holdings or any Domestic
Subsidiary granting any right with respect to any invention on which a Patent
is in existence.


 


“Patent Security Agreements” means the Patent
Security Agreement dated as of the Original Closing Date and each other patent
security agreement made in favor of Agent (either directly or as a successor to
GE Capital (in its capacity as agent under the Existing Credit Agreement)), on
behalf of itself and Lenders, by Holdings or any Domestic Subsidiary, as
applicable.


 


“Patents” means all of the following in which
Holdings or any Domestic Subsidiary now holds or hereafter acquires any
interest: (a) all letters patent of the United States or any other
country, all registrations and recordings thereof, and all applications for
letters patent of the United States or of any other country, including
registrations, recordings, issuances and applications in the United States
Patent and Trademark Office or in any similar office or agency of the United
States, any State or any other country, and (b) all reissues,
continuations, continuations-in-part or extensions thereof.


 


“Patriot Act” means the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, P.L. 107-56, as amended.


 


“PBGC” means the United States Pension Benefit
Guaranty Corporation or any successor thereto.


 


“Pension Plan” means an employee pension
benefit plan described in Section 3(2) of ERISA.


 


“Permitted Acquisition” has the meaning
ascribed to it in Section 3.6.


 


“Permitted Covenant” means (i) any
periodic reporting covenant, (ii) any covenant restricting payments by
Holdings with respect to any securities of Holdings which are junior to the
Permitted Holdings Preferred Stock, (iii) any covenant the default of
which can only result in an increase in the amount of any redemption price,
repayment amount, dividend rate or interest rate, (iv) any covenant
providing board observance rights with respect to Holdings’ board of directors
and (v) any other covenant that does not adversely affect the interests of
the Lenders (as reasonably determined by Agent).


 


A-24

















 


“Permitted Encumbrances” means the following
encumbrances: (a) Liens for taxes or assessments or other governmental
Charges not yet due and payable or which are being contested in good faith by
appropriate proceedings diligently pursued, provided that (i) any
proceedings commenced for the enforcement of such Liens shall have been stayed
or suspended within 30 days of the commencement thereof and (ii) provision
for the payment of all such taxes known to such Person has been made on the
books of such Person to the extent required by GAAP; (b) pledges or
deposits of money securing statutory obligations under workmen’s compensation,
unemployment insurance, social security or public liability laws or similar
legislation (excluding Liens in favor of the PBGC under ERISA); provided
that (i) any proceedings commenced for the enforcement of such Liens shall
have been stayed or suspended within 30 days of the commencement thereof and (ii) provision
for the payment of such Liens has been made on the books of such Person to the
extent required by GAAP; (c) pledges or deposits of money securing bids,
tenders, contracts (other than contracts for the payment of money) or leases to
which any Credit Party or any of its Subsidiaries is a party as lessee in each
case, made in the ordinary course of business; (d) inchoate and unperfected
workers’, mechanics’  or similar liens
arising in the ordinary course of business, so long as such Liens attach only
to Equipment, Fixtures and/or Real Estate; provided that (i) any
proceedings commenced for the enforcement of such Liens shall have been stayed
or suspended within 30 days of the commencement thereof and (ii) provision
for the payment of such Liens has been made on the books of such Person to the
extent required by GAAP; (e) carriers’, warehousemen’s, suppliers’ or
other similar possessory liens arising in the ordinary course of business, so
long as such Liens attach only to Inventory provided that (i) any
proceedings commenced for the enforcement of such Liens shall have been stayed
or suspended within 30 days of the commencement thereof and (ii) provision
for the payment of such Liens has been made on the books of such Person to the
extent required by GAAP; (f) deposits securing, or in lieu of, surety,
appeal or customs bonds in proceedings to which any Credit Party or any of its
Subsidiaries is a party the aggregate amount of which does not exceed
$1,000,000  at any time
outstanding; (g) any attachment or judgment lien not constituting an Event
of Default under Section 6.1; (h) Permitted Real Property
Encumbrances; (i) presently existing or hereafter created Liens in favor
of Agent, on behalf of Lenders; (j) Liens existing on the Restatement Date
and renewal, refinancing and extensions thereof which Liens are set forth on Schedule
3.2; (k) [reserved]; (l) leases, subleases, licenses or sublicenses
granted to others not interfering in any material respect with the business of
any Credit Party or any of their Subsidiaries and any interest or title of a
lessor under any lease (whether a Capital Lease or an operating lease)
permitted by this Agreement or the Security Agreement; (m) customary
rights of set off, revocation, refund or chargeback under deposit agreements or
under the UCC of banks or other financial institutions where Borrower maintains
deposits in the ordinary course of business permitted by this Agreement; (n) Liens
upon real and/or tangible personal property, acquired by purchase, construction
or otherwise by a Person, each of which Liens was created solely for the
purpose of securing Indebtedness (including Capital Lease Obligations)
representing, or incurred to finance, the cost (including the cost of
construction) of the property (hereinafter referred to as “Purchase Money
Liens”); provided that (i) no such Purchase Money Lien shall
extend to or cover any property of such Person other than the respective
property so acquired and improvements thereon; and (ii) the aggregate
principal amount of the Indebtedness secured by all Purchase Money Liens, taken
together with the aggregate principal amount of Indebtedness consisting of
Capital Lease Obligations, shall not 


