Exhibit 10.1


 


EXECUTION VERSION


 




 


 





AMENDED AND RESTATED


CREDIT AGREEMENT


 


DATED AS OF MAY 4, 2005


 


by and among


 


TRANSACTION NETWORK
SERVICES, INC.


as Borrower


 


and


 


TNS, INC.


as a Credit Party


 


and


 


GENERAL ELECTRIC CAPITAL
CORPORATION


as Agent, L/C Issuer and
a Lender


 


and


 


THE OTHER FINANCIAL
INSTITUTIONS PARTY HERETO


as Lenders


 


 


GECC CAPITAL MARKETS
GROUP, INC.


as Lead Arranger


 




 





 





















 


TABLE OF CONTENTS


 


	
  SECTION 1.

  	
  AMOUNTS AND TERMS OF LOANS

  	
   

  
	
  1.1

  	
  Loans

  	
   

  
	
  1.2

  	
  Interest and
  Applicable Margins

  	
   

  
	
  1.3

  	
  Fees

  	
   

  
	
  1.4

  	
  Payments

  	
   

  
	
  1.5

  	
  Prepayments

  	
   

  
	
  1.6

  	
  Maturity

  	
   

  
	
  1.7

  	
  Loan
  Accounts

  	
   

  
	
  1.8

  	
  Yield Protection;
  Illegality

  	
   

  
	
  1.9

  	
  Taxes

  	
   

  
	
  1.10

  	
  Effect
  of Amendment and Restatement; Closing Date Assignments

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.

  	
  AFFIRMATIVE COVENANTS

  	
   

  
	
  2.1

  	
  Compliance
  With Laws and Contractual Obligations

  	
   

  
	
  2.2

  	
  Insurance

  	
   

  
	
  2.3

  	
  Inspection; Lender Meeting

  	
   

  
	
  2.4

  	
  Organizational Existence

  	
   

  
	
  2.5

  	
  Environmental Matters

  	
   

  
	
  2.6

  	
  Payment of Taxes

  	
   

  
	
  2.7

  	
  Further Assurances

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.

  	
  NEGATIVE COVENANTS

  	
   

  
	
  3.1

  	
  Indebtedness

  	
   

  
	
  3.2

  	
  Liens and Related Matters

  	
   

  
	
  3.3

  	
  Investments

  	
   

  
	
  3.4

  	
  Contingent Obligations

  	
   

  
	
  3.5

  	
  Restricted Payments

  	
   

  
	
  3.6

  	
  Restriction on Fundamental Changes

  	
   

  
	
  3.7

  	
  Disposal of Assets or Subsidiary Stock

  	
   

  
	
  3.8

  	
  Transactions with Affiliates

  	
   

  
	
  3.9

  	
  Compliance with Laws

  	
   

  
	
  3.10

  	
  Conduct of Business

  	
   

  
	
  3.11

  	
  Changes Relating to Indebtedness

  	
   

  
	
  3.12

  	
  Fiscal Year

  	
   

  
	
  3.13

  	
  Press Release; Public Offering Materials

  	
   

  
	
  3.14

  	
  Limitation on Creation of Subsidiaries

  	
   

  
	
  3.15

  	
  Hazardous Materials

  	
   

  
	
  3.16

  	
  ERISA; Foreign Pension Plans

  	
   

  
	
  3.17

  	
  Sale-Leasebacks

  	
   

  
	
  3.18

  	
  Capital Stock

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.

  	
  FINANCIAL COVENANTS/REPORTING

  	
   

  
	
  4.1

  	
  Capital Expenditure Limits

  	
   

  
	
  4.2

  	
  Minimum Fixed Charge Coverage Ratio

  	
   

  
	
  4.3

  	
  Minimum Interest Coverage Ratio

  	
   

  



 


ii





















 


	
  4.4

  	
  Maximum Leverage Ratio

  	
   

  
	
  4.5

  	
  Financial Statements and Other Reports

  	
   

  
	
  4.6

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

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
  5.1

  	
  Disclosure

  	
   

  
	
  5.2

  	
  No Material Adverse Effect

  	
   

  
	
  5.3

  	
  No Conflict

  	
   

  
	
  5.4

  	
  Organization, Powers, Capitalization and Good
  Standing

  	
   

  
	
  5.5

  	
  Financial Statements and Budget

  	
   

  
	
  5.6

  	
  Intellectual Property

  	
   

  
	
  5.7

  	
  Investigations, Audits, Etc

  	
   

  
	
  5.8

  	
  Employee Matters

  	
   

  
	
  5.9

  	
  Solvency

  	
   

  
	
  5.10

  	
  Litigation; Adverse Facts

  	
   

  
	
  5.11

  	
  Use of Proceeds; Margin Regulations

  	
   

  
	
  5.12

  	
  Ownership of Property; Liens

  	
   

  
	
  5.13

  	
  Environmental Matters

  	
   

  
	
  5.14

  	
  ERISA; Foreign Pension Plans

  	
   

  
	
  5.15

  	
  Brokers

  	
   

  
	
  5.16

  	
  Taxes and Tax Returns

  	
   

  
	
  5.17

  	
  Maintenance of Properties; Insurance

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.

  	
  DEFAULT, RIGHTS AND REMEDIES

  	
   

  
	
  6.1

  	
  Event of Default

  	
   

  
	
  6.2

  	
  Suspension
  or Termination of Commitments

  	
   

  
	
  6.3

  	
  Acceleration and
  other Remedies

  	
   

  
	
  6.4

  	
  Performance by Agent

  	
   

  
	
  6.5

  	
  Application of Proceeds

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.

  	
  CONDITIONS TO LOANS

  	
   

  
	
  7.1

  	
  Conditions to Initial
  Loans

  	
   

  
	
  7.2

  	
  Conditions to All Loans

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8.

  	
  ASSIGNMENT
  AND PARTICIPATION

  	
   

  
	
  8.1

  	
  Assignment and Participations

  	
   

  
	
  8.2

  	
  Agent

  	
   

  
	
  8.3

  	
  Set Off and Sharing
  of Payments

  	
   

  
	
  8.4

  	
  Disbursement of Funds

  	
   

  
	
  8.5

  	
  Disbursements
  of Advances; Payment

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9.

  	
  MISCELLANEOUS

  	
   

  
	
  9.1

  	
  Indemnities

  	
   

  
	
  9.2

  	
  Amendments and Waivers

  	
   

  



 


iii





















 


	
  9.3

  	
  Notices

  	
   

  
	
  9.4

  	
  Failure
  or Indulgence Not Waiver; Remedies Cumulative

  	
   

  
	
  9.5

  	
  Marshaling; Payments
  Set Aside

  	
   

  
	
  9.6

  	
  Severability

  	
   

  
	
  9.7

  	
  Lenders’
  Obligations Several; Independent Nature of Lenders’ Rights

  	
   

  
	
  9.8

  	
  Headings

  	
   

  
	
  9.9

  	
  Applicable Law

  	
   

  
	
  9.10

  	
  Successors and Assigns

  	
   

  
	
  9.11

  	
  No
  Fiduciary Relationship; Limited Liability

  	
   

  
	
  9.12

  	
  Construction

  	
   

  
	
  9.13

  	
  Confidentiality

  	
   

  
	
  9.14

  	
  CONSENT TO JURISDICTION

  	
   

  
	
  9.15

  	
  WAIVER OF JURY TRIAL

  	
   

  
	
  9.16

  	
  Survival
  of Warranties and Certain Agreements

  	
   

  
	
  9.17

  	
  Entire Agreement

  	
   

  
	
  9.18

  	
  Counterparts;
  Effectiveness

  	
   

  
	
  9.19

  	
  Replacement of Lenders

  	
   

  
	
  9.20

  	
  Delivery
  of Termination Statements and Mortgage Releases

  	
   

  
	
  9.21

  	
  Subordination
  of Intercompany Debt

  	
   

  



 


iv





















 


INDEX OF APPENDICES


Annexes


 


	
  Annex A

  	
  -

  	
  Definitions

  
	
  Annex B

  	
  -

  	
  Pro Rata Shares and Commitment Amounts

  
	
  Annex C

  	
  -

  	
  Schedule of Additional Closing Documents

  
	
  Annex D

  	
  -

  	
  Pro Forma

  
	
  Annex E

  	
  -

  	
  Lenders’ Bank Accounts

  
	
  Annex F

  	
  -

  	
  Compliance, Pricing and Excess Cash Flow Certificate

  
	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit 1.1(a)

  	
  -

  	
  Term Note

  
	
  Exhibit 1.1(b)(i)

  	
  -

  	
  Revolving Note

  
	
  Exhibit 1.1(b)(ii)

  	
  -

  	
  Notice of Revolving Credit Advance

  
	
  Exhibit 1.1(c)

  	
  -

  	
  Swing Line Note

  
	
  Exhibit 1.1(d)

  	
  -

  	
  Request for Letter of Credit Issuance

  
	
  Exhibit 1.2(e)

  	
  -

  	
  Notice of Continuation/Conversion

  
	
  Exhibit 8.1

  	
  -

  	
  Assignment Agreement

  
	
   

  	
   

  	
   

  
	
  Schedules

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1.1(d)

  	
  -

  	
  Existing Letters of Credit

  
	
  Schedule 3.1(c)

  	
  -

  	
  Indebtedness

  
	
  Schedule 3.2

  	
  -

  	
  Liens

  
	
  Schedule 3.3

  	
  -

  	
  Investments

  
	
  Schedule 3.4

  	
  -

  	
  Contingent Obligations

  
	
  Schedule 3.8

  	
  -

  	
  Affiliate Transactions

  
	
  Schedule 5.4(a)

  	
  -

  	
  Jurisdictions of Organization and Qualifications

  
	
  Schedule 5.4(b)

  	
  -

  	
  Capitalization

  
	
  Schedule 5.6

  	
  -

  	
  Intellectual Property

  
	
  Schedule 5.7

  	
  -

  	
  Investigations and Audits

  
	
  Schedule 5.8

  	
  -

  	
  Employee Matters

  
	
  Schedule 5.10

  	
  -

  	
  Litigation

  
	
  Schedule 5.11

  	
  -

  	
  Use of Proceeds

  
	
  Schedule 5.12

  	
  -

  	
  Real Estate

  
	
  Schedule 5.13

  	
  -

  	
  Environmental Matters

  
	
  Schedule 5.14

  	
  -

  	
  ERISA

  
	
  Schedule 5.17

  	
  -

  	
  Insurance

  



 


v





















 


AMENDED AND RESTATED
CREDIT AGREEMENT


 


This AMENDED AND RESTATED CREDIT AGREEMENT is dated as of May 4, 2005
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,
and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation (in its individual capacity “GE Capital”), as the
initial L/C Issuer and as Agent.


 


R E C
I T A L S:


 


WHEREAS, the parties hereto are parties to a Credit Agreement dated as
of March 19, 2004 (as amended, supplemented or otherwise modified, the “Existing
Credit Agreement”); and


 


WHEREAS, Borrower has requested that Lenders amend and restate the
Existing Credit Agreement to (i) make incremental term loans to Borrower under
this Agreement to refinance the outstanding term loans under the Existing
Credit Agreement and to fund the Share Repurchase and pay certain expenses in
connection therewith and herewith and (ii) provide revolving credit facilities
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; 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 is willing to continue 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.    Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of Holdings
and Borrower contained herein:


 


(a)           Term
Loan.  Each Term Lender, severally
and not jointly, shall (i) exchange term loans outstanding to Borrower under
the Existing Credit Agreement in an amount equal to its Pro Rata Share (after
giving effect to the assignments in Section 1.10 hereof) of $48,000,000
for a new term loan hereunder in a like amount and (ii) make an additional term
loan to Borrower in one draw in an amount equal to its Pro Rata Share (after
giving effect to the assignments in Section 1.10 hereof) of $117,000,000
(loans pursuant to the foregoing clauses (i) and (ii) collectively, the “Term
Loan”).  The aggregate principal
balance of the Term Loan hereunder immediately after the Closing Date,
including all term loans under the Existing Credit Agreement which are
exchanged for term loans hereunder, shall equal $165,000,000.  Borrower shall repay the Term Loan through
periodic payments on the dates and in the amounts indicated below (“Scheduled
Installments”).


 




	
  Date

  	
   

  	
  Scheduled Installment

  
	
  June 1, 2005

  	
   

  	
  $

  	
  412,500

  
	
  September 1, 2005

  	
   

  	
  $

  	
  412,500

  
	
  December 1, 2005

  	
   

  	
  $

  	
  412,500

  
	
  March 1, 2006

  	
   

  	
  $

  	
  412,500

  
	
  June 1, 2006

  	
   

  	
  $

  	
  412,500

  
	
  September 1, 2006

  	
   

  	
  $

  	
  412,500

  
	
  December 1, 2006

  	
   

  	
  $

  	
  412,500

  
	
  March 1, 2007

  	
   

  	
  $

  	
  412,500

  
	
  June 1, 2007

  	
   

  	
  $

  	
  412,500

  
	
  September 1, 2007

  	
   

  	
  $

  	
  412,500

  
	
  December 1, 2007

  	
   

  	
  $

  	
  412,500

  
	
  March 1, 2008

  	
   

  	
  $

  	
  412,500

  
	
  June 1, 2008

  	
   

  	
  $

  	
  412,500

  
	
  September 1, 2008

  	
   

  	
  $

  	
  412,500

  
	
  December 1, 2008

  	
   

  	
  $

  	
  412,500

  
	
  March 1, 2009

  	
   

  	
  $

  	
  412,500

  
	
  June 1, 2009

  	
   

  	
  $

  	
  412,500

  
	
  September 1, 2009

  	
   

  	
  $

  	
  412,500

  
	
  December 1, 2009

  	
   

  	
  $

  	
  412,500

  
	
  March 1, 2010

  	
   

  	
  $

  	
  412,500

  
	
  June 1, 2010

  	
   

  	
  $

  	
  412,500

  
	
  September 1, 2010

  	
   

  	
  $

  	
  412,500

  
	
  December 1, 2010

  	
   

  	
  $

  	
  412,500

  
	
  March 1, 2011

  	
   

  	
  $

  	
  412,500

  
	
  June 1, 2011

  	
   

  	
  $

  	
  412,500

  
	
  September 1, 2011

  	
   

  	
  $

  	
  412,500

  
	
  December 1, 2011

  	
   

  	
  $

  	
  412,500

  
	
  March 1, 2012

  	
   

  	
  $

  	
  412,500

  
	
  May 4, 2012

  	
   

  	
  $

  	
  153,450,000

  






 


2





















 


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


 


The 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 a “Term Note” and, collectively, the
“Term Notes”), and, except as provided in Section 1.7, Borrower
shall execute and deliver each Term Note to the applicable Term Lender.  Each Term Note shall represent the obligation
of Borrower to pay the amount of the applicable Term Lender’s Term Loan
Commitment, together with interest thereon.


