Exhibit 10.1


 


	
   

  
	
   

  



 


Published Revolver CUSIP Number: 87952JAB9


Published Transaction CUSIP Number: 87952JAA1


 


CREDIT AGREEMENT


 


among


 


TELETECH HOLDINGS, INC.


as US Borrower


 


and


 


THE FOREIGN BORROWERS NAMED
HEREIN


collectively, as Borrowers


 


THE LENDERS NAMED HEREIN


as Lenders


 


and


 


KEYBANK NATIONAL ASSOCIATION


as Joint Lead Arranger, Sole Book
Runner and Administrative Agent


 


WELLS FARGO BANK, NATIONAL
ASSOCIATION


as Joint Lead Arranger and
Co-Syndication Agent


 


BANK OF AMERICA, N.A.


as Co-Syndication Agent


 


BBVA COMPASS


as Co-Documentation Agent


 


JPMORGAN CHASE BANK, N.A.


as Co-Documentation Agent


 






 


dated as of


October 1, 2010


 






 


 


	
   

  
	
   

  



 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE
  I.  DEFINITIONS

  	
  2

  
	
  Section
  1.1.  Definitions

  	
  2

  
	
  Section
  1.2.  Accounting Terms

  	
  29

  
	
  Section
  1.3.  Terms Generally

  	
  29

  
	
  Section 1.4.  Confirmation of Recitals

  	
  29

  
	
   

  	
   

  
	
  ARTICLE II.  AMOUNT AND TERMS OF CREDIT

  	
  29

  
	
  Section
  2.1.  Amount and Nature of Credit

  	
  29

  
	
  Section
  2.2.  Revolving Credit Commitment

  	
  30

  
	
  Section
  2.3.  Interest

  	
  36

  
	
  Section 2.4.  Evidence of Indebtedness

  	
  38

  
	
  Section
  2.5.  Notice of Credit Event; Funding
  of Loans

  	
  38

  
	
  Section
  2.6.  Payment on Loans and Other
  Obligations

  	
  40

  
	
  Section
  2.7.  Prepayment

  	
  42

  
	
  Section
  2.8.  Commitment and Other Fees

  	
  43

  
	
  Section
  2.9.  Modifications to Commitment

  	
  43

  
	
  Section
  2.10.  Computation of Interest and Fees

  	
  44

  
	
  Section
  2.11.  Mandatory Payments

  	
  45

  
	
  Section
  2.12.  Liability of Borrowers

  	
  45

  
	
  Section
  2.13.  Addition of Foreign Borrowers
  and Foreign Guarantors of Payment

  	
  47

  
	
  Section
  2.14.  Grant of Additional Security
  Interests

  	
  49

  
	
  Section
  2.15.  Extension of Commitment

  	
  49

  
	
   

  	
   

  
	
  ARTICLE III.  ADDITIONAL PROVISIONS RELATING TO LIBOR
  FIXED RATE LOANS; INCREASED CAPITAL; TAXES

  	
  49

  
	
  Section
  3.1.  Requirements of Law

  	
  49

  
	
  Section
  3.2.  Taxes

  	
  51

  
	
  Section
  3.3.  Funding Losses

  	
  52

  
	
  Section
  3.4.  Change of Lending Office

  	
  53

  
	
  Section
  3.5.  Eurodollar Rate or Alternate
  Currency Rate Lending Unlawful; Inability to Determine Rate

  	
  53

  
	
  Section
  3.6.  Replacement of Lenders

  	
  54

  
	
  Section
  3.7.  Discretion of Lenders as to
  Manner of Funding

  	
  54

  
	
   

  	
   

  
	
  ARTICLE IV.  CONDITIONS PRECEDENT

  	
  55

  
	
  Section 4.1.  Conditions to Each Credit Event

  	
  55

  
	
  Section
  4.2.  Conditions to the First Credit
  Event

  	
  55

  
	
  Section
  4.3.  Post-Closing Conditions

  	
  57

  
	
   

  	
   

  
	
  ARTICLE
  V.  COVENANTS

  	
  58

  
	
  Section
  5.1.  Insurance

  	
  58

  
	
  Section
  5.2.  Money Obligations

  	
  58

  
	
  Section
  5.3.  Financial Statements and
  Information

  	
  58

  
	
  Section
  5.4.  Financial Records

  	
  59

  
	
  Section
  5.5.  Franchises; Change in Business

  	
  59

  
	
  Section 5.6.  ERISA
  Pension and Benefit Plan Compliance

  	
  60

  
	
  Section
  5.7.  Financial Covenants

  	
  61

  



 


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TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  Section
  5.8.  Borrowing

  	
  61

  
	
  Section
  5.9.  Liens

  	
  63

  
	
  Section
  5.10.  Regulations T, U and X

  	
  64

  
	
  Section
  5.11.  Investments, Loans and
  Guaranties

  	
  64

  
	
  Section
  5.12.  Merger and Sale of Assets

  	
  65

  
	
  Section
  5.13.  Acquisitions

  	
  67

  
	
  Section
  5.14.  Notice

  	
  68

  
	
  Section
  5.15.  Restricted Payments

  	
  68

  
	
  Section 5.16. 
  Environmental Compliance

  	
  68

  
	
  Section 5.17. 
  Affiliate Transactions

  	
  69

  
	
  Section
  5.18.  Use of Proceeds

  	
  69

  
	
  Section
  5.19.  Corporate Names

  	
  69

  
	
  Section
  5.20.  Lease Rentals

  	
  69

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

  	
  70

  
	
  Section
  5.22.  Restrictive Agreements

  	
  71

  
	
  Section
  5.23.  Other Covenants and Provisions

  	
  71

  
	
  Section 5.24.  Pari
  Passu Ranking

  	
  72

  
	
  Section
  5.25.  Guaranty Under Material
  Indebtedness Agreement

  	
  72

  
	
  Section
  5.26.  Amendment of Organizational
  Documents

  	
  72

  
	
  Section
  5.27.  Fiscal Year of Borrowers

  	
  72

  
	
  Section
  5.28.  Further Assurances

  	
  72

  
	
   

  	
   

  
	
  ARTICLE VI.  REPRESENTATIONS AND WARRANTIES

  	
  72

  
	
  Section
  6.1.  Corporate Existence;
  Subsidiaries; Foreign Qualification

  	
  72

  
	
  Section
  6.2.  Corporate Authority

  	
  73

  
	
  Section
  6.3.  Compliance with Laws and
  Contracts

  	
  73

  
	
  Section
  6.4.  Litigation and Administrative
  Proceedings

  	
  74

  
	
  Section
  6.5.  Title to Assets

  	
  74

  
	
  Section
  6.6.  Liens and Security Interests

  	
  74

  
	
  Section
  6.7.  Tax Returns

  	
  75

  
	
  Section
  6.8.  Environmental Laws

  	
  75

  
	
  Section
  6.9.  Locations

  	
  75

  
	
  Section
  6.10.  Continued Business

  	
  75

  
	
  Section
  6.11.  Employee Benefits Plans

  	
  76

  
	
  Section
  6.12.  Consents or Approvals

  	
  77

  
	
  Section
  6.13.  Solvency

  	
  77

  
	
  Section
  6.14.  Financial Statements

  	
  77

  
	
  Section
  6.15.  Regulations

  	
  78

  
	
  Section
  6.16.  Material Agreements

  	
  78

  
	
  Section
  6.17.  Intellectual Property

  	
  78

  
	
  Section
  6.18.  Insurance

  	
  78

  
	
  Section
  6.19.  Deposit and Securities Accounts

  	
  78

  
	
  Section
  6.20.  Accurate and Complete Statements

  	
  78

  
	
  Section
  6.21.  Investment Company; Other
  Restrictions

  	
  79

  
	
  Section
  6.22.  Defaults

  	
  79

  



 


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TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE VII.  EVENTS OF DEFAULT

  	
  79

  
	
  Section
  7.1.  Payments

  	
  79

  
	
  Section
  7.2.  Special Covenants

  	
  79

  
	
  Section
  7.3.  Other Covenants

  	
  79

  
	
  Section
  7.4.  Representations and Warranties

  	
  79

  
	
  Section
  7.5.  Cross Default

  	
  79

  
	
  Section
  7.6.  ERISA Default

  	
  80

  
	
  Section
  7.7.  Change in Control

  	
  80

  
	
  Section
  7.8.  Judgments

  	
  80

  
	
  Section
  7.9.  Security

  	
  80

  
	
  Section
  7.10.  Validity of Loan Documents

  	
  80

  
	
  Section
  7.11.  Solvency

  	
  80

  
	
   

  	
   

  
	
  ARTICLE VIII.  REMEDIES UPON DEFAULT

  	
  81

  
	
  Section
  8.1.  Optional Defaults

  	
  81

  
	
  Section
  8.2.  Automatic Defaults

  	
  82

  
	
  Section
  8.3.  Letters of Credit

  	
  82

  
	
  Section
  8.4.  Offsets

  	
  82

  
	
  Section
  8.5.  Equalization Provisions

  	
  83

  
	
  Section
  8.6.  Other Remedies

  	
  83

  
	
  Section
  8.7.  Application of Proceeds

  	
  84

  
	
   

  	
   

  
	
  ARTICLE IX.  THE AGENT

  	
  85

  
	
  Section
  9.1.  Appointment and Authorization

  	
  85

  
	
  Section
  9.2.  Note Holders

  	
  86

  
	
  Section
  9.3.  Consultation With Counsel

  	
  86

  
	
  Section
  9.4.  Documents

  	
  86

  
	
  Section
  9.5.  Agent and Affiliates

  	
  86

  
	
  Section
  9.6.  Knowledge or Notice of Default

  	
  86

  
	
  Section
  9.7.  Action by Agent

  	
  87

  
	
  Section
  9.8.  Release of Collateral or
  Guarantor of Payment

  	
  87

  
	
  Section
  9.9.  Delegation of Duties

  	
  87

  
	
  Section
  9.10.  Indemnification of Agent

  	
  87

  
	
  Section
  9.11.  Successor Agent

  	
  88

  
	
  Section
  9.12.  Fronting Lender

  	
  88

  
	
  Section
  9.13.  Swing Line Lender

  	
  88

  
	
  Section
  9.14.  Agent May File Proofs of Claim

  	
  89

  
	
  Section
  9.15.  No Reliance on Agent’s Customer
  Identification Program

  	
  89

  
	
  Section
  9.16.  Other Agents

  	
  89

  
	
   

  	
   

  
	
  ARTICLE X.  GUARANTY

  	
  90

  
	
  Section 10.1.  The Guaranty

  	
  90

  
	
  Section 10.2.  Obligations Unconditional

  	
  90

  
	
  Section 10.3.  Reinstatement

  	
  91

  
	
  Section 10.4.  Certain Additional Waivers

  	
  91

  
	
  Section 10.5.  Remedies

  	
  91

  
	
  Section 10.6.  Guarantee of Payment, Continuing Guarantee

  	
  91

  



 


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TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  Section 10.7.  Payments

  	
  92

  
	
   

  	
   

  
	
  ARTICLE XI. 
  MISCELLANEOUS

  	
  92

  
	
  Section 11.1.  Lenders’ Independent Investigation

  	
  92

  
	
  Section 11.2.  No Waiver; Cumulative Remedies

  	
  92

  
	
  Section 11.3.  Amendments, Waivers and Consents

  	
  92

  
	
  Section 11.4.  Notices

  	
  93

  
	
  Section 11.5.  Costs, Expenses and Documentary Taxes

  	
  94

  
	
  Section 11.6.  Indemnification

  	
  94

  
	
  Section 11.7.  Obligations Several; No Fiduciary
  Obligations

  	
  95

  
	
  Section 11.8.  Execution in Counterparts

  	
  95

  
	
  Section 11.9.  Binding Effect; Borrowers’ Assignment

  	
  95

  
	
  Section 11.10.  Lender Assignments

  	
  95

  
	
  Section 11.11.  Sale of Participations

  	
  97

  
	
  Section 11.12.  Replacement of Affected Lenders

  	
  98

  
	
  Section 11.13.  Patriot Act Notice

  	
  98

  
	
  Section 11.14.  Severability of Provisions; Captions;
  Attachments

  	
  98

  
	
  Section 11.15.  Investment Purpose

  	
  99

  
	
  Section 11.16.  Entire Agreement

  	
  99

  
	
  Section 11.17.  Limitations on Liability of the Fronting
  Lender

  	
  99

  
	
  Section 11.18.  General Limitation of Liability

  	
  99

  
	
  Section 11.19.  No Duty

  	
  100

  
	
  Section 11.20.  Legal Representation of Parties

  	
  100

  
	
  Section 11.21.  Judgment Currency

  	
  100

  
	
  Section 11.22.  Governing Law; Submission to Jurisdiction

  	
  101

  
	
  Section 11.23.  Jury Trial Waiver

  	
  Signature Page 1

  



 


	
  Exhibit A

  	
   

  	
  Form of US Borrower Revolving Credit Note

  
	
  Exhibit B

  	
   

  	
  Form of Foreign Borrower Revolving Credit Note

  
	
  Exhibit C

  	
   

  	
  Form of Swing Line Note

  
	
  Exhibit D

  	
   

  	
  Form of Notice of Loan

  
	
  Exhibit E

  	
   

  	
  Form of Compliance Certificate

  
	
  Exhibit F

  	
   

  	
  Form of Assignment and Acceptance Agreement

  
	
  Exhibit G

  	
   

  	
  Form of Additional Foreign Borrower Assumption Agreement

  
	
  Exhibit H

  	
   

  	
  Form of Request for Extension

  
	
   

  	
   

  	
   

  
	
  Schedule 1

  	
   

  	
  Commitments of Lenders

  
	
  Schedule 2

  	
   

  	
  Foreign Borrowers

  
	
  Schedule 2.2

  	
   

  	
  Existing Letters of Credit

  
	
  Schedule 3

  	
   

  	
  Guarantors of Payment

  
	
  Schedule 5.8

  	
   

  	
  Indebtedness

  
	
  Schedule 5.9

  	
   

  	
  Liens

  
	
  Schedule 6.1

  	
   

  	
  Corporate Existence; Subsidiaries; Foreign
  Qualification

  
	
  Schedule 6.4

  	
   

  	
  Litigation and Administrative Proceedings

  
	
  Schedule 6.9

  	
   

  	
  Locations

  
	
  Schedule 6.11

  	
   

  	
  Employee Benefits Plans

  



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 6.16

  	
   

  	
  Material Agreements

  	
   

  
	
  Schedule 6.18

  	
   

  	
  Insurance

  	
   

  



 


v

















 


                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 1st day of October, 2010 among:


 


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


 


                (b)           each Foreign Borrower, as hereinafter
defined, as may hereafter become a party hereto (each such Foreign Borrower,
together with US Borrower shall be referred to herein, collectively, as “Borrowers”
and, individually, each a “Borrower”);


 


                (c)           the lenders listed on Schedule 1
hereto and each other Eligible Transferee, as hereinafter defined, that from
time to time becomes a party hereto pursuant to Section 2.9(b) or 11.10 hereof
(collectively, the “Lenders” and, individually, each a “Lender”);


 


                (d)           KEYBANK NATIONAL ASSOCIATION, a
national banking association, as joint lead arranger, sole book runner and
administrative agent for the Lenders under this Agreement (“Agent”);


 


                (e)           WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, as joint lead arranger and
co-syndication agent;


 


                (f)            BANK OF AMERICA, N.A., a national
banking association, as co-syndication agent;


 


                (g)           COMPASS BANK, an Alabama banking
corporation, sometimes referred to as “BBVA Compass”, as co-documentation
agent; and


 


                (h)           JPMORGAN CHASE BANK, N.A., a national
banking association, as co-documentation agent.


 


WITNESSETH:


 


                WHEREAS,
US Borrower, Agent and the lenders named therein entered into that certain
Amended and Restated Credit Agreement, dated as of September 28, 2006 (the “Amended
Credit Agreement”), which agreement amended and restated that certain Credit
Agreement, dated as of May 5, 2004 (as amended, the “Original Credit Agreement”
and, together with the Amended Credit Agreement, collectively, the “Prior
Credit Agreements”);


 


                WHEREAS,
this Agreement amends and restates in its entirety the Amended Credit Agreement
and, upon the effectiveness of this Agreement, the terms and provisions of the
Amended Credit Agreement shall be superseded hereby.  All references to “Credit Agreement”
contained in the Loan Documents, as defined in the Original Credit Agreement or
the Amended Credit Agreement, delivered in connection with the Original Credit
Agreement or the Amended Credit Agreement, shall be deemed to refer to this
Agreement.  Notwithstanding the amendment
and restatement of the Amended Credit Agreement by this Agreement, the
obligations 


 

















 


outstanding (including, but not limited to, the
letters of credit issued and outstanding) under the Amended Credit Agreement as
of October 1, 2010 shall remain outstanding and constitute continuing
Obligations hereunder.  Such outstanding
Obligations and the guaranties of payment thereof shall in all respects be
continuing, and this Agreement shall not be deemed to evidence or result in a
novation or repayment and re-borrowing of such Obligations.  In furtherance of and, without limiting the
foregoing, from and after the date hereof and except as expressly specified
herein, the terms, conditions, and covenants governing the obligations
outstanding under the Amended Credit Agreement shall be solely as set forth in
this Agreement, which shall supersede the Amended Credit Agreement in its
entirety; and


 


                WHEREAS,
Borrowers, 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 Borrowers 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 meanings set forth below:


 


                “Acquisition”
means 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 outstanding capital 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” means that term as defined in Section 2.9(b) hereof.


 


                “Additional
Foreign Borrower Assumption Agreement” means each of the Additional Foreign
Borrower Assumption Agreements executed by a Foreign Borrower, as applicable,
after the Closing Date, substantially in the form of the attached Exhibit G,
as the same may from time to time be amended, restated or otherwise modified.


 


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


 


                “Additional
Lender Assumption Agreement” means 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” means that term as defined in Section 2.9(b)
hereof.


 


2

















 


                “Administrative
Borrower” means US Borrower.


 


                “Advantage”
means 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 (based upon its Commitment Percentage) of the Obligations then
outstanding.


 


                “Affected
Lender” means a Defaulting Lender, an Insolvent Lender or a Downgraded Lender.


 


                “Affiliate”
means 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”) means 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”
means that term as defined in the first paragraph hereof.


 


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


 


                “Agreement”
means that term as defined in the first paragraph hereof.


 


                “Alternate
Currency” means (a) Euros, Canadian Dollars, Pounds Sterling, Japanese Yen,
Mexican Pesos, New Zealand Dollars and Australian Dollars, in each case as
acceptable to Agent, and (b) any other currency, other than Dollars, agreed to
by Agent and the Required Lenders in writing, that (i) shall be freely
transferable and convertible into Dollars, (ii) is dealt with in the London
interbank deposit market, and (iii) for which no central bank or other
governmental authorization in the country of issue of such currency is required
to give authorization for the use of such currency by any Lender for making
Revolving Loans unless such authorization has been obtained and remains in full
force and effect.


 


                “Alternate
Currency Exposure” means, at any time and without duplication, the sum of the
Dollar Equivalent of (a) the aggregate principal amount of Alternate Currency
Loans outstanding to US Borrower, (b) the aggregate principal amount of
Alternate Currency Loans outstanding to the Foreign Borrowers, and (c) the
Letter of Credit Exposure that is denominated in one or more Alternate Currencies.


 


                “Alternate
Currency Loan” means a Revolving Loan described in Section 2.2(a) hereof, that
shall be denominated in an Alternate Currency and on which a Borrower shall pay
interest at a rate based upon the Derived LIBOR Fixed Rate applicable to such
Alternate Currency.


 


                “Alternate
Currency Maximum Amount” means an amount equal to fifty percent (50%) of the
Total Commitment Amount.


 


3
















 


“Alternate Currency Rate” means, with respect to an
Alternate Currency 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
Alternate Currency 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 deposits in the relevant Alternate
Currency 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 Alternate Currency Rate shall be the average
(rounded upward to the nearest 1/16th of 1%) of the per annum rates at which
deposits in immediately available funds in the relevant Alternate Currency for
the relevant Interest Period and in the amount of the Alternate Currency 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 Alternate Currency 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 Alternate Currency Loan hereunder; by (b) 1.00
minus the Reserve Percentage.


 


“Anti-Terrorism Order” means Executive Order 13224 of September 23,
2001 Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), as
amended.


 


“Applicable Commitment Fee Rate” means:


 


(a)           for
the period from the Closing Date through March 31, 2011, twenty-five
(25.00) basis points; and


 


(b)           commencing
with the Consolidated financial statements of US Borrower for the fiscal year
ending December 31, 2010, the number of basis points set forth in the
following matrix, based upon the result of the computation of the Leverage
Ratio as set forth in the Compliance Certificate for such fiscal period, shall
be used to establish the number of basis points that will go into effect on April 1,
2011 and, thereafter, as set forth in each successive Compliance Certificate,
as provided below:


 


	
  Leverage Ratio

  	
   

  	
  Applicable Commitment Fee Rate

  
	
  Greater than or equal to 3.00 to 1.00

  	
   

  	
  40.00 basis points

  
	
  Greater than or equal to 2.00 to 1.00 but less than
  3.00 to 1.00

  	
   

  	
  35.00 basis points

  
	
  Greater than or equal to 1.00 to 1.00 but less than
  2.00 to 1.00

  	
   

  	
  30.00 basis points

  
	
  Less than 1.00 to 1.00

  	
   

  	
  25.00 basis points

  



 


4

















 


After April 1, 2011, changes to the Applicable
Commitment Fee Rate shall be effective on the first day of each calendar month
following the date upon which Agent should have received, pursuant to
Section 5.3(a) and (b) hereof, the Consolidated financial
statements of US Borrower.  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, (i) during any period when US Borrower shall have failed to
timely deliver the Consolidated 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 Consolidated 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, and (ii) in the event that any financial
information or certification provided to Agent in the Compliance Certificate is
shown to be inaccurate, and such inaccuracy, if corrected, would have led to
the application of a higher Applicable Commitment Fee Rate for any period (an “Applicable
Commitment Fee Period”) than the Applicable Commitment Fee Rate applied for
such Applicable Commitment Fee Period, then (A) US Borrower shall
immediately deliver to Agent a corrected Compliance Certificate for such
Applicable Commitment Fee Period, (B) the Applicable Commitment Fee Rate
shall be determined based on such corrected Compliance Certificate, and (C) US
Borrower shall immediately pay to Agent the accrued additional fees owing as a
result of such increased Applicable Commitment Fee Rate for such Applicable
Commitment Fee Period.


 


“Applicable Margin” means:


 


(a)           for
the period from the Closing Date through March 31, 2011, one hundred
twenty-five (125.00) basis points for LIBOR Fixed Rate Loans and zero (0.00)
basis points for Base Rate Loans; and


 


(b)           commencing
with the Consolidated financial statements of US Borrower for the fiscal year
ending December 31, 2010, the number of basis points (depending upon
whether Loans are LIBOR Fixed Rate Loans or Base Rate Loans) set forth in the
following matrix, based upon the result of the computation of the Leverage
Ratio as set forth in the Compliance Certificate for such fiscal period, shall
be used to establish the number of basis points that will go into effect on April 1,
2011 and, thereafter, as set forth in each successive Compliance Certificate,
as provided below:


 


	
  Leverage Ratio

  	
   

  	
  Applicable Basis

  Points for LIBOR

  Fixed Rate Loans

  	
   

  	
  Applicable Basis

  Points for

  Base Rate Loans

  	
   

  
	
  Greater than or equal to 3.00 to 1.00

  	
   

  	
  275.00

  	
   

  	
  100.00

  	
   

  
	
  Greater than or equal to 2.00 to 1.00 but less than
  3.00 to 1.00

  	
   

  	
  225.00

  	
   

  	
  50.00

  	
   

  
	
  Greater than or equal to 1.00 to 1.00 but less than
  2.00 to 1.00

  	
   

  	
  175.00

  	
   

  	
  0.00

  	
   

  
	
  Less than 1.00 to 1.00

  	
   

  	
  125.00

  	
   

  	
  0.00

  	
   

  



 


5

















 


After April 1, 2011, changes to the Applicable
Margin shall be effective on the first day of each calendar month following the
date upon which Agent should have received, pursuant to Section 5.3(a) and
(b) hereof, the Consolidated financial statements of US Borrower.  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, (i) during any period when US Borrower shall have failed to
timely deliver the Consolidated 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 Consolidated financial statements and
Compliance Certificate are delivered, the Applicable Margin shall be the highest
rate per annum indicated in the above pricing grid for Loans of that type,
regardless of the Leverage Ratio at such time, and (ii) in the event that
any financial information or certification provided to Agent in the Compliance
Certificate is shown to be inaccurate, and such inaccuracy, if corrected, would
have led to the application of a higher Applicable Margin for any period (an “Applicable
Margin Period”) than the Applicable Margin applied for such Applicable Margin
Period, then (A) US Borrower shall immediately deliver to Agent a
corrected Compliance Certificate for such Applicable Margin Period, (B) the
Applicable Margin shall be determined based on such corrected Compliance
Certificate, and (C) US Borrower shall immediately pay to Agent the accrued
additional interest owing as a result of such increased Applicable Margin for
such Applicable Margin Period.


 


“Approved Foreign Jurisdiction” means (a) Australia,
Canada, Japan, Mexico, New Zealand, or any European Union country (other than
Bulgaria, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Portugal,
Romania, Slovakia, and Slovenia), in each case as acceptable to Agent, and (b) any
other jurisdiction approved by Agent and the Required Lenders in writing.


 


“Assignment Agreement” means an Assignment and
Acceptance Agreement in the form of the attached Exhibit F.


 


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


 


“Available Liquidity” means, at any time, the sum,
without duplication, of (a) all unencumbered and unrestricted (except as
to any Lien of Agent, for the benefit of the Lenders) cash on hand of the
Companies, plus (b) all unencumbered and unrestricted (except as to any
Lien of Agent, for the benefit of the Lenders) Cash Equivalents of the
Companies that have a maturity of not more than one year from the date of
determination, plus (c) the Revolving Credit Availability; provided that,
for the purposes of calculating Available Liquidity for Section 5.7(d) hereof,
to the extent that cash needs to be repatriated to a jurisdiction for the
payment of all or any part of the Expected Earn-Out Amount, the costs
(including taxes and other related costs) of such repatriation shall be
subtracted from Available Liquidity.


 


6

















 


“Bank Product Agreements” means those certain cash
management services and other agreements entered into from time to time between
a Company and Agent or a Lender (or an affiliate of a Lender) in connection
with any of the Bank Products.


 


“Bank Product Obligations” means all obligations,
liabilities, contingent reimbursement obligations, fees, and expenses owing by
a Company to Agent or any Lender (or an affiliate of a Lender) pursuant to or
evidenced by the Bank Product Agreements.


 


“Bank Products” means a service or facility extended
to a Company by Agent or any Lender (or an affiliate of a Lender) for (a) credit
cards and credit card processing services, (b) debit cards, purchase cards
and stored value cards, (c) ACH transactions, and (d) cash
management, including controlled disbursement, accounts or services.


 


“Bankruptcy Code” means Title 11 of the United States
Code entitled “Bankruptcy”, as now or hereafter in effect, or any successor
thereto, as hereafter amended.


 


“Base Rate” means, on any day, a rate per annum equal
to the highest of (a) the Prime Rate, (b) one half of one percent
(.50%) in excess of the Federal Funds Effective Rate, and (c) one hundred
twenty-five (125.00) basis points in excess of the London Interbank Offered
Rate for loans in Eurodollars with an Interest Period of one month (or, if such
day is not a Business Day, such rate as calculated on the most recent Business
Day).  Any change in the Base Rate shall
be effective immediately from and after such change in the Base Rate.


 


“Base Rate Loan” means a Revolving Loan described in Section 2.2(a) hereof,
that shall be denominated in Dollars and on which Borrowers shall pay interest
at a rate based on the Derived Base Rate.


 


“Borrower” means that term as defined in the first
paragraph hereof.


 


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


 


“Borrowers” means that term as defined in the first
paragraph hereof.


 


“Business Day” means a day that is not a Saturday, a
Sunday or another day of the year on which national banks are authorized or
required to close, and, in addition, (a) if the applicable Business Day
relates to a Eurodollar Loan, is a day of the year on which dealings in
deposits are carried on in the London interbank Eurodollar market, and (b) if
the applicable Business Day relates to an Alternate Currency, is a day on which
dealings in deposits are carried on in the relevant Alternate Currency.


 


“Capital Distribution” means a payment made, liability
incurred or other consideration given by a Company to any Person that is not a
Company, (a) for the purchase, acquisition, redemption, repurchase,
payment or retirement of any capital stock or other equity interest of such
Company, or (b) as a dividend, return of capital or other distribution
(other than any stock


 


7

















 


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” means 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” means those securities and other
investments described in the Borrower Investment Policy.


 


“Change in Control” means (a) the acquisition of,
or, if earlier, the shareholder or director approval of the acquisition of,
ownership or voting control, directly or indirectly, beneficially (within the
meaning of Rules 13d-3 and 13d-5 of the Exchange Act) 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 Sections 13d-3 and 14d of the Exchange Act), of
shares representing more than forty percent (40%) of the aggregate ordinary
Voting Power represented by the issued and outstanding equity interests of US
Borrower; (b) the occupation of a majority of the seats (other than vacant
seats) on the board of directors or other governing body of US Borrower by
Persons who were neither (i) nominated by the board of directors or other
governing body of US Borrower nor (ii) appointed by directors so nominated;
(c) if US Borrower shall cease to own, directly or indirectly,
seventy-five percent (75%) of the aggregate ordinary Voting Power represented
by the issued and outstanding equity interests of each Foreign Borrower; or (d) the
occurrence of a change in control, or other term of similar import used
therein, as defined in any Material Indebtedness Agreement.


 


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


 


“Closing Fee Letter” means the Closing Fee Letter
between US Borrower and Agent, dated as of the Closing Date.


 


“Closing Revolving Amount” means Three Hundred
Fifty Million Dollars ($350,000,000).


 


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


 


“Collateral” means the Collateral, as defined in the
Security Documents from time to time.


 


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


 


8

















 


“Commitment Increase Period” means 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 (prior to the last day of the
Commitment Period) as shall be agreed to in writing by Agent.


 


“Commitment Percentage” means, for each Lender, the
percentage set forth opposite such Lender’s name under the column headed “Commitment
Percentage”, as listed in Schedule 1 hereto (taking into account any
assignments pursuant to Section 11.10 hereof).


 


“Commitment Period” means the period from the Closing
Date to September 30, 2015, or such earlier date on which the Commitment
shall have been terminated pursuant to Article VIII hereof.


 


“Companies” means all Borrowers and all Subsidiaries
of all Borrowers.


 


“Company” means a Borrower or a Subsidiary of a
Borrower.


 


“Compliance Certificate” means a Compliance
Certificate in the form of the attached Exhibit E.


 


“Consideration” means, in connection with an
Acquisition, the aggregate consideration paid or to be paid, including borrowed
funds, cash, deferred payments, 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 or to be 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” means the resultant consolidation of
the financial statements of US Borrower and its Subsidiaries in accordance with
GAAP, including principles of consolidation consistent with those applied in
preparation of the consolidated financial statements referred to in Section 6.14
hereof.


 


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


 


“Consolidated EBITDA” means, for any period, as
determined on a Consolidated basis, Consolidated Net Earnings for such period
plus, without duplication, 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)), and (d) (i) non-cash
charges or expenses


 


9

















 


incurred in accordance with GAAP (but excluding any
non-cash charges related to receivables impairment), 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; provided that, for purposes of calculating the Leverage Ratio, Senior
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 US 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), (2) a pro forma
calculation of Consolidated EBITDA shall be made for Significant Positive
EBITDA Acquisitions made during such period, and (3) to the extent that
any changes to GAAP require the reclassification or recharacterization of
Operating Leases as capital leases, changes to Consolidated EBITDA that result
from such reclassification or recharacterization shall be excluded from the
calculation of Consolidated EBITDA.