 


A-25

















 


exceed the aggregate amount of Purchase Money
Indebtedness permitted from time to time under Section 3.1; (o) Liens
on accounts receivables for which attempts at collection have been undertaken
by a third party authorized by the Person owning such accounts receivable; (p) Liens
arising from precautionary UCC financing statements regarding operating leases;
(q) Liens arising from the granting of a license to any Person in the
ordinary course of business of any Credit Party and their Subsidiaries; (r) Liens
arising by operation of law on insurance policies and proceeds thereof to
secure premiums thereunder; and (s) Liens deemed to exist in connection
with repurchase agreements and other similar investments to the extent such
Investments are permitted under Section 3.3.


 


“Permitted Holdings Preferred Stock” means any
preferred stock of Holdings (or any equity security of Holdings that is
convertible or exchangeable into any preferred stock of Holdings), so long as
the terms of any such preferred stock or equity security of Holdings (i) do
not provide any collateral security, (ii) do not provide any guaranty or
other support by Borrower or any Subsidiaries of Borrower, (iii) do not
contain any put, redemption, repayment, sinking fund or other similar provision
occurring before the seventh anniversary of the Original Closing Date, (iv) do
not require the cash payment of dividends or interest, (v) do not contain
any covenants other than any Permitted Covenant, (vi) do not grant the
holders thereof any voting rights except for (x) voting rights required to
be granted to such holders under applicable law, (y) limited customary
voting rights on fundamental matters such as mergers, consolidations, sales of
substantial assets, or liquidations involving Holdings and (z) other
voting rights to the extent not greater than or superior to those allocated to
Holdings Common Stock on a per share basis, and (vii) to the extent any
such preferred stock or equity security does not otherwise comply with clauses
(i) through (vi) hereof, such preferred stock or equity security
is otherwise reasonably satisfactory to Agent.


 


“Permitted Real Property Encumbrances” means (i) those
liens, encumbrances and other matters affecting title to any mortgaged property
listed in the mortgage policies in respect thereof and found, on the date of
delivery of such mortgage policies to Agent (either directly or as a successor
to GE Capital (in its capacity as agent under the Existing Credit Agreement))
in accordance with the terms hereof, reasonably acceptable by Agent (or GE
Capital (in its capacity as agent under the Existing Credit Agreement) if
delivered prior to the Restatement Date), (ii) as to any particular parcel
of real property at any time, such easements, encroachments, covenants, rights
of way, minor defects, irregularities or encumbrances on title which do not, in
the reasonable opinion of Agent, materially impair such parcel of real property
for the purpose for which it is held by the user thereof, or the Lien held by
Agent, (iii) municipal and zoning ordinances and environmental
regulations, which are not violated in any material respect by the existing
improvements and the present use made by the mortgagor thereof of the Real
Estate, (iv) general real estate taxes and assessments not yet delinquent,
and (v) such other items as to which Agent may consent.


