Exhibit 10.1


 




 





CREDIT AGREEMENT


 


DATED AS OF NOVEMBER 19, 2009


 


by and among


 


TRANSACTION NETWORK SERVICES, INC.,


as Borrower,


 


TNS, INC.,


as a Credit Party,


 


SUNTRUST BANK,


as Agent, Swing Line Lender, L/C Issuer and a Lender,


 


GENERAL ELECTRIC CAPITAL CORPORATION,


as Documentation Agent,


 


BANK OF AMERICA, N.A.,


as Syndication Agent,


 


and


 


THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO,


as Lenders


 


 


SUNTRUST ROBINSON HUMPHREY, INC.


as Sole Lead Arranger and Bookrunner


 




 




















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  SECTION 1. AMOUNTS AND TERMS OF
  LOANS

  	
  2

  
	
  1.1.

  	
  Loans

  	
  2

  
	
  1.2.

  	
  Interest
  and Applicable Margins

  	
  10

  
	
  1.3.

  	
  Fees

  	
  14

  
	
  1.4.

  	
  Payments

  	
  16

  
	
  1.5.

  	
  Prepayments

  	
  17

  
	
  1.6.

  	
  Maturity

  	
  18

  
	
  1.7.

  	
  Loan
  Accounts

  	
  19

  
	
  1.8.

  	
  Yield
  Protection; Illegality

  	
  20

  
	
  1.9.

  	
  Taxes/Changes
  in Laws

  	
  21

  
	
   

  	
   

  
	
  SECTION 2. AFFIRMATIVE COVENANTS

  	
  23

  
	
  2.1.

  	
  Compliance
  With Laws and Contractual Obligations

  	
  24

  
	
  2.2.

  	
  Insurance

  	
  24

  
	
  2.3.

  	
  Inspection;
  Lender Meeting; Books and Records

  	
  25

  
	
  2.4.

  	
  Organizational
  Existence

  	
  25

  
	
  2.5.

  	
  Environmental
  Matters

  	
  25

  
	
  2.6.

  	
  Payment
  of Taxes

  	
  26

  
	
  2.7.

  	
  Further
  Assurances

  	
  26

  
	
  2.8.

  	
  Ratings

  	
  27

  
	
   

  	
   

  
	
  SECTION 3. NEGATIVE COVENANTS

  	
  27

  
	
  3.1.

  	
  Indebtedness

  	
  27

  
	
  3.2.

  	
  Liens
  and Related Matters

  	
  29

  
	
  3.3.

  	
  Investments

  	
  30

  
	
  3.4.

  	
  Contingent
  Obligations

  	
  32

  
	
  3.5.

  	
  Restricted
  Payments

  	
  33

  
	
  3.6.

  	
  Restriction
  on Fundamental Changes

  	
  35

  
	
  3.7.

  	
  Disposal
  of Assets or Subsidiary Stock

  	
  38

  
	
  3.8.

  	
  Transactions
  with Affiliates

  	
  39

  
	
  3.9.

  	
  Compliance
  with Laws

  	
  39

  
	
  3.10.

  	
  Conduct
  of Business

  	
  40

  
	
  3.11.

  	
  Changes
  Relating to Indebtedness and Material Documents

  	
  40

  
	
  3.12.

  	
  Fiscal
  Year

  	
  41

  
	
  3.13.

  	
  Press
  Release; Public Offering Materials

  	
  41

  
	
  3.14.

  	
  Limitation
  on Creation of Subsidiaries

  	
  41

  
	
  3.15.

  	
  Hazardous
  Materials

  	
  41

  
	
  3.16.

  	
  ERISA;
  Foreign Pension Plans

  	
  42

  
	
  3.17.

  	
  Sale-Leasebacks

  	
  42

  
	
  3.18.

  	
  Capital
  Stock

  	
  42

  
	
  3.19.

  	
  OFAC

  	
  42

  
				



 


i

















 


	
  SECTION 4. FINANCIAL
  COVENANTS/REPORTING

  	
  43

  
	
  4.1.

  	
  Capital
  Expenditure Limits

  	
  43

  
	
  4.2.

  	
  Maximum
  Leverage Ratio

  	
  44

  
	
  4.3.

  	
  Fixed
  Charge Coverage Ratio

  	
  44

  
	
  4.4.

  	
  Financial
  Statements and Other Reports

  	
  44

  
	
  4.5.

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

  	
  48

  
	
   

  	
   

  
	
  SECTION 5. REPRESENTATIONS AND
  WARRANTIES

  	
  48

  
	
  5.1.

  	
  Disclosure

  	
  48

  
	
  5.2.

  	
  No
  Material Adverse Effect

  	
  49

  
	
  5.3.

  	
  No
  Conflict; Governmental Approvals

  	
  49

  
	
  5.4.

  	
  Organization,
  Powers, Capitalization and Good Standing

  	
  49

  
	
  5.5.

  	
  Financial
  Statements and Budget

  	
  50

  
	
  5.6.

  	
  Intellectual
  Property

  	
  50

  
	
  5.7.

  	
  Investigations,
  Audits, Etc.

  	
  50

  
	
  5.8.

  	
  Employee
  Matters

  	
  51

  
	
  5.9.

  	
  Solvency

  	
  51

  
	
  5.10.

  	
  Litigation;
  Adverse Facts

  	
  51

  
	
  5.11.

  	
  Use of
  Proceeds; Margin Regulations

  	
  51

  
	
  5.12.

  	
  Ownership
  of Property; Liens

  	
  52

  
	
  5.13.

  	
  Environmental
  Matters

  	
  52

  
	
  5.14.

  	
  ERISA;
  Foreign Pension Plans

  	
  53

  
	
  5.15.

  	
  Brokers

  	
  54

  
	
  5.16.

  	
  Taxes
  and Tax Returns

  	
  54

  
	
  5.17.

  	
  Maintenance
  of Properties; Insurance

  	
  55

  
	
  5.18.

  	
  Foreign
  Assets Control Regulations and Anti-Money Laundering

  	
  55

  
	
   

  	
   

  
	
  SECTION 6. DEFAULT, RIGHTS AND
  REMEDIES

  	
  56

  
	
  6.1.

  	
  Events
  of Default

  	
  56

  
	
  6.2.

  	
  Suspension
  or Termination of Commitments

  	
  58

  
	
  6.3.

  	
  Acceleration
  and other Remedies

  	
  58

  
	
  6.4.

  	
  Performance
  by Agent

  	
  58

  
	
  6.5.

  	
  Application
  of Proceeds

  	
  59

  
	
   

  	
   

  
	
  SECTION 7. CONDITIONS TO LOANS

  	
  59

  
	
  7.1.

  	
  Conditions
  to Initial Loans

  	
  60

  
	
  7.2.

  	
  Conditions
  to All Loans

  	
  60

  
	
   

  	
   

  
	
  SECTION 8. ASSIGNMENT AND
  PARTICIPATION

  	
  60

  
	
  8.1.

  	
  Assignment
  and Participations

  	
  60

  
	
  8.2.

  	
  Disbursements
  of Advances; Payments; Defaulting Lenders

  	
  65

  
	
  8.3.

  	
  Set
  Off and Sharing of Payments

  	
  74

  
	
  8.4.

  	
  Disbursement
  of Funds

  	
  74

  
	
  8.5.

  	
  Disbursements
  of Advances; Payment; Cash Collateral

  	
  74

  
	
  8.6.

  	
  Lender
  Credit Decision

  	
  80

  



 


ii

















 


	
  SECTION 9. MISCELLANEOUS

  	
  80

  
	
  9.1.

  	
  Indemnities

  	
  80

  
	
  9.2.

  	
  Amendments
  and Waivers

  	
  81

  
	
  9.3.

  	
  Notices

  	
  82

  
	
  9.4.

  	
  Electronic
  Transmissions

  	
  83

  
	
  9.5.

  	
  Failure
  or Indulgence Not Waiver; Remedies Cumulative

  	
  84

  
	
  9.6.

  	
  Marshaling;
  Payments Set Aside

  	
  85

  
	
  9.7.

  	
  Severability

  	
  85

  
	
  9.8.

  	
  Lenders’
  Obligations Several; Independent Nature of Lenders’ Rights

  	
  85

  
	
  9.9.

  	
  Headings

  	
  85

  
	
  9.10.

  	
  Applicable
  Law

  	
  85

  
	
  9.11.

  	
  Successors
  and Assigns

  	
  85

  
	
  9.12.

  	
  No
  Fiduciary Relationship; Limited Liability

  	
  86

  
	
  9.13.

  	
  Construction

  	
  86

  
	
  9.14.

  	
  Confidentiality

  	
  86

  
	
  9.15.

  	
  CONSENT
  TO JURISDICTION

  	
  87

  
	
  9.16.

  	
  WAIVER
  OF JURY TRIAL

  	
  87

  
	
  9.17.

  	
  Survival
  of Warranties and Certain Agreements

  	
  88

  
	
  9.18.

  	
  ENTIRE
  AGREEMENT

  	
  88

  
	
  9.19.

  	
  Counterparts;
  Effectiveness

  	
  88

  
	
  9.20.

  	
  Replacement
  of Lenders

  	
  89

  
	
  9.21.

  	
  Delivery
  of Termination Statements and Mortgage Releases

  	
  89

  
	
  9.22.

  	
  Subordination
  of Intercompany Debt

  	
  89

  
	
  9.23.

  	
  Patriot
  Act

  	
  90

  
	
  9.24.

  	
  Joint and Several

  	
  90

  



 


iii

















 


INDEX OF
APPENDICES


 


	
  Annexes

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Annex A

  	
  -

  	
   

  	
  Definitions

  
	
  Annex B

  	
  -

  	
   

  	
  Schedule of Additional
  Closing Documents

  
	
  Annex C

  	
  -

  	
   

  	
  Compliance, Pricing and
  Excess Cash Flow Certificate

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit 1.1(a)

  	
  -

  	
   

  	
  Initial 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 1.1(e)

  	
  -

  	
   

  	
  Form of Joinder
  Agreement

  
	
  Exhibit 1.2(e)

  	
  -

  	
   

  	
  Notice of
  Continuation/Conversion

  
	
  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 5.12

  	
  -

  	
   

  	
  Real Estate

  
	
  Schedule 5.13

  	
  -

  	
   

  	
  Environmental Matters

  
	
  Schedule 5.14

  	
  -

  	
   

  	
  ERISA

  
	
  Schedule 5.17

  	
  -

  	
   

  	
  Insurance

  



 


iv
















 


CREDIT AGREEMENT


 


This CREDIT AGREEMENT is dated as of November 19, 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, Swing Line Lender and L/C Issuer, GENERAL ELECTRIC CAPITAL
CORPORATION, as Documentation Agent and BANK OF AMERICA, N.A., as Syndication
Agent.


 


R E C I T A L S:


 


WHEREAS, Borrower has requested that Lenders (i) make
a term loan to Borrower to refinance the outstanding loans under the Existing
Credit Agreement (as hereinafter defined) and pay certain expenses in
connection therewith and (ii) make revolving credit facilities available
to provide working capital financing for Borrower and its subsidiaries and to
provide funds for other general corporate purposes of Borrower and its
subsidiaries, including future Permitted Acquisitions (as hereinafter defined);
and


 


WHEREAS, Borrower desires to secure all of its
Obligations (as hereinafter defined) under the Loan Documents (as hereinafter
defined) by granting to Agent, for the benefit of Agent and Lenders, a security
interest in and lien upon substantially all  of its
personal and real property; and


 


WHEREAS, Holdings owns all of the stock of Borrower
and is willing to guaranty all of the Obligations and to pledge to Agent, for
the benefit of Agent and Lenders, all of the stock of Borrower and
substantially all of its other personal property and real property to secure
the Obligations; and


 


WHEREAS, each of Holdings and each of Borrower’s
domestic subsidiaries is willing to guaranty all of the Obligations of Borrower
and to grant to Agent, for the benefit of Agent and Lenders, a security
interest in and lien upon substantially all of its personal and real property
to secure the Obligations; 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 Agent agree as follows:


 

















 


SECTION 1.