 


(b)           Revolving
Loans.


 


(i)            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, dated the Closing Date and 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 with one (1)
Business Day prior written notice required for funding requests equal to or
greater than $5,000,000.  For funding
requests for such Loans less than $5,000,000, written notice must be provided
by 2:00 p.m. (New York time) on the Business Day on which the Loan is to be made.  All LIBOR Loans require three (3) Business
Days prior written notice. 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, 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.


 


3





















 


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


 


4





















 


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


 


(v)           Each
Revolving Lender’s obligation to make Revolving Credit Advances in accordance
with Section 1.1(c)(iii) and to purchase participation interests in
accordance with Section 1.1(c)(iv) shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right that such Revolving Lender may
have against the Swing Line Lender, Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of any Default or Event of
Default; (C) any inability of Borrower to satisfy the conditions precedent
to borrowing set forth in this Agreement at any time or (D) any other
circumstance, happening or event whatsoever, 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, on demand, 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.  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.  Immediately upon the issuance by an L/C
Issuer of a Letter of Credit, and without further action on the part of Agent
or any of the Lenders, each Revolving Lender shall be deemed to have purchased
from such L/C Issuer a participation in such Letter of Credit (or in its obligation
under a risk participation agreement with respect thereto) equal to such
Revolving Lender’s Pro Rata Share of the aggregate amount available to be drawn
under such Letter of Credit.


 


(i)            Maximum
Amount.  The aggregate amount of
Letter of Credit Obligations with respect to all Letters of Credit outstanding
or unreimbursed at any time shall not exceed $3,000,000 (“L/C Sublimit”).


 


(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


 


5





















 


(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.


 


(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
the Master Standby Agreement 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


 


6





















 


Agreement, then the provisions of this Agreement, to the
extent of such inconsistency, shall control.


 


(iv)          Expiration
Dates of Letters of Credit.  The
expiration date of each Letter of Credit shall be on a date which is not later
than the earlier of (a) one year from its date of issuance or (b) the
thirtieth (30th) day prior to the date set forth in clause (a)
of the definition of the term Commitment Termination Date. Notwithstanding the
foregoing, a Letter of Credit may provide for automatic extensions of its
expiration date for one (1) or more successive one (1) year periods provided
that the L/C Issuer has the right to terminate such Letter of Credit on each
such annual expiration date and no renewal term may extend the term of the
Letter of Credit to a date that is later than the thirtieth (30th) day prior to
the date set forth in clause (a) of the definition of the term Commitment
Termination Date.  The L/C Issuer may
elect not to renew any such Letter of Credit and, upon direction by Requisite
Revolving Lenders, shall not renew any such Letter of Credit at any time during
the continuance of an Event of Default, provided that, in the case of a
direction by Requisite Revolving Lenders, the L/C Issuer receives such
directions prior to the date notice of non-renewal is required to be given by
the L/C Issuer and the L/C Issuer has had a reasonable period of time to act on
such notice.


 


(v)           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)(v), 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.  However, the foregoing shall not be construed
to excuse an L/C Issuer from liability to Borrower to the extent of any direct
damages (as opposed to consequential damages, with Borrower hereby waiving all
claims for any consequential damages to the extent permitted by applicable law)
suffered by Borrower that are subject to indemnification under the Master
Standby Agreement.


 


7





















 


(vi)          Obligations
of L/C Issuers.  Each L/C Issuer
(other than GE Capital) hereby agrees that it will not issue a Letter of Credit
hereunder until it has provided Agent with written notice specifying the amount
and intended issuance date of such Letter of Credit and Agent has returned a written
acknowledgment of such notice to L/C Issuer. 
Each L/C Issuer (other than GE Capital) further agrees to provide to
Agent:  (a) a copy of each Letter of
Credit issued by such L/C Issuer promptly after its issuance; (b) a weekly
report summarizing available amounts under Letters of Credit issued by such L/C
Issuer, the dates and amounts of any draws under such Letters of Credit, the
effective date of any increase or decrease in the face amount of any Letters of
Credit during such week and the amount of any unreimbursed draws under such
Letters of Credit; and (c) such additional information reasonably
requested by Agent from time to time with respect to the Letters of Credit
issued by such L/C Issuer.


 


(vii)         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) and (d)(v), shall
be deemed to be Letters of Credit governed by the terms and conditions of this
Agreement and for purposes of Section 1.3(c) hereof.


 


(e)           Funding
Authorization.  The proceeds of all
Loans made pursuant to this Agreement 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.:

  	
  500-431622-8

  
	
  Reference:

  	
  To the account of Transaction Network Services, Inc.

  



 


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


 


1.2           Interest and Applicable Margins.


 


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


 


8





















 


respect to such portion of the Term Loan designated
as an Index Rate Loan, the Index Rate plus the Applicable Term Loan Index
Margin per annum or, with respect to such portion of the Term Loan designated as
a LIBOR Loan, the applicable LIBOR Rate plus the Applicable Term Loan LIBOR
Margin per annum; and (iii) with respect to the Swing Line Loan, the Index
Rate plus the Applicable Revolver Index Margin per annum.


 


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


 


	
  Applicable Revolver Index Margin

  	
   

  	
  1.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Applicable Revolver LIBOR Margin

  	
   

  	
  2.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Applicable Term Loan Index Margin

  	
   

  	
  1.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Applicable Term Loan LIBOR Margin

  	
   

  	
  2.00

  	
  %

  



 


The Applicable Margins shall be adjusted (up
or down) prospectively on a quarterly basis as determined by Holdings’ and its
Subsidiaries’ consolidated financial performance, commencing with the first day
of the first calendar month that occurs more than one (1) day after delivery of
Borrower’s quarterly Financial Statements to Agent for the Fiscal Quarter
ending June 30, 2005.  Adjustments in
Applicable Margins will be determined by reference to the following grids:


 


	
  If Leverage Ratio is:

  	
   

  	
  Level of

  Applicable Margins:

  	
   

  
	
  < 1.75

  	
   

  	
  Level I

  	
   

  
	
  > 1.75

  	
   

  	
  Level II

  	
   

  



 


	
   

  	
   

  	
  Applicable Margins

  	
   

  
	
   

  	
   

  	
  Level I

  	
   

  	
  Level II

  	
   

  
	
  Applicable
  Revolver Index Margin

  	
   

  	
  0.75

  	
  %

  	
  1.00

  	
  %

  
	
  Applicable
  Revolver LIBOR Margin

  	
   

  	
  1.75

  	
  %

  	
  2.00

  	
  %

  
	
  Applicable Term
  Loan Index Margin

  	
   

  	
  0.75

  	
  %

  	
  1.00

  	
  %

  
	
  Applicable Term
  Loan LIBOR Margin

  	
   

  	
  1.75

  	
  %

  	
  2.00

  	
  %

  



 


All adjustments in the Applicable Margins
after June 30, 2005 shall be implemented quarterly on a prospective basis, for
each calendar quarter commencing at least one (1) day after the date of
delivery to Agent of the quarterly unaudited Financial Statements evidencing
the need for an adjustment.  Concurrently
with the delivery of those Financial Statements, Borrower shall deliver to
Agent a certificate, signed by its chief financial officer or other officer
acceptable to Agent, setting forth in reasonable detail the basis for the
continuance


 


9





















 


of, or any change in, the
Applicable Margins.  Failure to timely
deliver such Financial Statements shall, in addition to any other remedy
provided for in this Agreement, result in an increase in the Applicable Margins
to the highest level set forth in the foregoing grid, until the first day
following the delivery of those Financial Statements demonstrating that such an
increase is not required.  If any Event
of Default has occurred and is continuing at the time any reduction in the
Applicable Margins is to be implemented, that reduction shall be deferred until
the first day following the date on which all Events of Default are waived or
cured.


 


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


 


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


 


(d)           So
long as (i) an Event of Default has occurred and is continuing under Section
6.1(a), (f) or (g) and without notice of any kind, or (ii) any Event of
Default that resulted from a breach of a covenant contained in Section 4
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


 


10





















 


succeeding LIBOR Period of that continued Loan shall commence
on the first day after the last day of the LIBOR Period of the Loan to be
continued.  Any Loan or group of Loans
having the same proposed LIBOR Period to be made or continued as, or converted
into, a LIBOR Loan must be in a minimum amount of $5,000,000 and integral
multiples of $100,000 in excess
of such amount.  Any such election must
be made by 1:00 p.m. (New York time)
on the 3rd Business Day prior to (1) the date of any proposed Revolving
Credit Advance which is to bear interest at the LIBOR Rate, (2) the end of
each LIBOR Period with respect to any LIBOR Loans to be continued as such, or
(3) the date on which Borrower wishes to convert any Index Rate Loan to a
LIBOR Loan for a LIBOR Period designated by Borrower in such election.  If no election is received with respect to a
LIBOR Loan by 1:00 p.m. (New York time)
on the 3rd Business Day prior to the end of the LIBOR Period with respect
thereto, that LIBOR Loan shall be converted to an Index Rate Loan at the end of
its LIBOR Period.  Borrower must make
such election by notice to Agent in writing, by fax or overnight courier or
based on telephonic instructions of Borrower (which instructions shall be
promptly confirmed in writing by Borrower). 
In the case of any conversion or continuation, such election must be
made pursuant to a written notice (a “Notice of Conversion/Continuation”)
in the form of Exhibit 1.2(e).  No
Loan shall be made, converted into or continued as a LIBOR Loan, if an Event of
Default has occurred and is continuing and Requisite Lenders have determined
not to make or continue any Loan as a LIBOR Loan as a result thereof.  No
Loan may be made as or converted into a LIBOR Loan until the earlier of
(i)  45 days after the Closing Date or (ii) completion of primary
syndication as determined by Agent (the “Syndication Period”).  Notwithstanding the foregoing, at any time
prior to the end of the Syndication Period, Borrower shall have the option to
request in accordance with this Section 1.2(e) that any Revolving Credit
Advance or any Term Loan be made or continued as a LIBOR Loan having a 14 day
or one month LIBOR Period (but not a two, three or six month LIBOR Period); provided
that only two (2) such LIBOR Periods may exist at any time for all Revolving
Credit Advances and only two (2) such LIBOR Periods may exist at any time for
the Term Loan.


 


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


 


11





















 


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(f), 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(d) 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 GE Capital,
individually, the Fees specified in that certain fee letter dated as of April 4, 2005 among
Holdings, Borrower and GE
Capital (the “GE Capital 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 in an amount equal to the
Applicable Unused Line Fee per annum multiplied by the difference between
(x) the Maximum Amount (as it may be reduced from time to time) and
(y) the average for the period of the daily closing balances of the
Revolving Loan and the Swing Line Loan outstanding during the period for which
such Fee is due.  As of the Closing Date,
the Applicable Unused Line Fee is 0.50%. 
The Applicable Unused Line Fee
shall be adjusted (up or down) prospectively on a quarterly basis as determined
by Holdings’ and its Subsidiaries’ consolidated financial performance,
commencing with the first day of the first calendar month that occurs more than
one (1) day after delivery of Borrower’s quarterly Financial Statements to
Agent for the Fiscal Quarter ending June 30, 2005.  Adjustments in Applicable Margins will be
determined by reference to the following grids:


 


	
  If Leverage Ratio is:

  	
   

  	
  Level of

  Applicable Margins:

  	
   

  
	
  < 1.5

  	
   

  	
  Level I

  	
   

  
	
  > 1.5

  	
   

  	
  Level II

  	
   

  



 


	
   

  	
   

  	
  Level I

  	
   

  	
  Level II

  	
   

  
	
  Applicable
  Unused Line Fee

  	
   

  	
  0.375

  	
  %

  	
  0.50

  	
  %

  



 


All adjustments in the Applicable Unused Line Fee after June 30, 2005
shall be implemented quarterly on a prospective basis, for each calendar
quarter commencing at least one (1) day after the date of delivery to Agent of
the quarterly unaudited Financial Statements evidencing the need for an
adjustment.  Concurrently with the
delivery of those Financial Statements, Borrower shall deliver to Agent a
certificate, signed by its chief financial officer or another officer
acceptable to Agent, setting forth in reasonable detail the basis for the
continuance of, or any change in, the Applicable Unused Line Fee.  Failure to timely deliver such Financial
Statements shall, in addition to any other remedy provided for in this
Agreement,


 


12





















 


result in an increase in the Applicable Unused Line
Fee to the highest level set forth in the foregoing grid, until the first day
following the delivery of those Financial Statements demonstrating that such an
increase is not required.  If any Event
of Default has occurred and is continuing at the time any reduction in the
Applicable Unused Line Fee 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 Fee.  Borrower agrees to
pay to Agent for the benefit of Revolving Lenders, as compensation to such
Revolving Lenders for Letter of Credit Obligations incurred hereunder,
(i) 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 (ii) 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 fee shall be paid to Agent for the
benefit of the Revolving Lenders in arrears, on the first Business Day of each
Fiscal Quarter and on the Commitment Termination Date.  In addition, Borrower shall pay to any L/C
Issuer, on demand, such fees (including all per annum fees), charges and
expenses of such L/C Issuer in respect of the issuance, negotiation,
acceptance, amendment, transfer and payment of such Letter of Credit or otherwise
payable pursuant to the application and related documentation under which such
Letter of Credit is issued.