 


“Consolidated Funded Indebtedness” means, 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 otherwise) with respect to letters of credit (other than a
letter of credit or similar form of credit enhancement issued as a Performance
Guaranty), and (g) all obligations for the deferred purchase price of
capital assets; as determined on a Consolidated basis.  Notwithstanding anything in this definition
to the contrary (i) all deferred payment obligations (that are not based
on performance) that are part of the total Consideration for an Acquisition
shall be considered to be Consolidated Funded Indebtedness for the purposes of
calculating the financial covenants set forth in Section 5.7 hereof, (ii) no
performance based contingent obligation that is part of the total Consideration
for any Acquisition shall be considered to be Consolidated Funded Indebtedness
for the purposes of calculating the financial covenants set forth in
Section 5.7 hereof, and (iii) to the extent that changes to GAAP
require the reclassification or recharacterization of Operating Leases as
capital leases, such leases, as so reclassified or recharacterized, shall be
excluded from Consolidated Funded Indebtedness.  In addition, for the avoidance of doubt, the
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 shall not be considered Consolidated Funded Indebtedness.


 


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


 


“Consolidated Interest Expense” means, for any period,
the interest expense of US Borrower, paid in cash, on Consolidated Funded
Indebtedness for such period, as determined on a Consolidated basis.


 


10

















 


“Consolidated Net Earnings” means, for any period, the
net income (loss) of US Borrower for such period, as determined on a
Consolidated basis.


 


“Consolidated Net Worth” means, at any date, the
stockholders’ equity of US Borrower, determined as of such date on a
Consolidated basis.


 


“Consolidated Senior Funded Indebtedness” means, at
any date, as determined on a Consolidated basis, the total, without
duplication, of (a) Consolidated Funded Indebtedness, minus (b) Subordinated
Indebtedness.


 


“Consolidated Total Assets” means, at any time, all of
the assets of the Companies, as determined on a Consolidated basis.


 


“Control Agreement” means a Deposit Account Control
Agreement or a Securities Account Control Agreement.


 


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


 


“Credit Event” means 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 (or amendment or renewal) by the Fronting Lender of a
Letter of Credit.


 


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


 


“Customary Setoffs” means, as to any Securities
Intermediary or depository institution, as applicable, with respect to any
Securities Account or Deposit Account, as applicable, maintained with such
Person, setoffs and chargebacks by such Person against such Securities Account
or Deposit Account, as applicable, that directly relate to the maintenance and
administration thereof, including, without limitation, for the following
purposes: (a) administrative and maintenance fees and expenses; (b) items
deposited in or credited to the account and returned unpaid or otherwise
uncollected or subject to an adjustment entry; (c) for adjustments or
corrections of posting or encoding errors; (d) for any ACH credit or
similar entries that are subsequently returned thereafter; (e) for items
subject to a claim against the depository bank/securities intermediary for
breach of transfer, presentment, encoding, retention or other warranty under
Federal Reserve Regulations or Operating Circulars, ACH or other clearing house
rules, or applicable law (including, without limitation, Articles 3, 4 and 4A
of the U.C.C.); and (f) for chargebacks in connection with merchant card
transactions.


 


“Default” means 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


 


11

















 


not been waived by the Required Lenders (or, if
required hereunder, all of the Lenders) in writing.


 


“Default Rate” means (a) with respect to any Loan
or other Obligation for which a rate is specified, 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.


 


“Defaulting Lender” means any Lender, as reasonably
determined by Agent, that (a) has failed (which failure has not been
cured) to fund any Loan or any participation interest in Letters of Credit
required to be made hereunder in accordance with the terms hereof (unless such
Lender shall have notified Agent and Administrative Borrower in writing of its
good faith determination that a condition under Section 4.1 hereof to its
obligation to fund any Loan shall not have been satisfied); (b) has
notified Administrative Borrower or Agent in writing that it does not intend to
comply with any of its funding obligations under this Agreement or has made a
public statement to the effect that it does not intend to comply with its
funding obligations under this Agreement or generally under other agreements in
which it commits to extend credit; (c) has failed, within three Business
Days after receipt of a written request from Agent or Administrative Borrower
to confirm that it will comply with the terms of this Agreement relating to its
obligation to fund prospective Loans or participations in Letters of Credit,
and such request states that the requesting party has reason to believe that
the Lender receiving such request may fail to comply with such obligation, and
states such reason; or (d) has failed to pay to Agent or any other Lender
when due an amount owed by such Lender to Agent or any other Lender pursuant to
the terms of this Agreement, unless such amount is subject to a good faith
dispute or such failure has been cured. 
Any Defaulting Lender shall cease to be a Defaulting Lender when Agent
determines, in its reasonable discretion, that such Defaulting Lender is no
longer a Defaulting Lender based upon the characteristics set forth in this
definition.


 


“Deposit Account” means a deposit account, as that
term is defined in the U.C.C.


 


“Deposit Account Control Agreement” means each Deposit
Account Control Agreement among US Borrower or a Domestic Guarantor of Payment,
Agent and a depository institution, dated on or after the Closing Date, to be
in form and substance satisfactory to Agent, as the same may from time to time
be amended, restated or otherwise modified.


 


“Derived Base Rate” means 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 LIBOR Fixed Rate” means (a) with respect
to a Eurodollar Loan, a rate per annum equal to the sum of the Applicable
Margin (from time to time in effect) for LIBOR Fixed Rate Loans plus the
Eurodollar Rate, and (b) with respect to an Alternate Currency Loan, a
rate per annum equal to the sum of the Applicable Margin (from time to time in
effect) for LIBOR Fixed Rate Loans plus the Alternate Currency Rate applicable
to the relevant Alternate Currency.


 


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


 


12

















 


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


 


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


 


“Dollar Equivalent” means (a) with respect to an
Alternate Currency Loan or Letter of Credit denominated in an Alternate Currency,
the Dollar equivalent of the amount of such Alternate Currency Loan or Letter
of Credit denominated in such Alternate Currency, determined by Agent on the
basis of its spot rate at approximately 11:00 A.M. (London time) on the
date two Business Days before the date of such Alternate Currency Loan or
issuance of such Letter of Credit denominated in such Alternate Currency, for
the purchase of the relevant Alternate Currency with Dollars for delivery on
the date of such Alternate Currency Loan or Letter of Credit, and (b) with
respect to any other amount, if such amount is denominated in Dollars, then
such amount in Dollars and, otherwise the Dollar equivalent of such amount,
determined by Agent on the basis of its spot rate at approximately 11:00 A.M.
(London time) on the date for which the Dollar equivalent amount of such amount
is being determined, for the purchase of the relevant Alternate Currency with
Dollars for delivery on such date; provided that, in calculating the Dollar
Equivalent for purposes of determining (i) a Borrower’s obligation to
prepay Loans and Letters of Credit pursuant to Section 2.11(a) hereof,
or (ii) a Borrower’s ability to request additional Loans or Letters of
Credit pursuant to the Commitment, Agent may, in its discretion, on any
Business Day selected by Agent (prior to payment in full of the Obligations),
calculate the Dollar Equivalent of each such Loan or Letter of Credit.  (Note that for purposes of repayment of an
Alternate Currency Loan at the end of an Interest Period, the amount of the
Alternate Currency borrowed (as opposed to the Dollar Equivalent of such
amount) is the amount required to be repaid.) 
Agent shall notify Administrative Borrower of the Dollar Equivalent of
such Alternate Currency Loan or any other amount, at the time that such Dollar
Equivalent shall have been determined.


 


“Domestic Guarantor of Payment” means each of the
Companies designated a “Domestic Guarantor of Payment” on Schedule 3
hereto, each of which is executing and delivering a Guaranty of Payment, and
any other Domestic Subsidiary that shall deliver a Guaranty of Payment to Agent
subsequent to the Closing Date; provided that (a) none of Percepta, Global
or any Newgen Company shall be required to be a Guarantor of Payment, (b) no
joint venture, partnership or limited liability company in which US Borrower
(or any other Company) and a non-Affiliate hold an interest shall be required
to be a Guarantor of Payment, and (c) no captive insurance company in
which US Borrower (or any other Company) holds an interest shall be required to
be a Guarantor of Payment.


 


“Domestic Subsidiary” means a Subsidiary that is not a
Foreign Subsidiary.


 


“Dormant Subsidiary” means a Company that (a) is
not a Credit Party or the direct or indirect equity holder of 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
such Company and all such Subsidiaries, of more than Five Million Dollars
($5,000,000).


 


13
















 


“Downgraded Lender” means any Lender that has a
non-credit enhanced senior unsecured debt rating below investment grade from
either Moody’s, Standard & Poor’s or any other nationally recognized
statistical rating organization recognized as such by the SEC that has been
designated by Agent, in its reasonable discretion, as a Downgraded Lender.  Any Downgraded Lender shall cease to be a
Downgraded Lender when Agent determines, in its reasonable discretion, that
such Downgraded Lender is no longer a Downgraded Lender based upon the
characteristics set forth in this definition.


 


“EBITDA” means, for any period, the net earnings of a
Person (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 Person, (b) income taxes of
such Person and (c) the aggregate of all depreciation and amortization
charges of such Person for fixed assets, leasehold improvements and general
intangibles (specifically including goodwill).


 


“Eligible Transferee” means a commercial bank,
financial institution or other “accredited investor” (as defined in SEC
Regulation D) that is not a 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” means all provisions of law
(including the common law), statutes, ordinances, codes, rules, guidelines,
policies, procedures, orders-in-council, regulations, permits, licenses,
judgments, writs, injunctions, decrees, orders, awards and standards
promulgated by a Governmental Authority or by any court, agency,
instrumentality, regulatory authority or commission of any of the foregoing
concerning environmental health or safety and protection of, or regulation of
the discharge of substances into, the environment.


 


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


 


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


 


“ERISA Event” means (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


 


14

















 


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 a Company; (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” means 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 such plan, 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” means a Dollar denominated deposit in a
bank or branch outside of the United States.


 


“Eurodollar Loan” means a Revolving Loan described in
Section 2.2(a) hereof, that shall be denominated in Dollars and on
which Borrowers shall pay interest at a rate based upon the Derived LIBOR Fixed
Rate applicable to Eurodollars.


 


“Eurodollar Rate” means, 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
Bloomberg (or, if for any reason such rate is unavailable from Reuters or
Bloomberg, from any other similar company or service that provides rate
quotations comparable to those currently provided by Reuters or Bloomberg) 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 1%) of the per annum rates at which deposits in immediately available


 


15

















 


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;
by (b) 1.00 minus the Reserve Percentage.


 


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


 


“Exchange Act” means the Securities Exchange Act of
1934, as amended.


 


“Excluded Taxes” means, in the case of Agent and each
Lender, taxes imposed on or measured by its overall net income or branch
profits and franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the laws of which
Agent or such Lender, as the case may be, is organized or in which its
principal office is located, or, in the case of any Lender, in which its
applicable lending office is located.


 


“Existing Letter of Credit” means that term as defined
in Section 2.2(b)(vii) hereof.


 


“Expected Earn-Out Amount” means US Borrower’s best estimate
of the aggregate amount that the Companies will be required to pay, during the
next twelve (12) months, in connection with performance based contingent
obligations that were incurred in connection with one or more Acquisitions.


 


“FB Threshold Date” means the first date on which both
of the following conditions are satisfied:


 


(a)           the
Foreign Subsidiary Exposure exceeds Fifty Millions Dollars ($50,000,000); and


 


(b)           the
Leverage Ratio is greater than or equal to 2.50 to 1.00.


 


“Federal Funds Effective Rate” means, 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” means any of the following
officers: chief executive officer, president, chief financial officer,
treasurer, vice president of finance or controller.  Unless otherwise qualified, all references to
a Financial Officer in this Agreement shall refer to a Financial Officer of US
Borrower.


 


16

















 


“First FB Addition Date” means the date of the
addition of the first Foreign Borrower under this Agreement, pursuant to Section 2.13(a).


 


“First-Tier Material Foreign Subsidiary” means a
first-tier Foreign Subsidiary of US Borrower or a Domestic Guarantor of Payment
(with assets (consolidated for the foreign jurisdiction) in excess of five
percent (5%) of Consolidated Total Assets).


 


“Foreign Affiliate” means, with respect to a Foreign
Borrower, a parent Company, sister Company or Subsidiary of such Foreign
Borrower (that is not US Borrower or a Domestic Subsidiary).


 


“Foreign Benefit Plan” means each material plan, fund,
program or policy established under the law of a jurisdiction other than the
United States (or a state or local government thereof), whether formal or
informal, funded or unfunded, insured or uninsured, providing employee
benefits, including medical, hospital care, dental, sickness, accident,
disability, life insurance, pension, retirement or savings benefits, under
which one or more Companies have any liability with respect to any employee or former
employee, but excluding any Foreign Pension Plan.


 


“Foreign Borrower” means each of the Foreign
Subsidiaries of US Borrower set forth on Schedule 2 hereto, together
with any other Foreign Subsidiary of US Borrower that, on or after the Closing
Date, shall have satisfied, in the opinion of Agent, the requirements of Section 2.13(a) hereof.


 


“Foreign Borrower Revolving Credit Note” means a
Foreign Borrower Revolving Credit Note, substantially in the form of the
attached Exhibit B (or as otherwise required by Agent after
consultation with foreign counsel to Agent), executed and delivered by a
Foreign Borrower pursuant to Section 2.4(b) hereof.


 


“Foreign Guarantor of Payment” means each of the
Companies set forth on Schedule 3 hereto that shall have been designated
a “Foreign Guarantor of Payment”, that are each executing and delivering a
Guaranty of Payment, or any other Foreign Subsidiary that shall execute and
deliver a Guaranty of Payment to Agent subsequent to the Closing Date.


 


“Foreign Pension Plan” means a pension plan required
to be registered under the law of a jurisdiction other than the United States
(or a state or local government thereof), that is maintained or contributed to
by one or more Companies for their employees or former employees.


 


“Foreign Subsidiary” means a Subsidiary that is
organized under the laws of any jurisdiction other than the United States, any
State thereof or the District of Columbia.


 


“Foreign Subsidiary Exposure” means, at any time, the
Dollar Equivalent of the sum of (a) the aggregate outstanding principal
amount of all Revolving Loans made to all Foreign Borrowers, plus (b) the
aggregate amount of all intercompany loans (which, for the avoidance of doubt,
shall not include payments by US Borrower or any Domestic Guarantor of Payment
for


 


17

















 


services provided to it by one or more Foreign
Subsidiaries in the ordinary course of business and consistent with past
practices), guaranties of Indebtedness and letters of credit (other than
backing performance of a contract entered into in the ordinary course of
business and are not guaranties of indebtedness or the payment of indebtedness)
provided by US Borrower or a Domestic Guarantor of Payment, after the Closing
Date, to, or for the benefit of, Foreign Subsidiaries.


 


“Fronting Lender” means, (a) as to any Letter of
Credit transaction hereunder, Agent as issuer of the Letter of Credit, or, in
the event that Agent 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 in each instance on behalf of the
Lenders hereunder, or (b) as to any Existing Letter of Credit, the Lender
that issued such Letter of Credit.


 


“GAAP” means, subject to the provisions of Section 1.2(b) hereof,
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 US Borrower.


 


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


 


“Governmental Authority” means any nation or
government, any state, province or territory or other political subdivision
thereof, any governmental agency, department, 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 exercising such functions.


 


“Guarantor” means 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” means a Domestic Guarantor of
Payment or Foreign Guarantor of Payment, or any other Person that shall deliver
a Guaranty of Payment to Agent subsequent to the Closing Date.


 


“Guaranty of Payment” means 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.


 


18

















 


“Guaranty of Payment Joinder” means each Guaranty of
Payment Joinder, executed and delivered by a Domestic Guarantor of Payment for
the purpose of adding such Domestic Guarantor of Payment as a party to a
previously executed Guaranty of Payment.


 


“Hedge Agreement” means any (a) hedge agreement,
interest rate swap, cap, collar or floor agreement, or other interest rate
management device entered into by a Company with any Person in connection with
any Indebtedness of such Company, 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.


 


“Indebtedness” means, 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 in respect of the deferred purchase price
of property or services, (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 Capitalized Lease
Obligations, (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, (j) all indebtedness
of the types referred to in subparts (a) through (i) above of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which such Company is a general
partner or joint venturer, unless such indebtedness is expressly made
non-recourse to such Company, (k) 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, and (l) any guaranty of any obligation described in subparts
(a) through (k) hereof.


 


“Insolvent Lender” means a Lender that (a) has
become or is not Solvent or is the subsidiary of a Person that has become or is
not Solvent; or (b) has become the subject of a proceeding under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, or has had a receiver, conservator, trustee or
custodian appointed for it, or has taken any action in furtherance of, or
indicating its consent to, approval of or acquiescence in any such proceeding
or appointment, or is a subsidiary of a Person that has become the subject of a
proceeding under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect, or has had a receiver,
conservator, trustee or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in
any such proceeding or appointment; provided that a Lender shall not be an
Insolvent Lender solely by virtue of the ownership or acquisition of an equity
interest in such Lender or a parent company thereof by a governmental authority
or an instrumentality thereof.  Any
Insolvent Lender shall cease to be an Insolvent Lender when Agent determines,
in its reasonable discretion, that such Insolvent Lender is no longer an
Insolvent Lender based upon the characteristics set forth in this definition.


 


19

















 


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


 


“Interest Coverage Ratio” means, as determined for the
most recently completed four fiscal quarters of US Borrower, on a Consolidated
basis, the ratio of (a) (i) Consolidated EBITDA minus (ii) Twenty
Million Dollars ($20,000,000), to (b) Consolidated Interest Expense.


 


“Interest Period” means, with respect to a LIBOR Fixed
Rate Loan, the period commencing on the date such LIBOR Fixed Rate Loan is made
and ending on the last day of such period, as selected by Administrative
Borrower pursuant to the provisions hereof, and, thereafter (unless, with
respect to a Eurodollar Loan, such LIBOR Fixed Rate Loan is converted to a Base
Rate Loan), each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of such
period, as selected by Administrative Borrower pursuant to the provisions
hereof.  The duration of each Interest
Period for a LIBOR Fixed Rate Loan shall be one month, two months, three months
or six months, in each case as Administrative Borrower may select upon notice,
as set forth in Section 2.5 hereof; provided that (a) if
Administrative Borrower shall fail to so select the duration of any Interest
Period for a Eurodollar Loan at least three Business Days prior to the Interest
Adjustment Date applicable to such Eurodollar Loan, Administrative Borrower
shall be deemed to have converted such Eurodollar Loan to a Base Rate Loan at
the end of the then current Interest Period; and (b) each Alternate
Currency Loan must be repaid on the last day of the Interest Period applicable
thereto.


 


“KeyBank” means KeyBank National Association, and its
successors and assigns.


 


“Lender” means that term as defined in the first paragraph
hereof and, as the context requires, shall include the Fronting Lender and the
Swing Line Lender.


 


“Letter of Credit” means a standby letter of credit
that shall be issued by the Fronting Lender for the account of US Borrower or a
Domestic 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 (provided that such Letter of Credit may provide for the
renewal thereof for additional one year periods), or (b) one year after
the last day of the Commitment Period.


 


“Letter of Credit Commitment” means the commitment of
the Fronting Lender, on behalf of the Lenders, to issue Letters of Credit in an
aggregate face amount of up to Thirty-Five Million Dollars ($35,000,000).


 


“Letter of Credit Exposure” means, at any time, the
Dollar Equivalent of, the sum of (a) the aggregate undrawn 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 Borrowers or
converted to a Revolving Loan pursuant to Section 2.2(b)(iv) hereof.


 


“Leverage Ratio” means, as determined on a
Consolidated basis, the ratio of (a) Consolidated Funded Indebtedness (as
of the end of the most recently completed fiscal quarter of


 


20

















 


US Borrower) to (b) Consolidated EBITDA (for the
most recently completed four fiscal quarters of US Borrower).


 


“LIBOR Fixed Rate Loan” means a Eurodollar Loan or an
Alternate Currency Loan.


 


“Lien” means any mortgage, deed of trust, security
interest, lien (statutory or other), charge, assignment, hypothecation,
encumbrance on, pledge or deposit of, or conditional sale, lease (other than
Operating Leases), 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” means a Revolving Loan or a Swing Loan.


 


“Loan Documents” means, collectively, this Agreement,
each Note, each Guaranty of Payment, each Guaranty of Payment Joinder, all
documentation relating to each Letter of Credit, each Security Document, each
Additional Foreign Borrower Assumption Agreement, the Agent Fee Letter and the
Closing 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” means a material adverse
effect on (a) the business, assets, liabilities (actual or contingent),
operations or condition (financial or otherwise) of US Borrower or any material
Foreign Borrower, (b) the business, assets, liabilities (actual or
contingent), operations, condition (financial or otherwise) or prospects of the
Companies taken as a whole, (c) the material rights and remedies of Agent
or the Lenders under any Loan Document, (d) the ability of any Credit
Party to perform its obligations under any material Loan Document to which it
is a party, or (e) the legality, validity, binding effect or enforceability
against any Credit Party of any material Loan Document to which it is a party.


 


“Material Indebtedness Agreement” means any debt
instrument, lease (capital, operating or otherwise), guaranty, contract,
commitment, agreement or other arrangement evidencing or entered into in
connection with any Indebtedness of any Company or the Companies in excess of
the amount of Twenty Million Dollars ($20,000,000).


 


“Maximum Amount” means, 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 11.10 hereof; provided
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 Rate” means that term as defined in Section 2.3(d)(i) hereof.


 


“Maximum Revolving Amount” means Five Hundred Million
Dollars ($500,000,000), as such amount may be reduced pursuant to Section 2.9(a) hereof.


 


21

















 


“Moody’s” means Moody’s Investors Service, Inc.,
and any successor to such company.


 


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


 


“Newgen” means Newgen Results Corporation, a Delaware
corporation.


 


“Newgen Companies” means Newgen and Subsidiaries of
Newgen.


 


“Non-Consenting Lender” means that term as defined in Section 11.3(c) hereof.


 


“Non-U.S. Lender” means that term as defined in Section 3.2(d) hereof.


 


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


 


“Notice of Loan” means a Notice of Loan in the form of
the attached Exhibit D.


 


“Obligations” means, collectively, (a) all
Indebtedness and other obligations now owing or hereafter incurred by one or
more Borrowers to Agent, the Swing Line Lender, the Fronting Lender, or any
Lender (or any affiliate thereof) pursuant to this Agreement and the other Loan
Documents, and includes the principal of and interest on all Loans, (b) all
obligations of US Borrower or any Credit Party pursuant to Letters of Credit; (c) each
extension, renewal, consolidation or refinancing of any of the foregoing, in
whole or in part; (d) the commitment and other fees, and any prepayment fees
payable pursuant to this Agreement or any other Loan Document; (e) all
fees and charges in connection with the Letters of Credit; (f) every other
liability, now or hereafter owing to Agent or any Lender by any Company
pursuant to this Agreement or any other Loan Document; and (g) all Related
Expenses.


 


“OFAC” means that term as defined in Section 6.3(f) hereof.


 


“Operating Leases” means all real or personal property
leases under which any Company is bound or obligated as a lessee or sublessee
and which, under GAAP, are not required to be capitalized on a balance sheet of
such Company; provided that Operating Leases shall not include any such lease
under which any Company is also bound as the lessor or sublessor.


 


“Organizational Documents” means, 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” means any and all present or future
stamp or documentary taxes or any other excise, ad valorem or property taxes,
goods and services taxes, harmonized sales taxes and other sales taxes, use
taxes, value added taxes, charges or similar taxes or 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.


 


22
















 


“Participant” means that term as defined in Section 11.11
hereof.


 


“Patriot Act” means the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, USA Patriot Act, Title III of Pub. L. 107-56, signed
into law October 26, 2001, as amended from time to time.


 


“PBGC” means the Pension Benefit Guaranty Corporation,
and its successor.


 


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


 


“Percepta” means Percepta, LLC and each of its
Subsidiaries.


 


“Performance Guaranty” means a performance guaranty
entered into in the ordinary course of business and upon terms typical in the
industry of Borrowers; provided that Performance Guaranties shall not include
guaranties of Indebtedness.


 


“Person” means any individual, sole proprietorship,
partnership, joint venture, unincorporated organization, corporation, limited
liability company, unlimited liability company, institution, trust, estate,
Governmental Authority or any other entity.


 


“Pledge Agreement” means each of the Pledge Agreements
executed and delivered to Agent, for the benefit of the Lenders, by a Borrower
or a Guarantor of Payment, as applicable, with respect to the capital stock or
other equity interests owned by such Credit Party, as the same may from time to
time be amended, restated or otherwise modified.


 


“Pledged Securities” means, with respect to a Pledge
Agreement, the capital stock or other equity interests pledged to Agent, for
the benefit of the Lenders, by a Credit Party pursuant to such Pledge
Agreement.


 


“Prime Rate” means 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.


 


“Register” means that term as described in Section 11.10(i) hereof.


 


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


 


“Related Expenses” means 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


 


23

















 


by any Loan Document; (ii) obtain payment,
performance or observance of any and all of the Obligations; or (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 subpart (a) above,
including, without limitation, interest thereupon from the date incurred,
imposed or asserted until paid at the Default Rate.


 


“Related Writing” means 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.


 


“Reportable Event” means any of the events described
in Section 4043 of ERISA except where notice is waived by the PBGC.


 


“Request for Extension” means a notice substantially
in the form of the attached Exhibit H.


 


“Required Lenders” means the holders of at least fifty-one
percent (51%), based upon each Lender’s Commitment Percentage, of an amount
(the “Total Amount”) equal to (a) during the Commitment Period, the Total
Commitment Amount, or (b) after the Commitment Period, the Revolving
Credit Exposure; provided that the portion of the Total Amount held or deemed
to be held by any Defaulting Lender or Insolvent Lender shall be excluded for
purposes of making a determination of Required Lenders.


 


“Requirement of Law” means, 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.


 


“Reserve Percentage” means 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
Eurodollar Rate and the Alternate Currency Rate shall be adjusted automatically
on and as of the effective date of any change in the Reserve Percentage.


 


“Restricted Payment” means, 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 equity holder (other than a Company)
of a Company or an Affiliate in excess of the aggregate amount of One Hundred
Thousand Dollars ($100,000) in any fiscal year.


 


24

















 


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


 


“Revolving Credit Availability” means, at any time,
the amount equal to the Revolving Credit Commitment minus the Revolving Credit
Exposure.


 


“Revolving Credit Commitment” means the obligation
hereunder, during the Commitment Period, of (a) the Lenders (and each
Lender) to make Revolving Loans, (b) the Fronting Lender to issue and each
Lender to participate in, Letters of Credit pursuant to the Letter of Credit
Commitment, and (c) the Swing Line Lender to make, and each Lender to
participate in, Swing Loans pursuant to the Swing Line Commitment; up to an
aggregate principal amount outstanding at any time equal to the Revolving
Amount.


 


“Revolving Credit Exposure” means, at any time, the
Dollar Equivalent of 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” means a US Borrower Revolving
Credit Note or a Foreign Borrower Revolving Credit Note.


 


“Revolving Loan” means a loan made to US Borrower or a
Foreign Borrower by the Lenders in accordance with Section 2.2(a) hereof.


 


“Sanctioned Entity” means that term as defined in Section 6.3(g) hereof.


 


“Sanctioned Person” means that term as defined in Section 6.3(g) hereof.


 


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


 


“Secured Obligations” means, collectively, (a) the
Obligations, (b) all obligations and liabilities of the Companies owing to
a Lender (or an entity that is an affiliate of a then existing Lender) under
Hedge Agreements, and (c) the Bank Product Obligations owing to a Lender
(or an entity that is an affiliate of a then existing Lender) under Bank
Product Agreements.


 


“Securities Account” means a securities account, as
that term is defined in the U.C.C.


 


“Securities Account Control Agreement” means each
Securities Account Control Agreement among US Borrower or a Domestic Guarantor
of Payment, Agent and a Securities Intermediary, dated on or after the Closing
Date, to be in form and substance satisfactory to Agent, as the same may from
time to time be amended, restated or otherwise modified.


 


“Securities Intermediary” means a clearing corporation
or a Person, including, without limitation, a bank or broker, that in the
ordinary course of its business maintains Securities Accounts for others and is
acting in that capacity.


 


25

















 


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


 


“Security Agreement Joinder” means each Security
Agreement Joinder, executed and delivered by a Guarantor of Payment for the
purpose of adding such Guarantor of Payment as a party to the previously
executed Security Agreement.


 


“Security Documents” means each Security Agreement,
each Security Agreement Joinder, each Pledge Agreement, each Control Agreement,
each U.C.C. Financing Statement or similar filing as to a jurisdiction located
outside of the United States of America 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 Company or any other
Person to Agent, for the benefit of the Lenders, as security for the Secured
Obligations, or any part thereof, and each other agreement executed or provided
to Agent 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 Leverage Ratio” means, as determined on a
Consolidated basis, the ratio of (a) Consolidated Senior Funded
Indebtedness (as of the end of the most recently completed fiscal quarter of US
Borrower), to (b) Consolidated EBITDA (for the most recently completed
four fiscal quarters of US Borrower).


 


“Significant Positive EBITDA Acquisition” means an
Acquisition that, as measured for the four fiscal quarters then most recently
ended, generated positive EBITDA in excess of Five Million Dollars ($5,000,000)
for the Person being acquired.


 


“Significant Positive EBITDA Disposition” means a
Disposition that, as measured for the four fiscal quarters then most recently
ended, generated positive EBITDA for the Company effecting such Disposition in
excess of Five Million Dollars ($5,000,000).


 


“Solvent” means, with respect to any Person, that (a) the
fair value of such Person’s assets is in excess of the total amount of such
Person’s debts, as determined in accordance with the Bankruptcy Code, (b) the
present fair saleable value of such Person’s assets is in excess of the amount
that will be required to pay such Person’s debts as such debts become absolute
and matured, (c) such Person is able to realize upon its assets and pay
its debts and other liabilities (including disputed, contingent and
unliquidated liabilities) as such liabilities mature in the normal course of
business, (d) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond its ability to pay as such debts and
liabilities mature, and (e) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
its property would constitute an unreasonably small amount of capital.  As used in this definition, the term “debts”
includes any legal liability, whether matured or unmatured, liquidated or
unliquidated, absolute, fixed or contingent, as determined in accordance with
the Bankruptcy Code.


 


26

















 


“Standard & Poor’s” means Standard &
Poor’s Ratings Group, a division of McGraw-Hill, Inc., and any successor
to such company.


 


“Subordinated Indebtedness” means Indebtedness that
shall have been subordinated (by written terms or written agreement being, in
either case, in form and substance satisfactory to Agent and, if the aggregate
amount of such Subordinated Indebtedness is in excess of Ten Million Dollars
($10,000,000), the Required Lenders) in favor of the prior payment in full of
the Obligations.


 


“Subsidiary” means (a) a corporation more than
fifty percent (50%) of the Voting Power of which is owned, directly or
indirectly, by such Person or by one or more other subsidiaries of such Person
or by such Person and one or more subsidiaries of such Person, (b) a
partnership, limited liability company or unlimited liability company of which
such Person, one or more other subsidiaries of such Person or such Person and
one or more subsidiaries of such Person, 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, limited liability company or unlimited liability company, or (c) any
other Person (other than a corporation, partnership, limited liability company
or unlimited liability company) in which such Person, one or more other
subsidiaries of such Person or such Person and one or more subsidiaries of such
Person, 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. 
Unless the context otherwise requires, Subsidiary herein shall be a
reference to a Subsidiary of US Borrower.


