exv10w40



 




Exhibit 10.40












CREDIT AGREEMENT




among




TELETECH HOLDINGS, INC.,

as Borrower,




THE LENDERS NAMED HEREIN,

as Lenders,




and




KEYBANK NATIONAL ASSOCIATION,

as Lead Arranger, Sole Book Runner and Administrative Agent




dated as of

May 5, 2004
















 









 












TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page

	ARTICLE I. DEFINITIONS
	 	 	1	 
	Section 1.1. Definitions
	 	 	1	 
	Section 1.2. Accounting Terms
	 	 	19	 
	Section 1.3. Terms Generally
	 	 	19	 
	ARTICLE II. AMOUNT AND TERMS OF CREDIT
	 	 	19	 
	Section 2.1. Amount and Nature of Credit
	 	 	19	 
	Section 2.2. Revolving Credit
	 	 	20	 
	Section 2.3. Interest
	 	 	24	 
	Section 2.4. Evidence of Indebtedness
	 	 	25	 
	Section 2.5. Notice of Credit Event; Funding of Loans
	 	 	26	 
	Section 2.6. Payment on Loans and Other Obligations
	 	 	27	 
	Section 2.7. Prepayment
	 	 	28	 
	Section 2.8. Commitment and Other Fees
	 	 	28	 
	Section 2.9. Modification of Commitment; Additional Collateral
	 	 	28	 
	Section 2.10. Computation of Interest and Fees
	 	 	29	 
	Section 2.11. Mandatory Payment
	 	 	30	 
	Section 2.12. Extension of Commitment
	 	 	30	 
	Section 2.13. Closing Security Documents
	 	 	30	 
	ARTICLE III. ADDITIONAL PROVISIONS RELATING TO EURODOLLAR LOANS; INCREASED
CAPITAL; TAXES
	 	 	31	 
	Section 3.1. Requirements of Law
	 	 	31	 
	Section 3.2. Taxes
	 	 	32	 
	Section 3.3. Funding Losses
	 	 	34	 
	Section 3.4. Change of Lending Office
	 	 	34	 
	Section 3.5. Eurodollar Rate Lending Unlawful; Inability to Determine Rate
	 	 	34	 
	Section 3.6. Replacement of Lenders
	 	 	35	 
	ARTICLE IV. CONDITIONS PRECEDENT
	 	 	36	 
	Section 4.1. Conditions to Each Credit Event
	 	 	36	 
	Section 4.2. Conditions to the First Credit Event
	 	 	36	 
	Section 4.3. Post-Closing Conditions
	 	 	38	 
	ARTICLE V. COVENANTS
	 	 	38	 
	Section 5.1. Insurance
	 	 	38	 
	Section 5.2. Money Obligations
	 	 	38	 
	Section 5.3. Financial Statements and Information
	 	 	39	 
	Section 5.4. Financial Records
	 	 	39	 
	Section 5.5. Franchises; Change in Business
	 	 	40	 
	Section 5.6. ERISA Compliance
	 	 	40	 
	Section 5.7. Financial Covenants
	 	 	40	 
	Section 5.8. Borrowing
	 	 	41	 
	Section 5.9. Liens
	 	 	42	 
	Section 5.10. Regulations T, U and X
	 	 	44	 
	Section 5.11. Investments and Loans
	 	 	44	 
	Section 5.12. Merger and Sale of Assets
	 	 	44	 







i









 





TABLE OF CONTENTS



	 	 	 	 	 
	 	 	Page

	Section 5.13. Acquisitions
	 	 	45	 
	Section 5.14. Notice
	 	 	46	 
	Section 5.15. Restricted Payments
	 	 	46	 
	Section 5.16. Environmental Compliance
	 	 	46	 
	Section 5.17. Affiliate Transactions
	 	 	47	 
	Section 5.18. Use of Proceeds
	 	 	47	 
	Section 5.19. Corporate Names
	 	 	47	 
	Section 5.20. Lease Rentals
	 	 	47	 
	Section 5.21. Subsidiary Guaranties and Pledge of Stock or Other Ownership Interest
	 	 	47	 
	Section 5.22. Restrictive Agreements
	 	 	48	 
	Section 5.23. Guaranty Under Material Indebtedness Agreement
	 	 	48	 
	Section 5.24. Pari Passu Ranking
	 	 	48	 
	Section 5.25. Note Purchase Agreement
	 	 	48	 
	Section 5.26. Amendment of Organizational Documents
	 	 	49	 
	ARTICLE VI. REPRESENTATIONS AND WARRANTIES
	 	 	49	 
	Section 6.1. Corporate Existence; Subsidiaries; Foreign Qualification
	 	 	49	 
	Section 6.2. Corporate Authority
	 	 	49	 
	Section 6.3. Compliance with Laws and Contracts
	 	 	49	 
	Section 6.4. Litigation and Administrative Proceedings
	 	 	50	 
	Section 6.5. Title to Assets
	 	 	50	 
	Section 6.6. Liens and Security Interests
	 	 	50	 
	Section 6.7. Tax Returns
	 	 	50	 
	Section 6.8. Environmental Laws
	 	 	50	 
	Section 6.9. Locations
	 	 	51	 
	Section 6.10. Continued Business
	 	 	51	 
	Section 6.11. Employee Benefits Plans
	 	 	51	 
	Section 6.12. Consents or Approvals
	 	 	52	 
	Section 6.13. Solvency
	 	 	52	 
	Section 6.14. Financial Statements
	 	 	52	 
	Section 6.15. Regulations
	 	 	52	 
	Section 6.16. Material Agreements
	 	 	53	 
	Section 6.17. Intellectual Property
	 	 	53	 
	Section 6.18. Insurance
	 	 	53	 
	Section 6.19. Accurate and Complete Statements
	 	 	53	 
	Section 6.20. Note Agreement
	 	 	53	 
	Section 6.21. Defaults
	 	 	53	 
	ARTICLE VII. EVENTS OF DEFAULT
	 	 	53	 
	Section 7.1. Payments
	 	 	54	 
	Section 7.2. Special Covenants
	 	 	54	 
	Section 7.3. Other Covenants
	 	 	54	 
	Section 7.4. Representations and Warranties
	 	 	54	 
	Section 7.5. Cross Default
	 	 	54	 
	Section 7.6. ERISA Default
	 	 	54	 
	Section 7.7. Change in Control
	 	 	54	 







ii









 




TABLE OF CONTENTS



	 	 	 	 	 
	 	 	Page

	Section 7.8. Money Judgment
	 	 	54	 
	Section 7.9. Material Adverse Change
	 	 	54	 
	Section 7.10. Security
	 	 	55	 
	Section 7.11.
Validity of Loan Documents
	 	 	55	 
	Section 7.12. Senior Notes
	 	 	55	 
	Section 7.13. Solvency
	 	 	55	 
	ARTICLE VIII. REMEDIES UPON DEFAULT
	 	 	56	 
	Section 8.1. Optional Defaults
	 	 	56	 
	Section 8.2. Automatic Defaults
	 	 	56	 
	Section 8.3. Letters of Credit
	 	 	56	 
	Section 8.4. Offsets
	 	 	56	 
	Section 8.5. Equalization Provision
	 	 	57	 
	Section 8.6. Other Remedies
	 	 	57	 
	ARTICLE IX. THE AGENT
	 	 	57	 
	Section 9.1. Appointment and Authorization
	 	 	57	 
	Section 9.2. Note Holders
	 	 	58	 
	Section 9.3. Consultation With Counsel
	 	 	58	 
	Section 9.4. Documents
	 	 	58	 
	Section 9.5. Agent and Affiliates
	 	 	58	 
	Section 9.6. Knowledge of Default
	 	 	58	 
	Section 9.7. Action by Agent
	 	 	58	 
	Section 9.8. Release of Collateral or Guarantor of Payment
	 	 	59	 
	Section 9.9. Notice of Default
	 	 	59	 
	Section 9.10. Indemnification of Agent
	 	 	59	 
	Section 9.11. Successor Agent
	 	 	59	 
	ARTICLE X. MISCELLANEOUS
	 	 	60	 
	Section 10.1. Lenders’ Independent Investigation
	 	 	60	 
	Section 10.2. No Waiver; Cumulative Remedies
	 	 	60	 
	Section 10.3. Amendments, Consents
	 	 	60	 
	Section 10.4. Notices
	 	 	61	 
	Section 10.5. Costs, Expenses and Taxes
	 	 	61	 
	Section 10.6. Indemnification
	 	 	61	 
	Section 10.7. Obligations Several; No Fiduciary Obligations
	 	 	62	 
	Section 10.8. Execution in Counterparts
	 	 	62	 
	Section 10.9. Binding Effect; Borrower’s Assignment
	 	 	62	 
	Section 10.10. Lender Assignments
	 	 	62	 
	Section 10.11. Sale of Participations
	 	 	64	 
	Section 10.12. Severability of Provisions; Captions; Attachments
	 	 	65	 
	Section 10.13. Investment Purpose
	 	 	65	 
	Section 10.14. Entire Agreement
	 	 	65	 
	Section 10.15. Legal Representation of Parties
	 	 	65	 
	Section 10.16. Governing Law; Submission to Jurisdiction
	 	 	65	 
	Section 10.17. Jury Trial Waiver
	 	Signature Page	 1	 







iii









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page

	Exhibit A Form of Revolving Credit Note
	 	 	 	 
	Exhibit B Form of Swing Line Note
	 	 	 	 
	Exhibit C Form of Notice of Loan
	 	 	 	 
	Exhibit D Form of Compliance Certificate
	 	 	 	 
	Exhibit E Form of Assignment and Acceptance Agreement
	 	 	 	 
	Exhibit F Form of Request for Extension
	 	 	 	 
	Schedule 1 Commitments of Lenders
	 	 	 	 
	Schedule 2 Guarantors of Payment
	 	 	 	 
	Schedule 2.2 BOA Letters of Credit
	 	 	 	 
	Schedule 3 Pledged Securities
	 	 	 	 
	Schedule 5.8 Indebtedness
	 	 	 	 
	Schedule 5.9 Liens
	 	 	 	 
	Schedule 6.1 Corporate Existence/Subsidiaries
	 	 	 	 
	Schedule 6.4 Litigation
	 	 	 	 
	Schedule 6.9 Locations
	 	 	 	 
	Schedule 6.11 Employee Benefit Plans
	 	 	 	 
	Schedule 6.16 Material Agreements
	 	 	 	 
	Schedule 6.18 Insurance
	 	 	 	 







iv









 






     This CREDIT AGREEMENT (as the same may from time to time be amended,
restated or otherwise modified, this “Agreement”) is made effective as of the
5th day of May, 2004, among:




     (a) TELETECH HOLDINGS, INC., a Delaware corporation (“Borrower”);




     (b) the lenders listed on Schedule 1 hereto and each other Eligible
Transferee, as hereinafter defined, that becomes a party hereto pursuant
to Section 10.10 hereof (collectively, the “Lenders” and, individually,
each a “Lender”); and




     (c) KEYBANK NATIONAL ASSOCIATION, as lead arranger, sole book runner
and administrative agent for the Lenders under this Agreement (“Agent”).



WITNESSETH:




     WHEREAS, Borrower, Agent and the Lenders desire to contract for the
establishment of credits in the aggregate principal amounts hereinafter set
forth, to be made available to Borrower upon the terms and subject to the
conditions hereinafter set forth;



     NOW, THEREFORE, it is mutually agreed as follows:



ARTICLE I. DEFINITIONS




     Section 1.1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:



     “Acquisition” shall mean any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of any Person (other than a Company),
or any business or division of any Person (other than a Company), (b) the
acquisition of in excess of fifty percent (50%) of the stock (or other equity
interest) of any Person (other than a Company), or (c) the acquisition of
another Person (other than a Company) by a merger, amalgamation or
consolidation or any other combination with such Person.



     “Additional Commitment” shall mean that term as defined in Section 2.9(b)
hereof.



     “Additional Lender” shall mean an Eligible Transferee that shall become a
Lender during the Commitment Increase Period pursuant to Section 2.9(b) hereof.



     “Additional Lender Assumption Agreement” shall mean an additional lender
assumption agreement, in form and substance satisfactory to Agent, wherein an
Additional Lender shall become a Lender.



 









 





     “Additional Lender Assumption Effective Date” shall mean that term as
defined in Section 2.9(b) hereof.



     “Advantage” shall mean any payment (whether made voluntarily or
involuntarily, by offset of any deposit or other indebtedness or otherwise)
received by any Lender in respect of the Obligations, if such payment results
in that Lender having less than its pro rata share of the Obligations then
outstanding, than was the case immediately before such payment.



     “Affiliate” shall mean any Person, directly or indirectly, controlling,
controlled by or under common control with a Company and “control” (including
the correlative meanings, the terms “controlling”, “controlled by” and “under
common control with”) shall mean the power, directly or indirectly, to direct
or cause the direction of the management and policies of a Company, whether
through the ownership of voting securities, by contract or otherwise.



     “Agent Fee Letter” shall mean the Agent Fee Letter between Borrower and
Agent, dated as of the Closing Date, as the same may from time to time be
amended, restated or otherwise modified.



     “Applicable Commitment Fee Rate” shall mean:



     (a) for the period from the Closing Date through August 31, 2004, thirty
(30.00) basis points; and



     (b) commencing with the Consolidated financial statements of Borrower for
the fiscal quarter ending June 30, 2004, the number of basis points set forth
in the following matrix, based upon the result of the computation of the
Leverage Ratio, shall be used to establish the number of basis points that will
go into effect on September 1, 2004 and thereafter:



	 	 	 
	Leverage Ratio
	 	Applicable Commitment Fee Rate

	Greater than or equal to 1.50 to 1.00

	 	40.00 basis points
	Greater than or equal to 0.50 to 1.00 but
less than 1.50 to 1.00

	 	30.00 basis points
	Less than 0.50 to 1.00

	 	25.00 basis points






After September 1, 2004, changes thereafter to the Applicable Commitment Fee
Rate shall be effective on the first day of each month following the date upon
which Agent received, or, if earlier, Agent should have received, pursuant to
Section 5.3(a) or (b) hereof, the financial statements of the Companies. The
above matrix does not modify or waive, in any respect, the requirements of
Section 5.7 hereof, the rights of Agent and the Lenders to charge the Default
Rate, or the rights and remedies of Agent and the Lenders pursuant to Articles
VII and VIII hereof. Notwithstanding anything herein to the contrary, during
any period when Borrower shall have failed to timely deliver the financial
statements pursuant to Section 5.3(a) or (b) hereof, or the Compliance
Certificate pursuant to Section 5.3(c) hereof, until such time as the
appropriate financial statements and Compliance Certificate are delivered, the
Applicable Commitment Fee Rate shall be the highest rate per annum indicated in
the above pricing grid regardless of the Leverage Ratio at such time.




2









 








     “Applicable Margin” shall mean:



     (a) for the period from the Closing Date through August 31, 2004, one
hundred seventy-five (175.00) basis points for Eurodollar Loans and zero (0.00)
basis points for Base Rate Loans; and



     (b) commencing with the Consolidated financial statements of Borrower for
the fiscal quarter ending June 30, 2004, the number of basis points (depending
upon whether Loans are Eurodollar Loans or Base Rate Loans) set forth in the
following matrix, based upon the result of the computation of the Leverage
Ratio, shall be used to establish the number of basis points that will go into
effect on September 1, 2004 and thereafter:



	 	 	 	 	 	 	 	 	 
	 	 	Applicable Basis	 	Applicable Basis
	 	 	Points for	 	Points for
	Leverage Ratio
	 	Eurodollar Loans
	 	Base Rate Loans

	Greater than or equal to 1.50 to 1.00
	 	 	200.00	 	 	 	25.00	 
	Greater than or equal to 1.00 to
1.00 but less than 1.50 to 1.00
	 	 	175.00	 	 	 	0.00	 
	Greater than or equal to 0.50 to
1.00 but less than 1.00 to 1.00
	 	 	150.00	 	 	 	0.00	 
	Less than 0.50 to 1.00
	 	 	125.00	 	 	 	0.00	 






After September 1, 2004, changes thereafter to the Applicable Margin shall be
effective on the first day of each month following the date upon which Agent
received, or, if earlier, Agent should have received, pursuant to Section
5.3(a) or (b) hereof, the financial statements of the Companies. The above
matrix does not modify or waive, in any respect, the requirements of Section
5.7 hereof, the rights of Agent and the Lenders to charge the Default Rate, or
the rights and remedies of Agent and the Lenders pursuant to Articles VII and
VIII hereof. Notwithstanding anything herein to the contrary, during any
period when Borrower shall have failed to timely deliver the financial
statements pursuant to Section 5.3(a) or (b) hereof, or the Compliance
Certificate pursuant to Section 5.3(c) hereof, until such time as the
appropriate financial statements and Compliance Certificate are delivered, the
Applicable Margin shall be the highest rate per annum indicated in the above
pricing grid regardless of the Leverage Ratio at such time.




     “Assignment Agreement” shall mean an Assignment and Acceptance Agreement
in the form of the attached Exhibit E.



     “Authorized Officer” shall mean a Financial Officer or any other
individual authorized by a Financial Officer in writing (with a copy to Agent)
to handle certain administrative matters in connection with this Agreement.



3









 





     “Base Rate” shall mean a rate per annum equal to the greater of (a) the
Prime Rate or (b) one-half of one percent (.50%) in excess of the Federal Funds
Effective Rate. Any change in the Base Rate shall be effective immediately
from and after such change in the Base Rate.



     “Base Rate Loan” shall mean a Revolving Loan described in Section 2.2(a)
hereof on which Borrower shall pay interest at a rate based on the Derived Base
Rate.



     “BOA Letters of Credit” shall mean that term as defined in Section
2.2(b)(vi) hereof.



     “Borrower Investment Policy” shall mean the investment policy of Borrower
in effect as of the Closing Date, together with such modifications as approved
from time to time by the Board of Directors of Borrower.



     “Business Day” shall mean any day that is not a Saturday, Sunday or other
day on which national banks are authorized or required to close, and, if the
applicable Business Day shall relate to a Eurodollar Loan, a day of the year on
which dealings in deposits are carried on in the London interbank Eurodollar
market.



     “Capital Distribution” shall mean a payment made, liability incurred or
other consideration given by a Company to any Person that is not a Company, for
the purchase, acquisition, redemption, repurchase or retirement of any capital
stock or other equity interest of such Company or as a dividend, return of
capital or other distribution (other than any stock dividend, stock split or
other equity distribution payable only in capital stock or other equity of such
Company) in respect of such Company’s capital stock or other equity interest.



     “Capitalized Lease Obligations” shall mean obligations of the Companies
for the payment of rent for any real or personal property under leases or
agreements to lease that, in accordance with GAAP, have been or should be
capitalized on the books of the lessee and, for purposes hereof, the amount of
any such obligation shall be the capitalized amount thereof determined in
accordance with GAAP.



     “Cash Equivalents” shall mean those securities and other investments
described in the Borrower Investment Policy.



     “Change in Control” shall mean (a) the acquisition of, or, if earlier, the
shareholder or director approval of the acquisition of, ownership or voting
control, directly or indirectly, beneficially or of record, on or after the
Closing Date, by any Person (other than Kenneth D. Tuchman, his spouse, any of
his lineal descendants or any trustees or trusts established for his benefit or
the benefit of his spouse or any of his lineal descendants) or group (within
the meaning of Rule 13d-3 of the SEC under the Securities Exchange Act of 1934,
as then in effect) of shares representing more than thirty percent (30%) of the
aggregate ordinary Voting Power represented by the issued and outstanding
capital stock of Borrower; (b) the occupation of a majority of the seats (other
than vacant seats) on the board of directors or other governing body of
Borrower by Persons who were neither (i) nominated by the board of directors or
other governing body of Borrower nor (ii) appointed by directors so nominated;
or (c) the occurrence of a change in control, or other similar provision, as
defined in any Material Indebtedness Agreement.



4









 





     “Closing Commitment Amount” shall mean One Hundred Million Dollars
($100,000,000).



     “Closing Date” shall mean the effective date of this Agreement as set
forth in the first paragraph of this Agreement.



     “Code” shall mean the Internal Revenue Code of 1986, as amended, together
with the rules and regulations promulgated thereunder.



     “Collateral” shall mean the Collateral, as defined in the Security
Documents.



     “Commitment” shall mean the obligation hereunder of the Lenders, during
the Commitment Period, to make Loans, to issue Letters of Credit and to
participate in Swing Loans and Letters of Credit pursuant to the Revolving
Credit Commitments, up to the Total Commitment Amount.



     “Commitment Increase Period” shall mean the period from the Closing Date
to the date that is three months prior to the last day of the Commitment
Period, or such later date as shall be agreed to in writing by Agent.



     “Commitment Percentage” shall mean, for each Lender, the percentage set
forth opposite such Lender’s name under the column headed “Commitment
Percentage”, as listed in Schedule 1 hereto.



     “Commitment Period” shall mean the period from the Closing Date to May 4,
2007, or such earlier date on which the Commitment shall have been terminated
pursuant to Article VIII hereof.



     “Companies” shall mean Borrower and all Subsidiaries.



     “Company” shall mean Borrower or a Subsidiary.



     “Compliance Certificate” shall mean a certificate, substantially in the
form of the attached Exhibit D.



     “Consideration” shall mean, in connection with an Acquisition, the
aggregate consideration paid, including borrowed funds, cash, the issuance of
securities or notes, the assumption or incurring of liabilities (direct or
contingent), the payment of consulting fees or fees for a covenant not to
compete and any other consideration paid for such Acquisition, but in all cases
excluding earn-outs in respect of such Acquisition, so long as such cash
earn-outs (which may be roughly quantified) are not in excess of twenty percent
(20%) of the purchase price.



     “Consolidated” shall mean the resultant consolidation of the financial
statements of Borrower and its Subsidiaries in accordance with GAAP, including
principles of consolidation



5









 







consistent with those applied in preparation of the consolidated financial
statements referred to in Section 6.14 hereof.



     “Consolidated Capital Expenditures” shall mean, for any period, the amount
of capital expenditures of Borrower, as determined on a Consolidated basis and
in accordance with GAAP.



     “Consolidated Depreciation and Amortization Charges” shall mean, for any
period, the aggregate of all depreciation and amortization charges for fixed
assets, leasehold improvements and general intangibles (specifically including
goodwill) of Borrower for such period, as determined on a Consolidated basis
and in accordance with GAAP.



     “Consolidated EBITDA” shall mean, for any period, on a Consolidated basis
and in accordance with GAAP, Consolidated Net Earnings for such period plus the
aggregate amounts deducted in determining such Consolidated Net Earnings in
respect of (a) Consolidated Interest Expense, (b) Consolidated Income Tax
Expense, (c) Consolidated Depreciation and Amortization Charges (and, in
addition, current and future amortization charges relating to the capitalized
costs incurred by the Companies in connection with the execution and closing of
this Agreement and the other Loan Documents (and future costs directly related
to the amendment, from time to time, of the foregoing documents)), (d) non-cash
charges incurred in accordance with any relevant Statements of Financial
Accounting Standards (but excluding any non-cash charges related to receivables
impairment), (e) (i) non-cash losses or charges (including charges incurred
pursuant to the refinancing of the credit facility referenced in Section 4.2(k)
hereof and future asset impairments (other than receivables impairment)) that
were included in the calculation of Consolidated Net Earnings for such period,
minus (ii) extraordinary or unusual non-cash gains not incurred in the ordinary
course of business but that were included in the calculation of Consolidated
Net Earnings for such period, and (f) cash charges provided that (i) the
aggregate amount for all such charges shall not exceed Fifteen Million Dollars
($15,000,000) during the term of this Agreement, and (ii) such charges are
specifically attributable to (A) prepayment penalties incurred pursuant to the
full repayment of the obligations under the Note Purchase Agreement, or (B) the
termination of the Existing Hedge Agreement; provided that, for purposes of
calculating the Leverage Ratio and the Interest Coverage Ratio, (1) a pro forma
calculation of Consolidated EBITDA shall be made for Significant Positive
EBITDA Dispositions for any fiscal year of Borrower if Significant Positive
EBITDA Dispositions are made, during such fiscal year, in excess of the
aggregate amount of Twenty Million Dollars ($20,000,000), and (2) a pro forma
calculation of Consolidated EBITDA shall be made for Significant Positive
EBITDA Acquisitions made during such period.



     “Consolidated Funded Indebtedness” shall mean, at any date, solely with
respect to Indebtedness and other obligations owing by the Companies to Persons
other than the Companies and without duplication, the sum of (a) all
Indebtedness for borrowed money, (b) all obligations evidenced by bonds,
debentures, notes or similar instruments, or upon which interest payments are
customarily made, (c) all guaranties of Indebtedness of the type described in
this definition, (d) all obligations created under any conditional sale or
other title retention agreements, (e) all Capitalized Lease Obligations,
synthetic lease and asset securitization obligations (provided that the
Companies may exclude synthetic leases of aircraft up to the aggregate amount
of Ten Million Dollars ($10,000,000)), (f) all obligations (contingent or



6









 







otherwise) with respect to letters of credit, and (g) all obligations for the
deferred purchase price of capital assets; as determined on a Consolidated
basis and in accordance with GAAP.



     “Consolidated Income Tax Expense” shall mean, for any period, all
provisions for taxes based on the gross or net income of Borrower (including,
without limitation, any additions to such taxes, and any penalties and interest
with respect thereto), and all franchise taxes of Borrower, as determined on a
Consolidated basis and in accordance with GAAP.



     “Consolidated Interest Expense” shall mean, for any period, the interest
expense of Borrower, paid in cash, on Consolidated Funded Indebtedness for such
period, as determined on a Consolidated basis and in accordance with GAAP.



     “Consolidated Net Earnings” shall mean, for any period, the net income
(loss) of Borrower for such period, as determined on a Consolidated basis and
in accordance with GAAP.



     “Consolidated Net Worth” shall mean, at any date, the stockholders’ equity
of Borrower, determined as of such date on a Consolidated basis and in
accordance with GAAP.