 


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


 


(e)           Expenses and
Attorneys Fees.  Borrower agrees to
promptly pay all reasonable out-of-pocket fees, charges, costs and expenses
(including reasonable attorneys’ fees and expenses) incurred by Agent in
connection with any matters contemplated by or arising out of the Loan
Documents, in connection with the examination, review, due diligence
investigation, documentation, negotiation, closing and syndication of the
transactions contemplated herein and in connection with the continued
administration of the Loan Documents including any amendments, modifications,
consents and waivers.  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
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


 


13





















 


attorney fees for one (1) counsel acting for all
Lenders other than 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 final sentence of Section 1.4 and
secured by the Collateral.


 


1.4           Payments.  All payments by Borrower of the Obliga­tions
shall be without deduction, defense, setoff or counterclaim and shall be made
in 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.


 


ABA No. 021-001-033


Account Number 502-328-54


Deutsche Bank Trust Company Americas


New York, New York


ACCOUNT NAME: GECC/CAF DEPOSITORY


Reference:  GE
Capital re Transaction Network Services, Inc.


 


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


 


Borrower hereby authorizes Lenders to 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(e) or
6.3.


 


1.5           Prepayments.


 


(a)           Voluntary
Prepayments of Loans.  At any time,
Borrower may prepay the Loans, in whole or in part, without premium or penalty
subject to the payment of LIBOR Breakage
Fees, if applicable.  Prepayments of the
Term Loan under this Section 1.5(a) shall be applied (i) first, pro rata to Scheduled Installments of
the Term Loan due within the next succeeding twelve month period until paid in
full and (ii) second, pro rata to the remaining Scheduled Installments
of the Term Loan (or as otherwise may be agreed by Requisite Lenders).


 


(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 4.5(l) for such Fiscal Year),
commencing with the Fiscal Year ended December 31, 2005, within five (5)
Business Days after such certificate is required to be delivered, Borrower
shall prepay the Loans in an


 


14





















 


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 to the Term
Loan in the inverse order of maturity of the Scheduled Installments.


 


(c)           Prepayments
from Asset Dispositions.  Immediately
upon receipt of any Net Proceeds from an Asset Disposition in excess of
$2,000,000 for any single transaction
or series of related transactions during any Fiscal Year, Borrower shall
repay the outstanding principal balance
of the Revolving Credit Advances (such repayments shall not effect a permanent
reduction of the Revolving Loan Commitment) by an amount equal to the
lesser of (i) the outstanding principal amount of the Revolving Credit Advances
and (ii) the amount of such Net
Proceeds.  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 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 the Borrower or its Subsidiaries, two hundred
seventy (270) days) in productive fixed assets of a kind then used or usable in
the business of Borrower or its Subsidiaries. 
If Borrower does not intend to so reinvest such Net Proceeds or if the
applicable period set forth in the immediately preceding sentence expires
without Borrower having reinvested such Net Proceeds, Borrower shall prepay the
Term Loan in an amount equal to such remaining Net Proceeds applied to the
remaining Scheduled Installments of the Term Loan in inverse order of maturity.


 


(d)           Prepayments
from Issuance of Stock.  Immediately
upon the receipt by Holdings, Borrower or any of its Subsidiaries of any cash
proceeds of the sale or issuance of Stock, Borrower shall prepay the Loans in
an amount equal to such cash proceeds, net of underwriting discounts and
commissions and other reasonable out-of-pocket costs associated therewith.  Notwithstanding the foregoing, the following
proceeds of Stock issuance shall be excluded from any mandatory prepayment: (i)
proceeds of issuances of Stock of Holdings to management or other employees of
Holdings, Borrower or any of Borrower’s Subsidiaries, (ii) proceeds of
issuances of Stock by any Subsidiary of Borrower to Borrower which constitutes
an Investment permitted hereunder, and (iii) so long as no Event of Default has
occurred and is continuing at the time of such issuance, proceeds of sales or
issuances of Stock by Holdings to the extent Holdings delivers an officer’s
certificate to Agent on or prior to the date of such issuance stating that the
net proceeds therefrom shall be used for a Permitted Acquisition within 45 days
following the date of such issuance (which certificate shall set forth the
estimates of the proceeds to be so expended); provided, that if all or any
portion of such proceeds are not so used within such 45 day period, such
remaining portion shall be applied as a prepayment pursuant to this Section
1.5(d), in each case.  Payments under
this Section 1.5(d) shall be applied to the Term Loan in the inverse
order of maturity of the Scheduled Installments.


 


(e)           Prepayment
if Share Repurchase Not Consummated. 
In the event that Holdings has not made payment under the Share
Repurchase for substantially all shares of


 


15





















 


Holdings Common Stock accepted for payment on or prior to the
Closing Date on or before May 31, 2005, Borrower shall prepay the Term Loan in
an amount equal to the amount set forth in Section 1.1(a)(ii) hereof.  Payments under this Section 1.5(e) shall be
applied to the Scheduled Installments of the Term Loans on a pro rata basis. 


 


(f)            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.


 


(g)           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.  All of the Obligations shall become due and
payable as otherwise set forth herein, but in any event all of the remaining
Obligations shall become due and payable upon the Termination 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 them
under the Loan Documents and applicable laws. 
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.  Agent shall maintain a
loan account (the “Loan Account”) on its books to record:  the name and federal employer identification
number of each Lender, all Advances and the Term Loan, all payments made by Borrower,
and all other debits and credits as provided in this Agreement with respect to
the Loans or any other Obligations.  All
entries in the Loan Account shall be made in accordance with Agent’s customary
accounting practices as in effect from time to time.  The balance in the Loan Account, as recorded
on Agent’s most recent printout or other written statement, shall, absent
manifest error, be presumptive evidence of the amounts due and owing to Agent
and Lenders by Borrower; provided that any failure to so record or any
error in so recording shall not limit or otherwise affect Borrower’s duty to
pay the Obligations.  Agent shall render
to Borrower a monthly accounting of transactions with respect to the Loans
setting forth the balance of the Loan Account 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,
each and every such accounting shall, absent manifest error, be deemed final,
binding and conclusive on Borrower in all respects as to all matters reflected
therein.  Only those items expressly
objected to in such notice shall be deemed to be disputed by Borrower.  Notwithstanding any provision herein
contained to the contrary, any Lender may elect (which election may be revoked)
to dispense with the issuance of Notes to that Lender and may rely on the Loan
Account as evidence of the amount of Obligations from time to time owing to it.


 


16





















 


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


 


(b)           Increased
LIBOR Funding Costs; Illegality. 
Notwithstanding anything to the contrary contained herein, if the
introduction of or any change in any law, rule, regulation, treaty or directive
(or any change in the interpretation thereof) shall make it unlawful, or any
central bank or other Governmental Authority shall assert that it is unlawful,
for any Lender to agree to make or to make or to continue to fund or maintain
any LIBOR Loan, then, unless that Lender is able to make or to continue to fund
or to maintain such LIBOR Loan at another branch or office of that Lender
without, in that Lender’s opinion, adversely affecting it or its Loans or the
income obtained therefrom, on notice thereof and demand therefor by such Lender
to Borrower through Agent, (i) the obligation of such Lender to agree to
make or to make or to continue to fund or maintain LIBOR Loans shall terminate
and (ii) Borrower shall forthwith prepay in full all outstanding LIBOR
Loans owing to such Lender, together with interest accrued thereon, unless
Borrower, within five (5) Business Days after the delivery of such notice and
demand, converts all LIBOR Loans into Index Rate Loans. If, after the date
hereof, the introduction of, change in or interpretation of any law, rule,
regulation, treaty or directive would impose or increase reserve requirements
(other than as taken into account in the definition of LIBOR) and the result of
any of the foregoing is to increase the cost to Agent or any such Lender of
issuing any Letter of Credit or making or continuing any Loan hereunder, as the
case may be, or to reduce any amount receivable hereunder by such Agent or
Lender, then Borrower shall from time to time within fifteen (15) days after
notice and demand from Agent (together with the certificate referred to in the
next sentence) pay to Agent, for itself or for the account of all such affected
Lenders, as applicable, additional amounts sufficient to compensate the 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


 


17





















 


affected Lenders to Borrower shall, absent manifest error, be
final, conclusive and binding for all purposes.


 


1.9           Taxes.


 


(a)           No
Deductions.  Any and all payments or
reimbursements made hereunder or under any other Loan Document shall be made
free and clear of and without deduction for, and Borrower agrees to indemnify
Agent and each Lender against, any and all Charges, taxes, levies, imposts,
deductions or withholdings, and all liabilities with respect thereto of any
nature whatsoever imposed by any taxing authority, excluding such taxes to the
extent imposed on Agent’s or a Lender’s net income by the United States or by
the jurisdiction in which Agent or such Lender is organized or otherwise
conducts business.  If Borrower shall be
required by law to deduct any such amounts from or in respect of any sum
payable hereunder to any Lender or Agent, then the sum payable hereunder shall
be increased as may be necessary so that, after making all required deductions,
such Lender or Agent receives an amount equal to the sum it would have received
had no such deductions been made.


 


(b)           Changes
in Tax Laws.  In the event that,
subsequent 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 such 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


 


18





















 


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 and within fifteen (15) days after a reasonable written
request of Borrower or Agent 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, if it is legally entitled to,
a properly completed and executed IRS Form W-8BEN or Form W-8ECI or
other applicable form, certifi­cate or document prescribed by the IRS of the
United States certifying as to such Foreign Lender’s entitlement to such
exemption with respect to payments to be made to such Foreign Lender under this
Agreement and under the Notes (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.


 


1.10         Effect
of Amendment and Restatement; Closing Date Assignments.


 


(a)           This
Agreement amends and restates in its entirety the Existing Credit Agreement
and, upon effectiveness of this Agreement, the terms and provisions of the
Existing Credit Agreement shall, subject to this Section 1.10, be
superseded hereby.  All references to “Credit
Agreement” contained in the Loan Documents delivered in connection with the
Existing Credit Agreement shall be deemed to refer to this Agreement.  Notwithstanding the amendment and restatement
of the Existing Credit Agreement by this Agreement, the Obligations outstanding
under the Existing Credit Agreement as of the Closing Date shall remain
outstanding and constitute continuing Obligations hereunder and shall continue
to be secured by the Collateral securing such Obligations under the Existing
Credit Agreement.  Such outstanding
Obligations and the Liens securing payment thereof shall in all respects be
continuing, and this Agreement shall not be deemed to evidence or result in a
novation or repayment and re-borrowing of such Obligations.  In furtherance of and without limiting the
foregoing, from and after the date hereof and except as expressly specified
herein, the terms, conditions, and covenants governing the Obligations
outstanding under the Existing Credit Agreement shall be solely as set forth in
this Agreement, which shall supersede the Existing Credit Agreement in its
entirety.


 


(b)           On
and as of the Closing Date, each of the Departing Lenders, Continuing Lenders
and Additional Lenders shall sell, assign and transfer, or purchase and assume,
as the case may be, such interests in (i) the Commitments (as defined in the
Existing Credit Agreement, the “Existing Commitments”), (ii) the Loans
(as defined in the Existing Credit Agreement, the “Existing Loans”) and
(iii) the participations in the Letters of Credit (as defined in the Existing
Credit Agreement, the “Existing Letters of Credit”), in each case,
outstanding immediately prior


 


19





















 


to the Closing Date, as shall be necessary in order that,
after giving effect to all such assignments and purchases, the Existing
Commitments, the Existing Loans and the participations in the Existing Letters
of Credit will be held by the Continuing Lenders and Additional Lenders as set
forth on Annex B hereto (or, in the case of the Existing Letters of
Credit, ratably in accordance with the Revolving Loan Commitments set forth in
such Schedule). Each Additional Lender and Continuing Lender purchasing
interests of any type under this Section 1.10(b) shall be deemed to have
purchased such interests from each Departing Lender and Continuing Lender
selling interests of such type ratably in accordance with the amounts of such interests
sold by such Departing Lenders and Continuing Lenders.  The purchase price for each such assignment
and purchase shall equal the principal amount of the Loans purchased.
Concurrently with the effectiveness of the assignments and purchases provided
for above, the Departing Lenders shall cease to be parties to the Existing
Credit Agreement and shall be released from all further obligations thereunder
and shall have no further rights to or interest in any of the Collateral (as
defined in the Existing Credit Agreement); provided, however,
that the Departing Lenders shall continue to be entitled to the benefits of Sections
1.8, 1.9 and 9.1 of the Existing Credit Agreement as in
effect immediately prior to the Closing Date. 
Any Departing Lender that shall not have executed a consent to this
Agreement as of the date hereof shall, in accordance with the provisions of Section
9.19 of the Existing Credit Agreement, (i) be deemed to have assigned and
transferred its interests in the Commitments, Loans and participations in
Letters of Credit, as applicable, as set forth above in this Section 1.10(b)
and cease to be a Lender under the Existing Credit Agreement and (ii) have no
further right to any benefits under the Existing Credit Agreement to which it
would previously have been entitled (including, without limitation, any
benefits pursuant to Sections 1.8, 1.9 and 9.1 of the
Existing Credit Agreement).


 


(c)           On
the Closing Date, (i) each Additional Lender and Continuing Lender that is
purchasing interests in the Existing Loans and Existing Commitments pursuant to
paragraph (b) above shall pay the purchase price for the interests purchased by
it pursuant to such paragraph (b) by wire transfer of immediately available
funds to Agent in New York, New York, not later than 12:00 (noon), New York
City time, and (ii) Agent shall pay to each Departing Lender and Continuing
Lender that is assigning interests in Existing Loans and Existing Commitments
pursuant to paragraph (b) above, out of the amounts received by Agent from each
Additional Lender and Continuing Lender pursuant to clause (i) of this
paragraph (c), the purchase price for the interests assigned by it pursuant to
such paragraph (b) by wire transfer of immediately available funds not later
than 3:00 p.m., New York City time.


 


(d)           Each
of the parties hereto hereby consents to the assignments and purchases provided
for in paragraphs (b) and (c) above and agrees that (i) each Additional Lender
and Continuing Lender that is purchasing or accepting interests in the Existing
Commitments, the Existing Loans or the Existing Letters of Credit pursuant to
paragraph (b) above are assignees of the Departing Lenders and certain
Continuing Lenders permitted under Section 8.1(a) of
the Existing Credit Agreement and (ii) each Additional Lender and each
Continuing Lender shall have all the rights and obligations of a Lender under
this Agreement with respect to the interests purchased by it pursuant to such
paragraphs.