 


“Supporting Letter of Credit” means 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 Commitment” means the commitment of the
Swing Line Lender to make Swing Loans to US Borrower up to the aggregate amount
at any time outstanding of Twenty-Five Million Dollars ($25,000,000).


 


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


 


“Swing Line Lender” means KeyBank, as holder of the
Swing Line Commitment.


 


“Swing Line Note” means the Swing Line Note, in the
form of the attached Exhibit C, executed and delivered by US
Borrower pursuant to Section 2.4(c) hereof.


 


“Swing Loan” means a loan that shall be denominated in
Dollars made to US Borrower by the Swing Line Lender under the Swing Line
Commitment, in accordance with Section 2.2(c) hereof.


 


27

















 


“Swing Loan Maturity Date” means, with respect to any
Swing Loan, the earlier of (a) twenty (20) days after the date such Swing
Loan is made, or (b) the last day of the Commitment Period.


 


“Synthetic Lease” means any lease (a) that is
accounted for by the lessee as an Operating Lease, and (b) under which the
lessee is intended to be the “owner” of the leased property for federal income
tax purposes.


 


“Taxes” means any and all present or future taxes of
any kind, including but not limited to, levies, imposts, duties, surtaxes,
charges, fees, deductions or withholdings now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority (together with
any interest, penalties, fines, additions to taxes or similar liabilities with
respect thereto) other than Excluded Taxes.


 


“Trading with the Enemy Act” means that term as
defined in Section 6.3(e) hereof.


 


“Total Commitment Amount” means the principal amount
of Three Hundred Fifty Million Dollars ($350,000,000), as such amount may be increased
pursuant to Section 2.9(b) hereof, or decreased pursuant to Section 2.9(a) hereof.


 


“U.C.C.” means the Uniform Commercial Code, as in
effect from time to time in the State of Ohio.


 


“U.C.C. Financing Statement” means 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.


 


“US Borrower” means that term as defined in the first
paragraph hereof.


 


“US Borrower Revolving Credit Note” means a US
Borrower Revolving Credit Note, in the form of the attached Exhibit A,
executed and delivered by US Borrower pursuant to Section 2.4(a) hereof.


 


“Voting Power” means, 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.


 


“Waterfall” means that term as defined in Section 8.7(b)(ii) hereof.


 


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


 


28

















 


“Wholly Owned Subsidiary” means any Person, the equity
interests of which are one hundred percent (100%) owned (other than, with
respect to the ownership of equity interests of Foreign Subsidiaries, such
equity interests as are necessary to qualify directors where required by
applicable law or to satisfy other requirements of applicable law) are at the
time owned by US Borrower, directly, or indirectly through other Persons one
hundred percent (100%) of whose equity interests are at the time owned,
directly or indirectly, by US Borrower.


 


Section 1.2. 
Accounting Terms.


 


(a)           Any
accounting term not specifically defined in this Article I shall have the
meaning ascribed thereto by GAAP.


 


(b)           If
any change in the rules, regulations, pronouncements, opinions or other
requirements of the Financial Accounting Standards Board (or any successor
thereto or agency with similar function) with respect to GAAP, or if US
Borrower adopts the International Financial Reporting Standards, and such
change or adoption results in a change in the calculation of any component (or
components in the aggregate) of the financial covenants set forth in Section 5.7
hereof or the related financial definitions, at the option of Agent, the
Required Lenders or US Borrower, the parties hereto will enter into good faith
negotiations to amend such financial covenants and financial definitions in
such manner as the parties shall agree, each acting reasonably, in order to
reflect fairly such change or adoption so that the criteria for evaluating the
financial condition of Borrowers shall be the same in commercial effect after,
as well as before, such change or adoption is made (in which case the method
and calculating such financial covenants and definitions hereunder shall be
determined in the manner so agreed); provided that, until so amended, such
calculations shall continue to be computed in accordance with GAAP as in effect
prior to such change or adoption.


 


Section 1.3. 
Terms Generally.  The
foregoing definitions shall be applicable to the singular and plural forms 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.


 


Section 1.4. 
Confirmation of Recitals. 
Borrowers, Agent and the Lenders hereby confirm the statements set forth
in the recitals of this Agreement.


 


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
Borrowers, participate in Swing Loans made by the Swing Line Lender to US
Borrower, and issue or participate in Letters of Credit at the request of
Administrative Borrower, in such aggregate amount as Borrowers shall request
pursuant to the Commitment; provided that in no event shall the aggregate
principal amount of all Loans and Letters of Credit outstanding under this
Agreement be in excess of the Total Commitment Amount.


 


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(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 Borrowers or the issuance of a Letter of Credit:


 


(i)            the
Dollar Equivalent of 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 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
amount then outstanding on all Loans (other than Swing Loans) that shall be
such Lender’s Commitment Percentage. 
Each borrowing (other than Swing Loans which shall be risk participated
on a pro rata basis) from the Lenders 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 as 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 Commitment.


 


(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 US Borrower or a Foreign Borrower
in such amount or amounts as Administrative Borrower, through an Authorized
Officer, may from time to time request, but not exceeding in aggregate
principal amount at any time outstanding hereunder the Revolving Credit
Commitment, when such Revolving Loans are combined with the Letter of Credit
Exposure and the Swing Line Exposure; provided that Borrowers shall not request
any Alternate Currency Loan (and the Lenders shall not be obligated to make an
Alternate Currency Loan) if, after giving effect thereto, the Alternate
Currency Exposure would exceed the Alternate Currency Maximum Amount).  Borrowers 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, Eurodollar Loans or Alternate Currency Loans.  With respect to each Alternate Currency Loan,
US Borrower or the appropriate Foreign Borrower, as applicable, shall receive
all of the proceeds of such Alternate Currency Loan in one Alternate Currency
and repay such Alternate Currency Loan in the same Alternate Currency.  Subject to the provisions of this Agreement,
Borrowers shall be entitled under this Section 2.2(a) to borrow Revolving
Loans, repay the same in whole or in part and re-borrow Revolving Loans
hereunder at any time and from time to time during the Commitment Period.


 


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(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
US Borrower or a Domestic Guarantor of Payment, as Administrative Borrower may
from time to time request. 
Administrative 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, (B) the Revolving Credit Exposure would
exceed the Revolving Credit Commitment, or (C) with respect to a request
for a Letter of Credit to be issued in an Alternate Currency, the Alternate
Currency Exposure would exceed the Alternate Currency Maximum 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
date of the proposed issuance of the Letter of Credit.  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 requested date of issuance, amendment, renewal or
extension, the expiry date thereof, the Alternate Currency if a Letter of
Credit denominated in an Alternate Currency is requested, and the nature of the
transaction or obligation to be supported thereby.  Concurrently with each such request,
Administrative Borrower, and any Domestic Guarantor of Payment 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 Fees.  With respect
to each Letter of Credit and the drafts thereunder, if any, whether issued for
the account of US Borrower or any Domestic Guarantor of Payment, US 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 a rate per annum equal to the Applicable Margin for LIBOR Fixed Rate
Loans (in effect on such Regularly Scheduled Payment Date) 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, amended
or renewed 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, renewal, negotiation, draw,
acceptance, telex, courier, postage and similar transactional fees as are
customarily charged by the Fronting Lender in respect of the issuance and administration
of similar letters of credit under its fee schedule as in effect from time to
time.


 


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(iv)          Refunding
of Letters of Credit with Revolving Loans. 
Whenever a Letter of Credit shall be drawn, US Borrower shall promptly
reimburse the Fronting Lender for the amount drawn.  In the event that the amount drawn shall not
have been reimbursed by US 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), US 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 Section 2.2(b)(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 the Revolving Credit Commitment shall have been
reduced or terminated.  US Borrower
irrevocably authorizes and instructs Agent to apply the proceeds of any
borrowing pursuant to this Section 2.2(b)(iv) to reimburse, in full (other
than the Fronting Lender’s pro rata share of such borrowing), 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 US 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 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 (and the Fronting Lender if the Fronting Lender is 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, or if the amount not reimbursed is a Letter of Credit
drawn in an Alternate Currency, Agent (and the Fronting Lender if the Fronting
Lender is a Lender other than Agent) shall have the right to request that each
Lender fund a participation in the amount due (or the Dollar Equivalent with
respect to a Letter of Credit in an Alternate Currency) 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


 


32

















 


(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
Borrowers pursuant to this Section 2.2(b)(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 the Revolving Credit Commitment shall have been reduced or
terminated.  Each Lender shall comply
with its obligation under this Section 2.2(b)(v) by wire transfer of
immediately available funds (in Dollars, in the Dollar Equivalent for amounts
drawn in such Alternate Currency), 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 Existing Letters of Credit as provided in subsection
(vi) below.


 


(vi)          Existing
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 issued
by a bank that is or becomes a Lender under this Agreement on the Closing Date
(each, an “Existing Letter of Credit”) shall constitute a “Letter of Credit”
for all purposes of this Agreement, issued, for purposes of subsection (v)
above, on the Closing Date.  US Borrower,
Agent and the Lenders hereby agree that, from and after such date, the terms of
this Agreement shall apply to the Existing 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
Existing Letters of Credit, the fees payable in connection with each Existing
Letter of Credit to be shared with the Lenders shall accrue from the Closing
Date at the rate provided in this subsection (vi).


 


(vii)         Auto-Renewal
Letters of Credit.  If Administrative
Borrower so requests, a Letter of Credit shall have an automatic renewal
provision; provided that any Letter of Credit that has an automatic renewal
provision must permit Agent (or the Fronting Lender if the Fronting Lender is a
Lender other than Agent) to prevent any such renewal by giving prior notice to
the beneficiary thereof not later than thirty (30) days prior to the renewal
date of such Letter of Credit.  Once any
such Letter of Credit that has automatic renewal provisions has been issued,
the Revolving Lenders shall be deemed to have authorized (but may not require)
Agent (and the Fronting Lender) to permit at any time the renewal of such
Letter of Credit to an expiry date not later than one year after the last day
of the Commitment Period.


 


(viii)        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, US 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


 


33

















 


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.  US 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 Administrative
Borrower.


 


(ix)           Requests
for Letters of Credit When One or More Lenders are Affected Lenders.  If a Letter of Credit is requested at such
time that a Lender is an Affected Lender hereunder, then (A) such Letter of
Credit shall be issued to the extent that Agent (and the Fronting Lender) shall
have entered into satisfactory (to Agent) arrangements (including, without
limitation, the posting of cash collateral by the Affected Lender) with US
Borrower or such Affected Lender to eliminate or mitigate the reimbursement
risk with respect to such Affected Lender, or (B) Agent shall issue a Letter of
Credit in an amount that is the amount of the requested Letter of Credit less
the Commitment Percentage of such Affected Lender times the amount of the requested
Letter of Credit.


 


(x)            Letters
of Credit Issued and Outstanding When One or More Lenders are Affected Lenders.  With respect to any Letters of Credit that
have been issued and are outstanding at the time any Lender is an Affected
Lender, Agent (and the Fronting Lender) shall have the right to request that US
Borrower or such Affected Lender cash collateralize, in form and substance
satisfactory to Agent (and the Fronting Lender), such Letters of Credit so as
to eliminate or mitigate the reimbursement risk with respect to such Affected
Lender.


 


(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 US Borrower in such amount or amounts as
Administrative Borrower, through an Authorized Officer, may from time to time
request; provided that Administrative Borrower shall not request any Swing Loan
if, after giving effect thereto, (A) the Revolving Credit Exposure would exceed
the Revolving Credit Commitment, 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.  Each Swing Loan shall be made
in Dollars.  US 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 Administrative Borrower and the Lenders,
US Borrower agrees that the Swing Line Lender shall have the right, in its sole
discretion, to require that any Swing Loan be


 


34

















 


refinanced as a Revolving Loan.  Such Revolving Loan shall be a Base Rate Loan
unless otherwise requested by and available to US Borrower hereunder.  Upon receipt of such notice by Administrative
Borrower and the Lenders, US 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 US Borrower Revolving Credit Notes
(or, if a Lender has not requested a US Borrower 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 Section
2.2(c)(ii) is 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 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 the Revolving Credit
Commitment shall have been reduced or terminated.  US Borrower irrevocably authorizes and
instructs Agent to apply the proceeds of any borrowing pursuant to this Section
2.2(c)(ii) to repay in full such Swing Loan. 
Each Lender is hereby authorized to record on its records relating to
its US Borrower Revolving Credit Note (or, if such Lender has not requested a
US Borrower 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,
the Swing Line Lender 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 Section 2.2(c)(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 fund 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 the right to share in the payment of 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 Section 2.2(c)(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 the
Revolving Credit Commitment shall have been reduced or terminated.  Each Lender shall comply with its obligation
under this Section 2.2(c)(iii) by wire transfer of immediately available


 


35

















 


funds, in the same manner as provided in Section 2.5
hereof with respect to Revolving Loans to be made by such Lender.


 


(iv)          Requests
for Swing Loan When One or More Lenders are Affected Lenders.  If a Swing Loan is requested at such time
that a Lender is an Affected Lender hereunder, then (A) such Swing Loan shall
be issued to the extent that Agent shall have entered into satisfactory (to
Agent) arrangements (including, without limitation, the posting of cash
collateral by the Affected Lender) with US Borrower or such Affected Lender to
eliminate or mitigate the reimbursement risk with respect to such Affected
Lender, or (B) Agent shall issue a Swing Loan in an amount that is the amount
of the requested Swing Loan less the Commitment Percentage of such Affected
Lender times the amount of the requested Swing Loan.


 


(v)           Swing
Loans Outstanding When One or More Lenders are Affected Lenders.  With respect to any Swing Loans that are
outstanding at the time any Lender is an Affected Lender, Agent shall have the
right to request that US Borrower or such Affected Lender cash collateralize,
in form and substance satisfactory to Agent, such Swing Loans so as to
eliminate or mitigate the reimbursement risk with respect to such Affected
Lender.


 


Section 2.3.  Interest.


 


(a)           Revolving
Loans.


 


(i)            Base
Rate Loan.  The appropriate Borrower
or Borrowers 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 December
31, 2010, and continuing on each Regularly Scheduled Payment Date thereafter
and at the maturity thereof.


 


(ii)           LIBOR
Fixed Rate Loans.  The appropriate
Borrower or Borrowers shall pay interest on the unpaid principal amount of each
LIBOR Fixed Rate 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 for LIBOR Fixed Rate Loans), at the Derived LIBOR Fixed Rate.  Interest on such LIBOR Fixed Rate 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.  US 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 from time to time in
effect.  Interest on each


 


36

















 


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, upon the election
of Agent or the Required Lenders (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 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 not paid when due
from Borrowers hereunder or under any other Loan Document, such amount shall
bear interest at the Default Rate; provided that, (A) during an Event of
Default under Section 7.1 or 7.11 hereof, the applicable Default Rate shall
apply without any election or action on the part of Agent or any Lender, and
(B) if any such Event of Default is waived in writing by the Required Lenders
(and no other Event of Default shall exist), any increase in interest rates or
fees instituted pursuant to this Section 2.3(c) shall be rescinded as of the
date of such waiver.


 


(d)           Limitation
on Interest.


 


(i)            Generally.  In no event shall the rate of interest
hereunder exceed the maximum rate allowable by law.  Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under
the Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable law (the “Maximum Rate”).  If Agent or any Lender shall receive interest
in an amount that exceeds the Maximum Rate, the excess interest shall be
applied to the principal of the Loans or, if it exceeds such unpaid principal,
refunded to the Administrative Borrower for distribution to Borrowers, as
appropriate.  In determining whether the
interest contracted for, charged, or received by Agent or a Lender exceeds the
Maximum Rate, such Person may, to the extent permitted by applicable law, (A)
characterize any payment that is not principal as an expense, fee, or premium
rather than interest, (B) exclude voluntary prepayments and the effects
thereof, and (C) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the Obligations.


 


(ii)           Foreign
Jurisdiction Interest.  If any
provision of this Agreement or any other Loan Document would obligate any
Foreign Borrower to make any payment of interest or other amount payable to
(including for the account of) any Lender in an amount, or calculated at a
rate, that would be prohibited by law or would result in a receipt by such
Lender of interest at a criminal rate then, notwithstanding such provision,
such amount or rate shall be deemed to have been adjusted with retroactive effect
to the maximum amount or rate of interest, as the case may be, as would not be
so prohibited by law or so result in a receipt by such Lender of interest at a
criminal rate, such adjustment to be effected, to the extent necessary, as
follows: (A) first, by reducing the amount or rate of interest required to be
paid to such Lender under this Article II; and (B) thereafter, by reducing any
fees, commissions, premiums and other amounts required to be paid to such
Lender that would constitute interest for purposes of the applicable
statute.  Notwithstanding the foregoing,
and after giving effect to all adjustments contemplated


 


37

















 


thereby, if a Lender shall have received an amount in
excess of the maximum amount permitted by such statute, then the Lender shall
pay an amount equal to such excess to such Foreign Borrower.  Any amount or rate of interest referred to in
this Article II with respect to the foreign extensions of credit shall be
determined in accordance with generally accepted actuarial practices and
principles as an effective annual rate of interest over the term that such
extensions of credit remain outstanding on the assumption that any charges,
fees or expenses that fall within the meaning of “interest” shall, if they
relate to a specific period of time, be pro-rated over that period of time and
otherwise be pro-rated over the Commitment Period and, in the event of a
dispute, a certificate of an actuary appointed by Agent (and reasonably
acceptable to US Borrower) shall be conclusive for the purposes of such
determination.


 


Section 2.4.  Evidence
of Indebtedness.


 


(a)           US
Borrower Revolving Loans.  Upon the
request of a Lender, to evidence the obligation of US Borrower to repay the
Revolving Loans made by such Lender and to pay interest thereon, US Borrower
shall execute a US Borrower Revolving Credit Note, payable to the order of such
Lender in the principal amount equal to its Commitment Percentage of the
Revolving Credit Commitment, or, if less, the aggregate unpaid principal amount
of Revolving Loans made by such Lender; provided that the failure of a Lender
to request a US Borrower Revolving Credit Note shall in no way detract from US
Borrower’s obligations to such Lender hereunder.


 


(b)           Foreign
Borrower Revolving Loans.  Upon the
request of a Lender, to evidence the obligation of each Foreign Borrower to
repay the Revolving Loans made by such Lender to such Foreign Borrower and to
pay interest thereon, each such Foreign Borrower shall execute a Foreign
Borrower Revolving Credit Note, payable to the order of such Lender in the
principal amount equal to its Commitment Percentage of the Revolving Credit
Commitment, or, if less, the aggregate unpaid principal amount of Revolving
Loans made by such Lender to such Foreign Borrower; provided that the failure
of a Lender to request a Foreign Borrower Revolving Credit Note shall in no way
detract from such Foreign Borrower’s obligations to such Lender hereunder.


 


(c)           Swing
Loans.  Upon the request of the Swing
Line Lender, to evidence the obligation of US Borrower to repay the Swing Loans
and to pay interest thereon, US Borrower shall execute a Swing Line Note,
payable to the order of the Swing Line Lender in the principal amount of the
Swing Line Commitment, or, if less, the aggregate unpaid principal amount of
Swing Loans made by the Swing Line Lender; provided that the failure of the
Swing Line Lender to request a Swing Line Note shall in no way detract from US
Borrower’s obligations to the Swing Line Lender hereunder.


 


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


 


(a)           Notice
of Credit Event.  Administrative
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
of, or conversion of a Loan to, a Base Rate Loan, (ii) 10:00 A.M. (Mountain


 


38

















 


time) three Business Days prior to the proposed date
of borrowing of, continuation of or conversion of a Loan to, a Eurodollar Loan,
(iii) 10:00 A.M. (Mountain time) three Business Days prior to the proposed date
of borrowing of an Alternate Currency Loan, and (iv) 12:00 Noon (Mountain time)
on the proposed date of borrowing of a Swing Loan; provided however, that an Authorized
Officer of Administrative Borrower may verbally request a Loan, so long as a
Notice of Loan is received by the end of the same Business Day, and, if Agent
or any Lender provides funds or initiates funding based upon such verbal
request, US Borrower shall bear the risk with respect to any information
regarding such funding that is later determined to have been incorrect.  Administrative 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, type of currency and Interest Period (if
applicable) promptly upon the receipt of a Notice of Loan (other than for a
Swing Loan, or a Revolving Loan to be funded as a Swing Loan), and, in any
event, by 12:00 Noon. (Mountain time) on the date such Notice of Loan is
received.  On the date that the Credit
Event set forth in such Notice of Loan is to occur, each such Lender shall
provide to Agent, not later than 1:00 P.M. (Mountain time), the amount in
Dollars, or, with respect to an Alternate Currency, in the applicable Alternate
Currency, 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 Administrative Borrower, to debit any account of
the appropriate Borrower or otherwise receive such amount from the appropriate
Borrower, promptly after 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
and Continuation of Loans.


 


(i)            At
the request of Administrative 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.  No
Alternate Currency Loan may be converted to a Base Rate Loan or Eurodollar Loan
and no Base Rate Loan or Eurodollar Loan may be converted to an Alternate
Currency Loan.


 


(ii)           At
the request of Administrative Borrower to Agent, subject to the notice and
other provisions of this Section 2.5, the Lenders shall continue one or more
Eurodollar Loans as of the end of the applicable Interest Period as a new
Eurodollar Loan with a new Interest Period.


 


39

















 


(d)           Minimum
Amount for Loans.  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
LIBOR Fixed Rate Loan shall be in an amount (or, with respect to an Alternate
Currency Loan, such approximately comparable amount as shall result in an
amount rounded to the nearest whole number) of not less than Five Hundred
Thousand Dollars ($500,000), increased by increments of Five Hundred Thousand
Dollars ($500,000) (or, with respect to an Alternate Currency Loan, such
approximately comparable amount as shall result in an amount rounded to the
nearest whole number); and


 


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


 


(e)           Interest
Periods.  Administrative Borrower
shall not request that LIBOR Fixed Rate Loans be outstanding for more than ten
(10) different Interest Periods at the same time.


 


(f)            Advancing
of Non Pro-Rata Revolving Loans. 
Notwithstanding anything in this Agreement to the contrary, if Borrowers
request a Revolving Loan pursuant to Section 2.5(a) hereof (and all conditions
precedent set forth in Section 4.1 hereof are met) at a time when one or more
Lenders are Defaulting Lenders, Agent shall have the option, in its sole
discretion, to require (and, at the request of US Borrower, shall require) the
non-Defaulting Lenders to honor such request by making a non pro-rata Revolving
Loan to the appropriate Borrower in an amount equal to (i) the amount requested
by such Borrower, minus (ii) the portions of such Revolving Loan that should
have been made by such Defaulting Lenders. 
For purposes of such Revolving Loans, the Lenders that are making such
Revolving Loan shall do so in proportion to their Commitment Percentages of the
amount requested by such Borrower.  For
the avoidance of doubt, in no event shall the aggregate outstanding principal
amount of Loans made by a 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, be in excess of the Maximum
Amount for such Lender.


 


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
in Alternate Currency.  With respect
to any Alternate Currency Loan, all payments (including prepayments) to any
Lender of the principal of or interest on such Alternate Currency Loan shall be
made in the same Alternate Currency as the original Loan.  For clarification, the amount outstanding on
any Alternate Currency Loan for purposes of repayment on the last day of the
applicable Interest Period shall be measured in the Alternate Currency and not
by the Dollar Equivalent of such amount. 
With respect to any Alternate Currency Letter of Credit, all payments to
the Fronting Lender (and to any Lender that shall have funded its


 


40

















 


participation in such Letter of Credit) shall be made
in the Dollar Equivalent (as determined on the date of drawing of such Letter
of Credit) of the amount of such Alternate Currency Letter of Credit.  All such payments shall be remitted by the
appropriate Borrower to Agent, at the address of Agent for notices referred to
in Section 11.4 hereof (or at such other office or account as designated in
writing by Agent to Administrative Borrower), for the account of the Lenders
(or the Fronting Lender or the Swing Line Lender, as appropriate) not later
than 11:00 A.M. (Mountain time) on the due date thereof in same day funds.  Any such payments received by Agent after
11:00 A.M. (Mountain time) shall be deemed to have been made and received on
the next Business Day.


 


(c)           Payments
in Dollars.  With respect to (i) any
Loan (other than an Alternate Currency Loan), or (ii) any other payment to
Agent and the Lenders that shall not be covered by subsection (b) above, all
such payments (including prepayments) to Agent of the principal of or interest
on such Loan or other payment, including but not limited to principal,
interest, fees or any other amount owed by Borrowers under this Agreement,
shall be made in Dollars.  All payments
described in this subsection (c) shall be remitted to Agent, at the address of
Agent for notices referred to in Section 11.4 hereof for the account of the
Lenders (or the Fronting Lender or the Swing Line Lender, as appropriate) not
later than 11:00 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 the appropriate Borrower
by 11:00 A.M. (Mountain time), any such payments received by Agent (or the
Fronting Lender or the Swing Line Lender) after 11:00 A.M. (Mountain time)
shall be deemed to have been made and received on the next Business Day.


 


(d)           Payments
to Lenders.  Upon Agent’s receipt of
payments hereunder, Agent shall immediately distribute to each Lender its
(except with respect to Swing Loans, which shall be paid to the Swing Line
Lender and any Lender that has funded a participation in the Swing Loans, or,
with respect to Letters of Credit, certain of which payments shall be paid to
the Fronting Lender) ratable shares, if any, of the amount of principal,
interest, and commitment and other fees received by Agent for the account of
such Lender.  Payments received by Agent
in Dollars shall be delivered to the Lenders in Dollars in immediately
available funds.  Payments received by
Agent in any Alternate Currency shall be delivered to the Lenders in such
Alternate Currency in same day funds. 
Each Lender shall record any principal, interest or other payment, the
principal amounts of Base Rate Loans, LIBOR Fixed Rate Loans, Swing Loans and
Letters of Credit, the type of currency for each Loan, all 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 that failure to make any such entry shall in no way
detract from the obligations of Borrowers 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, interest and fees owing to each Lender.


 


(e)           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;


 


41

















 


provided that, with respect to a LIBOR Fixed Rate
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.


 


(f)            Affected
Lender.  To the extent that Agent
receives any payments or other amounts for the account of an Affected Lender,
at the discretion of Agent, such Affected Lender shall be deemed to have
requested that Agent use such payment or other amount (or any portion thereof,
at the discretion of Agent) first, to cash collateralize its unfunded risk
participation in Swing Loans and the Letters of Credit pursuant to Sections
2.2(b)(iv), 2.2(c)(iii), and 2.5(b) hereof, and, with respect to any Defaulting
Lender, second, to fulfill its obligations to make Loans.


 


(g)           Payment
of Non Pro-Rata Revolving Loans. 
Notwithstanding anything in this Agreement to the contrary, at the sole
discretion of Agent, in order to pay Revolving Loans made to a Borrower that
were not advanced pro rata by the Lenders, any payment of any Loan may first be
applied to such Revolving Loans of such Borrower that were not advanced pro
rata.


 


Section 2.7.  Prepayment.


 


(a)           Right
to Prepay.


 


(i)            Borrowers
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 and any Lender that has funded a participation
in such Swing Loan), all or any part of the principal amount of the Loans then
outstanding, as designated by Administrative 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.  Subject to payment
of amounts set forth under Article III hereof, prepayments of Loans shall be
without any premium or penalty.


 


(ii)           Borrowers
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 funded a
participation in such Swing Loan), all or any part of the principal amount of
the Swing Loans then outstanding, as designated by Administrative Borrower,
plus interest accrued on the amount so prepaid to the date of such prepayment.


 


(iii)          Notwithstanding
anything in this Section 2.7 or otherwise to the contrary, at the discretion of
Agent, in order to prepay Revolving Loans to a Borrower that were not advanced
pro rata by all of the Lenders, any prepayment of a Loan shall first be applied
to Revolving Loans made to such Borrower by the Lenders during any period in
which a Defaulting Lender or Insolvent Lender shall exist.


 


(b)           Notice
of Prepayment.  Administrative
Borrower shall give Agent (i) notice of prepayment of a Base Rate Loan or Swing
Loan by no later than 11:00 A.M. (Mountain time) on the Business Day on which
such prepayment is to be made and (ii) written notice of prepayment


 


42

















 


of a LIBOR Fixed Rate Loan by no 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 LIBOR
Fixed Rate Loan shall be in the principal amount of not less than the lesser of
One Million Dollars ($1,000,000) or the principal amount of such Loan (or, with
respect to an Alternate Currency Loan, the Dollar Equivalent (rounded to a
comparable amount) of such amount), or, with respect to a Swing Loan, the
principal balance of such Swing Loan, except in the case of a mandatory payment
pursuant to Section 2.11(d) or Article III hereof.


 


Section 2.8.  Commitment
and Other Fees.


 


(a)           Commitment
Fee.  US Borrower shall pay to Agent,
for the ratable account of the Lenders as a consideration for the Revolving
Credit 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,
multiplied by (ii) (A) the average daily Revolving 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 December 31, 2010 and
continuing on each Regularly Scheduled Payment Date thereafter, and on the last
day of the Commitment Period.


 


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


 


Section 2.9.  Modifications
to Commitment.


 


(a)           Optional
Reduction of Revolving Credit Commitment. 
Borrowers may at any time and from time to time permanently reduce in
whole or ratably in part the Revolving 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 in 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 Revolving Amount as so reduced.  If
Borrowers reduce in whole the Total Commitment Amount, on the effective date of
such reduction (the appropriate Borrowers having prepaid in full the unpaid
principal balance, if any, of the Loans, together with all interest (if any) and
commitment and other fees accrued and unpaid with respect thereto, and provided
that no Letter of Credit Exposure or Swing Line Exposure shall exist), all of
the Revolving Credit Notes shall be delivered to Agent marked “Canceled” and
Agent shall redeliver such Revolving Credit Notes to Administrative
Borrower.  Any partial reduction in the
Revolving Amount shall be effective during the remainder of the Commitment
Period.  Upon each decrease of the
Revolving Amount, the Maximum Revolving Amount and the Total Commitment Amount
shall be proportionally decreased.


 


43
















 


(b)           Increase
in Commitment.  At any time during
the Commitment Increase Period, Administrative Borrower may request that Agent
increase the Revolving Amount from the Closing Revolving Amount up to an amount
that shall not exceed the Maximum Revolving Amount.  Each such request for an increase shall be in
an amount of at least Ten Million Dollars ($10,000,000), increased by
increments of One Million Dollars ($1,000,000), and may be made by either (i) 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 commitment under the Revolving Credit Commitment, as a
party to this Agreement (each an “Additional Commitment” and, collectively, the
“Additional Commitments”); provided that existing Lenders shall be given the
first opportunity to provide Additional Commitments.  During the Commitment Increase Period, all of
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 Administrative 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 date of the effectiveness of such Additional
Commitments (each an “Additional Lender Assumption Effective Date”), and (C) Borrowers
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) (and the appropriate Borrower shall pay to the
Lenders any amounts that would be payable pursuant to Section 3.3 hereof
if such adjustments among the Lenders would cause a prepayment of one or more
Eurodollar Loans).  In connection
therewith, it is understood and agreed that the Maximum Amount of any Lender
will not be increased (or decreased except pursuant to Section 2.9(a) hereof)
without the prior written consent of such Lender.  Administrative Borrower shall not request any
increase in the Revolving Amount pursuant to this Section 2.9(b) if a
Default or an Event of Default shall then exist, or, after giving pro forma
effect to any such increase (including a pro forma calculation of the financial
covenants set forth in Section 5.7 hereof) would exist.  Upon each increase of the Revolving Amount,
the Total Commitment Amount shall be proportionally increased.


 


Section 2.10. 
Computation of Interest and Fees. 
With the exception of Base Rate Loans, interest on Loans, Letter of
Credit fees, Related Expenses 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.