AMOUNTS AND TERMS OF LOANS


 


1.1.          Loans.


 


(a)       Initial 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 Initial Term Lender, severally and not
jointly, shall make a term loan to Borrower in one draw on the Closing Date in
an amount equal to its Pro Rata Share of $325,000,000 (the “Initial Term
Loan”).  Borrower shall repay the
Initial Term Loan through periodic payments on the dates and in the amounts
indicated below (“Initial Term Loan Scheduled Installments”).


 


	
  Date

  	
   

  	
  Scheduled Installment

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  September 30, 2010

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  March 31, 2011

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  June 30, 2011

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  September 30, 2011

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  December 31, 2011

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  March 31, 2012

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  June 30, 2012

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  September 30, 2012

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  December 31, 2012

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  March 31, 2013

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  June 30, 2013

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  September 30, 2013

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  December 31, 2013

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  March 31, 2014

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  June 30, 2014

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  September 30, 2014

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  December 31, 2014

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  March 31, 2015

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  June 30, 2015

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  September 30, 2015

  	
   

  	
  $

  	
  4,062,500

  	
   

  
	
  November 18, 2015

  	
   

  	
  Remaining principal
  balance

  	
   

  



 


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


 


(i)               The Initial Term Loan shall be
evidenced by promissory notes substantially in the form of Exhibit 1.1(a) (as
amended, modified, extended, substituted or replaced from time to time, each an
“Initial Term Note” and, collectively, the “Initial Term Notes”),
and Borrower shall execute and deliver each Initial Term Note to the applicable
Initial 


 


2

















 


Term Lender.  Each Initial Term Note shall represent the
obligation of Borrower to pay the amount of the applicable Initial Term Lender’s
Term Loan Commitment, together with interest thereon.


 


(b)       Revolving Loans.  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 “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)  (x) one (1) Business Day prior to such funding
for funding requests for amounts equal to or greater than $5,000,000 and (y) on
the Business Day of funding for funding requests for amounts less than
$5,000,000.  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 (such lesser amount, “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 


 


3

















 


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 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



 


4

















 


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, 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 Closing 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 Amount or the Letter of Credit Obligations for all Letters of Credit
would exceed $10,000,000  (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 


 


5

















 


credit of the type of such Letter of Credit (collectively,
the “L/C Reimbursement Agreement”).


 


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. 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
the L/C Issuer’s obligation under a risk participation agreement with respect
to a Letter of Credit) 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 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.


 


6

















 


(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.


 


(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 


 


7

















 


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 if there has been any
change to such schedule since the previous delivery pursuant to this clause
(C), 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
Closing 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 Closing 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), (d)(iv) and (d)(v) and Section 1.3(c),
shall be deemed to be Letters of Credit governed by the terms and conditions of
this Agreement.


 


(e)       Incremental Facilities.


 


(i)               The Borrower may by written
notice to Agent elect to request the establishment of one or more new term loan
commitments (the “New Term Loan
Commitments”)  and/or (prior to the Commitment
Termination Date), an increase to the existing Revolving Loan Commitment (any
such increase, the “New Revolving
Loan Commitments”); provided
that, (i) the aggregate amount of all such New Term Loan
Commitments and New Revolving Loan Commitments shall not exceed $100,000,000
and (ii) the aggregate amount of all New Revolving Loan Commitments shall
not exceed $50,000,000.  Any such
increased commitment or new loan shall be in an amount not less than
$10,000,000 individually and integral multiples of $5,000,000 in excess of that
amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”)  on
which the Borrower proposes that the New Revolving Loan Commitments or New Term
Loan Commitments, as applicable, shall be effective, which shall be a date not
less than 15 Business Days after the date on which such notice is delivered to
Agent and (B) the identity of each Lender or other Person reasonably
acceptable to the Agent (each, a “New
Revolving Loan Lender”  or “New Term Lender,”  as applicable) to whom the Borrower
proposes any portion of such New Revolving Loan Commitments or New Term Loan
Commitments, as applicable, be allocated and the amounts of such allocations; provided
that Agent (and/or its Affiliates) may elect or decline to arrange such New
Revolving Loan Commitments or New Term Loan Commitments in its sole discretion
and any Lender approached to provide all or a portion of the New Revolving Loan
Commitments or New Term Loan Commitments may elect or decline, in its sole discretion,
to provide a New Revolving Loan Commitment or a New Term Loan Commitment. Such
New Revolving Loan Commitments or New Term Loan Commitments shall become
effective as of such Increased Amount Date; provided that (1) no Default
or Event of Default shall exist on such Increased 


 


8

















 


Amount Date before and after giving
effect to such New Revolving Loan Commitments or New Term Loan Commitments, as
applicable; (2) both before and after giving effect to such New Revolving
Loan Commitments or to the making of any New Term Loans, each of the conditions
set forth in Section 7.2 shall be satisfied; (3) both immediately
before and after giving effect to such New Revolving Loan Commitments or New
Term Loans on a Pro Forma Basis, Holdings, the Borrower and their respective
Subsidiaries shall be in pro forma compliance with the financial covenants set
forth in Section 4; (4) the New Revolving Loan Commitments or
New Term Loan Commitments, as applicable, shall be effected pursuant to one or
more Joinder Agreements executed and delivered by the Borrower, the New
Revolving Loan Lender or New Term Loan Lender, as applicable, and the Agent,
each of which Joinder Agreements shall be recorded in the Register, and each
New Revolving Loan Lender or New Term Loan Lender shall be subject to the
requirements set forth in Sections 1.9(c) and (d); (5) the
Borrower shall pay any LIBOR Breakage Fee payable in connection with the New
Revolving Loan Commitments, as applicable; and (6) the Borrower shall
deliver or cause to be delivered any legal opinions or other documents
reasonably requested by the Agent in connection with any such transaction. Any
New Term Loans made on an Increased Amount Date shall be designated a separate
series (a “Series”)  of
New Term Loans for all purposes of this Agreement.


 


(ii)                           On
any Increased Amount Date on which New Revolving Loan Commitments are effected,
subject to the satisfaction of the terms and conditions set forth in the
foregoing clause (i), (A) each of the Revolving Lenders shall assign to
each of the New Revolving Loan Lenders, and each of the New Revolving Loan
Lenders shall purchase from each of the Revolving Loan Lenders, at the
principal amount thereof (together with accrued interest), such interests in
the Revolving Loans outstanding on such Increased Amount Date as shall be
necessary in order that, after giving effect to all such assignments and
purchases, such Revolving Loans will be held by existing Revolving Loan Lenders
and New Revolving Loan Lenders ratably in accordance with their Revolving Loan
Commitments after giving effect to the addition of such New Revolving Loan
Commitments to the Revolving Loan Commitments, (B) each New Revolving Loan
Commitment shall be deemed for all purposes a Revolving Loan Commitment and
each Loan made thereunder (a “New
Revolving Loan”)  shall be deemed, for all purposes,
a Revolving Loan and (C) each New Revolving Loan Lender shall become a
Lender with respect to the New Revolving Loan Commitment and all matters
relating thereto.


 


(iii)                          On
any Increased Amount Date on which any New Term Loan Commitments of any Series are
effective, subject to the satisfaction of the foregoing terms and conditions, (A) each
New Term Loan Lender of any Series shall make a Loan to the Borrower (a “New Term Loan”)  in
an amount equal to its New Term Loan Commitment of such Series, and (B) each
New Term Loan Lender of any Series shall become a Lender hereunder with
respect to the New Term Loan Commitment of such Series and the New Term
Loans of such Series made pursuant thereto.


 


(iv)                          The
Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of
each Increased Amount Date and in respect thereof (A) the New Revolving
Loan Commitments and the New Revolving Loan Lenders or the Series of New
Term Loan Commitments and the New Term Loan Lenders of such Series, as
applicable, and (B) in the case of each notice to any Revolving Loan
Lender, the respective interests in such Revolving 


 


9

















 


Loan Lender’s Revolving Loans subject
to the assignments contemplated by clause (ii) of this Section 1.1(e).


 


(v)              The pricing, maturity and all
other terms and provisions of the New Revolving Commitments and New Revolving
Loans shall be the same as the Revolving Loans. The terms and provisions of the
New Term Loans and New Term Loan Commitments of any Series shall be,
except as otherwise set forth herein or in the Joinder Agreement, substantially
the same as the Initial Term Loan.  In
any event (A) the weighted average life to maturity of all New Term Loans
of any Series shall be no shorter than the weighted average life to
maturity of the Initial Term Loans; (B) the maturity date for the New Term
Loan of any Series shall be no earlier than the final maturity of the
Initial Term Loans; and (C) the yield applicable to the New Term Loans of
each Series shall be determined by the Borrower and the applicable New
Term Lenders and shall be set forth in each applicable Joinder Agreement;
provided, however, that the yield applicable to the New Term Loans (after
giving effect to all upfront or similar fees, floors or original issue discount
payable with respect to such New Term Loans) shall not be greater than the
applicable yield payable pursuant to the terms of this Agreement as amended
through the date of such calculation with respect to Initial Term Loans
(including any upfront fees, floors or original issue discount payable to the
Initial Term Lenders hereunder) plus 0.50% per annum unless the interest rate
with respect to the Initial Term Loans is increased so as to cause the then
applicable yield under this Agreement on the Initial Term Loans (after giving
effect to all upfront or similar fees, floors or original issue discount
payable with respect to the Initial Term Loans) to equal the yield applicable
to the New Term Loans (after giving effect to all upfront or similar fees,
floors or original issue discount payable with respect to such New Term
Loans).  Each Joinder Agreement may, without
the consent of any other Lenders, effect such amendments to this Agreement and
the other Credit Documents as may be reasonably necessary, in the opinion of
Agent to effect the provisions of this Section 1.1(e); provided
that any amendments to Section 6.5 made in connection with this Section 1.1(e) shall
also comply with Section 9.2.


 


(f)        Funding Authorization.  The proceeds of all Loans made pursuant to
this Agreement on and subsequent to the Closing 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.:

  	
  [Omitted]

  
	
  Reference:

  	
  [Omitted]

  



 


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.