 


20





















 


(e)           Each
of the parties hereto represents and warrants that it is legally authorized to
enter into and deliver this Agreement and that this Agreement constitutes the
legal, valid and binding obligation of such Person.  Each Continuing Lender and each Departing
Lender that consents to this Agreement represents and warrants that it is the
legal and beneficial owner of such rights and obligations that it is assigning
pursuant to this Section 1.10, free and clear of any adverse claim
created by it.  Except as set forth in
the preceding sentence, no Continuing Lender or Departing Lender makes any
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made pursuant to or in connection
with this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Existing Credit Agreement or any other
Loan Document (as defined in the Existing Credit Agreement) or any other
instrument or document furnished pursuant hereto or thereto, including the
financial condition of Borrower or any of Borrower’s Subsidiaries or the
performance or observance by any Credit Party or any Lender of any of its
obligations under the Existing Credit Agreement, any other Loan Document (as
defined in the Existing Credit Agreement) or any other instrument or document
furnished pursuant hereto or thereto. 
Each Continuing Lender and each Additional Lender confirms and agrees
that in becoming a Lender and in making its Commitments and Loans under this
Agreement, such actions have and will be made without recourse to, or
representation or warranty by, Agent.


 


(f)            Agent
hereby agrees to waive receipt of the payment of processing fees that would
otherwise be payable pursuant to Section 8.1 of the Existing Credit
Agreement in respect of the assignments effected under this Section 1.10.


 


(g)           Notwithstanding
the provisions of Sections 1.2 and 1.3 of the Existing Credit
Agreement, all accrued and unpaid interest and Unused Line Fees (as defined in
the Existing Credit Agreement) shall be due and payable on the Closing Date.


 


SECTION
2.


AFFIRMATIVE COVENANTS


 


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


 


2.1           Compliance
With Laws and Contractual Obligations. 
Holdings and Borrower will, and will cause each of its 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 or any of its 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
or any of its 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 or any of its Subsidiaries, for


 


21





















 


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 or its
Subsidiaries from contesting any taxes or other payments, if they are being
diligently contested in good faith in a manner which stays enforcement thereof
and if appropriate expense provisions have been recorded in conformity with
GAAP, subject to Section 3.2 and 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.


 


2.3           Inspection;
Lender Meeting.  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. 
Representatives of each Lender will be permitted to accompany
representatives of Agent during each visit, inspection and discussion


 


22





















 


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.


 


2.4           Organizational
Existence.  Except as otherwise
permitted by Section 3.6, each of Borrower and Holdings will, and 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 $500,000;
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 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 $500,000, 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 has 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


 


23





















 


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 its Domestic Subsidiaries acquires a fee interest
in real property after the Closing Date, 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.


 


(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 the benefit of Agent and Lenders, all of the Stock of each Domestic
Subsidiary of the Borrower and the Stock of any Foreign Subsidiary of the
Borrower, 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 so long as the pledge of a greater percentage of Stock
would result in adverse tax consequences to Borrower in the reasonable
determination of Borrower after consultation with Agent; provided, 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


 


24





















 


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.


 


SECTION 3.


NEGATIVE COVENANTS


 


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


 


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


 


(a)           the
Obligations;


 


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


 


(c)           Indebtedness
of Borrower and its Subsidiaries outstanding on the 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


 


25





















 


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 $5,000,000 at any time
outstanding (the “Purchase Money Basket”);


 


(f)            Contingent
Obligations permitted under Section 3.4;


 


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


 


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


 


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


 


(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 sixth anniversary of the
Closing Date;


 


26





















 


(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
$5,000,000 in the aggregate at any time outstanding; and


 


(l)            any
other unsecured Indebtedness not to exceed $1,000,000 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 date hereof 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 of disposition of all or substantially all of the
equity interests or assets of such Subsidiary, so long as such sale or
disposition of all or substantially all of the equity interests or assets of
such Subsidiary is permitted under this Agreement; and (iv) restrictions on
assignments or sublicensing of licensed Intellectual Property.


 


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


 


(d)           Purchase
Money Indebtedness.  If requested by
a lender of Purchase Money Indebtedness in connection with an extension of
credit to Borrower or any Subsidiary which is otherwise permitted by this Agreement,
any Lien or security interest of Agent for the


 


27





















 


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;


 


(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;


 


(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 $1,000,000 in the
aggregate at any time outstanding;


 


(i)            (i)
Holdings may make Investments in Borrower, (ii) Borrower may make Investments
in any Subsidiary that is a Guarantor and any Subsidiary that is a Guarantor
may


 


28





















 


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 of
Borrower 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 of Borrower and not yet repaid plus
(C) the aggregate amount of Contingent Obligations incurred by Borrower or any
Domestic Subsidiary of Borrower for the benefit of any Foreign Subsidiary of
Borrower 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 3.13 so long as
any Investment made in any new Foreign Subsidiary is otherwise permitted by
this Section 3.3;


 


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


 


(p)           Borrower
and its Subsidiaries may make other Investments not expressly permitted by
clauses (a) through (o) above so long as (i) both before and after giving
effect to such Investment on a Pro Forma Basis, Borrower is in compliance with
the covenants set forth in Sections 4.2, 4.3 and 4.4 and
Borrower has a pro forma Leverage Ratio of not more than 1.5 to 1.0 and (ii)
such Investments do not exceed (1) $5,000,000 in the aggregate in any Fiscal
Year or (2) $12,500,000 in the aggregate at any time outstanding; and


 


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


 


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


 


29





















 


(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 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 any Domestic Subsidiary
of Borrower for the benefit of any Foreign Subsidiary of Borrower which remain
outstanding at such time plus (B) the aggregate amount of Contingent
Obligations incurred by Borrower or any Domestic Subsidiary of Borrower for the
benefit of any Foreign Subsidiary of Borrower 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 of Borrower 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 of Borrower in any
Foreign Subsidiary does not exceed the Foreign Investment Basket for such
Fiscal Year, (iii) except as provided in clause (ii) above, no Credit Party may
incur Contingent Obligations in respect of Indebtedness of any Person that is
not a Credit Party under this clause (g) 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 of Borrower
for the benefit of any Foreign Subsidiary of Borrower which remain outstanding
at such time plus (B) the aggregate amount of Contingent Obligations
incurred by Borrower or any Domestic Subsidiary of Borrower for the benefit of
any Foreign Subsidiary of Borrower 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


 


30





















 


Foreign Subsidiaries of Borrower 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 of Borrower 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 $2,000,000.


 


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 (other than Holdings) may make Restricted
Payments to their direct parents and non wholly-owned Subsidiaries of Borrower
or another Credit Party (other than Holdings) may make Restricted Payments pro
rata to the holders of their Stock;


 


(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, provided that such dividend payments shall not exceed
$2,000,000 in any fiscal year or $5,000,000 during the
term of this Agreement and provided that no Event of Default exists at the time
of such Restricted Payment or would occur as a result thereof (provided that
(i) the foregoing proviso shall not apply to amounts expended by Holdings
pursuant to this clause (c) solely from (x) cash proceeds received from new
issuances of Holdings Common Stock if received substantially contemporaneously
with and used solely to effect a redemption of an executive’s Stock and (y) the
proceeds of key man life insurance if the proceeds are used to repurchase the
Stock described above from a deceased or incapacitated employee or manager,


 


31





















 


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)           Borrower
may pay dividends to Holdings solely for the payment of the reasonable
out-of-pocket expenses of GTCR and its Affiliates to the extent incurred solely
in connection with GTCR’s or such Affiliate’s investment in, and solely on
behalf of, Holdings and Borrower;


 


(e)           Borrower
may make Restricted Payments to Holdings to permit Holdings to make dividends
to its stockholders that, when aggregated with all Restricted Payments
previously made after the Closing Date pursuant to this Section 3.5(e),
do not exceed an amount equal to 20% of the cumulative positive Net Income of
the Borrower and its Subsidiaries for the period from January 1, 2004 through
the end of the most recent Fiscal Quarter or Fiscal Year for which Borrower has
delivered the financial statements required pursuant to Section 4.5(a)
or (b); provided, that (i) at the time of such Restricted Payment there
shall exist no Default or Event of Default, (ii) both before and after giving
effect to such Restricted Payment on a Pro Forma Basis, Borrower is in
compliance with the covenants set forth in Sections 4.2, 4.3 and 4.4
and has a pro forma Leverage Ratio of not more than 1.5 to 1.0, and (iii) after
giving effect to such Restricted Payment, at least $10,000,000 of Borrowing
Availability would exist; and


 


(f)            Borrower
may make Restricted Payments to Holdings and Holdings may make Restricted
Payments, in each case, to effect the Share Repurchase.


 


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 pursuant
to a Permitted Acquisition and except, 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); or (d) acquire by purchase or otherwise all
or any substantial part of the business or assets of any other Person except
pursuant to a Permitted Acquisition.


 


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


 


(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;


 


32





















 


(ii)           such
Permitted Acquisition shall only involve a business (a) of the type engaged in
by Borrower as of the Closing Date, (b) substantially similar to the business
engaged in by Borrower 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
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(c)(iii) shall be incurred, assumed or otherwise be reflected on a
consolidated balance sheet of Borrower and Target after giving effect to such
Permitted Acquisition, except (A) Loans made hereunder, and (B) ordinary course
trade payables, accrued expenses and other Indebtedness of the Target to the
extent permitted by Section 3.1 or 3.4;


 


(v)           both
before or after giving effect to the proposed Permitted Acquisition on a Pro
Forma Basis, Borrower is in compliance with the financial covenants set forth
in Sections 4.2, 4.3 and 4.4 and (1) if either before or
after giving effect to the proposed Permitted Acquisition on a Pro Forma Basis,
Borrower has a pro forma Leverage Ratio of more than 1.5 to 1.0, the aggregate
consideration (A) in connection with any single Permitted Acquisition shall not
exceed $15,000,000, (B) in connection with Permitted Acquisitions in any Fiscal
Year shall not exceed $20,000,000 and (C) in connection with all Permitted
Acquisitions since the Closing Date shall not exceed $40,000,000 or (2) if both
before and after giving effect to the proposed Permitted Acquisition on a Pro
Forma Basis, Borrower has a pro forma Leverage Ratio of not more than 1.5 to
1.0, the aggregate consideration (A) in connection with any single Permitted
Acquisition shall not exceed $25,000,000, and (B) in connection with all
Permitted Acquisitions since the Closing Date shall not exceed $60,000,000, in
each case, excluding up to $15,000,000 per acquisition of consideration paid in
the form of Holdings Common Stock and including all transaction costs and all
Indebtedness, liabilities and Contingent Obligations incurred or assumed in
connection therewith or otherwise reflected on a consolidated balance sheet of
Borrower and Target;


 


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


 


(vii)         at
or prior to the closing of any Permitted Acquisition, Agent will be granted a
first priority perfected Lien (subject to Permitted Encumbrances) in all assets
acquired pursuant thereto or in the assets and Stock of the Target in each case
to the extent set forth in 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;


 


33





















 


(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 (x) average daily Borrowing Availability for the 60-day period
preceding the consummation of such Permitted Acquisition would have exceeded
$3,000,000 on a pro forma basis (after giving effect to such Permitted
Acquisition and all Loans funded in connection therewith as if made on the
first day of such period) and the Acquisition Projections (as hereinafter
defined) shall reflect that such Borrowing Availability of $3,000,000 shall
continue for at least 60 days after the consummation of such Permitted
Acquisition and (y) on a pro forma basis, no Event of Default has occurred
and is continuing or would result after giving effect to such Permitted Acquisition
and Holdings and its Subsidiaries would have been in compliance with the
financial covenants set forth in Section 4  for the four quarter period reflected in the
Compliance, Pricing, and Excess Cash Certificate most recently delivered to
Agent pursuant to Section 4.5(m) 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 the 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, (i)
EBITDA for the four quarter period immediately following such Permitted
Acquisition will be at least $1 greater than if such acquisition had not
occurred and (ii) Holdings and its Subsidiaries shall continue to be in
compliance with the financial covenants set forth in Section 4 for the 1
year period thereafter;


 


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


 


34





















 


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)           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


 


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


 


3.7           Disposal
of Assets or Subsidiary Stock. 
Holdings and Borrower shall not and shall not cause or permit any Credit
Party to directly or indirectly convey, sell, lease, sublease, transfer or
otherwise dispose of, or grant any Person an option to acquire, in one
transaction or a series of related transactions, any of its property, business
or assets, whether now owned or hereafter acquired, except for (a) sales
of inventory in good faith to customers for fair value in the ordinary course
of business and dispositions of obsolete or worn out equipment not used or
useful in the business; (b) Asset Dispositions by Borrower and Subsidiaries
of Borrower that are Credit Parties (excluding sales of Accounts and Stock of
any of Holdings’ Subsidiaries) if all of the following conditions are met:  (i) the market value of assets sold or
otherwise disposed of in any single transaction or series of related
transactions does not exceed $7,500,000 and the aggregate market value of
assets sold or otherwise disposed of in any Fiscal Year does not exceed
$10,000,000; (ii) the consideration received is at least equal to the fair
market value of such assets; (iii) at least 85% of the consideration
received is cash; (iv) the Net Proceeds of such Asset Disposition are
applied as required by Section 1.5(c); (v) after giving effect to
the Asset Disposition and the repayment of Indebtedness with the proceeds
thereof, Holdings and its Subsidiaries are in compliance on a pro forma basis
with the covenants set forth in Section 4 recomputed for the most
recently ended quarter for which
information is available; and (vi) no Default or Event of Default then exists
or would result from such Asset Disposition; (c) Investments made to the extent
permitted by Section 3.3; (d) leases (as lessee), licenses (as
licensee), subleases (as sublessee) and sublicenses (as sublicensee) in the
ordinary course of business; (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


 


35





















 


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 permitted by Sections 3.3(h) and 3.5, and
(f) transactions among the Credit Parties expressly permitted by this
Agreement.