     “Controlled Group” shall mean a Company and each Person required to be
aggregated with a Company under Code Section 414(b), (c), (m) or (o).



     “Credit Event” shall mean the making by the Lenders of a Loan, the
conversion by the Lenders of a Base Rate Loan to a Eurodollar Loan, the
continuation by the Lenders of a Eurodollar Loan after the end of the
applicable Interest Period, the making by the Swing Line Lender of a Swing
Loan, or the issuance by the Fronting Lender of a Letter of Credit.



     “Credit Party” shall mean Borrower and any Subsidiary or other Affiliate
that is a Guarantor of Payment.



     “Default” shall mean an event or condition that constitutes, or with the
lapse of any applicable grace period or the giving of notice or both would
constitute, an Event of Default, and that has not been waived by the Required
Lenders in writing.



     “Default Rate” shall mean (a) with respect to any Loan, a rate per annum
equal to two percent (2%) in excess of the rate otherwise applicable thereto,
and (b) with respect to any other amount, if no rate is specified or available,
a rate per annum equal to two percent (2%) in excess of the Derived Base Rate
from time to time in effect.



     “Derived Base Rate” shall mean a rate per annum equal to the sum of the
Applicable Margin (from time to time in effect) for Base Rate Loans plus the
Base Rate.



     “Derived Eurodollar Rate” shall mean a rate per annum equal to the sum of
the Applicable Margin (from time to time in effect) for Eurodollar Loans plus
the Eurodollar Rate.



     “Disposition” shall mean the lease, transfer or other disposition of
assets (whether in one or more transaction) by a Company, other than a sale,
lease, transfer or other disposition made by



7









 







a Company pursuant to Section 5.12(b), (c), (e) or (f) hereof or in the
ordinary course of business.



     “Dollar” or the sign $ shall mean lawful money of the United States of
America.



     “Domestic Subsidiary” shall mean a Subsidiary that is not a Foreign
Subsidiary.



     “Dormant Subsidiary” shall mean a Company that (a) is not a Credit Party,
(b) has aggregate assets of less than Five Million Dollars ($5,000,000), and
(c) has no direct or indirect Subsidiaries with aggregate assets for all such
Subsidiaries of more than Five Million Dollars ($5,000,000).



     “EBITDA” shall mean, for any period, in accordance with GAAP, the net
earnings of a Company (without giving effect to extraordinary losses or gains)
for such period plus the aggregate amounts deducted in determining such net
earnings in respect of (a) interest expense of such Company, (b) income taxes
of such Company and (c) the aggregate of all depreciation and amortization
charges of such Company for fixed assets, leasehold improvements and general
intangibles (specifically including goodwill).



     “Eligible Transferee” shall mean a commercial bank, financial institution
or other “accredited investor” (as defined in SEC Regulation D) that is not
Borrower, a Subsidiary or an Affiliate and that may receive interest payments
hereunder or in connection herewith free of U.S. withholding taxes.



     “Environmental Laws” shall mean all provisions of law, statutes,
ordinances, rules, regulations, permits, licenses, judgments, writs,
injunctions, decrees, orders, awards and standards promulgated by the
government of the United States of America or by any state or municipality
thereof or any foreign jurisdiction, or by any court, agency, instrumentality,
regulatory authority or commission of any of the foregoing concerning health,
safety and protection of, or regulation of the discharge of substances into,
the environment.



     “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated pursuant thereto.



     “ERISA Event” shall mean (a) the existence of a condition or event with
respect to an ERISA Plan that is reasonably likely to result in the imposition
of a material excise tax or any other material liability on a Company or of the
imposition of a Lien on the assets of a Company; (b) the engagement by a
Controlled Group member in a non-exempt “prohibited transaction” (as defined
under ERISA Section 406 or Code Section 4975) or a breach of a fiduciary duty
under ERISA that is reasonably likely to result in a material liability to a
Company; (c) the application by a Controlled Group member for a waiver from the
minimum funding requirements of Code Section 412 or ERISA Section 302 or a
Controlled Group member is required to provide security under Code Section
401(a)(29) or ERISA Section 307; (d) the occurrence of a Reportable Event with
respect to any Pension Plan that is reasonably likely to result in a material
liability to a Company; (e) the withdrawal by a Controlled Group member from a
Multiemployer Plan in a “complete withdrawal” or a “partial withdrawal” (as
such terms are defined in ERISA Sections



8









 







4203 and 4205, respectively) which is reasonably likely to result in a material
liability to a Company; (f) the involvement of, or occurrence or existence of
any event or condition that makes likely the involvement of, a Multiemployer
Plan in any reorganization under ERISA Section 4241 which is reasonably likely
to result in a material liability to a Company; (g) the failure of an ERISA
Plan (and any related trust) that is intended to be qualified under Code
Sections 401 and 501 to be so qualified or the failure of any “cash or deferred
arrangement” under any such ERISA Plan to meet the requirements of Code Section
401(k); (h) the taking by the PBGC of any steps to terminate a Pension Plan or
appoint a trustee to administer a Pension Plan, or the taking by a Controlled
Group member of any steps to terminate a Pension Plan in a distress termination
under ERISA Section 4041(c); (i) the failure by a Controlled Group member or an
ERISA Plan to satisfy any requirements of law applicable to an ERISA Plan which
is reasonably likely to result in a material liability to one of the Companies;
(j) the commencement, existence or threatening of a claim, action, suit, audit
or investigation with respect to an ERISA Plan (other than a routine claim for
benefits) which is reasonably likely to result in a material liability to a
Company; or (k) any incurrence by or any expectation of the incurrence by a
Controlled Group member of a material increase in the liability for
post-retirement benefits under any Welfare Plan, other than as required by
ERISA Section 601, et. seq. or Code Section 4980B.



     “ERISA Plan” shall mean an “employee benefit plan” (within the meaning of
ERISA Section 3(3)) that a Controlled Group member at any time sponsors,
maintains, contributes to, has liability with respect to or has an obligation
to contribute to, and which is not excluded from the coverage of ERISA pursuant
to Section 4(b)(4) of ERISA.



     “Eurocurrency Liabilities” shall have the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.



     “Eurodollar” shall mean a Dollar denominated deposit in a bank or branch
outside of the United States.



     “Eurodollar Loan” shall mean a Revolving Loan described in Section 2.2(a)
hereof that shall be denominated in Dollars and on which Borrower shall pay
interest at a rate based upon the Derived Eurodollar Rate.



     “Eurodollar Rate” shall mean, with respect to a Eurodollar Loan, for any
Interest Period, a rate per annum equal to the quotient obtained (rounded
upwards, if necessary, to the nearest 1/16th of 1%) by dividing (a) the rate of
interest, determined by Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) as of approximately
11:00 A.M. (London time) two Business Days prior to the beginning of such
Interest Period pertaining to such Eurodollar Loan, as listed on British
Bankers Association Interest Rate LIBOR 01 or 02 as provided by Reuters (or, if
for any reason such rate is unavailable from Reuters, from any other similar
company or service that provides rate quotations comparable to those currently
provided by Reuters) as the rate in the London interbank market for Dollar
deposits in immediately available funds with a maturity comparable to such
Interest Period, provided that, in the event that such rate quotation is not
available for any reason, then the Eurodollar Rate shall be the average
(rounded upward to the nearest 1/16th of



9









 







1%) of the per annum rates at which deposits in immediately available funds in
Dollars for the relevant Interest Period and in the amount of the Eurodollar
Loan to be disbursed or to remain outstanding during such Interest Period, as
the case may be, are offered to Agent (or an affiliate of Agent, in Agent’s
discretion) by prime banks in any Eurodollar market reasonably selected by
Agent, determined as of 11:00 A.M. (London time) (or as soon thereafter as
practicable), two Business Days prior to the beginning of the relevant Interest
Period pertaining to such Eurodollar Loan hereunder; by (b) 1.00 minus the
Reserve Percentage.



     “Event of Default” shall mean an event or condition that shall constitute
an event of default as defined in Article VII hereof.



     “Excluded Taxes” shall mean net income taxes (and franchise taxes imposed
in lieu of net income taxes) imposed on Agent or any Lender by the Governmental
Authority located in the jurisdiction where Agent or such Lender is organized
(other than any such taxes arising solely from Agent or such Lender having
executed, delivered or performed its obligations or received a payment under,
or enforced, this Agreement or any other Loan Document).



     “Existing Hedge Agreement” shall mean that interest rate swap agreement
between Borrower and KeyBank National Association dated February 11, 2003, as
such agreement may from time to time be amended, restated or otherwise
modified.



     “Federal Funds Effective Rate” shall mean, for any day, the rate per annum
(rounded upward to the nearest one one-hundredth of one percent (1/100 of 1%))
announced by the Federal Reserve Bank of New York (or any successor) on such
day as being the weighted average of the rates on overnight federal funds
transactions arranged by federal funds brokers on the previous trading day, as
computed and announced by such Federal Reserve Bank (or any successor) in
substantially the same manner as such Federal Reserve Bank computes and
announces the weighted average it refers to as the “Federal Funds Effective
Rate” as of the Closing Date.



     “Financial Officer” shall mean any of the following officers: chief
executive officer, president, chief financial officer or treasurer. Unless
otherwise qualified, all references to a Financial Officer in this Agreement
shall refer to a Financial Officer of Borrower.



     “First-Tier Material Foreign Subsidiary” shall mean a Foreign Subsidiary
of Borrower (with assets (consolidated for the foreign jurisdiction) in excess
of three percent (3%) of Consolidated total assets of Borrower); provided,
however, that, if Agent, in its reasonable discretion after consultation with
Borrower, determines that the cost of perfecting, in a foreign jurisdiction,
the security interest of Agent, for the benefit of the Lenders, in the Pledged
Securities relating to any First-Tier Material Foreign Subsidiary (other than
those in Canada or Australia), is impractical or cost-prohibitive, then Agent
may agree to forego the foreign perfection of such security interest.



     “Foreign Employee Benefit Plan” shall mean an “employee benefit plan”
(within the meaning of ERISA Section 3(3)) that a Controlled Group member or a
Foreign Subsidiary at any



10









 







time sponsors, maintains, contributes to, has liability with respect to or has
an obligation to contribute to and which is not covered by ERISA pursuant to
ERISA Section 4(b)(4).



     “Foreign Subsidiary” shall mean a Subsidiary that is organized outside of
the United States.



     “Fronting Lender” shall mean, (a) as to any Letter of Credit transaction
hereunder (other than a BOA Letter of Credit), Agent as issuer of the Letter of
Credit, or, in the event that Agent either shall be unable to issue or shall
agree that another Lender may issue, a Letter of Credit, such other Lender as
shall agree to issue the Letter of Credit in its own name, but on behalf of the
Lenders hereunder; or (b) as to any BOA Letter of Credit, Bank of America, N.A.
(so long as it is a Lender) or Agent.



     “GAAP” shall mean generally accepted accounting principles in the United
States as then in effect, which shall include the official interpretations
thereof by the Financial Accounting Standards Board, applied on a basis
consistent with the past accounting practices and procedures of Borrower.



     “Global” shall mean Global One Colorado, Inc. and Global One Captive
Insurance Company, together with their respective successors and assigns (other
than a Credit Party).



     “Governmental Authority” shall mean any nation or government, any state,
province or territory or other political subdivision thereof, any governmental
agency, authority, instrumentality, regulatory body, court, central bank or
other governmental entity exercising executive, legislative, judicial, taxing,
regulatory or administrative functions of or pertaining to government, any
securities exchange and any self-regulatory organization.



     “Guarantor” shall mean a Person that shall have pledged its credit or
property in any manner for the payment or other performance of the
indebtedness, contract or other obligation of another and includes (without
limitation) any guarantor (whether of payment or of collection), surety,
co-maker, endorser or Person that shall have agreed conditionally or otherwise
to make any purchase, loan or investment in order thereby to enable another to
prevent or correct a default of any kind.



     “Guarantor of Payment” shall mean each of the Companies set forth on
Schedule 2 hereto from time to time that executes and delivers a Guaranty of
Payment to Agent in respect of the Obligations, or any other Person that shall
deliver a Guaranty of Payment to Agent in respect of the Obligations; provided,
however, that (a) none of Percepta or Global shall at any time constitute a
Guarantor of Payment, (b) no Foreign Subsidiary or Dormant Subsidiary shall be
required to be a Guarantor of Payment, and (c) no joint venture, partnership,
limited liability company or captive insurance company in which Borrower or any
other Company holds an interest shall be required to be a Guarantor of Payment
if such Person’s charter documents or applicable statutes or regulations
prohibit such a guaranty.



11









 





     “Guaranty of Payment” shall mean each Guaranty of Payment executed and
delivered on or after the Closing Date in connection with this Agreement by the
Guarantors of Payment, as the same may from time to time be amended, restated
or otherwise modified.



     “Hedge Agreement” shall mean any (a) hedge agreement, interest rate swap,
basis swap agreement, cap, collar or floor agreement, or other interest rate
management device (including forward rate agreements) entered into by a Company
with any Person, or (b) currency swap agreement, forward currency purchase
agreement or similar arrangement or agreement designed to protect against
fluctuations in currency exchange rates entered into by a Company with any
Person.



     “Indebtedness” shall mean, for any Company (excluding in all cases trade
payables and guaranties of performance by a Subsidiary) payable in the ordinary
course of business by such Company), without duplication, (a) all obligations
to repay borrowed money, direct or indirect, incurred, assumed, or guaranteed,
(b) all obligations for the deferred purchase price of capital assets, (c) all
obligations under conditional sales or other title retention agreements, (d)
all obligations (contingent or otherwise) under any letter of credit or
banker’s acceptance, (e) all net obligations under any currency swap agreement,
interest rate swap, cap, collar or floor agreement or other interest rate
management device or any Hedge Agreement, (f) all synthetic leases, (g) all
lease obligations that have been or should be capitalized on the books of such
Company in accordance with GAAP (and specifically excluding operating leases
that are not required under GAAP to be capitalized on the books of such
Company), (h) all obligations of such Company with respect to asset
securitization financing programs that are required to be reported as a
liability in accordance with GAAP, (i) all obligations to advance funds to, or
to purchase assets, property or services from, any other Person in order to
maintain the financial condition of such Person, and (j) any other transaction
(including forward sale or purchase agreements) having the commercial effect of
a borrowing of money entered into by such Company to finance its operations or
capital requirements.



     “Interest Adjustment Date” shall mean the last day of each Interest
Period.



     “Interest Coverage Ratio” shall mean, for the most recently completed four
fiscal quarters of Borrower, as determined on a Consolidated basis and in
accordance with GAAP, the ratio of (a) (i) Consolidated EBITDA minus (ii)
Twenty Million Dollars ($20,000,000), to (b) Consolidated Interest Expense;
provided that, for purposes of calculating Consolidated Interest Expense in
subpart (b) of this definition, (A) a pro forma calculation of Consolidated
Interest Expense shall be made for Significant Positive EBITDA Dispositions for
any fiscal year of Borrower if Significant Positive EBITDA Dispositions are
made, during such fiscal year, in excess of the aggregate amount of Twenty
Million Dollars ($20,000,000), and (B) a pro forma calculation of Consolidated
Interest Expense shall be made for Significant Positive EBITDA Acquisitions.



     “Interest Period” shall mean, with respect to a Eurodollar Loan, the
period commencing on the date such Eurodollar Loan is made and ending on the
last day of such period, as selected by Borrower pursuant to the provisions
hereof, and, thereafter (unless such Eurodollar Loan is converted to a Base
Rate Loan), each subsequent period commencing on the last day of the



12









 







immediately preceding Interest Period and ending on the last day of such
period, as selected by Borrower pursuant to the provisions hereof. The
duration of each Interest Period for a Eurodollar Loan shall be one month, two
months, three months or six months, in each case as Borrower may select upon
notice, as set forth in Section 2.5 hereof; provided that, if Borrower shall
fail to so select the duration of any Interest Period at least three Business
Days prior to the Interest Adjustment Date applicable to such Eurodollar Loan,
Borrower shall be deemed to have converted such Eurodollar Loan to a Base Rate
Loan at the end of the then current Interest Period.



     “Letter of Credit” shall mean a standby letter of credit that shall be
issued by the Fronting Lender for the account of Borrower or a Guarantor of
Payment, including amendments thereto, if any, and shall have an expiration
date no later than the earlier of (a) one year after its date of issuance or
(b) one year after the last day of the Commitment Period.



     “Letter of Credit Commitment” shall mean the commitment of the Fronting
Lender, on behalf of the Lenders, to issue Letters of Credit in an aggregate
face amount of up to Twenty-Five Million Dollars ($25,000,000).



     “Letter of Credit Exposure” shall mean, at any time, the sum of (a) the
aggregate undrawn face amount of all issued and outstanding Letters of Credit,
and (b) the aggregate of the draws made on Letters of Credit that have not been
reimbursed by Borrower or converted to a Revolving Loan pursuant to Section
2.2(b)(iv) hereof.



     “Leverage Ratio” shall mean as determined on a Consolidated basis and in
accordance with GAAP, the ratio of (a) Consolidated Funded Indebtedness (for
the most recently completed fiscal quarter of Borrower) to (b) Consolidated
EBITDA (for the most recently completed four fiscal quarters of Borrower).



     “Lien” shall mean any mortgage, deed of trust, security interest, lien
(statutory or other), charge, encumbrance on, pledge or deposit of, or
conditional sale, leasing, sale with a right of redemption or other title
retention agreement and any capitalized lease with respect to any property
(real or personal) or asset.



     “Loan” shall mean a Revolving Loan or a Swing Loan granted to Borrower in
accordance with Section 2.2(a) or 2.2(c) hereof.



     “Loan Documents” shall mean, collectively, this Agreement, each Note, each
Guaranty of Payment, all documentation relating to each Letter of Credit, each
Security Document and the Agent Fee Letter, as any of the foregoing may from
time to time be amended, restated or otherwise modified or replaced, and any
other document delivered pursuant thereto.



     “Material Adverse Effect” shall mean a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of
Borrower, (b) the business, operations, property or condition (financial or
otherwise) of the Companies taken as a whole, or (c) the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights and remedies of Agent or the Lenders hereunder or thereunder.



13









 





     “Material Indebtedness Agreement” shall mean any debt instrument, lease
(capital, operating or otherwise), guaranty, contract, commitment, agreement or
other arrangement evidencing any Indebtedness of any Company or the Companies
then in excess of the amount of Ten Million Dollars ($10,000,000).



     “Maximum Amount” shall mean, for each Lender, the amount set forth
opposite such Lender’s name under the column headed “Maximum Amount” as set
forth on Schedule 1 hereto, subject to decreases determined pursuant to Section
2.9(a) hereof, increases pursuant to Section 2.9(b) hereof and assignments of
interests pursuant to Section 10.10 hereof; provided, however, that the Maximum
Amount for the Swing Line Lender shall exclude the Swing Line Commitment (other
than its pro rata share), and the Maximum Amount of the Fronting Lender shall
exclude the Letter of Credit Commitment (other than its pro rata share).



     “Maximum Commitment Amount” shall mean One Hundred Fifty Million Dollars
($150,000,000).



     “Multiemployer Plan” shall mean a Pension Plan that is subject to the
requirements of Subtitle E of Title IV of ERISA.



     “Note” shall mean a Revolving Credit Note or the Swing Line Note, or any
other promissory note delivered pursuant to this Agreement.



     “Note Purchase Agreement” shall mean that certain Note Purchase Agreement,
dated as of October 1, 2001, between Borrower and the noteholders a party
thereto, as amended.



     “Notice of Loan” shall mean a Notice of Loan in the form of the attached
Exhibit C.



     “Obligations” shall mean, collectively, (a) all Indebtedness and other
obligations incurred by Borrower or any Guarantor of Payment to Agent, the
Fronting Lender, the Swing Line Lender or any Lender pursuant to this Agreement
and includes the principal of and interest on all Loans and all obligations
pursuant to Letters of Credit, (b) each extension, renewal or refinancing
thereof in whole or in part, and (c) the commitment fees, the other fees and
any prepayment fees payable hereunder, and all fees and charges in connection
with the Letters of Credit.



     “Organizational Documents” shall mean, with respect to any Person (other
than an individual), such Person’s Articles (Certificate) of Incorporation,
operating agreement or equivalent formation documents, and Regulations
(Bylaws), or equivalent governing documents, and any amendments to any of the
foregoing.



     “Other Taxes” shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, goods and services
taxes, harmonized sales taxes and other sales taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other Loan
Document.



14









 





     “PBGC” shall mean the Pension Benefit Guaranty Corporation, or its
successor.



     “Pension Plan” shall mean an ERISA Plan that is a “pension plan” (within
the meaning of ERISA Section 3(2)).



     “Percepta” shall mean Percepta, LLC and each of its Subsidiaries.



     “Person” shall mean any individual, sole proprietorship, partnership,
joint venture, unincorporated organization, corporation, limited liability
company, institution, trust, estate, government or other agency or political
subdivision thereof or any other entity.



     “Pledge Agreement” shall mean each of the Pledge Agreements, relating to
the Pledged Securities, executed and delivered by Borrower and each Domestic
Subsidiary in favor of Agent, for the benefit of the Lenders, dated as of the
Closing Date, and any other Pledge Agreement executed by any other Domestic
Subsidiary on or after the Closing Date, as any of the foregoing may from time
to time be amended, restated or otherwise modified.



     “Pledged Securities” shall mean sixty-five percent (65%) of the shares of
capital stock or other equity interest of a First-Tier Material Foreign
Subsidiary, whether now owned or hereafter acquired or created, and all
proceeds thereof (Schedule 3 hereto lists, as of the Closing Date, all of the
Pledged Securities).



     “Prime Rate” shall mean the interest rate established from time to time by
Agent as Agent’s prime rate, whether or not such rate shall be publicly
announced; the Prime Rate may not be the lowest interest rate charged by Agent
for commercial or other extensions of credit. Each change in the Prime Rate
shall be effective immediately from and after such change.



     “Regularly Scheduled Payment Date” shall mean the last day of each March,
June, September and December of each year.



     “Related Expenses” shall mean any and all reasonable costs, liabilities
and expenses (including, without limitation, losses, damages, penalties,
claims, actions, reasonable attorneys’ fees, reasonable legal expenses,
judgments, suits and disbursements) (a) incurred by Agent, or imposed upon or
asserted against Agent or any Lender in any attempt by Agent and the Lenders to
(i) obtain, preserve, perfect or enforce any Loan Document or any security
interest evidenced by any Loan Document; (ii) obtain payment, performance or
observance of any and all of the Obligations; (iii) maintain, insure, audit,
collect, preserve, repossess or dispose of any of the collateral securing the
Obligations or any part thereof, including, without limitation, reasonable
costs and expenses for appraisals, assessments and audits of any Company or any
such collateral; or (b) incidental or related to (a) above, including, without
limitation, interest thereupon from the date incurred, imposed or asserted
until paid at the Default Rate.



     “Related Writing” shall mean each Loan Document and any other assignment,
mortgage, security agreement, guaranty agreement, subordination agreement,
financial statement, audit report or other writing furnished by any Credit
Party, or any of its officers, to Agent or the Lenders pursuant to or otherwise
in connection with this Agreement.



15









 





     “Reportable Event” shall mean any of the events described in Section 4043
of ERISA.



     “Request for Extension” shall mean a notice, substantially in the form of
the attached Exhibit F.



     “Required Lenders” shall mean the holders of at least fifty-one percent
(51%) of the Total Commitment Amount, or, if there is any borrowing hereunder,
the holders of at least fifty-one percent (51%) of the Revolving Credit
Exposure; provided that, if the Total Commitment Amount shall be increased
pursuant to Section 2.9(b) hereof, Required Lenders shall constitute at least
two Lenders.



     “Requirement of Law” shall mean, as to any Person, any law, treaty, rule
or regulation or determination or policy statement or interpretation of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person
or any of its property is subject.



     “Reserve Percentage” shall mean for any day that percentage (expressed as
a decimal) that is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, all basic,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
for a member bank of the Federal Reserve System in Cleveland, Ohio, in respect
of Eurocurrency Liabilities. The Derived Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the Reserve
Percentage.



     “Restricted Payment” shall mean, with respect to any Company, (a) any
Capital Distribution, (b) any amount paid by such Company in repayment,
redemption, retirement or repurchase, directly or indirectly, of any
Subordinated Indebtedness, or (c) any amount paid by such Company in respect of
any management, consulting or other similar arrangement with any director,
officer or shareholder of a Company or an Affiliate, in excess of the aggregate
amount of One Hundred Thousand Dollars ($100,000) in any fiscal year.



     “Revolving Credit Commitment” shall mean the obligation hereunder, during
the Commitment Period, of (a) each Lender to make Revolving Loans and
participate in Swing Loans and Letters of Credit up to the Maximum Amount for
such Lender, (b) the Fronting Lender to issue Letters of Credit pursuant to the
Letter of Credit Commitment, and (c) the Swing Line Lender to make Swing Loans
pursuant to the Swing Line Commitment.



     “Revolving Credit Exposure” shall mean, at any time, the sum of (a) the
aggregate principal amount of all Revolving Loans outstanding, (b) the Swing
Line Exposure, and (c) the Letter of Credit Exposure.



     “Revolving Credit Note” shall mean a Revolving Credit Note executed and
delivered pursuant to Section 2.4(a) hereof.



16









 





     “Revolving Loan” shall mean a Loan granted to Borrower by the Lenders in
accordance with Section 2.2(a) hereof.



     “SEC” shall mean the United States Securities and Exchange Commission, or
any governmental body or agency succeeding to any of its principle functions.



     “Secured Obligations” shall mean, collectively, (a) the Obligations, and
(b) all obligations and liabilities of the Companies owing to Lenders under
Hedge Agreements.



     “Security Agreement” shall mean the Security Agreement, executed and
delivered by each Credit Party in favor of Agent, for the benefit of the
Lenders, dated as of the Closing Date, and any other Security Agreement
executed on or after the Closing Date, as the same may from time to time be
amended, restated or otherwise modified.