 


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 


 


10
















 


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 Initial Term Loan  designated as
Index Rate Loans, the Index Rate plus the Applicable Initial Term Loan Index
Margin per annum or, with respect to such portion of the Initial Term Loan
designated as LIBOR Loans, the applicable LIBOR Rate plus the Applicable
Initial 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 Closing Date, the Applicable Margins are as follows:


 


	
  Applicable
  Revolver Index Margin

  	
   

  	
  3.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Applicable
  Revolver LIBOR Margin

  	
   

  	
  4.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Applicable
  Initial Term Loan Index Margin

  	
   

  	
  3.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Applicable
  Initial Term Loan LIBOR Margin

  	
   

  	
  4.00

  	
  %

  



 


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 to Agent of Borrower’s annual Financial Compliance, Pricing and Excess
Cash Flow Certificate and accompanying Financial Statements for the Fiscal Year
ending December 31, 2009. 
Adjustments in Applicable Margins will be determined by reference to the
following grids:


 


	
  Criteria:

  	
   

  	
  Level of Applicable Revolver

  Index Margin and Applicable

  Revolver LIBOR Margin:

  
	
  If
  the Leverage Ratio is > 2.00

  	
   

  	
  Level I

  
	
  If
  the Leverage Ratio is > 1.50 and < 2.00

  	
   

  	
  Level II

  
	
  If
  the Leverage Ratio is > 1.00 and < 1.50

  	
   

  	
  Level III

  
	
  If
  the Leverage Ratio is < 1.00

  	
   

  	
  Level IV

  



 


11

















 


	
  Criteria:

  	
   

  	
  Level of Applicable Initial Term

  Loan Index Margin and

  Applicable Initial Term Loan

  LIBOR Margin:

  
	
  If the Leverage Ratio
  is > 1.50, the Borrower’s corporate family rating from Moody’s is
  lower than Ba3 or the Borrower’s corporate credit rating from S&P is
  lower than BB-

  	
   

  	
  Level I

  
	
  If the Leverage Ratio
  is < 1.50 and the Borrower’s corporate family rating from Moody’s is Ba3
  or better and the Borrower’s corporate credit rating from S&P is BB- or
  better

  	
   

  	
  Level II

  



 


	
   

  	
   

  	
  Applicable Margins

  	
   

  
	
   

  	
   

  	
  Level I

  	
   

  	
  Level II

  	
   

  	
  Level III

  	
   

  	
  Level IV

  	
   

  
	
  Applicable
  Revolver Index Margin

  	
   

  	
  3.00

  	
  %

  	
  2.75

  	
  %

  	
  2.50

  	
  %

  	
  2.25

  	
  %

  
	
  Applicable
  Revolver LIBOR Margin

  	
   

  	
  4.00

  	
  %

  	
  3.75

  	
  %

  	
  3.50

  	
  %

  	
  3.25

  	
  %

  
	
  Applicable
  Initial Term Loan Index Margin

  	
   

  	
  3.00

  	
  %

  	
  2.50

  	
  %

  	
  n/a

  	
   

  	
  n/a

  	
   

  
	
  Applicable
  Initial Term Loan LIBOR Margin

  	
   

  	
  4.00

  	
  %

  	
  3.50

  	
  %

  	
  n/a

  	
   

  	
  n/a

  	
   

  



 


All adjustments in the Applicable Margins after December 31,
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 or annual Compliance, Pricing and Excess Cash Flow
Certificate (and accompanying Financial Statements) evidencing the need for an
adjustment.  The Compliance, Pricing and
Excess Cash Flow Certificate shall be signed by the Borrower’s chief financial
officer or other officer acceptable to Agent, and shall set forth in reasonable
detail the basis for the continuance of, or any change in, the Applicable
Margins.  Failure to timely deliver such
Compliance, Pricing and Excess Cash Flow Certificate shall, in addition to any
other remedy provided for in this Agreement, result in an increase in the
Applicable Margins to Level I in the foregoing grid, until the first day
following the delivery of the Compliance, Pricing and Excess Cash Flow
Certificate 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


 


12

















 


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 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 third 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 third 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.


 


13

















 


(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 or elsewhere in the Loan Documents,
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 Closing Date as otherwise
provided in this Agreement.  Thereafter,
interest hereunder shall be paid at the rate(s) of interest and in the
manner provided in the Loan Documents, 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 October 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 increased or 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
Closing 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


 


14

















 


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 to Agent of Borrower’s annual Financial Compliance, Pricing and Excess
Cash Flow Certificate and accompanying Financial Statements for the Fiscal Year
ending December 31, 2009. 
Adjustments in Applicable Unused Line Fee Margin will be determined by
reference to the following grids:


 


	
  Criteria:

  	
   

  	
  Level of

  Applicable Unused Line Fee Margin:

  
	
  If
  Leverage Ratio is > 1.50

  	
   

  	
  Level I

  
	
  If
  Leverage Ratio is < 1.50

  	
   

  	
  Level II

  



 


	
   

  	
   

  	
  Level I

  	
   

  	
  Level II

  	
   

  
	
  Applicable
  Unused Line Fee Margin

  	
   

  	
  0.50

  	
  %

  	
  0.375

  	
  %

  



 


All adjustments in the Applicable Unused Line Fee
Margin after December 31, 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 or annual Compliance, Pricing and Excess Cash Flow
Certificate (and accompanying Financial Statements) evidencing the need for an
adjustment.  The Compliance, Pricing and
Excess Cash Flow Certificate shall be signed by the Borrower’s chief financial
officer or other officer acceptable to Agent, and shall set 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 Compliance, Pricing and Excess Cash Flow Certificate shall,
in addition to any other remedy provided for in this Agreement, result in an
increase in the Applicable Unused Line Fee Margin to Level I in the foregoing
grid, until the first day following the delivery of the Compliance, Pricing and
Excess Cash Flow Certificate 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


 


15

















 


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 the 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 Agent or
its Affiliates 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, in connection with the arrangement of any New
Term Loan Commitments or New Revolving Loan Commitments 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 Agent or its
Affiliates 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 the Agent. 
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 first
sentence of Section 1.4(b) and secured by the Collateral.


 


1.4.          Payments.


 


(a)       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 Agent
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.


 


16

















 


Sun Trust Bank


ABA#: 
061-000-104


Credit: 
Agency Services Operating Account


Acct
#:  [Omitted]


Attn: 
Agency Services


Reference: 
[Omitted]


 


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.


 


(b)       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 but subject to the payment of  LIBOR Breakage Fees, if applicable.  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, 2010,
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 prepay the Term Loans on a pro rata basis in accordance
with the respective outstanding principal amounts thereof (and shall be further
applied on a pro rata basis to the Scheduled Installments of principal within
each of the Initial Term Loan and any Series of New Term Loans) 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 an Event of Default has occurred and is continuing
at the time of such prepayments.


 


17

















 


(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 prepay the Term Loans on a pro
rata basis in accordance with the respective outstanding principal amounts
thereof (and shall be further applied on a pro rata basis to the Scheduled
Installments of principal within each of the Initial Term Loan and any Series of
New Term Loans) 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 an 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 Loans in an amount equal to such remaining
Net Proceeds applied first to prepay the Term Loans on a pro rata basis
in accordance with the respective outstanding principal amounts thereof (and
shall be further applied on a pro rata basis to the Scheduled Installments of
principal within each of the Initial Term Loan and any Series of New Term
Loans) 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 an 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 Initial Term
Loans shall be paid in installments in the amounts and on the dates set forth
in Section 1.1(a) hereof.


 


18

















 


(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 or in the applicable Joinder
Agreement, but in any event all of the remaining Obligations (other than any
Obligations with respect to a Series of New Term Loans with a maturity
date later than the Term Loan Maturity Date, in which case all such Obligations
and any other Obligations that have accrued subsequent to the Term Loan
Maturity Date shall be due and payable on such maturity date) 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 to
exercise all rights and remedies available to it under the Loan Documents.  Notwithstanding anything contained in this
Agreement to the contrary, upon 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


 


19

















 


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.


 


(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 Closing 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.


 


20
















 


(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 day prior to the Closing 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 Agent or any 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


 


21

















 


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 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 Closing 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 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 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 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 Agent or such Lender); or


 


(ii)              does or shall impose on 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 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 Agent or such Lender, upon its demand, any additional amounts necessary
to compensate Agent or such Lender, on an after-tax basis, for such additional
cost or reduced amount receivable, as determined by Agent or such Lender with
respect to this Agreement or the other Loan Documents.  If 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 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 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


 


22

















 


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 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:


 


23

















 


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 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, 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 Agent and will deliver evidence thereof to Agent.  Holdings and Borrower shall cause Agent,
pursuant to endorsements and/or assignments in form and substance reasonably
satisfactory to Agent, 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 Agent and Lenders. 
In the event Holdings or any of its Subsidiaries fails to provide Agent
with evidence of the insurance coverage required by this Agreement, 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
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 Agent, but only after
providing Agent with evidence that Holdings or Borrower has obtained insurance
as required by this Agreement.  If 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 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.


 


24

















 


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 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) Agent shall be
limited to two (2) Field Reviews per Fiscal Year and (ii) Borrower
shall not be responsible for reimbursement of 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 Agent.  Representatives of each Lender will be
permitted to accompany representatives of 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 Agent 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 Agent.


 


(b)       Each of Holdings and Borrower will, and
will cause each of their Subsidiaries to, keep proper  books
of record and account in which 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.  Such entries
shall be complete, true and correct in all material respects.


 


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 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 result in Environmental
Liabilities to Holdings, Borrower or any of Borrower’s Subsidiaries in excess
of $1,000,000; and (d) promptly
forward to 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


 


25

















 


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 Agent 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 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 Agent may from time to time reasonably request, which shall be
conducted by reputable environmental consulting firms reasonably acceptable to
Agent and shall be in form and substance reasonably acceptable to Agent, (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 Agent, Credit Parties shall permit Agent or
its representatives to have access to all Real Estate for the purpose of
conducting such environmental audits and testing as Agent deems appropriate,
including subsurface sampling of soil and groundwater.  Borrower shall reimburse Agent 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
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.


 


(b)       In the event Holdings or any of the
Domestic Subsidiaries acquires a fee interest in real property after the
Closing 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 Agent, 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 Agent.


 


26

















 


(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 Agent 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 its benefit and the benefit of 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
Agent.


 


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 except:


 


(a)       the Obligations;


 


(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 


 


27

















 


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 Closing 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 (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 $15,000,000  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;


 


28

















 


(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 (to the
extent such earn-out obligations constitute Indebtedness) owing by Holdings or
any Subsidiary in connection with any Permitted Acquisition, provided that such
obligations satisfy the conditions set forth in Section 3.6(iv)(C);


 


(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 Agent,
and (iii) such Indebtedness shall not have any principal payments due
prior to the date which is one year following the Term Loan Maturity Date or,
if later, the maturity date of any Series of New Term Loans;


 


(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 $50,000,000 in the
aggregate at any time outstanding; and


 


(l)        any other unsecured Indebtedness not to
exceed $10,000,000  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 Closing Date and renewals and extensions thereof,
as set forth on Schedule 3.2).


 


(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.


 


29

















 


(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 Agent and such lender of Purchase
Money Indebtedness, which terms may include an agreement by Agent 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 Agent 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:


 


(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 so long as the Borrower
and its Subsidiaries have complied with the requirements set forth in the
Security Agreement with respect to such accounts to the extent applicable;


 


(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 Closing 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;


 


30
















 


(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)        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 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; and


 


(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 any such Investment
on a Pro Forma Basis, Borrower is in pro forma compliance with the 


 


31

















 


covenants set forth in Section 4.2
and 4.3, (ii) such Investments do not exceed (A) if, both
before and after giving effect to any such Investment on a Pro Forma Basis,
Borrower has a pro forma Leverage Ratio of not more than 2.0 to 1.0, then (I) $35,000,000
in the aggregate in any Fiscal Year or (II) $75,000,000 in the aggregate
at any time outstanding or (B) if, either before or after giving effect to
any such Investment on a Pro Forma Basis, Borrower has a pro forma Leverage
Ratio of more than 2.0 to 1.0, (I) $25,000,000 in the aggregate in any
Fiscal Year or (II) $50,000,000 in the aggregate at any time outstanding
and (iii) after giving effect to any such Investment (and any Advances
funded or other amounts expended in connection therewith) the Borrower will
have Required Availability of not less than $15,000,000.


 


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 Closing 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) adjustments incurred in
connection with Asset Dispositions permitted hereunder or in connection with
Permitted Acquisitions;


 


(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 


 


32

















 


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.