 


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


 


3.10         Conduct
of Business.


 


(a)           The
Credit Parties shall not and shall not cause or permit their Subsidiaries to
directly or indirectly engage in any business other than a business (a) of the
type engaged in by Borrower and the other Credit Parties as of the 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 performance of the Share Repurchase Documents 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.  Holdings
and Borrower shall not and shall not cause or permit Borrower’s Subsidiaries to
directly or indirectly change or amend the terms of any of its Indebtedness
permitted by Section 3.1(c), (i) or (j):  (a) having an outstanding principal balance
in excess of $5,000,000 if the effect of such amendment is to:
(i) increase the interest


 


36





















 


rate on such Indebtedness by more than 1.00% 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.


 


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 in the future issue any press releases or other public disclosure using
the name of GE Capital 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 GE Capital and without the prior written
consent of GE Capital 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 GE Capital before issuing such press release or
other public disclosure; provided however, such Person need not obtain such
written consent to use GE Capital’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.


 


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,


 


37





















 


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.


 


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;
and


 


(c)           Holdings
shall retire all shares of Holdings Common Stock purchased pursuant to the
Share Repurchase immediately upon receipt thereof by Holdings.


 


38





















 


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 referenced above will be increased in any
period by the positive amount equal to the lesser of (i) 25% of the Capex Limit
for the immediately prior period, and (ii) the amount (if any), equal to the
difference obtained by taking the Capex Limit minus the actual amount of
any Capital Expenditures expended during such prior period (the “Carry Over
Amount”), and for purposes of measuring compliance herewith, the Carry Over
Amount shall be deemed the last amount spent on Capital Expenditures in that
succeeding period; provided, further, the Carry Over Amount for purposes of
measuring compliance herewith for the 2005 Fiscal Year shall be deemed to be
$0.


 




	
  Fiscal Year

  	
   

  	
  Capex Limit

  	
   

  
	
  2005

  	
   

  	
  $

  	
  22,000,000

  	
   

  
	
  2006

  	
   

  	
  $

  	
  24,000,000

  	
   

  
	
  2007

  	
   

  	
  $

  	
  26,000,000

  	
   

  
	
  2008

  	
   

  	
  $

  	
  28,000,000

  	
   

  
	
  2009 and each
  Fiscal Year thereafter

  	
   

  	
  $

  	
  30,000,000

  	
   

  






 


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


 


4.2           Minimum
Fixed Charge Coverage Ratio.  Holdings, Borrower
and its Subsidiaries shall have on a consolidated basis at the end of each Fiscal
Quarter during the term of this Agreement, a Fixed Charge Coverage Ratio for
the 12-month period then ended of not less than 2.5 to 1.0.


 


39





















 


4.3           Minimum
Interest Coverage Ratio.  Holdings,
Borrower and its Subsidiaries on a consolidated basis shall have at the end of
each Fiscal Quarter set forth below, an Interest Coverage Ratio for the
12-month period then ended of not less than the following:


 


4.0 to 1.0 for each Fiscal Quarter ending on or before
December 31, 2006; and


5.0 to 1.0 for each
Fiscal Quarter ending thereafter.


 


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


 


2.85 to 1.0 for the Fiscal Quarter ending June 30, 2005;


2.85 to 1.0 for the Fiscal Quarter ending September 30, 2005;


2.85 to 1.0 for the Fiscal Quarter ending December 31, 2005


2.70 to 1.0 for the Fiscal Quarter ending March 31, 2006


2.55 to 1.0 for the Fiscal Quarter ending June 30, 2006;


2.40 to 1.0 for the Fiscal Quarter ending September 30, 2006;


2.25 to 1.0 for the Fiscal Quarter ending December 31, 2006;


2.15 to 1.0 for the Fiscal Quarter ending March 31, 2007;


2.05 to 1.0 for the Fiscal Quarter ending June 30, 2007;


1.95 to 1.0 for the Fiscal Quarter ending September 30, 2007;


1.85 to 1.0 for the Fiscal Quarter ending December 31, 2007;


1.80 to 1.0 for the Fiscal Quarter ending March 31, 2008;


1.70 to 1.0 for the Fiscal Quarter ending June 30, 2008;


1.60 to 1.0 for the Fiscal Quarter ending September 30, 2008; and


1.50 to 1.0 for each Fiscal Quarter ending thereafter.


 


4.5           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 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, and (ii) the public filing with the SEC of
Holdings’ Form 10-Q for each such Fiscal Quarter, Borrower will deliver to
Agent a copy of such Form 10-Q for such Fiscal Quarter and, to the extent not
included therein, (1) the consolidated balance sheets of Holdings and its
Subsidiaries, as at the end of such Fiscal Quarter, and the related
consolidated statements of income, stockholders’ equity and cash flow for such
Fiscal Quarter and for the period from the beginning of the then current Fiscal
Year of Holdings to the end of such Fiscal Quarter and (2) a report setting
forth in comparative form the corresponding figures for the corresponding
periods of the previous Fiscal Year.


 


40





















 


(b)           Year-End
Financials.  Not later than the
earlier of (A) 90 days after the end of each Fiscal Year of Holdings 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).


 


(c)           Accountants’
Reports.  Promptly upon receipt
thereof, Borrower will deliver copies of all significant reports submitted by
Holdings’ firm of certified public accountants in connection with each annual,
interim or special audit or review of any type of the Financial Statements or
related internal control systems of Holdings or its Subsidiaries made by such
accountants, including any comment letter submitted by such accountants to management
in connection with their services.


 


(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, month by month.


 


(f)            SEC
Filings and Press Releases.  Without
duplication of the foregoing requirements, promptly upon their becoming
available, Borrower will deliver copies (via electronic media or otherwise) of
(1) all Financial Statements, reports, notices and proxy statements sent
or made available by Holdings, Borrower
or any of their respective Subsidiaries to their Stockholders, (2) all
regular and periodic reports and all registration statements and prospectuses,
if any, filed by Holdings, Borrower or any of their respective Subsidiaries
with any securities exchange or with the SEC, any Governmental Authority or any
private regulatory authority, and (3) all press releases and other
statements made available by Holdings, Borrower or any of their respective
Subsidiaries to the public concerning developments in the business of any such
Person.


 


41





















 


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


 


42





















 


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 4.5(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 F (the “Compliance, Pricing and
Excess Cash Flow Certificate”) signed by Borrower’s chief executive
officer, chief financial officer or other officer acceptable to Agent; provided
that the Excess Cash Flow portion of such certificate is only required to be
delivered annually.


 


4.6           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 4.5 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.


 


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,


 


43





















 


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


 


5.2           No
Material Adverse Effect.  Since
December 31, 2004, 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.  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.


 


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 Related Transactions
Document to which it is a party and to incur the Obligations, grant liens and
security interests in the Collateral and carry out the Related
Transactions.  As of the Closing Date,
the Subsidiaries of Holdings that are Credit Parties are indicated as such on Schedule
5.4(a).


 


(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


 


44





















 


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 any such entity.


 


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


 


5.5           Financial
Statements and Budget.  All Financial
Statements concerning Holdings,
Borrower and their respective
Subsidiaries which have been or will hereafter be furnished to Agent
pursuant to this Agreement, including the consolidated balance sheets at
December 31, 2004 and the related statement of income of Holdings and its
Subsidiaries, for the Fiscal Year then ended, audited by Ernst & Young LLP,
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.


 


The Budget delivered on or prior to the Closing Date for Fiscal Year
2005 and each Budget delivered pursuant to Section 4.5(e) 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 is the subject of any review or audit by


 


45





















 


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 the Loans (other than such proceeds representing
term loans under the Existing Credit Agreement that are exchanged for Term
Loans hereunder pursuant to Section 1.1(a)(i)) solely to finance a
dividend to Holdings to fund the Share Repurchase (and to pay any related
transaction expenses), and for the financing of Borrower’s ordinary working
capital and general corporate needs. Schedule 5.11 contains a
description of Borrower’s sources and uses of funds as of the Closing Date,
including Loans and


 


46





















 


Letter of Credit Obligations to be made or incurred on that
date, and a funds flow memorandum detailing how funds from each source are to
be transferred for particular uses.


 


(c)           None of Holdings,
Borrower or any of its Subsidiaries is (i) an “investment company” as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (ii)
a “holding company” as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.


 


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 $500,000 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


 


47





















 


that could not reasonably be expected to result in
Environmental Liabilities of Holdings or its Subsidiaries in excess of $500,000
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 $500,000
in the aggregate, and all such Environmental Permits are valid, uncontested and
in good standing; (v) neither Holdings nor any Subsidiary of Holdings is
involved in operations or knows of any facts, circumstances or conditions,
including any Releases of Hazardous Materials, that are likely to result in any
Environmental Liabilities of Holdings or any Subsidiary of Holdings which could
reasonably be expected to be in excess of $500,000 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 $500,000
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


 


48





















 


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 material
tax on prohibited transactions imposed by Section 502(i) of ERISA or Section
4975 of the IRC.


 


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


 


49





















 


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 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.


 


SECTION 6.


DEFAULT, RIGHTS AND REMEDIES


 


6.1           Event of Default.


 


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


 


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


 


(b)           Default
in Other Agreements.  (1) Any
Credit Party or any of its Subsidiaries fails to pay when due or within any
applicable grace period any principal or interest on Indebtedness (other than
the Loans) or any Contingent Obligations or (2) breach or default of any
Credit Party or any of its Subsidiaries, or the occurrence of any condition or
event, with


 


50





















 


respect to any Indebtedness (other than the Loans) or any Contingent
Obligations, in each case, if the effect of such failure to pay, breach,
default or occurrence is to cause or to permit the holder or holders then to
cause, Indebtedness and/or Contingent Obligations having a principal amount in
excess of $2,500,000 individually
or in excess of $5,000,000 in the aggregate to become or be declared due prior
to their stated maturity; or


 


(c)           Breach
of Certain Provisions.  Failure of
any Credit Party to perform or comply with any term or condition contained in
(1) the GE Capital 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 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


 


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Party adopts any
resolution or otherwise authorizes action to approve any of the actions
referred to in this Section 6.1(g); or


 


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


 


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


 


(j)                                     Invalidity of Loan Documents. 
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


 


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


 


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


 


6.2                                 Suspension or Termination of
Commitments. 
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


 


52





















 


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 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, (a) 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


 


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on such amounts); third,
to the principal amount of the Obligations outstanding (other than Obligations
owed under an Interest Rate 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.  Any
balance remaining shall be delivered to Borrower or to whomever may be lawfully
entitled to receive such balance or as a court of competent jurisdiction may
direct.


 


SECTION 7.

CONDITIONS TO LOANS


 


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


 


7.1                                 Conditions to Initial Loans. 
The obligations of Lenders and L/C Issuers to make the initial Loans and
to issue or cause to be issued 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
C 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 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, and Agent or
Requisite Revolving Lenders have determined not to make such Advance or incur
such Letter of Credit Obligation as a result of the fact that such warranty or
representation is untrue or incorrect;


 


(b)                                 any Default or Event of Default has
occurred and is continuing or would result after giving effect to any Advance
(or the incurrence of any Letter of Credit Obligation), and Agent or Requisite
Revolving Lenders shall have determined not to make any Advance or incur any
Letter of Credit Obligation as a result of that 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.


 


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The request and
acceptance by Borrower of the proceeds of any Advance, the incurrence of any
Letter of Credit Obligations or the conversion or continuation of any Loan
into, or as, a LIBOR Loan shall be deemed to constitute, as of the date
thereof, (i) a representation and warranty by 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 Qualified Assignee of, or sell
participations in, at any time or times, the Loan Documents, Loans, Letter of
Credit Obligations and any Commitment or any portion thereof or interest
therein, including any Lender’s rights, title, interests, remedies, powers or
duties thereunder.  Any assignment by a
Lender shall be for a fixed and not a varying percentage of the assigning
Lender’s respective Loans, Commitments and Letter of Credit Obligations and
shall:  (i) require the consent of
Agent (which consent shall not be unreasonably withheld or delayed with respect
to a Qualified Assignee and shall not be required for a Lender Group
Assignment) and the execution of an assignment agreement (an “Assignment
Agreement” substantially in the form attached hereto as Exhibit 8.1
and otherwise in form and substance reasonably satisfactory to, and
acknowledged by, Agent); (ii) be conditioned on such assignee Lender
representing to the assigning Lender and Agent that it is purchasing the
applicable Loans to be assigned to it for its own account, for investment
purposes and not with a view to the distribution thereof; (iii) except
with respect to any Lender Group Assignment, 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);
(iv) require a payment to Agent of an assignment fee of $3,500 and (v) so long as no Event of Default
has occurred and is continuing, require the consent of Borrower, which shall
not be unreasonably withheld or delayed with respect to a Qualified Assignee
and shall not be required for any Lender Group Assignment.  Notwithstanding the above, with the consent
of Borrower, which shall not be unreasonably withheld or delayed and shall not
be required during the continuance of an Event of Default, Agent may in its
sole and absolute discretion permit any assignment by a Lender to a Person or
Persons that are not Qualified Assignees. 
In the case of an assignment by a Lender that has become effective under
this Section 8.1, (i) the assignee shall have, to the extent
of such assignment, the same rights, benefits and obligations as all other
Lenders hereunder and (ii) the assigning Lender shall be relieved of its
obligations hereunder with respect to its Commitments or assigned portion
thereof and the Loans, Letter of Credit Obligations and other interests
assigned by it from and after the effective date of such assignment.  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


 


55





















 


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.  Notwithstanding
the foregoing provisions of this Section 8.1(a), any Lender may at
any time pledge the Obligations held by it and such Lender’s rights under this
Agreement and the other Loan Documents to a Federal Reserve Bank, or to its
trustee for the benefit of its investors in support of its obligations to its
trustee; provided, that no such pledge or assignment shall release the
assigning Lender from its obligations hereunder.