     “Security Documents” shall mean each Security Agreement, each Pledge
Agreement, each U.C.C. Financing Statement filed in connection herewith or
perfecting any interest created in any of the foregoing documents, and any
other document pursuant to which any Lien is granted by a Credit Party to
Agent, for the benefit of the Lenders, as security for the Secured Obligations,
or any part thereof, and each other agreement executed in connection with any
of the foregoing, as any of the foregoing may from time to time be amended,
restated or otherwise modified or replaced.



     “Senior Notes” shall mean any notes issued by Borrower pursuant to the
Note Purchase Agreement.



     “Significant Positive EBITDA Acquisition” shall mean an Acquisition that
generates positive EBITDA for the Company making such Acquisition in excess of
Five Million Dollars ($5,000,000).



     “Significant Positive EBITDA Disposition” shall mean a Disposition that
generates positive EBITDA for the Company effecting such Disposition in excess
of Five Million Dollars ($5,000,000).



     “Subordinated” shall mean, as applied to Indebtedness, Indebtedness that
shall have been subordinated (by written terms or written agreement being, in
either case, in form and substance satisfactory to Agent and the Required
Lenders) in favor of the prior payment in full of the Obligations.



     “Subsidiary” of a Company shall mean (a) a corporation more than fifty
percent (50%) of the Voting Power of which is owned, directly or indirectly, by
such Company or by one or more other subsidiaries of such Company or by such
Company and one or more subsidiaries of such Company, (b) a partnership or
limited liability company of which such Company, one or more other subsidiaries
of such Company or such Company and one or more subsidiaries of such Company,
directly or indirectly, is a general partner or managing member, as the case
may be, or otherwise has an ownership interest greater than fifty percent (50%)
of all of the ownership interests in such partnership or limited liability
company, or (c) any other Person (other than a



17









 







corporation, partnership or limited liability company) in which such Company,
one or more other subsidiaries of such Company or such Company and one or more
subsidiaries of such Company, directly or indirectly, has at least a majority
interest in the Voting Power or the power to elect or direct the election of a
majority of directors or other governing body of such Person.



     “Supporting Letter of Credit” shall mean a standby letter of credit, in
form and substance satisfactory to Agent and the Fronting Lender, issued by an
issuer satisfactory to Agent and the Fronting Lender.



     “Swing Line” shall mean the credit facility established by the Swing Line
Lender for Borrower in accordance with Section 2.2(c) hereof.



     “Swing Line Commitment” shall mean the commitment of the Swing Line Lender
to make Swing Loans to Borrower up to the aggregate amount at any time
outstanding of Fifteen Million Dollars ($15,000,000).



     “Swing Line Exposure” shall mean, at any time, the aggregate principal
amount of all Swing Loans outstanding.



     “Swing Line Lender” shall mean KeyBank National Association, as holder of
the Swing Line Commitment.



     “Swing Line Note” shall mean the Swing Line Note executed and delivered
pursuant to Section 2.4(b) hereof.



     “Swing Loan” shall mean a loan granted to Borrower by the Swing Line
Lender under the Swing Line.



     “Swing Loan Maturity Date” shall mean, with respect to any Swing Loan, the
earlier of (a) thirty (30) days after the date such Swing Loan is made, or (b)
the last day of the Commitment Period.



     “Taxes” shall mean any present or future taxes, levies, imposts, duties,
charges, fees, deductions or withholdings now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority (together with
any interest, penalties or similar liabilities with respect thereto) other than
Excluded Taxes.



     “Total Commitment Amount” shall mean the Closing Commitment Amount, as
such amount may be increased up to the Maximum Commitment Amount pursuant to
Section 2.9(b) hereof, or decreased pursuant to Section 2.9(a) hereof.



     “U.C.C.” shall mean the Uniform Commercial Code, as in effect from time to
time in Ohio.



18









 





     “U.C.C. Financing Statement” shall mean a financing statement filed or to
be filed in accordance with the Uniform Commercial Code, as in effect from time
to time, in the relevant state or states.



     “Voting Power” shall mean, with respect to any Person, the exclusive
ability to control, through the ownership of shares of capital stock,
partnership interests, membership interests or otherwise, the election of
members of the board of directors or other similar governing body of such
Person. The holding of a designated percentage of Voting Power of a Person
means the ownership of shares of capital stock, partnership interests,
membership interests or other interests of such Person sufficient to control
exclusively the election of that percentage of the members of the board of
directors or similar governing body of such Person.



     “Welfare Plan” shall mean an ERISA Plan that is a “welfare plan” within
the meaning of ERISA Section 3(l).



     Section 1.2. Accounting Terms. Any accounting term not specifically
defined in this Article I shall have the meaning ascribed thereto by GAAP.



     Section 1.3. Terms Generally. The foregoing definitions shall be
applicable to the singular and plurals of the foregoing defined terms. Unless
otherwise defined in this Article I, terms that are defined in the U.C.C. are
used herein as so defined.



ARTICLE II. AMOUNT AND TERMS OF CREDIT




     Section 2.1. Amount and Nature of Credit.



     (a) Subject to the terms and conditions of this Agreement, the Lenders,
during the Commitment Period and to the extent hereinafter provided, shall make
Loans to Borrower, participate in Swing Loans made by the Swing Line Lender to
Borrower, and issue or participate in Letters of Credit at the request of
Borrower, in such aggregate amount as Borrower shall request pursuant to the
Commitment; provided, however, that in no event shall the Revolving Credit
Exposure be in excess of the Total Commitment Amount.



     (b) Each Lender, for itself and not one for any other, agrees to make
Loans, participate in Swing Loans, and issue or participate in Letters of
Credit, during the Commitment Period, on such basis that, immediately after the
completion of any borrowing by Borrower or the issuance of a Letter of Credit:




     (i) the aggregate outstanding principal amount of Loans made by such
Lender (other than Swing Loans made by the Swing Line Lender), when
combined with such
Lender’s pro rata share, if any, of the Letter of Credit Exposure and the
Swing Line Exposure, shall not be in excess of the Maximum Amount for
such Lender; and




     (ii) the aggregate outstanding principal amount of Loans (other than
Swing Loans) made by such Lender shall represent that percentage of the
aggregate principal



19









 





amount then outstanding on all Loans (other than
Swing Loans) together with such Lender’s interest in the Letter of Credit
Exposure and the Swing Line Exposure that shall be such Lender’s
Commitment Percentage. Each borrowing (other than Swing Loans) from the
Lenders hereunder shall be made pro rata according to the respective
Commitment Percentages of the Lenders.



     (c) The Loans may be made as Revolving Loans as described in Section
2.2(a) hereof and Swing Loans as described in Section 2.2(c) hereof, and
Letters of Credit may be issued in accordance with Section 2.2(b) hereof.



     Section 2.2. Revolving Credit.



     (a) Revolving Loans. Subject to the terms and conditions of this
Agreement, during the Commitment Period, the Lenders shall make a Revolving
Loan or Revolving Loans to Borrower in such amount or amounts as Borrower may
from time to time request, but not exceeding in aggregate principal amount at
any time outstanding hereunder the Total Commitment Amount, when such Revolving
Loans are combined with the Letter of Credit Exposure and the Swing Line
Exposure. Borrower shall have the option, subject to the terms and conditions
set forth herein, to borrow Revolving Loans, maturing on the last day of the
Commitment Period, by means of any combination of Base Rate Loans or Eurodollar
Loans. Subject to the provisions of this Agreement, Borrower shall be entitled
under this Section 2.2(a) to borrow funds, repay the same in whole or in part
and re-borrow hereunder at any time and from time to time during the Commitment
Period.



     (b) Letters of Credit.




     (i) Generally. Subject to the terms and conditions of this
Agreement, during the Commitment Period, the Fronting Lender shall, in
its own name, on behalf of the Lenders, issue such Letters of Credit for
the account of Borrower and any other Company, as Borrower may from time
to time request. Borrower shall not request any Letter of Credit (and
the Fronting Lender shall not be obligated to issue any Letter of Credit)
if, after giving effect thereto, (A) the Letter of Credit Exposure would
exceed the Letter of Credit Commitment or (B) the Revolving Credit
Exposure would exceed the Total Commitment Amount. The issuance of each
Letter of Credit shall confer upon each Lender the benefits and
liabilities of a participation consisting of an undivided pro rata
interest in the Letter of Credit to the extent of such Lender’s
Commitment Percentage.




     (ii) Request for Letter of Credit. Each request for a Letter of
Credit shall be delivered to Agent (and to the Fronting Lender, if the
Fronting Lender is a Lender other than Agent) by an Authorized Officer
not later than 10:00 A.M. (Mountain time) three
Business Days prior to the day upon which the Letter of Credit is to be
issued. Each such request shall be in a form acceptable to Agent (and
the Fronting Lender, if the Fronting Lender is a Lender other than Agent)
and shall specify the face amount thereof, the account party, the
beneficiary, the intended date of issuance, the expiry date thereof, and
the nature of the transaction to be supported thereby. Concurrently with
each such



20









 





request, Borrower, and any Credit Party for whose account the
Letter of Credit is to be issued, shall execute and deliver to the
Fronting Lender an appropriate application and agreement, being in the
standard form of the Fronting Lender for such letters of credit, as
amended to conform to the provisions of this Agreement if required by
Agent. Agent shall give the Fronting Lender and each Lender notice of
each such request for a Letter of Credit.




     (iii) Standby Letters of Credit. With respect to each Letter of
Credit and the drafts thereunder, if any, whether issued for the account
of Borrower or any other Credit Party, Borrower agrees to (A) pay to
Agent, for the pro rata benefit of the Lenders, a non-refundable
commission based upon the face amount of such Letter of Credit, which
shall be paid quarterly in arrears, on each Regularly Scheduled Payment
Date, at the rate of the Applicable Margin for Eurodollar Loans (in
effect on the date such payment is to be made) multiplied by the undrawn
face amount of such Letter of Credit; (B) pay to Agent, for the sole
benefit of the Fronting Lender, an additional Letter of Credit fee, which
shall be paid on each date that such Letter of Credit shall be issued at
the rate of one-eighth percent (1/8%) of the face amount of such Letter
of Credit; and (C) pay to Agent, for the sole benefit of the Fronting
Lender, such other issuance, amendment, negotiation, draw, acceptance,
telex, courier, postage and similar transactional fees as are generally
charged by the Fronting Lender under its fee schedule as in effect from
time to time.




     (iv) Refunding of Letters of Credit with Revolving Loans. Whenever
a Letter of Credit shall be drawn, Borrower shall immediately reimburse
the Fronting Lender for the amount drawn. In the event that the amount
drawn shall not have been reimbursed by Borrower on the date of the
drawing of such Letter of Credit, at the sole option of Agent (and the
Fronting Lender, if the Fronting Lender is a Lender other than Agent),
Borrower shall be deemed to have requested a Revolving Loan, subject to
the provisions of Sections 2.2(a) and 2.5 hereof (other than the
requirement set forth in Section 2.5(d) hereof), in the amount drawn.
Such Revolving Loan shall be evidenced by the Revolving Credit Notes (or,
if a Lender has not requested a Revolving Credit Note, by the records of
Agent and such Lender). Each Lender agrees to make a Revolving Loan on
the date of such notice, subject to no conditions precedent whatsoever.
Each Lender acknowledges and agrees that its obligation to make a
Revolving Loan pursuant to Section 2.2(a) hereof when required by this
subsection (iv) shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, without limitation,
the occurrence and continuance of a Default or Event of Default, and that
its payment to Agent, for the account of the Fronting Lender, of the
proceeds of such Revolving Loan shall be made without any offset,
abatement, recoupment, counterclaim, withholding or reduction whatsoever
and whether or not such Lender’s Revolving Credit Commitment shall have
been reduced or terminated. Borrower irrevocably authorizes and
instructs Agent to apply the proceeds of any borrowing pursuant to this
subsection to reimburse, in full, the
Fronting Lender for the amount drawn on such Letter of Credit. Each such
Revolving Loan shall be deemed to be a Base Rate Loan unless otherwise
requested by and available to Borrower hereunder. Each Lender is hereby
authorized to record on its records relating to its Revolving Credit Note
(or, if such Lender has not requested a



21









 





Revolving Credit Note, its
records relating to Revolving Loans) such Lender’s pro rata share of the
amounts paid and not reimbursed on the Letters of Credit.




     (v) Participation in Letters of Credit. If, for any reason, Agent
(or the Fronting Lender if the Fronting Lender shall be a Lender other
than Agent) shall be unable to or, in the opinion of Agent, it shall be
impracticable to, convert any Letter of Credit to a Revolving Loan
pursuant to the preceding subsection, Agent (or the Fronting Lender if
the Fronting Lender is a Lender other than Agent) shall have the right to
request that each Lender purchase a participation in the amount due with
respect to such Letter of Credit, and Agent shall promptly notify each
Lender thereof (by facsimile or telephone, confirmed in writing). Upon
such notice, but without further action, the Fronting Lender hereby
agrees to grant to each Lender, and each Lender hereby agrees to acquire
from the Fronting Lender, an undivided participation interest in the
amount due with respect to such Letter of Credit in an amount equal to
such Lender’s Commitment Percentage of the principal amount due with
respect to such Letter of Credit. In consideration and in furtherance of
the foregoing, each Lender hereby absolutely and unconditionally agrees,
upon receipt of notice as provided above, to pay to Agent, for the
account of the Fronting Lender, such Lender’s ratable share of the amount
due with respect to such Letter of Credit (determined in accordance with
such Lender’s Commitment Percentage). Each Lender acknowledges and
agrees that its obligation to acquire participations in the amount due
under any Letter of Credit that is drawn but not reimbursed by Borrower
pursuant to this subsection (v) shall be absolute and unconditional and
shall not be affected by any circumstance whatsoever, including, without
limitation, the occurrence and continuance of a Default or Event of
Default, and that each such payment shall be made without any offset,
abatement, recoupment, counterclaim, withholding or reduction whatsoever
and whether or not such Lender’s Revolving Credit Commitment shall have
been reduced or terminated. Each Lender shall comply with its obligation
under this subsection (v) by wire transfer of immediately available
funds, in the same manner as provided in Section 2.5 hereof with respect
to Revolving Loans. Each Lender is hereby authorized to record on its
records such Lender’s pro rata share of the amounts paid and not
reimbursed on the Letters of Credit. In addition, each Lender agrees to
risk participate in the BOA Letters of Credit as provided in subsection
(vi) below.




     (vi) BOA Letters of Credit. Schedule 2.2 hereto contains a
description of all letters of credit outstanding on, and to continue in
effect after, the Closing Date. Each such letter of credit shall, on the
date that Bank of America, N.A. becomes a Lender under this Agreement,
constitute a “Letter of Credit” for all purposes of this Agreement,
issued, for purposes of Section 2.2(b)(v) hereof, under this Agreement
(each, a “BOA Letter of Credit”). Borrower, Agent and the Lenders hereby
agree that, from and after such date, the terms of this Agreement shall
apply to the BOA Letters of Credit, superseding any other agreement
theretofore applicable to them to the extent inconsistent with the terms
hereof. Notwithstanding anything to the contrary in any reimbursement
agreement applicable to the BOA Letters of Credit, the fees payable in
connection with each BOA Letter of Credit to be shared with the Lenders
shall accrue from the date that Bank of America, N.A. becomes a Lender
under this Agreement at the rate provided in this Section 2.2(b).



22









 






     (vii) Letters of Credit Outstanding Beyond the Commitment Period.
If any Letter of Credit is outstanding upon the termination of the
Commitment, then, upon such termination, Borrower shall deposit with
Agent, for the benefit of the Fronting Lender, with respect to all
outstanding Letters of Credit, either cash or a Supporting Letter of
Credit, which, in each case, is (A) in an amount equal to one hundred
five percent (105%) of the undrawn amount of the outstanding Letters of
Credit, and (B) free and clear of all rights and claims of third parties.
The cash shall be deposited in an escrow account at a financial
institution designated by the Fronting Lender. The Fronting Lender shall
be entitled to withdraw (with respect to the cash) or draw (with respect
to the Supporting Letter of Credit) amounts necessary to reimburse the
Fronting Lender for payments to be made under the Letters of Credit and
any fees and expenses associated with such Letters of Credit, or incurred
pursuant to the reimbursement agreements with respect to such Letters of
Credit. Borrower shall also execute such documentation as Agent or the
Fronting Lender may reasonably require in connection with the survival of
the Letters of Credit beyond the Commitment or this Agreement. After
expiration of all undrawn Letters of Credit, the Supporting Letter of
Credit or the remainder of the cash, as the case may be, shall promptly
be returned to Borrower.



     (c) Swing Loans.




     (i) Generally. Subject to the terms and conditions of this
Agreement, during the Commitment Period, the Swing Line Lender shall make
a Swing Loan or Swing Loans to Borrower in such amount or amounts as
Borrower, through an Authorized Officer, may from time to time request;
provided that Borrower shall not request any Swing Loan if, after giving
effect thereto, (A) the Revolving Credit Exposure would exceed the Total
Commitment Amount, or (B) the Swing Line Exposure would exceed the Swing
Line Commitment. Each Swing Loan shall be due and payable on the Swing
Loan Maturity Date applicable thereto. Borrower may prepay Swing Loans
in accordance with Section 2.7 hereof.




     (ii) Refunding of Swing Loans. If the Swing Line Lender so elects,
by giving notice to Borrower and the Lenders, Borrower agrees that the
Swing Line Lender shall have the right, in its sole discretion, to
require that any Swing Loan be refinanced as a Revolving Loan. Such
Revolving Loan shall be a Base Rate Loan unless otherwise requested by
and available to Borrower hereunder. Upon receipt of such notice by
Borrower and the Lenders, Borrower shall be deemed, on such day, to have
requested a Revolving Loan in the principal amount of the Swing Loan in
accordance with Sections 2.2(a) and 2.5 hereof (other than the
requirement set forth in Section 2.5(d) hereof). Such Revolving Loan
shall be evidenced by the Revolving Credit Notes (or, if a Lender has not
requested a Revolving Credit Note, by the records of Agent and such
Lender). Each Lender agrees to make a Revolving Loan on the date of such
notice, subject to no
conditions precedent whatsoever. Each Lender acknowledges and agrees
that such Lender’s obligation to make a Revolving Loan pursuant to
Section 2.2(a) hereof when required by this subsection (ii) is absolute
and unconditional and shall not be affected by any circumstance
whatsoever, including, without limitation, the occurrence and



23









 





continuance
of a Default or Event of Default, and that its payment to Agent, for the
account of the Swing Line Lender, of the proceeds of such Revolving Loan
shall be made without any offset, abatement, recoupment, counterclaim,
withholding or reduction whatsoever and whether or not such Lender’s
Revolving Credit Commitment shall have been reduced or terminated.
Borrower irrevocably authorizes and instructs Agent to apply the proceeds
of any borrowing pursuant to this subsection (ii) to repay in full such
Swing Loan. Each Lender is hereby authorized to record on its records
relating to its Revolving Credit Note (or, if such Lender has not
requested a Revolving Credit Note, its records relating to Revolving
Loans) such Lender’s pro rata share of the amounts paid to refund such
Swing Loan.




     (iii) Participation in Swing Loans. If, for any reason, Agent is
unable to or, in the opinion of Agent, it is impracticable to, convert
any Swing Loan to a Revolving Loan pursuant to the preceding subsection
(ii), then on any day that a Swing Loan is outstanding (whether before or
after the maturity thereof), Agent shall have the right to request that
each Lender purchase a participation in such Swing Loan, and Agent shall
promptly notify each Lender thereof (by facsimile or telephone, confirmed
in writing). Upon such notice, but without further action, the Swing
Line Lender hereby agrees to grant to each Lender, and each Lender hereby
agrees to acquire from the Swing Line Lender, an undivided participation
interest in such Swing Loan in an amount equal to such Lender’s
Commitment Percentage of the principal amount of such Swing Loan. In
consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided
above, to pay to Agent, for the benefit of the Swing Line Lender, such
Lender’s ratable share of such Swing Loan (determined in accordance with
such Lender’s Commitment Percentage). Each Lender acknowledges and
agrees that its obligation to acquire participations in Swing Loans
pursuant to this subsection (iii) is absolute and unconditional and shall
not be affected by any circumstance whatsoever, including, without
limitation, the occurrence and continuance of a Default or an Event of
Default, and that each such payment shall be made without any offset,
abatement, recoupment, counterclaim, withholding or reduction whatsoever
and whether or not such Lender’s Revolving Credit Commitment shall have
been reduced or terminated. Each Lender shall comply with its obligation
under this subsection (iii) by wire transfer of immediately available
funds, in the same manner as provided in Section 2.5 hereof with respect
to Revolving Loans to be made by such Lender.



     Section 2.3. Interest.



     (a) Revolving Loans.




     (i) Base Rate Loan. Borrower shall pay interest on the unpaid
principal amount of a Base Rate Loan outstanding from time to time from
the date thereof until
paid at the Derived Base Rate from time to time in effect. Interest on
such Base Rate Loan shall be payable, commencing June 30, 2004, and on
each Regularly Scheduled Payment Date thereafter and at the maturity
thereof; provided, however, that, on the Closing Date through May 12,
2004, the interest on Base Rate Loans shall be at one



24









 





hundred
seventy-five (175) basis points in excess of the Eurodollar Rate
(determined by Agent on the Closing Date as if the interest period were
seven days or substantially equivalent thereto).




     (ii) Eurodollar Loans. Borrower shall pay interest on the unpaid
principal amount of each Eurodollar Loan outstanding from time to time,
fixed in advance on the first day of the Interest Period applicable
thereto through the last day of the Interest Period applicable thereto
(but subject to changes in the Applicable Margin), at the Derived
Eurodollar Rate. Interest on such Eurodollar Loan shall be payable on
each Interest Adjustment Date with respect to an Interest Period
(provided that if an Interest Period shall exceed three months, the
interest must be paid every three months, commencing three months from
the beginning of such Interest Period).



     (b) Swing Loans. Borrower shall pay interest to Agent, for the sole
benefit of the Swing Line Lender (and any Lender that shall have purchased a
participation in such Swing Loan), on the unpaid principal amount of each Swing
Loan outstanding from time to time from the date thereof until paid at the
Derived Base Rate. Interest on each Swing Loan shall be payable on the Swing
Loan Maturity Date applicable thereto. Each Swing Loan shall bear interest for
a minimum of one day.



     (c) Default Rate. Anything herein to the contrary notwithstanding, if an
Event of Default shall occur, (i) the principal of each Loan and the unpaid
interest thereon shall bear interest, until paid, at the Default Rate, (ii) the
fee for the aggregate undrawn face amount of all issued and outstanding Letters
of Credit shall be increased by two percent (2%) in excess of the rate
otherwise applicable thereto, and (iii) in the case of any other amount due
from Borrower hereunder or under any other Loan Document, such amount shall
bear interest at the Default Rate.



     (d) Limitation on Interest. In no event shall the rate of interest
hereunder exceed the maximum rate allowable by law.



     Section 2.4. Evidence of Indebtedness.



     (a) Revolving Loans. To evidence the obligation of Borrower to a Lender,
upon the request of such Lender to Agent and Agent to Borrower, Borrower shall
execute a Revolving Credit Note in the form of the attached Exhibit A, payable
to the order of such Lender in the principal amount of its Revolving Credit
Commitment, or, if less, the aggregate unpaid principal amount of Revolving
Loans made by such Lender; provided, however, that the provision of a Revolving
Credit Note shall be at the option of each Lender and the failure of a Lender
to request a Revolving Credit Note shall in no way detract from Borrower’s
obligations to such Lender hereunder.



     (b) Swing Loan. The obligation of Borrower to repay the Swing Loans and
to pay interest thereon shall be evidenced by a Swing Line Note of Borrower in
the form of the attached Exhibit B, and payable to the order of the Swing Line
Lender in the principal amount of the



25









 







Swing Line Commitment, or, if less, the
aggregate unpaid principal amount of Swing Loans made by the Swing Line Lender.



     Section 2.5. Notice of Credit Event; Funding of Loans.



     (a) Notice of Credit Event. Borrower, through an Authorized Officer,
shall provide to Agent a Notice of Loan prior to (i) 10:00 A.M. (Mountain time)
on the proposed date of borrowing or conversion of any Base Rate Loan, (ii)
10:00 A.M. (Mountain time) three Business Days prior to the proposed date of
borrowing, conversion or continuation of any Eurodollar Loan, and (iii) 12:00
Noon (Mountain time) on the proposed date of borrowing of any Swing Loan.
Borrower shall comply with the notice provisions set forth in Section 2.2(b)
hereof with respect to Letters of Credit.



     (b) Funding of Loans. Agent shall notify each Lender of the date, amount
and Interest Period (if applicable) promptly upon the receipt of a Notice of
Loan, and, in any event, by 12:00 Noon. (Mountain time) on the date such notice
is received. On the date that the Credit Event set forth in such notice is to
occur, each such Lender shall provide to Agent, not later than 1:00 P.M.
(Mountain time), the amount in Dollars, in federal or other immediately
available funds, required of it. If Agent shall elect to advance the proceeds
of such Loan prior to receiving funds from such Lender, Agent shall have the
right, upon prior notice to Borrower, to debit any account of Borrower or
otherwise receive such amount from Borrower, on demand, in the event that such
Lender shall fail to reimburse Agent in accordance with this subsection. Agent
shall also have the right to receive interest from such Lender at the Federal
Funds Effective Rate in the event that such Lender shall fail to provide its
portion of the Loan on the date requested and Agent shall elect to provide such
funds.



     (c) Conversion of Loans. At the request of Borrower to Agent, subject to
the notice and other provisions of this Section 2.5, the Lenders shall convert
a Base Rate Loan to one or more Eurodollar Loans at any time and shall convert
a Eurodollar Loan to a Base Rate Loan on any Interest Adjustment Date
applicable thereto. Swing Loans may be converted by the Swing Line Lender to
Revolving Loans in accordance with Section 2.2(c)(ii) hereof.