 


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Section 2.11. 
Mandatory Payments.


 


(a)           Revolving
Credit Exposure.  If, at any time,
the Revolving Credit Exposure shall exceed the Revolving Credit Commitment, US
Borrower (and the appropriate Foreign Borrowers) shall, as promptly as
practicable, but in no event later than the next Business Day, pay an aggregate
principal amount of the Revolving Loans sufficient to bring the Revolving
Credit Exposure within the Revolving Credit Commitment.


 


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


 


(c)           Alternate
Currency Exposure.  If, at any time,
the Alternate Currency Exposure shall exceed the Alternate Currency Maximum
Amount, US Borrower (and the appropriate Foreign Borrowers) shall, as promptly
as practicable, but in no event later than the next Business Day, pay an
aggregate principal amount of the Alternate Currency Loans sufficient to bring
the Alternate Currency Exposure within the Alternate Currency Maximum Amount.


 


(d)           Application
of Mandatory Payments.  Unless otherwise
designated by Borrowers, each prepayment pursuant to Section 2.11(a), (b) or
(c) hereof shall be applied in the following order (i) first, on a
pro rata basis for the Lenders, to outstanding Base Rate Loans, (ii) second,
on a pro rata basis for the Lenders, to outstanding Eurodollar Loans, and (iii) third,
on a pro rata basis for the Lenders, to outstanding Alternate Currency Loans,
provided that, if the outstanding principal amount of any LIBOR Fixed Rate 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 LIBOR
Fixed Rate Loan shall be converted into a Base Rate Loan on the date of such
prepayment.  Any prepayment of a LIBOR
Fixed Rate Loan pursuant to this Section 2.11 shall be subject to the
prepayment provisions set forth in Article III hereof.


 


Section 2.12. 
Liability of Borrowers.


 


(a)           Joint
and Several Liability.  Each Borrower
hereby authorizes Administrative Borrower or any other Borrower to request
Loans or Letters of Credit hereunder. 
Each Borrower acknowledges and agrees that Agent and the Lenders are
entering into this Agreement at the  request
of each Borrower and with the understanding that US Borrower is and shall
remain fully liable, jointly and severally, for payment in full of the
Obligations, and each Foreign Borrower is and shall remain fully liable for
payment in full of the Obligations of any other Foreign Borrower, as set forth
in the Loan Documents.  Each Borrower
agrees that it is receiving or will receive a direct pecuniary benefit for each
Loan made or Letter of Credit issued hereunder (including the Obligations of
Foreign Borrowers through Article XI hereof).


 


(b)           Appointment
of Administrative Borrower.  Each
Borrower hereby irrevocably appoints Administrative Borrower as the borrowing
agent and attorney-in-fact for all Borrowers, which appointment shall remain in
full force and effect unless and until Agent shall have received prior written
notice signed by each Borrower that such appointment has been revoked and that
another Borrower has been appointed Administrative Borrower.  Each Borrower hereby irrevocably appoints and
authorizes Administrative Borrower to (i) provide Agent with all


 


45

















 


notices with respect to Loans and Letters of Credit
obtained for the benefit of any Borrower and all other notices and instructions
under this Agreement, (ii) take such action as Administrative Borrower
deems appropriate on its behalf to obtain Loans and Letters of Credit, and (iii) exercise
such other powers as are reasonably incidental thereto to carry out the
purposes of this Agreement.  It is
understood that the handling of the Collateral of Borrowers in a combined
fashion, as more fully set forth herein, is done solely as an accommodation to
Borrowers in order to utilize the collective borrowing powers of Borrowers in
the most efficient and economical manner and at their request, and that neither
Agent nor any Lender shall incur liability to any Borrower as a result
hereof.  Each Borrower expects to derive
benefit, directly or indirectly, from the handling of the Collateral in a
combined fashion since the successful operation of each Borrower is dependent
on the continued successful performance of the integrated group.


 


(c)           Maximum
Liability of Each Foreign Borrower and Rights of Contribution.  Anything in this Agreement or any other Loan
Document to the contrary notwithstanding, in no event shall the maximum
liability of any Foreign Borrower exceed the maximum amount that (after giving
effect to the incurring of the obligations hereunder and to any rights to
contribution of such Foreign Borrower from other Affiliates of such Foreign
Borrower) would not render the rights to payment of Agent and the Lenders hereunder
void, voidable or avoidable under any applicable fraudulent transfer law.  Borrowers hereby agree as among themselves
that, in connection with the payments made hereunder, each Foreign Borrower
shall have a right of contribution from each other Borrower in accordance with
applicable law.  Such contribution rights
shall be waived until such time as the Obligations have been irrevocably paid
in full, and no Borrower shall exercise any such contribution rights until the
Secured Obligations have been irrevocably paid in full.


 


(d)           Waivers
of Each Borrower.  In the event that
any obligation of any Borrower under this Agreement is deemed to be an
agreement by such Borrower to answer for the debt or default of another Credit
Party or as an hypothecation of property as security therefor, each Borrower
represents and warrants that (i) no representation has been made to such
Borrower as to the creditworthiness of such other Credit Party, and (ii) such
Borrower has established adequate means of obtaining from such other Credit
Party on a continuing basis, financial or other information pertaining to such
other Credit Party’s financial condition. 
Each Borrower expressly waives, except as expressly required under this
Agreement, diligence, demand,  presentment,
protest and notice of every kind and nature whatsoever, consents to the taking
by Agent and the Lenders of any additional security of another Credit Party for
the obligations secured hereby, or the alteration or release in any manner of
any security of another Credit Party now or hereafter held in connection with
the Obligations, and consents that Agent, the Lenders and any other Credit
Party may deal with each other in connection with such obligations or
otherwise, or alter any contracts now or hereafter existing between them, in
any manner whatsoever, including without limitation the renewal, extension,
acceleration or changes in time for payment of any such obligations or in the
terms or conditions of any security held. 
Agent and the Lenders are hereby expressly given the right, at their
option, to proceed in the enforcement of any of the Obligations independently
of any other remedy or security they may at any time hold in connection with
such obligations secured and it shall not be necessary for Agent and the
Lenders to proceed upon or against or exhaust any other security or remedy
before proceeding to enforce their rights against such Borrower.  Each Borrower further subordinates


 


46

















 


any right of subrogation, reimbursement, exoneration,
contribution, indemnification, setoff or other recourse in respect of sums paid
to Agent and the Lenders by any other Credit Party until such time as the
Commitment has been terminated and the Secured Obligations have been repaid in
full.


 


(e)           Liability
of Foreign Borrowers and Foreign Guarantors of Payment.  Anything herein to the contrary
notwithstanding, no Foreign Borrower or Foreign Guarantor of Payment shall at
any time be liable for the Indebtedness of US Borrower under this Agreement
(exclusive of Indebtedness of the Foreign Borrowers that is guaranteed by US
Borrower under this Agreement).


 


Section 2.13. 
Addition of Foreign Borrowers and Foreign Guarantors of Payment.


 


(a)           Addition
of Foreign Borrower.  At the request
of Administrative Borrower (with at least fifteen (15) days prior written
notice to Agent and the Lenders) and the approval of Agent, in its reasonable
discretion, a Foreign Subsidiary of US Borrower that shall not then be a
Foreign Borrower may become a Foreign Borrower hereunder, provided that all of
the following requirements shall have been met to the satisfaction of Agent:


 


(i)            such
Foreign Subsidiary shall be a Wholly-Owned Subsidiary of US Borrower or shall
be a Foreign Subsidiary of which US Borrower owns, directly or indirectly, at
least eighty percent (80%) of the equity interests and eighty percent (80%) of
the equity interests entitled to vote;


 


(ii)           such
Foreign Subsidiary (A) shall be organized under the laws of an Approved
Foreign Jurisdiction, and (B) shall not be organized under the laws of a
jurisdiction for which any Lender (that is organized in the United States) has
provided notice to Agent that it is illegal for such Lender, or violates the
policies of such Lender (in such Lender’s reasonable interpretation of such
policies), to lend into such foreign jurisdiction;


 


(iii)          US
Borrower and each Domestic Guarantor of Payment shall have guaranteed the
obligations of such Foreign Subsidiary under this Agreement pursuant to the
terms of a Guaranty of Payment;


 


(iv)          such
Foreign Subsidiary shall have executed an Additional Foreign Borrower
Assumption Agreement and appropriate Foreign Borrower Revolving Credit Notes
(for Lenders requesting Notes);


 


(v)           if
required pursuant to Section 5.21 hereof, one or more Foreign Affiliates
of such Foreign Subsidiary shall become a Foreign Guarantor of Payment, and
shall have executed a Guaranty of Payment with respect to the obligations of
such Foreign Subsidiary; and


 


(vii)         such
Foreign Subsidiary that shall become a Foreign Borrower shall have provided to
Agent such corporate governance and authorization documents and an


 


47

















 


opinion of counsel and any other documents and items
(including, without limitation, such information as any Lender may request
pursuant to Section 11.13 hereof) as may be deemed necessary or advisable
by Agent (including an amendment to this Agreement), all of the foregoing to be
in form and substance reasonably satisfactory to Agent.


 


(b)           Addition
of Foreign Guarantor of Payment.  At
the request of Administrative Borrower (with at least fifteen (15) days prior
written notice to Agent and the Lenders) and the approval of Agent, in its
reasonable discretion, a Foreign Subsidiary of US Borrower that shall not then
be a Foreign Guarantor of Payment may become a Foreign Guarantor of Payment
hereunder, provided that all of the following requirements shall have been met
to the satisfaction of Agent:


 


(i)            Administrative
Borrower shall have provided to Agent a written request that such Foreign
Subsidiary be designated as a Foreign Guarantor of Payment pursuant to the
terms of this Agreement;


 


(ii)           such
Foreign Subsidiary shall be a Wholly-Owned Subsidiary of US Borrower or shall
be a Foreign Subsidiary of which US Borrower owns, directly or indirectly, at
least eighty percent (80%) of the equity interests and eighty percent (80%) of
the equity interests entitled to vote;


 


(iii)          such
Foreign Subsidiary shall have executed a Guaranty of Payment with respect to
the obligations of one or more Foreign Borrowers as may be required by Agent
(provided that there shall be no adverse tax consequences or adverse legal
impact); and


 


(iv)          such
Foreign Subsidiary that shall become a Foreign Guarantor of Payment shall have
provided to Agent such corporate governance and authorization documents and an
opinion of counsel and any other documents and items as may be deemed necessary
or advisable by Agent (including an amendment to this Agreement), all of the
foregoing to be in form and substance reasonably satisfactory to Agent.


 


(c)           Additional
Credit Party Bound by Provisions. 
Upon satisfaction by Administrative Borrower and any such Foreign
Subsidiary of the requirements set forth in subsections (a) and (b) above,
as applicable, Agent shall promptly notify Administrative Borrower and the
Lenders, whereupon such Foreign Subsidiary shall be designated a “Foreign
Borrower” or “Foreign Guarantor of Payment”, as applicable, pursuant to the
terms and conditions of this Agreement, and such Foreign Subsidiary shall
become bound by all representations, warranties, covenants, provisions and
conditions of this Agreement and each other Loan Document applicable to the
Foreign Borrowers or Foreign Guarantors of Payment, as the case may be, as if
such Foreign Borrower or Foreign Guarantor of Payment had been the original
party making such representations, warranties and covenants.


 


(d)           Alternative
Structures.  Agent, the Lenders and
Borrowers agree that, if the addition of a Foreign Borrower or Foreign
Guarantor of Payment pursuant to this Section 2.13 would result in a
requirement by such Foreign Borrower or Foreign Guarantor of Payment to pay to
any Lenders additional amounts pursuant to Section 3.2 hereof, then Agent,
the Lenders and


 


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Borrowers agree to use reasonable efforts to designate
a different lending office or otherwise propose an alternate structure that
would avoid the need for, or reduce the amount of, such additional amounts so
long as the same would not, in the reasonable judgment of Agent and the
Lenders, be otherwise disadvantageous to Agent and the Lenders.


 


(e)           Provisions
Relating to the Addition of Foreign Borrowers.  To the extent that a Foreign Borrower is
added pursuant to this Section 2.13, and the fully executed Foreign
Borrower Assumption Agreement with respect to such Foreign Borrower contains
additional legal requirements, terms and conditions applicable to extensions of
credit to such Foreign Borrower in the applicable jurisdiction of such Foreign
Borrower (as determined by Agent in its reasonable discretion), this Agreement
shall be automatically amended solely to incorporate such additional legal
requirements, terms and provisions.


 


Section 2.14. 
Grant of Additional Security Interests from US Borrower and Domestic
Guarantors of Payment.  No later than
forty-five (45) days (unless such time period is extended by Agent in writing)
after the FB Threshold Date, US Borrower and each Domestic Guarantor of Payment
shall execute and deliver to Agent such additional or replacement Security
Documents (to be prepared by Agent) and take such additional action, as Agent
may deem necessary or appropriate in order to create and perfect a Lien in
favor of Agent, for the benefit of the Lenders, in all tangible and intangible
assets of the Credit Parties or such thereof as Agent may deem necessary or
appropriate (specifically excluding (i) US Borrower’s headquarters at 9197
Peoria Street, Englewood, Colorado, and (ii) all leasehold interests in
real and personal property).


 


Section 2.15. 
Extension of Commitment. 
Contemporaneously with the delivery of the financial statements required
pursuant to Section 5.3(b) hereof, US Borrower may deliver a Request
for Extension, requesting that the Lenders extend the Commitment Period for an
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, Borrowers and the
Lenders.  US 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 Borrowers and Agent.


 


ARTICLE III.  ADDITIONAL PROVISIONS RELATING TO

LIBOR FIXED RATE 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 by a Governmental
Authority, 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 LIBOR Fixed Rate Loan made by it, or


 


49

















 


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 the Alternate Currency
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
LIBOR Fixed Rate Loans or issuing or participating in Letters of Credit, or to
reduce any amount receivable hereunder in respect thereof, then, in any such
case, US Borrower (and any Foreign Borrower to which such Loan was made) 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 Administrative 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 by a Governmental Authority 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 could have achieved but for such adoption, change or compliance
(taking into consideration the policies of such Lender or such corporation with
respect to capital adequacy), then from time to time, upon submission by such
Lender to Administrative Borrower (with a copy to Agent) of a written request
therefor (which shall include the method for calculating such amount), US
Borrower (and any Foreign Borrower to which such Loan was made) shall promptly
pay or cause to be paid to such Lender such additional amount or amounts as
will compensate such Lender or such corporation for such reduction.


 


(c)           A
certificate as to any additional amounts payable pursuant to this Section 3.1
submitted by any Lender to Administrative 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 Borrowers
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.  Administrative Borrower shall
not be required to compensate a Lender pursuant to this Section 3.1 for
any increased costs or reductions to the extent such Lender notifies
Administrative Borrower thereof more than ninety (90) days after such Lender
becomes aware of such right to


 


50

















 


additional compensation (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 deducted or withheld from any amounts payable to
Agent or any Lender hereunder, the amounts so payable to Agent or such Lender
shall be increased to the extent necessary to yield to Agent or such Lender
(after deducting, withholding and 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)           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, Administrative 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 or other evidence of payment reasonably
acceptable to Agent or such Lender.  If
such Credit Party shall fail to pay any Taxes or Other Taxes when due to the
appropriate Governmental Authority or fails to remit to Agent the required
receipts or other required documentary evidence, US Borrower and such Credit
Party shall indemnify Agent and the appropriate Lenders on demand for any
incremental Taxes or Other Taxes paid or payable by Agent or such Lender as a
result of any such failure.


 


(c)           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.


 


(d)           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


 


51

















 


federal income taxation regardless of the source of its
income (any such Person, a “Non-U.S. Lender”) shall deliver to Administrative
Borrower and Agent two copies of either U.S. Internal Revenue Service Form W-8BEN,
Form W-8IMY 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 two copies of 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 Administrative Borrower at any time it determines
that such Lender is no longer in a position to provide any previously delivered
certificate to Administrative 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.


 


(e)           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 Foreign Borrower
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
Administrative Borrower (with a copy to the Agent), at the time or times
prescribed by applicable law or reasonably requested by Administrative 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 completion, execution or submission would not materially
prejudice the legal position of such Lender.


 


(f)            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.  US
Borrower (and the appropriate Foreign 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 a Borrower in making a borrowing of,
conversion into or continuation of LIBOR Fixed Rate Loans after such Borrower
has given a notice (including a written or verbal notice that is subsequently
revoked) requesting the same in accordance with the provisions of this
Agreement, (b) default by a Borrower in making any prepayment of or
conversion from LIBOR Fixed Rate Loans after such Borrower has given a notice (including
a written or verbal notice that is subsequently revoked) thereof in accordance
with the provisions of this Agreement, (c) the making of a prepayment of a
LIBOR Fixed Rate Loan on a day that is not the last day of an Interest Period
applicable thereto, (d) any conversion of a Eurodollar Loan to a Base Rate
Loan on a day that is not the last day of an Interest Period applicable
thereto, or (e) any compulsory assignment of such Lender’s interests,
rights and obligations under this


 


52

















 


Agreement pursuant to Section 11.3(c) hereof.  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) in each case 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 Administrative Borrower (with a copy to Agent) by any Lender shall
be conclusive absent manifest error.  The
obligations of Borrowers 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 Administrative 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 any Borrower or the rights of any Lender pursuant to Section 3.1
or 3.2(a) hereof.


 


Section 3.5. 
Eurodollar Rate or Alternate Currency Rate Lending Unlawful;
Inability to Determine Rate.


 


(a)           If
any Lender shall determine (which determination shall, upon notice thereof to
Administrative Borrower and Agent, be conclusive and binding on Borrowers)
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
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 LIBOR Fixed Rate Loan, the obligations of such Lender to make,
continue or convert any such LIBOR Fixed Rate 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
LIBOR Fixed Rate 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 or Alternate
Currency Rate for any requested Interest Period with respect to a proposed
LIBOR Fixed Rate Loan, or that the


 


53

















 


Eurodollar Rate or Alternate Currency Rate for any
requested Interest Period with respect to a proposed LIBOR Fixed Rate Loan does
not adequately and fairly reflect the cost to the Lenders of funding such Loan,
Agent will promptly so notify Administrative Borrower and each Lender.  Thereafter, the obligation of the Lenders to
make or maintain such LIBOR Fixed Rate Loan shall be suspended until Agent
(upon the instruction of the Required Lenders) revokes such notice.  Upon receipt of such notice, Administrative
Borrower may revoke any pending request for a borrowing of, conversion to or
continuation of such LIBOR Fixed Rate 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. 
Administrative Borrower shall be permitted to replace any Lender that
requests reimbursement for amounts owing pursuant to Section 3.1 or 3.2(a) hereof,
or asserts its inability to make a LIBOR Fixed Rate 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
hereof so as to eliminate the continued need for payment of amounts owing
pursuant to Section 3.1 or 3.2(a) hereof 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) the appropriate
Borrowers shall be liable to such replaced Lender under Section 3.3 hereof
if any LIBOR Fixed Rate Loan owing to such replaced Lender shall be purchased
other than on the last day of the Interest Period relating thereto,
(f) the replacement Lender, 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 12.10 hereof
(provided that  Borrowers (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, the appropriate Borrowers shall pay all
additional amounts (if any) required pursuant to Section 3.1 or 3.2(a) hereof,
as the case may be.


 


Section 3.7. 
Discretion of Lenders as to Manner of Funding.  Notwithstanding any provision of this
Agreement to the contrary, each Lender shall be entitled to fund and maintain
its funding of all or any part of such Lender’s Loans in any manner such Lender
deems to be appropriate; it being understood, however, that for the purposes of
this Agreement all determinations hereunder shall be made as if such Lender had
actually funded and maintained each Eurodollar Loan or Alternate Currency Loan
during the applicable Interest Period for such Loan through the purchase of
deposits having a maturity corresponding to such Interest Period and bearing an
interest rate equal to the Eurodollar Rate or Alternate Currency Rate, as
applicable, for such Interest Period.  In
addition, each Lender may, at its option, fund its portion of a Loan requested
by a Foreign Borrower to Agent by causing any foreign or domestic branch or
affiliate of such Lender to provide such funding; provided that any exercise of
such option shall not affect the obligation of such Foreign Borrower to repay
such Loan in accordance with the terms of this Agreement, and such Lender and
its affiliate or branch shall cooperate and communicate with Agent in order to
coordinate such arrangement.


 


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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)           Administrative
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)(ii) hereof) and
otherwise complied with Section 2.5 hereof;


 


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


 


(d)           no
condition or event shall have occurred that Agent or the Required Lenders
determine has or is reasonably likely to have a Material Adverse Effect;


 


(e)           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 such
Credit Event, except to the extent that any thereof expressly relate to an
earlier date; and


 


(f)            with
respect to each request by Borrowers for an Alternate Currency Loan or for a
Letter of Credit to be issued in an Alternate Currency, there shall not have
occurred any change in any national or international financial, political or
economic conditions or currency exchange rates or exchange controls that, in
the reasonable opinion of Agent and the Required Lenders (and the Fronting
Lender, with respect to any Letter of Credit to be issued in an Alternate
Currency) would make it impracticable for such Loan or Letter of Credit to be
denominated in the relevant Alternate Currency.


 


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


 


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


 


(a)           Notes
as Requested.  US Borrower shall have executed and delivered
to (i) each Lender requesting a US Borrower Revolving Credit Note such Lender’s
US Borrower Revolving Credit Note, and (ii) the Swing Line Lender the Swing
Line Note, if requested by the Swing Line Lender.


 


55

















 


(b)           Guaranties
of Payment.  Each Domestic Guarantor of Payment shall have
executed and delivered to Agent, for the benefit of the Lenders, a Guaranty of
Payment, in form and substance satisfactory to Agent and the Lenders.


 


(c)           Security
Agreements.  US Borrower and each Domestic 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 assets of such Credit Party, all to be in
form and substance reasonably satisfactory to Agent and the Lenders.


 


(d)           Pledge
Agreements.  US Borrower and each Domestic Subsidiary that
has a Foreign Subsidiary shall have (i) executed and delivered to Agent, for
the benefit of the Lenders, a Pledge Agreement, in form and substance
satisfactory to Agent, with respect to (A) sixty-five percent (65%) of the
voting shares of capital stock or other voting equity interests of each
First-Tier Material Foreign Subsidiary, and (B) one hundred percent (100%) of
all non-voting shares of capital stock or other non-voting equity interests of
each First-Tier Material Foreign Subsidiary, (ii) executed and delivered to
Agent, for the benefit of the Lenders, appropriate transfer powers for each of
the Pledged Securities with respect thereto, and (iii) delivered to Agent, for
the benefit of the Lenders, such Pledged Securities (to the extent such Pledged
Securities are certificated).


 


(e)           Lien
Searches.  With respect to the property owned or leased
by each Credit Party, and any other property securing the Obligations, US
Borrower 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 U.C.C. Financing Statements previously
filed by any Person and not expressly permitted pursuant to Section 5.9 hereof.


 


(f)            Officer’s
Certificate, Resolutions, Organizational Documents.  US Borrower shall have
delivered to Agent an officer’s certificate (or comparable domestic or foreign
documents) certifying the names of the officers of each 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 or foreign 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.


 


(g)           Good
Standing and Full Force and Effect Certificates.  US Borrower shall have delivered to Agent a
good standing certificate or full force and effect certificate (or comparable
document, if neither certificate is available in the applicable jurisdiction),
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.


 


56

















 


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


 


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


 


(j)            Agent
Fee Letter, Closing Fee Letter and Other Fees.  US 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, (ii) executed and delivered to Agent, the
Closing Fee Letter and paid to Agent, for the benefit of the Lenders, the fees
stated therein, and (iii) paid all legal fees and expenses of Agent in
connection with the preparation and negotiation of the Loan Documents.


 


(k)           Closing
Certificate.  US 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 after the first
Credit Event will exist, and (iii) each of the representations and warranties
contained in Article VI hereof are true and correct as of the Closing Date.


 


(l)            Letter
of Direction.  US 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 letter of direction includes the authorization
to transfer funds under this Agreement and the wire instructions that set forth
the locations to which such funds shall be sent.


 


(m)          Miscellaneous.  US 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.  No later than ninety
(90) days after the Closing Date (unless a longer period is extended by Agent
and the Required Lenders in writing), US Borrower and each Domestic Subsidiary
that has a first-tier Foreign Subsidiary shall, unless such pledge would cause
it to incur, directly or indirectly, an unreasonable amount of economic, legal,
tax or regulatory harm, as determined by Agent after consultation with US
Borrower, (a) execute and deliver to Agent, for the benefit of the Lenders, a
Pledge Agreement, in form and substance satisfactory to Agent, with respect to
(i) sixty-five percent (65%) of the voting shares of capital stock or other
voting equity interests of each first-tier Foreign Subsidiary, and (ii) one
hundred percent (100%) of all non-voting shares of capital stock or other
non-voting equity interests of each first-tier Foreign Subsidiary, (b) execute
and deliver to Agent, for the benefit of the Lenders, appropriate transfer
powers for each of the Pledged Securities with respect thereto, and (c) deliver
to Agent, for the benefit of the Lenders, such Pledged Securities (to the
extent such Pledged Securities are certificated).


 


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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 (10) 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.


 


Section 5.2.  Money
Obligations.  Each Company shall pay
in full (a) prior in each case to the date when material 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) in the case of US Borrower and the Domestic Guarantors
of Payment, 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 comparable
provisions, and, in the case of the Foreign Subsidiaries, those obligations
under foreign laws with respect to employee source deductions, obligations and
employer obligations to its employees; 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 provisions have been established in accordance with GAAP) before such
payment becomes overdue.


 


Section 5.3.  Financial
Statements and Information.


 


(a)           Quarterly
Financials.  Administrative Borrower shall deliver to
Agent, within forty-five (45) days after the end of each of the first three
quarterly periods of each fiscal year of US 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 form and detail satisfactory to Agent and
certified by a Financial Officer of US Borrower.


 


(b)           Annual
Audit Report.  Administrative Borrower shall deliver to
Agent, within ninety (90) days after the end of each fiscal year of US
Borrower, an annual audit report of the Companies for that year prepared on a
Consolidated basis, in form and detail satisfactory to Agent and certified by
an unqualified opinion of 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. 
Administrative 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)           Expected
Earn-Out Amount.  Administrative Borrower shall deliver to
Agent, concurrently with the delivery of each Compliance Certificate, a
calculation of the Expected Earn-Out Amount for the next twelve (12) month
period.


 


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(e)           Pro-Forma
Projections.  Administrative Borrower shall deliver to
Agent, within ninety (90) days after the end of each fiscal year of US
Borrower, annual pro-forma projections of the Companies for the then current
fiscal year, to be in form and detail acceptable to Agent.


 


(f)            Shareholder
and SEC Documents.  Administrative Borrower shall deliver to
Agent, as soon as available, copies of all notices, reports, definitive proxy
or other statements and other documents sent by US 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 US 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 US Borrower’s securities.


 


(g)           Changes
in Accounting Principles.  If, as a result of any change in accounting
principles and policies (or the application thereof) from those used in the
preparation of the historical financial statements, the Consolidated financial
statements of US Borrower and its Subsidiaries delivered pursuant to Section
5.3(a) or 5.3(b) will differ in any material respect from the Consolidated
financial statements that would have been delivered pursuant to such sections
had no such change in accounting principles and policies been made, then,
together with the first delivery of such financial statements after such
change, Administrative Borrower shall deliver to Agent one or more statements
of reconciliation for all such prior financial statements in form and substance
satisfactory to Agent.


 


(h)           Financial
Information of the Companies.  Administrative Borrower shall deliver to
Agent, within fifteen (15) Business Days of the written request of Agent, or as
soon thereafter as is reasonably practicable, 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 GAAP, and at all
reasonable times (during normal business hours and upon reasonable 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)           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, except as otherwise permitted pursuant to Section 5.12
hereof.


 


(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.


 


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Section 5.6.  ERISA Pension and Benefit Plan Compliance.


 


(a)           Generally. 
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.  US Borrower shall furnish to Agent and the
Lenders (i) 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 (ii) 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.  US
Borrower shall promptly notify Agent of any material taxes assessed, proposed
to be assessed or that US 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(a), “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.  US Borrower shall,
at the request of Agent, deliver or cause to be delivered to Agent true and
correct copies of any documents relating to the ERISA Plan of any Company.


 


(b)           Foreign
Pension Plans and Benefit Plans.


 


(i)            For
each existing, or hereafter adopted, Foreign Pension Plan and Foreign Benefit
Plan, Administrative Borrower and any appropriate Foreign Subsidiary shall in a timely fashion comply with
and perform in all material respects all of its obligations under and in
respect of such Foreign Pension Plan or Foreign Benefit Plan, including under
any funding agreements and all applicable laws (including any fiduciary,
funding, investment and administration obligations).


 


(ii)           All
employer or employee payments, contributions or premiums required to be
remitted, paid to or in respect of each Foreign Pension Plan or Foreign Benefit
Plan shall be paid or remitted by Administrative Borrower and any appropriate
Foreign Subsidiary in a timely fashion
in accordance with the terms thereof, any funding agreements and all applicable
laws.


 


(iii)          Administrative Borrower and any
appropriate Foreign Subsidiary shall deliver to Agent (A) if requested by
Agent, copies of each annual and other return, report or valuation with respect
to each Foreign Pension Plan as
filed with any applicable Governmental Authority; (B) promptly after receipt
thereof, a copy of any material


 


60

















 


direction, order, notice,
ruling or opinion that Administrative Borrower and any appropriate Foreign Subsidiary may
receive from any applicable Governmental Authority with respect to any Foreign Pension Plan; and (C) notification within
thirty (30) days of any increases having a cost to the Companies in excess of
Two Hundred Fifty Thousand Dollars ($250,000) per annum in the aggregate, in
the benefits of any existing Foreign Pension Plan or Foreign
Benefit Plan, or the establishment of any new Foreign Pension Plan or Foreign Benefit Plan, or the commencement of
contributions to any such plan to which the Companies were not previously
contributing.


 


Section 5.7.  Financial
Covenants.


 


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


 


(b)           Senior
Leverage Ratio.  US Borrower shall not suffer or permit at any
time the Senior Leverage Ratio to exceed 3.00 to 1.00.


 


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


 


(d)           Available
Liquidity for Expected Earn-Out Amount.  US Borrower shall not suffer or permit at any
time the Available Liquidity to be less than the Expected Earn-Out Amount as of
the last day of the most recently completed fiscal quarter.