 


(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 (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 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.  Agent shall maintain in its offices a “register”
for recording name, address, commitment and Loans owing to each Lender.  The entries in such register shall be conclusive
evidence of the amounts due and owing to each Lender in the absence of manifest
error.  Borrower, Agent and each


 


56





















 


Lender may treat each
Person whose name is recorded in such register pursuant to the terms hereof as
a Lender for all purposes of this Agreement. 
The register described herein shall be available to inspection by
Borrower and any Lender, at any reasonable time upon reasonable prior notice.


 


(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 9.13.


 


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


 


8.2                                 Agent.


 


(a)                                  Appointment. 
Each Lender hereby designates and appoints GE Capital as its Agent under
this Agreement and the other Loan Documents, and 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.


 


(b)                                 Nature of Duties. 
The duties of Agent shall be mechanical and administrative in
nature.  Agent shall not have by reason
of this Agreement a fiduciary relationship in respect of any Lender.  Nothing in this Agreement or any of the Loan
Documents, express or implied, is intended to or shall be construed to impose
upon Agent any obligations in respect of this Agreement or any of the Loan
Documents except as expressly set forth herein or therein.  Each Lender shall make its own independent
investigation of the financial condition and affairs of each Credit Party in
connection with the extension of credit hereunder and shall make its own
appraisal of the creditworthiness of each Credit Party, and Agent shall have no
duty or responsibility, either initially or on a continuing basis, to provide
any Lender with any credit or


 


57





















 


other information with
respect thereto (other than as expressly required herein).  Agent shall promptly forward to the Lenders
all financial statements and other such other documents as expressly provided
for herein; provided that Agent shall have no liability to any Lender for any
failure to deliver such information to any Lender.  If Agent seeks the consent or approval of any
Lenders to the taking or refraining from taking any action hereunder, then
Agent shall send notice thereof to each Lender. 
Agent shall promptly notify each Lender any time that the Requisite
Lenders or Requisite Revolving Lenders have instructed Agent to act or refrain
from acting pursuant hereto.


 


(c)                                  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 them 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. In performing its functions and duties hereunder, Agent
shall exercise the same care which it would in dealing with loans for its own
account, but 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, collectibility, 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 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 have no 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(e).


 


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(d)                                 Reliance. 
Agent shall be entitled to rely, and shall be fully protected in
relying, upon any written or oral notices, statements, certificates, orders or
other documents or any telephone message or other communication (including any
writing, telex, fax or telegram) believed by it in good faith to be genuine and
correct and to have been signed, sent or made by the proper Person, and with
respect to all matters pertaining to this Agreement or any of the Loan
Documents and its duties hereunder or thereunder.  Agent shall be entitled to rely upon the
advice of legal counsel, independent accountants, and other experts selected by
Agent in its sole discretion.


 


(e)                                  Indemnification. 
Lenders will reimburse and indemnify Agent 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 disbursements 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(e) shall
survive the payment in full of the Obligations and the termination of this
Agreement.


 


(f)                                    GE Capital (or any successor Agent)
Individually.  With respect to its Commitments hereunder, GE
Capital (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 GE Capital (or any successor Agent) in its
individual capacity as a Lender or one of the Requisite Lenders or Requisite
Revolving Lenders.  GE Capital (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.  GE Capital (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.


 


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(g)                                 Successor Agent.


 


(i)                                     Resignation. 
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. 
Such resignation 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 pursuant to clause (i) above,
Requisite Lenders shall appoint a successor 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.


 


(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 Agent shall be discharged from its duties and
obligations under the Loan Documents. 
After any retiring Agent’s resignation 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.


 


(h)                                 Collateral Matters.


 


(i)                                     Release of Collateral and Related
Guaranties.  Lenders 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, during any Fiscal Year Agent may release any Lien granted to or held
by agent upon any Collateral having a book value not greater than ten percent
(10%) of the total book value of all Collateral as of the first day of such
Fiscal Year.  Lenders 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 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(h)(i)), each Lender agrees to
confirm in writing, upon


 


60





















 


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


 


(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(h) 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.


 


(i)                                     Agency for Perfection. 
Agent and each Lender hereby appoint each other Lender as agent for the
purpose of perfecting Agent’s security interest in assets which, in accordance
with the Code in any applicable jurisdiction, can be perfected by possession or
control.  Should any Lender (other than
Agent) obtain possession or control of any such assets, such Lender shall
notify Agent thereof, and, promptly upon Agent’s request therefor, shall
deliver such assets to Agent or in accordance with Agent’s instructions or
transfer control to Agent in accordance with Agent’s instructions.  Each Lender agrees that it will not have any
right individually to enforce or seek to enforce any Collateral Document or to
realize upon any collateral security for the Loans unless instructed to do so
by Agent in writing, it being understood and agreed that such rights and
remedies may be exercised only by Agent.


 


(j)                                     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,


 


61





















 


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.


 


(k)                                  Lender Actions Against Collateral. 
Each Lender agrees that it will not take any enforcement action, nor
institute any actions or proceedings, with respect to the Loans, against
Borrower or any Credit Party hereunder or under the other Loan Documents or
against any of the Collateral (including any exercise of any right of set-off)
without the consent of the 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 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 Mortgages in accordance with the provisions hereof.


 


(l)                                     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 Agent’s 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 their
respective officers, directors, employees, agents and attorneys from all
claims, liabilities and expenses relating to a breach by a Lender or any of its
personnel of this Section or otherwise arising out of a Lender’s access to
any Report or any discussion of its contents;


 


(ii)                                  Each Report may not be complete and
certain information and findings obtained by 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 Agent’s Affiliates) makes 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


 


62





















 


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 9.13.


 


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


 


63





















 


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.


 


(a)                                  Advances; Payments.


 


(i)                                     Revolving Lenders shall refund or
participate in the Swing Line Loan in accordance with clauses (iii) and (iv) of
Section 1.1(c).  If the Swing
Line Lender declines to make a Swing Line Loan or if Swing Line Availability is
zero, Agent shall notify Revolving Lenders, promptly after receipt of a Notice
of Revolving Credit Advance and in any event prior to 1:00 p.m. (New York time) on the date
such Notice of a Revolving Credit Advance is received, by fax, telephone or
other similar form of transmission.  Each
Revolving Lender shall make the amount of such Lender’s Pro Rata Share of such
Revolving Credit Advance available to Agent in same day funds by wire transfer
to Agent’s account as set forth in Section 1.1(e) not later
than 3:00 p.m. (New York time) on the requested Funding Date in the case of an Index Rate
Loans and not later than 11:00 a.m.
(New York time) on the
requested Funding Date in the case of a LIBOR Loan.  After receipt of such wire transfers (or, in
the 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”), 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, 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 specified by such
Lender in Annex E or the applicable Assignment Agreement) 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 (a “Non-Funding Lender”) has failed to fund
all such payments and Advances or failed to fund the purchase of all such
participations, Agent shall be entitled to set off the funding short-fall
against that Non-Funding 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


 


64





















 


Lender fails to pay the
amount of its Pro Rata Share forthwith upon Agent’s demand, Agent shall
promptly notify Borrower and Borrower shall immediately repay such amount to
Agent.  Nothing in this Section 8.5(b) or
elsewhere in this Agreement or the other Loan Documents shall be deemed to require
Agent to advance funds on behalf of any Revolving Lender or to relieve any
Revolving Lender from its obligation to fulfill its Commitments hereunder or to
prejudice any rights that Borrower may have against any Revolving Lender as a
result of any default by such Revolving Lender hereunder.  To the extent that Agent advances funds to
Borrower on behalf of any Revolving Lender and is not reimbursed therefor on
the same Business Day as such Advance is made, Agent shall be entitled to
retain for its account all interest accrued on such Advance until reimbursed by
the applicable Revolving Lender.


 


(c)                                  Return of Payments.


 


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


 


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


 


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


 


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


 


65





















 


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 as a result of such Indemnitees being a party to this
Agreement or the transactions consummated pursuant to this Agreement or
otherwise relating to any of the Related Transactions; provided, that
Borrower shall have no obligation to an Indemnitee hereunder with respect to
liabilities to the extent resulting from the gross negligence or willful
misconduct of that Indemnitee as determined by a court of competent
jurisdiction.  If and to the extent that
the foregoing undertaking may be unenforceable for any reason, Borrower agrees
to make the maximum contribution to the payment and satisfaction thereof which
is permissible under applicable law.


 


9.2                                 Amendments and Waivers.


 


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


 


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


 


(c)                                  No amendment, modification,
termination or waiver shall, unless in writing and signed by Agent and each
Lender directly affected thereby:  (i) increase
the principal amount or postpone or extend the scheduled date of expiration of
any Lender’s Commitment (which action shall be deemed only to affect those
Lenders whose Commitments are increased or the scheduled date of expiration of
whose Commitments are postponed or extended and may be approved by Requisite Lenders,
including those Lenders whose Commitments are increased or the scheduled date
of expiration of whose Commitments are postponed or extended); (ii) reduce
the principal of, rate of interest (other than any determination or waiver to
charge or not charge interest or fees at the Default Rate) on or Fees payable
with respect to any Loan or Letter of Credit Obligations of any affected
Lender; (iii) extend any scheduled payment date or final maturity date of
the principal amount of any Loan of any affected Lender or postpone or extend
the scheduled date of expiration of any Letter of Credit beyond the date set
forth in clause (b) of the initial sentence of Section 1.1(d)(iv);
(iv) waive, forgive, defer, extend or postpone any


 


66





















 


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(h) or, except as otherwise
permitted in Section 3.7 or Section 8.2(h), release
Collateral (which action shall be deemed to directly affect all Lenders); (vi) change
the percentage of the Commitments or of the aggregate unpaid principal amount
of the Loans that shall be required for Lenders or any of them to take any
action hereunder except to adjust such percentages or amounts to incorporate
the addition of one more additional tranches of Loans to the Obligations on
terms consistent with the existing tranches; and (vii) amend or waive this
Section 9.2 or the definitions of the terms “Requisite Lenders” or “Requisite
Revolving Lenders” insofar as such definitions affect the substance of this Section 9.2
or the term “Pro Rata Share” except, in each case, as may be necessary to add
one or more additional tranches thereto on terms consistent with the existing
tranches (which action shall be deemed to directly affect all Lenders).  Furthermore, no amendment, modification,
termination or waiver affecting the rights or duties of Agent or L/C Issuers
under this Agreement or any other Loan Document shall be effective unless in
writing and signed by Agent 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.  Any notice or
other communication required shall be in writing addressed to the respective
party as set forth below and may be personally served, telecopied, sent by
overnight courier service or U.S. mail and shall be deemed to have been
given:  (a) if delivered in person,
when delivered; (b) if delivered by fax, on the date of transmission if
transmitted on a Business Day before 4:00 p.m. (New York time); (c) if delivered by overnight courier, one (1) Business
Day after delivery to the courier properly addressed; or (d) if delivered
by U.S. mail, four (4) Business Days after deposit with postage prepaid
and properly addressed.


 


Notices shall be
addressed as follows:


 


	
  If to Borrower:

  	
   

  	
  Transaction
  Network Services, Inc.

  
	
   

  	
   

  	
  11480 Commerce
  Park Drive - Suite 600

  
	
   

  	
   

  	
  Reston, Virginia
  20191

  
	
   

  	
   

  	
  ATTN:  Chief Financial Officer

  
	
   

  	
   

  	
  Fax:  (703) 453-8599

  



 


67





















 


	
  With a copy to:

  	
   

  	
  Transaction
  Network Services, Inc.

  
	
   

  	
   

  	
  11480 Commerce
  Park Drive - Suite 600

  
	
   

  	
   

  	
  Reston, Virginia
  20191

  
	
   

  	
   

  	
  ATTN:  General Counsel

  
	
   

  	
   

  	
  Fax:  (703) 453-8397

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  and,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Kirkland &
  Ellis LLP

  
	
   

  	
   

  	
  200 East
  Randolph Drive

  
	
   

  	
   

  	
  Chicago,
  Illinois 60601

  
	
   

  	
   

  	
  ATTN:  Jocelyn A. Hirsch

  
	
   

  	
   

  	
  Fax:  (312) 861-2200

  
	
   

  	
   

  	
   

  
	
  If to Agent or
  GE Capital:

  	
   

  	
  GENERAL ELECTRIC
  CAPITAL

  
	
   

  	
   

  	
  CORPORATION

  
	
   

  	
   

  	
  500 West Monroe

  
	
   

  	
   

  	
  Chicago,
  Illinois 60661

  
	
   

  	
   

  	
  ATTN:
  Transaction Network Services Account Officer

  
	
   

  	
   

  	
  Fax:  (312) 441-7920

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  GENERAL ELECTRIC
  CAPITAL

  
	
   

  	
   

  	
  CORPORATION

  
	
   

  	
   

  	
  201 Merritt 7

  
	
   

  	
   

  	
  P.O. Box
  5201

  
	
   

  	
   

  	
  Norwalk,
  Connecticut  06856-5201

  
	
   

  	
   

  	
  ATTN:  General Counsel, Global Sponsor Finance

  
	
   

  	
   

  	
  Fax:  (203) 956-4216

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  GENERAL ELECTRIC
  CAPITAL

  
	
   

  	
   

  	
  CORPORATION

  
	
   

  	
   

  	
  500 West Monroe
  Street

  
	
   

  	
   

  	
  Chicago,
  Illinois 60661

  
	
   

  	
   

  	
  ATTN: Corporate
  Counsel, Global Sponsor Finance

  
	
   

  	
   

  	
  Fax:  (312) 441-6876

  
	
   

  	
   

  	
   

  
	
  If to a Lender:

  	
   

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

  



 


9.4                                 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 privilege hereunder or under any other Loan Documents
shall impair such power, right, or


 


68





















 


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.


 


9.5                                 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.


 


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


 


9.7                                 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.


 


9.8                                 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.


 


9.9                                 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 ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.


 


9.10                           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 except that Borrower may
not assign its rights or obligations hereunder without the written consent of
all Lenders and any such purported assignment without such consent shall be
void ab initio.


 


9.11                           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


 


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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.


 


9.12                           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.