     (d) Minimum Amount. Each request for:




     (i) a Base Rate Loan shall be in an amount of not less than Five
Hundred Thousand Dollars ($500,000), increased by increments of One
Hundred Thousand Dollars ($100,000);




     (ii) a Eurodollar Loan shall be in an amount of not less than Two
Million Dollars ($2,000,000), increased by increments of One Million
Dollars ($1,000,000); and




     (iii) a Swing Loan shall be in an amount not less than Two Hundred
Fifty Thousand Dollars ($250,000).



26









 





     (e) Interest Periods. At no time shall Borrower request that Eurodollar
Loans be outstanding for more than ten different Interest Periods, and, if a
Base Rate Loan is outstanding, then Eurodollar Loans shall be limited to nine
different Interest Periods at any time.



     Section 2.6. Payment on Loans and Other Obligations.



     (a) Payments Generally. Each payment made hereunder by a Credit Party
shall be made without any offset, abatement, recoupment, counterclaim,
withholding or reduction whatsoever.



     (b) Payments from Borrower. All payments (including prepayments) to Agent
of the principal of or interest on any Loan or other payment, including but not
limited to principal, interest or fees, or any other amount owed by Borrower
under this Agreement, shall be made in Dollars. All payments described in this
subsection (b) shall be remitted to Agent, at the address of Agent for notices
referred to in Section 10.4 hereof, for the account of the Lenders (or the
Fronting Lender or the Swing Line Lender, as appropriate) not later than 10:00
A.M. (Mountain time) on the due date thereof in immediately available funds.
Other than with respect to payments made by wire transfer that are released by
Borrower by 10:00 A.M. (Mountain time), any such payments received by Agent
after 10:00 A.M. (Mountain time) shall be deemed to have been made and received
on the next Business Day.



     (c) Payments to Lenders. Upon Agent’s receipt of payments hereunder,
Agent shall immediately distribute to each Lender (except with respect to Swing
Loans, which shall be paid to the Swing Line Lender) its ratable share, if any,
of the amount of principal, interest, and commitment and other fees received by
Agent for the account of such Lender. Each Lender shall record any principal,
interest or other payment, the principal amounts of Base Rate Loans, Eurodollar
Loans and Swing Loans, prepayments, and the applicable dates, including
Interest Periods, with respect to the Loans made, and payments received by such
Lender, by such method as such Lender may generally employ; provided, however,
that failure to make any such entry shall in no way detract from the
obligations of Borrower under this Agreement or any Note. The aggregate unpaid
amount of Loans, types of Loans, Interest Periods and similar information with
respect to the Loans and Letters of Credit set forth on the records of Agent
shall be rebuttably presumptive evidence with respect to such information,
including the amounts of principal and interest owing to each Lender.



     (d) Timing of Payments. Whenever any payment to be made hereunder,
including, without limitation, any payment to be made on any Loan, shall be
stated to be due on a day that is not a Business Day, such payment shall be
made on the next Business Day and such extension of time shall in each case be
included in the computation of the interest payable on such Loan; provided,
however, that, with respect to any Eurodollar Loan, if the next Business Day
shall fall in the succeeding calendar month, such payment shall be made on the
preceding Business Day and the relevant Interest Period shall be adjusted
accordingly.






27









 





     Section 2.7. Prepayment.


     (a) Right to Prepay. Borrower shall have the right at any time or from
time to time to prepay, on a pro rata basis for all of the Lenders (except with
respect to Swing Loans, which shall be paid to the Swing Line Lender), all or
any part of the principal amount of the Loans, as designated by Borrower. Such
payment shall include interest accrued on the amount so prepaid to the date of
such prepayment and any amount payable under Article III hereof with respect to
the amount being prepaid. Borrower shall have the right, at any time or from
time to time, to prepay, for the benefit of the Swing Line Lender (and any
Lender that has purchased a participation in such Swing Loan), all or any part
of the principal amount of the Swing Loans then outstanding, as designated by
Borrower, plus interest accrued on the amount so prepaid to the date of such
prepayment.



     (b) Notice of Prepayment. Borrower shall give Agent notice of prepayment
of a Base Rate Loan or Swing Loan by not later than 11:00 A.M. (Mountain time)
one Business Day before the Business Day on which such prepayment is to be made
and written notice of the prepayment of any Eurodollar Loan not later than
11:00 A.M. (Mountain time) three Business Days before the Business Day on which
such prepayment is to be made.



     (c) Minimum Amount. Each prepayment of a Eurodollar Loan by Borrower
shall be in the aggregate principal amount of not less than One Million Dollars
($1,000,000), except in the case of a mandatory prepayment in connection with
Section 2.11 or Article III hereof.



     Section 2.8. Commitment and Other Fees.



     (a) Commitment Fee. Borrower shall pay to Agent, for the ratable account
of the Lenders, as a consideration for the Commitment, a commitment fee from
the Closing Date to and including the last day of the Commitment Period,
payable quarterly, at a rate per annum equal to (i) the Applicable Commitment
Fee Rate in effect on the payment date, times (ii) (A) the average daily Total
Commitment Amount in effect during such quarter, minus (B) the average daily
Revolving Credit Exposure (exclusive of the Swing Line Exposure) during such
quarter. The commitment fee shall be payable in arrears, on June 30, 2004 and
on each Regularly Scheduled Payment Date thereafter, and on the last day of the
Commitment Period.



     (b) Agent Fee. Borrower shall pay to Agent, for its sole benefit, the
fees set forth in the Agent Fee Letter.



     Section 2.9. Modification of Commitment.



     (a) Optional Reduction of Commitment. Borrower may at any time and from
time to time permanently reduce in whole or ratably in part the Total
Commitment Amount to an amount not less than the then existing Revolving Credit
Exposure, by giving Agent not fewer than three Business Days’ written notice of
such reduction, provided that any such partial reduction shall be
in an aggregate amount, for all of the Lenders, of not less than Five Million
Dollars ($5,000,000), increased by increments of One Million Dollars
($1,000,000). Agent shall promptly notify each Lender of the date of each such
reduction and such Lender’s proportionate share thereof. After each such
reduction, the commitment fees payable hereunder shall be calculated upon the
Total Commitment Amount as so reduced. If Borrower reduces in whole the



28









 







Commitment, on the effective date of such reduction (Borrower having prepaid in
full the unpaid principal balance, if any, of the Loans, together with all
interest and commitment and other fees accrued and unpaid, and provided that no
Letter of Credit Exposure or Swing Line Exposure shall exist), all of the Notes
shall be delivered to Agent marked “Canceled” and Agent shall redeliver such
Notes to Borrower. Any partial reduction in the Total Commitment Amount shall
be effective during the remainder of the Commitment Period.



     (b) Increase in Commitment. At any time during the Commitment Increase
Period, Borrower may request that Agent increase the Total Commitment Amount
from the Closing Commitment Amount up to an amount that shall not exceed the
Maximum Commitment Amount. Each such increase shall be in an amount of at
least Ten Million Dollars ($10,000,000), increased by increments of One Million
Dollar ($1,000,000), and may be made by either (i) proportionally increasing,
for one or more Lenders, with their prior written consent, their respective
Revolving Credit Commitments, or (ii) including one or more Additional Lenders,
each with a new Revolving Credit Commitment, as a party to this Agreement
(collectively, the “Additional Commitment”); provided, however, that existing
Lenders shall be given the first opportunity to provide the Additional
Commitments. During the Commitment Increase Period, the Lenders agree that
Agent, in its sole discretion, may permit one or more Additional Commitments
upon satisfaction of the following requirements: (A) each Additional Lender, if
any, shall execute an Additional Lender Assumption Agreement, (B) Agent shall
provide to Borrower and each Lender a revised Schedule 1 to this Agreement,
including revised Commitment Percentages for each of the Lenders, if
appropriate, at least three Business Days prior to the effectiveness of such
Additional Commitments (each an “Additional Lender Assumption Effective Date”),
and (C) Borrower shall execute and deliver to Agent and the Lenders such
replacement or additional Revolving Credit Notes as shall be required by Agent
(and requested by the Lenders). The Lenders hereby authorize Agent to execute
each Additional Lender Assumption Agreement on behalf of the Lenders. On each
Additional Lender Assumption Effective Date, the Lenders shall make adjustments
among themselves with respect to the Revolving Loans then outstanding and
amounts of principal, interest, commitment fees and other amounts paid or
payable with respect thereto as shall be necessary, in the opinion of Agent, in
order to reallocate among such Lenders such outstanding amounts, based on the
revised Commitment Percentages and to otherwise carry out fully the intent and
terms of this Section 2.9(b). Borrower shall not request any increase in the
Commitment pursuant to this Section 2.9(b) if a Default or an Event of Default
shall then exist, or immediately after giving effect to any such increase would
exist.



     Section 2.10. Computation of Interest and Fees. With the exception of
Base Rate Loans, interest on Loans and commitment and other fees and charges
hereunder shall be computed on the basis of a year having three hundred sixty
(360) days and calculated for the actual number of days elapsed. With respect
to Base Rate Loans, interest shall be computed on the basis of a year having
three
hundred sixty-five (365) days or three hundred sixty-six (366) days, as the
case may be, and calculated for the actual number of days elapsed.






29









 





     Section 2.11. Mandatory Payment.


     (a) If, at any time prior to (i) the repayment in full of the Senior
Notes, (ii) the termination of the Note Purchase Agreement and (iii) the filing
of the U.C.C. Financing Statements by Borrower or Agent in connection with the
Security Documents referenced in Section 2.13 hereof, the Revolving Credit
Exposure shall exceed Seventy-Five Million Dollars ($75,000,000), Borrower
shall, as promptly as practicable, but in no event later than the next Business
Day, prepay an aggregate principal amount of the Revolving Loans sufficient to
bring the Revolving Credit Exposure to an amount equal to or less than
Seventy-Five Million Dollars ($75,000,000).



     (b) If, at any time, the Revolving Credit Exposure shall exceed the Total
Commitment Amount as then in effect, Borrower shall, as promptly as
practicable, but in no event later than the next Business Day, prepay an
aggregate principal amount of the Revolving Loans sufficient to bring the
Revolving Credit Exposure within the Total Commitment Amount.



     (c) If, at any time, the Swing Line Exposure shall exceed the Swing Line
Commitment, Borrower shall, as promptly as practicable, but in no event later
than the next Business Day, prepay an aggregate principal amount of the Swing
Loans sufficient to bring the Swing Line Exposure within the Swing Line
Commitment.



     (d) Unless otherwise designated by Borrower, each prepayment pursuant to
Section 2.11(a) or (b) hereof shall be applied in the following order (i)
first, on a pro rata basis among the outstanding Base Rate Loans, and (ii)
second, on a pro rata basis among the outstanding Eurodollar Loans, provided
that, if the outstanding principal amount of any Eurodollar Loan shall be
reduced to an amount less than the minimum amount set forth in Section 2.5(d)
hereof as a result of such prepayment, then such Eurodollar Loan shall be
converted into a Base Rate Loan on the date of such prepayment. Any prepayment
of a Eurodollar Loan pursuant to this Section 2.11 shall be subject to the
prepayment provisions set forth in Article III hereof.



     Section 2.12. Extension of Commitment. Contemporaneously with the
delivery of the financial statements required pursuant to Section 5.3(b) hereof
(beginning with the financial statements for the fiscal year of Borrower ending
December 31, 2004), Borrower may deliver a Request for Extension, requesting
that the Lenders extend the maturity of the Revolving Credit Commitments for
one additional year. Each such extension shall require the unanimous written
consent of all of the Lenders and shall be upon such terms and conditions as
may be agreed to by Agent, Borrower and the Lenders. Borrower shall pay any
reasonable attorneys’ fees or other reasonable expenses of Agent in connection
with the documentation of any such extension, as well as such other fees as may
be agreed upon between Borrower and Agent.



     Section 2.13. Closing Security Documents. On the Closing Date, the
Credit Parties shall execute and deliver to Agent, for the benefit of the
Lenders, the Security Documents described in Section 4.2 hereof (the “Closing
Security Documents”). Agent and the Lender acknowledge and agree that the
Closing Security Documents will be held in escrow by Agent and that any
security interest or Lien granted by the Credit Parties to Agent, for the
benefit of the Lenders, under the Closing Security Documents shall not be
effective until the earlier of (a) payment in full of the Senior Notes, or (b)
the date that is forty-five (45) days after the Closing Date, at which time



30









 







Agent is authorized to release the Closing Security Documents from escrow and
file U.C.C. Financing Statements in the appropriate filing offices. Borrower
acknowledges and agrees that Agent may release the Closing Security Documents
from escrow under the preceding conditions without providing notice of any kind
to Borrower or any other Credit Party. The provisions in this Section 2.13
shall control over the provisions of the Closing Security Documents.



ARTICLE III. ADDITIONAL PROVISIONS RELATING TO

EURODOLLAR LOANS; INCREASED CAPITAL; TAXES




     Section 3.1. Requirements of Law.



     (a) If, after the Closing Date (i) the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or (ii) the
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority:




     (A) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit or any Eurodollar Loan
made by it, or change the basis of taxation of payments to such Lender in
respect thereof (except for Taxes and Excluded Taxes which are governed
by Section 3.2 hereof);




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




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


and the result of any of the foregoing is to increase the cost to such Lender
of making, converting into, continuing or maintaining Eurodollar Loans or
issuing or participating in Letters of Credit, or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, Borrower shall
pay to such Lender, promptly after receipt of a written request therefor, any
additional amounts necessary to compensate such Lender for such increased cost
or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to
this subsection (a), such Lender shall promptly notify Borrower (with a copy to
Agent) of the event by reason of which it has become so entitled.




     (b) If any Lender shall have determined that, after the Closing Date, the
adoption of or any change in any Requirement of Law regarding capital adequacy
or in the interpretation or application thereof or compliance by such Lender or

any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority shall have the effect of reducing the rate of return on such Lender’s
or such corporation’s capital as a consequence of its obligations hereunder, or
under or in respect of any Letter of Credit, to a level below that which such
Lender or such corporation



31









 







could have achieved but for such adoption, change or
compliance (taking into consideration the policies of such Lender or
corporation with respect to capital adequacy), then from time to time, upon
submission by such Lender to Borrower (with a copy to Agent) of a written
request therefor (which shall include the method for calculating such amount),
Borrower shall promptly pay or cause to be paid to such Lender such additional
amount or amounts as will compensate such Lender for such reduction.



     (c) A certificate as to any additional amounts payable pursuant to this
Section 3.1 submitted by any Lender to Borrower (with a copy to Agent) shall be
conclusive absent manifest error. In determining any such additional amounts,
such Lender may use any method of averaging and attribution that it (in its
reasonable discretion) shall deem applicable. The obligations of Borrower
pursuant to this Section 3.1 shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder; provided
that Borrower shall not be required to make any payments pursuant to this
Section 3.1 to a Lender for any increased costs incurred or reductions suffered
more than ninety (90) days prior to the date that such Lender notifies Borrower
of the circumstances giving rise to such increased costs or reductions and of
such Lender’s intention to claim compensation therefor (except that, if the
circumstances giving rise to such increased costs or reductions are
retroactive, then the ninety (90) day period referred to above shall be
extended to include the period of retroactive effect thereof).



     Section 3.2. Taxes.



     (a) All payments made by any Credit Party under any Loan Document shall be
made free and clear of, and without deduction or withholding for or on account
of any Taxes or Other Taxes. If any Taxes or Other Taxes are required to be
withheld from any amounts payable to Agent or any Lender thereunder, the
amounts so payable to Agent or such Lender shall be increased to the extent
necessary to yield to Agent or such Lender (after payment of all Taxes and
Other Taxes) interest or any such other amounts payable hereunder at the rates
or in the amounts specified in the Loan Documents.



     (b) In addition, the Credit Parties shall pay Other Taxes to the relevant
Governmental Authority in accordance with applicable law.



     (c) Whenever any Taxes or Other Taxes are required to be withheld and paid
by a Credit Party, such Credit Party shall timely withhold and pay such taxes
to the relevant
Governmental Authorities. As promptly as possible thereafter, Borrower shall
send to Agent for its own account or for the account of the relevant Lender, as
the case may be, a certified copy of an original official receipt received by
such Credit Party showing payment thereof. If such Credit Party shall fail to
pay any Taxes or Other Taxes when due to the appropriate taxing authority or
fails to remit to Agent the required receipts or other required documentary
evidence, Borrower shall indemnify Agent and the appropriate Lenders on demand
for any incremental taxes, interest or penalties that may become payable by
Agent or such Lender as a result of any such failure.



32









 





     (d) If any Lender shall be so indemnified by a Credit Party, such Lender
shall use reasonable efforts to obtain the benefits of any refund, deduction or
credit for any taxes or other amounts with respect to the amount paid by such
Credit Party and shall reimburse such Credit Party to the extent, but only to
the extent, that such Lender shall receive a refund with respect to the amount
paid by such Credit Party or an effective net reduction in taxes or other
governmental charges (including any taxes imposed on or measured by the total
net income of such Lender) of the United States or any state or subdivision or
any other Governmental Authority thereof by virtue of any such deduction or
credit, after first giving effect to all other deductions and credits otherwise
available to such Lender. If, at the time any audit of such Lender’s income
tax return is completed, such Lender determines, based on such audit, that it
shall not have been entitled to the full amount of any refund reimbursed to
such Credit Party as aforesaid or that its net income taxes shall not have been
reduced by a credit or deduction for the full amount reimbursed to such Credit
Party as aforesaid, such Credit Party, upon request of such Lender, shall
promptly pay to such Lender the amount so refunded to which such Lender shall
not have been so entitled, or the amount by which the net income taxes of such
Lender shall not have been so reduced, as the case may be.



     (e) Each Lender that is not (i) a citizen or resident of the United States
of America, (ii) a corporation, partnership or other entity created or
organized in or under the laws of the United States of America (or any
jurisdiction thereof), or (iii) an estate or trust that is subject to U.S.
federal income taxation regardless of the source of its income (any such
Person, a “Non-U.S. Lender”) shall deliver to Borrower and Agent two copies of
either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the
case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax
under Section 871(h) or 881(c) of the Code with respect to payments of
“portfolio interest”, a statement with respect to such interest and a Form
W-8BEN, or any subsequent versions thereof or successors thereto, properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, or a reduced rate of, U.S. federal withholding tax on all payments by
Credit Parties under this Agreement and the other Loan Documents. Such forms
shall be delivered by each Non-U.S. Lender on or before the date it becomes a
party to this Agreement or such other Loan Document. In addition, each
Non-U.S. Lender shall deliver such forms or appropriate replacements promptly
upon the obsolescence or invalidity of any form previously delivered by such
Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify Borrower at any
time it determines that such Lender is no longer in a position to provide any
previously delivered certificate to Borrower (or any other form of
certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this subsection (e), a Non-U.S. Lender
shall not be required to deliver any form pursuant to this subsection (e) that
such Non-U.S. Lender is not legally able to deliver.



     (f) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which a Credit
Party is located, or any treaty to which such jurisdiction is a party, with
respect to payments under any Loan Document shall use reasonable efforts to
deliver to Borrower (with a copy to the Agent), at the time or times prescribed
by applicable law or reasonably requested by Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate; provided, that
such Lender is legally entitled to complete, execute and deliver such
documentation and in such Lender’s judgment such



33









 







completion, execution or
submission would not materially prejudice the legal position of such Lender.



     (g) The agreements in this Section 3.2 shall survive the termination of
the Loan Documents and the payment of the Loans and all other amounts payable
hereunder.



     Section 3.3. Funding Losses. Borrower agrees to indemnify each Lender,
promptly after receipt of a written request therefor, and to hold each Lender
harmless from, any loss or expense that such Lender may sustain or incur as a
consequence of (a) default by Borrower in making a borrowing of, conversion
into or continuation of Eurodollar Loans after Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
default by Borrower in making any prepayment of or conversion from Eurodollar
Loans after Borrower has given a notice thereof in accordance with the
provisions of this Agreement, (c) the making of a prepayment of a Eurodollar
Loan on a day that is not the last day of an Interest Period applicable
thereto, or (d) any conversion of a Eurodollar Loan to a Base Rate Loan
pursuant to Section 3.4 hereof on a day that is not the last day of an Interest
Period applicable thereto. Such indemnification shall be in an amount equal to
the excess, if any, of (i) the amount of interest that would have accrued on
the amounts so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment or of such failure to borrow, convert
or continue to the last day of such Interest Period (or, in the case of a
failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Margin
included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) that would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading
banks in the appropriate London interbank market, along with any administration
fee charged by such Lender. A certificate as to any amounts payable pursuant
to this Section 3.3 submitted to Borrower (with a copy to Agent) by any Lender
shall be conclusive absent manifest error. The obligations of Borrower
pursuant to this Section 3.3 shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.



     Section 3.4. Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 3.1 or 3.2(a)
hereof with respect to such Lender, it will, if requested by Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office (or an affiliate of such Lender, if practical
for such Lender) for any Loans affected
by such event with the object of avoiding the consequences of such event;
provided, that such designation is made on terms that, in the sole judgment of
such Lender, cause such Lender and its lending office(s) to suffer no economic,
legal or regulatory disadvantage; and provided, further, that nothing in this
Section shall affect or postpone any of the obligations of Borrower or the
rights of any Lender pursuant to Section 3.1 or 3.2(a) hereof.



     Section 3.5. Eurodollar Rate Lending Unlawful; Inability to Determine
Rate.



     (a) If any Lender shall determine (which determination shall, upon notice
thereof to Borrower and Agent, be conclusive and binding on Borrower) that,
after the Closing Date, (i) the introduction of or any change in or in the
interpretation of any law makes it unlawful, or (ii) any



34









 







Governmental Authority
asserts that it is unlawful, for such Lender to make or continue any Loan as,
or to convert (if permitted pursuant to this Agreement) any Loan into, a
Eurodollar Loan, the obligations of such Lender to make, continue or convert
any such Eurodollar Loan shall, upon such determination, be suspended until
such Lender shall notify Agent that the circumstances causing such suspension
no longer exist, and all outstanding Eurodollar Loans payable to such Lender
shall automatically convert (if conversion is permitted under this Agreement)
into a Base Rate Loan, or be repaid (if no conversion is permitted) at the end
of the then current Interest Periods with respect thereto or sooner, if
required by law or such assertion.



     (b) If Agent or the Required Lenders determine that for any reason
adequate and reasonable means do not exist for determining the Eurodollar Rate
for any requested Interest Period with respect to a proposed Eurodollar Loan,
or that the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Loan does not adequately and fairly reflect the cost to the
Lenders of funding such Loan, Agent will promptly so notify Borrower and each
Lender. Thereafter, the obligation of the Lenders to make or maintain such
Eurodollar Loan shall be suspended until Agent (upon the instruction of the
Required Lenders) revokes such notice. Upon receipt of such notice, Borrower
may revoke any pending request for a borrowing of, conversion to or
continuation of such Eurodollar Loan or, failing that, will be deemed to have
converted such request into a request for a borrowing of a Base Rate Loan in
the amount specified therein.



     Section 3.6. Replacement of Lenders. Borrower shall be permitted to
replace any Lender that requests reimbursement for amounts owing pursuant to
Section 3.1 or 3.2(a), or asserts its inability to make a Eurodollar Loan
pursuant to Section 3.5 hereof; provided that (a) such replacement does not
conflict with any Requirement of Law, (b) no Default or Event of Default shall
have occurred and be continuing at the time of such replacement, (c) prior to
any such replacement, such Lender shall have taken no action under Section 3.4
so as to eliminate the continued need for payment of amounts owing pursuant to
Section 3.1 or 3.2(a) or, if it has taken any action, such request has still
been made, (d) the replacement financial institution shall purchase, at par,
all Loans and other amounts owing to such replaced Lender on or prior to the
date of replacement and assume all commitments and obligations of such replaced
Lender, (e) Borrower shall be liable to such replaced Lender under Section 3.3
if any Eurodollar Loan owing to such replaced Lender shall be purchased other
than on the last day of the Interest Period relating thereto, (f) the
replacement
financial institution, if not already a Lender, shall be satisfactory to the
Agent, (g) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 10.10 hereof (provided that Borrower
(or the succeeding Lender, if such Lender is willing) shall be obligated to pay
the assignment fee referred to therein), and (h) until such time as such
replacement shall be consummated, Borrower shall pay all additional amounts (if
any) required pursuant to Section 3.1 or 3.2(a), as the case may be.



35









 





ARTICLE IV. CONDITIONS PRECEDENT




     Section 4.1. Conditions to Each Credit Event. The obligation of the
Lenders, the Fronting Lender and the Swing Line Lender to participate in any
Credit Event shall be conditioned, in the case of each Credit Event, upon the
following:



     (a) all conditions precedent as listed in Section 4.2 hereof required to
be satisfied prior to the first Credit Event shall have been satisfied prior to
or as of the first Credit Event;



     (b) Borrower shall have submitted a Notice of Loan (or with respect to a
Letter of Credit, complied with the provisions of Section 2.2(b) hereof) and
otherwise complied with Section 2.5 hereof;



     (c) no Default or Event of Default shall then exist or immediately after
the Credit Event would exist; and



     (d) each of the representations and warranties contained in Article VI
hereof shall be true in all material respects as if made on and as of the date
of the Credit Event, except to the extent that any thereof expressly relate to
an earlier date.



     Each request by Borrower for a Credit Event shall be deemed to be a
representation and warranty by Borrower as of the date of such request as to
the satisfaction of the conditions precedent specified in subsections (c) and
(d) above.



     Section 4.2. Conditions to the First Credit Event. The obligation of the
Lenders, the Fronting Lender and the Swing Line Lender to participate in the
first Credit Event is subject to Borrower satisfying each of the following
conditions prior to or concurrently with such Credit Event:



     (a) Notes. Borrower shall have executed and delivered to each Lender
requesting a Revolving Credit Note its Revolving Credit Note and shall have
executed and delivered to the Swing Line Lender the Swing Line Note.