 


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 


 


33

















 


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 $7,500,000 in any fiscal year and provided
that no Event of Default exists at the time of any 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 May 1, 2009) in an amount not to
exceed $2,300,000; and


 


(e)       In addition to the Stock repurchases
permitted by the foregoing clause (c), at any time after the Borrower’s
delivery of its Compliance, Pricing and Excess Cash Flow Certificate for the
Fiscal Year ending December 31, 2009 (to
the extent Excess Cash Flow is reported in such certificate), Borrower
may make Restricted Payments to Holdings to permit Holdings to make dividends
to its stockholders and repurchase its Stock, so long as (i) both at the
time of making any such Restricted Payment and after giving effect thereto, no
Default or Event of Default exists, (ii) both immediately before and after
giving effect to any such Restricted Payment on a Pro Forma Basis, Borrower is
in compliance with the covenants set forth in Sections 4.2 and 4.3,
(iii) both immediately before and after giving effect to any such
Restricted Payment on a Pro Forma Basis, Borrower has a pro forma Leverage
Ratio of less than 2.5 to 1.0, (iv) immediately after giving effect to any
such Restricted Payment (and any Advances funded or other amounts expended in
connection therewith) the Borrower will have Required Availability of not less
than $50,000,000 and (v) such
Restricted Payments, when aggregated with all Restricted Payments made pursuant
to this Section 3.5(e) since the Closing Date, do not exceed (A) an
amount equal to 50% of the cumulative Excess Cash Flow which has been reported
by the Borrower on a Compliance, Pricing and Excess Cash Flow Certificate
delivered to the Agent subsequent to the Closing Date (commencing with the
Compliance, Pricing and Excess Cash Flow Certificate delivered with respect to
the Fiscal Year ending December 31, 2009 (to the extent Excess Cash Flow
is reported therein)) if both before and after giving effect to any such
Restricted Payment on a Pro Forma Basis, Borrower has a pro forma Leverage
Ratio of less than 1.5 to 1.0, (B) an amount equal to the
lesser of (I) $20,000,000 and (II) 50%
of the cumulative Excess Cash Flow which has been reported by the Borrower on a
Compliance, Pricing and Excess Cash Flow Certificate delivered to the Agent 


 


34

















 


subsequent
to the Closing Date (commencing with the Compliance, Pricing and Excess Cash
Flow Certificate delivered with respect to the Fiscal Year ending December 31,
2009 (to the extent Excess Cash Flow is reported therein)) if both
before and after giving effect to any such Restricted Payment on a Pro Forma
Basis, Borrower has a pro forma Leverage Ratio of less than 2.0 to 1.0 but
equal to or greater than 1.5 to 1.0, and (C) an amount equal to the lesser
of (I) $10,000,000 and (II) 25% of
the cumulative Excess Cash Flow which has been reported by the Borrower on a
Compliance, Pricing and Excess Cash Flow Certificate delivered to the Agent
subsequent to the Closing Date (commencing with the Compliance, Pricing and
Excess Cash Flow Certificate delivered with respect to the Fiscal Year ending December 31,
2009 (to the extent Excess Cash Flow is reported therein)) if both
before and after giving effect to any such Restricted Payment on a Pro Forma
Basis, Borrower has a pro forma Leverage Ratio of less than 2.5 to 1.0 but
equal to or greater than 2.0 to 1.0.


 


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 Agent 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 (as used herein, an “Acquisition”
and such other Person, the “Target”) except pursuant to a Permitted
Acquisition or any Investment permitted under Section 3.3(p).


 


Notwithstanding the
foregoing, Borrower or its Subsidiaries may make an Acquisition (in each case,
a “Permitted Acquisition”) subject to the satisfaction of each of the
following conditions or waiver thereof by the Requisite Lenders:


 


(i)            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 Closing Date, (b) substantially similar to the
business engaged in by Borrower and its Subsidiaries as of the Closing Date or (c) that
transports on behalf of third parties data communications and which business
would not subject Agent or any Lender to regulatory or third party approvals in
connection with the 


 


35

















 


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, (B) ordinary course trade payables,
accrued expenses and other Indebtedness of the Target to the extent permitted
by Section 3.1 (other than Section 3.1(i)) or 3.4
and (C) customary earn-out obligations owing by Holdings or any Subsidiary
of Holdings incurred in connection with such Acquisition provided that such
obligations constitute Subordinated Debt and shall contain such other terms and
conditions reasonably satisfactory to Agent;


 


(v)           (A) both immediately 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, (B) after giving effect to such Permitted
Acquisition (and any Advances funded or other amounts expended in connection
therewith) the Borrower will have Required Availability of not less than
$15,000,000, and (C) (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 greater than 2.5 to 1.0, the aggregate consideration
(excluding up to $100,000,000 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) shall not exceed (I) in connection with any single
Permitted Acquisition, $75,000,000 minus any Investments made pursuant
to Section 3.3(p) in connection with the consummation of such
Acquisition; and (II) in connection with all Permitted Acquisitions since
the Closing Date, $150,000,000 minus any Investments made pursuant to Section 3.3(p) in
connection with the consummation of Acquisitions since the Closing Date, (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 greater than 2.0 to 1.0
but equal to or less than 2.5 to 1.0, the aggregate consideration (excluding up
to $125,000,000 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) shall not exceed (I) in connection with any single Permitted
Acquisition, $100,000,000 minus any Investments made pursuant to Section 3.3(p) in
connection with the consummation of such Acquisition; and (II) in
connection with all Permitted Acquisitions since the Closing Date, $200,000,000
minus any Investments made pursuant to Section 3.3(p) in
connection with the consummation of Acquisitions since the Closing Date or (3) if
both before and after giving effect to the proposed Permitted Acquisition on a
Pro Forma Basis, Borrower has a pro forma Leverage Ratio equal to or less
than  2.0 to 1.0, the aggregate
consideration (excluding up to $150,000,000 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 


 


36

















 


in
connection therewith or otherwise reflected on a consolidated balance sheet of
Borrower and Target) shall not exceed (I) in connection with any single
Permitted Acquisition, $150,000,000 minus any Investments made pursuant
to Section 3.3(p) in connection with the consummation of such
Acquisition, and (II) in connection with all Permitted Acquisitions since
the Closing Date, $300,000,000 minus any Investments made pursuant to Section 3.3(p) in
connection with the consummation of Acquisitions since the Closing Date.


 


(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 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
Agent, in form and substance reasonably satisfactory to Agent:


 


(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, 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
Agent 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
Agent; which Acquisition Projections shall evidence that on a pro forma basis,
after giving effect to any add-backs approved by Agent, 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;


 


37

















 


(C)           a certificate of the chief financial
officer (or another officer acceptable to Agent) 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 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 Agent;


 


(ix)           solely in respect of any Permitted
Acquisition where the total aggregate consideration exceeds $50,000,000 ((A) excluding
(I) if either before or after giving effect to the proposed Permitted
Acquisition on a Pro Forma Basis, Borrower has a pro forma Leverage Ratio
greater than 2.0 to 1.0, up to $100,000,000 of consideration paid in the form
of Holdings Common Stock, (II) if both before and after giving effect to
the proposed Permitted Acquisition on a Pro Forma Basis, Borrower has a pro
forma Leverage Ratio greater than 2.0 to 1.0 but equal to or less than 2.5 to
1.0, up to $125,000,000 of consideration paid in the form of Holdings Common
Stock (III) if both before and after giving effect to the proposed
Permitted Acquisition on a Pro Forma Basis, Borrower has a pro forma Leverage
Ratio equal to or less than  2.0 to 1.0,
up to $150,000,000 of consideration paid in the form of Holdings Common Stock
and (B) 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),
EBITDA (calculated with respect to the Target) of the Target for the four
quarter period immediately preceding such Permitted Acquisition shall have been
at least $1;


 


(x)            at least five (5) Business Days
prior to the date of such Permitted Acquisition, Agent shall have received, in
form and substance reasonably satisfactory to Agent, 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 Agent,
including those specified in Section 2.7; and


 


(xi)           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 


 


38

















 


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 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 


 


39

















 


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 Closing Date, (b) substantially similar
to the business engaged in by Borrower and the other Credit Parties as of the
Closing 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 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.


 


(a)       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) or any earn-out obligations
permitted by Section 3.6(iv)(C): 
(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


 


40
















 


(pursuant to a waiver or otherwise)
the terms and conditions of any of the Purchase Documents without the prior
written consent of Agent if such change could reasonably be expected to have a
material adverse effect on Agent 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.


 


(b)       Each of Agent and each Lender agrees that
neither it nor its Affiliates will issue any press releases or other public
disclosure using the name of Holdings, the Borrower or any of their
Subsidiaries or affiliates or referring to this Agreement or the other Loan
Documents without at least two (2) Business Days’ prior notice to the
Borrower and without the prior written consent of the Borrower 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 or not reasonably
practicable) with the Borrower before issuing such press release or other
public disclosure; provided however, such Person need not obtain such written
consent to use the name of Holdings, the Borrower or any of their Subsidiaries
or affiliates or to refer to this Agreement or the other Loan Documents to the
extent (i) such disclosure is in connection with a prospectus, proxy
statement or other securities filing with the SEC or other Governmental
Authority or (ii) such disclosure is otherwise permitted pursuant to Section 9.14
hereof.


 


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,


 


41

















 


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
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 Closing 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 Closing 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 


 


42

















 


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.


 


	
  Fiscal Year

  	
   

  	
  Capex Limit

  	
   

  
	
  2009

  	
   

  	
  $

  	
  60,000,000

  	
   

  
	
  2010

  	
   

  	
  $

  	
  60,000,000

  	
   

  
	
  2011

  	
   

  	
  $

  	
  60,000,000

  	
   

  
	
  2012

  	
   

  	
  $

  	
  60,000,000

  	
   

  
	
  2013
  and each Fiscal Year thereafter

  	
   

  	
  $

  	
  65,000,000

  	
   

  



 


(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 


 


43

















 


which such Net Proceeds were paid to
the extent such Net Proceeds are not required to be applied to repay the Term
Loans pursuant to Section 1.5(c); and (ii) Capital
Expenditures constituting 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:


 


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.


 


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,
2010), 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 


 


44

















 


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 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 


 


45

















 


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 Agent 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 Agent and provide such other information as may
be reasonably available to them to enable Agent and its counsel to evaluate
such matter.


 


(i)        Notice of Corporate and other Changes.  Borrower shall provide prompt written notice
of (1) any change after the Closing 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
Closing Date, 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 Closing 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 Closing 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 


 


46

















 


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
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 C
(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.


 


47

















 


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 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 Closing Date (including capitalization of costs and expenses
or payment of pre-Closing Date liabilities) shall be treated as expenses in the
period the expenditures are made.  Notwithstanding anything to
the contrary set forth herein, all financial statements delivered hereunder
shall be prepared, and all financial covenants contained herein shall be
calculated, without giving effect to any election under Statement of Financial
Accounting Standards 159 (or any similar accounting principle) permitting a
Person to value its financial liabilities at the fair value thereof.


 


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,
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 Loan 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 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 


 


48

















 


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 Closing Date, immediately prior
to giving effect to this Agreement on the Closing 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.


 


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 Closing 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 Loan 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
Closing Date, the Subsidiaries of Holdings that are Credit Parties are
indicated as such on Schedule 5.4(a).


 


49

















 


(b)       Capitalization.  As of the Closing 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 Closing 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 Borrower or any of its Subsidiaries.


 


(c)       Binding Obligation.  This Agreement is, and the other Loan
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 Closing Date, except as set forth on Schedule 5.7,
neither Holdings nor any of its Subsidiaries has any knowledge or has received
any 


 


50
















 


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 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 Initial Term Loan (and, to the extent
permitted herein, the Revolving Credit Advances made on the Closing Date)
solely to refinance the Existing Credit Agreement (and to pay any related
transaction expenses), and (ii) the Revolving Loans, the Swing Line Loans and
New Term Loans 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).


 


51

















 


(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 Closing 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 Agent have been
delivered to Agent.  Schedule 5.12
further describes any Real Estate with respect to which any Credit Party is a
lessor, sublessor or assignor as of the Closing Date.  Each of the Credit Parties and each of its
Subsidiaries also has good and marketable title to, or valid leasehold
interests in, all of its personal property and assets.  As of the Closing 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
Closing 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 Closing
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 Closing 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


 


52

















 


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 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.


 


53

















 


(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 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 or the Related Transactions, 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
Closing 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


 


54

















 


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.


 


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 Closing 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.


 


55

















 


SECTION 6.