 


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 and 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
Capitalized Lease Obligations), which loans and Capitalized Lease Obligations
shall only be secured by the fixed assets being purchased or leased;


 


(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 but only to the extent that the principal amount thereof does not
increase after the Closing Date);


 


(d)           Indebtedness
incurred by Foreign Subsidiaries (in addition to the Indebtedness permitted
pursuant to subparts (a) and (h) hereof) in an aggregate amount not to exceed,
for all such Indebtedness of all Foreign Subsidiaries, the greater of (i) seven
and one-half percent (7.5%) of Consolidated Total Assets, or (ii) Twenty-Five
Million Dollars ($25,000,000) at any time outstanding;


 


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


 


61

















 


(f)            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;


 


(g)           Indebtedness
of a Foreign Subsidiary under an accounts receivable facility, in an aggregate
amount for all such facilities of all Foreign Subsidiaries not to exceed Twenty
Million Dollars ($20,000,000), so long as no portion of the Indebtedness or any
other obligation (contingent or otherwise) under such facility is guaranteed by
any Credit Party and no Credit Party provides, either directly or indirectly,
any credit support of any kind in connection with such facility;


 


(h)           Subordinated
Indebtedness, so long as (i) the Companies are in compliance (and in pro forma
compliance after giving effect to such Subordinated Indebtedness) with the
provisions of Article V hereof, (ii) the documentation with respect to such
Subordinated Indebtedness is in form and substance reasonably acceptable to
Agent (and, if the aggregate amount of such Subordinated Indebtedness is in excess
of Ten Million Dollars ($10,000,000), the Required Lenders), as determined by
Agent and, if applicable, the Required Lenders, prior to the incurrence of such
Subordinated Indebtedness, (iii) the maturity date (and earliest possible put  date) of such Subordinated Indebtedness is at least thirty (30) days
after the last day of the Commitment Period, and (iv) prior to the incurrence
of such Subordinated Indebtedness, if the aggregate amount of all Subordinated
Indebtedness of the Foreign Subsidiaries exceeds (or will exceed, after the
incurrence of such Subordinated Indebtedness) Ten Million Dollars
($10,000,000), each Foreign Subsidiary that is directly or indirectly liable
for such Subordinated Indebtedness shall either become a Foreign Borrower or
Foreign Guarantor, as appropriate, in the discretion of Agent, in consultation
with US Borrower;


 


(i)            loans
to Percepta and its Subsidiaries in an aggregate amount at any time outstanding
not to exceed the greater of (i) twenty percent (20%) of the net revenues of
Percepta and its Subsidiaries for the most recently completed four fiscal
quarters, and (ii) Twenty Million Dollars ($20,000,000);


 


(j)            loans
to a joint venture (in which one or more Companies own an equity interest) in
an aggregate amount at any time outstanding not to exceed the greater of (i)
twenty percent (20%) of the net revenues of such joint venture for the most
recently completed four fiscal quarters, and (ii) the total, for all such joint
ventures, of Twenty Million Dollars ($20,000,000);


 


(k)           Indebtedness
of a Company that was initially indebtedness of a target entity that has been
acquired by the Companies pursuant to Section 5.13 hereof and that becomes
Indebtedness of a Company through a merger of the target into a Company, so
long as (i) such Indebtedness was not incurred in anticipation of such
Acquisition, or (ii) if any such Indebtedness was incurred by a target entity
(or entities) in anticipation of an Acquisition, the aggregate amount of all
such Indebtedness for all Companies (with respect to all such Acquisitions)
outstanding at any time (that in each case is outstanding beyond thirty (30)
days after the relevant Indebtedness was acquired by the Companies) shall not
exceed Twenty Million Dollars;


 


62

















 


(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;


 


(n)           Indebtedness
not otherwise described in or subject to subparts (a) through (m) hereof in an
aggregate principal amount not to exceed the greater of (i) five percent (5%)
of Consolidated total assets of US Borrower, or (ii) Five Million Dollars
($5,000,000) at any time outstanding; and


 


(o)           other
unsecured Indebtedness, in addition to the Indebtedness listed above, so long
as (i) the maturity date (and earliest possible put date) of such Indebtedness
is at least thirty (30) days after the last day of the Commitment Period, (ii)
the Companies are in compliance (and in pro forma compliance after giving
effect to such Indebtedness) with the provisions of Section 5.7 hereof, and
(iii) if the amount of such Indebtedness is equal to or greater than Ten
Million Dollars ($10,000,000), such Indebtedness is created pursuant to
documentation in form and substance reasonably satisfactory to Agent.


 


Section 5.9.  Liens.  No Company shall create, assume or suffer to
exist (or enter into a contract that creates a consensual Lien upon the
happening of a contingency or otherwise) any Lien upon any of its property or
assets, whether now owned or hereafter acquired; provided that this Section 5.9
shall not apply to the following:


 


(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, including, without limitation, statutory Liens of landlords,
carriers, warehousers, utilities, mechanics, repairmen, workers and
materialmen, 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)           any
Lien granted to Agent, for the benefit of the Lenders;


 


(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, and the amount and
description of property subject to such Liens, shall not be increased;


 


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(f)            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;


 


(g)           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;


 


(h)           any
Lien on fixed assets owned by a Company as a result of an Acquisition permitted
pursuant to Section 5.13 hereof, so long as (i) such Lien was not
created at the time of or in contemplation of such Acquisition, and (ii) such
Lien is released within one hundred eighty (180) days after such Acquisition
(unless (A) Borrowers shall have obtained the prior written consent of
Agent, or (B) such Lien would otherwise be permitted pursuant to Section 5.9(f) or
(i) hereof);


 


(i)            any
Lien on fixed assets owned by a Company (in addition to the Liens permitted
pursuant to subparts (f) and (h) hereof) to secure Indebtedness
permitted pursuant to Section 5.8 hereof, in an aggregate amount, for all
of the Companies, not to exceed Twenty-Five Million Dollars ($25,000,000) at
any time outstanding;


 


(j)            any
Lien on assets of Percepta and its Subsidiaries securing Indebtedness described
in Section 5.8(i) hereof in an aggregate principal amount, for
Percepta and all of its Subsidiaries, not to exceed Five Million Dollars
($5,000,000) at any time outstanding;


 


(k)           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; and


 


(l)            any
Liens (on assets that do not constitute Collateral), not otherwise described in
or subject to subparts (a) through (j) hereof, securing Indebtedness
(other than Indebtedness for borrowed money) in an aggregate principal amount
for all such Indebtedness and all such Liens not to exceed Two Million Dollars
($2,000,000) at any time outstanding.


 


No Company shall enter into any contract or agreement
(other than a contract or agreement entered into in connection with (A) the
purchase or lease of fixed assets that prohibits Liens on such fixed assets, or
(B) the incurrence of Indebtedness permitted pursuant to Section 5.8(h) hereof
that prohibits Liens on the assets of Percepta) that would prohibit 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, Loans and Guaranties.  No Company shall (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


 


64

















 


outstanding any advance or loan to any Person, or (e) be
or become a Guarantor of any kind (other than a Guarantor of Payment under the
Loan Documents); 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, and any investment in, any new
Subsidiary after the Closing Date so long as such new Subsidiary shall have
been created, acquired or held, and investments made, in accordance with the
terms and conditions of this Agreement;


 


(iii)          any
investment in, loan to or guaranty of the Indebtedness of, US Borrower or a
Domestic Guarantor of Payment from or by a Company;


 


(iv)          any
investment in, loan to or guaranty of the Indebtedness of, a Foreign Borrower
or a Foreign Guarantor of Payment from or by a Foreign Borrower or a Foreign
Guarantor of Payment;


 


(v)           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;


 


(vi)          any
investment in, loan to or guaranty of the Indebtedness of, 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;


 


(vii)         any
advance or loan to an officer or employee of a Company, so long as all such
advances and loans from all Companies (specifically excluding any advance or
loan assumed through an Acquisition) aggregate not more than the principal sum
of Five Million Dollars ($5,000,000) at any time outstanding;


 


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


 


(ix)           other
investments of, loans from or guaranties by, the Companies in an aggregate
amount not to exceed, for all Companies, the greater of (A) five percent
(5%) of Consolidated total assets of US Borrower, or (B) Five Million
Dollars ($5,000,000); provided that client-related performance guaranties shall
not be included in the calculation of the foregoing amounts.


 


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


 


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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) US Borrower (provided that US
Borrower shall be the continuing or surviving Person) or (ii) any one or
more Domestic Guarantors of Payment;


 


(b)           any
Domestic Subsidiary may sell, lease, transfer or otherwise dispose of any of
its assets to (i)  US Borrower or (ii) any Domestic 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 or amalgamate with (i) US Borrower, provided
that US Borrower shall be the continuing or surviving Person, (ii) any one
or more Domestic Guarantors of Payment, provided that a Domestic Guarantor of
Payment shall be the continuing or surviving Person, and (iii) any other
Foreign Subsidiary, provided that, if such merger or amalgamation includes a
Credit Party, a Credit Party shall be the continuing or surviving Person or the
surviving Person shall become a Credit Party and assume the obligations of the
Credit Party;


 


(e)           any
Foreign Subsidiary (other than a Credit Party) may sell, lease, transfer or
otherwise dispose of any assets that are not equity interests in Credit
Parties;


 


(f)            the
Companies may sell all of the equity interests in a Foreign Borrower or Foreign
Guarantor of Payment, or dissolve or liquidate a Foreign Borrower or Foreign
Guarantor of Payment, so long as (i) all Loans made to or for the benefit
of such Foreign Borrower or Foreign Guarantor, and proceeds received by such
Foreign Borrower or Foreign Guarantor of Payment from Loans, are repaid in full
prior to the effectiveness of such sale, dissolution or liquidation, and (ii) upon
the effectiveness of such sale, dissolution or liquidation, such Foreign
Borrower or Foreign Guarantor of Payment ceases to be a Foreign Borrower or
Foreign Guarantor of Payment, as applicable, under this Agreement pursuant to
documentation satisfactory to Agent;


 


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


 


(h)           a
Company may sell, lease, transfer or otherwise dispose of any assets that are
obsolete or no longer useful in such Company’s business;


 


(i)            any
Company may sell, lease, transfer or otherwise dispose of any assets to any
other Company, so long as such disposition is for fair market value (as
determined by an independent third-party valuation firm or appraiser of
national reputation if the anticipated fair market value of such asset or
assets exceeds Fifteen Million Dollars ($15,000,000));


 


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(j)            any
Company may sell, lease, transfer or otherwise dispose of any assets to any
Person that is not a Company, so long as (i) such disposition is on an arm’s
length basis and is for fair market value (as determined by an independent
third-party valuation firm or appraiser of national reputation if the
anticipated fair market value of such asset or assets exceeds Fifteen Million
Dollars ($15,000,000)); and (ii) the aggregate amount of all such
dispositions pursuant to this Section 5.12(j), for all of the Companies,
does not exceed an amount equal to ten percent (10%) of Consolidated Total
Assets during the Commitment Period;


 


(k)           with
respect to a merger, amalgamation or consolidation, Acquisitions may be
effected in accordance with the provisions of Section 5.13 hereof; and


 


(l)            US
Borrower may dissolve or liquidate the Newgen Companies.


 


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


 


(a)           in
the case of a merger, amalgamation or other combination including a Borrower
(other than US Borrower), such Borrower shall be the surviving entity and, if
such merger, amalgamation or other combination includes US Borrower, US
Borrower shall be the surviving entity;


 


(b)           in
the case of a merger, amalgamation or other combination including a Credit
Party (other than a Borrower), a Credit Party shall be the surviving entity;


 


(c)           the
business to be acquired shall be similar or complimentary to the lines of
business of the Companies;


 


(d)           the
Companies shall be in full compliance with the Loan Documents both prior to and
after giving pro forma effect to such Acquisition;


 


(e)           no
Default or Event of Default shall exist prior to or after giving pro forma
effect to such Acquisition, thereafter shall begin to exist;


 


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


 


(g)           the
purchase price for any Acquisition by a Foreign Subsidiary that is not a Credit
Party, or of a Foreign Subsidiary by a Domestic Subsidiary that is not a Credit
Party, shall be solely from (i) the cash-flow of one or more Foreign
Subsidiaries, (ii) the proceeds of the Loans made to one or more Foreign
Borrowers, or (iii) Subordinated Indebtedness incurred in accordance with
and subject to Section 5.8(h) hereof ;


 


(h)           the
purchase price for any Acquisition by a Foreign Borrower or a Foreign Guarantor
of Payment shall be from (i) the cash-flow of one or more Foreign
Subsidiaries, (ii) the proceeds of the Loans made to one or more Foreign
Borrowers, or (iii) Subordinated Indebtedness incurred in accordance with
and subject to Section 5.8(h) hereof;


 


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(i)            with
respect to any Acquisition the Consideration for which is in excess of
Twenty-Five Million Dollars ($25,000,000), US 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 US Borrower showing pro forma compliance with Section 5.7
hereof, both before and after the proposed Acquisition; provided that, for the
purpose of complying with the notice and disclosure requirements set forth in
this subsection (i), the amount of Consideration for an Acquisition shall be
deemed to be US Borrower’s best estimate of the total Consideration to be paid
for such Acquisition in accordance with SEC disclosure and calculation
requirements; and


 


(j)            US
Borrower shall have Available Liquidity of no less than Twenty-Five Million
Dollars ($25,000,000) after giving effect to such Acquisition.


 


Section 5.14. 
Notice.  Each Borrower
shall cause a Financial Officer of such Borrower to promptly notify Agent and
the Lenders, in writing whenever:


 


(a)           a
Default or Event of Default has occurred hereunder or any representation or
warranty made in Article VI hereof or elsewhere in this Agreement or in
any Related Writing shall for any reason cease in any material respect to be
true and complete;


 


(b)           a
Borrower learns of a litigation or proceeding against such Borrower before a
court, administrative agency or arbitrator that, if successful, might have a
Material Adverse Effect; and


 


(c)           a
Borrower learns that there has occurred any event, condition or thing that is
reasonably likely to have a Material Adverse Effect.


 


Section 5.15. 
Restricted Payments.  No
Company shall make or commit itself to make any Restricted Payment at any time,
except that, so long as no Default or Event of Default shall then exist or,
after giving pro forma effect to such payment, thereafter shall begin to exist,
any Company may make Restricted Payments (other than for the repayment,
redemption, retirement, repurchase or early defeasance of Subordinated
Indebtedness in excess of the aggregate amount, for all such repayments,
redemptions, retirements, repurchases or early defeasances, of Ten Million
Dollars ($10,000,000)).


 


Section 5.16.  Environmental Compliance.  Each
Company shall comply in all material respects with any and all Environmental
Laws and Environmental Permits 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.  US Borrower shall furnish to Agent and the
Lenders, promptly after receipt thereof, a copy of any notice such Company may
receive from any Governmental Authority or 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


 


68

















 


or disposal of hazardous waste, solid waste or other
wastes on, under or to any real property in which any Company holds any
ownership interest or performs any of its operations, in violation of any
Environmental Law.  As used in this Section 5.16,
“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.  US Borrower (and
any Foreign Borrower, as applicable) 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 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 Person that is not an Affiliate; provided 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.  Borrowers’
use of the proceeds of the Loans shall be for working capital and other general
corporate purposes of the Companies, for the refinancing of existing
Indebtedness, for Acquisitions permitted hereunder and for Capital
Distributions permitted hereunder.


 


Section 5.19. 
Corporate Names.  No Credit
Party shall change its corporate name, unless, in each case, such Credit Party
shall provide Agent with at least thirty (30) days prior written notice
thereof.  Administrative 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 Credit Party’s
records pertaining to the Collateral are kept; and (b) any change in any
Credit Party’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 US 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.


 


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


 


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


 


(b)           Foreign
Subsidiary Guaranties.


 


(i)            Each
Foreign Affiliate of a Foreign Borrower shall, at the discretion of Agent,
after consultation with Administrative Borrower, promptly execute and deliver
to Agent, for the benefit of the Lenders, a Guaranty of Payment of all of the
Obligations of the Foreign Borrowers (to the extent not prohibited by law) if
either (A) such Foreign Affiliate directly benefits from the Loans made to
such Foreign Borrower (for example, if it receives the proceeds of the Loans
made to such Foreign Borrower), or (B) such Foreign Affiliate is logically
a part of a transaction or series of transactions related to the Loans made to
such Foreign Borrower (for example, if such Foreign Affiliate is a parent
entity of such Foreign Borrower or if the proceeds of such Loans are routed
through such Foreign Affiliate (through intercompany loans or otherwise) to the
ultimate intended beneficiary thereof). 
Each such Guaranty of Payment shall be prepared by Agent and in form and
substance acceptable to Agent.  In
connection therewith, such Foreign Affiliate shall also deliver to Agent such
other supporting documentation, corporate governance and authorization
documents, and an opinion of counsel as may be deemed necessary or advisable by
Agent.  In exercising such discretion,
Agent shall take into consideration, after consultation with Administrative
Borrower, (1) the costs and benefits of obtaining a Guaranty of Payment
from such Foreign Subsidiary, and (2) any recommendations received from
Administrative Borrower regarding which Foreign Affiliates should be required
to execute a Guaranty of Payment based on the flow of funds and intended use of
the proceeds of the Loans made to a Foreign Borrower.


 


(ii)           Anything
in this subsection (b) to the contrary notwithstanding, Agent may forego
the requirement that a Foreign Subsidiary execute a Guaranty of Payment if
Agent determines, in its reasonable judgment, after consultation with
Administrative Borrower, that the execution and delivery of such Guaranty of
Payment under the laws of such foreign jurisdiction (A) is impractical or
cost prohibitive in light of the benefits, 
or (B) will have material adverse tax consequences.


 


(c)           Pledge
of Stock or Other Ownership Interest. 
With respect to the creation or acquisition of a first-tier Foreign Subsidiary,
US Borrower or the appropriate Domestic Guarantor of Payment shall, unless such
pledge would cause it to incur, directly or indirectly, an unreasonable amount
of economic, legal, tax or regulatory harm, as determined by Agent after
consultation with US Borrower, (i) execute a Pledge Agreement and, in
connection therewith, pledge to Agent (A) sixty-five percent (65%) of the
voting shares of capital stock or other voting equity interests of such
first-tier Foreign Subsidiary, and (B) one hundred percent (100%) of all


 


70

















 


non-voting shares of capital stock or other non-voting
equity interests of such first-tier Foreign Subsidiary, and (ii) deliver
to agent all of the share certificates, if certificated, or other evidence of
equity representing such pledged ownership interests.


 


(d)           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, have the right to perfect, at
US 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; provided that, prior to the First FB Addition
Date, Agent shall not perfect its security interests in any shares of a
first-tier Foreign Subsidiary that is not a First-Tier Material Foreign
Subsidiary.  Such perfection may include
the requirement that the applicable Company promptly execute and deliver to
Agent a separate pledge document (prepared by Agent and in form and substance
satisfactory to Agent), covering such equity interests, that conforms to the
requirements of the applicable foreign jurisdiction, together with an opinion
of local counsel as to the perfection of the security interest provided for
therein, and all other documentation necessary or desirable to effect the
foregoing and to permit Agent to exercise any of its rights and remedies in
respect thereof.  In exercising such
discretion, Agent shall take into consideration, after consultation with
Administrative Borrower, the costs and benefits of perfecting its security
interest in such equity interests in the applicable foreign jurisdiction.


 


(e)           Dormant
Subsidiary Status.  With respect to a
Subsidiary that has been classified as a Dormant Subsidiary, at such time that
such Subsidiary no longer meets the requirements of a Dormant Subsidiary,
Administrative Borrower shall provide to Agent prompt written notice thereof,
and shall provide, with respect to such Subsidiary, all of the documents
required by this Section 5.21.


 


Section 5.22. 
Restrictive Agreements.  Except
as set forth in this Agreement, Borrowers shall not, and shall not permit any
of their 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 any Borrower, (b) make, directly or indirectly, loans or
advances or capital contributions to any Borrower or (c) transfer,
directly or indirectly, any of the properties or assets of such Subsidiary to
any 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. 
Other Covenants and Provisions. 
In the event that any Company shall enter into, or shall have entered
into, any Material Indebtedness Agreement, wherein the covenants and defaults
contained therein shall be more restrictive than the covenants and defaults set
forth herein, then the Companies shall immediately be bound hereunder (without
further action) by such more restrictive covenants and defaults with the same
force and effect as if such


 


71

















 


covenants defaults were written herein.  In addition to the foregoing, Borrowers shall
provide prompt written notice to Agent of the creation or existence of any
Material Indebtedness Agreement that has such more restrictive provisions, and
shall, within fifteen (15) days thereafter (if requested by Agent), execute and
deliver to Agent an amendment to this Agreement that incorporates such more
restrictive provisions, with such amendment to be in form and substance
satisfactory to Agent.


 


Section 5.24.  Pari Passu Ranking.  The
Obligations shall, and Borrowers 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 each Borrower.


 


Section 5.25. 
Guaranty Under Material Indebtedness Agreement.  No Company shall be or become a primary
obligor or Guarantor of the Indebtedness incurred pursuant to any Material
Indebtedness Agreement unless such Company shall also be a Guarantor of Payment
under this Agreement prior to or concurrently therewith.


 


Section 5.26. 
Amendment of Organizational Documents.  Without the prior written consent of Agent,
no Credit Party shall (a) amend its Organizational Documents in any manner
adverse to the Lenders, or (b) amend its Organizational Documents to
change its name or state, province or other jurisdiction of organization.


 


Section 5.27. 
Fiscal Year of Borrowers. 
No Borrower shall change the date of its fiscal year end without the
prior written consent of Agent and the Required Lenders.  As of the Closing Date, the fiscal year end
of each Borrower is December 31 of each year.


 


Section 5.28. 
Further Assurances. 
Borrowers shall, and shall cause each other Credit Party to, promptly
upon request by Agent, or the Required Lenders through Agent, (a) correct
any material defect or error that may be discovered in any Loan Document or in
the execution, acknowledgment, filing or recordation thereof, and (b) do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, certificates, assurances and
other instruments related to the Collateral as Agent, or the Required Lenders
through Agent, may reasonably require from time to time in order to carry out
more effectively the purposes of the Loan Documents.


 


ARTICLE VI.  REPRESENTATIONS AND WARRANTIES


 


Section 6.1. 
Corporate Existence; Subsidiaries; Foreign Qualification.  Each Company is duly organized, validly
existing and in good standing (or comparable concept in the applicable
jurisdiction) 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 (or comparable concept in the applicable jurisdiction) 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 so qualify would not reasonably be
expected to have a Material Adverse Effect. 
Each Foreign Subsidiary is validly existing under the laws of its
jurisdiction of organization.  Schedule
6.1 hereto sets forth,


 


72

















 


as of the Closing Date, each Subsidiary of a Borrower
(and whether such Subsidiary is a Dormant Subsidiary), its state (or
jurisdiction) of formation, its relationship to a Borrower, including the
percentage of each class of stock or other equity interest owned by a Company,
the location of its chief executive office and its principal place of
business.  Except as set forth on Schedule
6.1 hereto, each Borrower, directly or indirectly, owns all of the equity
interests of each of its Subsidiaries (excluding directors’ qualifying shares
and, in the case of Foreign Subsidiaries, other nominal amounts of shares held
by a Person other than a Company).


 


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 do not
conflict with, result in a breach in any of the provisions of, constitute a
default under, or result in the creation of a 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 material
agreement to which such Company is a party.


 


Section 6.3. 
Compliance with Laws and Contracts.


 


(a)           Each
Company 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 with
all applicable laws relating thereto, except where the failure to do so would not
have a Material Adverse Effect.


 


(b)           Each
Company is in compliance 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, except where the failure to be in compliance would not
have a Material Adverse Effect.


 


(c)           No
Company is in violation of or in default under any agreement to which it is a
party or by which its assets are subject or bound, except with respect to any
violation or default that could not reasonably be expected to result in a
Material Adverse Effect.


 


(d)           Each
Company is in material compliance with all applicable Bank Secrecy Act (“BSA”)
and anti-money laundering laws and regulations.


 


(e)           No
Company or Affiliate of a Company is an “enemy” or an “ally of the enemy”
within the meaning of Section 2 of the Trading with the Enemy Act of the
United States of America (50 U.S.C. App. §§ 1 et
seq.) (as amended, the “Trading with the Enemy Act”).  No Company or Affiliate of a Company is in
violation of (i) the Trading with the Enemy Act, (ii) any of the
foreign assets control regulations of the United States Treasury Department (31
CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or
executive order relating thereto, or (iii) the Patriot Act.  No Credit Party or Affiliate of a Credit
Party (A) is a blocked 


 


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person described in Section 1 of the Anti-Terrorism
Order, or (B) to the best of its knowledge, engages in any dealings or
transactions, or is otherwise associated, with any such blocked person.


 


(f)            None
of the Companies or their respective Affiliates is in violation of, and shall
not violate, any of the country or list based economic and trade sanctions
administered and enforced by the U.S. Department of the Treasury’s Office of
Foreign Assets Control (“OFAC”) that are described or referenced at
http://www.ustreas.gov/offices/enforcement/ofac/, or as otherwise published
from time to time.


 


(g)           None
of the Companies or their respective Affiliates (i) is a Sanctioned Person
or a Sanctioned Entity, as each term is hereinafter defined, (ii) has a
more than ten percent of its assets located in Sanctioned Entities, or
(iii) derives more than ten percent of its operating income from
investments in, or transactions with Sanctioned Persons or Sanctioned
Entities.  No proceeds of any Loan will
be used, nor have any been used to fund, any operations in, finance any investments
or activities in, or make any payments to, a Sanctioned Person or a Sanctioned
Entity. For purposes hereof, “Sanctioned Entity” means (A) a country or a
government of a country, (B) an agency of the government of a country, (C) an
organization directly or indirectly controlled by a country or its government,
or (D) a person or entity resident in, or determined to be resident in, a
country, that is subject to a country sanctions program administered and
enforced by OFAC; and “Sanctioned Person” means a person named on the list of
Specially Designated Nationals maintained by OFAC.


 


Section 6.4. 
Litigation and Administrative Proceedings.  Except as disclosed on Schedule 6.4
hereto, there are (a) no lawsuits, actions, investigations, examinations
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 or by any
Governmental Authority, arbitration board, or other tribunal, (b) no
orders, writs, injunctions, judgments, or decrees of any court or Governmental
Authority 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, in each case 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; (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 Lien of any kind.  Agent, for the
benefit of the Lenders, upon the filing of the U.C.C. Financing Statements and
taking such other actions necessary to perfect its Lien against Collateral of
the corresponding type as authorized hereunder will have a valid and
enforceable first consensual Lien on the Collateral.


 


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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, provincial 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 arising under, relating to or in
connection with any Environmental Law  or
Environmental Permit 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 remediated 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 6.8,
“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 US Borrower’s 10-K, 10-Q or other public filings with the SEC,
there exists no actual, pending, or, to each 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, which termination, cancellation or
limitation would have a Material Adverse Effect, 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.


 


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                Section
6.11.  Employee Benefits Plans.


 


                (a)           US Employee Benefit 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 ERISA 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), (i) 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); (ii) 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); (iii) the ERISA Plan and any
associated trust have received a favorable determination letter from the
Internal Revenue Service stating that the ERISA Plan qualifies 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; (iv) 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 (v) 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, “Employers’ Accounting for Pensions”) does not exceed the fair market value
of Pension Plan assets by an amount that would have a Material Adverse Effect.


 


                (b)           Foreign Pension Plan and Benefit
Plans.  As of the Closing Date, Schedule
6.11 hereto lists all Foreign Benefit Plans and Foreign Pension Plans
currently maintained or contributed to by US Borrower and any appropriate
Foreign Subsidiaries.  The Foreign
Pension Plans are duly registered under all applicable laws which require
registration.  US Borrower and any
appropriate Foreign Subsidiaries have complied with and performed all of its
obligations under and in respect of the Foreign Pension Plans and Foreign
Benefit Plans under the terms thereof, any funding agreements and all
applicable laws (including any fiduciary, funding, investment and
administration obligations) except to the extent as would not reasonably be
expected to have a Material Adverse Effect. 
All employer and employee payments, contributions or premiums to be
remitted, paid to or in respect of each Foreign Pension Plan or Foreign Benefit
Plan have been paid in a timely fashion in accordance with the terms thereof, any
funding agreement and all applicable laws except to the extent the failure to
do so would not


 


76

















 


reasonably be expected to have a Material Adverse
Effect.  There are no outstanding actions
or suits concerning the assets of the Foreign Pension Plans or the Foreign
Benefit Plans.  Each of the Foreign
Pension Plans is fully funded on an ongoing basis as required by all laws applicable
to such Foreign Pension Plans (using actuarial methods and assumptions as of
the date of the valuations last filed with the applicable Governmental
Authorities and that are consistent with generally accepted actuarial
principles).


 


                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.


 


                (a)           US Borrower.  US Borrower has received consideration that
is the reasonably equivalent value of the obligations and liabilities that US
Borrower has incurred to Agent and the Lenders. 
US Borrower is not insolvent as defined in any applicable state, federal
or relevant foreign statute, nor will US Borrower be rendered insolvent by the
execution and delivery of the Loan Documents to Agent and the Lenders.  US 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.  US Borrower does not intend to, nor does it
believe that it will, incur debts beyond its ability to pay such debts as they
mature.


 


                (b)           Foreign Borrowers.  Each Foreign Borrower has received
consideration that is the reasonable equivalent value of the obligations and liabilities
that such Foreign Borrower has incurred to Agent and the Lenders.  The property of each Foreign Borrower is (i)
sufficient, if disposed of at a fairly conducted sale under legal process, to
enable payment of all its obligations due and accruing due, and (ii) at a fair
valuation, greater than the total amount of liabilities, including contingent
liabilities, of such Foreign Borrower. 
No Foreign Borrower has ceased paying its current obligations in the
ordinary course of business as they generally become due.  No Foreign Borrower is for any reason (and
will not by reason of the execution and delivery of the Loan Documents) be
unable to meet its obligations as they generally become due.


 


                Section
6.14.  Financial Statements.  The Consolidated financial statements of US
Borrower for the fiscal year ended December 31, 2009, and the unaudited
Consolidated financial statements of US Borrower for the fiscal quarter ended
June 30, 2010, furnished to Agent and the Lenders, are true and complete in all
material respects, to the best knowledge of the Companies,  have been prepared in accordance with GAAP,
except for the absence of footnotes and subject to year-end adjustments
consistent with past practice, and fairly present the financial condition of
the Companies as of the dates of such financial statements and the results of
their operations for the periods 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.


 


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                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 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, as of the Closing Date, 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 Exchange Act) 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 material patents, patent applications, industrial designs, designs,
trademarks, service marks, copyrights and 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.  Deposit and Securities Accounts.  US Borrower has provided to Agent a list of
all banks, other financial institutions and Securities Intermediaries at which
US Borrower and any Domestic Guarantor of Payment maintain Deposit Accounts or
Securities Accounts as of the Closing Date, which list correctly identifies the
name, address and telephone number of each such financial institution or
Securities Intermediary, the name in which the account is held, a description
of the purpose of the account, and the complete account number therefor.


 


                Section
6.20.  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, to the best knowledge of such Company, any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements contained therein or in the Loan Documents not
misleading.  After due inquiry by US
Borrower, there is no known fact that any Company has not disclosed to Agent
and the Lenders that has or is more than likely to have a Material Adverse
Effect.


 


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                Section
6.21.  Investment Company; Other
Restrictions.  No Company is (a) an “investment
company” or a company “controlled” by an “investment company” within the
meaning of the Investment Company Act of 1940, as amended, or (b) subject to
any foreign, federal, state or local statute or regulation limiting its ability
to incur Indebtedness.


 


                Section
6.22.  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


 


                Any
of the following specified events shall constitute an Event of Default (each an
“Event of Default”) hereunder:


 


                Section
7.1.  Payments.  If (a) the interest on any Loan, any
commitment or other fee, or any other Obligation not listed in subpart (b)
hereof, shall not be paid in full 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, or 5.23 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
Loan Document 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
Administrative 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 Agent or the Lenders, or any
thereof, 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.


 


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                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.  Judgments.  There is entered against any Company:


 


                (a)           a final judgment or order for the
payment of money 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 such occurrence shall constitute an Event of Default
only if the aggregate of all such judgments for all such Companies shall exceed
Ten Million Dollars ($10,000,000) (less any amount that will be covered by the
proceeds of insurance and is not subject to dispute by the insurance provider);
or


 


                (b)           any one or more non-monetary final
judgments that are not covered by insurance, or, if covered by insurance, for
which the insurance company has not agreed to or acknowledged coverage, and
that, in either case, the Required Lenders reasonably determine have, or could
be expected to have, individually or in the aggregate, a Material Adverse
Effect and, in either case, (i) enforcement proceedings are commenced by the
prevailing party or any creditor upon such judgment or order, or (ii) there is
a period of three consecutive Business Days during which a stay of enforcement
of such judgment, by reason of a pending appeal or otherwise, is not in effect.