     (b) Guaranties of Payment. Each Guarantor of Payment shall have executed
and delivered to Agent a Guaranty of Payment.



     (c) Security Agreement. Borrower and each Guarantor of Payment shall have
executed and delivered to Agent, for the benefit of the Lenders, a Security
Agreement and such other documents or instruments, as may be reasonably
required by Agent to create or perfect the Liens of Agent, for the benefit of
the Lenders, in the Collateral of Borrower and each Guarantor of Payment, all
to be in form and substance satisfactory to Agent and the Lenders; provided
that such delivery shall be subject to Section 2.13 hereof.



     (d) Pledge Agreement. Borrower and each Domestic Subsidiary that has a
Foreign Subsidiary shall have executed and delivered to Agent, for the benefit
of the Lenders, a Pledge Agreement, in form and substance satisfactory to
Agent, that provides, among other things, for a pledge of sixty-five percent
(65%) of the capital stock of each First-Tier Material Foreign Subsidiary of
such Company; provided that such delivery shall be subject to Section 2.13
hereof.



36









 







Each such Company shall also deliver to Agent the Pledged Securities
and appropriate stock powers as may be required by Agent within one hundred
twenty-five days after the Closing Date.



     (e) Officer’s Certificate, Resolutions, Organizational Documents. Each
Credit Party shall have delivered to Agent an officer’s certificate (or
comparable domestic documents) certifying the names of the officers of such
Credit Party authorized to sign the Loan Documents, together with the true
signatures of such officers and certified copies of (i) the resolutions of the
board of directors (or comparable domestic documents) of such Credit Party
evidencing approval of the execution and delivery of the Loan Documents and the
execution of other Related Writings to which such Credit Party is a party, and
(ii) the Organizational Documents of such Credit Party.



     (f) Good Standing and Full Force and Effect Certificates. Borrower shall
have delivered to Agent a good standing certificate or comparable certificate,
as the case may be, for each Credit Party, issued on or about the Closing Date
by the Secretary of State or comparable entity in the state or states where
such Credit Party is incorporated or formed.



     (g) Lien Searches. With respect to the property owned or leased by
Borrower and each Guarantor of Payment, Borrower and each Guarantor of Payment,
if applicable, shall have caused to be delivered to Agent (i) the results of
Uniform Commercial Code lien searches, satisfactory to Agent and the Lenders,
(ii) the results of federal and state tax lien and judicial lien searches,
satisfactory to Agent and the Lenders, and (iii) Uniform Commercial Code
termination statements reflecting termination of all financing statements
previously filed by any Person and not expressly permitted pursuant to Section
5.9 hereof.



     (h) Legal Opinion. Borrower shall have delivered to Agent an opinion of
counsel for each Credit Party, in form and substance reasonably satisfactory to
Agent and the Lenders.



     (i) Borrower Investment Policy. Borrower shall have delivered to Agent a
copy of the Borrower Investment Policy.



     (j) Agent Fee Letter and Other Fees. Borrower shall have (i) executed and
delivered to Agent the Agent Fee Letter and paid to Agent, for its sole
account, the fees stated therein, and
(ii) paid (or agreed to pay) all legal fees and expenses of Agent in connection
with the preparation and negotiation of the Loan Documents.



     (k) Existing Credit Agreement. Borrower shall have terminated the Credit
Agreement among Borrower, the lenders party thereto and Bank of America, N.A.,
as agent, dated as of October 29, 2002, as amended, which termination shall be
deemed to have occurred upon payment in full of all of the Indebtedness
outstanding thereunder (other than letters of credit thereunder that are
collateralized in a manner acceptable to the issuer) and termination of the
commitments established therein.



     (l) Closing Certificate. Borrower shall have delivered to Agent and the
Lenders an officer’s certificate certifying that, as of the Closing Date, (i)
all conditions precedent set forth in this Article IV have been satisfied, (ii)
no Default or Event of Default exists nor immediately



37









 







after the making of the
first Loan or the issuance of the first Letter of Credit will exist, and (iii)
each of the representations and warranties contained in Article VI hereof are
true and correct as of the Closing Date.



     (m) Letter of Direction. Borrower shall have delivered to Agent a letter
of direction authorizing Agent, on behalf of the Lenders, to disburse the
proceeds of the Loans, which includes the transfer of funds under this
Agreement and wire instructions setting forth the locations to which such funds
shall be sent.



     (n) No Material Adverse Change. No material adverse change, in the
opinion of Agent, shall have occurred in the financial condition or operations
of the Companies since December 31, 2003.



     (o) Miscellaneous. Borrower shall have provided to Agent and the Lenders
such other items and shall have satisfied such other conditions as may be
reasonably required by Agent or the Lenders.



     Section 4.3. Post-Closing Conditions.



     (a) Termination of Senior Notes. No later than forty-five (45) days after
the Closing Date (unless a longer period is agreed to by Agent), Borrower shall
deliver to Agent, for the benefit of the Lenders, a written confirmation that
the Senior Notes shall have been paid in full and the Note Purchase Agreement
terminated.



     (b) Release of Liens. No later than one hundred twenty-five (125) days
after the Closing Date (unless a longer period is agreed to by Agent), Borrower
shall deliver to Agent, for the benefit of the Lenders, evidence of the
termination of all Liens on any assets of the Companies securing the Senior
Notes.



ARTICLE V. COVENANTS




     Section 5.1. Insurance. Each Company shall (a) maintain insurance to
such extent and against such hazards and liabilities as is commonly maintained
by Persons similarly situated; and (b) within ten days of Agent’s written
request, furnish to Agent such information about such Company’s insurance as
Agent may from time to time reasonably request, which information shall be
prepared in form and detail reasonably satisfactory to Agent and certified by a
Financial Officer of such Company.



     Section 5.2. Money Obligations. Each Company shall pay in full (a) prior
in each case to the date when penalties would attach, all material taxes,
assessments and governmental charges and levies (except only those so long as
and to the extent that the same shall be contested in good faith by appropriate
and timely proceedings and for which adequate provisions have been established
in accordance with GAAP) for which it may be or become liable or to which any
or all of its properties may be or become subject; (b) all of its material wage
obligations to its employees in compliance with the Fair Labor Standards Act
(29 U.S.C. §§ 206-207) or any



38









 







comparable provisions; and (c) all of its other
material obligations calling for the payment of money (except only those so
long as and to the extent that the same shall be contested in good faith and
for which adequate reserves have been established in accordance with GAAP)
before such payment becomes overdue.



     Section 5.3. Financial Statements and Information.



     (a) Quarterly Financials. Borrower shall deliver to Agent, within
forty-five (45) days after the end of each of the first three quarter-annual
periods of each fiscal year of Borrower, balance sheets of the Companies as of
the end of such period and statements of income (loss), stockholders’ equity
and cash flow for the quarter and fiscal year to date periods, all prepared on
a Consolidated basis, in accordance with GAAP, and in form and detail
satisfactory to Agent and certified by a Financial Officer of Borrower.



     (b) Annual Audit Report. Borrower shall deliver to Agent, within ninety
(90) days after the end of each fiscal year of Borrower, an annual audit report
of the Companies for that year prepared on a Consolidated basis, in accordance
with GAAP, and in form and detail satisfactory to Agent and certified by an
independent public accountant satisfactory to Agent, which report shall include
balance sheets and statements of income (loss), stockholders’ equity and
cash-flow for that period.



     (c) Compliance Certificate. Borrower shall deliver to Agent, concurrently
with the delivery of the financial statements set forth in subsections (a) and
(b) above, a Compliance Certificate.



     (d) Pro-Forma Projections. Borrower shall deliver to Agent, within ninety
(90) days after the end of each fiscal year of Borrower, an annual pro-forma
projection of the Companies for the then current fiscal year, to be in form
acceptable to Agent.



     (e) Shareholder and SEC Documents. Borrower shall deliver to Agent, as
soon as available, copies of all notices, reports, definitive proxy or other
statements and other documents
sent by Borrower to its shareholders, to the holders of any of its debentures
or bonds or the trustee of any indenture securing the same or pursuant to which
they are issued, or sent by Borrower (in final form) to any securities exchange
or over the counter authority or system, or to the SEC or any similar federal
agency having regulatory jurisdiction over the issuance of Borrower’s
securities.



     (f) Financial Information of Companies. Borrower shall deliver to Agent,
within fifteen (15) Business Days of the written request of Agent, such other
information about the financial condition, properties and operations of any
Company as Agent may from time to time reasonably request, which information
shall be submitted in form and detail satisfactory to Agent and certified by a
Financial Officer of the Company or Companies in question.



     Section 5.4. Financial Records. Each Company shall at all times maintain
true and complete records and books of account, including, without limiting the
generality of the foregoing, appropriate provisions for possible losses and
liabilities, all in accordance with



39









 







GAAP, and at all reasonable times (during
normal business hours and upon notice to such Company) permit Agent, or any
representative of Agent, to examine such Company’s books and records and to
make excerpts therefrom and transcripts thereof.



     Section 5.5. Franchises; Change in Business.



     (a) Except as otherwise permitted pursuant to Section 5.12 hereof, each
Company (other than a Dormant Subsidiary) shall preserve and maintain at all
times its existence, and its rights and franchises necessary for its business.



     (b) No Company shall engage in any business if, as a result thereof, the
general nature of the business of the Companies taken as a whole would be
substantially changed from the general nature of the business the Companies are
engaged in on the Closing Date.



     Section 5.6. ERISA Compliance. No Company shall incur any material
accumulated funding deficiency within the meaning of ERISA, or any material
liability to the PBGC, established thereunder in connection with any ERISA
Plan. Borrower shall furnish to the Lenders (a) as soon as possible and in any
event within thirty (30) days after any Company knows or has reason to know
that any Reportable Event with respect to any ERISA Plan has occurred, a
statement of a Financial Officer of such Company, setting forth details as to
such Reportable Event and the action that such Company proposes to take with
respect thereto, together with a copy of the notice of such Reportable Event
given to the PBGC if a copy of such notice is available to such Company, and
(b) promptly after receipt thereof a copy of any notice such Company, or any
member of the Controlled Group may receive from the PBGC or the Internal
Revenue Service with respect to any ERISA Plan administered by such Company;
provided, that this latter clause shall not apply to notices of general
application promulgated by the PBGC or the Internal Revenue Service. Borrower
shall promptly notify the Lenders of any material taxes assessed, proposed to
be assessed or that Borrower has reason to believe is reasonably likely to be
assessed against a Company by the
Internal Revenue Service with respect to any ERISA Plan. As used in this
Section 5.6, “material” means the measure of a matter of significance that
shall be determined as being an amount equal to five percent (5%) of
Consolidated Net Worth. As soon as practicable, and in any event within twenty
(20) days, after any Company shall become aware that an ERISA Event shall have
occurred, such Company shall provide Agent with notice of such ERISA Event with
a certificate by a Financial Officer of such Company setting forth the details
of the event and the action such Company or another Controlled Group member
proposes to take with respect thereto. Borrower shall, at the request of
Agent, deliver or cause to be delivered to Agent, as the case may be, true and
correct copies of any documents relating to the ERISA Plan of any Company.



     Section 5.7. Financial Covenants.



     (a) Leverage Ratio. Borrower shall not suffer or permit at any time the
Leverage Ratio to exceed 2.00 to 1.00.



     (b) Interest Coverage Ratio. Borrower shall not suffer or permit at any
time the Interest Coverage Ratio to be less than 2.50 to 1.00.



40









 





     (c) Net Worth. Borrower shall not suffer or permit at any time the
Consolidated Net Worth, for the most recently completed fiscal quarter of
Borrower, to be less than the current minimum amount required, which current
minimum amount required shall be Two Hundred Forty-Five Million Four Hundred
Ninety Four Thousand Dollars ($245,494,000) on the Closing Date through June
30, 2004, with such current minimum amount required to be positively increased
by the Increase Amount on July 1, 2004 and by an additional Increase Amount on
the last day of each succeeding fiscal quarter thereafter. As used herein, the
term “Increase Amount” shall mean an amount equal to (i) fifty percent (50%) of
positive Consolidated Net Earnings for the fiscal quarter then ended (with no
deduction for losses), minus (ii) all non-cash charges (including, without
limitation, deferred tax asset valuation allowances, asset impairments and the
adoption of future Financial Accounting Standards accounting principles) that
have not already been deducted from Consolidated Net Earnings, minus (iii)
Restricted Payments made during such quarter, plus (iv) fifty percent (50%) of
the proceeds of any equity offering by the Companies, or any debt offering of
the Companies, to the extent converted into equity.



     (d) Cash and Cash Equivalents. Borrower shall not suffer or permit at any
time the sum, for the Companies, of cash and Cash Equivalent Investments to be
less than Twenty Five Million Dollars ($25,000,000).



     (e) Capital Expenditures. The Companies may make Consolidated Capital
Expenditures so long as no Default or Event of Default shall then exist or
immediately thereafter shall begin to exist.



     Section 5.8. Borrowing. No Company shall create, incur or have
outstanding any Indebtedness of any kind; provided, that this Section 5.8 shall
not apply to the following:



     (a) the Loans, the Letters of Credit or any other Indebtedness under this
Agreement;



     (b) any loans granted to or Capitalized Lease Obligations entered into by
any Company for the purchase or lease of fixed assets (and refinancings of such
loans or capital leases), which loans and capital leases shall only be secured
by the fixed assets being purchased;



     (c) the Indebtedness existing on the Closing Date, in addition to the
other Indebtedness permitted to be incurred pursuant to this Section 5.8, as
set forth in Schedule 5.8 hereto (and any extension, renewal or refinancing
thereof so long as the principal amount thereof shall not be increased after
the Closing Date);



     (d) Indebtedness under any Hedge Agreement, so long as such Hedge
Agreement shall have been entered into in the ordinary course of business and
not for speculative purposes;



     (e) Indebtedness incurred by Foreign Subsidiaries in an aggregate amount
not to exceed, for all such Indebtedness of all Foreign Subsidiaries,
Twenty-Five Million Dollars ($25,000,000) at any time outstanding, provided
that such Indebtedness may only be guaranteed by the Credit Parties up to an
aggregate amount of Twenty-Five Million Dollars ($25,000,000)



41









 







when added to any
guaranties by Credit Parties of the Indebtedness permitted under subsection (g)
hereof;



     (f) any loans from a Company to a Company permitted under Section 5.11
hereof;



     (g) Indebtedness of a Foreign Subsidiary under an accounts receivable
facility whereby no portion of the Indebtedness or any other obligation
(contingent or otherwise) under such facility is guaranteed by any other
Company (subject to the proviso in subsection (e) hereof) and no Company (other
than such Foreign Subsidiary) provides, either directly or indirectly, any
credit support of any kind (other than a guaranty permitted under subsection
(e) hereof) in connection with such facility;



     (h) Subordinated Indebtedness with terms and documentation in form and
substance acceptable to Agent;



     (i) loans to Percepta and its Subsidiaries in an aggregate amount at any
time outstanding of up to ten percent (10%) of revenues of Percepta and its
Subsidiaries for the most recently completed four fiscal quarters;



     (j) loans to a joint venture (in which a Company holds an equity interest)
in an aggregate amount at any time outstanding of up to ten percent (10%) of
revenues of such joint venture for the most recently completed four fiscal
quarters;



     (k) Indebtedness of a Company that has been acquired by the Companies
pursuant to Section 5.13 hereof, which Indebtedness (i) is not secured, except
by a security interest permitted under Section 5.9(h) hereof, and (ii) was not
incurred in anticipation of such Acquisition;



     (l) Indebtedness of a Company incurred pursuant to synthetic leases;



     (m) Indebtedness of a Company that is owing to any governmental entity,
including, without limitation, industrial revenue bonds and grants issued by
any governmental entity to such Company which may constitute Indebtedness until
the completion of the tasks related to such grants; provided, however, that all
such Indebtedness must be either (i) unsecured, (ii) only secured by the fixed
assets purchased with proceeds from such Indebtedness, or (iii) secured with
assets (other than fixed assets) that are specifically related to the “project”
that is the subject of the grant or financing, securing no more than the
aggregate amount, for all such Indebtedness of all Companies, of Five Million
Dollars ($5,000,000) at any time outstanding; and



     (n) Indebtedness not otherwise described in or subject to subparts (a)
through (k) hereof in an aggregate principal amount not to exceed Five Million
Dollars ($5,000,000) at any time outstanding.



     Section 5.9. Liens. No Company shall create, assume or suffer to exist
any Lien upon any of its property or assets, whether now owned or hereafter
acquired; provided that this Section shall not apply to the following:



42









 





     (a) Liens for taxes not yet due or that are being actively contested in
good faith by appropriate proceedings and for which adequate reserves shall
have been established in accordance with GAAP;



     (b) other statutory Liens incidental to the conduct of its business or the
ownership of its property and assets that (i) were not incurred in connection
with the borrowing of money or the obtaining of advances or credit, and (ii) do
not in the aggregate materially detract from the value of its property or
assets or materially impair the use thereof in the operation of its business;



     (c) Liens on property or assets of a Subsidiary to secure obligations of
such Subsidiary to a Credit Party;



     (d) purchase money Liens on fixed assets securing the loans and
Capitalized Lease Obligations pursuant to Section 5.8(b) hereof, provided that
such Lien is limited to the purchase price and only attaches to the property
being acquired;



     (e) the Liens existing on the Closing Date as set forth in Schedule 5.9
hereto and replacements, extensions, renewals, refundings or refinancings
thereof, but only to the extent that the amount of debt secured thereby shall
not be increased; provided, however, that any Lien securing any obligations
under the Note Purchase Agreement shall be released within one hundred
twenty-five (125) days after the Closing Date;



     (f) easements or other minor defects or irregularities in title of real
property not interfering in any material respect with the use of such property
in the business of any Company;



     (g) any Lien granted to Agent, for the benefit of the Lenders;



     (h) any Lien on fixed assets owned by a Company as a result of an
Acquisition permitted pursuant to Section 5.13 hereof;



     (i) any Lien on assets of Foreign Subsidiaries to secure the Indebtedness
described in Section 5.8(e) hereof;



     (j) any U.C.C. Financing Statement filed to provide notice of (i) an
operating lease entered into in the ordinary course of business, or (ii) a
synthetic lease permitted under Section 5.8(l) hereof;



     (k) the Liens described in Section 5.8(m) hereof; or



     (l) any Lien not otherwise described in or subject to subparts (a) through
(k) hereof securing Indebtedness (other than Indebtedness for borrowed money)
in an aggregate principal amount not to exceed Five Million Dollars
($5,000,000) at any time outstanding.


No Company shall enter into any contract or agreement that shall exist more
than forty-five (45) days after the Closing Date (other than a contract or
agreement entered into in connection with the purchase or lease of fixed assets
that prohibits Liens on such fixed assets) that would prohibit




43









 







Agent or the
Lenders from acquiring a security interest, mortgage or other Lien on, or a
collateral assignment of, any of the property or assets of such Company.




     Section 5.10. Regulations T, U and X. No Company shall take any action
that would result in any non-compliance of the Loans or Letters of Credit with
Regulations T, U or X, or any other applicable regulation, of the Board of
Governors of the Federal Reserve System.



     Section 5.11. Investments and Loans. No Company shall, without the prior
written consent of Agent and the Required Lenders, (a) create, acquire or hold
any Subsidiary, (b) make or hold any investment in any stocks, bonds or
securities of any kind, (c) be or become a party to any joint venture or other
partnership, (d) make or keep outstanding any advance or loan to any Person, or
(e) be or become a Guarantor of any kind; provided that this Section 5.11 shall
not apply to the following:




     (i) investments made in accordance with the Borrower Investment
Policy;




     (ii) the holding of each of the Subsidiaries listed on Schedule 6.1
hereto, and the creation, acquisition and holding of any new Subsidiary
after the Closing Date so long as such new Subsidiary shall have been
created, acquired or held in accordance with the terms and conditions of
this Agreement;




     (iii) any investment in, loan to or guaranty of the Indebtedness of,
Borrower or a Domestic Subsidiary;




     (iv) any investment in, loan to or guaranty of the Indebtedness of a
Foreign Subsidiary so long as the Companies are in compliance (and in pro
forma compliance after giving effect to such loan, investment or
guaranty) with the provisions of Section 5.7 hereof;




     (v) any investment in a joint venture of a Company so long as the
Companies are in compliance (and in pro forma compliance after giving
effect to such investment) with the provisions of Section 5.7 hereof;




     (vi) any advance or loan to an officer or employee of a Company, so
long as all such advances and loans from all Companies aggregate not more
than the principal sum of One Million Dollars ($1,000,000) at any time
outstanding;




     (vii) the holding of any stock that has been acquired pursuant to an
Acquisition permitted under Section 5.13 hereof; or




     (viii) other investments of, loans from or guaranties by, the
Companies not in excess of the aggregate amount, for all Companies, of
Five Million Dollars ($5,000,000).



     Section 5.12. Merger and Sale of Assets. No Company shall merge,
amalgamate or consolidate with any other Person, or sell, lease or transfer or
otherwise dispose of any assets to



44









 







any Person other than in the ordinary course
of business, except that, if no Default or Event of Default shall then exist or
immediately thereafter shall begin to exist:



     (a) any Domestic Subsidiary may merge with (i) Borrower (provided that
Borrower shall be the continuing or surviving Person) or (ii) any one or more
Guarantors of Payment;



     (b) any Domestic Subsidiary may sell, lease, transfer or otherwise dispose
of any of its assets to (i) Borrower or (ii) any Guarantor of Payment;



     (c) any Domestic Subsidiary (other than a Credit Party) may merge with or
sell, lease, transfer or otherwise dispose of any of its assets to any other
Domestic Subsidiary;



     (d) any Foreign Subsidiary may merge with another Foreign Subsidiary or
with a Credit Party (provided that a Credit Party shall be the continuing or
surviving Person);



     (e) any Foreign Subsidiary may sell, lease, transfer or otherwise dispose
of any of its assets to a Credit Party or any other Foreign Subsidiary;



     (f) Borrower may sell its corporate headquarters located at 9197 South
Peoria Street, Englewood, Colorado 80112-5833;



     (g) Borrower, any Domestic Subsidiary and any Foreign Subsidiary organized
under the laws of Canada may sell, lease, transfer or otherwise dispose of any
assets to a Person that is not a Credit Party (other than the accounts (and
general intangibles relating thereto and proceeds thereof) pledged to Agent,
for the benefit of the Lenders, pursuant to the Security Agreement) so long as,
after giving pro forma effect to any Disposition with net proceeds in excess of
Fifteen Million Dollars ($15,000,000), the Companies are in pro forma
compliance with the provisions of Section 5.7 hereof;



     (h) any Foreign Subsidiary (other than a Foreign Subsidiary organized
under the laws of Canada) may sell, lease, transfer or otherwise dispose of any
assets; and



     (i) Acquisitions may be effected in accordance with the provisions of
Section 5.13 hereof.



     Section 5.13. Acquisitions. No Company shall effect an Acquisition;
provided, however, that a Credit Party may effect an Acquisition so long as:



     (a) the business to be acquired shall be similar to the lines of business
of the Companies;



     (b) the Companies shall be in full compliance with the Loan Documents both
prior to and subsequent to such Acquisition;



     (c) no Default or Event of Default shall exist prior to and after giving
effect to such Acquisition;



45









 





     (d) such Acquisition is not actively opposed by the board of directors (or
similar governing body) of the selling Persons or the Persons whose equity
interests are to be acquired;



     (e) with respect to any Acquisition the Consideration for which is in
excess of Twenty-Five Million Dollars ($25,000,000), Borrower shall have
provided to Agent and the Lenders, at least ten (10) Business Days prior to
such Acquisition, historical financial statements of the target entity and a
pro forma financial statement of the Companies accompanied by a certificate of
a Financial Officer of Borrower showing pro forma compliance with Section 5.7
hereof, both before and after the proposed Acquisition; and



     (f) the aggregate amount of Consideration (exclusive of the issuance of
equity) shall not exceed (i) Seventy-Five Million Dollars ($75,000,000) for
each such Acquisition, and (ii) One Hundred Million Dollars ($100,000,000) for
all Acquisitions by the Companies in a twelve-month period.



     Section 5.14. Notice. Borrower shall cause a Financial Officer of
Borrower to promptly notify Agent and the Lenders whenever any Default or Event
of Default may occur hereunder or any representation or warranty made in
Article VI hereof or elsewhere in this Agreement or in any Related Writing may
for any reason cease in any material respect to be true and complete.



     Section 5.15. Restricted Payments. No Company shall pay or commit itself
to pay any Restricted Payment at any time, except that (a) any Subsidiary may
make Capital Distributions to Borrower or any other Subsidiary of Borrower, and
(b) so long as no Default or Event of Default shall then exist or immediately
thereafter shall begin to exist, Borrower may make Restricted Payments.



     Section 5.16. Environmental Compliance. Each Company shall comply in all
material respects with any and all Environmental Laws including, without
limitation, all Environmental Laws in jurisdictions in which such Company owns
or operates a facility or site, arranges for disposal or treatment of hazardous
substances, solid waste or other wastes, accepts for transport any hazardous
substances, solid waste or other wastes or holds any interest in real property
or otherwise. Borrower shall furnish to the Lenders, promptly after receipt
thereof, a copy of any notice such Company may receive from any Governmental
Authority, private Person or otherwise that any material litigation or
proceeding pertaining to any environmental, health or safety matter has been
filed or is threatened against such Company, any real property in which such
Company holds any interest or any past or present operation of such Company.
No Company shall allow the material release or disposal of hazardous waste,
solid waste or other wastes on, under or to any real property in which any
Company holds any interest or performs any of its operations, in violation of
any Environmental Law. As used in this Section, “litigation or proceeding”
means any demand, claim, notice, suit, suit in equity action, administrative
action, investigation or inquiry whether brought by any Governmental Authority,
private Person or otherwise. Borrower shall defend, indemnify and hold Agent
and the Lenders harmless against all costs, expenses, claims, damages,
penalties and liabilities of every kind or nature whatsoever (including
attorneys’ fees) arising out of or resulting from the noncompliance of any



46









 







Company with any Environmental Law. Such indemnification shall survive any
termination of this Agreement.