 


“Person” means any individual, sole
proprietorship, partnership, joint venture, trust, unincorporated organization,
association, corporation, limited liability company, institution, public
benefit corporation, other entity or government (whether federal, state,
county, 


 


A-26

















 


city, municipal, local, foreign, or otherwise,
including any instrumentality, division, agency, body or department thereof).


 


“Plan” means, at any time, an “employee benefit
plan,” as defined in Section 3(3) of ERISA, that Holdings, any
Domestic Subsidiary or any of their ERISA Affiliates maintains, contributes to
or has an obligation to contribute to on behalf of participants who are or were
employed by Holdings or any Domestic Subsidiary.


 


“Pledge Agreements” means the Borrower Pledge
Agreement, the Holdings Pledge
Agreement, the Subsidiary Pledge Agreement, and any other pledge agreement
entered into on or after the Original Closing Date by any Credit Party.


 


“Prepayment Premium” has the meaning ascribed
to it in Section 1.5(a).


 


“Proceeding” means a proceeding under the
United States Bankruptcy Code, Insolvency Laws or any similar law in any
jurisdiction, in which any Credit Party or Subsidiary thereof is a debtor.


 


“Pro Forma” means the unaudited consolidated
balance sheets of Holdings and its Subsidiaries prepared
in accordance with GAAP as of December 31, 2008 after giving effect to the
Related Transactions and the Acquisition. 
The Pro Forma is annexed hereto as Annex C.


 


“Pro Forma Basis” means, when calculating
financial covenants for purposes of determining whether any Investment, Restricted
Payment or Permitted Acquisition may be made in compliance with this Agreement,
on a basis that gives effect to such Investment, Restricted Payment or
Permitted Acquisition (and any Indebtedness incurred or assumed in connection
with any of the foregoing) as if such Investment, Restricted Payment or
Investment and incurrence or assumption of related Indebtedness had occurred on
the first day of the most recently completed four Fiscal Quarter period for
which a Compliance, Pricing and Excess Cash Flow Certificate has been delivered
pursuant to Section 4.4 (or was required to be so delivered), as
demonstrated by delivery to Agent or Co-Administrative Agents, as applicable,
of a Compliance, Pricing and Excess Cash Flow Certificate for such period (prepared
in good faith and in a manner and using such methodology which is consistent
with the most recent financial statements delivered pursuant to Section 4.4)
completed on such pro forma basis.


 


“Pro Rata Share” means with respect to all
matters relating to any Lender (a) with respect to the Revolving Loan, the
percentage obtained by dividing (i) the Revolving Loan Commitment of that
Lender by (ii) the aggregate Revolving Loan Commitments of all Lenders, (b) with
respect to the Existing Term
Loan, the percentage obtained by dividing (i) the Existing Term Loan
Commitment of that Lender by (ii) the aggregate Existing Term Loan
Commitments of all Lenders, (c) with respect to the Acquisition Term Loan, the percentage obtained by dividing (i) the
Acquisition Term Loan Commitment of that Lender by (ii) the aggregate
Acquisition Term Loan Commitments of all Lenders, and (d) with respect to
all Loans, the percentage obtained by dividing (i) the aggregate
Commitments of that Lender by (ii) the aggregate Commitments of all
Lenders, and (d) with respect to all Loans on and after the Commitment
Termination Date, the percentage obtained by dividing (i) the aggregate 


 


A-27

















 


outstanding principal balance of the Loans held by that
Lender, by (ii) the outstanding principal balance of the Loans held by all
Lenders, as any such percentages may be adjusted by assignments pursuant to Section 8.1.


 


“Purchase Agreement” means that certain Asset
Purchase Agreement dated as of March 2, 2009, by and between the Target
and Borrower (including all exhibits, annexes and schedules thereto).


 


“Purchase Documents” mean the Purchase
Agreement and all other documents and agreements required to be entered into
and/or delivered pursuant thereto in connection with the Acquisition
(including, in each case, all exhibits, annexes and schedules thereto).


 


“Purchase Money Basket” has the meaning
ascribed to it in Section 3.1(e).


 


“Purchase Money Indebtedness” has the meaning
ascribed to it in Section 3.1(e).


 


“Qualified Plan” means a Plan that is intended
to be tax-qualified under Section 401(a) of the IRC.