 


9.13                           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 to
potential assignees or participants or to Persons employed by or engaged by
Agent, a Lender or a Lender’s assignees or participants including attorneys,
auditors, professional consultants, rating agencies, insurance industry
associations and portfolio management services; provided 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 9.13.  The
confidentiality provisions contained in this Section 9.13 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 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 reserves the right to provide to
industry trade organizations information necessary and customary for inclusion
in league table measurements.  The
obligations of Agent and Lenders under this Section 9.13 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 date hereof.  In no event


 


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shall Agent or any Lender
be obligated or required to return any such information or other materials
furnished by any Credit Party.


 


9.14                           CONSENT TO JURISDICTION. 
EACH PARTY HERETO HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED WITHIN COOK
COUNTY, STATE OF ILLINOIS 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
WAIVE ANY DEFENSE OF FORUM NON CONVENIENS. 
BORROWER AND CREDIT PARTIES HEREBY WAIVE PERSONAL SERVICE OF ANY AND ALL
PROCESS AND AGREES 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.


 


9.15                           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 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.


 


9.16                           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.


 


9.17                           Entire Agreement.  This
Agreement, the Notes and the other Loan Documents embody the entire agreement
among the parties hereto and supersede all prior commitments,


 


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agreements,
representations, and understandings, whether oral or written, relating to the
subject matter hereof (other than the GE Capital Fee Letter), and may not be
contradicted or varied by evidence of prior, contemporaneous, or subsequent
oral agreements or discussions of the parties hereto.  All Exhibits, Schedules and Annexes referred
to herein are incorporated in this Agreement by reference and constitute a part
of this Agreement.


 


9.18                           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.  This
Agreement shall become effective upon the execution of a counterpart hereof by
each of the parties hereto.


 


9.19                           Replacement of Lenders.


 


(a)                                  Within fifteen (15) days after
receipt by Borrower of written notice and demand from any Lender for payment
pursuant to Section 1.8 or 1.9 or, as provided in this Section 9.19(a),
in the case of certain refusals by any Lender to consent to certain proposed
amendments, modifications, terminations or waivers with respect to this
Agreement that have been approved by Requisite Lenders, Requisite Revolving
Lenders or all affected Lenders, as applicable (any such Lender demanding such
payment or refusing to so consent being referred to herein as an “Affected
Lender”), Borrower may, at its option, notify Agent and such Affected
Lender of its intention to do one of the following:


 


(i)                                     Borrower may obtain, at Borrower’s
expense, a replacement Lender (“Replacement Lender”) for such Affected
Lender, which Replacement Lender shall be reasonably satisfactory to
Agent.  In the event Borrower obtains a
Replacement Lender that will purchase all outstanding Obligations owed to such
Affected Lender and assume its Commitments hereunder within ninety (90) days
following notice of Borrower’s intention to do so, the Affected Lender shall
sell and assign all of its rights and delegate all of its obligations under
this Agreement to such Replacement Lender in accordance with the provisions of Section 8.1,
provided that Borrower has reimbursed such Affected Lender for any
administrative fee payable pursuant to Section 8.1 and, in any case
where such replacement occurs as the result of a demand for payment pursuant to
Section 1.8 or 1.9, paid all amounts required to be paid to such
Affected Lender pursuant to Section 1.8 or 1.9 through the date of
such sale and assignment; or


 


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


 


72





















 


Agreement through the date
of such prepayment), and terminate such Affected Lender’s obligations under the
Revolving Loan Commitment and Term Loan Commitment.


 


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


 


9.20                           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.


 


9.21                           Subordination of Intercompany Debt.


 


(a)                                  Each
Credit Party hereby agrees that any intercompany Indebtedness or other
intercompany payables or receivables, or intercompany advances directly or
indirectly made by or owed to such Credit Party by any other Credit Party
(collectively, “Intercompany Debt”), of whatever nature at any time
outstanding shall be subordinate and subject in right of payment to the prior
payment in full in cash of the Obligations. 
Each Credit Party hereby agrees that it will not, while any Event of
Default under Section 8.1(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 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 9.21 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, the Agent for the benefit of the 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


 


73





















 


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).


 


74





















 


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.

  
	
   

  	
  TNS,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Henry H.
  Graham, Jr.

  	
   

  
	
   

  	
  Name: Henry H.
  Graham, Jr.

  
	
   

  	
  Title: EVP, CFO
  and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GENERAL
  ELECTRIC CAPITAL CORPORATION,

  
	
   

  	
  as
  Agent, an L/C Issuer and a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas C.
  Hjorth

  	
   

  
	
   

  	
  Its Duly
  Authorized Signatory

  
					



 


 


Signature Page to TNS A&R Credit
Agreement


 


75





















 


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, 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.


 


“Additional Lender”
means any Person that is a Lender hereunder on the Closing Date but is not a
Continuing Lender.


 


A-1





















 


“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 9.19(a).


 


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


 


“Agent” means GE
Capital in its capacity as 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 Term
Loan Index Margin, the Applicable Revolver LIBOR Margin and the Applicable Term
Loan LIBOR Margin.


 


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


 


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


 


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


 


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


 


“Asset Disposition”
means the disposition whether by sale, lease, transfer, loss, damage,
destruction, casualty, condemnation or otherwise of any of the following:  (a) any of the Stock or other equity or
ownership interest of any of Borrower’s Subsidiaries that are Credit Parties or
(b) any or all of the assets of Borrower or any of its Subsidiaries that
are Credit Parties;


 


A-2





















 


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 and transfers of Stock or assets of (i) Borrower
or a Domestic Subsidiary of the Borrower to the Borrower or another Domestic
Subsidiary of the Borrower and (ii) a Foreign Subsidiary of the Borrower
to the Borrower or another Subsidiary of the 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 Agreement”
has the meaning ascribed to it in Section 8.1(a).


 


“Average Revolving
Credit Advances” means, in respect of any Fiscal Year, the average daily
principal amount of Revolving Credit Advances outstanding during such Fiscal
Year.


 


“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.


 


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


 


“Borrower Pledge
Agreement” means the Amended and Restated Pledge Agreement of even date
herewith executed by Borrower in favor of Agent, on behalf of itself and
Lenders, pledging Stock of its Subsidiaries, if any, and shall include any
foreign pledges or charges in respect of pledges of Stock of any Foreign
Subsidiary.


 


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


 


“Budget” means
Holdings’ forecasted consolidated:  (a) balance
sheets; (b) profit and loss statements; (c) cash flow statements; and
(d) capitalization 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 permitted to be closed in the State of  New York or in the State of Virginia 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.


 


A-3





















 


“Capital Expenditures”
has the meaning ascribed to it in Section 4.1 of Schedule 1 to
Exhibit 4.5(l).


 


“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.


 


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


 


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


 


“Change
of Control” means any of the following: 
(a) any person or group of persons (within the meaning of the
Securities Exchange Act of 1934) (other than GTCR and 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


 


A-4





















 


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 May 4, 2005.


 


“Code” means the
Uniform Commercial Code as the same may, from time to time, be enacted and in
effect in the State of Illinois;
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 Illinois, the term “Code” shall
mean the Uniform Commercial Code as enacted and in effect in such other
jurisdiction solely for purposes of the provisions thereof relating to such
attachment, perfection, priority or remedies and for purposes of definitions
related to such provisions.


 


“Collateral” means
the property covered by the Security Agreement, the Mortgages and 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


 


A-5










 













 


security interest or Lien
in favor of Agent, on behalf of itself and Lenders, to secure the Obligations
or any portion thereof.


 


“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 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.


 


“Commitment
Termination Date” means the earliest of (a) May 4, 2010, (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(e), 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 and Term Loan
Commitment as set forth on Annex B to the Agreement or in the most
recent Assignment Agreement executed by such Lender and (b) as to all
Lenders, the aggregate of all Lenders’ Revolving Loan Commitments and Term Loan
Commitments, which aggregate commitment shall be One Hundred Ninety Five
Million Dollars ($195,000,000) on
the Closing Date, as such Commitments may be reduced, amortized or adjusted
from time to time in accordance with the Agreement.


 


“Communication”
means any notice, information or other communication required or permitted to
be given or made under this Agreement, but excluding any Loan Document
requested by Agent to be delivered solely in a signed writing, including
without limitation, any Mortgage, Note, power of attorney, or Patent, Trademark
or Copyright Security Agreement.


 


“Compliance, Pricing,
and Excess Cash Flow Certificate” has the meaning ascribed to it in Section 4.5.


 


“Consolidated Net
Income” has the meaning ascribed to it in Section 4.3 of Schedule 1
to  Annex F.


 


“Contingent Obligation”
means, as applied to any Person, means any direct or indirect liability of that
Person:  (i) with respect to
Guaranteed Indebtedness and with respect to any Indebtedness, lease, dividend
or other obligation of another Person if the purpose or intent of the Person
incurring such liability, or the effect thereof, is to provide assurance to the
obligee of such liability that such liability will be paid or discharged, or
that any agreements relating thereto will be complied with, or that the holders
of such liability will be protected (in whole or in part) against loss with
respect thereto; (ii) with respect to any letter of credit issued for the
account of that Person or as to which that Person is otherwise liable for
reimbursement of drawings;


 


A-6





















 


(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.


 


“Continuing Lender”
means a Lender (as defined in the Existing Credit Agreement) that has a
Revolving Loan Commitment or Term Loan Commitment under this Agreement on the Closing
Date.


 


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


 


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


 


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


 


“Credit Parties”
means Holdings, Borrower, each of their respective Domestic Subsidiaries and
each of their Foreign Subsidiaries which either (i) the consolidated total
assets of which were more than 5% of Holdings and its Subsidiaries consolidated
total assets as of the end of the most recently completed Fiscal Year of
Holdings for which audited financial statements are available or (ii) the
consolidated total revenues of which were more than 5% of Holdings’
consolidated total revenues for such period; provided that, in the event the
aggregate of the total assets of all Foreign Subsidiaries that do not
constitute Credit Parties exceeds 15% of Holdings’ consolidated total assets as
of such date or the consolidated total revenues of such


 


A-7





















 


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, become an Event of Default.


 


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


 


“Departing Lender”
means a Lender (as defined in the Existing Credit Agreement) that is not a
Continuing Lender.


 


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


 


“Disclosure Schedules”
means the Schedules prepared by Borrower and denominated as Schedules 3.2
through 5.17 in the index to the Agreement.


 


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


 


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


 


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


 


“Domestic
Subsidiary” means any Subsidiary of a Credit Party that (A) 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 and (B) maintains
a majority of its assets inside the United States or the District of Columbia.


 


“EBITDA” has the
meaning ascribed to it in Section 4.3 of Schedule 1 to Annex
F.


 


“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


 


A-8





















 


Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. §§ 9601
et seq.) (“CERCLA”); the Hazardous Materials Transportation
Authorization Act of 1994 (49 U.S.C. §§ 5101 et seq.); the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§ 136 et seq.);
the Solid Waste Disposal Act (42 U.S.C. §§ 6901 et seq.); the Toxic
Substance Control Act (15 U.S.C. §§ 2601 et seq.); the Clean Air
Act (42 U.S.C. §§ 7401 et seq.); the Federal Water Pollution
Control Act (33 U.S.C. §§ 1251 et seq.); the Occupational Safety
and Health Act (29 U.S.C. §§ 651 et seq.); and the Safe Drinking
Water Act (42 U.S.C. §§ 300(f) et seq.), and any and all
regulations promulgated thereunder, and all analogous state, local and foreign
counterparts or equivalents and any transfer of ownership notification or
approval statutes.


 


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


 


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


 


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


 


A-9





















 


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


 


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


 


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


 


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


 


“Existing Credit
Agreement” has the meaning ascribed to it in the Recitals to this
Agreement.


 


“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, 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.


 


“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-10





















 


“Financial Statements”
means the consolidated income statements, statements of cash flows and balance
sheets of Holdings and its
Subsidiaries delivered in accordance with Section 4.5.


 


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


 


“Fixed Charges” has
the meaning ascribed to it in Section 4.2 of Schedule 1 to Annex
F.


 


“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 F.


 


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


 


“Foreign Investment
Basket” means an amount per Fiscal Year equal to $10,000,000; provided,
that, commencing with the 2006 Fiscal Year, the Foreign Investment Basket will
be increased in each Fiscal Year by the positive amount equal to the lesser of (i) $2,500,000
and (ii) the amount (if any) equal to the difference obtained by taking
the Foreign Investment Basket minus the actual amount of usage of the Foreign
Investment Basket during the preceding Fiscal Year (the “Foreign Carry Over
Amount”); provided, further, that in no event shall the Foreign Investment
Basket for any Fiscal Year exceed $12,500,000, and for purposes of measuring
compliance with the terms of this Agreement, the Foreign Carry Over Amount
shall be deemed the first amount utilized for such succeeding period.


 


“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.


 


A-11





















 


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


 


“Funded Debt”
means, with respect to any Person, without duplication, all Indebtedness for
borrowed money evidenced by notes, bonds, debentures, or similar evidences of
Indebtedness and that by its terms matures more than one year from, or is
directly or indirectly renewable or extendible at such Person’s option under a
revolving credit or similar agreement obligating the lender or lenders to
extend credit over a period of more than one year from the 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.  There shall be excluded
from Funded Debt all Indebtedness that, but for the application of FAS 150,
would not otherwise be included in the definition of Funded Debt.


 


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


 


“GAAP” means
generally accepted accounting principles in the United States of America,
consistently applied.


 


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


 


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


 


“General Intangibles”
means “general intangibles,” as such term is defined in the Code, now owned or
hereafter acquired by Holdings or any Domestic Subsidiary, including all right,
title and interest that such Person may now or hereafter have in or under any
Contractual Obligation, all payment intangibles, customer lists, Licenses,
Copyrights, Trademarks, Patents, and all applications therefor and reissues,
extensions or renewals thereof, rights in Intellectual Property, interests in
partnerships, joint ventures and other business associations, licenses,
permits, copyrights, 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.


 


A-12





















 


“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, including embedded
software to the extent included in “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, and any agency, department or other entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.


 


“GTCR” means,
collectively, GTCR Fund VII, L.P., a Delaware limited partnership, GTCR Fund
VII/A, L.P., a Delaware limited partnership, GTCR Co-Invest, L.P., a Delaware
limited partnership and GTCR Capital Partners, L.P., a Delaware limited
partnership.