 


                Section
7.9.  Security.  If any Lien granted in this Agreement or any
other Loan Document in favor of Agent, for the benefit 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 with respect to any
material amount of Collateral and Borrowers have (or the appropriate Credit
Party has) 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) and Borrowers have (or the
appropriate Credit Party has) failed to promptly execute appropriate documents
to correct such matters.


 


                Section
7.10.  Validity of Loan Documents.  If (a) any material provision, in the
reasonable opinion of Agent, of any Loan Document shall at any time 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.


 


                Section
7.11.  Solvency.  If any Credit Party (other than any of the
Newgen Companies) 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


 


80

















 


creditors; (d) apply for or consent to the appointment
of an interim receiver, a receiver, a receiver and manager, an administrator,
sequestrator, monitor, a custodian, a trustee, an interim trustee, liquidator,
agent or other similar official of all or a substantial part of its assets or
of such Credit Party; (e) be adjudicated a debtor or insolvent or have entered
against it an order for relief under the Bankruptcy 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 under the Bankruptcy Code or
seek relief under any bankruptcy or insolvency or analogous law in any
jurisdiction outside of the United States, or file a proposal or notice of
intention to file such petition; (g) have an involuntary proceeding under the
Bankruptcy Code filed against it and the same shall not be controverted within
ten (10) days, or shall continue undismissed for a period of sixty (60) days
from commencement of such proceeding or case; (h) file a petition, an answer,
an application or a proposal seeking reorganization or an arrangement with
creditors or seeking to take advantage of any other law (whether federal,
provincial 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, provincial or state, or, if
applicable, other jurisdiction) relating to relief of debtors; (i) 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 or an application or a proposal seeking its reorganization
or appoints an interim receiver, a receiver and manager, an administrator,
custodian, trustee, interim trustee or liquidator of all or a substantial part
of its assets, or of such Credit Party; (j) have an administrative receiver
appointed over the whole or substantially the whole of its assets, or of such
Credit Party; (k) have assets, the value of which is less than its liabilities
(taking into account prospective and contingent liabilities, and rights of
contribution from other Persons); or (l) have a moratorium declared in respect
of any of its Indebtedness, or any analogous procedure or step is taken in any
jurisdiction.


 


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 or 7.10 hereof shall occur,
Agent may, with the consent of the Required Lenders, and shall, at the written
request of the Required Lenders, give written notice to Borrowers 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


 


81

















 


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 each Borrower.


 


                Section
8.2.  Automatic Defaults.  If any Event of Default referred to in
Section 7.11 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 each 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, Borrowers shall immediately
deposit with Agent, as security for the obligations of Borrowers and any
Guarantor of Payment to reimburse Agent and the Lenders for any then
outstanding Letters of Credit, cash equal to 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 US Borrower or
any Domestic Guarantor of Payment, as security for the obligations of the
appropriate Borrower and any Guarantor of Payment to reimburse Agent and the
Lenders for any then outstanding Letters of Credit.


 


                Section
8.4.  Offsets.


 


                (a)           If there shall occur or exist any
Event of Default referred to in Section 7.11 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 US
Borrower or a Domestic Guarantor of Payment to such Lender, or any Foreign Borrower
or Foreign Guarantor of Payment with respect to Obligations of a Foreign
Borrower (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 US Borrower or a Domestic
Guarantor of Payment, or any Foreign Borrower or Foreign Guarantor of Payment
with respect to such deposit balances and indebtedness of a Foreign Borrower or
Foreign Guarantor of Payment, all without notice to or demand upon any Borrower
or any other Person, all such notices and demands being hereby expressly waived
by each Borrower.


 


                (b)           Notwithstanding anything in this
Agreement to the contrary, if a Lender acts as a Securities Intermediary or a
depository institution for a Credit Party, and the applicable Securities
Accounts or Deposit Accounts of such Credit Party with such Lender (or an
affiliate of


 


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a Lender) are not subject to a Control Agreement, then
such Lender agrees that such accounts are subject to the Lien of Agent (to the
extent granted pursuant to the Security Documents) and it will not set off
against or appropriate toward the payment of, any Indebtedness owing to such
Lender that does not constitute Obligations (other than Customary Setoffs with
respect to such Deposit Accounts or Securities Accounts).


 


                Section
8.5.  Equalization Provisions.  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:


 


                (a)           if it at any time shall receive any
payment for or on behalf of any Borrower on any Indebtedness owing by any
Borrower (or through any Guarantor of Payment) pursuant to this Agreement
(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); or


 


                (b)           if any Lender (or affiliate of a
Lender) (i) maintains Deposit Accounts or Securities Account of any Borrower or
any Domestic Subsidiary, and (ii) exercises a right of offset or takes other
action against such Deposit Accounts or Securities Accounts;


 


then such Lender will apply all such payments (other
than Customary Setoffs with respect to the Deposit Accounts or Securities
Accounts referenced in subpart (b) above) first to any and all Obligations
owing by Borrowers to that Lender (including, without limitation, any
participation purchased or to be purchased pursuant to this Section 8.5 or any
other section of this Agreement), and to the extent not prohibited by law, to
the remainder of the Obligations (and the Secured Obligations in accordance
with Section 8.6 hereof).  Each Credit
Party agrees that any Lender so purchasing a participation from the other
Lenders or any thereof pursuant to this Section 8.5, or exercising rights under
this provision, may exercise all of its rights of payment (including the right
of set-off) with respect to such participation or otherwise as fully as if such
Lender were a direct creditor of such Credit Party 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.


 


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                Section
8.7.  Application of Proceeds.


 


                (a)         Payments
Prior to Exercise of Remedies.  Prior
to the exercise by Agent, on behalf of the Lenders, of remedies under this
Agreement or the other Loan Documents, all monies received by Agent in
connection with the Revolving Credit Commitment shall be applied, unless
otherwise required by the terms of the other Loan Documents or by applicable
law, to the Loans and Letters of Credit, as appropriate; provided that Agent
shall have the right at all times to apply any payment received from US
Borrower first to the payment of all obligations (to the extent not paid by
Borrowers) incurred by Agent pursuant to Section 11.5 hereof and to the payment
of Related Expenses.


 


                (b)         Payments
Subsequent to Exercise of Remedies. 
After the exercise by Agent or the Required Lenders of remedies under
this Agreement or the other Loan Documents, all monies received by Agent shall
be applied, unless otherwise required by the terms of the other Loan Documents
or by applicable law, as follows:


 


                                                (i)                                     with respect to:


 


                (A)          payments from assets of Companies
organized in the United States (or a state thereof), (1) first, to the
Obligations (and Secured Obligations if such payments are from proceeds of
Collateral) of US Borrower, and (2) second, to the Obligations (and Secured
Obligations if such payments are from proceeds of Collateral) of any other
Borrowers, in each case applied in accordance with the Waterfall;


 


                (B)           payments from assets of Companies
that are not organized in the United States (or a state thereof), to the
Obligations (and Secured Obligations if such payments are from proceeds of
Collateral) of the Foreign Borrowers, applied in accordance with the Waterfall;
and


 


                (C)           any other payments, in accordance
with the Waterfall; and


 


                                                (ii)                                  in accordance with the following priority (the “Waterfall”):


 


                (A)          first, to the extent incurred in
connection with obligations payable by a specific Borrower, to the payment of
all obligations (to the extent not paid by Borrowers) incurred by Agent
pursuant to Section 11.5 hereof and to the payment of Related Expenses;


 


                (B)           second, to the extent incurred in
connection with the obligations payable by a specific Borrower, to the payment
pro rata of (1) interest then accrued and payable on the outstanding Loans, (2)
any fees then accrued and payable to Agent, and (3) any fees then accrued and
payable to the Fronting Lender or the holders of the Letter of Credit
Commitment in respect of the Letter of Credit Exposure;


 


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(C)          third, for payment of (1) principal outstanding on the
Loans and the Letter of Credit Exposure, on a pro rata basis to the Lenders,
based upon each such Lender’s Commitment Percentage, provided that the amounts
payable in respect of the Letter of Credit Exposure shall be held and applied
by Agent as security for the reimbursement obligations in respect thereof, and,
if any Letter of Credit shall expire without being drawn, then the amount with
respect to such Letter of Credit shall be distributed to the Lenders, on a pro
rata basis in accordance with this subsection (C), (2) the Indebtedness
under any Hedge Agreement with a Lender (or an entity that is an affiliate of a
then existing Lender), such amount to be based upon the net termination
obligation of Borrowers under such Hedge Agreement, and (3) the Bank
Product Obligations owing to a Lender (or an entity that is an affiliate of a
then existing Lender) under Bank Product Agreements; with such payment to be
pro rata among (1), (2) and (3) of this subsection (C); and


 


(D)          finally, any remaining surplus after all of the Secured
Obligations have been paid in full, to Administrative Borrower for distribution
to the appropriate Borrowers, or to whomsoever shall be lawfully entitled
thereto.


 


ARTICLE IX.  THE AGENT


 


The Lenders authorize KeyBank and KeyBank 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 hereunder as are
delegated to Agent by the terms hereof, together with such powers as are reasonably
incidental thereto, including, without limitation, to execute Additional
Foreign Borrower Assumption Agreements on behalf of the Lenders, and to execute
various Security Documents pertaining to the Foreign Borrower and Foreign
Guarantors of Payment on behalf of the Lenders. 
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 of
any of the terms, covenants or conditions hereof or thereof on the part of
Borrowers or any other Company, or the financial condition of Borrowers 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.  Notwithstanding any provision to the contrary
contained in this Agreement or in any other Loan Document, Agent shall not have
any duty or responsibility except those expressly set forth herein, nor shall Agent
have or be deemed to have any fiduciary 


 


85

















 


relationship with any Lender or participant, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against Agent.  Without
limiting the generality of the foregoing sentence, the use of the term “agent”
herein and in other Loan Documents with reference to Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. 
Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between independent
contracting parties.


 


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 Agent, signed by such
payee and in form satisfactory to Agent.


 


Section 9.3. 
Consultation With Counsel. 
Agent may consult with legal counsel selected by Agent and shall not be
liable for any action taken or suffered in good faith by Agent 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. 
KeyBank and its affiliates may make loans to, issue letters of credit
for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with the Companies and Affiliates as though
KeyBank were not Agent hereunder and without notice to or consent of any
Lender.  Each Lender acknowledges that,
pursuant to such activities, KeyBank or its affiliates may receive information
regarding any Company or any Affiliate (including information that may be
subject to confidentiality obligations in favor of such Company or such
Affiliate) and acknowledge that Agent shall be under no obligation to provide
such information to other Lenders.  With
respect to Loans and Letters of Credit (if any),  KeyBank and its affiliates shall have the
same rights and powers under this Agreement as any other Lender and may
exercise the same as though KeyBank were not Agent, and the terms “Lender” and “Lenders”
include KeyBank and its affiliates, to the extent applicable, in their
individual capacities.


 


Section 9.6. 
Knowledge or Notice of Default. 
Agent shall not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default unless Agent has received written notice
from a Lender or Administrative Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a “notice
of default”. In the event that Agent receives such a notice, Agent shall give
notice thereof to the Lenders. Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the
Required Lenders (or, if so specified by this Agreement, all Lenders); provided
that, unless and until Agent shall have received such directions, Agent may
(but shall 


 


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not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall deem advisable, in its discretion, for the protection of the interests of
the Lenders.


 


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 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.  Without limiting the
foregoing, no Lender shall have any right of action whatsoever against Agent as
a result of Agent’s acting or refraining from acting hereunder in accordance
with the instructions of the Required Lenders.


 


Section 9.8. 
Release of Collateral or Guarantor of Payment.  In the event of a merger, sale of assets or
other transaction permitted pursuant to Section 5.12 hereof or otherwise
permitted pursuant to this Agreement, and so long as there is no Default or
Event of Default existing, Agent, at the request and expense of US Borrower, is
hereby authorized by the Lenders to (a) release such Collateral from this
Agreement or any other Loan Document, (b) release a Guarantor of Payment
or Foreign Borrower in connection with such permitted transfer or event, and (c) duly
assign, transfer and deliver to the affected Person (without recourse and
without any representation or warranty) such Collateral as is then (or has
been) so transferred or released and as may be in possession of Agent and has
not theretofore been released pursuant to this Agreement.


 


Section 9.9. 
Delegation of Duties. 
Agent may execute any of its duties under this Agreement or any other
Loan Document by or through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel and other consultants or experts concerning all
matters pertaining to such duties.  Agent
shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct, as determined by a court of competent jurisdiction.


 


Section 9.10. 
Indemnification of Agent. 
The Lenders agree to indemnify Agent (to the extent not reimbursed by
Borrowers) 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 and
expenses) 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 and expenses) or disbursements resulting
from Agent’s gross negligence or willful misconduct as determined by a court of
competent jurisdiction, or from any action taken 


 


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or omitted by Agent in any capacity other than as
agent under this Agreement or any other Loan Document.  No action taken in accordance with the
directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section 9.10.  The undertaking in this Section 9.10
shall survive repayment of the Loans, cancellation of the Notes, if any,
expiration or termination of the Letters of Credit, termination of the
Commitment, any foreclosure under, or modification, release or discharge of,
any or all of the Loan Documents, termination of this Agreement and the
resignation or replacement of the agent.


 


Section 9.11. 
Successor Agent.  Agent may
resign as agent hereunder by giving not fewer than thirty (30) days prior
written notice to Administrative 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 Administrative Borrower
so long as an Event of Default does not exist 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.  If no successor agent
has accepted appointment as Agent by the date that is thirty (30) days
following a retiring Agent’s notice of resignation, the retiring Agent’s
resignation shall nevertheless thereupon become effective, and the Lenders
shall assume and perform all of the duties of Agent hereunder until such time,
if any, as the Required Lenders appoint a successor agent as provided for
above.  Upon its appointment, such
successor agent shall succeed to the rights, powers and duties as agent, and
the term “Agent” means such successor effective upon its appointment, and the
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.  After any
retiring Agent’s resignation as Agent, the provisions of this Article IX
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement and the other Loan Documents.


 


Section 9.12. 
Fronting Lender.  The Fronting
Lender shall act on behalf of the Lenders with respect to any Letters of Credit
issued by the Fronting Lender and the documents associated therewith.  The Fronting Lender shall have all of the
benefits and immunities (a) provided to Agent in this Article IX with
respect to any acts taken or omissions suffered by the Fronting Lender in
connection with the Letters of Credit and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if the term “Agent”,
as used in this Article IX, included the Fronting Lender with respect to
such acts or omissions, and (b) as additionally provided in this Agreement
with respect to the Fronting Lender.


 


Section 9.13. 
Swing Line Lender.  The
Swing Line Lender shall act on behalf of the Lenders with respect to any Swing
Loans.  The Swing Line Lender shall have
all of the benefits and immunities (a) provided to Agent in this Article IX
with respect to any acts taken or omissions suffered by the Swing Line Lender
in connection with the Swing Loans as fully as if the term “Agent”, as used in
this Article IX, included the Swing Line Lender with respect to such acts
or omissions, and (b) as additionally provided in this Agreement with
respect to the Swing Line Lender.


 


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Section 9.14. 
Agent May File Proofs of Claim.  In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Credit Party, (a) Agent
(irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether Agent shall have made any demand on any Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise, to (i) file
and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders and Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders
and Agent and their respective agents and counsel and all other amounts due the
Lenders and Agent) allowed in such judicial proceedings, and (ii) collect
and receive any monies or other property payable or deliverable on any such
claims and to distribute the same; and (b) any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Lender to make such payments
to Agent and, in the event that Agent shall consent to the making of such
payments directly to the Lenders, to pay to Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of Agent and its
agents and counsel, and any other amounts due Agent.  Nothing contained herein shall be deemed to
authorize Agent to authorize or consent to or accept or adopt on behalf of any
Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize Agent to
vote in respect of the claim of any Lender in any such proceeding.


 


Section 9.15. 
No Reliance on Agent’s Customer Identification Program. Each
Lender acknowledges and agrees that neither such Lender, nor any of its
affiliates, participants or assignees, may rely on Agent to carry out such
Lender’s or its affiliate’s, participant’s or assignee’s customer
identification program, or other obligations required or imposed under or
pursuant to the Patriot Act or the regulations thereunder, including the
regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the “CIP
Regulations”), or any other anti-terrorism law, including any programs
involving any of the following items relating to or in connection with
Borrowers, their respective Affiliates or agents, the Loan Documents or the
transactions hereunder: (a) any identity verification procedures, (b) any
record keeping, (c) any comparisons with government lists, (d) any
customer notices or (e) any other procedures required under the CIP
Regulations or such other laws.


 


Section 9.16. 
Other Agents.  Agent shall
have the continuing right from time to time to designate one or more Lenders
(or its or their affiliates) as “syndication agent”, “co-syndication agent”, “documentation
agent”, “co-documentation agent”, “book runner”, “lead arranger”, “arrangers”
or other designations for purposes hereof, but (a) any such designation
shall have no substantive effect, and (b) any such Lender and its
affiliates shall have no additional powers, duties, responsibilities or
liabilities as a result thereof.


 


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ARTICLE X. 
GUARANTY


 


Section 10.1. 
The Guaranty.  US Borrower
hereby guarantees to Agent, for the benefit of the Lenders, as a primary
obligor and not as a surety, the prompt payment of the Obligations owing by
each other Borrower in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) strictly in accordance with the terms thereof.  US Borrower hereby further agrees that, if any
of the Obligations are not paid in full when due (whether at stated maturity,
as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise), US Borrower will promptly pay the same,
without any demand or notice whatsoever, and that, in the case of any extension
of time of payment or renewal of any of the Obligations, the same will be
promptly paid in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal.


 


Section 10.2. 
Obligations Unconditional. 
The obligations of US Borrower under Section 10.1 hereof are
absolute and unconditional, irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Loan Documents, or any other
agreement or instrument referred to therein, or any substitution, release,
impairment or exchange of any other guarantee of or security for any of the
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 10.2 that the obligations of US
Borrower hereunder, as a Guarantor, shall be absolute and unconditional under
any and all circumstances.  US Borrower
agrees that it shall have no right of subrogation, indemnity, reimbursement or
contribution against any other Borrower or any other Guarantor of Payment for
amounts paid under this Article X until such time as the Secured
Obligations have been irrevocably paid in full. 
Without limiting the generality of the foregoing, it is agreed that, to
the fullest extent permitted by law, the occurrence of any one or more of the
following shall not alter or impair the liability of US Borrower as a Guarantor
hereunder, which shall remain absolute and unconditional as described above:


 


(a)           at
any time or from time to time, without notice to any Guarantor, the time for
any performance of or compliance with any of the Obligations shall be extended,
or such performance or compliance shall be waived;


 


(b)           any
of the acts mentioned in any of the provisions of any of the Loan Documents or
any other agreement or instrument referred to in the Loan Documents shall be
done or omitted;


 


(c)           the
maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any
right under any of the Loan Documents, or any other agreement or instrument
referred to in the Loan Documents shall be waived or any other guarantee of any
of the Obligations or any security therefor shall be released, impaired or
exchanged in whole or in part or otherwise dealt with;


 


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(d)           any
Lien granted to, or in favor of, Agent, for the benefit of the Lenders, as
security for any of the Secured Obligations shall fail to attach or be
perfected; or


 


(e)           any
of the Obligations shall be determined to be void or voidable (including,
without limitation, for the benefit of any creditor of any Guarantor) or shall
be subordinated to the claims of any Person (including, without limitation, any
creditor of any Guarantor).


 


With respect to its obligations hereunder, US Borrower
hereby expressly waives diligence, presentment, demand of payment, protest and
all notices whatsoever, and any requirement that Agent or any Lender exhaust
any right, power or remedy or proceed against any Person under any of the Loan
Documents or any other agreement or instrument referred to in the Loan
Documents, or against any other Person under any other guarantee of, or
security for, any of the Obligations.


 


Section 10.3. 
Reinstatement.  The
obligations of US Borrower under this Article X shall be automatically
reinstated if and to the extent that, for any reason, any payment by or on
behalf of any Person in respect of the Obligations is rescinded or must be
otherwise restored by any holder of any of the Obligations, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and US
Borrower agrees that it will indemnify Agent and each Lender on demand for all
reasonable costs and expenses (including, without limitation, reasonable fees and
expenses of counsel) incurred by Agent or such Lender in connection with such
rescission or restoration, including any such reasonable costs and expenses
incurred in defending against any claim alleging that such payment constituted
a preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.


 


Section 10.4. 
Certain Additional Waivers. 
US Borrower agrees that US Borrower shall have no right of recourse to
security for the Obligations, except through the exercise of rights of
subrogation pursuant to Section 10.2 hereof and through the exercise of
rights of contribution pursuant to Section 11.6 hereof.


 


Section 10.5. 
Remedies.  US Borrower
agrees that, to the fullest extent permitted by law, as between US Borrower, on
the one hand, and Agent, on behalf of the Lenders, on the other hand, the
Obligations may be declared to be forthwith due and payable as provided in Section 8.1
or 8.2 hereof (and shall be deemed to have become automatically due and payable
in the circumstances provided in such Sections 8.1 and 8.2) for purposes of Section 10.1
hereof, notwithstanding any stay, injunction or other prohibition preventing
such declaration (or preventing the Obligations from becoming automatically due
and payable) as against any other Person and that, in the event of such
declaration (or the Obligations being deemed to have become automatically due
and payable), the Obligations (whether or not due and payable by any other
Person) shall forthwith become due and payable by US Borrower for purposes of Section 10.1
hereof.


 


Section 10.6. 
Guarantee of Payment; Continuing Guarantee.  The guarantee in this Article X is a
guaranty of payment and not of collection, is a continuing guarantee, and shall
apply to all Obligations owing by each other Borrower, whenever arising.


 


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Section 10.7.  Payments.  All payments by US Borrower under this
Article X shall be made in Dollars, and free and clear of any Taxes.


 


ARTICLE XI. 
MISCELLANEOUS


 


Section 11.1.  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 11.2.  No
Waiver; Cumulative Remedies.  No
omission or course of dealing on the part of Agent, any Lender or the holder of
any Note (or, if there is no Note, the holder of the interest as reflected on
the books and records of Agent) 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 under any of the
Loan Documents or by operation of law, by contract or otherwise.


 


Section 11.3.  Amendments,
Waivers and Consents.


 


(a)                                  General Rule.  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.


 


(b)                                 Exceptions to the General Rule.  Notwithstanding the provisions of subsection
(a) of this Section 11.3:


 


(i)                                     Unanimous
Consent Requirements.  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, provided that no Lender’s Commitment
shall be increased without such Lender’s consent), (B) the extension of
maturity of the Loans, the payment date of interest or scheduled principal
hereunder, or the payment date of commitment fees payable hereunder, (C) any
reduction in the stated rate of interest on the 


 


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Loans (provided that the institution of the Default
Rate or post default interest and a subsequent removal of the Default Rate or
post default interest shall not constitute a decrease in interest rate pursuant
to this Section 11.3), or in any amount of interest or scheduled principal due
on any Loan, or any reduction in the stated rate of commitment fees payable
hereunder or any change in the manner of pro rata application of any payments
made by Borrowers 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 US Borrower or any Domestic Guarantor of Payment
or any material amount of Collateral securing the Secured Obligations, except
in connection with a transaction specifically permitted hereunder, or (F) any
amendment to this Section 11.3 or Section 8.5 or 8.7 hereof.


 


(ii)                                  Provisions
Relating to Special Rights and Duties.  No provision of this Agreement affecting
Agent in its capacity as such shall be amended, modified or waived without the
consent of Agent.  No provision of this
Agreement relating to the rights or duties of the Fronting Lender in its
capacity as such shall be amended, modified or waived without the consent of
the Fronting Lender. No provision of this Agreement relating to the rights or
duties of the Swing Line Lender in its capacity as such shall be amended,
modified or waived without the consent of the Swing Line Lender.


 


(c)                                  Replacement of Non-Consenting Lender.  If, in connection with any proposed
amendment, waiver or consent hereunder, (i) the consent of all Lenders is
required, but only the consent of Required Lenders is obtained, or (ii) the
consent of Required Lenders is required, but the consent of the Required
Lenders is not obtained (any Lender withholding consent as described in
subparts (i) and (ii) hereof being referred to as a “Non-Consenting Lender”),
then, so long as Agent is not the Non-Consenting Lender, Agent may, at the sole
expense of Borrowers, upon notice to such Non-Consenting Lender and
Administrative Borrower, require such Non-Consenting Lender to assign and
delegate, without recourse (in accordance with the restrictions contained in
Section 11.10 hereof) all of its interests, rights and obligations under this
Agreement to an Eligible Transferee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that such Non-Consenting Lender shall have received payment of an amount equal
to the outstanding principal of its Loans, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder, from such Eligible
Transferee (to the extent of such outstanding principal and accrued interest
and fees) or Borrowers (in the case of all other amounts, including any
breakage compensation under Article III hereof).


 


(d)                                 Generally.  Notice of amendments, waivers 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 if there is no Note, the holder of the interest as reflected on the
books and records of Agent) (or interest in any Loan or Letter of Credit) shall
be bound by any amendment, waiver or consent obtained as authorized by this
Section 11.3, regardless of its failure to agree thereto.


 


Section 11.4.  Notices.  All notices, requests, demands and other
communications provided for hereunder shall be in writing and, if to a
Borrower, mailed or delivered to it, addressed to it at the address specified
on the signature pages of this Agreement (together with a 


 


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courtesy copy thereof to US Borrower’s general
counsel, mailed or delivered to TeleTech Holdings, Inc., 9197 South Peoria
Street, Englewood, Colorado 80112-5833, Attention: General Counsel) or at such
other address as shall be designated by US Borrower in a written notice to each
of the other parties), 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 deemed to be given or
made when hand delivered, delivered by overnight courier or five Business Days
after being deposited in the mails with postage prepaid by registered or
certified mail, addressed as aforesaid, or sent by facsimile with telephonic
confirmation of receipt (if received during a Business Day, otherwise the
following Business Day).  All notices
hereunder shall not be effective until received.  For purposes of Article II hereof, Agent
shall be entitled to rely on telephonic instructions from any person that Agent
in good faith believes is an Authorized Officer and US Borrower shall hold
Agent and each Lender harmless from any loss, cost or expense resulting from
any such reliance.


 


Section 11.5.  Costs,
Expenses and Documentary Taxes.  US
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, and 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.  US Borrower, and any appropriate Foreign
Borrower, also agrees to pay on demand all reasonable costs and expenses
(including Related Expenses) of Agent and the Lenders, including reasonable
attorneys’ fees and expenses, in connection with the restructuring or
enforcement of the Obligations, this Agreement or any Related Writing.  In addition, US Borrower and any appropriate
Foreign Borrower shall pay any and all stamp, transfer, documentary and other taxes,
assessments, charges 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 agree 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,
other than those liabilities resulting from the gross negligence or willful
misconduct of Agent, or, with respect to amounts owing to a Lender, such
Lender, in each case as determined by a court of competent jurisdiction.  All obligations provided for in this Section
11.5 shall survive any termination of this Agreement.


 


Section 11.6.  Indemnification.  US Borrower, and each Foreign Borrower to the
extent relating to the Loans and other credit extensions to such Foreign
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 


 


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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 11.6 for its own
gross negligence or willful misconduct, as determined by a court of competent
jurisdiction.  All obligations provided
for in this Section 11.6 shall survive any termination of this Agreement.


 


Section 11.7.  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 Borrowers and the Lenders with respect to the Loan
Documents and the Related Writings is and shall be solely that of debtors 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 11.8.  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 11.9.  Binding
Effect; Borrowers’ Assignment.  This
Agreement shall become effective when it shall have been executed by each
Borrower, Agent and each Lender and thereafter shall be binding upon and inure
to the benefit of each Borrower, Agent and each of the Lenders and their
respective successors and permitted assigns, except that no Borrower shall 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 11.10.  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, and
(iv) such Lender’s interest in any Letter of Credit or Swing Loan, and any
participation purchased pursuant to Section 2.2(b) or 2.2(c) or Section 8.5
hereof.


 


(b)                                 Prior Consent.  No assignment may be consummated pursuant to
this Section 11.10 without the prior written consent of Administrative Borrower
and Agent (other than an assignment by any Lender 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, or to another Lender), which consent of Administrative



 


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Borrower and Agent shall not be unreasonably withheld;
provided that the consent of Administrative Borrower shall not be required if,
at 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 Administrative
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 Borrowers) that under applicable law and treaties no
taxes will be required to be withheld by Agent, Borrowers 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 Borrowers)
either U.S. Internal Revenue Service Form W-8ECI, Form W-8IMY or U.S. Internal
Revenue Service Form W-8BEN, as applicable (wherein such assignee claims
entitlement to complete exemption from U.S. federal withholding tax on all
payments hereunder), and (iii) to agree (for the benefit of the assignor, Agent
and Borrowers) to provide to the assignor Lender (and, in the case of any
assignee registered in the Register, to Agent and Borrowers) a new Form W-8ECI
or Form W-8BEN, 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 Borrowers.  Upon satisfaction of all applicable
requirements specified in subsections (a) through (f) above, Borrowers
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 Borrowers in connection with the Assignment
Agreement, and (ii) to the assignee, if requested, and the assignor, if
applicable, an appropriate Note or 


 


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Notes.  After
delivery of the new Note or Notes, the assignor’s Note or Notes, if any, being
replaced shall be returned to Administrative Borrower marked “replaced”.


 


(h)                                 Effect of Assignment.  Upon satisfaction of all applicable
requirements set forth in subsections (a) through (g) above, and any other
condition contained in this Section 11.10, (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 11.4 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 Borrowers, 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 Borrowers or any Lender at any reasonable time and from time to
time upon reasonable prior notice.


 


Section 11.11.  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, if any, 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 


 


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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:


 


(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.


 


Borrowers agree that any Lender that sells
participations pursuant to this Section 11.11 shall still be entitled to the
benefits of Article III hereof, notwithstanding any such transfer; provided
that the obligations of Borrowers shall not increase as a result of such
transfer and Borrowers shall have no obligation to any Participant.


 


Section 11.12.  Replacement
of Affected Lenders.  Each Lender
agrees that, during the time in which any Lender is an Affected Lender, Agent
shall have the right (and Agent shall, if requested by Administrative
Borrower), at the sole expense of Borrowers, upon notice to such Affected
Lender and Administrative Borrower, to require that such Affected Lender assign
and delegate, without recourse (in accordance with the restrictions contained
in Section 11.12 hereof), all of its interests, rights and obligations under
this Agreement to an Eligible Transferee, approved by Administrative Borrower
(unless an Event of Default shall exist) and Agent, that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that such Affected Lender shall have received payment of
an amount equal to the outstanding principal of its Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder
(recognizing that any Affected Lender may have given up its rights under this
Agreement to receive payment of fees and other amounts pursuant to Section
2.6(f) and (g) hereof), from such Eligible Transferee (to the extent of such
outstanding principal and accrued interest and fees) or Administrative Borrower
(in the case of all other amounts, including any breakage compensation under
Article III hereof).


 


Section 11.13.  Patriot
Act Notice.  Each Lender and Agent
(for itself and not on behalf of any other party) hereby notifies the Credit
Parties that, pursuant to the requirements of the Patriot Act, such Lender and
Agent are required to obtain, verify and record information that identifies the
Credit Parties, which information includes the name and address of each of the
Credit Parties and other information that will allow such Lender or Agent, as
applicable, to identify the Credit Parties in accordance with the Patriot
Act.  Each Borrower shall provide, to the
extent commercially reasonable, such information and take such actions as are reasonably
requested by Agent or a Lender in order to assist Agent or such Lender in
maintaining compliance with the Patriot Act.