 


“Real Estate” has the meaning ascribed to it in
Section 5.12.


 


“Refunded Swing Line Loan” has the meaning
ascribed to it in Section 1.1(c)(iii).


 


“Register” has the meaning ascribed to it in Section 1.7(b).


 


“Related Transactions” means the borrowing
under the Revolving Loan on the Restatement Date, if any, the incurrence of the
Acquisition Term Loan on the Restatement Date, payment of all Fees, costs and
expenses associated with all of the foregoing and the execution and delivery of
all of the Related Transactions Documents.


 


“Related Transactions Documents” means the Loan
Documents and all other agreements or instruments executed in connection with
the Related Transactions.


 


“Release” means any release, threatened
release, spill, emission, leaking, pumping, pouring, emitting, emptying,
escape, injection, deposit, disposal, discharge, dispersal, dumping, leaching
or migration of Hazardous Material in the indoor or outdoor environment,
including the movement of Hazardous Material through or in the air, soil,
surface water, ground water or property.


 


“Replacement Lender” has the meaning ascribed
to it in Section 9.20(a).


 


“Required Availability” means as of any date of
determination, the Borrowing Availability plus all cash and Cash
Equivalents for which deposit account control agreements have been received by
Agent.


 


“Requisite Lenders” means Lenders having (a) more
than 50% of the Commitments of
all Lenders, or (b) if the Commitments have been terminated, more than 50% of 


 


A-28

















 


the aggregate outstanding amount of the Loans; provided
that so long as there is more than one Lender and any one Lender (and its affiliates)
holds 50% or more of the Commitments or the aggregate outstanding amount of the
Loans, “Requisite Lenders” shall include at least two Lenders.


 


“Requisite Revolving Lenders” means Lenders
having (a) more than 50% of
the Revolving Loan Commitments of all Lenders, or (b) if the Revolving
Loan Commitments have been terminated, more than 50% of the aggregate outstanding amount of the Revolving Loan
(with the Swing Line Loan being attributed to the Lender making such Loan).


 


“Responsible Officer” of a Person means any one
of its chairman, chief executive officer, chief operating officer, chief
financial officer, president, any executive vice president, general counsel or
any person performing similar functions.


 


“Restatement Date” means May 1, 2009.


 


“Restricted Payment” means, with respect to
Holdings or any of its Subsidiaries (a) the declaration or payment of any
dividend or the incurrence of any liability to make any other payment or
distribution of cash or other property or assets in respect of Stock; (b) any
payment on account of the purchase, redemption, defeasance, sinking fund or
other retirement of such Person’s Stock or any other payment or distribution
made in respect thereof, either directly or indirectly; (c) any payment or
prepayment of principal of, premium, if any, or interest, fees or other charges
on or with respect to, and any redemption, purchase, retirement, defeasance,
sinking fund or similar payment and any claim for rescission with respect to,
any Subordinated Debt; (d) any payment made to redeem, purchase,
repurchase or retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire Stock of such Person now or hereafter
outstanding; (e) any payment of a claim for the rescission of the purchase
or sale of, or for material damages arising from the purchase or sale of, any
shares of such Person’s Stock or of a claim for reimbursement, indemnification
or contribution arising out of or related to any such claim for damages or
rescission; (f) any payment, loan, contribution, or other transfer of
funds or other property to any Stockholder of such Person other than payment of
compensation in the ordinary course of business to Stockholders who are
employees of such Person; and (g) any payment of management fees (or other
fees of a similar nature) or out-of-pocket expenses in connection therewith and
indemnities payable in connection with any management services, consulting or
like agreement by such Person to any Stockholder of such Person or its
Affiliates.


 


“Revolving Credit Advance” has the meaning
ascribed to it in Section 1.1(b).


 


“Revolving Lenders” means those Lenders having
a Revolving Loan Commitment.


 


“Revolving Loan(s)” means, at any time, the sum
of (i) the aggregate amount of Revolving Credit Advances outstanding to
Borrower (including Swing Line Advances) plus (ii) the aggregate
Letter of Credit Obligations incurred on behalf of Borrower.  Unless the context otherwise requires,
references to the outstanding principal balance of the Revolving Loan shall
include the outstanding balance of Letter of Credit Obligations.