     Section 5.17. Affiliate Transactions. No Company shall, directly or
indirectly, enter into or permit to exist any transaction (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate (other than a Company that is a
Credit Party) on terms that shall be less favorable to such Company than those
that might be obtained at the time in a transaction with a non-Affiliate;
provided, however, that the foregoing shall not prohibit the payment of
customary and reasonable directors’ fees to directors who are not employees of
a Company or an Affiliate.



     Section 5.18. Use of Proceeds. Borrower’s use of the proceeds of the
Loans shall be solely for working capital purposes, including the repayment of
the Senior Notes, the refinancing of existing Indebtedness, for Acquisitions
and other general corporate purposes of the Companies.



     Section 5.19. Corporate Names. No Company shall change its corporate
name, unless, in each case, such Company shall provide Agent with at least
thirty (30) days prior written notice thereof. Borrower shall also provide
Agent with at least thirty (30) days prior written notification of (a) any
change in the location of the office where any Company’s records pertaining to
the Collateral are kept; and (b) any change in any Company’s chief executive
office. In the event of any of the foregoing or as a result of any change of
applicable law with respect to the taking of security interests, or if
determined by Agent to be necessary, Agent is hereby authorized to file new
Uniform Commercial Code financing statements describing the Collateral and
otherwise in form and substance sufficient for recordation wherever necessary
or appropriate, as determined in Agent’s reasonable discretion,
to perfect or continue perfected the security interest of Agent, for the
benefit of the Lenders, in the Collateral, based upon such new places of
business or names or such change in applicable law, and Borrower shall pay all
filing and recording fees and taxes in connection with the filing or
recordation of such financing statements and shall promptly reimburse Agent
therefor if Agent pays the same. Such amounts shall be Related Expenses
hereunder.



     Section 5.20. Lease Rentals. The Companies may enter into operating
leases in the ordinary course of business.



     Section 5.21. Subsidiary Guaranties and Pledge of Stock or Other
Ownership Interest.



     (a) Guaranties. Each Domestic Subsidiary of a Company (that is not a
Dormant Subsidiary) created, acquired or held subsequent to the Closing Date,
shall immediately execute and deliver to Agent, for the benefit of the Lenders,
a Guaranty of Payment of all of the Obligations, such agreement to be in form
and substance acceptable to Agent, along with any such other supporting
documentation, corporate governance and authorization documents, and an opinion
of counsel as may be deemed necessary or advisable by Agent.



     (b) Pledge of Stock. With respect to the creation or acquisition of a
First-Tier Material Foreign Subsidiary, Borrower shall (i) pledge to Agent, for
the benefit of the Lenders,



47









 







sixty-five percent (65%) of the ownership interest
owned by a Credit Party pursuant to the terms of a Pledge Agreement executed by
the appropriate Credit Party, and (ii) deliver to Agent, for the benefit of the
Lenders, the outstanding shares certificates (or other evidence of equity)
evidencing such pledged ownership interest.



     (c) Perfection or Registration of Interest in Foreign Shares. With
respect to any foreign shares pledged to Agent, for the benefit of the Lenders,
on or after the Closing Date, Agent shall at all times, in the discretion of
Agent or the Required Lenders, have the right to perfect, at Borrower’s cost,
payable upon request therefor (including, without limitation, any foreign
counsel, or foreign notary, filing, registration or similar, fees, costs or
expenses), its security interest in such shares in the respective foreign
jurisdiction (subject to the proviso in the definition of First-Tier Material
Foreign Subsidiary).



     Section 5.22. Restrictive Agreements. Except as set forth in this
Agreement, Borrower shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Subsidiary to
(a) make, directly or indirectly, any Capital Distribution to Borrower, (b)
make, directly or indirectly, loans or advances or capital contributions to
Borrower or (c) transfer, directly or indirectly, any of the properties or
assets of such Subsidiary to Borrower; except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) customary
non-assignment provisions in leases or other agreements entered in the ordinary
course of business and consistent with past practices, or (iii) customary
restrictions in security agreements or mortgages securing
Indebtedness or capital leases, of a Company to the extent such restrictions
shall only restrict the transfer of the property subject to such security
agreement, mortgage or lease.



     Section 5.23. Guaranty Under Material Indebtedness Agreement. No Company
shall be or become a Guarantor of the Indebtedness incurred pursuant to any
Material Indebtedness Agreement unless such Company shall also be Borrower or a
Guarantor of Payment under this Agreement prior to or concurrently therewith.



     Section 5.24. Pari Passu Ranking. The Obligations shall, and Borrower
shall take all necessary action to ensure that the Obligations shall, at all
times, rank at least pari passu in right of payment with all other senior
Indebtedness of Borrower.



     Section 5.25. Note Purchase Agreement. Borrower shall not, without the
prior written consent of Agent and the Required Lenders, amend, restate,
supplement or otherwise modify the Note Purchase Agreement; provided, however,
that Borrower may execute an amendment or waiver to the Note Purchase Agreement
without the prior written consent of Agent and the Required Lenders to (i)
waive or remove the thirty (30) day prepayment notification period, or (ii)
allow for the granting of a security interest to Agent on the assets of the
Companies. Within five Business Days after the Closing Date, Borrower shall
provide notice to the noteholders of its intention to prepay the Indebtedness
under the Note Purchase Agreement within forty-five (45) days after the Closing
Date.



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     Section 5.26. Amendment of Organizational Documents. No Company shall
amend its Organizational Documents to change its name or state of organization,
or otherwise amend its Organizational Documents in any manner adverse to the
Lenders, without the prior written consent of Agent.



ARTICLE VI. REPRESENTATIONS AND WARRANTIES




     Section 6.1. Corporate Existence; Subsidiaries; Foreign Qualification.
Each Company is duly organized, validly existing, and in good standing under
the laws of its state or jurisdiction of incorporation or organization and is
duly qualified and authorized to do business and is in good standing as a
foreign entity in the jurisdictions set forth opposite its name on Schedule 6.1
hereto, which are all of the states or jurisdictions where the character of its
property or its business activities makes such qualification necessary, except
where a failure to qualify will not result in a Material Adverse Effect. Each
Foreign Subsidiary is validly existing under the laws of its jurisdiction of
organization. Schedule 6.1 hereto sets forth, as of the Closing Date, each
Subsidiary of Borrower, its state of formation, its relationship to Borrower,
including the percentage of each class of stock owned by a Company, each Person
that owns the stock or other
equity interest of each Company, the location of its chief executive office and
its principal place of business. Except as set forth in Schedule 6.1, Borrower
owns all of the equity interests of each of its Subsidiaries.



     Section 6.2. Corporate Authority. Each Credit Party has the right and
power and is duly authorized and empowered to enter into, execute and deliver
the Loan Documents to which it is a party and to perform and observe the
provisions of the Loan Documents. The Loan Documents to which each Credit
Party is a party have been duly authorized and approved by such Credit Party’s
board of directors or other governing body, as applicable, and are the valid
and binding obligations of such Credit Party, enforceable against such Credit
Party in accordance with their respective terms. The execution, delivery and
performance of the Loan Documents will not conflict with nor result in any
breach in any of the provisions of, or constitute a default under, or result in
the creation of any Lien (other than Liens permitted under Section 5.9 hereof)
upon any assets or property of any Company under the provisions of, such
Company’s Organizational Documents or any agreement.



     Section 6.3. Compliance with Laws and Contracts. Each Company:



     (a) holds permits, certificates, licenses, orders, registrations,
franchises, authorizations, and other approvals from any Governmental Authority
reasonably necessary for the conduct of its business and is in compliance in
all material respects with all applicable laws relating thereto;



     (b) is in compliance in all material respects with all federal, state,
local, or foreign applicable statutes, rules, regulations, and orders
including, without limitation, those relating to environmental protection,
occupational safety and health, and equal employment practices; and



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     (c) is not in violation of or in default under any agreement to which it
is a party or by which its assets are subject or bound unless such violation or
default could not reasonably be expected to result in a Material Adverse
Effect.



     Section 6.4. Litigation and Administrative Proceedings. Except as
disclosed on Schedule 6.4 hereto, there are (a) no lawsuits, actions,
investigations, or other proceedings pending or threatened against any Company,
or in respect of which any Company may have any liability, in any court or
before any Governmental Authority, arbitration board, or other tribunal, (b) no
orders, writs, injunctions, judgments, or decrees of any court or government
agency or instrumentality to which any Company is a party or by which the
property or assets of any Company are bound, and (c) no grievances, disputes,
or controversies outstanding with any union or other organization of the
employees of any Company, or threats of work stoppage, strike, or pending
demands for collective bargaining, other than those that could not reasonably
be expected to result in a Material Adverse Effect.



     Section 6.5. Title to Assets. Each Company has good title to and
ownership of all property it purports to own, which property is free and clear
of all Liens, except those permitted under Section 5.9 hereof.



     Section 6.6. Liens and Security Interests. On and after the Closing
Date, except for Liens permitted pursuant to Section 5.9 hereof, (a) there is
and will be no U.C.C. Financing Statement or similar notice of Lien outstanding
covering any personal property of any Company, other than a U.C.C. Financing
Statement in favor of Agent, for the benefit of the Lenders; (b) there is and
will be no mortgage outstanding covering any real property of any Company; and
(c) no real or personal property of any Company is subject to any security
interest or Lien of any kind other than any security interest or Lien that may
be granted to Agent, for the benefit of the Lenders. No Company has entered
into any contract or agreement (other than a contract or agreement entered into
in connection with the purchase or lease of fixed assets that prohibits Liens
on such fixed assets) that exists on or after the Closing Date that would
prohibit Agent or the Lenders from acquiring a Lien on, or a collateral
assignment of, any of the property or assets of any Company.



     Section 6.7. Tax Returns. All federal, state and all material local tax
returns and other reports required by law to be filed in respect of the income,
business, properties and employees of each Company have been filed and all
taxes, assessments, fees and other governmental charges that are due and
payable have been paid, except as otherwise permitted herein and with respect
to foreign tax returns, except as may be filed beyond the due date without
material penalties. The provision for taxes on the books of each Company is
adequate for all years not closed by applicable statutes and for the current
fiscal year.



     Section 6.8. Environmental Laws. Each Company is in material compliance
with all Environmental Laws, including, without limitation, all Environmental
Laws in all jurisdictions in which any Company owns or operates, or has owned
or operated, a facility or site, arranges or has arranged for disposal or
treatment of hazardous substances, solid waste or other wastes, accepts or has
accepted for transport any hazardous substances, solid waste or other wastes or
holds or has held any interest in real property or otherwise. No material
litigation or proceeding



50









 







arising under, relating to or in connection with any
Environmental Law is pending or, to the best knowledge of each Company,
threatened, against any Company, any real property in which any Company holds
or has held an interest or any past or present operation of any Company. No
material release, threatened release or disposal of hazardous waste, solid
waste or other wastes is occurring, or has occurred (other than those that are
currently being cleaned up in accordance with Environmental Laws), on, under or
to any real property in which any Company holds any interest or performs any of
its operations, in violation of any Environmental Law. As used in this
Section, “litigation or proceeding” means any demand, claim, notice, suit, suit
in equity, action, administrative action, investigation or inquiry whether
brought by any Governmental Authority or private Person, or otherwise.



     Section 6.9. Locations. The Companies have places of business or
maintain their accounts receivable at the locations set forth on Schedule 6.9
hereto. Each Company’s chief executive office is set forth on Schedule 6.9
hereto. Schedule 6.9 further specifies whether each location, as of the
Closing Date, that is owned by the Companies.



     Section 6.10. Continued Business. Except as described in Borrower’s
10-K, 10-Q or other public filings with the Securities and Exchange Commission,
there exists no actual, pending, or, to Borrower’s knowledge, any threatened
termination, cancellation or limitation of, or any modification or change in
the business relationship of any Company and any customer or supplier, or any
group of customers or suppliers, whose purchases or supplies, individually or
in the aggregate, are material to the business of any Company, and there exists
no present condition or state of facts or circumstances that would have a
Material Adverse Effect or prevent a Company from conducting such business or
the transactions contemplated by this Agreement in substantially the same
manner in which it was previously conducted.



     Section 6.11. Employee Benefits Plans. Schedule 6.11 hereto identifies
each ERISA Plan as of the Closing Date. No ERISA Event has occurred or is
reasonably expected to occur with respect to an ERISA Plan. No Controlled
Group member has failed to make a required material installment or other
required material payment under Section 412(a) of the Code on or before the due
date or within a reasonable time after such due date. No Controlled Group
member has failed to make contributions to an ERISA Plan that is a
Multiemployer Plan in accordance with the applicable governing documents which
is reasonably likely to result in a material liability to the Controlled Group
member. No Benefit Plan (other than a Multiemployer Plan) has any accumulated
funding deficiency (as defined in Section 412(a) of the Code). None of the
Companies have adopted or plans to adopt any amendments that could reasonably
result in a material increase in the cost of providing benefits under the ERISA
Plan. With respect to each ERISA Plan (other than a Multiemployer Plan) that
is intended to be qualified under Code Section 401(a), (a) the ERISA Plan and
any associated trust operationally comply (or as soon as reasonably practicable
are corrected to comply) with the applicable requirements of Code Section
401(a); (b) the ERISA Plan and any associated trust have been amended to comply
with all such requirements as currently in effect, other than those
requirements for which a retroactive amendment can be made within the “remedial
amendment period” available under Code Section 401(b) (as extended under
Treasury Regulations and other Treasury pronouncements upon which taxpayers may
rely); (c) the ERISA Plan and any associated trust have received a favorable
determination letter from the Internal Revenue Service stating that the ERISA
Plan qualifies



51









 







under Code Section 401(a), that the associated trust qualifies
under Code Section 501(a) and, if applicable, that any cash or deferred
arrangement under the ERISA Plan qualifies under Code Section 401(k), unless
the ERISA Plan was first adopted at a time for which the above-described
“remedial amendment period” has not yet expired; (d) the ERISA Plan currently
satisfies the requirements of Code Section 410(b), subject to any retroactive
amendment that may be made within the above-described “remedial amendment
period”; and (e) no contribution made to the ERISA Plan is subject to an excise
tax under Code Section 4972. With respect to any Pension Plan, the
“accumulated benefit obligation” of Controlled Group members with respect to
the Pension Plan (as determined in accordance with Statement of Accounting
Standards No. 87, “Employees Accounting for Pensions”) does not exceed the fair
market value of Pension Plan assets by an amount that would have a Material
Adverse Effect. Each Foreign Employee Benefit Plan is in
compliance in all material respects with all laws, regulations and rules
applicable thereto and the respective requirements of the governing documents
for Foreign Employee Benefit Plan. With respect to any Foreign Employee
Benefit Plan, reasonable reserves have been established in accordance with
local laws or prudent business practice or where required by ordinary
accounting practices in the jurisdiction in which Foreign Employee Benefit Plan
is maintained.



     Section 6.12. Consents or Approvals. No consent, approval or
authorization of, or filing, registration or qualification with, any
Governmental Authority or any other Person is required to be obtained or
completed by any Company in connection with the execution, delivery or
performance of any of the Loan Documents, that has not already been obtained or
completed.



     Section 6.13. Solvency. Borrower has received consideration that is the
reasonable equivalent value of the obligations and liabilities that Borrower
has incurred to Agent and the Lenders. Borrower is not insolvent as defined in
any applicable state, federal or relevant foreign statute, nor will Borrower be
rendered insolvent by the execution and delivery of the Loan Documents to Agent
and the Lenders. Borrower is not engaged or about to engage in any business or
transaction for which the assets retained by it are or will be an unreasonably
small amount of capital, taking into consideration the obligations to Agent and
the Lenders incurred hereunder. Borrower does not intend to, nor does it
believe that it will, incur debts beyond its ability to pay such debts as they
mature.



     Section 6.14. Financial Statements. The December 31, 2003 Consolidated
financial statements of Borrower, furnished to Agent and the Lenders, are true
and complete, have been prepared in accordance with GAAP, and fairly present
the financial condition of the Companies as of the date of such financial
statements and the results of their operations for the period then ending.
Since the dates of such statements, there has been no material adverse change
in any Company’s financial condition, properties or business or any change in
any Company’s accounting procedures.



     Section 6.15. Regulations. No Company is engaged principally or as one
of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any “margin stock” (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System of the
United States of America). Neither the granting of any Loan (or any conversion
thereof) or Letter of Credit nor the use of the proceeds of any Loan or Letter
of Credit



52









 







will violate, or be inconsistent with, the provisions of Regulation
T, U or X or any other Regulation of such Board of Governors.



     Section 6.16. Material Agreements. Except as disclosed on Schedule 6.16
hereto, no Company is a party to any (a) debt instrument (excluding the Loan
Documents); (b) lease (capital, operating or otherwise), whether as lessee or
lessor thereunder; (c) contract, commitment, agreement, or other arrangement
involving the purchase or sale of any inventory by it, or the license of any
right to or by it; (d) contract, commitment, agreement, or other arrangement
with any of its “Affiliates” (as such term is defined in the Securities
Exchange Act of 1934, as amended) other than a Company; (e) management or
employment contract or contract for personal services with any of its
Affiliates
that is not otherwise terminable at will or on less than ninety (90) days’
notice without liability; (f) collective bargaining agreement; or (g) other
contract, agreement, understanding, or arrangement with a third party that, as
to subsections (a) through (g), requires the future payment of an amount in
excess of Thirty Million Dollars ($30,000,000) during any twelve-month period.



     Section 6.17. Intellectual Property. Each Company owns or has the right
to use all of the patents, patent applications, industrial designs, trademarks,
service marks, copyrights, licenses, and rights with respect to the foregoing
necessary for the conduct of its business without any known conflict with the
rights of others.



     Section 6.18. Insurance. Each Company maintains with financially sound
and reputable insurers insurance with coverage and limits as required by law
and as is customary with Persons engaged in the same businesses as the
Companies. Schedule 6.18 hereto sets forth all insurance carried by the
Companies on the Closing Date, setting forth in detail the amount and type of
such insurance.



     Section 6.19. Accurate and Complete Statements. Neither the Loan
Documents nor any written statement made by any Company in connection with any
of the Loan Documents contains any untrue statement of a material fact or omits
a material fact necessary to make the statements contained therein or in the
Loan Documents not misleading. After due inquiry by Borrower, there is no
known fact that any Company has not disclosed to Agent and the Lenders that has
or is likely to have a Material Adverse Effect.



     Section 6.20. Note Agreement. No Event of Default (as defined in the
Note Purchase Agreement) or Default (as defined in the Note Purchase Agreement)
exists, nor will any such Event of Default or Default exist immediately after
the granting of any Loan or the issuance of any Letter of Credit under this
Agreement.



     Section 6.21. Defaults. No Default or Event of Default exists hereunder,
nor will any begin to exist immediately after the execution and delivery
hereof.



ARTICLE VII. EVENTS OF DEFAULT




     Each of the following shall constitute an Event of Default hereunder:



53









 





     Section 7.1. Payments. If (a) the interest on any Loan or any commitment
or other fee shall not be paid in full punctually when due and payable or
within five Business Days thereafter, or (b) the principal of any Loan or any
obligation under any Letter of Credit shall not be paid in full when due and
payable.



     Section 7.2. Special Covenants. If any Company shall fail or omit to
perform and observe Section 5.7, 5.8, 5.9, 5.11, 5.12, 5.13 or 5.15 hereof.



     Section 7.3. Other Covenants. If any Company shall fail or omit to
perform and observe any agreement or other provision (other than those referred
to in Section 7.1 or 7.2 hereof) contained or referred to in this Agreement or
any Related Writing that is on such Company’s part to be complied with, and
that Default shall not have been fully corrected within thirty (30) days after
the earlier of (a) any Financial Officer of such Company becomes aware of the
occurrence thereof, or (b) the giving of written notice thereof to Borrower by
Agent or the Required Lenders that the specified Default is to be remedied.



     Section 7.4. Representations and Warranties. If any representation,
warranty or statement made in or pursuant to this Agreement or any Related
Writing or any other material information furnished by any Company to the
Lenders or any thereof or any other holder of any Note, shall be false or
erroneous in any material respect.



     Section 7.5. Cross Default. If any Company shall default in the payment
of principal or interest due and owing under any Material Indebtedness
Agreement beyond any period of grace provided with respect thereto or in the
performance or observance of any other provision, term or condition contained
in any Material Indebtedness Agreement under which such obligation is created,
if the effect of such default is to allow the acceleration of the maturity of
such Indebtedness or to permit the holder thereof to cause such Indebtedness to
become due prior to its stated maturity.



     Section 7.6. ERISA Default. The occurrence of one or more ERISA Events
that (a) the Required Lenders determine could have a Material Adverse Effect,
or (b) results in a Lien on any of the assets of any Company.



     Section 7.7. Change in Control. If any Change in Control shall occur.



     Section 7.8. Money Judgment. A final judgment or order for the payment
of money shall be rendered against any Company by a court of competent
jurisdiction, that remains unpaid or unstayed and undischarged for a period
(during which execution shall not be effectively stayed) of sixty (60) days
after the date on which the right to appeal has expired; provided that the
aggregate of all such judgments for all such Companies shall exceed Ten Million
Dollars ($10,000,000).



     Section 7.9. Material Adverse Change. There shall have occurred any
condition or event that Agent or the Required Lenders determine has or is
reasonably likely to have a Material Adverse Effect.



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     Section 7.10. Security. If any Lien granted in this Agreement or any
other Loan Document in favor of Agent, on behalf of the Lenders, shall be
determined to be (a) void, voidable or invalid, or is subordinated or not
otherwise given the priority contemplated by this Agreement and the Credit
Parties have failed to promptly execute appropriate documents to correct such
matters, or (b) unperfected as to any material amount of Collateral (as
determined by Agent, in its reasonable discretion).



     Section 7.11. Validity of Loan Documents. (a) Any material provision, in
the reasonable opinion of Agent, of any Loan Document shall at any time for any
reason cease to be valid, binding and enforceable against any Credit Party; (b)
the validity, binding effect or enforceability of any Loan Document against any
Credit Party shall be contested by any Credit Party; (c) any Credit Party shall
deny that it has any or further liability or obligation under any Loan
Document; or (d) any Loan Document shall be terminated, invalidated or set
aside, or be declared ineffective or inoperative or in any way cease to give or
provide to Agent and the Lenders the benefits purported to be created thereby.
In addition to any other material Loan Documents, this Agreement, each Note and
each Guaranty of Payment shall be deemed to be “material”.



     Section 7.12. Senior Notes. If, within forty-five (45) days from the
Closing Date, Borrower shall have failed to prepay, in full, all of the
obligations under the Senior Notes.



     Section 7.13. Solvency. If any Company (other than a Dormant Subsidiary)
shall (a) except as permitted pursuant to Section 5.12 hereof, discontinue
business, (b) generally not pay its debts as such debts become due, (c) make a
general assignment for the benefit of creditors, (d) apply for or consent to
the appointment of a receiver, a custodian, a trustee, an interim trustee or
liquidator of all or a substantial part of its assets, (e) be adjudicated a
debtor or insolvent or have entered against it an order for relief under Title
11 of the United States Code, or under any other bankruptcy insolvency,
liquidation, winding-up, corporate or similar statute or law, foreign, federal
state or provincial, in any applicable jurisdiction, now or hereafter existing,
as any of the foregoing may be amended from time to time, or other applicable
statute for jurisdictions outside of the United States, as the case may be, (f)
file a voluntary petition in bankruptcy, or have an involuntary proceeding
filed against it and the same shall continue undismissed for a period of sixty
(60) days from commencement of such proceeding or case, or file a petition or
an answer seeking reorganization or an arrangement with creditors or seeking to
take advantage of any other law (whether federal or state, or, if applicable,
other jurisdiction) relating to relief of debtors, or admit (by answer, by
default or otherwise) the material allegations of a petition filed against it
in any bankruptcy, reorganization, insolvency or other proceeding (whether
federal or state, or, if applicable, other jurisdiction) relating to relief of
debtors, (g) suffer or permit to continue unstayed and in effect for sixty (60)
consecutive days any judgment, decree or order entered by a court of competent
jurisdiction, that approves a petition seeking its reorganization or appoints a
receiver, custodian, trustee, interim trustee or liquidator of all or a
substantial part of its assets, (h) have an administrative receiver appointed
over the whole or substantially the whole of its assets, or (i) take, or omit
to take, any action in order thereby to effect any of the foregoing.




55









 





ARTICLE VIII. REMEDIES UPON DEFAULT




     Notwithstanding any contrary provision or inference herein or elsewhere:



     Section 8.1. Optional Defaults. If any Event of Default referred to in
Section 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10, 7.11 or 7.12 hereof
shall occur, Agent may, with the consent of the Required Lenders, and shall, at
the request of the Required Lenders, give written notice to Borrower, to:



     (a) terminate the Commitment, if not previously terminated, and,
immediately upon such election, the obligations of the Lenders, and each
thereof, to make any further Loan and the obligation of the Fronting Lender to
issue any Letter of Credit immediately shall be terminated; and/or



     (b) accelerate the maturity of all of the Obligations (if the Obligations
are not already due and payable), whereupon all of the Obligations shall become
and thereafter be immediately due and payable in full without any presentment
or demand and without any further or other notice of any kind, all of which are
hereby waived by Borrower.



     Section 8.2. Automatic Defaults. If any Event of Default referred to in
Section 7.13 hereof shall occur:



     (a) all of the Commitment shall automatically and immediately terminate,
if not previously terminated, and no Lender thereafter shall be under any
obligation to grant any further Loan, nor shall the Fronting Lender be
obligated to issue any Letter of Credit; and



     (b) the principal of and interest then outstanding on all of the Loans,
and all of the other Obligations, shall thereupon become and thereafter be
immediately due and payable in full (if the Obligations are not already due and
payable), all without any presentment, demand or notice of any kind, which are
hereby waived by Borrower.