 


“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 of
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


 


A-13





















 


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.


 


“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 amended and restated guaranty of even date herewith
executed by Holdings in favor of Agent, on behalf of itself and Lenders.


 


“Holdings Pledge
Agreement” means the Amended and Restated Pledge Agreement of even date
herewith executed by Holdings in favor of Agent, on behalf of itself and
Lenders, pledging all Stock of Borrower.


 


“Holdings Preferred
Stock” means the Class A redeemable convertible preferred stock of
Holdings, par value $0.01 per share, all of which shall be converted into
Holdings Common Stock immediately prior to the Closing Date.


 


“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 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, (i) ”earnouts”
and similar payment obligations valued at such amount as is required by GAAP,
and (j) the Obligations.


 


A-14





















 


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


 


“Index Rate”
means, for any day, a floating rate equal to the higher of (i) the rate
publicly quoted from time to time by The Wall Street Journal
as the “base rate on corporate loans posted by at least 75% of the nation’s 30
largest banks” (or, if The Wall Street Journal ceases quoting
a base rate of the type described, the highest per annum rate of interest
published by the Federal Reserve Board in Federal Reserve statistical release
H.15 (519) entitled “Selected Interest Rates” as the Bank prime loan rate
or its equivalent), and (ii) the Federal Funds Rate plus 50 basis points
per annum.  Each change in any interest
rate provided for in the Agreement based upon the Index Rate shall take effect
at the time of such change in the Index Rate.


 


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


 


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


 


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


 


“Intellectual Property”
means any and all Licenses, Patents, Copyrights, Trademarks, and the goodwill
associated with such Trademarks.


 


“Intercompany Debt”
has the meaning ascribed to it in Section 9.21.


 


“Interest Coverage
Ratio” has the meaning ascribed to it in Section 4.3 of Schedule 1
to Annex F.


 


“Interest Expense”
has the meaning ascribed to it in Section 4.2 of Schedule 1 to
Annex F.


 


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


 


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


 


A-15





















 


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


 


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


 


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


 


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


 


“IRS” means the
United States Internal Revenue Service.


 


“L/C Issuer” means
GE Capital or a Subsidiary thereof or a bank 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).


 


“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 managed by the same investment
advisor as the assigning Lender or managed by an investment advisor that acts
in such capacity for another Person that is a Lender prior to the date of such
assignment.


 


A-16





















 


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


 


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


 


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


 


“Letters of Credit”
means standby letters of credit issued for the account of Borrower 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 in Section 4.4 of Schedule 1 to
Annex F.


 


“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 default by Borrower in making any borrowing of, conversion into
or continuation of any LIBOR Loan following Borrower’s delivery to Agent of any
LIBOR Loan request in respect thereof or (ii) any payment of a LIBOR Loan
on any day that is not the last day of the LIBOR Period applicable thereto
(regardless of the source of such prepayment and whether voluntary, by
acceleration or otherwise). For purposes of calculating amounts payable to a
Lender under Section 1.3(d), each Lender shall be deemed to have
actually funded its relevant LIBOR Loan through the purchase of a deposit
bearing interest at LIBOR in an amount equal to the amount of that LIBOR Loan
and having a maturity and repricing characteristics comparable to the relevant
LIBOR Period; provided, however, that each Lender may fund each
of its LIBOR Loans in any manner it sees fit, and the foregoing assumption
shall be utilized only for the calculation of amounts payable under Section 1.3(d).


 


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


 


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


 


“LIBOR Period”
means, with respect to any LIBOR Loan, each period commencing on a LIBOR
Business Day selected by Borrower pursuant to the Agreement and ending 14 days
(during the Syndication Period only), one,
two, three, six, or if acceptable to all


 


A-17





















 


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)                                 any
LIBOR Period 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;


 


(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 6 separate LIBOR
Loans in existence at any one time; provided that during the Syndication Period only two (2) such
LIBOR Periods may exist at any time for all Revolving Credit Advances and only
two (2) such LIBOR Periods may exist at any time for the Term Loan;
and


 


(f)                                    no
LIBOR Period may be selected for any portion of the 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:


 


(a)                                  the
offered rate for deposits in United States Dollars for the applicable LIBOR
Period that appears on Telerate Page 3750 as of 11:00 a.m. (London
time), on the second full LIBOR Business Day next preceding the first day of
such LIBOR Period (unless such date is not a Business Day, in which event the
next succeeding Business Day will be used); divided by


 


(b)                                 a
number equal to 1.0 minus the aggregate (but without duplication) of the
rates (expressed as a decimal fraction) of reserve requirements in effect on
the day that is two (2) LIBOR Business Days prior to the beginning of such
LIBOR Period (including basic, supplemental, marginal and emergency reserves
under any regulations of the


 


A-18





















 


Federal Reserve Board or other Governmental Authority
having jurisdiction with respect thereto, as now and from time to time in
effect) for Eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Federal Reserve Board that are required to
be maintained by a member bank of the Federal Reserve System.


 


If such interest rates
shall cease to be available from Telerate News Service, the LIBOR Rate shall be
determined from such financial reporting service or other information as shall
be available to Agent.


 


“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).


 


“Litigation” has
the meaning ascribed to it in Section 4.5(i).


 


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


 


“Loan Documents”
means the Agreement, the Notes, the Collateral Documents, the GE Capital Fee
Letter, the subordination provisions applicable to any Subordinated Debt and
intercreditor provisions applicable to any Indebtedness that is pari passu in right of payment to the
Obligations, and all other agreements, instruments, documents and certificates
identified on Annex C 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 Loan.


 


“Master Standby
Agreement” means the Amended and Restated Master Agreement for Standby
Letters of Credit dated as of the Closing Date between Borrower, as Applicant,
and GE Capital, as Issuer.


 


A-19





















 


“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(f).


 


“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), net of (i) the costs of such Asset Disposition
(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), 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.


 


“Non-Funding Lender”
has the meaning ascribed to it in Section 8.5(a).


 


A-20





















 


 


“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 or any Lender, and all covenants and duties
regarding such amounts, of any kind or nature, present or future, whether or
not evidenced by any note, agreement or other instrument, arising under the
Agreement or any of the other Loan Documents. 
This term includes all principal, interest (including all interest that
accrues after the commencement of any case or proceeding by or against any
Credit Party in bankruptcy, whether or not allowed in such case or proceeding),
Fees, Charges, reasonable expenses, reasonable attorneys’ fees and any other
sum chargeable to any Credit Party under the Agreement or any of the other Loan
Documents.


 


“Operating Cash Flow”
has the meaning ascribed to it in Section 4.6 of Schedule 1 to
Annex F.


 


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


 


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


 


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


 


“Patent Security
Agreements” means the Amended and Restated Patent Security Agreements 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 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.


 


A-21





















 


“PBGC” means the
Pension Benefit Guaranty Corporation.


 


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


 


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


 


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


 


“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 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 date hereof and
renewal, refinancing and extensions thereof which Liens are set


 


A-22





















 


forth on Schedule 3.2;
(k) Liens securing Indebtedness permitted by Section 3.1(e) provided
that the Liens attach only to the assets financed by such Indebtedness; (l)
leases, subleases, licenses or sublicenses granted to others not interfering in
any material respect with the business of any Credit Party or any of their
Subsidiaries and any interest or title of a lessor under any lease (whether a
Capital Lease or an operating lease) permitted by this Agreement or the
Security Agreement; (m) customary rights of set off, revocation, refund or
chargeback under deposit agreements or under the UCC of banks or other financial
institutions where Borrower maintains deposits in the ordinary course of
business permitted by this Agreement; (n) Liens upon real and/or tangible
personal property, acquired by purchase, construction or otherwise by a Person,
each of which Liens was created solely for the purpose of securing Indebtedness
(including Capital Lease Obligations) representing, or incurred to finance, the
cost (including the cost of construction) of the property (hereinafter referred
to as “Purchase Money Liens”); provided that (i) no such
Purchase Money Lien shall extend to or cover any property of such Person other
than the respective property so acquired and improvements thereon; (ii) the
principal amount of the Indebtedness secured by any such Purchase Money Lien
shall not exceed 100% of the fair value (as reasonably determined in good faith
by a Responsible Officer of such Person) of the respective property at the time
it was so acquired; and (iii) 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 the Borrower or any Subsidiaries
of the 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.


 


A-23





















 


“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, 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 Borrower Pledge Agreement, the Holdings Pledge Agreement, the Subsidiary Pledge Agreement, and
any other pledge agreement entered into after the Closing Date by any Credit
Party.


 


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


 


“Pro Forma” means
the unaudited consolidated balance sheets
of Holdings and its Subsidiaries
prepared in accordance with GAAP as of December 31, 2004 after giving
effect to the Related Transactions.  The
Pro Forma is annexed hereto as Annex D.


 


“Pro Forma Basis”
means, when calculating financial covenants for purposes of determining whether
any Investment, Restricted Payment or Permitted Acquisition may be made in
compliance with this Agreement, on a basis that gives effect to such
Investment, Restricted Payment or Permitted Acquisition (and any Indebtedness
incurred or assumed in connection with any of the foregoing) as if such
Investment, Restricted Payment or Investment and incurrence or assumption of
related Indebtedness had occurred on the first day of the most recently
completed four Fiscal Quarter period for which a Compliance, Pricing and Excess
Cash Flow Certificate has been delivered pursuant to Section 4.5
(or was required to be so delivered), as demonstrated by delivery to Agent of a
Compliance, Pricing and Excess Cash Flow Certificate for such period (prepared
in good faith and in a manner and using such methodology which is consistent with
the


 


A-24





















 


most recent
financial statements delivered pursuant to Section 4.5) 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 Term Loan, the percentage obtained
by dividing (i) the Term Loan Commitment of that Lender by (ii) the
aggregate Term Loan Commitments of all Lenders, (c) 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 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 Assignee”
means (a) any Lender, any Affiliate of any Lender and, with respect to any
Lender that is an investment fund that invests in commercial loans, any other
investment fund that invests in commercial loans and that is managed or advised
by the same investment advisor as such Lender or by an Affiliate of such
investment advisor, and (b) any commercial bank, savings and loan
association or savings bank or any other entity which is an “accredited
investor” (as defined in Regulation D under the Securities Act of 1933) which
extends credit or buys loans as one of its businesses, including insurance
companies, mutual funds, lease financing companies and commercial finance
companies, in each case, which has a rating of BBB or higher from S&P and a
rating of Baa2 or higher from Moody’s at the date that it becomes a Lender and
which, through its applicable lending office, is capable of lending to Borrower
without the imposition of any withholding or similar taxes; provided that no
Person that (directly or through an Affiliate) holds an Investment in the
Subordinated Debt or equity of any Credit Party with a fair market value in
excess of 20% of the fair market value of its Investment in the Loans shall be
a Qualified Assignee and no Person or Affiliate of such Person (other than a
Person that is already a Lender) holding Subordinated Debt or Stock issued by
any Credit Party shall be a Qualified Assignee.


 


“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).


 


“Related Transactions”
means the initial borrowing under the Revolving Loan and the Term Loan on the
Closing Date, the Share Repurchase,
the payment of all Fees, costs and


 


A-25





















 


expenses
associated with all of the foregoing and the execution and delivery of all of
the Related Transactions Documents.


 


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


 


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


 


“Replacement Lender”
has the meaning ascribed to it in Section 9.19(a).


 


“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 funds or other property to any
Stockholder of such Person other than payment of compensation


 


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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 on Annex B 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 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 Thirty
Million Dollars ($30,000,000) 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.


 


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


 


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


 


“Security Agreement”
means the Amended and Restated Security Agreement of even date herewith entered
into by and among Agent, on behalf of itself and Lenders, and Holdings or any
Domestic Subsidiary that is a signatory thereto.


 


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


 


“Share Repurchase”
means the purchase by Holdings on the Closing Date pursuant to a modified “Dutch”
auction tender offer of up to 9,000,000 shares of Holdings Common Stock at a
price not to exceed $18.50 per share net to the seller in cash.


 


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“Share Repurchase
Documents” means the Offer to Purchase for Cash dated April 5, 2005,
together with all schedules and exhibits thereto, each Letter of Transmittal
received by Holdings or the depository for the offer, each Notice of Guaranteed
Delivery received by Holdings or the depository for the offer, the letter
agreement with GTCR pursuant to which GTCR and its Affiliates agreed to tender
6,000,000 shares in the Share Repurchase, the Tender Offer Acceptance Letter
from Holdings to the depository, the Current Report on Form 8-K
announcing the outcome of the tender offer, and all other agreements,
instruments and receipts executed or delivered in connection therewith.


 


“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, 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.


 


“Statement” has
the meaning ascribed to it in Section 4.5(b).


 


“Stock” means all
shares, options, warrants, general or limited partnership interests, membership
interests or other equivalents (regardless of how designated) of or in a
corporation, partnership, limited liability company or equivalent entity
whether voting or nonvoting, including common stock, preferred stock or any other
“equity security” (as such term is defined in Rule 3a11-1 of the
General Rules and Regulations promulgated by the SEC under the Securities
Exchange Act of 1934).


 


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


 


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


 


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


 


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


 


“Subsidiary Guaranty”
means the Amended and Restated Subsidiary Guaranty of even date herewith
executed by one or more Domestic Subsidiaries of Borrower in favor of Agent, on
behalf of itself and Lenders.


 


“Subsidiary Pledge
Agreement” means the Amended and Restated Pledge Agreement of even date
herewith executed by a Domestic Subsidiary in favor of Agent, on behalf of
itself and Lenders, pledging all Stock of its Subsidiaries.


 


“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 on Annex B to the Agreement, which commitment constitutes a
subfacility of the Revolving Loan Commitment of the Swing Line Lender.


 


“Swing Line Lender”
means GE Capital.


 


“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).


 


“Syndication Period”
has the meaning ascribed to it in Section 1.2(e).


 


“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 those Lenders having Term Loan Commitments.


 


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


 


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


 


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


 


“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(e) and (d) all
Commitments have been terminated.


 


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


 


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


 


“Trademark Security
Agreements” means the Trademark Security Agreements 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.


 


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


 


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


 


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