 


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“Revolving Loan Commitment” means (a) as
to any Lender, the commitment of such Lender to make its Pro Rata Share of
Revolving Credit Advances or incur its Pro Rata Share of Letter of Credit
Obligations (including, in the case of the Swing Line Lender, its commitment to
make Swing Line Advances as a portion of its Revolving Loan Commitment) as set
forth in the Register and (b) as to all Lenders, the aggregate commitment
of all Lenders to make the Revolving Credit Advances (including, in the case of
the Swing Line Lender, Swing Line Advances) or incur Letter of Credit
Obligations, which aggregate commitment shall be Fifteen Million Dollars
($15,000,000) on the Restatement Date, as such amount may be adjusted, if at
all, from time to time in accordance with the Agreement.


 


“Revolving Notes” has the meaning ascribed to
it in Section 1.1(b).


 


“S&P” means Standard & Poor’s
Ratings Services, a division of the McGraw-Hill Companies, Inc.


 


“Sanctions Program” has the meaning ascribed to
it in Section 3.19.


 


“Scheduled Installments” means, together, the
Acquisition Term Loan Scheduled Installments and the Existing Term Loan
Scheduled Installments.


 


“SDN” has the meaning ascribed to it in Section 3.19.


 


“SEC” means the Securities and Exchange
Commission or any successor thereto.


 


“Security Agreement”
means the Security Agreement dated as of the Original Closing Date entered into
by and among Agent (as successor to GE Capital (in its capacity as agent under
the Existing Credit Agreement)), on behalf of itself and Lenders, and Holdings
or any Domestic Subsidiary that is a signatory thereto from time to time.


 


“Secured Party” means Co-Administrative Agents,
each Lender, each L/C Issuer and each other holder of any Obligation of a
Credit Party including each Secured Swap Provider.


 


“Secured Rate Contract” means any Interest Rate
Agreement or Other Hedging Agreement between Borrower and a Secured Swap
Provider, which Agent (or, if prior to the Restatement Date, GE Capital (in its
capacity as agent under the Existing Credit Agreement)) has acknowledged in
writing constitutes a “Secured Rate Contract” hereunder.


 


“Secured Swap Provider” means a Lender or an
Affiliate of a Lender (or a Person who was a Lender or an Affiliate of a Lender
at the time of execution and delivery of an Interest Rate Agreement or Other
Hedging Agreement) who has entered into a Secured Rate Contract with Borrower,
provided that such Lender or Affiliate of a Lender has, pursuant to
documentation acceptable to Agent, appointed Agent as its representative.


 


“Settlement Date” has the meaning ascribed to
it in Section 8.5(a)(ii).


 


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“Software” means all “software” as such term is
defined in the Code, now owned or hereafter acquired by Holdings or any Domestic
Subsidiary, other than software embedded in any category of Goods, and, in any
event, including all computer programs and all supporting information provided
in connection with a transaction related to any program.


 


“Solvent” means, with respect to any Person on
a particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including
subordinated and contingent liabilities, of such Person; (b) the present
fair saleable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its debts
and liabilities, including subordinated and contingent liabilities as they
become absolute and matured; (c) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person’s
ability to pay as such debts and liabilities mature; and (d) such Person
is not engaged in a business or transaction, and is not about to engage in a
business or transaction, for which such Person’s property would constitute an
unreasonably small capital.  The amount
of contingent liabilities (such as Litigation, guaranties and pension plan
liabilities) at any time shall be computed as the amount that, in light of all
the facts and circumstances existing at the time, represents the amount that
can be reasonably be expected to become an actual or matured liability.


 


“SPV” means any special purpose funding vehicle
identified as such in a writing by any Lender to Agent.


 


“Statement” has the meaning ascribed to it in Section 4.4(b).


 


“Stock” means all shares, options, warrants,
general or limited partnership interests, membership interests, joint venture
interests, participations or other ownership or profit interests (regardless of
how designated) of or in a corporation, partnership, limited liability company
or other Person that is not an individual whether voting or nonvoting,
including common stock, preferred stock or any other “equity security” (as such
term is defined in Rule 3a11-1 of the General Rules and Regulations
promulgated by the SEC under the Securities Exchange Act of 1934).