     Section 8.3. Letters of Credit. If the maturity of the Obligations shall
be accelerated pursuant to Section 8.1 or 8.2 hereof, Borrower shall
immediately deposit with Agent, as security for the obligations of Borrower and
any Guarantor of Payment to reimburse Agent and the Lenders for any then
outstanding Letters of Credit, cash equal to the sum of the aggregate undrawn
balance of any then outstanding Letters of Credit. Agent and the Lenders are
hereby authorized, at their option, to deduct any and all such amounts from any
deposit balances then owing by any Lender (or any affiliate of such Lender) to
or for the credit or account of any Company, as security for the obligations of
Borrower and any Guarantor of Payment to reimburse Agent and the Lenders for
any then outstanding Letters of Credit.



     Section 8.4. Offsets. If there shall occur or exist any Event of Default
referred to in Section 7.13 hereof or if the maturity of the Obligations is
accelerated pursuant to Section 8.1 or 8.2 hereof, each Lender shall have the
right at any time to set off against, and to appropriate and apply toward the
payment of, any and all of the Obligations then owing by Borrower to such



56









 







Lender (including, without limitation, any participation purchased or to be
purchased pursuant to Section 2.2(b), 2.2(c) or 8.5 hereof), whether or not the
same shall then have matured, any and all deposit (general or special) balances
and all other indebtedness then held or owing by such Lender (including,
without limitation, by branches and agencies or any affiliate of such Lender,
wherever located) to or for the credit or account of Borrower or any Guarantor
of Payment, all without notice to or demand upon Borrower or any other Person,
all such notices and demands being hereby expressly waived by Borrower.



     Section 8.5. Equalization Provision. Each Lender agrees with the other
Lenders that if it, at any time, shall obtain any Advantage over the other
Lenders or any thereof in respect of the Obligations (except as to Swing Loans
and Letters of Credit prior to Agent’s giving of notice to participate and
except under Article III hereof), it shall purchase from the other Lenders, for
cash and at par, such additional participation in the Obligations as shall be
necessary to nullify the Advantage. If any such Advantage resulting in the
purchase of an additional participation as aforesaid shall be recovered in
whole or in part from the Lender receiving the Advantage, each such purchase
shall be rescinded, and the purchase price restored (but without interest
unless the Lender receiving the Advantage is required to pay interest on the
Advantage to the Person recovering the Advantage from such Lender) ratably to
the extent of the recovery. Each Lender further agrees with the other Lenders
that if it at any time shall receive any payment for or on behalf of Borrower
on any indebtedness owing by Borrower to that Lender (whether by voluntary
payment, by realization upon security, by reason of offset of any deposit or
other indebtedness, by counterclaim or cross-action, by the enforcement of any
right under any Loan Document, or otherwise), it will apply such payment first
to any and all Obligations owing by Borrower to that Lender (including, without
limitation, any participation purchased or to be purchased pursuant to this
Section or any other Section of this Agreement). Borrower agrees that any
Lender so purchasing a participation from the other Lenders or any thereof
pursuant to this Section may exercise all of its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender was a direct creditor of Borrower in the amount of such participation.



     Section 8.6. Other Remedies. The remedies in this Article VIII are in
addition to, not in limitation of, any other right, power, privilege, or
remedy, either in law, in equity, or otherwise, to which the Lenders may be
entitled. Agent shall exercise the rights under this Article VIII and all
other collection efforts on behalf of the Lenders and no Lender shall act
independently with respect thereto, except as otherwise specifically set forth
in this Agreement.



ARTICLE IX. THE AGENT




     The Lenders authorize KeyBank National Association and KeyBank National
Association hereby agrees to act as agent for the Lenders in respect of this
Agreement upon the
terms and conditions set forth elsewhere in this Agreement, and upon the
following terms and conditions:



     Section 9.1. Appointment and Authorization. Each Lender hereby
irrevocably appoints and authorizes Agent to take such action as agent on its
behalf and to exercise such powers



57









 







hereunder as are delegated to Agent by the
terms hereof, together with such powers as are reasonably incidental thereto.
Neither Agent nor any of its affiliates, directors, officers, attorneys or
employees shall (a) be liable for any action taken or omitted to be taken by it
or them hereunder or in connection herewith, except for its or their own gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction), or be responsible in any manner to any of the Lenders for the
effectiveness, enforceability, genuineness, validity or due execution of this
Agreement or any other Loan Documents, (b) be under any obligation to any
Lender to ascertain or to inquire as to the performance or observance or any of
the terms, covenants or conditions hereof or thereof on the part of Borrower or
any other Company, or the financial condition of Borrower or any other Company,
or (c) be liable to any of the Companies for consequential damages resulting
from any breach of contract, tort or other wrong in connection with the
negotiation, documentation, administration or collection of the Loans or
Letters of Credit or any of the Loan Documents.



     Section 9.2. Note Holders. Agent may treat the payee of any Note as the
holder thereof (or, if there is no Note, the holder of the interest as
reflected on the books and records of Agent) until written notice of transfer
shall have been filed with it, signed by such payee and in form satisfactory to
Agent.



     Section 9.3. Consultation With Counsel. Agent may consult with legal
counsel selected by it and shall not be liable for any action taken or suffered
in good faith by it in accordance with the opinion of such counsel.



     Section 9.4. Documents. Agent shall not be under any duty to examine
into or pass upon the validity, effectiveness, genuineness or value of any Loan
Document or any other Related Writing furnished pursuant hereto or in
connection herewith or the value of any collateral obtained hereunder, and
Agent shall be entitled to assume that the same are valid, effective and
genuine and what they purport to be.



     Section 9.5. Agent and Affiliates. With respect to the Loans, Agent
shall have the same rights and powers hereunder as any other Lender and may
exercise the same as though it were not Agent, and Agent and its affiliates may
accept deposits from, lend money to and generally engage in any kind of
business with any Company or any Affiliate.



     Section 9.6. Knowledge of Default. It is expressly understood and agreed
that Agent shall be entitled to assume that no Default or Event of Default has
occurred, unless Agent has been notified by a Lender in writing that such
Lender believes that a Default or Event of Default has occurred and is
continuing and specifying the nature thereof or has been notified by Borrower
pursuant to Section 5.14 hereof.



     Section 9.7. Action by Agent. Subject to the other terms and conditions
hereof, so long as Agent shall be entitled, pursuant to Section 9.6 hereof, to
assume that no Default or Event of Default shall have occurred and be
continuing, Agent shall be entitled to use its discretion with respect to
exercising or refraining from exercising any rights that may be vested in it
by, or with respect to taking or refraining from taking any action or actions
that it may be able to take under or in respect of, this Agreement. Agent
shall incur no liability under or in respect of this



58









 







Agreement by acting upon
any notice, certificate, warranty or other paper or instrument believed by it
to be genuine or authentic or to be signed by the proper party or parties, or
with respect to anything that it may do or refrain from doing in the reasonable
exercise of its judgment, or that may seem to it to be necessary or desirable
in the premises.



     Section 9.8. Release of Collateral or Guarantor of Payment. In the event
of a sale of assets permitted by Section 5.12 hereof (or otherwise permitted
pursuant to this Agreement) where the proceeds of such sale or sales are
applied in accordance with the terms of this Agreement to the extent required
to be so applied, Agent, at the request and expense of Borrower, is hereby
authorized by the Lenders to (a) release such Collateral from this Agreement,
(b) release a Guarantor of Payment in connection with an asset sale permitted
hereunder, and (c) duly assign, transfer and deliver to the affected Company
(without recourse and without any representation or warranty) such Collateral
as is then (or has been) so sold or released and as may be in possession of
Agent and has not theretofore been released pursuant to this Agreement.



     Section 9.9. Notice of Default. In the event that Agent shall have
acquired actual knowledge of any Default or Event of Default, Agent shall
promptly notify the Lenders and shall take such action and assert such rights
under this Agreement as the Required Lenders shall direct and Agent shall
inform the other Lenders in writing of the action taken. Agent may take such
action and assert such rights as it deems to be advisable, in its discretion,
for the protection of the interests of the holders of the Obligations.



     Section 9.10. Indemnification of Agent. The Lenders agree to indemnify
Agent (to the extent not reimbursed by Borrower) ratably, according to their
respective Commitment Percentages, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys’ fees) or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by or asserted against Agent in its
capacity as agent in any way relating to or arising out of this Agreement or
any Loan Document or any action taken or omitted by Agent with respect to this
Agreement or any Loan Document, provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including attorneys’ fees) or disbursements
resulting from Agent’s gross negligence or willful misconduct as determined by
a court of competent jurisdiction, or from any action taken or omitted by Agent
in any capacity other than as agent under this Agreement or any other Loan
Document.



     Section 9.11. Successor Agent. Agent may resign as agent hereunder by
giving not fewer than thirty (30) days prior written notice to
Borrower and the Lenders. If Agent shall resign under this Agreement, then
either (a) the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders (with the consent of Borrower so long as an
Event of Default has not occurred and which consent shall not be unreasonably
withheld), or (b) if a successor agent shall not be so appointed and approved
within the thirty (30) day period following Agent’s notice to the Lenders of
its resignation, then Agent shall appoint a successor agent that shall serve as
agent until such time as the Required Lenders appoint a successor agent. Upon
its appointment, such successor agent shall succeed to the rights, powers and
duties as agent, and the term “Agent” shall mean such successor effective upon
its appointment, and the



59









 







former agent’s rights, powers and duties as agent
shall be terminated without any other or further act or deed on the part of
such former agent or any of the parties to this Agreement.



ARTICLE X. MISCELLANEOUS




     Section 10.1. Lenders’ Independent Investigation. Each Lender, by its
signature to this Agreement, acknowledges and agrees that Agent has made no
representation or warranty, express or implied, with respect to the
creditworthiness, financial condition, or any other condition of any Company or
with respect to the statements contained in any information memorandum
furnished in connection herewith or in any other oral or written communication
between Agent and such Lender. Each Lender represents that it has made and
shall continue to make its own independent investigation of the
creditworthiness, financial condition and affairs of the Companies in
connection with the extension of credit hereunder, and agrees that Agent has no
duty or responsibility, either initially or on a continuing basis, to provide
any Lender with any credit or other information with respect thereto (other
than such notices as may be expressly required to be given by Agent to the
Lenders hereunder), whether coming into its possession before the first Credit
Event hereunder or at any time or times thereafter. Each Lender further
represents that it has reviewed each of the Loan Documents.



     Section 10.2. No Waiver; Cumulative Remedies. No omission or course of
dealing on the part of Agent, any Lender or the holder of any Note in
exercising any right, power or remedy hereunder or under any of the Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy hereunder
or under any of the Loan Documents. The remedies herein provided are
cumulative and in addition to any other rights, powers or privileges held by
operation of law, by contract or otherwise.



     Section 10.3. Amendments, Consents. No amendment, modification,
termination, or waiver of any provision of any Loan Document nor consent to any
variance therefrom, shall be effective unless the same shall be in writing and
signed by the Required Lenders and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. Anything herein to the contrary notwithstanding, unanimous consent of
the Lenders shall be required with respect to (a) any increase in the
Commitment hereunder (except as specified in Section 2.9(b) hereof), (b) the
extension of maturity of the Loans, the payment date of interest or principal
thereunder, or the payment date of commitment or other fees or amounts payable
hereunder, (c) any reduction in the rate of interest on the Loans (provided
that the institution of the Default Rate and a subsequent removal of the
Default Rate shall not constitute a decrease in interest rate of this Section),
or in any amount of principal or interest due on any Loan, or the payment of
commitment or other fees hereunder or any change in the manner of pro rata
application of any payments made by Borrower to the Lenders hereunder, (d) any
change in any percentage voting requirement, voting rights, or the Required
Lenders definition in this Agreement, (e) the release of any Guarantor of
Payment or material amount of Collateral securing the Obligations, except as
contemplated in Section 9.8 hereof and as otherwise permitted under this
Agreement (including without limitation, releases which occur automatically and
without any additional consent by Agent or any Lender), or (f) any



60









 







amendment to
this Section 10.3 or Section 8.5 hereof. Notice of amendments or consents
ratified by the Lenders hereunder shall be forwarded by Agent to all of the
Lenders. Each Lender or other holder of a Note (or interest on any Loan) shall
be bound by any amendment, waiver or consent obtained as authorized by this
Section, regardless of its failure to agree thereto.



     Section 10.4. Notices. All notices, requests, demands and other
communications provided for hereunder shall be in writing and, if to Borrower,
mailed or delivered to it, addressed to it at the address specified on the
signature pages of this Agreement, if to a Lender, mailed or delivered to it,
addressed to the address of such Lender specified on the signature pages of
this Agreement, or, as to each party, at such other address as shall be
designated by such party in a written notice to each of the other parties. All
notices, statements, requests, demands and other communications provided for
hereunder shall be given by overnight delivery or first class mail with postage
prepaid by registered or certified mail, addressed as aforesaid, or sent by
facsimile with telephonic confirmation of receipt, except that all notices
hereunder shall not be effective until received.



     Section 10.5. Costs, Expenses and Taxes. Borrower agrees to pay on
demand all reasonable costs and expenses of Agent and all Related Expenses,
including, but not limited to, (a) syndication, administration, travel and
out-of-pocket expenses, including but not limited to reasonable attorneys’ fees
and expenses, of Agent in connection with the preparation, negotiation and
closing of the Loan Documents and the administration of the Loan Documents, the
collection and disbursement of all funds hereunder and the other instruments
and documents to be delivered hereunder, (b) extraordinary expenses of Agent in
connection with the administration of the Loan Documents and the other
instruments and documents to be delivered hereunder, and (c) the reasonable
fees and out-of-pocket expenses of special counsel for Agent, with respect to
the foregoing, and of local counsel, if any, who may be retained by said
special counsel with respect thereto. Borrower also agrees to pay on demand
all reasonable costs and expenses of Agent and the Lenders, including
reasonable attorneys’ fees, in connection with the restructuring or enforcement
of the Obligations, this Agreement or any Related Writing. In addition,
Borrower shall pay any and all stamp and other taxes and fees payable or
determined to be payable in connection with the execution and delivery of the
Loan Documents, and the other instruments and documents to be delivered
hereunder, and agrees to hold Agent and each Lender harmless
from and against any and all liabilities with respect to or resulting from any
delay in paying or failure to pay such taxes or fees.



     Section 10.6. Indemnification. Borrower agrees to defend, indemnify and
hold harmless Agent and the Lenders (and their respective affiliates, officers,
directors, attorneys, agents and employees) from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including attorneys’ fees) or disbursements of any kind
or nature whatsoever that may be imposed on, incurred by or asserted against
Agent or any Lender in connection with any investigative, administrative or
judicial proceeding (whether or not such Lender or Agent shall be designated a
party thereto) or any other claim by any Person relating to or arising out of
any Loan Document or any actual or proposed use of proceeds of the Loans or any
of the Obligations, or any activities of any Company or its Affiliates;
provided that no Lender nor Agent shall have the right to be indemnified under
this Section for its own gross



61









 







negligence or willful misconduct as determined
by a court of competent jurisdiction. All obligations provided for in this
Section 10.6 shall survive any termination of this Agreement.



     Section 10.7. Obligations Several; No Fiduciary Obligations. The
obligations of the Lenders hereunder are several and not joint. Nothing
contained in this Agreement and no action taken by Agent or the Lenders
pursuant hereto shall be deemed to constitute Agent or the Lenders a
partnership, association, joint venture or other entity. No default by any
Lender hereunder shall excuse the other Lenders from any obligation under this
Agreement; but no Lender shall have or acquire any additional obligation of any
kind by reason of such default. The relationship between Borrower and the
Lenders with respect to the Loan Documents and the Related Writings is and
shall be solely that of debtor and creditors, respectively, and neither Agent
nor any Lender shall have any fiduciary obligation toward any Credit Party with
respect to any such documents or the transactions contemplated thereby.



     Section 10.8. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts and by facsimile signature, each of which counterparts when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same agreement.



     Section 10.9. Binding Effect; Borrower’s Assignment. This Agreement
shall become effective when it shall have been executed by Borrower, Agent and
each Lender and thereafter shall be binding upon and inure to the benefit of
Borrower, Agent and each of the Lenders and their respective successors and
assigns, except that Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of Agent and
all of the Lenders.



     Section 10.10. Lender Assignments.



     (a) Assignments of Commitments. Each Lender shall have the right at any
time or times to assign to an Eligible Transferee (other than to a Lender that
shall not be in compliance with this Agreement), without recourse, all or a
percentage of all of the following: (i) such Lender’s Commitment, (ii) all
Loans made by that Lender, (iii) such Lender’s Notes, if any, and (iv) such
Lender’s interest in any Letter of Credit or Swing Loan, and any participation
purchased pursuant to Section 2.2(b), 2.2(c) or 8.5 hereof. If a Lender (that
is also a Fronting Lender) shall, through an assignment made pursuant to this
Section 10.10, cease to be a Lender under this Agreement, the Letters of Credit
issued by such Lender shall be terminated and replaced by a Letter of Credit
issued by another Fronting Lender on or prior to the date of such assignment
(or be otherwise dealt with in a manner acceptable to Agent, Borrower and the
Fronting Lender that is assigning its interest as a Lender).



     (b) Prior Consent. No assignment may be consummated pursuant to this
Section 10.10 without the prior written consent of Borrower and Agent (other
than an assignment by any Lender to another Lender or to any affiliate of such
Lender which affiliate is an Eligible Transferee and either wholly-owned by a
Lender or is wholly-owned by a Person that wholly owns, either directly or
indirectly, such Lender), which consent of Borrower and Agent shall not be
unreasonably withheld; provided, however, that Borrower’s consent shall not be
required if, at



62









 







the time of the proposed assignment, any Default or Event of
Default shall then exist. Anything herein to the contrary notwithstanding, any
Lender may at any time make a collateral assignment of all or any portion of
its rights under the Loan Documents to a Federal Reserve Bank, and no such
assignment shall release such assigning Lender from its obligations hereunder.



     (c) Minimum Amount. Each such assignment shall be in a minimum amount of
the lesser of Five Million Dollars ($5,000,000) of the assignor’s Commitment
and interest herein or the entire amount of the assignor’s Commitment and
interest herein.



     (d) Assignment Fee. Unless the assignment shall be to an affiliate of the
assignor or the assignment shall be due to merger of the assignor or for
regulatory purposes, either the assignor or the assignee shall remit to Agent,
for its own account, an administrative fee of Three Thousand Five Hundred
Dollars ($3,500).



     (e) Assignment Agreement. Unless the assignment shall be due to merger of
the assignor or a collateral assignment for regulatory purposes, the assignor
shall (i) cause the assignee to execute and deliver to Borrower and Agent an
Assignment Agreement, and (ii) execute and deliver, or cause the assignee to
execute and deliver, as the case may be, to Agent such additional amendments,
assurances and other writings as Agent may reasonably require.



     (f) Non-U.S. Assignee. If the assignment is to be made to an assignee
that is organized under the laws of any jurisdiction other than the United
States or any state thereof, the assignor Lender shall cause such assignee, at
least five Business Days prior to the effective date of such assignment, (i) to
represent to the assignor Lender (for the benefit of the assignor Lender, Agent
and Borrower) that under applicable law and treaties no taxes will be required
to be withheld by Agent, Borrower or the assignor with respect to any payments
to be made to such assignee in respect of the Loans hereunder, (ii) to furnish
to the assignor Lender (and, in the case of any assignee registered in the
Register (as defined below), Agent and Borrower) either (A)
U.S. Internal Revenue Service Form W-8ECI or U.S. Internal Revenue Service Form
W-8BEN or (B) United States Internal Revenue Service Form W-8 or W-9, as
applicable (wherein such assignee claims entitlement to complete exemption from
U.S. federal withholding tax on all interest payments hereunder), and (iii) to
agree (for the benefit of the assignor, Agent and Borrower) to provide to the
assignor Lender (and, in the case of any assignee registered in the Register,
to Agent and Borrower) a new Form W-8ECI or Form W-8BEN or Form W-8 or W-9, as
applicable, upon the expiration or obsolescence of any previously delivered
form and comparable statements in accordance with applicable U.S. laws and
regulations and amendments duly executed and completed by such assignee, and to
comply from time to time with all applicable U.S. laws and regulations with
regard to such withholding tax exemption.



     (g) Deliveries by Borrower. Upon satisfaction of all applicable
requirements specified in subsections (a) through (f) above, Borrower shall
execute and deliver (i) to Agent, the assignor and the assignee, any consent or
release (of all or a portion of the obligations of the assignor) required to be
delivered by Borrower in connection with the Assignment Agreement, and (ii) to
the assignee and the assignor, if applicable, an appropriate Note or Notes.
After delivery of the new Note or Notes, the assignor’s Note or Notes being
replaced shall be returned to Borrower marked “replaced”.



63









 





     (h) Effect of Assignment. Upon satisfaction of all applicable
requirements of set forth in subsections (a) through (g) above, and any other
condition contained in this Section 10.10, (i) the assignee shall become and
thereafter be deemed to be a “Lender” for the purposes of this Agreement, (ii)
the assignor shall be released from its obligations hereunder to the extent
that its interest has been assigned, (iii) in the event that the assignor’s
entire interest has been assigned, the assignor shall cease to be and
thereafter shall no longer be deemed to be a “Lender” and (iv) the signature
pages hereto and Schedule 1 hereto shall be automatically amended, without
further action, to reflect the result of any such assignment.



     (i) Agent to Maintain Register. Agent shall maintain at the address for
notices referred to in Section 10.4 hereof a copy of each Assignment Agreement
delivered to it and a register (the “Register”) for the recordation of the
names and addresses of the Lenders and the Commitment of, and principal amount
of the Loans owing to, each Lender from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and Borrower,
Agent and the Lenders may treat each Person whose name is recorded in the
Register as the owner of the Loan recorded therein for all purposes of this
Agreement. The Register shall be available for inspection by Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.



     Section 10.11. Sale of Participations. Any Lender may, in the ordinary
course of its commercial banking business and in accordance with applicable
law, at any time sell participations to one or more Eligible Transferees (each
a “Participant”) in all or a portion of its rights or obligations under this
Agreement and the other Loan Documents (including, without limitation, all or a
portion of the Commitment and the Loans and participations owing to it and the
Note held by it); provided, that:



     (a) any such Lender’s obligations under this Agreement and the other Loan
Documents shall remain unchanged;



     (b) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations;



     (c) the parties hereto shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Agreement and each of the other Loan Documents;



     (d) such Participant shall be bound by the provisions of Section 8.5
hereof, and the Lender selling such participation shall obtain from such
Participant a written confirmation of its agreement to be so bound; and



     (e) no Participant (unless such Participant is itself a Lender) shall be
entitled to require such Lender to take or refrain from taking action under
this Agreement or under any other Loan Document, except that such Lender may
agree with such Participant that such Lender will not, without such
Participant’s consent, take action of the type described as follows:



64









 






     (i) increase the portion of the participation amount of any
Participant over the amount thereof then in effect, or extend the
Commitment Period, without the written consent of each Participant
affected thereby; or




     (ii) reduce the principal amount of or extend the time for any
payment of principal of any Loan, or reduce the rate of interest or
extend the time for payment of interest on any Loan, or reduce the
commitment fee, without the written consent of each Participant affected
thereby.


Borrower agrees that any Lender that sells participations pursuant to this
Section shall still be entitled to the benefits of Article III hereof,
notwithstanding any such transfer; provided, however, that the obligations of
Borrower shall not increase as a result of such transfer and Borrower shall
have no obligation to any Participant.




     Section 10.12. Severability of Provisions; Captions; Attachments. Any
provision of this Agreement that shall be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction. The several captions to Sections and subsections
herein are inserted for convenience only and shall be ignored in interpreting
the provisions of this Agreement. Each schedule or exhibit attached to this
Agreement shall be incorporated herein and shall be deemed to be a part hereof.



     Section 10.13. Investment Purpose. Each of the Lenders represents and
warrants to Borrower that it is entering into this Agreement with the present
intention of acquiring any Note issued pursuant hereto for
investment purposes only and not for the purpose of distribution or resale, it
being understood, however, that each Lender shall at all times retain full
control over the disposition of its assets.



     Section 10.14. Entire Agreement. This Agreement, any Note and any other
Loan Document or other agreement, document or instrument attached hereto or
executed on or as of the Closing Date integrate all of the terms and conditions
mentioned herein or incidental hereto and supersede all oral representations
and negotiations and prior writings with respect to the subject matter hereof.



     Section 10.15. Legal Representation of Parties. The Loan Documents were
negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring this Agreement or any
other Loan Document to be construed or interpreted against any party shall not
apply to any construction or interpretation hereof or thereof.



     Section 10.16. Governing Law; Submission to Jurisdiction. This
Agreement, each of the Notes and any Related Writing shall be governed by and
construed in accordance with the laws of the State of Ohio and the respective
rights and obligations of Borrower, Agent, and the Lenders shall be governed by
Ohio law, without regard to principles of conflict of laws. Borrower hereby
irrevocably submits to the non-exclusive jurisdiction of any Ohio state or



65









 







federal court sitting in Cleveland, Ohio, over any action or proceeding arising
out of or relating to this Agreement, the Obligations or any Related Writing,
and Borrower hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such Ohio state or federal
court. Borrower, on behalf of itself and its Subsidiaries, hereby irrevocably
waives, to the fullest extent permitted by law, any objection it may now or
hereafter have to the laying of venue in any action or proceeding in any such
court as well as any right it may now or hereafter have to remove such action
or proceeding, once commenced, to another court on the grounds of FORUM NON
CONVENIENS or otherwise. Borrower agrees that a final, nonappealable judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law.



[Remainder of page left intentionally blank]




10977691.15




66









 








     Section 10.17. Jury Trial Waiver. TO THE EXTENT PERMITTED BY LAW,
BORROWER, AGENT AND EACH LENDER WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG
BORROWER, AGENT AND THE LENDERS, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO.



     IN WITNESS WHEREOF, the parties have executed and delivered this Credit
Agreement as of the date first set forth above.