DEFAULT, RIGHTS AND REMEDIES


 


6.1.                              Events 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 $7,500,000  individually
or in excess of $15,000,000 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 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 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


 


56

















 


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 $7,500,000 (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


 


(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


 


57

















 


having an outstanding principal
amount of $7,500,000 individually or $15,000,000 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
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 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, Agent 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 Agent, promptly pay any amount reasonably expended by Agent in
such performance or attempted performance to Agent, together with interest
thereon at the applicable rate of interest in effect upon the occurrence of an
Event of Default as specified in 


 


58

















 


Section 1.2(d) from the date of such expenditure until
paid.  Notwithstanding the foregoing, it
is expressly agreed that Agent shall not 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 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.


 


59

















 


7.1.                              Conditions to Initial Loans.  The
obligations of Lenders and L/C Issuers to make Loans and issue Letters of
Credit on the Closing 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 Agent 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 Term Loan or 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, with respect to
an Advance or Letter of Credit Obligation, Agent 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 Term Loan or Advance (or the incurrence of any Letter of Credit
Obligation), unless, with respect to an Advance or a Letter of Credit
Obligation, Agent 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 Term Loan or 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 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) of, or sell participations in, at any time
or


 


60
















 


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:  (i) shall
require the consent of Agent (which consent shall not be unreasonably withheld
or delayed) if (A) in the case of an assignment of any Revolving Loan,
Revolving Loan Commitment or unfunded Term Loan 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 Loans or 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) shall 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; (iv) if such assignment is an assignment of Revolving Loans
or a Revolving Loan Commitment, shall require the consent of the Swing Line
Lender and L/C Issuer (which consent shall not be unreasonably withheld or
delayed), (v) if such assignment is an assignment of a Revolving Loan or a
Commitment, such assignment shall not be to any Credit Party or Affiliate
thereof and (vi) if such assignment is an assignment of a Term Loan to a Credit
Party or Affiliate thereof, such assignment shall be subject to the additional
conditions set forth in Section 8.1(i).  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.  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


 


61

















 


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.


 


(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


 


62

















 


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)                        Unless an
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 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


 


63

















 


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.


 


(i)                         Notwithstanding anything to the contrary contained in this Agreement, so
long as (w) the conditions set forth in Section 8.1(a) with respect to
any assignments are satisfied with respect to such repurchase, (x) both before
and after giving effect to such assignment, no Advances are, or will be, outstanding,
(y) no Default or Event of Default has occurred and is continuing or would
result from such assignment and (z) the Borrower has delivered a certificate to
the Agent in form and substance reasonably satisfactory to the Agent and signed
by the Chief Executive Officer or Chief Financial Officer of the Borrower
certifying that each of the conditions set forth in this Section 8.1(i) have
been satisfied and that the terms of such repurchase conform to the
requirements set forth herein, then a Credit Party or an Affiliate of a Credit
Party may repurchase outstanding Term Loans on the following basis:


 


(i)                                             such Term
Loans shall be purchased from Lenders holding such Term Loans through an
auction process the terms and conditions of which auction shall be determined
by the Agent acting in consultation with the Borrower; provided that, in any
event, (A) any offer by any Credit Party or Affiliate thereof to repurchase any
Term Loans pursuant to this Section 8.1(i) shall be made to all Lenders
holding the type or Series of Term Loans to be repurchased on the same terms
and conditions for each such offer and (B) each Lender accepting such an offer
shall be, subject to the terms and conditions of the auction, entitled to sell
and receive payment for repurchase of such Lender’s Term Loans of that type or Series
ratably based on the aggregate principal amount of such Term Loans owing to all
Lenders who have accepted such offer for repurchase;


 


64

















 


(ii)                                                                                  (A) the
Borrower shall have paid all accrued and unpaid interest, if any, on the
repurchased Term Loans to the date of repurchase of such Term Loans, (B) such
repurchases and cancellations shall not be deemed to be voluntary or optional
prepayments pursuant to Section 1.5(a) and (C) no such repurchases and
cancellations shall change the Scheduled Installments (other than to reduce the
amount due and payable on the maturity date of such Term Loan);


 


(iii)                                                                               immediately upon such assignment becoming effective, and without
further action by any Person, any Term Loans so repurchased shall be
extinguished, cancelled and retired by the Credit Party or such Affiliate and
shall no longer be outstanding (and shall not be resold or further assigned by any
Credit Party or Affiliate), and all such Term Loans repurchased shall be deemed
to be extinguished, cancelled and retired and no longer outstanding for all
purposes of this Agreement and the other Loan Documents and the Credit Party or
Affiliate acting in its capacity as assignee, shall thereafter have no rights
as a Lender under the Loan Documents with respect to such Term Loans including,
but not limited to (A) the right to receive any payments with respect to such
Term Loans or any other amounts under the Loan Documents, (B) any right to make
or receive any request, demand, authorization, direction, notice, consent or
waiver under the Loan Documents, and (C) the right to vote with respect to such
Term Loans or to be included in the determination of Required Lenders or for
any similar or related purpose under this Agreement; and


 


(iv)                                                                  any repurchase of Loans by any Credit
Party or its Affiliate pursuant to this Section 8.1(i) shall be permitted
notwithstanding anything contained herein requiring payments to be made pro
rata to all Lenders.


 


8.2.                              Disbursements
of Advances; Payments; Defaulting Lenders.


 


(a)                      Appointment.  Each Lender and each L/C Issuer hereby
designates and appoints 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 to take such 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.  Agent is 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 Agent 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 its functions and duties under
this Agreement, Agent shall act solely as agent of Lenders and does 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.  Agent may perform any of its duties
hereunder, or under the Loan Documents, by or through its agents or
employees.  Each Lender and Agent
acknowledges that Agent’s legal counsel in connection with the transactions
contemplated by this Agreement is acting as counsel to Agent and is not acting
as counsel to such Lender.  The rights
and duties of Agent under this Agreement or any other Loan Document may not be
amended, modified,


 


65

















 


terminated or waived without the
written consent of 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 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 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, such Lender or such L/C Issuer, and may further authorize
and direct 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 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, Agent (i) is 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 term “Agent”, the terms “agent”,
“Agent” and “collateral agent” and similar terms in any Loan Document to refer
to Agent, which terms are used for title purposes only, (ii) is 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 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 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


 


66

















 


action taken by Agent in reliance
upon the instructions of Required Lenders (or, where so required, such greater
proportion) and (iii) the exercise by 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.  Agent 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, Agent shall not be required to take,
or to omit to take, any action (i) unless, upon demand, Agent receives an
indemnification satisfactory to it from the Lenders (or, to the extent
applicable and acceptable to Agent, any other Person) against all Liabilities
that, by reason of such action or omission, may be imposed on, incurred by or
asserted against Agent or any of its officers, directors, employees or agents
thereof or (ii) that is, in the opinion of Agent or its counsel, contrary to
any Loan Document or applicable requirement of law.


 


(g)                     Delegation
of Rights and Duties. 
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 Agent.


 


(h)                     Rights,
Exculpation, Etc. 
Neither Agent nor any of its officers, directors, employees or agents
shall be liable to any Lender for any action taken or omitted by it hereunder
or under any of the Loan Documents, or in connection herewith or therewith,
except that 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
Agent be liable for punitive, special, consequential, incidental, exemplary or
other similar damages.  Neither Agent nor
any of its agents or representatives shall be responsible to 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.  Agent shall not 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.  Agent may at any time request instructions
from Requisite Lenders, Requisite Revolving Lenders or all affected Lenders
with respect to any actions or


 


67

















 


approvals which by the terms of this
Agreement or of any of the Loan Documents Agent is permitted or required to take
or to grant.  If such instructions are
promptly requested, 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
shall have any right of action whatsoever against Agent as a result of 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, Agent shall not have any obligation to take
any action if it believes, in good faith, that such action is deemed to be
illegal by Agent or exposes Agent to any liability for which it has not
received satisfactory indemnification in accordance with Section 8.2(j).


 


(i)                         Reliance.  Agent 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.  Agent shall be entitled to rely
upon the advice of legal counsel, independent accountants, and other experts
selected by Agent in its sole discretion.


 


(j)                         Expenses;
Indemnification. 
(i) Each Lender agrees to reimburse 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 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, and (ii) each Lender agrees to
reimburse and indemnify 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
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 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


 


68

















 


disbursements of Agent to the extent
resulting from 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 Agent for any
purpose shall, in the opinion of Agent, be insufficient or become impaired,
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.


 


(k)                      Agent
Individually.  With respect
to its Commitments hereunder, SunTrust (or 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 (or any successor Agent)
in its individual capacity as a Lender or one of the Requisite Lenders or
Requisite Revolving Lenders.  SunTrust
(or 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 Agent pursuant hereto and without any duty to account
therefor to Lenders.  SunTrust (or 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) 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’ prior written notice to
Borrower and Lenders and (B) Borrower may remove Agent if Agent is a Defaulting
Lender; provided, however, that the Borrower may not remove the Agent if Agent
is a Defaulting Lender either (x) as a result of clause (iii) of the definition
thereof or (y) as a result of a Lender Insolvency Event under clause (v) of the
definition of Defaulting Lender with respect to the Parent Company of the Agent.  Such resignation or removal shall take effect
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, Requisite
Lenders shall appoint a successor Agent to serve as Agent which, unless an
Event of Default has occurred and is continuing, shall be reasonably acceptable
to Borrower.  If a successor Agent shall
not have been so appointed within the thirty (30) Business Day period referred
to in clause (i) above, the retiring Agent, upon notice to Borrower, shall then
appoint a successor Agent who shall serve as Agent until such time, if any, as
Requisite Lenders appoint a successor Agent as provided above.


 


69
















 


(iii)             Successor Agent.  Upon the acceptance of any appointment as
Agent under the Loan Documents by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring or removed Agent shall be
discharged from its duties and obligations under the Loan Documents.  After any retiring or removed Agent’s
resignation or removal as 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 Agent.


 


(iv)             Swing Line Lender and L/C
Issuers.  In addition to the
foregoing, if a Revolving Lender becomes, and during the period it remains, a
Defaulting Lender, and if the LC Exposure and Swing Line Exposure of such
Defaulting Lender has not been reallocated, Cash Collateralized or assigned in
each case pursuant to Section 8.5(d)(ii), then any L/C Issuer and
the Swing Line Lender may, upon prior written notice to the Borrower and the
Agent, resign as L/C Issuer or as Swing Line Lender, as the case may be,
effective at the close of business (New York time) on a date specified in such
notice (which date may not be less than five Business Days after the date of
such notice).


 


(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


 


70

















 


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.


 


(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.  Agent shall not 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 Agent for the account of Lenders, unless 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”.  Agent
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 Agent 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 Agent 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 Agent,
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 


 


71

















 


any 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 Agent (or one or more of Agent’s Affiliates).  With respect to each Report, each Lender
hereby agrees that:


 


(i)               Agent (and its 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 Agent (or one or more of 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 Agent (and Agent’s Affiliates) and its
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 Agent (or one or more of
Agent’s Affiliates) regarding the operations and condition of the Credit
Parties may not be reflected in each Report. 
Agent (and its 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 Agent’s (and
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 Agent (or one or more of 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.


 


(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 Agent 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 Agent or Requisite Lenders.  Agent


 


72

















 


is 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
Agent to enforce the rights and remedies of Agent 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.


 


73

















 


8.3.          Set Off and Sharing of Payments. 
Subject to Section 8.2(q), 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 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


 


74

















 


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(f) 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 8.5(d), 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.


 


(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.


 


75

















 


(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.


 


(i)               The failure of any Lender to make
any Revolving Credit Advance, Loan or any payment required by it hereunder, or
to fund any purchase of any participation in any Swing Line Loan or Letter of
Credit to be made or funded by it on the date specified therefor shall not
relieve any other Lender (each such other 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”, a “Revolving Lender”, a “New Revolving Loan Lender”, an “Initial Term
Lender”, a “New Term Lender” or a “Term 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.