 


Section 11.14.  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 


 


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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 11.15.  Investment
Purpose.  Each of the Lenders
represents and warrants to Borrowers that it is entering into this Agreement
with the present intention of acquiring any Note issued pursuant hereto (or, if
there is no Note, the interest as reflected on the books and records of Agent)
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 11.16.  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 11.17.  Limitations
on Liability of the Fronting Lender. 
Borrowers assume all risks of the acts or omissions of any beneficiary
or transferee of any Letter of Credit with respect to its use of such Letters
of Credit.  Neither the Fronting Lender
nor any of its officers or directors shall be liable or responsible for (a) the
use that may be made of any Letter of Credit or any acts or omissions of any
beneficiary or transferee in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by the Fronting Lender against presentation
of documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to such
Letter of Credit; or (d) any other circumstances whatsoever in making or
failing to make payment under any Letter of Credit, except that the account
party on such Letter of Credit shall have a claim against the Fronting Lender,
and the Fronting Lender shall be liable to such account party, to the extent of
any direct, but not consequential, damages suffered by such account party that
such account party proves were caused by (i) the Fronting Lender’s willful
misconduct or gross negligence (as determined by a court of competent
jurisdiction) in determining whether documents presented under a Letter of
Credit comply with the terms of such Letter of Credit, or (ii) the Fronting
Lender’s willful failure to make lawful payment under any Letter of Credit
after the presentation to it of documentation strictly complying with the terms
and conditions of such Letter of Credit. 
In furtherance and not in limitation of the foregoing, the Fronting Lender
may accept documents that appear on their face to be in order, without
responsibility for further investigation.


 


Section 11.18.  General
Limitation of Liability.  No claim
may be made by any Credit Party, any Lender, Agent, the Fronting Lender or any
other Person against Agent, the Fronting Lender, or any other Lender or the
affiliates, directors, officers, employees, attorneys or agents of any of them
for any damages other than actual compensatory damages in respect of any claim
for breach of contract or any other theory of liability arising out of or
related to the transactions 


 


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contemplated by this Agreement or any of the other
Loan Documents, or any act, omission or event occurring in connection
therewith; and Borrowers, each Lender, Agent and the Fronting Lender hereby, to
the fullest extent permitted under applicable law, waive, release and agree not
to sue or counterclaim upon any such claim for any special, consequential or
punitive damages, whether or not accrued and whether or not known or suspected
to exist in their favor.


 


Section 11.19.  No
Duty.  All attorneys, accountants,
appraisers, consultants and other professional persons (including the firms or
other entities on behalf of which any such Person may act) retained by Agent or
any Lender with respect to the transactions contemplated by the Loan Documents
shall have the right to act exclusively in the interest of Agent or such
Lender, as the case may be, and shall have no duty of disclosure, duty of
loyalty, duty of care, or other duty or obligation of any type or nature
whatsoever to Borrowers, any other Companies, or to any other Person, with
respect to any matters within the scope of such representation or related to
their activities in connection with such representation.  Each Borrower agrees, on behalf of itself and
its Subsidiaries, not to assert any claim or counterclaim against any such
persons with regard to such matters, all such claims and counterclaims, now
existing or hereafter arising, whether known or unknown, foreseen or
unforeseeable, being hereby waived, released and forever discharged.


 


Section 11.20.  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 11.21.  Judgment
Currency.


 


(a)                                  This in an international transaction in which the obligations of the
Credit Parties under this Agreement to make payment to or for account of Agent
or the Lenders in a specified currency (“Original Currency”) shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any other currency (“Judgment Currency”) except
to the extent that such tender or recovery results in the effective receipt by
Agent or such Lender of the full amount in Original Currency payable to Agent
or such Lender under this Agreement.


 


(b)                                 If Agent, on behalf of the Lenders, or any other holder of the
Obligations (the “Applicable Creditor”), obtains a judgment or judgments
against any Credit Party in respect of any sum adjudged to be due to Agent or
the Lenders hereunder or under the Notes (the “Judgment Amount”) in a Judgment
Currency other than the Original Currency, the obligations of such Credit Party
in connection with such judgment shall be discharged only to the extent that
(i) on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, such Applicable Creditor, in
accordance with the normal banking procedures in the relevant jurisdiction, can
purchase the Original Currency with the Judgment Currency, and (ii) if the
amount of Original Currency so purchased is less than the amount of Original
Currency that could have been purchased with the Judgment Amount on the date or
dates the Judgment Currency was originally due and owing to Agent or the
Lenders 


 


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hereunder (the “Loss”), such Credit Party or US
Borrower, as a separate obligation and notwithstanding any such judgment,
indemnifies Agent or such Lender, as the case may be, against such Loss.  US Borrower hereby agrees to such
indemnification.  For purposes of
determining the equivalent in one currency of another currency as provided in
this Section 11.21, such amount shall include any premium and costs payable in
connection with the conversion into or from any currency.  The obligations of the Credit Parties
contained in this Section 11.21 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.


 


Section 11.22.  Governing
Law; Submission to Jurisdiction.


 


(a)                                  Governing Law.  This Agreement, each of the Notes and any
Related Writing (except as otherwise set forth in any Loan Document executed by
a Foreign Subsidiary) shall be governed by and construed in accordance with the
laws of the State of Ohio and the respective rights and obligations of
Borrowers, Agent, and the Lenders shall be governed by Ohio law, without regard
to principles of conflicts of laws.


 


(b)                                 Submission to Jurisdiction.  Each Borrower hereby irrevocably submits to
the non-exclusive jurisdiction of any Ohio state or 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 (except as otherwise set
forth in any Loan Document executed by a Foreign Subsidiary), and each 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.  Each 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.  Each Borrower agrees that a final,
non-appealable 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]


 


101
















 


JURY TRIAL WAIVER.  TO THE EXTENT PERMITTED BY LAW, EACH
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
BORROWERS, 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.


 


 


	
  Address:

  	
  9197 South Peoria Street

  	
   

  	
  TELETECH HOLDINGS, INC.

  
	
   

  	
  Englewood, Colorado 80112-5833

  	
   

  	
   

  
	
   

  	
  Attn: Vice President - Treasurer

  	
   

  	
  By:

  	
  /s/
  John R. Troka, Jr.

  
	
   

  	
   

  	
   

  	
   

  	
  John R. Troka, Jr.

  
	
   

  	
   

  	
   

  	
   

  	
  Interim Chief Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
  127 Public Square

  	
   

  	
  KEYBANK NATIONAL ASSOCIATION,

  
	
   

  	
  Cleveland, Ohio 44114-1306

  	
   

  	
  as Agent and as a Lender

  
	
   

  	
  Attn: Institutional Banking

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Jennifer O’Brien

  
	
   

  	
   

  	
   

  	
   

  	
  Jennifer O’Brien

  
	
   

  	
   

  	
   

  	
   

  	
  Senior Vice President

  



 


Signature Page


 


1

















 


	
  Address:

  	
  1700 Lincoln Street, 8th Floor

  	
   

  	
  WELLS FARGO BANK, NATIONAL ASSOCIATION

  
	
   

  	
  MAC: C7300-081

  	
   

  	
  as Joint Lead Arranger,
  Co-Syndication Agent and as a Lender

  
	
   

  	
  Denver, Colorado 80203

  	
   

  	
   

  
	
   

  	
  Attn: Regional Comml Bkg Office

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Catherine M. Jones

  
	
   

  	
   

  	
   

  	
   

  	
  Catherine M. Jones

  
	
   

  	
   

  	
   

  	
   

  	
  Senior Vice President

  



 


Signature Page


 


2

















 


	
  Address:

  	
  135 S. LaSalle St.

  	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
  IL4-135-11-11

  	
   

  	
  as Co-Syndication Agent
  and as a Lender

  
	
   

  	
  Chicago, IL 60603

  	
   

  	
   

  
	
   

  	
  Attn: Jonathan M. Phillips

  	
   

  	
  By:

  	
  /s/
  Jonathan M. Phillips

  
	
   

  	
   

  	
   

  	
   

  	
  Jonathan M. Phillips

  
	
   

  	
   

  	
   

  	
   

  	
  Senior Vice President

  



 


Signature Page


 


3

















 


 


	
  Address:

  	
  999 18th Street, Suite 2800

  	
   

  	
  Compass Bank

  
	
   

  	
  Denver, CO 80202

  	
   

  	
  as Co-Documentation Agent
  and as a Lender

  
	
   

  	
  Attn: Mark Sunderland

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Mark Sunderland

  
	
   

  	
   

  	
   

  	
   

  	
  Mark Sunderland

  
	
   

  	
   

  	
   

  	
   

  	
  Senior Vice President

  



 


Signature Page


 


4

















 


	
  Address:

  	
  370 17th Street

  	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
  Floor 32

  	
   

  	
  as Co-Documentation Agent
  and as a Lender

  
	
   

  	
  Denver, CO 80202

  	
   

  	
   

  
	
   

  	
  Attn: David Ericson

  	
   

  	
  By:

  	
  /s/
  David L. Ericson

  
	
   

  	
   

  	
   

  	
   

  	
  David L. Ericson

  
	
   

  	
   

  	
   

  	
   

  	
  Senior Vice President

  



 


Signature Page


 


5

















 


	
  Address:

  	
  660 A. Figuero St., Suite 800

  	
   

  	
  HSBC BANK USA, NATIONAL ASSOCIATION

  
	
   

  	
  Los Angeles, CA 90017

  	
   

  	
   

  
	
   

  	
  Attn: Steven T. Brennan

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Steven T. Brennan

  
	
   

  	
   

  	
   

  	
   

  	
  Steven T. Brennan

  
	
   

  	
   

  	
   

  	
   

  	
  Senior Vice President

  



 


Signature Page


 


6

















 


	
  Address:

  	
  388 Greenwich Street

  	
   

  	
  CITIBANK, N.A.

  
	
   

  	
  27th Floor

  	
   

  	
   

  
	
   

  	
  New York, NY 10013

  	
   

  	
  By:

  	
  /s/
  Kevin A. Ege

  
	
   

  	
  Attn: Joshua Rosenthal

  	
   

  	
   

  	
  Kevin A. Ege

  
	
   

  	
   

  	
   

  	
   

  	
  Director

  



 


Signature
Page


 


7

















 


	
  Address:

  	
  633 17th St.

  	
   

  	
  BANK OF THE WEST

  
	
   

  	
  20th Floor

  	
   

  	
   

  
	
   

  	
  Denver, CO 80202

  	
   

  	
  By:

  	
  /s/
  Robert Haynes

  
	
   

  	
  Attn: R. Haynes

  	
   

  	
   

  	
  Robert Haynes

  
	
   

  	
   

  	
   

  	
   

  	
  Vice President—Sr. Relationship Manager

  



 


Signature
Page


 


8

















 


	
  Address:

  	
  The Northern Trust Company

  	
   

  	
  THE NORTHERN TRUST COMPANY

  
	
   

  	
  50 S. LaSalle Street

  	
   

  	
   

  
	
   

  	
  Chicago, IL 60603

  	
   

  	
  By:

  	
  /s/
  Morgan A. Lyons

  
	
   

  	
  Attn: Morgan Lyons

  	
   

  	
   

  	
  Morgan A. Lyons

  
	
   

  	
   

  	
   

  	
   

  	
  Vice President

  



 


Signature
Page


 


9
















 


SCHEDULE 1


 


COMMITMENTS OF LENDERS


 


	
  LENDERS

  	
   

  	
  COMMITMENT

  PERCENTAGE

  	
   

  	
  REVOLVING

  CREDIT

  COMMITMENT

  AMOUNT

  	
   

  	
  MAXIMUM AMOUNT

  	
   

  
	
  KeyBank National Association

  	
   

  	
  18.57

  	
  %

  	
  $

  	
  65,000,000

  	
   

  	
  $

  	
  65,000,000

  	
   

  
	
  Wells Fargo Bank, National Association

  	
   

  	
  14.29

  	
  %

  	
  $

  	
  50,000,000

  	
   

  	
  $

  	
  50,000,000

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  14.29

  	
  %

  	
  $

  	
  50,000,000

  	
   

  	
  $

  	
  50,000,000

  	
   

  
	
  Compass Bank

  	
   

  	
  10.00

  	
  %

  	
  $

  	
  35,000,000

  	
   

  	
  $

  	
  35,000,000

  	
   

  
	
  JPMorgan Chase Bank

  	
   

  	
  10.00

  	
  %

  	
  $

  	
  35,000,000

  	
   

  	
  $

  	
  35,000,000

  	
   

  
	
  HSBC Bank USA, National Association

  	
   

  	
  10.00

  	
  %

  	
  $

  	
  35,000,000

  	
   

  	
  $

  	
  35,000,000

  	
   

  
	
  Citibank, N.A.

  	
   

  	
  8.57

  	
  %

  	
  $

  	
  30,000,000

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Bank of the West

  	
   

  	
  7.14

  	
  %

  	
  $

  	
  25,000,000

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  The Northern Trust Company

  	
   

  	
  7.14

  	
  %

  	
  $

  	
  25,000,000

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  Total Commitment Amount

  	
   

  	
  100

  	
  %

  	
  $

  	
  350,000,000

  	
   

  	
  $

  	
  350,000,000

  	
   

  



 


S-1

















 


SCHEDULE 2


 


FOREIGN BORROWERS


 


None as of the Closing Date


 


S-2
















 


SCHEDULE 2.2


 


EXISTING LETTERS OF CREDIT


 


S-3

















 


	
  Amount USD

  	
   

  	
  Bank

  	
   

  	
  Maturity

  	
   

  	
  L/C No.

  	
   

  	
  Beneficiary/Comments

  
	
  US LOC’s

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $

  	
  605,506

  	
   

  	
  B of A

  	
   

  	
  10/31/2010

  	
   

  	
  7405878

  	
   

  	
  Liberty Mutual Insurance

  
	
  3,800,000

  	
   

  	
  KeyBank

  	
   

  	
  10/13/2010

  	
   

  	
  S309677

  	
   

  	
  Old Republic Insurance Company

  
	
  425,000

  	
   

  	
  B of A

  	
   

  	
  8/1/2011

  	
   

  	
  7410023

  	
   

  	
  Royal Indemnity Company/$367,000 at 9/30/2010

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  INT’L LOC’s

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NONE

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  $

  	
  4,830,506

  	
   

  	
  Total

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


S-4
















 


SCHEDULE 3


 


GUARANTORS OF PAYMENT


 


S-5

















 


Domestic Guarantors of Payment


 


TeleTech Customer Care Management (Colorado), LLC, a Colorado Limited
Liability Company


TeleTech Stockton, LLC, a Colorado Limited Liability Company


TeleTech Services Corporation, a Colorado Corporation


TeleTech Customer Care Management (West Virginia), Inc., a West
Virginia Corporation


TeleTech Government Solutions, LLC, a Colorado Limited Liability
Company


TeleTech International Holdings, Inc., a Delaware Corporation


Direct Alliance Corporation, an Arizona Corporation


OnDemand, LLC, a Colorado Limited Liability Company


TeleTech@Home, Inc., a Colorado Corporation


TeleTech South America Holdings, Inc., a Delaware Corporation


TeleTech Loan Services, LLC, a Colorado Limited Liability Company


 


S-6
















 


SCHEDULE 5.8


 


INDEBTEDNESS


 


S-7

















 


	
   

  	
   

  	
  $ in millions

  	
   

  
	
  Installment Purchase
  Agreements (a)

  	
   

  	
  2.8

  	
   

  
	
  Capital Leases (b)

  	
   

  	
  2.5

  	
   

  
	
  Letters of Credit (c)

  	
   

  	
  0.2

  	
   

  
	
  Grant (d)

  	
   

  	
  0.2

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  $

  	
  5.7

  	
   

  
					



 






Note (a) Owed to Cisco Systems by TeleTech Holdings, Inc.


Note (b) Facility leases accounted for as capital leases (see below)


Note (c) Letters of credit outside of the Credit Agreement (see below)


Note (d) Secretaria de Economia (Mexico)“ProSof” program grant
obligation of TeleTech México, S.A. de C.V.


 


Facility Leases


 


TeleTech Services Corp


 


	
  Lessor

  	
   

  	
  Description

  	
   

  	
  $ in

  millions

  	
   

  
	
  Ohio Valley Industrial and
  Business Development

  	
   

  	
  Moundsville, VA

  	
   

  	
  $

  	
  0.8

  	
   

  
	
  Falls Street Leasing Corp

  	
   

  	
  Niagara Falls, NY

  	
   

  	
  1.7

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Total

  	
   

  	
  $

  	
  2.5

  	
   

  



 


Letters of Credit (Outside of the Credit Agreement)


 


TeleTech — Spain


 


	
  Bank

  	
   

  	
  Description

  	
   

  	
  EUR

  Amount

  	
   

  	
  USD Amount (est.)

  	
   

  
	
  Caja General de Depositos

  	
   

  	
  Customer Guarantee - Servef

  	
   

  	
  151,766

  	
   

  	
  185,155

  	
   

  
	
  Caja General de Depositos

  	
   

  	
  Customer Guarantee - ACA

  	
   

  	
  4,874

  	
   

  	
  5,946

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Total

  	
   

  	
  156,640

  	
   

  	
  191,101

  	
   

  



 


S-8
















 


SCHEDULE 5.9


 


Liens


 


(See Attached)


 


S-9

















 


	
  Entity/Subject Name

  	
   

  	
  Service

  	
   

  	
  Jurisdiction

  	
   

  	
  Other Party

  	
   

  	
  Result

  	
   

  	
  File Date

  	
   

  	
  File

  Type

  	
   

  	
  File/Case/Book

  /Page #

  	
   

  	
  Collateral

  
	
  TELETECH
  CUSTOMER CARE MANAGEMENT (COLORADO), LLC

  	
   

  	
  UCC

  	
   

  	
  CO
  - SOS

  	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION AS AGENT

  	
   

  	
  RF

  	
   

  	
  6/16/2004

  	
   

  	
  UCC

  	
   

  	
  20042066173

  	
   

  	
  Existing
  and future accounts, related general intangibles, certain investment property
  representing Debtor’s ownership interests in foreign subsidiaries

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  2/14/2005

  	
   

  	
  AMDT

  	
   

  	
  20052016982

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1/20/2009

  	
   

  	
  CONT

  	
   

  	
  20092005436

  	
   

  	
   

  
	
  TELETECH
  SERVICES CORPORATION

  	
   

  	
  FED
  DEF SUIT

  	
   

  	
  CO
  - US DIST CRT

  	
   

  	
  AXIS
  REINSURANCE COMPANY

  	
   

  	
  RF

  	
   

  	
  11/21/2006

  	
   

  	
   

  	
   

  	
  06CV02345

  	
   

  	
   

  
	
  TELETECH
  SERVICES CORPORATION

  	
   

  	
  UCC

  	
   

  	
  CO
  - SOS

  	
   

  	
  KEYLEASE
  PLUS

  	
   

  	
  RF

  	
   

  	
  9/23/1999

  	
   

  	
  UCC

  	
   

  	
  19992053096

  	
   

  	
  Equipment
  - computer hardware and software “as detailed in vendor invoices held at
  KeyLease Plus”

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  7/27/2004

  	
   

  	
  CONT

  	
   

  	
  20042082368

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  6/11/2009

  	
   

  	
  CONT

  	
   

  	
  2009F050345

  	
   

  	
   

  
	
  TELETECH
  SERVICES CORPORATION

  	
   

  	
  UCC

  	
   

  	
  CO
  - SOS

  	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION AS AGENT

  	
   

  	
  RF

  	
   

  	
  6/16/2004

  	
   

  	
  UCC

  	
   

  	
  20042066171

  	
   

  	
  Existing
  and future accounts, related general intangibles, certain investment property
  representing Debtor’s ownership interests in foreign subsidiaries

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  2/2/2009

  	
   

  	
  CONT

  	
   

  	
  20092009295

  	
   

  	
   

  
	
  TELETECH
  SERVICES CORPORATION

  	
   

  	
  UCC

  	
   

  	
  CO
  - SOS

  	
   

  	
  CHASE
  EQUIPMENT LEASING INC.

  	
   

  	
  RF

  	
   

  	
  4/13/2005

  	
   

  	
  UCC

  	
   

  	
  20052039796

  	
   

  	
  Leased
  Equipment Airframe Manufacturer/Model: CESSNA 650 Airframe Serial No.:
  650-7053 U.S. Registration No.: N650AT Equipment based at Centennial Airport
  Englewood

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  2/9/2010

  	
   

  	
  CONT

  	
   

  	
  2010F011888

  	
   

  	
   

  
	
  TELETECH
  GOVERNMENT SOLUTIONS, LLC

  	
   

  	
  UCC

  	
   

  	
  CO
  - SOS

  	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION AS AGENT

  	
   

  	
  RF

  	
   

  	
  6/16/2004

  	
   

  	
  UCC

  	
   

  	
  20042066170

  	
   

  	
  Existing
  and future accounts, related general intangibles, certain investment property
  representing Debtor’s ownership interests in foreign subsidiaries

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  2/2/2009

  	
   

  	
  CONT

  	
   

  	
  20092009294

  	
   

  	
   

  



 


S-10

















 


	
  Entity/Subject Name

  	
   

  	
  Service

  	
   

  	
  Jurisdiction

  	
   

  	
  Other Party

  	
   

  	
  Result

  	
   

  	
  File Date

  	
   

  	
  File

  Type

  	
   

  	
  File/Case/Book

  /Page #

  	
   

  	
  Collateral

  
	
  TELETECH
  STOCKTON, LLC

  	
   

  	
  UCC

  	
   

  	
  CO
  - SOS

  	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION AS AGENT

  	
   

  	
  RF

  	
   

  	
  6/16/2004

  	
   

  	
  UCC

  	
   

  	
  20042066172

  	
   

  	
  Existing
  and future accounts, related general intangibles, certain investment property
  representing Debtor’s ownership interests in foreign subsidiaries

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1/20/2009

  	
   

  	
  CONT

  	
   

  	
  20092005435

  	
   

  	
   

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  FED
  DEF SUIT

  	
   

  	
  CO
  - US DIST CRT

  	
   

  	
  Axis
  Reinsurance Company, TeleTech Holdings, Inc., Samuel Grady
  Putnam, Jr.

  	
   

  	
  RF

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  06-CV-02345
  02-CV-01873 06-CV-00800

  	
   

  	
   

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  LOCAL
  JGMT

  	
   

  	
  CO
  - ARAPAHOE DIST CRT

  	
   

  	
  Axis
  Reinsurance Company, TeleTech Holdings, Inc., Samuel Grady
  Putnam, Jr.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  06-CV-02345
  02-CV-01873 06-CV-00800

  	
   

  	
   

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION, AS AGENT

  	
   

  	
  RF

  	
   

  	
  6/16/2004

  	
   

  	
  UCC

  	
   

  	
  41659616

  	
   

  	
  Existing
  and future accounts, related general intangibles, certain investment property
  representing Debtor’s ownership interests in foreign subsidiaries

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1/16/2009

  	
   

  	
  CONT

  	
   

  	
  90303294

  	
   

  	
   

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  CIT
  COMMUNICATIONS FINANCE CORPORATION

  	
   

  	
  RF

  	
   

  	
  3/30/2005

  	
   

  	
  UCC

  	
   

  	
  50965914

  	
   

  	
  Leased
  Equipment - Avaya Inc. server in San Diego, CA

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  CIT
  COMMUNICATIONS FINANCE CORPORATION

  	
   

  	
  RF

  	
   

  	
  10/7/2005

  	
   

  	
  UCC

  	
   

  	
  53113017

  	
   

  	
  Leased
  Equipment - Avaya Inc. server in North Hollywood, CA

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  CIT
  COMMUNICATIONS FINANCE CORPORATION

  	
   

  	
  RF

  	
   

  	
  10/7/2005

  	
   

  	
  UCC

  	
   

  	
  53113124

  	
   

  	
  Leased
  Equipment - Avaya Inc. server in Englewood, CO

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  CIT
  COMMUNICATIONS FINANCE CORPORATION

  	
   

  	
  RF

  	
   

  	
  10/7/2005

  	
   

  	
  UCC

  	
   

  	
  53113199

  	
   

  	
  Leased
  Equipment - Avaya Inc. server in North Hollywood, CA

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  CISCO
  SYSTEMS CAPITAL CORPORATION

  	
   

  	
  RF

  	
   

  	
  9/28/2007

  	
   

  	
  UCC

  	
   

  	
  73679692

  	
   

  	
  All
  equipment, fixtures and other personal property, except software, that is
  financed under Installment Payment Agreement No. 6004-IP002 dated
  3/27/07 (no additional specific description provided)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  10/19/2007

  	
   

  	
  AMDT

  	
   

  	
  73950952

  	
   

  	
   

  



 


S-11

















 


	
  Entity/Subject Name

  	
   

  	
  Service

  	
   

  	
  Jurisdiction

  	
   

  	
  Other Party

  	
   

  	
  Result

  	
   

  	
  File Date

  	
   

  	
  File

  Type

  	
   

  	
  File/Case/Book

  /Page #

  	
   

  	
  Collateral

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  CISCO
  SYSTEMS CAPITAL CORPORATION

  	
   

  	
  RF

  	
   

  	
  10/19/2007

  	
   

  	
  UCC

  	
   

  	
  73956066

  	
   

  	
  All
  equipment, fixtures and personal property, except software, that is financed
  under Installment Payment Agreement No. 6449-EA001-0 dated 10/4/07
  including IP Tel and UCC E-200 Agents and 400 Outbound Ports Infrastructure

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  2/25/2008

  	
   

  	
  AMDT

  	
   

  	
  80668424

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1/14/2009

  	
   

  	
  AMDT

  	
   

  	
  90140118

  	
   

  	
   

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  OCE
  NORTH AMERICA, INC.

  	
   

  	
  RF

  	
   

  	
  1/3/2008

  	
   

  	
  UCC

  	
   

  	
  80030245

  	
   

  	
  (1) Oce
  CPS900 Process Module REF Customer Agreement #00079358-01 to Master Agreement
  No. 515772

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  CISCO
  SYSTEMS CAPITAL CORPORATION

  	
   

  	
  RF

  	
   

  	
  9/12/2008

  	
   

  	
  UCC

  	
   

  	
  83106117

  	
   

  	
  All
  equipment, fixtures and personal property, except software, that is financed
  under Installment Payment Agreement No. 6004-EA002-0 dated 9/9/08
  (specific Spanlink and MSN product numbers of equipment listed in amendment)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1/14/2009

  	
   

  	
  AMDT

  	
   

  	
  90134467

  	
   

  	
   

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  CISCO
  SYSTEMS CAPITAL CORPORATION

  	
   

  	
  RF

  	
   

  	
  12/9/2008

  	
   

  	
  UCC

  	
   

  	
  84080071

  	
   

  	
  Routers,
  router components, other computer networking and telecommunications equipment,
  all related software and software license rights under any Master Agreement

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  CISCO
  SYSTEMS CAPITAL CORPORATION

  	
   

  	
  RF

  	
   

  	
  1/14/2009

  	
   

  	
  UCC

  	
   

  	
  90134442

  	
   

  	
  All
  equipment, fixtures and personal property, except software, that is financed
  under Installment Payment Agreement No. 6004-EA004-0 dated 1/9/09
  (specific Spanlink product numbers of equipment listed in amendment)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  7/6/2010

  	
   

  	
  AMDT

  	
   

  	
  02348575

  	
   

  	
   

  



 


S-12

















 


	
  Entity/Subject Name

  	
   

  	
  Service

  	
   

  	
  Jurisdiction

  	
   

  	
  Other Party

  	
   

  	
  Result

  	
   

  	
  File Date

  	
   

  	
  File

  Type

  	
   

  	
  File/Case/Book

  /Page #

  	
   

  	
  Collateral

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  CISCO
  SYSTEMS CAPITAL CORPORATION

  	
   

  	
  RF

  	
   

  	
  1/14/2009

  	
   

  	
  UCC

  	
   

  	
  90134475

  	
   

  	
  All
  equipment, fixtures and personal property, except software, that is financed
  under Installment Payment Agreement No. 6004-EA003-0 dated 1/9/09
  (specific MSN product numbers of equipment listed in amendment)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  7/6/2010

  	
   

  	
  AMDT

  	
   

  	
  02348609

  	
   

  	
   

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  CISCO
  SYSTEMS CAPITAL CORPORATION

  	
   

  	
  RF

  	
   

  	
  4/24/2009

  	
   

  	
  UCC

  	
   

  	
  91300729

  	
   

  	
  All
  equipment, fixtures and personal property, except software, that is financed
  under Installment Payment Agreement No. 6004-EA005-0 dated 3/23/09
  (specific product numbers of equipment listed in amendment)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  7/6/2010

  	
   

  	
  AMDT

  	
   

  	
  02348567

  	
   

  	
   

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  NATIONAL
  CITY COMMERCIAL CAPITAL COMPANY, LLC

  	
   

  	
  RF

  	
   

  	
  6/11/2009

  	
   

  	
  UCC

  	
   

  	
  91868832

  	
   

  	
  Equipment &
  Modem (only product nos. provided)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  9/11/2009

  	
   

  	
  TERM

  	
   

  	
  92921853

  	
   

  	
   

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  EMC
  CORPORATION

  	
   

  	
  RF

  	
   

  	
  6/11/2009

  	
   

  	
  UCC

  	
   

  	
  91868964

  	
   

  	
  Equipment
  - NAVAGT - WINKIT

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  NATIONAL
  CITY COMMERCIAL CAPITAL COMPANY, LLC

  	
   

  	
  RF

  	
   

  	
  6/11/2009

  	
   

  	
  UCC

  	
   

  	
  91869087

  	
   

  	
  Equipment &
  Modem (only product nos. provided)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  9/11/2009

  	
   

  	
  TERM

  	
   

  	
  92921077

  	
   

  	
   

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  EMC
  CORPORATION

  	
   

  	
  RF

  	
   

  	
  6/11/2009

  	
   

  	
  UCC

  	
   

  	
  91869160

  	
   

  	
  Equipment
  - NAVAGT - WINKIT

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  NATIONAL
  CITY COMMERCIAL CAPITAL COMPANY, LLC

  	
   

  	
  RF

  	
   

  	
  6/11/2009

  	
   

  	
  UCC

  	
   

  	
  91869244

  	
   

  	
  Equipment &
  Modem (only product nos. provided)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  9/11/2009

  	
   

  	
  TERM

  	
   

  	
  92920335

  	
   

  	
   

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  EMC
  CORPORATION

  	
   

  	
  RF

  	
   

  	
  6/11/2009

  	
   

  	
  UCC

  	
   

  	
  91869319

  	
   

  	
  Equipment
  - NAVAGT - WINKIT

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  AT&T
  CAPITAL SERVICES, INC.

  	
   

  	
  RF

  	
   

  	
  9/21/2009

  	
   

  	
  UCC

  	
   

  	
  93010177

  	
   

  	
  Leased
  telecommunications and data equipment

  
	
  TELETECH
  HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  AT&T
  CAPITAL SERVICES, INC.

  	
   

  	
  RF

  	
   

  	
  9/21/2009

  	
   

  	
  UCC

  	
   

  	
  93010185

  	
   

  	
  Leased
  telecommunications and data equipment

  



 


S-13

















 


	
  Entity/Subject Name

  	
   

  	
  Service

  	
   

  	
  Jurisdiction

  	
   

  	
  Other Party

  	
   

  	
  Result

  	
   

  	
  File Date

  	
   

  	
  File

  Type

  	
   

  	
  File/Case/Book

  /Page #

  	
   

  	
  Collateral

  
	
  TELETECH
  INTERNATIONAL HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION, AS AGENT

  	
   

  	
  RF

  	
   

  	
  6/16/2004

  	
   

  	
  UCC

  	
   

  	
  41660051

  	
   

  	
  Existing
  and future accounts, related general intangibles, certain investment property
  representing Debtor’s ownership interests in foreign subsidiaries

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1/16/2009

  	
   

  	
  CONT

  	
   

  	
  90304805

  	
   

  	
   

  
	
  TELETECH
  SOUTH AMERICA HOLDINGS, INC.