	 	 	 	 	 	 	 
	 	 	 	 	TELETECH HOLDINGS, INC.
	 
	Address:

	 	9197 South Peoria Street
	 	By:
	 	/s/ Karen Breen 

	

	 	Englewood, Colorado 80112-5833
	 	Name:	 	Karen Breen 
	

	 	Attn: Vice President — Treasurer
	 	Title:	 	Treasurer
	 
	 	 	 	 	 	 
	Address:

	 	127 Public Square
	 	KEYBANK NATIONAL ASSOCIATION,
	 	 	Cleveland, Ohio 44114-1306
	 	  as Agent and as a Lender
	

	 	Attn: Institutional Banking
	 	 	 	 
							
	 	 	 	 	By:
	 	/s/ Thomas A. Crandell

	

	 	 	 	 	 	Thomas A. Crandell
	

	 	 	 	 	 	Senior Vice President







Signature Page

1 of 1 of the Credit Agreement




 









 








SCHEDULE 1




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	REVOLVING	 	 
	 	 	 	 	 	 	CREDIT	 	 
	 	 	COMMITMENT	 	COMMITMENT	 	 
	 LENDERS
	 	PERCENTAGE
	 	AMOUNT
	 	MAXIMUM AMOUNT

	KeyBank National
Association
	 	 	100	%	 	$	100,000,000	 	 	$	100,000,000	 
	 
	 	 	 	 	 	 	
 	 	 	 	
 	 
	Total Commitment Amount
	 	 	100	%	 	$	100,000,000	 	 	$	100,000,000	 








S-1









 








SCHEDULE 2




GUARANTORS OF PAYMENT




Newgen Results Corporation

Carabunga.com. Inc.

TeleTech Customer Care Management (Colorado), Inc.

TeleTech Stockton, LLC

TeleTech Services Corporation

TeleTech Financial Services Management, LLC

TeleTech Customer Care Management (West Virginia), Inc.

TeleTech Government Solutions, LLC

TeleTech Facilities Management (Postal Customer Support), Inc.

TeleTech Customer Care Management (Pennsylvania), LLC

TeleTech South America Holdings, Inc.

TTEC Nevada, Inc.

TeleTech Customer Service, Inc.

T-TEC LABS, Inc.

TeleTech International Holdings, Inc.

TeleTech Customer Care Management (California), Inc.



S-2









 





SCHEDULE 2.2




BOA LETTERS OF CREDIT




	 	 	 	 	 	 	 
	L/C #
	 	Beneficiary
	 	L/C Amount

	7403379

	 	Royal Indemnity Company
	 	$	750,000	 
	7405878

	 	Liberty Mutual
	 	$	6,692,000	 
	7410023

	 	Royal Indemnity Company
	 	$	881,500	 
	7412262

	 	Union Bank of California
	 	$	1,394,985	 







S-3









 








SCHEDULE 3




PLEDGED SECURITIES




TeleTech International Pty. Ltd. (Australia)

Newgen Results Canada, Ltd. (Manitoba, Canada)

TeleTech Canada, Inc. (Ontario, Canada)

Inversiones Caspio, S.L. (Spain)

TeleTech (UK) Ltd. (UK)

Apoyo Empresarial de Servicios, S. de R.L. de C.V. (Mexico)

Servicios y Administraciones de Bajio S. de R.L. de C.vV. (Mexico)

TeleTech Mexico, S.A. de C.V. (Mexico)

TeleTech Brasil Servicios de Informatica Ltda. (Brazil)

TeleTech Brasil, Ltda. (Brazil)



S-4









 





EXHIBIT A

FORM OF

REVOLVING CREDIT NOTE




	 	 	 
	$                   

	 	May 5, 2004







     FOR VALUE RECEIVED, the undersigned, TELETECH HOLDINGS, INC., a Delaware
corporation (“Borrower”), promises to pay, on the last day of the Commitment
Period, as defined in the Credit Agreement (as hereinafter defined), to the
order of          (“Lender”) at the main office of KEYBANK NATIONAL
ASSOCIATION, as Agent, as hereinafter defined, 127 Public Square, Cleveland,
Ohio 44114-1306, the principal sum of



DOLLARS



or the aggregate unpaid principal amount of all Revolving Loans, as defined in
the Credit Agreement made by Lender to Borrower pursuant to Section 2.2(a) of
the Credit Agreement, whichever is less, in lawful money of the United States
of America.




     As used herein, “Credit Agreement” means the Credit Agreement dated as of
May 5, 2004, among Borrower, the Lenders, as defined therein, KeyBank National
Association, as lead arranger, sole book runner and administrative agent for
the Lenders (“Agent”), as the same may from time to time be amended, restated
or otherwise modified. Each capitalized term used herein that is defined in
the Credit Agreement and not otherwise defined herein shall have the meaning
ascribed to it in the Credit Agreement.



     Borrower also promises to pay interest on the unpaid principal amount of
each Revolving Loan from time to time outstanding, from the date of such
Revolving Loan until the payment in full thereof, at the rates per annum that
shall be determined in accordance with the provisions of Section 2.3(a) of the
Credit Agreement. Such interest shall be payable on each date provided for in
such Section 2.3(a); provided, however, that interest on any principal portion
that is not paid when due shall be payable on demand.



     The portions of the principal sum hereof from time to time representing
Base Rate Loans and Eurodollar Loans, and payments of principal of any thereof,
shall be shown on the records of Lender by such method as Lender may generally
employ; provided, however, that failure to make any such entry shall in no way
detract from the obligations of Borrower under this Note.



     If this Note shall not be paid at maturity, whether such maturity occurs
by reason of lapse of time or by operation of any provision for acceleration of
maturity contained in the Credit Agreement, the principal hereof and the unpaid
interest thereon shall bear interest, until paid, at a rate per annum equal to
the Default Rate. All payments of principal of and interest on this Note shall
be made in immediately available funds.



     This Note is one of the Revolving Credit Notes referred to in the Credit
Agreement. Reference is made to the Credit Agreement for a description of the
right of the undersigned to anticipate payments hereof, the right of the holder
hereof to declare this Note due prior to its stated maturity, and other terms
and conditions upon which this Note is issued.



E-1









 





     Except as expressly provided in the Credit Agreement, Borrower expressly
waives presentment, demand, protest and notice of any kind. This Note shall be
governed by and construed in accordance with the laws of the State of Ohio,
without regard to conflicts of laws provisions.



     JURY TRIAL WAIVER. BORROWER, TO THE EXTENT PERMITTED BY LAW, HEREBY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT AND THE LENDERS,
OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL
TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR
ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.


	 	 	 	 	 
	 	TELETECH HOLDINGS, INC.

 	 
	 	By:	 
 	 
	 	Name:	 
 	 
	 	Title:	 
 	 




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EXHIBIT B

FORM OF

SWING LINE NOTE




	 	 	 
	$ 15,000,000

	 	May 5, 2004







     FOR VALUE RECEIVED, the undersigned, TELETECH HOLDINGS, INC., a Delaware
corporation (“Borrower”), promises to pay to the order of KEYBANK NATIONAL
ASSOCIATION (“Lender”) at the main office of KEYBANK NATIONAL ASSOCIATION, as
Agent, as hereinafter defined, 127 Public Square, Cleveland, Ohio 44114-1306,
the principal sum of



	 	 	 
	FIFTEEN MILLION AND 00/100

	 	DOLLARS






or, if less, the aggregate unpaid principal amount of all Swing Loans, as
defined in the Credit Agreement (as hereinafter defined) made by Lender to
Borrower pursuant to Section 2.2(c) of the Credit Agreement, in lawful money of
the United States of America on the earlier of the last day of the applicable
Commitment Period, as defined in the Credit Agreement, or, with respect to each
Swing Loan, the Swing Loan Maturity Date applicable thereto.




     As used herein, “Credit Agreement” means the Credit Agreement dated as of
May 5, 2004, among Borrower, the Lenders, as defined therein, KeyBank National
Association, as lead arranger, sole book runner and administrative agent for
the Lenders (“Agent”), as the same may from time to time be amended, restated
or otherwise modified. Each capitalized term used herein that is defined in
the Credit Agreement and not otherwise defined herein shall have the meaning
ascribed to it in the Credit Agreement.



     Borrower also promises to pay interest on the unpaid principal amount of
each Swing Loan from time to time outstanding, from the date of such Swing Loan
until the payment in full thereof, at the rates per annum that shall be
determined in accordance with the provisions of Section 2.3(b) of the Credit
Agreement. Such interest shall be payable on each date provided for in such
Section 2.3(b); provided, however, that interest on any principal portion which
is not paid when due shall be payable on demand.



     The principal sum hereof from time to time and the payments of principal
and interest thereon, shall be shown on the records of Lender by such method as
Lender may generally employ; provided, however, that failure to make any such
entry shall in no way detract from the obligation of Borrower under this Note.



     If this Note shall not be paid at maturity, whether such maturity occurs
by reason of lapse of time or by operation of any provision for acceleration of
maturity contained in the Credit Agreement, the principal hereof and the unpaid
interest thereon shall bear interest, until paid, at a rate per annum equal to
the Default Rate. All payments of principal of and interest on this Note shall
be made in immediately available funds.



     This Note is the Swing Line Note referred to in the Credit Agreement.
Reference is made to the Credit Agreement for a description of the right of the
undersigned to anticipate payments



E-3









 







hereof, the right of the holder hereof to declare this Note due prior to its
stated maturity, and other terms and conditions upon which this Note is issued.



     Except as expressly provided in the Credit Agreement, Borrower expressly
waives presentment, demand, protest and notice of any kind. This Note shall be
governed by and construed in accordance with the laws of the State of Ohio,
without regard to conflicts of laws provisions.



     JURY TRIAL WAIVER. BORROWER, TO THE EXTENT PERMITTED BY LAW, HEREBY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, AGENT AND THE LENDERS,
OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL
TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS NOTE OR ANY
OTHER NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.


	 	 	 	 	 
	 	TELETECH HOLDINGS, INC.

 	 
	 	By:	 
 	 
	 	Name:	 
 	 
	 	Title:	 
 	 




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EXHIBIT C

FORM OF

NOTICE OF LOAN




[Date]                                      , 20                   




KeyBank National Association, as Agent

127 Public Square

Cleveland, Ohio 44114-0616

Attention: Institutional Banking




Ladies and Gentlemen:



     The undersigned, Teletech Holdings, Inc., refers to the Credit Agreement,
dated as of May 5, 2004 (the “Credit Agreement”, the terms defined therein
being used herein as therein defined), among the undersigned, the Lenders, as
defined in the Credit Agreement, KeyBank National Association, as lead
arranger, sole book runner and administrative agent for the Lenders (“Agent”),
and hereby gives you notice, pursuant to Section 2.5 of the Credit Agreement
that the undersigned hereby requests a Loan under the Credit Agreement, and in
connection therewith sets forth below the information relating to the Loan (the
“Proposed Loan”) as required by Section 2.5 of the Credit Agreement:




	 	(a)	 	The Business Day of the Proposed Loan is   
                , 20   .
	 
	 	(b)	 	The amount of the Proposed Loan is $  
                .
	 
	 	(c)	 	The Proposed Loan is to be a Base Rate Loan    / Eurodollar Loan    
/ Swing Loan    .
(Check one.)
	 
	 	(d)	 	If the Proposed Loan is a Eurodollar Loan, the Interest Period
requested is
one month    , two months    , three months    , six months    .
(Check one.)




The undersigned hereby certifies on behalf of Borrower that the following
statements are true on the date hereof, and will be true on the date of the
Proposed Loan:





     (i) the representations and warranties contained in each Loan
Document are correct, before and after giving effect to the Proposed Loan
and the application of the proceeds therefrom, as though made on and as
of such date;




     (ii) no event has occurred and is continuing, or would result from
such Proposed Loan, or the application of proceeds therefrom, that
constitutes a Default or Event of Default; and



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     (iii) the conditions set forth in Section 2.5 and Article IV of the
Credit Agreement have been satisfied.


	 	 	 	 	 
	 	TELETECH HOLDINGS, INC.

 	 
	 	By:	 
 	 
	 	Name:	 
 	 
	 	Title:	 
 	 




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EXHIBIT D

FORM OF

COMPLIANCE CERTIFICATE




For Fiscal Quarter ended                                       




THE UNDERSIGNED HEREBY CERTIFIES THAT:





     (1) I am the duly elected Chief Financial Officer or Treasurer of Teletech
Holdings, Inc., a Delaware corporation (“Borrower”);



     (2) I am familiar with the terms of that certain Credit Agreement, dated
as of May 5, 2004, among Borrower, the Lenders, as defined therein, KeyBank
National Association, as lead arranger, sole book runner and administrative
agent for the Lenders (“Agent”) (as the same may from time to time be amended,
restated or otherwise modified, the “Credit Agreement”, the terms defined
therein being used herein as therein defined), and the terms of the other Loan
Documents, and I have made, or have caused to be made under my supervision, a
review in reasonable detail of the transactions and condition of Borrower and
its Subsidiaries during the accounting period covered by the attached financial
statements;



     (3) The review described in paragraph (2) above did not disclose, and I
have no knowledge of, the existence of any condition or event that constitutes
or constituted a Default or Event of Default, at the end of the accounting
period covered by the attached financial statements or as of the date of this
Certificate;



     (4) The representations and warranties made by Borrower contained in each
Loan Document are true and correct as though made on and as of the date hereof;
and



     (5) Set forth on Attachment I hereto are calculations of the financial
covenants set forth in Section 5.7 of the Credit Agreement, which calculations
show compliance with the terms thereof.



     IN WITNESS WHEREOF, I have signed this certificate the    day of
               , 20   .


	 	 	 	 	 
	 	TELETECH HOLDINGS, INC.

 	 
	 	By:	 
 	 
	 	Name:	 
 	 
	 	Title:	 
 	 




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EXHIBIT E

FORM OF

ASSIGNMENT AND ACCEPTANCE AGREEMENT





     This Assignment and Acceptance Agreement (this “Assignment Agreement”)
between             (the “Assignor”) and
            (the
“Assignee”) is dated as of          , 20_. The parties hereto agree as follows:



     1. Preliminary Statement. Assignor is a party to a Credit Agreement,
dated as of May 5, 2004, among Teletech Holdings, Inc. (“Borrower”), the
Lenders, as defined therein, KeyBank National Association, as lead arranger,
sole book runner and administrative agent for the Lenders (“Agent”) (as the
same may from time to time be amended, restated or otherwise modified, the
“Credit Agreement”). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.



     2. Assignment and Assumption. Assignor hereby sells and assigns to
Assignee, and Assignee hereby purchases and assumes from Assignor, an interest
in and to Assignor’s rights and obligations under the Credit Agreement,
effective as of the Assignment Effective Date (as hereinafter defined), equal
to the percentage interest specified on Annex 1 hereto (hereinafter,
“Assignee’s Percentage”) of Assignor’s right, title and interest in and to (a)
the Commitment of Assignor as set forth on Annex 1 hereto (hereinafter, the
“Assigned Amount”), (b) any Loan made by Assignor that is outstanding on the
Assignment Effective Date, (c) Assignor’s interest in any Letter of Credit
outstanding on the Assignment Effective Date, (d) any Note delivered to
Assignor pursuant to the Credit Agreement, and (e) the Credit Agreement and the
other Related Writings. After giving effect to such sale and assignment and on
and after the Assignment Effective Date, Assignee shall be deemed to have a
“Commitment Percentage” under the Credit Agreement equal to the Commitment
Percentage set forth in subpart II.A on Annex 1 hereto.



     3. Assignment Effective Date. The Assignment Effective Date (the
“Assignment Effective Date”) shall be [   
         ,    ] (or such other date
agreed to by Agent). On or prior to the Assignment Effective Date, Assignor
shall satisfy the following conditions:



     (a) receipt by Agent of this Assignment Agreement, including Annex 1
hereto, properly executed by Assignor and Assignee and accepted and consented
to by Agent and, if necessary pursuant to the provisions of Section 10.10(a) of
the Credit Agreement, by Borrower;



     (b) receipt by Agent from Assignor of a fee of Three Thousand Five Hundred
Dollars ($3,500), if required by Section 10.10 of the Credit Agreement;



     (c) receipt by Agent from Assignee of an administrative questionnaire, or
other similar document, which shall include (i) the address for notices under
the Credit Agreement, (ii) the address of its Lending Office, (iii) wire
transfer instructions for delivery of funds by Agent, (iv) and such other
information as Agent shall request; and



E-8









 





     (d) receipt by Agent from Assignor or Assignee of any other information
required pursuant to Section 10.10 of the Credit Agreement or otherwise
necessary to complete the transaction contemplated hereby.



     4. Payment Obligations. In consideration for the sale and assignment of
Loans hereunder, Assignee shall pay to Assignor, on the Assignment Effective
Date, the amount agreed to by Assignee and Assignor. Any interest, fees and
other payments accrued prior to the Assignment Effective Date with respect to
the Assigned Amount shall be for the account of Assignor. Any interest, fees
and other payments accrued on and after the Assignment Effective Date with
respect to the Assigned Amount shall be for the account of Assignee. Each of
Assignor and Assignee agrees that it will hold in trust for the other part any
interest, fees or other amounts which it may receive to which the other party
is entitled pursuant to the preceding sentence and to pay the other party any
such amounts which it may receive promptly upon receipt thereof.



     5. Credit Determination; Limitations on Assignor’s Liability. Assignee
represents and warrants to Assignor, Borrower, Agent and the Lenders (a) that
it is capable of making and has made and shall continue to make its own credit
determinations and analysis based upon such information as Assignee deemed
sufficient to enter into the transaction contemplated hereby and not based on
any statements or representations by Assignor, (b) Assignee confirms that it
meets the requirements to be an assignee as set forth in Section 10.10 of the
Credit Agreement; (c) Assignee confirms that it is able to fund the Loans and
the Letters of Credit as required by the Credit Agreement; (d) Assignee agrees
that it will perform in accordance with their terms all of the obligations
which by the terms of the Credit Agreement and the Related Writings are
required to be performed by it as a Lender thereunder; and (e) Assignee
represents that it has reviewed each of the Loan Documents. It is understood
and agreed that the assignment and assumption hereunder are made without
recourse to Assignor and that Assignor makes no representation or warranty of
any kind to Assignee and shall not be responsible for (i) the due execution,
legality, validity, enforceability, genuineness, sufficiency or collectability
of the Credit Agreement or any Related Writings, (ii) any representation,
warranty or statement made in or in connection with the Credit Agreement or any
of the Related Writings, (iii) the financial condition or creditworthiness of
Borrower or Guarantor of Payment, (iv) the performance of or compliance with
any of the terms or provisions of the Credit Agreement or any of the Related
Writings, (v) the inspection of any of the property, books or records of
Borrower, or (vi) the validity, enforceability, perfection, priority,
condition, value or sufficiency of any collateral securing or purporting to
secure the Loans or Letters of Credit. Neither Assignor nor any of its
officers, directors, employees, agents or attorneys shall be liable for any
mistake, error of judgment, or action taken or omitted to be taken in
connection with the Loans, the Letters of Credit, the Credit Agreement or the
Related Writings, except for its or their own bad faith or willful misconduct.
Assignee appoints Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement as are delegated to Agent by
the terms thereof.



     6. Indemnity. Assignee agrees to indemnify and hold Assignor harmless
against any and all losses, cost and expenses (including, without limitation,
attorneys’ fees) and liabilities incurred by Assignor in connection with or
arising in any manner from Assignee’s performance or non-performance of
obligations assumed under this Assignment Agreement.



E-9









 





     7. Subsequent Assignments. After the Assignment Effective Date, Assignee
shall have the right pursuant to Section 10.10 of the Credit Agreement to
assign the rights which are assigned to Assignee hereunder, provided that (a)
any such subsequent assignment does not violate any of the terms and conditions
of the Credit Agreement, any of the Related Writings, or any law, rule,
regulation, order, writ, judgment, injunction or decree and that any consent
required under the terms of the Credit Agreement or any of the Related Writings
has been obtained, (b) the assignee under such assignment from Assignee shall
agree to assume all of Assignee’s obligations hereunder in a manner
satisfactory to Assignor and (c) Assignee is not thereby released from any of
its obligations to Assignor hereunder.



     8. Reductions of Aggregate Amount of Commitments. If any reduction in the
Total Commitment Amount occurs between the date of this Assignment Agreement
and the Assignment Effective Date, the percentage of the Total Commitment
Amount assigned to Assignee shall remain the percentage specified in Section 1
hereof and the dollar amount of the Commitment of Assignee shall be
recalculated based on the reduced Total Commitment Amount.



     9. Acceptance of Agent; Notice by Assignor. This Assignment Agreement is
conditioned upon the acceptance and consent of Agent and, if necessary pursuant
to Section 10.10 of the Credit Agreement, upon the acceptance and consent of
Borrower; provided, that the execution of this Assignment Agreement by Agent
and, if necessary, by Borrower is evidence of such acceptance and consent.



     10. Entire Agreement. This Assignment Agreement embodies the entire
agreement and understanding between the parties hereto and supersedes all prior
agreements and understandings between the parties hereto relating to the
subject matter hereof.



     11. Governing Law. This Assignment Agreement shall be governed by the
laws of the State of Ohio, without regard to conflicts of laws.



     12. Notices. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall
be the address set forth under each party’s name on the signature pages hereof.



[Remainder of page intentionally left blank.]




E-10








 





     13. JURY TRIAL WAIVER. EACH OF THE UNDERSIGNED, TO THE EXTENT PERMITTED
BY LAW, WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG AGENT, ANY OF THE
LENDERS, AND BORROWER, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS INSTRUMENT OR ANY NOTE OR OTHER AGREEMENT, INSTRUMENT OR
DOCUMENT EXECUTED OR DELIVERED IN CONNECTION THEREWITH OR THE TRANSACTIONS
RELATED HERETO.



     IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.



	 	 	 	 	 	 	 
	Address:

	 	 	 	ASSIGNOR:
	

	 	

	 	 
	

	 	

	 	

	

	 	
	 	 	 	 
	

	 	Attn:
	 	By:	 	 
	

	 	

	 	 	 	

	

	 	 	 	Name:	 	 
	

	 	 	 	 	 	

	

	 	 	 	Title:	 	 
	

	 	 	 	 	 	







	 	 	 	 	 	 	 
	Address:

	 	 	 	ASSIGNEE:
	

	 	

	 	 
	

	 	

	 	

	

	 	
	 	 	 	 
	

	 	Attn:
	 	By:	 	 
	

	 	

	 	 	 	

	

	 	 	 	Name:	 	 
	

	 	 	 	 	 	

	

	 	 	 	Title:	 	 
	

	 	 	 	 	 	








	 	 	 
	Accepted and Consented to this

	 	Accepted and Consented to this
	   day of          , 200  :

	 	   day of          , 200  :







	 	 	 	 	 
	KEYBANK NATIONAL ASSOCIATION,

	TELETECH HOLDINGS, INC.
	     as Agent
	 	 	 	 
	 	 	 	 	 
	By:

	 	By:	 	 
	


	 	 	 	

	Name:

	 	Name:	 	 
	


	 	 	 	

	Title:

	 	Title:	 	 
	


	 	 	 	








E-11









 






ANNEX 1

TO

ASSIGNMENT AND ACCEPTANCE AGREEMENT




     On and after the Assignment Effective Date, the Commitment of Assignee,
and, if this is less than an assignment of all of Assignor’s interest,
Assignor, shall be as follows:



I. INTEREST OF ASSIGNOR BEING ASSIGNED TO ASSIGNEE




	 	 	 	 	 
	A.    Assignee’s Percentage
	 	 	                   	%
	 	 	 	 	 
	B.    Assigned Amount
	 	$	                   	 







II. ASSIGNEE’S COMMITMENT (as of the Assignment Effective Date)




	 	 	 	 	 
	A.    Assignee’s Commitment Percentage under the Credit Agreement
	 	 	                   	%
	 	 	 	 	 
	B.    Assignee’s Commitment Amount under the Credit Agreement
	 	$	                   	 







III. ASSIGNOR’S COMMITMENT (as of the Assignment Effective Date)




	 	 	 	 	 
	A.    Assignor’s Commitment Percentage under the Credit Agreement
	 	 	                   	%
	 	 	 	 	 
	B.    Assignor’s Commitment Amount under the Credit Agreement
	 	$	                   	 







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EXHIBIT F

FORM OF

REQUEST FOR EXTENSION




                   , 20         




KeyBank National Association, as Agent

127 Public Square

Cleveland, Ohio 44114-0616

Attention: Institutional Banking



Ladies and Gentlemen:




     The undersigned, Teletech Holdings, Inc. (“Borrower”), refers to the
Credit Agreement, dated as of May 5, 2004 (the “Credit Agreement”, the terms
defined therein being used herein as therein defined), among the undersigned,
the Lenders, as defined in the Credit Agreement, KeyBank National Association,
as lead arranger, sole book runner and administrative agent for the Lenders
(“Agent”), and hereby gives you notice, pursuant to Section 2.12 of the Credit
Agreement that the undersigned hereby requests an extension as set forth below
(the “Extension”) under the Credit Agreement, and in connection with the
Extension sets forth below the information relating to the Extension as
required by Section 2.12 of the Credit Agreement.



     The undersigned hereby requests Agent and the Lenders to extend the
Commitment Period from             , 200   to
            ,
200_.



     The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Extension: (a) the
representations and warranties contained in each Loan Document are correct,
before and after giving effect to the Extension and the application of the
proceeds therefrom, as though made on and as of such date; (b) no event has
occurred and is continuing, or would result from such Extension, or the
application of proceeds therefrom, which constitutes a Default or an Event of
Default; and (c) the conditions set forth in Section 2.12 and Article IV of the
Credit Agreement have been satisfied.



	 	 	 
	 

	 	Very truly yours,
	 

	 	 
	 

	 	TELETECH HOLDINGS, INC.
	 
	 	 
	

	 	By:
	

	 	

	

	 	Name:
	

	 	

	

	 	Title:
	

	 	









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