 


(ii)              If any Revolving Lender becomes,
and during the period it remains, a Defaulting Lender, the following provisions
shall apply notwithstanding anything to the contrary in this Agreement:


 


(A)          the
LC Exposure and Swing Line Exposure of such Defaulting Lender will, subject to
the limitation in the first proviso below, automatically be reallocated
(effective on the day such Lender becomes a Defaulting Lender) among the
Non-Defaulting Revolving Lenders in accordance with such Revolving Lender’s Pro
Rata Share of such exposure;  provided
that (a) each Non-Defaulting Revolving Lender’s Pro Rata Share of the
total Revolving Loans may not in any event exceed the Revolving Loan Commitment
of such Non-Defaulting Revolving Lender as in effect at the time of such
reallocation and (b) neither such reallocation nor any payment by a
Non-Defaulting Revolving Lender pursuant thereto will constitute a waiver or
release of any claim the Borrower, the Agent, any L/C Issuer, the Swing Line
Lender or any other Lender may have against such Defaulting Lender or cause
such Defaulting Lender to be a non-Defaulting Lender;


 


76

















 


(B)           to
the extent that any portion (the “unreallocated portion”) of the LC
Exposure and Swing Line Exposure of any Defaulting Lender cannot be so
reallocated for any reason, or with respect to the LC Exposure and Swing Line
Exposure of any Potential Defaulting Lender, the Borrower will, not later than
two (2) Business Days after demand by the Agent (at the direction of any
L/C Issuer and/or the Swing Line Lender), (a) Cash Collateralize the
obligations of the Borrower to the L/C Issuers or Swing Line Lender in respect
of such LC Exposure or Swing Line Exposure, as the case may be, in an amount at
least equal to the aggregate amount of the unreallocated portion of the LC
Exposure and Swing Line Exposure of such Defaulting Lender or the LC Exposure
and Swing Line Exposure of such Potential Defaulting Lender, or (b) in the
case of such Swing Line Exposure, prepay (subject to clause (D) below)
and/or Cash Collateralize in full the unreallocated portion thereof, or (c) make
other arrangements satisfactory to the Agent, the L/C Issuers and the Swing
Line Lender in their sole discretion to protect them against the risk of
non-payment by such Defaulting Lender or Potential Defaulting Lender


 


(C)           in
addition to the other conditions precedent set forth in Section 7.2,
the L/C Issuers will not be required to issue, amend or increase any Letter of
Credit, and the Swing Line Lender will not be required to make any Swing Line
Advances, unless they are satisfied that 100% of the related LC Exposure and
Swing Line Exposure is fully covered or eliminated by any combination
satisfactory to the applicable L/C Issuer or the Swing Line Lender, as the case
may be, of the following:


 


(I)            in the
case of a Defaulting Lender, the LC Exposure and Swing Line Exposure of such
Defaulting Lender is reallocated, as to outstanding and future Letters of
Credit, to the Non-Defaulting Revolving Lenders as provided in clause (A) above;
and


 


(II)           in the
case of a Defaulting Lender or a Potential Defaulting Lender, without limiting
the provisions of clause (I) above, the Borrower Cash Collateralizes the
obligations of the Borrower in respect of such Letter of Credit or Swing Line
Advance in an amount at least equal to the aggregate amount of the
unreallocated obligations (contingent or otherwise) of such Defaulting Lender
or Potential Defaulting Lender in respect of such Letter of Credit or Swing
Line Advance, the lending obligations of such Defaulting Lenders or Potential
Defaulting Lenders are reallocated to another Lender in a manner reasonably
satisfactory to the Agent, or the Borrower makes other arrangements
satisfactory to the Agent and the L/C Issuers or 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 or Potential Defaulting Lender;


 


provided that (x) each Non-Defaulting
Revolving Lender’s Pro Rata Share of the total Revolving Loans may not in any
event exceed the Revolving Loan Commitment of such Non-Defaulting Revolving
Lender as in effect at the time of such reallocation, and (y) neither any
such


 


77

















 


reallocation nor any payment by a Non-Defaulting
Revolving Lender pursuant thereto nor any such Cash Collateralization or
reduction will constitute a waiver or release of any claim the Borrower, the Agent,
any L/C Issuer, the Swing Line Lender or any other Lender may have against such
Defaulting Lender or Potential Defaulting Lender, or cause such Defaulting
Lender or Potential Defaulting Lender to be a non-Defaulting Lender;


 


(D)          with
the written approval of the Agent, the Borrower may terminate (on a non-ratable
basis) the unused amount of the Revolving Loan Commitment of a Defaulting
Lender, and in such event the provisions of paragraph (E) below will apply
to all amounts thereafter paid by the Borrower for the account of any such
Defaulting Lender under this Agreement (whether on account of principal,
interest, fees, indemnity or other amounts), provided that such
termination will not be deemed to be a waiver or release of any claim the
Borrower, the Agent, any L/C Issuer or any Lender may have against such
Defaulting Lender;


 


(E)           any
amount paid by the Borrower for the account of a Defaulting Lender under this
Agreement (whether on account of principal, interest, fees, indemnity payments
or other amounts) will not be paid or distributed to such Defaulting Lender,
but will instead be applied by the Agent, to the fullest extent permitted by
law, in the following order of priority: 
first to the payment of any amounts owing by such Defaulting
Lender to the Agent under this Agreement, second pro rata to the payment
of any amounts owing by such Defaulting Lender to any L/C Issuer or the Swing
Line Lender under this Agreement, and third to pay amounts owing under
this Agreement to such Defaulting Lender or as a court of competent
jurisdiction may otherwise direct;


 


(F)           such
Defaulting Lender will not be entitled to any portion of the Applicable Unused
Line Fee accruing with respect to its Revolving Loan Commitment pursuant to Section 1.3(b) during
the period in which such Lender is a Defaulting Lender or Potential Defaulting
Lender or any letter of credit fees accruing during such period pursuant to Section 1.3(c) (without
prejudice to the rights of the Lenders other than Defaulting Lenders in respect
of such fees), provided that (a) to the extent that a portion of
the LC Exposure of such Defaulting Lender is reallocated to the Non-Defaulting
Revolving Lenders pursuant to clause (B), such fees that would have accrued for
the benefit of such Defaulting Lender will instead accrue for the benefit of
and be payable to such Non-Defaulting Revolving Lenders, pro  rata
in accordance with their respective Revolving Loan Commitments and (b) to
the extent any portion of such LC Exposure cannot be so reallocated, such fees
will instead accrue for the benefit of and be payable to the applicable L/C
Issuers; and


 


(G)           the
Borrower may, at its sole expense and effort, upon notice to such Defaulting
Lender and the Agent, require such Defaulting Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions set forth
in Section 8.1) all its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which
assignee


 


78

















 


may be another Lender); provided, that (i) the
Borrower shall have received the prior written consent of the Agent (such
consent not to be unreasonably withheld or delayed), (ii) such Defaulting
Lender shall have received payment of an amount equal to the outstanding
principal amount of all Loans owed to it, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder, from the assignee (in the
case of such outstanding principal and accrued interest) and from the Borrower
(in the case of all other amounts).


 


(iii)          If
the Borrower, the Agent, the L/C Issuers and the Swing Line Lender agree in
writing in their discretion that a Lender that is a Defaulting Lender or a
Potential Defaulting Lender should no longer be deemed to be a Defaulting
Lender or Potential Defaulting Lender, as the case may be, the Agent will so
notify the parties hereto, whereupon as of the effective date specified in such
notice and subject to any conditions set forth therein, the LC Exposure and the
Swing Line Exposure of the other Revolving Lenders shall be readjusted to
reflect the inclusion of such Lender’s Revolving Loan Commitment, if any, and
such Lender will, to the extent it has a Revolving Loan Commitment, purchase at
par such portion of outstanding Revolving Loans of the other Lenders and/or
make such other adjustments as the Agent may determine to be necessary to cause
the Revolving Loans of the Revolving Lenders to be equal to their Pro Rata
Share their respective Revolving Loan Commitments, whereupon such Lender will
cease to be a Defaulting Lender or Potential Defaulting Lender (and such
Revolving Loans of each Revolving Lender will, if applicable, automatically be
adjusted on a prospective basis to reflect the foregoing) and if any cash collateral
has been posted with respect to such Defaulting Lender or Potential Defaulting
Lender, the Agent will promptly return such cash collateral to the Borrower; provided
that no adjustments will be made retroactively with respect to fees accrued or
payments made by or on behalf of the Borrower while such Revolving Lender was a
Defaulting Lender; and provided, further, that except to the extent
otherwise expressly agreed by the affected parties, no change hereunder from
Defaulting Lender or Potential Defaulting Lender to non-Defaulting Lender will
constitute a waiver or release of any claim of any party hereunder arising from
such Lender’s having been a Defaulting Lender or Potential Defaulting Lender.


 


79
















 


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 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 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 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.


 


80

















 


9.2.          Amendments
and Waivers.


 


(a)       Except for
actions expressly permitted to be taken by Agent including, without limitation
pursuant to Section 1.1(e), 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 or as expressly set forth herein, 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 Advance 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 any Advance 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); (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 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 (3) 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 such changes as may be necessary to incorporate the
addition of New Term Loan Commitments or New Revolving Loan Commitments (or
Loans made with respect thereto) pursuant to Section 1.1(e); 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” (which action shall be deemed to directly affect all Lenders)
except, in each case, as may be necessary to incorporate the addition of New
Term Loan Commitments or New Revolving Loan Commitments (or Loans made with
respect thereto) pursuant to Section 1.1(e).  Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that
the Commitments of such Lender may not be increased or extended without the
consent of such Defaulting Lender.  Furthermore,
no amendment, modification,


 


81

















 


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) (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,

  



 


82

















 


	
   

  	
   

  	
  Kirkland &
  Ellis LLP

  
	
   

  	
   

  	
  300 North LaSalle

  
	
   

  	
   

  	
  Chicago, Illinois 60654

  
	
   

  	
   

  	
  ATTN: Jocelyn A. Hirsch

  
	
   

  	
   

  	
  Fax: (312) 862-2200

  
	
   

  	
   

  	
   

  
	
  If to Agent or
  SunTrust:

  	
   

  	
  SunTrust Bank

  
	
   

  	
   

  	
  303 Peachtree Street,
  3rd Floor

  
	
   

  	
   

  	
  Atlanta, GA 30308

  
	
   

  	
   

  	
  ATTN: Tom Rittle

  
	
   

  	
   

  	
  Fax: (404) 658-4905

  
	
   

  	
   

  	
   

  
	
  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 a Lender:

  	
   

  	
  To the address set
  forth on the signature page hereto or in the applicable Assignment
  Agreement or Joinder Agreement, as the case may be

  



 


(b)       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),
Agent, 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


 


83

















 


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 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 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 Agent or
any Lender to exercise, nor any partial exercise of, any power, right or


 


84

















 


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. 
Neither 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).


 


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.


 


85

















 


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 Agent or any Lender.  Holdings and Borrower each agrees on behalf
of itself and each other Credit Party, that neither 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.  Neither 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, Agent and, subject to
the provisions of Section 8.2(o) 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.  Neither 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. 
Agent, 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 Agent, 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. 
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 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 Agent or any Lender to any
regulatory or governmental agency or pursuant to law, rule, regulations or legal
process; provided that Agent or such Lender shall endeavor (to the extent
permitted by any regulatory or governmental agency) to provide


 


86

















 


Borrower with prompt
notice of such requested disclosure so that Borrower may seek a protective
order or other appropriate remedy and, in any event, Agent or such Lender will
endeavor to provide only that portion of such information which, in the
reasonable judgment of 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 Agent or any Lender of a tombstone or
similar advertising material relating to the financing transactions
contemplated by this Agreement. 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 and Lenders reserve
the right to provide to industry trade organizations and publications
information necessary and customary for inclusion in league table measurements,
for analytical data relating to market trends or for transaction
reporting requirements. The obligations of Agent and Lenders under this Section 9.14 shall
supersede and replace the obligations of Agent and Lenders under any
confidentiality agreement in respect of this financing executed and delivered
by Agent or any Lender prior to the Closing Date. In no event shall 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 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, 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, 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


 


87

















 


IN THEIR RELATED FUTURE
DEALINGS.  BORROWER, CREDIT PARTIES,
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.