 


“Stock Equivalents” means all securities
convertible into or exchangeable for Stock or any other Stock Equivalent and
all warrants, options or other rights to purchase, subscribe for or otherwise
acquire any Stock or any other Stock Equivalent, whether or not presently
convertible, exchangeable or exercisable.


 


“Stockholder” means, with respect to any
Person, each holder of Stock of such Person.


 


“Subordinated Debt” means Indebtedness of
Holdings or any of its Subsidiaries subordinated to the Obligations in a manner
and form reasonably satisfactory to Agent, as to right and time of payment and
as to any other rights and remedies thereunder.


 


“Subsidiary” means, with respect to any Person,
(a) any corporation of which an aggregate of more than 50% of the
outstanding Stock having ordinary voting power to elect a 


 


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majority of the board of directors of such corporation
(irrespective of whether, at the time, Stock of any other class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time, directly or indirectly, owned
legally or beneficially by such Person or one or more Subsidiaries of such
Person, or with respect to which any such Person has the right to vote or
designate the vote of 50% or more of such Stock whether by proxy, agreement,
operation of law or otherwise, and (b) any partnership or limited
liability company in which such Person and/or one or more Subsidiaries of such
Person shall have an interest (whether in the form of voting or participation
in profits or capital contribution) of more than 50% or of which any such
Person is a general partner or may exercise the powers of a general
partner.  Unless the context otherwise
requires, each reference to a Subsidiary shall be a reference to a Subsidiary
of Borrower.


 


“Subsidiary Guaranty” means the Subsidiary
Guaranty dated as of the Original Closing Date executed by one or more Domestic
Subsidiaries of Borrower from time to time in favor of Agent (as successor to
GE Capital (in its capacity as agent under the Existing Credit Agreement)), on
behalf of itself and Lenders.


 


“Subsidiary Pledge Agreement” means the Pledge
Agreement dated as of the Original Closing Date executed by certain Domestic
Subsidiaries of Borrower party thereto in favor of Agent (as successor to GE
Capital (in its capacity as agent under the Existing Credit Agreement)), on
behalf of itself and Lenders.


 


“SunTrust” has the meaning ascribed to it in
the Preamble.


 


“SunTrust Administrative Agent” means SunTrust
in its capacity as agent for Lenders.


 


“SunTrust Fee Letter” has the meaning ascribed
to it in Section 1.3(a).


 


“Swing Line Advance” has the meaning ascribed
to it in Section 1.1(c).


 


“Swing Line Availability” has the meaning
ascribed to it in Section 1.1(c).


 


“Swing Line Commitment” means the commitment of
the Swing Line Lender to make Swing Line Advances as set forth in the Register,
which commitment constitutes a subfacility of the Revolving Loan Commitment of
the Swing Line Lender.


 


“Swing Line Lender” means SunTrust.


 


“Swing Line Loan” means at any time, the
aggregate amount of Swing Line Advances outstanding to Borrower.


 


“Swing Line Note” has the meaning ascribed to
it in Section 1.1(c).


 


“Target” means VeriSign, Inc.


 


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“Tax Returns” means all reports, returns,
information returns, claims for refund, elections, estimated Tax filings or
payments, requests for extension, documents, statements, declarations and
certifications and other information required to be filed with respect to
Taxes, including attachments thereto and amendments thereof.


 


“Term Lenders” means, together, the Existing
Term Lenders and the Acquisition Term Lenders.


 


“Term Loans” means, together, the Existing Term
Loan and the Acquisition Term Loan.


 


“Term Loan Commitments” means, together, the
Existing Term Loan Commitment and the Acquisition Term Loans Commitment.


 


“Term Loan Maturity Date” means March 28,
2014.


 


“Term Notes” means, together, the Existing Term
Notes and the Acquisition Term Notes.