 


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),
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 Agent shall have
the right to assign any rights or obligations hereunder or any interest herein.


 


88

















 


9.20.        Replacement of Lenders.


 


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:


 


(a)       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


 


(b)       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 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.


 


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)       Any
intercompany Indebtedness or other intercompany payables or receivables, or
intercompany advances directly or indirectly made by or owed to any Credit
Party by any other Credit Party (collectively, “Intercompany Debt”), of
whatever nature at any


 


89

















 


time outstanding shall be subordinate
and subject in right of payment to the prior payment in full in cash of the
Obligations.  No Credit Party will, 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 Agent.


 


(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 Agent and Lenders all such sums to the extent
necessary so that Agent 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 creditors in any liquidation or other winding-up of such Credit
Party or in the event of any Proceeding, Agent 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 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 Agent 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 Agent and Lenders (or to Agent for
the benefit of Agent 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.


 


90

















 


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, an L/C
  Issuer and a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bill
  Christensen

  
	
   

  	
  Name:

  	
  Bill Christensen

  
	
   

  	
  Title:

  	
  Director

  



 
















 


ANNEX A


to


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.


 


“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).


 


A-1

















 


“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 Agent and each
Lender.


 


“Agent” means SunTrust in its capacity as administrative
agent for Lenders or a successor agent pursuant to Section 8.2.


 


“Agreement” means this 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 Initial Term Loan Index
Margin, the Applicable Revolver LIBOR Margin and the Applicable Initial Term
Loan LIBOR Margin.


 


“Applicable Initial 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 Initial Term Loan, as determined
by reference to Section 1.2(a).


 


“Applicable Initial 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 Initial Term Loan, as determined
by reference to Section 1.2(a).


 


“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 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 Borrower or any of Borrower’s Subsidiaries that 


 


A-2

















 


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 (other than the Stock of the Borrower) 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.


 


“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.


 


“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.


 


“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 on Schedule 1 to Annex C.


 


A-3

















 


“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.


 


“Cash Collateralize” means, in respect of any
obligations, to provide and pledge (as a first priority perfected security interest)
cash collateral for such obligations in Dollars, with the Agent pursuant to
documentation in form and substance reasonably satisfactory to the Agent (and “Cash
Collateralization” has a corresponding meaning).


 


“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).


 


A-4

















 


“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
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.


 


“Closing Date” means November 19, 2009.


 


“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.


 


A-5

















 


“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, on behalf of itself and Secured Parties, to secure the Obligations or
any portion thereof or delivered to the Lenders or Agent 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 Closing
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 Collateral
Assignment of Purchase Documents and all similar agreements entered into
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
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) November 18, 2014, (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, Initial Term Loan Commitment and each Series of New Term
Loan Commitments as set forth in the Register and (b) as to all Lenders,
the aggregate of all Lenders’ Revolving Loan Commitments, and Term Loan
Commitments, which aggregate commitment shall be Four Hundred Million Dollars  ($400,000,000) on the Closing Date, as
such Commitments may be increased, 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 C.


 


“Contingent Obligation” means, as applied to
any Person, any direct or indirect liability of that Person:  (i) with respect to Guaranteed
Indebtedness and with respect to any 


 


A-6

















 


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 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 Loan 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 Closing Date and each other
copyright security agreement made in favor of Agent, 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 


 


A-7

















 


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 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 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  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 defaulted on, its obligation to fund
generally under any other loan agreement, credit agreement or other financing
agreement, (iv) 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 (v) 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 (v) 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.  Any Lender designated hereunder as a
Defaulting Lender in accordance with the terms hereof shall remain a Defaulting
Lender until such time as the Agent notifies the parties hereto that such
Defaulting Lender should no longer be deemed a Defaulting Lender in accordance
with Section 8.5(d)(iii) hereof.


 


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


 


“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.


 


A-8

















 


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


 


“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 C.


 


“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.


 


“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.


 


A-9
















 


“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 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 (as such terms are defined
in Part I of Subtitle E of Title IV of ERISA) 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 determination that a Multiemployer Plan
is, or is expected to be insolvent (within the meaning of Section 4045 of
ERISA),  reorganization (within the
meaning of Section 4241 of ERISA) or in “critical” status (within the
meaning of Section 432 of the Code and or Section 304 of ERISA); (i) the
loss of a Qualified Plan’s qualification or tax exempt status; (j) the
termination of a Plan described in Section 4064 of ERISA; (k)  the
imposition of a lien in favor of the PBGC under Title IV of ERISA; or (l) a



 


A-10

















 


determination
that a Title IV Plan is, or is reasonably expected to be, in “at risk” status
(within the meaning of Section 430 of the Code or Section 303 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 C.


 


“Existing Credit Agreement” means the Amended
and Restated Credit Agreement, dated as of May 1, 2009, among the
Borrower, Holdings, the financial institutions from time to time party thereto,
General Electric Capital Corporation, as Co-Administrative Agent, SunTrust
Bank, as Agent and Co-Administrative Agent and the other parties thereto.


 


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


 


“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.


 


A-11

















 


“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.


 


“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 is 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 C.


 


“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 C.


 


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


 


“Foreign Investment Basket” means an amount per
Fiscal Year equal to $25,000,000.


 


“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.


 


A-12

















 


“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 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.


 


“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 


 


A-13

















 


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


 


A-14

















 


“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 Closing Date executed by Holdings in favor of Agent, on behalf
of itself and Lenders.


 


“Increase Amount Date” has the meaning ascribed
to it in Section 1.1(e).


 


“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 Closing 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 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 


 


A-15

















 


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 (1.0%). 
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.


 


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


 


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


 


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


 


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


 


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


 


“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.


 


A-16

















 


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


 


“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 (w) the
date upon which all of the Commitments have been terminated and the Loans have
been paid in full, (x) 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, (y) the Term Loan Maturity Date shall be deemed to be an “Interest
Payment Date” with respect to any interest that has then accrued with
respect to the Initial Term Loan under the Agreement and (z) the maturity
date of each Series of New Term Loans shall be deemed to be an “Interest
Payment Date” with respect to any interest that has then accrued with
respect to that Series of New Term Loans under the applicable Joinder Agreements.


 


“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 


 


A-17

















 


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 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.


 


“Joinder Agreement” means an agreement
substantially in the form of Exhibit 1.1(e).


 


“LC Exposure” means, with respect to each
Revolving Lender, such Lender’s Pro Rata Share of the Letter of Credit
Obligations.


 


“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.


 


“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 or its Parent Company 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, (ii) such Lender or its Parent Company 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 its Parent Company, or such 


 


A-18

















 


Lender or its Parent
Company has taken any action in furtherance of or indicating its consent to or
acquiescence in any such proceeding or appointment or (iii) a Lender or
its Parent Company has been adjudicated as, or determined by any Governmental
Authority having regulatory authority over such Person or its assets to be,
insolvent; provided that, for the avoidance of doubt, a Lender Insolvency
Event  shall not be deemed to have occurred  solely by virtue of the
ownership or acquisition of any equity interest in or control of a Lender or a
Parent Company thereof by a Governmental Authority or an instrumentality
thereof.


 


“Lenders” means SunTrust, the other Lenders
named on the signature pages of the Agreement, the Lenders who have become
a party to the Agreement pursuant to a Joinder 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, each L/C Issuer 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.


 


“Leverage Ratio” has the meaning ascribed to it
on Schedule 1 to Annex C.


 


“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


 


A-19
















 


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;


 


(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%) 


 


A-20

















 


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 2.00% 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.


 


“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, each Joinder Agreement
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 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 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.


 


A-21

















 


“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 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.


 


“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.


 


A-22

















 


“New Revolving Loan Commitments” has the meaning
ascribed to it in Section 1.1(e).


 


“New Revolving Loan” has the meaning ascribed
to it in Section 1.1(e).


 


“New Revolving Loan Lender” has the meaning
ascribed to it in Section 1.1(e).


 


“New Term Lender” has the meaning ascribed to
it in Section 1.1(e).


 


“New Term Loan” has the meaning ascribed to it
in Section 1.1(e).


 


“New Term Loan Commitments” has the meaning
ascribed to it in Section 1.1(e). 
The New Term Loan Commitments with respect to a New Term Loan of any Series
shall reduce automatically by the amount prepaid or repaid in respect of such Series
of Term Loans (but solely by the amount of such prepayment or repayment
allocable to a Lender, for purposes of determining the New Term Loan Commitment
of such Lender).


 


“New Term Loan Scheduled Installments” means
scheduled amortization payments due and payable with respect to any Series of
New Term Loans as set forth in the applicable Joinder Agreement.


 


“New Term Note” means a promissory note
delivered by the Borrower to a New Term Lender to evidence any New Term Loan.


 


“Non-Defaulting Revolving Lender” means, at any
time, a Revolving Lender that is not a Defaulting Lender or a Potential
Defaulting Lender.


 


“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
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 


 


A-23

















 


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.


 


“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).


 


“Parent Company” means, with respect to a
Lender, the bank holding company (as defined in Federal Reserve Board
Regulation Y), if any, of such Lender, and/or any Person owning, beneficially
or of record, directly or indirectly, a majority of the shares of such Lender.


 


“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 Closing Date and each other patent security
agreement made in favor of Agent, 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 


 


A-24

















 


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).


 


“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 Closing 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 


 


A-25

















 


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 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 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 in accordance with the
terms hereof, reasonably acceptable by Agent, (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, 


 


A-26

















 


institution, public
benefit corporation, other entity or government (whether federal, state,
county, 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 Pledge Agreement
dated as of the Closing Date executed by the Borrower, Holdings and certain
Domestic Subsidiaries of Borrower party thereto in favor of Agent, on behalf of
itself and Lenders, and any other pledge agreement entered into on or after the
Closing Date by any Credit Party.


 


“Potential Defaulting Lender” means, at any
time, a Lender (i) as to which the Agent has notified the Borrower that an
event of the kind referred to in the definition of “Lender Insolvency Event”
has occurred and is continuing in respect of any financial institution
affiliate of such Lender, (ii) that has (or its Parent Company or a financial
institution affiliate thereof has) notified the Agent, or has stated publicly,
that it will not comply with its funding obligations under any other loan
agreement or credit agreement or other similar/other financing agreement or (iii)
that has, or whose Parent Company has, a non-investment grade rating from Moody’s
or S&P or another nationally recognized rating agency. Any Lender
designated hereunder as a Potential Defaulting Lender in accordance with the
terms hereof shall remain a Potential Defaulting Lender until such time as the
Agent notifies the parties hereto that such Potential Defaulting Lender should
no longer be deemed a Potential Defaulting Lender in accordance with Section
8.5(d)(iii) hereof.


 


“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 September 30, 2009 after giving effect to the
Related Transactions.


 


“Pro Forma Basis” means, when calculating
financial covenants for purposes of determining whether any Series of New Term
Loans or New Revolving Loan Commitments may be made or whether any Investment,
Restricted Payment or Permitted Acquisition may be made in compliance with this
Agreement, on a basis that gives effect to such Commitments, Investment,
Restricted Payment or Permitted Acquisition (and any Indebtedness incurred or
assumed in connection with any of the foregoing) as if such Commitments,
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 of a
Compliance, 


 


A-27

















 


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 Initial Term
Loan, the percentage obtained by dividing (i) the Initial Term Loan Commitment
of that Lender by (ii) the aggregate Initial Term Loan Commitments of all
Lenders, (c) with respect to any Series
of a New Term Loan, the percentage obtained by dividing (i) the New Term
Loan Commitment of that Lender with respect to that Series by (ii) the
aggregate New Term Loan Commitments of all Lenders with respect to that Series,
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
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 VeriSign, Inc. 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 of the
Communications Services Group of VeriSign, Inc. by the Borrower (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 Closing Date, if any, the incurrence of the
Initial Term Loan on the Closing Date, payment of all 


 


A-28

















 


Fees, costs and expenses
associated with all of the foregoing and the execution and delivery of all of
the Loan Documents.