 


“Termination Date” means the date on which (a) the
Loans have been repaid in full in cash, (b) all other Obligations under
the Agreement and the other Loan Documents have been completely discharged
(other than contingent indemnification obligations as to which no unsatisfied
claim has been asserted), (c) all Letter of Credit Obligations have been
cancelled, or, with the consent of Agent in each instance, backstopped by
standby letters of credit acceptable to Agent or cash collateralized in the
amount set forth in Section 1.5(f) and (d) all
Commitments have been terminated.


 


“Title IV Plan” means a Pension Plan (other
than a Multiemployer Plan), that is covered by Title IV of ERISA, and that
Holdings or ERISA Affiliate maintains, contributes to or has an obligation to
contribute to on behalf of participants who are or were employed by any of
them.


 


“Trademark License” means rights under any
written agreement now owned or hereafter acquired by any Credit Party granting
any right to use any Trademark.


 


“Trademark Security Agreements” means the
Trademark Security Agreements dated as of the Original Closing Date and each
other trademark security agreement made in favor of Agent (either directly or
as a successor to GE Capital (in its capacity as agent under the Existing
Credit Agreement)), on behalf of itself and Lenders, by each applicable Credit
Party.


 


“Trademarks” means all of the following now
owned or hereafter adopted or acquired by any Credit Party: (a) all
trademarks, trade names, corporate names, business names, trade styles, service
marks, logos, Internet domain names, other source or business identifiers,
prints and labels on which any of the foregoing have appeared or appear,
designs and general intangibles of like nature (whether registered or
unregistered), all registrations and recordings thereof, and all applications in
connection therewith, including registrations, recordings and 


 


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applications in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any state or
territory thereof, or any other country or any political subdivision thereof; (b) all
reissues, extensions or renewals thereof; and (c) all goodwill associated
with or symbolized by any of the foregoing.


 


“Unfunded Pension Liability” means, at any
time, the aggregate amount, if any, of the sum of  the amount by which the present value of all
accrued benefits under each Title IV Plan exceeds the fair market value of all
assets of such Title IV Plan allocable to such benefits, all determined as of
the most recent valuation date for each such Title IV Plan using the actuarial
assumptions for funding purposes in effect under such Title IV Plan.


 


Rules of
construction with respect to accounting terms used in the Agreement or the
other Loan Documents shall be as set forth or referred to in this Annex A.  All other undefined terms contained in any of
the Loan Documents shall, unless the context indicates otherwise, have the
meanings provided for by the Code to the extent the same are used or defined
therein; in the event that any term is defined differently in different
Articles or Divisions of the Code, the definition contained in Article or
Division 9 shall control.  Unless
otherwise specified, references in the Agreement or any of the Appendices to a
Section, subsection or clause refer to such Section, subsection or clause as
contained in the Agreement.  The words “herein,”
“hereof” and “hereunder” and other words of similar import refer to the
Agreement as a whole, including all Annexes, Exhibits and Schedules, as the
same may from time to time be amended, restated, modified or supplemented, and
not to any particular section, subsection or clause contained in the Agreement
or any such Annex, Exhibit or Schedule.


 


Wherever from the context it appears appropriate, each
term stated in either the singular or plural shall include the singular and the
plural, and pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, feminine and neuter genders.  The words “including”, “includes” and “include”
shall be deemed to be followed by the words “without limitation”; the word “or”
is not exclusive; references to Persons include their respective successors and
assigns (to the extent and only to the extent permitted by the Loan Documents)
or, in the case of governmental Persons, Persons succeeding to the relevant
functions of such Persons; and all references to statutes and related
regulations shall include any amendments of the same and any successor statutes
and regulations.  Whenever any provision
in any Loan Document refers to the knowledge (or an analogous phrase) of any
Credit Party, such words are intended to signify that a Responsible Officer of
such Credit Party has actual knowledge or awareness of a particular fact or
circumstance or that such Credit Party, if it had exercised reasonable
diligence (including, without limitation, the exercise of reasonable inquiry of
Responsible Officers of its Subsidiaries), would have known or been aware of
such fact or circumstance.  Definitions
of agreements and instruments in Annex A shall, unless otherwise
specified herein, mean and refer to such agreements and instruments as amended,
modified, supplemented, restated, substituted or replaced from time to time in
accordance with their respective terms and the terms of this Agreement and the
other Loan Documents.


 


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