 


“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 in favor of the Agent
for its benefit and the benefit of the Secured Parties 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 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.


 


“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 


 


A-29
















 


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.


 


“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 Seventy Five Million Dollars ($75,000,000) on the
Closing 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 the Initial Term
Loan Scheduled Installments and the New Term Loan Scheduled Installments as
applicable.


 


“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 Closing Date entered into by and among Agent, on
behalf of itself and Lenders, and Holdings or any Domestic Subsidiary that is a
signatory thereto from time to time.


 


A-30

















 


“Secured Party” means Agent, 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 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.


 


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


 


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


 


“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 


 


A-31

















 


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 (i) Indebtedness of
Holdings or any of its Subsidiaries and (ii) customary earn-out obligations
owing by Holdings or any of its Subsidiaries incurred in connection with any
Permitted Acquisition, in each case 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 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,
limited liability company or other entity 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 Closing Date executed by one or more Domestic
Subsidiaries of Borrower from time to time in favor of Agent, on behalf of
itself and Lenders.


 


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


 


“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.


 


A-32

















 


“Swing Line Exposure” means, with respect to
each Revolving Lender, the principal amount of the Swing Line Loans in which
such Lender is legally obligated either to make a Revolving Credit Advance or
to purchase a participation in accordance with Section 1.1(c), which shall
equal such Lender’s Pro Rata Share of all outstanding Swing Line Loans.


 


“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).


 


“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 the Initial Term Lenders
and any New Term Lenders.


 


“Term Loans” means the Initial Term Loans and
any Series of New Term Loans.


 


“Term Loan Commitments” means the Initial Term
Loan Commitments and any Series of New Term Loan Commitments.


 


“Term Loan Maturity Date” means November 18,
2015.


 


“Term Notes” means the Initial Term Notes and
any New 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.


 


A-33

















 


“Trademark Security Agreements” means the
Trademark Security Agreements dated as of the Closing Date and each other
trademark security agreement made in favor of Agent, 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 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 


 


A-34

















 


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.


 


A-35

















 


ANNEX B


to


CREDIT AGREEMENT


 


SCHEDULE OF ADDITIONAL CLOSING DOCUMENTS


 


In
addition to, and not in limitation of, the conditions described in Section 7
of the Agreement, pursuant to Section 7.1, the following items must be
received by Agent in form and substance reasonably satisfactory to Agent on or
prior to the Closing Date (each capitalized term used but not otherwise defined
herein shall have the meaning ascribed thereto in Annex A to the
Agreement):


 


A.            Agreement.  A counterpart of this Agreement signed by or on behalf
of Holdings, Borrower, SunTrust and each Lender (or written evidence
satisfactory to Agent (which may include telecopy transmission or electronic
transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement) and all
appendices to the Agreement, in form and substance satisfactory to Agent.


 


B.            Notes.  Duly executed originals of the Initial Term
Notes for each Initial Term Lender (unless such Initial Term Lender has elected
not to receive a Initial Term Note evidencing such Obligations to such Initial
Term Lender), duly executed originals of the Revolving Notes for each Revolving
Lender (unless such Revolving Lender has elected not to receive a Revolving
Note evidencing such Obligations to such Revolving Lender) and a duly executed
original of the Swing Line Note payable to SunTrust, as Swing Line Lender.


 


C.            Guaranties.  Duly executed originals of the Holdings
Guaranty and each Subsidiary Guaranty.


 


D.            Security Agreement.  Duly executed originals of the Security
Agreement, dated the Closing Date, and all instruments, documents and
agreements executed pursuant thereto.


 


E.             Pledge Agreement.  Duly executed originals of a Pledge Agreement,
and all instruments, documents and agreements executed pursuant thereto.


 


F.             Trademark Security
Agreements.  Duly executed originals
of the Trademark Security Agreement, dated the Closing Date, and all
instruments, documents and agreements executed pursuant thereto.


 


G.            Patent Security
Agreements.  If applicable, duly
executed originals of the Patent Security Agreement, dated the Closing Date,
and all instruments, documents and agreements executed pursuant thereto.


 


H.            Copyright Security
Agreements.  If applicable, duly
executed originals of the Copyright Security Agreement, dated the Closing Date,
and all instruments, documents and agreements executed pursuant thereto.


 

















 


I.              Collateral
Assignment.  Duly executed Collateral
Assignment of Purchase Documents.


 


J.             Security Interests
and Filings.  (i) Such documents duly
executed by each Credit Party or any third party (including financing
statements under the Code and other applicable documents under the laws of any
jurisdiction with respect to the perfection of Liens) as Agent may request in
order to perfect its security interests in the Collateral, (ii) copies of UCC, tax lien and judgment
search results, or equivalent reports, listing all effective financing
statements, tax liens and judgment liens that name any Credit Party as debtor
and that are filed in the jurisdictions necessary to perfect the security
interests purported to be created by the Collateral Documents (and such other
jurisdictions as may be reasonably requested by Agent), together with such
termination statements and other release documents as shall be required under
the Code, by local law or by Agent with respect to any filing which does not
evidence a Permitted Encumbrance and (iii) a fully completed and executed
perfection certificate from Holdings, Borrower and each Domestic Subsidiary.


 


K.            Letter of Direction.  Duly executed originals of a letter of
direction from Borrower addressed to Agent, on behalf of itself and Lenders,
with respect to the disbursement on the Closing Date of the proceeds of the
Initial Term Loan and any other Loan to be made on such date including a
schedule of sources and uses with respect to any such amounts to be disbursed
on the Closing Date.


 


L.             Charter and Good
Standing.  For Holdings, Borrower and
each other Domestic Subsidiary, (a) its certificate of incorporation, formation
or other constitutive document, together with all amendments thereto, (b) good
standing certificates (including verification of tax status) in its state of
incorporation, formation or organization and (c) good standing certificates
(including verification of tax status) and certificates of qualification to
conduct business in the states of New York and Virginia to the extent its
ownership or lease of property or the conduct of its business requires such
qualification, each dated a recent date prior to the Closing Date and certified
by the applicable Secretary of State or other authorized Governmental
Authority.


 


M.           Bylaws and Resolutions.  For Holdings, Borrower and each Domestic
Subsidiary, (a) its bylaws, operating agreement, limited partnership agreement
or similar governing document together with all amendments thereto and (b) resolutions
or unanimous written consent of such Person’s board of directors, managers or
other similar governing body approving and authorizing the execution, delivery
and performance of the Loan Documents to which such Person is a party and the
transactions to be consummated in connection therewith, each certified as of
the Closing Date by such Person’s corporate secretary or an assistant secretary
as being in full force and effect without any modification or amendment.


 


N.            Incumbency
Certificates.  For Holdings, Borrower
and each Domestic Subsidiary, signature and incumbency certificates of the
officers of each such Person executing any of the Loan Documents, certified as
of the Closing Date by such Person’s corporate secretary or an assistant
secretary as being true, accurate, correct and complete.


 


37

















 


O.            Opinions of Counsel.  Duly executed originals of opinions of (i) Kirkland
& Ellis LLP, counsel for the Credit Parties and (ii) Bermuda counsel (with
respect to the pledge of 65% of the voting equity interests and other equity
interests of TNS International Holdings LP), each in form and substance
satisfactory to Agent and its United States counsel, dated the Closing
Date.  The Credit Parties hereby
authorize and direct such counsel to address its opinion to Agent, on behalf of
Lenders, and to include in such opinion an express statement to the effect that
Agent and Lenders are authorized to rely on such opinion.


 


P.             Officer’s
Certificate.  Duly executed originals
of a certificate of the Chief Executive Officer or Chief Financial Officer of
Borrower, dated the Closing Date, stating that, (1) since June 30, 2009, no
event or condition has occurred or is existing which could reasonably be
expected to have a Material Adverse Effect; (2) there is no Litigation
commenced, or to the
knowledge of any Responsible Officer of Borrower, threatened, against any
Credit Party or any of its Subsidiaries which could reasonably be expected to
result in any Material Adverse Effect or could
challenge any of the transactions contemplated by the Loan Documents; (3) both immediately
before and after giving effect to the Related Transactions, the Credit Parties
taken as a whole were and are Solvent; and (4) all material third-party and
Governmental Authority approvals and consents necessary to consummate this Agreement
and the Related Transactions have been obtained and are final and
non-appealable.


 


Q.            Existing Credit
Agreement.  An executed payoff and
release letter (together with executed releases of mortgages and financing
statements) in form and substance reasonably satisfactory to Agent relating to
the Existing Credit Agreement.


 


R.            Financial Statements.  Current operating statements, the unaudited
consolidated balance sheet and statement of cash flows of Holdings, Borrower
and its Subsidiaries for the Fiscal Quarter ended September 30, 2009 (together
with the Compliance, Pricing and Excess Cash Flow Certificate required to be
delivered therewith pursuant to the Existing Credit Agreement) and the Pro
Forma (including financial projections) certified by the Chief Financial
Officer of Holdings and the Chief Financial Officer of Borrower, in each case
in form and substance reasonably satisfactory to Agent, and Agent shall be
satisfied, in its sole discretion, with all of the foregoing including a
showing that the Credit Parties when taken as a whole shall be Solvent after
completing the Related Transactions and incurring the obligations evidenced by
the Loan Documents.  Agent shall have
further received a certificate of the Chief Financial Officer of Holdings, based
on such Pro Forma, to the effect that the Pro Forma is based upon estimates and
assumptions stated therein, all of which Holdings believes to be reasonable and
fair in light of current conditions and current facts known to Holdings and, as
of the Closing Date, reflect Holdings’ good faith and reasonable estimates of
its future financial performance and of the other information projected therein
for the period set forth therein it being understood that projections are
subject to inherent uncertainties and that actual results may differ and such
differences may be material.


 


S.             Insurance.  Insurance Certificates issued as of a recent
date evidencing insurance policies for property and casualty, liability,
business interruption and other insurance including endorsements requested by
Agent, naming Agent as loss payee, mortgagee and additional insured, as
applicable, together with riders requiring that Agent receive 30 days notice in
the event of any non-renewal, cancellation or amendment.


 


38

















 


T.            Officer’s Certificate.  Certificates signed by the President or Chief
Executive Officer of each of Holdings, Borrower and each Domestic Subsidiary
certifying that on the Closing Date (a) immediately after giving effect to the
Related Transactions, the representations and warranties made by such Credit
Party in the Loan Documents to which it is a party are true and correct, (b) immediately
after giving effect to the Related Transactions, no Default or Event of Default
has occurred or is continuing, and (c) immediately prior to giving effect to
the Agreement (i) each
representation or 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 as of such date) and (ii) no “Default”
or “Event of Default” (as each such term was defined in the Existing Credit
Agreement) had occurred or was continuing under or with respect to the Existing
Credit Agreement.


 


U.            Revolver Usage.  As of the Closing Date after giving effect to
any Revolving Credit Advances and Letters of Credit made or issued on the
Closing Date, the sum of the Borrowing Availability plus cash held by the
Borrower that is subject to a deposit account control agreement in favor of the
Agent for its benefit and the benefit of the Secured Parties shall equal an
amount not less than $20,000,000.


 


V.            Fees and Expenses.  All fees and expenses due and payable to
Agent and the Lenders as of the Closing Date.


 


W.           USA PATRIOT Act.  If requested by any Lender, any information required
by Section 326 of the USA PATRIOT Act or necessary for Agent or any Lender to
verify the identity of any Credit Party or any Subsidiary of any Credit Party
as required by Section 326 of the USA PATRIOT Act.


 


39