  	
   

  	
  UCC

  	
   

  	
  DE
  - SOS

  	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION, AS AGENT

  	
   

  	
  RF

  	
   

  	
  6/16/2004

  	
   

  	
  UCC

  	
   

  	
  41659939

  	
   

  	
  Existing
  and future accounts, related general intangibles, certain investment property
  representing Debtor’s ownership interests in foreign subsidiaries

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  1/16/2009

  	
   

  	
  CONT

  	
   

  	
  90304151

  	
   

  	
   

  
	
  TELETECH
  CUSTOMER CARE MANAGEMENT (WEST VIRGINIA), INC.

  	
   

  	
  UCC

  	
   

  	
  WV
  - SOS

  	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION, AS AGENT

  	
   

  	
  RF

  	
   

  	
  6/17/2004

  	
   

  	
  UCC

  	
   

  	
  200400510152

  	
   

  	
  Existing
  and future accounts, related general intangibles, certain investment property
  representing Debtor’s ownership interests in foreign subsidiaries

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  2/2/2009

  	
   

  	
  CONT

  	
   

  	
  200400510152

  	
   

  	
   

  



 


S-14
















 


SCHEDULE 6.1


 


Corporate Existence


TeleTech Holdings, Inc. and Subsidiaries


 


S-15

















 


	
  Entity/Legal Address

  	
   

  	
  Shareholder Corp.*

  	
   

  	
  State/Country of

  Incorporation

  	
   

  	
  State/Country

  Registrations*

  	
   

  	
  Dormant Subsidiary

  (Yes/No)*

  
	
  Direct Alliance
  Corporation

   

  Main
  Address: 8123 S.
  Hardy,

  Tempe, AZ 85284

  Carver
  Address: 910 W.
  Carver Rd., Tempe,

  AZ 85284

  	
   

  	
   

  	
   

  	
  Arizona

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Global One
  Insurance Company

  (f/k/a  Global One Captive Insurance Company)

   

  Principal
  Address:

  c/o Marsh
  Management Services 

  3131 E. Camelback
  Rd., #400

  Phoenix, AZ 85016

  	
   

  	
   

  	
   

  	
  Arizona

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Global One Colorado, Inc.

   

  Principal
  Address:

  9197 S. Peoria
  St.

  Englewood, CO
  80112

  	
   

  	
   

  	
   

  	
  Colorado

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  InCulture, LLC

  (f/k/aTeleTech
  InCulture, LLC)

   

  Principal
  Address:

  9197 S. Peoria
  St.

  Englewood, CO
  80112

  	
   

  	
   

  	
   

  	
  Colorado

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Marketplace
  Agent, Inc.

   

  Principal
  Address: 8123 S. Hardy,

  Tempe, AZ 85284

  	
   

  	
   

  	
   

  	
  Arizona

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OnDemand, LLC

   

  Principal
  Address:

  9197 S. Peoria
  St.

  Englewood, CO
  80112

  	
   

  	
   

  	
   

  	
  Colorado

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Percepta Holding,
  Inc.

  (f/k/a Ford Tel
  I)

   

  Principal
  Address:

  New Address
  effective 3/17/08:

  290 Town Center
  Drive, Suite 610

  Dearborn, MI
  48126

  	
   

  	
   

  	
   

  	
  Delaware

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Percepta, LLC

  (f/k/a Ford Tel
  II, LLC)

   

  Principal
  Address:

  New Address
  effective 3/17/08:

  290 Town Center
  Drive, Suite 610

  Dearborn, MI
  48126

  	
   

  	
   

  	
   

  	
  Delaware

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech
  Automotive, LLC

   

  Principal
  Address:

  9197 S. Peoria
  Street

  Englewood, CO
  80112

  [Brand that
  Newgen was going to use but did not proceed.]

  	
   

  	
   

  	
   

  	
  Colorado

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech@Home,
  Inc.

   

  Principal
  Address:

  9197 S. Peoria
  Street

  Englewood, CO
  80112

  	
   

  	
   

  	
   

  	
  Colorado

  	
   

  	
   

  	
   

  	
   

  



 


September
30, 2010






*      Provided
to Agent through seperate correspondence.


 


S-16

















 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  KS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  KY

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  LA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  MA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  MD

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  ME

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  MI

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  MN

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  MO

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  MS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  MT

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  NC

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  ND

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  NE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  NH

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  NM

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  NV

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  NY

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  OH

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  OK

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  PA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  SC

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  SD

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  TN

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  TX

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  UT

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  VA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  WA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  WI

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  WY

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Customer
  Care Management (California), LLC

   

  (f/k/a TeleTech
  Customer Care Management (California), Inc.) (f/k/a TeleTech
  Telecommunications, Inc.)

   

  Converted
  to an LLC 12/31/04

   

  Principal
  Address:

  9197 S. Peoria
  Street 

  Englewood, CO
  80112

  	
   

  	
  TeleTech Services
  Corporation (100%)

  [Sole Member]

  	
   

  	
  California

  	
   

  	
  CA

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Customer
  Care Management (Colorado), LLC

   

  (f/k/a TeleTech
  Customer Care Management (Colorado), Inc. (f/k/a TeleTech Teleservices, Inc.)

   

  Converted
  to an LLC 12/31/04

   

  Principal
  Address:

  9197 S. Peoria
  St.

  Englewood, CO
  80112

  	
   

  	
  TeleTech Services
  Corporation (100%)

  [Sole Member]

  	
   

  	
  Colorado

  	
   

  	
  AZ*

  CA

  CO

  FL

  MT

  NJw/drawing-need
  tax clearance)

  VA

  WA

   

  *d/b/a TeleTech
  Teleservices, Inc.

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Customer
  Care Management (West Virginia), Inc.

   

  Principal
  Address:

  9197 S. Peoria
  St.

  Englewood, CO
  80112

  	
   

  	
  TeleTech Services
  Corp. (100%)

  	
   

  	
  West Virginia

  	
   

  	
  WV

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Customer
  Care Management (New York), Inc.

   

  f/k/a TeleTech
  Facilities Management (Postal Customer Support), Inc.

   

  Principal
  Address:

  9197 S. Peoria
  St.

  Englewood, CO
  80112

  	
   

  	
  TeleTech Services
  Corp. (100%)

  	
   

  	
  Delaware

   

  *name change
  11/17/08

  	
   

  	
  CA*

  CO*

  DE

  PA*

  *name not changed
  w/SOS per Tax.

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech
  Financial Services Management, LLC

   

  Principal
  Address:

  9197 S. Peoria
  St.

  Englewood, CO
  80112

  	
   

  	
  TeleTech Services
  Corporation (100%)

  [Sole Member]

  	
   

  	
  Delaware

  	
   

  	
  CT (d/b/a TFS Management, LLC)

   

  DE

  PA

  	
   

  	
  Yes

  



 


S-17

















 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  OH (for TSC payroll purposes at Loraine site)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech
  Government Solutions, LLC

   

  Principal
  Address:

  9197 S. Peoria
  St.

  Englewood, CO
  80112

  	
   

  	
  TeleTech Services
  Corporation (100%)

  [Sole Member]

  	
   

  	
  Colorado

  	
   

  	
  AL 

  AZ

  CA

  CO

  CT

  FL

  GA

  IA

  MD

  NY

  PA

  SC

  VA

  D.C.

  WV

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech
  Holdings, Inc.

   

  Principal
  Address:

  9197 S. Peoria
  St.

  Englewood, CO
  80112

  	
   

  	
  Publicly held

  	
   

  	
  Delaware

  	
   

  	
  AZ

  CA

  CO

  DE

  NJ

  TX

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech
  International Holdings, Inc.

   

  Principal Address:

  9197 S. Peoria
  Street 

  Englewood, CO
  80112

  	
   

  	
  TeleTech
  Holdings, Inc. (100%)

  	
   

  	
  Delaware

  	
   

  	
  DE

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Loan
  Services, LLC

   

  Principal
  Address:

  9197 S. Peoria
  St.

  Englewood, CO
  80112

  	
   

  	
  TeleTech Services
  Corporation (100%)

  [Sole Member]

  	
   

  	
  Colorado

  	
   

  	
  All 50 states

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Services
  Corporation

  	
   

  	
  TeleTech
  Holdings, Inc. (100%)

  	
   

  	
  Colorado

  	
   

  	
  AL

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  AZ

  	
   

  	
   

  
	
  Principal
  Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  CA

  	
   

  	
   

  
	
  9197 S. Peoria
  St.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  CO

  	
   

  	
   

  
	
  Englewood, CO
  80112

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  CT

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  FL

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  GA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  IA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  IL

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  KS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  KY

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Mass.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  MD

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  MI

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  MO

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  MT*

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  NC

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  NJ

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  NV

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  NY

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  PA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  SC

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  TX

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  VA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  WA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  WV

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  *k/a TeleTech
  Services Montana OH is run thru TT Fin. Sery.
  because of trade name issue.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech South
  America Holdings, Inc.

  	
   

  	
  TeleTech
  Holdings, Inc. (100%)

  	
   

  	
  Delaware

  	
   

  	
  DE

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Principal
  Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9197 S. Peoria
  Street

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Englewood, CO
  80112

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech
  Stockton, LLC 

   

  Principal
  Address:

  9197 S. Peoria
  St.

  	
   

  	
  TeleTech Customer
  Care Management (CO), LLC (100%) [Sole Member]

  	
   

  	
  Colorado

  	
   

  	
  CO

  CA

  	
   

  	
  No

  



 


S-18

















 


	
  Englewood, CO
  80112

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ASIA/PACIFIC
  REGION CORPORATIONS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Finsource Inc.

   

  Primary Address:

  Building F

  SM Central
  Business park 

  1000 Bay
  Boulevard, Bay City

  Pasay City, Metro
  Manila,

  Philippines 1300

  	
   

  	
  TeleTech Customer
  Care Management Philippines, Inc. (100%)

  	
   

  	
  Philippines

  	
   

  	
   

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Percepta
  Philippines, Inc.

   

  Primary Address:

  Building F

  SM Central
  Business park

  1000 Bay
  Boulevard, Bay City

  Pasay City, Metro
  Manila,

  Philippines 1300

  	
   

  	
  Percepta Holding,
  Inc. (100%)

  	
   

  	
  Philippines

  	
   

  	
   

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sevtoy Pty. Limited

  [a/k/a Percepta
  Australia]

   

  Primary Address:

  Level 21, Hwt
  Tower, 40 City Road,

  Southbank
  Victoria 3006 (Australia)

  	
   

  	
  Percepta, LLC,
  f/k/a Ford Tel II, LLC (100%)

  	
   

  	
  New South Wales,
  AU

   

  (Proprietary
  Company)

  	
   

  	
   

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Asia
  Limited

   

  (relative to
  TeleTech (Hong Kong) Ltd.)

   

  Registered
  Address:

  c/o Modern
  Century Consultants Ltd. 

  Unit 702, 7/F.,

  Skyline
  Commercial Centre,

  71 Wing Lok
  Street

  Sheung Wan, Hong
  Kong

  	
   

  	
  TeleTech Europe
  B.V. (99.99%)

   

  TeleTech
  International Pty Limited Corp. (.01%)

  	
   

  	
  Hong Kong

  	
   

  	
  N/A

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Customer
  Care Management 

  Philippines, Inc.

   

  Primary Address:

  Building F

  SM Central
  Business park

  1000 Bay
  Boulevard, Bay City

  Pasay City, Metro
  Manila,

  Philippines 1300

  	
   

  	
  TeleTech Offshore
  Investments B.V. (100%)

   

  (Changed
  ownership from THI – effective w/PHP gov’t. 12/8/09.)

  	
   

  	
  Mandaluyong City,
  Metro Manila, Philippines

  	
   

  	
   

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Customer
  Management Pte Ltd 

   

  (f/k/a Bracton
  Enterprises Pte Ltd)

   

  Registered
  Office:

  1 Temasek Avenue

  #27-01 Millenia
  Tower

  Singapore 039192

  New Registered
  Office as of 10/1/10:

  8 Marina
  Boulevard #05-02

  Marina Bay
  Financial Centre Tower 1

  Singapore 018981

  	
   

  	
  TeleTech
  International Pty Ltd. (100%)

  	
   

  	
  Singapore

   

  Private Company

  	
   

  	
  N/A

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech
  Financial Solutions Pty Ltd

   

  Primary Address:

  154 Pacific Hwy

  St Leonards, NSW
  2065

  Australia

  	
   

  	
  TeleTech
  International Pty Ltd (100%)

  	
   

  	
  Australia

  	
   

  	
   

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech (Hong
  Kong) Limited

   

  (f/k/a iccare
  Limited) (f/k/a Pacific Lifestyle Telemarketing Limited)

  Registered Address:

  c/o Modern
  Century Consultants Ltd.

  Unit 702, 7/F.,

  Skyline
  Commercial Centre,

  71 Wing Lok
  Street

  Sheung Wan, Hong
  Kong

  	
   

  	
  TeleTech Europe
  B.V. (99.99%)

   

  TeleTech
  International Pty Ltd (.01%)

  	
   

  	
  Hong Kong

  	
   

  	
  Registered
  w/State of CA as of 3/27/08 for Koh litigation

  	
   

  	
  No

  



 


S-19

















 


	
  TeleTech
  International Pty Ltd

   

  (f/k/a Access 24
  Service Corporation Pty Ltd)

   

  Primary Address:

  154 Pacific Hwy

  St Leonards, NSW
  2065

  Australia

  	
   

  	
  TeleTech Europe
  B.V. (100%)

  	
   

  	
  Australia

   

  (Proprietary
  Company)

  	
   

  	
   

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech
  Korea, Inc.

   

  (a/k/a TeleTech
  Korea Yuhan Hoesa) 

   

  Just a bank
  account now.

  	
   

  	
  TeleTech Europe
  B.V. (100%)

  	
   

  	
  Korea

  	
   

  	
  Registered
  w/State of CA as of 4/24/08 for Koh litigation

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech New
  Zealand

   

  (f/k/a TeleTech
  Limited); (f/k/a Access 24 (Service Corporation) Limited; (f/k/a Boardroom
  Investments Limited)

   

  Primary Address:

  III Carlton Core
  Rd.

  1st Floor

  New Market, NZ

  	
   

  	
  TeleTech
  International Pty Ltd (100%)

  	
   

  	
  New Zealand

   

  (Unlimited
  Liability Company)

  	
   

  	
   

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TT Interaction
  Management Sdn. Bhd.

   

  Registered
  Office:

  Level 21-Suite 21.01

  The Gardens South Tower

  Mid Valley City

  Lingkaran Syed Putra

  59200 Kuala Lumpur

  	
   

  	
  TeleTech Customer
  Care Management Pte Ltd (100%)

  	
   

  	
  Malaysia

   

  (Private Company,
  Limited by Shares)

  	
   

  	
  N/A

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TTEC Malaysia
  Sdn. Bhd.

   

  (f/k/a Global Era
  Gains Sdn. Bhd.)

   

  Registered
  Office:

  Level
  21-Suite 21.01

  The Gardens South
  Tower

  Mid Valley City

  Lingkaran Syed
  Putra

  59200 Kuala
  Lumpur

  	
   

  	
  TT Interaction
  Management Sdn. Bhd. (100%)

  	
   

  	
  Malaysia

   

  (Private Company,
  Limited by Shares)

  	
   

  	
   

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CANADIAN
  REGION CORPORATIONS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Percepta, ULC

   

  (f/k/a CRC Canada ULC)

  (f/k/a 3038713)

   

  Primary Address:

  5775 Yonge St.,
  Suite 1200

  Toronto, Ontario
  M2M 4J1

  Canada

  	
   

  	
  Percepta
  Holding, Inc. (100%)

  	
   

  	
  Nova Scotia

  	
   

  	
   

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Canada
  Inc.

   

  (f/k/a EDM
  Electronic Direct Marketing, Limited)

   

  Primary Address:

  250 York Street,
  #100

  London, Ontario
  N6A 6K2 

  Canada

  	
   

  	
  TeleTech
  Holdings, Inc. (100%)

  	
   

  	
  Ontario, Canada

  	
   

  	
  Alberta

  British Columbia

  Manitoba

  Newfoundland

  Nova Scotia

  Ontario

  Quebec

  Saskatchewan

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EUROPEAN
  REGION CORPORATIONS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Percepta
  Belgique-Belgie BVBA

   

  Address:

  Steenweg op
  Merchtem 54

  1780 WEMMEL

  Belgium

  	
   

  	
  Percepta
  Holding, Inc. (100%)

  	
   

  	
  Belgium

  	
   

  	
   

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Percepta
  Deutschland GmbH

   

  Primary Address:

  Josef-Lammerting
  Allee 24-34 

  50933
  Kohn-Braunsfeld, Germany

  	
   

  	
  Percepta
  Holding, Inc. (100%)

  	
   

  	
  Germany

  	
   

  	
   

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Percepta France

  	
   

  	
  Percepta
  Holding, Inc. (100%)

  	
   

  	
  France

  	
   

  	
   

  	
   

  	
  Yes

  



 


S-20






 












 


	
  Address:

  1-3, rue
  d’Enghien

  75010 PARIS

  France

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Percepta Italia S.R.L.

   

  Address:

  Via Mirabello 119

  350380 Torreglia

  Italy

  	
   

  	
  Percepta
  Holding, Inc. (100%)

  	
   

  	
  Italy

  	
   

  	
   

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Percepta (South
  Africa) (Proprietary) Limited

   

  (f/k/a Percepta
  South Africa)

   

  Primary Address:

  The Old Match
  Factory

  3 St Michael’s
  Road

  Observatory

  Cape Town, South
  Africa 7935 (new)

  	
   

  	
  Percepta
  Holding, Inc. (100%)

  	
   

  	
  South Africa
  (Private Co.)

  	
   

  	
   

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Percepta Spain
  S.L.

   

  Business Address:

  Calle Vallehermoso
  82

  28015 Madrid 

  Spain

  	
   

  	
  Percepta
  Holding, Inc. (100%)

  	
   

  	
  Spain

  	
   

  	
  N/A

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Percepta UK
  Limited

   

  c/o RMS
  Associates

  6 Braid Court
  Lawford Road

  Chiswick, London
  W4 3HS

   

  Business Address:

  283-289 West
  Campbell St.,

  Glasgow, G2 4TT
  UK

  	
   

  	
  Percepta Holding, Inc.
  (100%)

  	
   

  	
  UK (England and
  Wales) 

   

  (Private Ltd Co.)

  	
   

  	
  N/A

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech UK
  Limited

   

  (f/k/a Heliotrack
  Limited

   

  Registered
  Address:

  12 Caxton Street

  London SW1H 0QS

  United Kingdom

  	
   

  	
  TeleTech Services Corporation (100%)

   

  (transferred
  ownership from THI on 12/29/06) 

  	
   

  	
  UK 

   

  (Private Limited
  Company)

  	
   

  	
   

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Customer
  Care Management (Ireland) Limited

   

  Registered
  Address:

  7th Floor, Hume
  House

  Ballsbridge,
  Dublin 4, Ireland

  	
   

  	
  TeleTech Services Corporation (100%)

  	
   

  	
  Ireland

  	
   

  	
   

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Customer
  Services Spain, S.L.U.

   

  (f/k/a Difusioi
  Promocions Catalanes S.L.)

   

  Address:

  Calle Badajoz
  143-145

  08018 Barcelona,
  Spain

  	
   

  	
  TeleTech
  Holdings, Inc. (100%)

  	
   

  	
  Spain

  	
   

  	
  N/A

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Customer
  Services Spain CLM S.L.U.

  (f/k/a Lonewolf,
  S.L)

   

  New Address
  effective 12/5/08

  Calle Corredera
  57 1° B

  Almansa 02640
  Albacete, Spain

  	
   

  	
  TeleTech Customer
  Services Spain, S.L.U. (100%)

  	
   

  	
  Spain

  	
   

  	
   

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Europe
  B.V.

   

  Principal
  Address:

  Laan van
  Vlaanderen 327

  1066 WB Amsterdam

  The Netherlands

  	
   

  	
  TT International
  C.V. (100%)

  	
   

  	
  Amsterdam, The
  Netherlands

   

  (Private Limited
  Liability Company)

  	
   

  	
   

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Global
  Services Spain, S.L.

  (f/k/a Bancroft
  Investments S.L.)

  	
   

  	
  TeleTech Customer
  Services Spain, S.L.U.

  (100%) 

  	
   

  	
  Spain

  	
   

  	
  Doing business in
  Costa Rica through Costa

  	
   

  	
  Yes

  



 


S-21

















 


	
  New Address
  effective 7/1/08

  Calle Badajoz
  143-145

  Barcelona 08018,
  Spain

   

  Costa
  Rica Branch: See TeleTech Global Services Spain SLU

  Building B1, Zona Franca del Este San Gabriel de Calle
  Blancos

  San Jose, Costa
  Rica

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Rica Branch

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Offshore
  Investments B.V.

   

  Principal
  Address:

  Laan van
  Vlaanderen 327

  1066 WB Amsterdam

  The Netherlands

  	
   

  	
  TeleTech Europe
  B.V. (100%)

  	
   

  	
  Amsterdam, The
  Netherlands

  	
   

  	
   

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech South
  Africa (Proprietary) Limited

   

  Primary Address:

  The Old Match
  Factory

  3 St Michael’s
  Road

  Observatory

  Cape Town, South
  Africa 7935

  	
   

  	
  TeleTech Europe
  B.V. (100%)

  	
   

  	
  South Africa
  (Private Co.)

  	
   

  	
   

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Spain At
  Home Services, SL.

  *Current
  name—changed in 6/09

   

  (f/k/a Kirkwood
  Spain S.L.)

   

  Address:

  Calle Badajoz
  143-145

  08018 Barcelona,
  Spain

  	
   

  	
  TeleTech Customer
  Services Spain, S.L.U. (100%)

  	
   

  	
  Spain

  	
   

  	
  Spain

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TT International
  C.V.

   

  Principal
  Address:

  Laan van
  Vlaanderen 327

  1066 WB Amsterdam

  The Netherlands

  	
   

  	
  TeleTech Holdings, Inc. (44.515%) (Limited
  Partner)

   

  TeleTech Services
  Corp. (54.604%) (Limited Partner)

   

  TeleTech South
  America (.881%) (Limited Partner)

   

  TeleTech
  International Holdings, Inc. (Managing Partner)

  	
   

  	
  Amsterdam, The
  Netherlands

   

  (Limited
  Partnership)

  	
   

  	
   

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LATIN
  AMERICA REGION CORPORATIONS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Comlink S.A.

   

  Primary Address:

  175 Chacabuco
  St., 3rd Fl.

  Buenos Aires,
  Argentina Cl069AAC

  	
   

  	
  50% TeleTech
  South America Holdings, Inc.

   

  50% - TeleTech
  Services Corp.* (pursuant to merger of
  TeleTech Customer Care Management. Inc.)

  	
   

  	
  Argentina

  	
   

  	
  N/A

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Customer
  Care Management (Ghana) Limited

   

  Primary Address:

  c/o
  Sey & Co

  Fidelity House, 20
  Ring Road Central

  P.O. Box KA
  9918

  ACCRA, Ghana

  	
   

  	
  TeleTech Europe
  B.V. (100%)

  	
   

  	
  Ghana

  	
   

  	
   

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Servicios y Administraciones del Bajio, S. de R.L.
  de C.V.

   

  Primary Address:

  Plaza de la Republica No. 43

  Colonia Tabacalera

  Codigo Postal 06030

  Delegacion Cuauhtemoc

  Mexico, D.F.

  	
   

  	
  TeleTech South
  America Holdings, Inc. (99.7%)

  TeleTech Customer
  Care Mgmt (CO), LLC (0.3%)

  	
   

  	
  Mexico

  	
   

  	
  N/A

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Servicios SSI Integrates, S. De R.L. De C.V.

   

  Primary Address:

  Plaza de la Republica No. 43

  Colonia Tabacalera

  Codigo Postal 06030

  Delegacion Cuauhtemoc

  Mexico, D.F.

  	
   

  	
  TeleTech South
  America Holdings, Inc. (99.7%)

  TeleTech Customer
  Care Management (CO), LLC (0.3%)

  	
   

  	
  Mexico

  	
   

  	
  N/A

  	
   

  	
  Yes

  



 


S-22

















 


	
  TeleTech
  Argentina S.A.

   

  Primary Address:

  175 Chacabuco
  St., 3rd Fl.

  Buenos Aires,
  Argentina C1069AAC

  	
   

  	
  TeleTech Europe
  B.V. (95%)

   

  TeleTech Offshore
  Investments B.V. (5%)

  	
   

  	
  Argentina

  	
   

  	
  N/A

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Brasil
  Servicos Ltda.

   

  (f/k/a Teletech
  Brasil Servicios De Informatica Ltda.); (f/k/a Outsource Informatica Ltda.) —
  name changed 8/19/98

   

  Primary Address:

  Av. Maria Coelho
  Aguiar, 215

  Bloco A — 7 andar

  São Paulo 05805-000

  Brazil

  	
   

  	
  TeleTech Europe
  B.V. (99.9%)

   

  TeleTech Offshore
  Investments B.V. (0.1%)

  	
   

  	
  Brazil

  	
   

  	
  N/A

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Customer
  Care Management Costa Rica, S.A.

   

  Primary Address:

  De Durman
  Esquivelen

  Calle Blancos
  150M Norte

  Edificio C

  Zona Franca del Este

  San Jose, Costa
  Rica

  	
   

  	
  TeleTech Europe
  B.V. (100%)

  	
   

  	
  Costa Rica

  	
   

  	
   

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

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

   

  (f/k/a Telemercadeo
  Integral S.A. de C.V.)

  [Name changed effective 9/1/99.]

   

  Primary Address:

  Plaza de la Republica No. 43

  Colonia Tabacalera

  Codigo Postal 06030

  Delegacion Cuauhtemoc

  Mexico, D.F.

  	
   

  	
  TeleTech Services
  Corp (99.99%)

  TeleTech Customer
  Care Management (CA), LLC (.01%)

  	
   

  	
  Mexico

  	
   

  	
  N/A

  	
   

  	
  No

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TeleTech Venezuela, C.A.

   

  (f/k/a
  Inversiones Blower 2003, C.A.)

   

  Av. Francisco de Miranda con cruce

  Av. Libertador

  Torre KPMG

  Caracas, Venezuela

  	
   

  	
  TeleTech Customer
  Care Management (CO), LLC (100%)

  	
   

  	
  Venezuela

  	
   

  	
  N/A

  	
   

  	
  Yes

  



 


S-23

















 


SCHEDULE 6.4


 


Litigation and Administrative Proceedings


None.


 


S-24
















 


SCHEDULE 6.9


 


Locations


 


S-25

















 


	
  Location

  	
   

  	
  Address

  	
   

  	
  Note

  
	
  Dearborn,
  MI (Percepta)

  	
   

  	
  Fairlane
  Plaza North

  290 Town Center Drive

  Suite 610

  Dearborn, MI 48126

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Tempe, AZ

  	
   

  	
  Hardy Building

  8123 South Hardy Road

  Tempe, Arizona 85284

  and

  Carver Building

  910 West Carver Road

  Tempe, Arizona 85284

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Englewood,
  CO

  	
   

  	
  TeleTech - Corporate
  Office

  9197 South Peoria Street

  Englewood, CO 80112-5833

  	
   

  	
  Owned

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Kalispell,
  MT

  	
   

  	
  Gateway West Mall

  1203 Highway 2 West

  Kalispell, MT 59901

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lorain,
  OH

  	
   

  	
  1230 Park Avenue

  Amherst, OH 44001

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Melbourne,
  FL (Percepta)

  	
   

  	
  1320 South Babcock Street

  Melbourne, FL 32901

  	
   

  	
  Leased

  



 


S-26

















 


	
  Morgantown,
  WV

  	
   

  	
  5000 Greenbag Road

  Morgantown, WV 26501

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Moundsville,
  WV

  	
   

  	
  100 West TeleTech Dr.

  Moundsville, WV 26041

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Niagara
  Falls, NY

  	
   

  	
  333
  First Street

  Niagara Falls, NY 14303

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Springfield,
  MO

  	
   

  	
  1720 East Primrose Street

  Springfield, MO 65804

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Stockton,
  CA

  	
   

  	
  6221 West Lane

  Stockton, CA 95210

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Uniontown,
  PA

  	
   

  	
  1648 Mall Run Road

  Uniontown, PA 15401

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bremerton,
  WA

  	
   

  	
  1400 NE McWilliams Road

  Bremerton, WA 98311

  	
   

  	
  Client
  Site

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greenville,
  SC

  	
   

  	
  204 Halton Rd.
  Suite #500, Greenville, SC 29607

  	
   

  	
  Client
  Site

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  N.
  Hollywood, CA

  	
   

  	
  12215 Victory Blvd., N.
  Hollywood, CA 91606

  	
   

  	
  Sub-leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CANADA

  	
   

  	
  CANADA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Amherst,
  Nova Scotia

  	
   

  	
  Amherst Town Square

  147 South Albion Street

  Amherst, Nova Scotia

  B2H 2X2

  	
   

  	
  Leased

  



 


S-27

















 


	
  Halifax,
  Nova Scotia

  	
   

  	
  115 Chain Lake Drive

  Halifax, Nova Scotia

  B3S 1B3

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  London,
  Ontario

  	
   

  	
  City Plaza

  250 York Street

  Suite 100

  London, Ontario N6A 6K2

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  North
  Bay, Ontario

  	
   

  	
  390 Lakeshore Drive

  North Bay, Ontario

  P1A 2C7

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Orillia,
  Ontario

  	
   

  	
  2 Hunter Valley Road

  Orillia, Ontario L3V 6H2

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sudbury,
  Ontario

  	
   

  	
  40 Elm Street

  2nd Floor

  Sudbury, Ontario P3C 1S8

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Toronto
  (Percepta)

  	
   

  	
  5775 Yonge Street

  Suite 1200

  North York, Ontario

  M2M 4J1

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MEXICO

  	
   

  	
  MEXICO

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Guadalajara

  	
   

  	
  Parque
  Industrial Tecnologico II

  Anillo Periferico Sur No. 7980

  Col. Santa Maria Tequepexpan

  45600 Tlaquepaque, Guadalajara

  Jalisco Edificio 1 Int A

  	
   

  	
  Leased

  



 


S-28

















 


	
  Leon,
  Mexico

  	
   

  	
  Calle
  Loreto N 100,

  Colonia Peñitas

  Código Postal 37180

  León, Guanajuato México

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.F.,
  Mexico

  	
   

  	
  Plaza
  de la Republica No. 43

  Colonia Tabacalera

  Código Postal 06030

  Delegacion Cuauhtemoc

  México, D.F.

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  COSTA RICA

  	
   

  	
  COSTA RICA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Costa
  Rica

  	
   

  	
  De
  Durman Esquivelen

  Calle Blancos 150M Norte

  Edificio C 

  Zona Franca del Este 

  San Jose’, Costa Rica

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AUSTRALIA

  	
   

  	
  AUSTRALIA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  420 St
  Kilda Road 

  (Percepta/TeleTech)

  	
   

  	
  420 St Kilda Road 

  Level 9 

  Melbourne, AUS 3004

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sydney,
  Australia

  	
   

  	
  154 Pacific Highway 

  Levels 2, 4 & 7 

  St. Leonards, NSW 2065 

  Australia

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New South
  Wales, Australia (Percepta)

  	
   

  	
  Primary Address: 

  Level 21, Hwt Tower, 40 City Road, 

  Southbank Victoria 3006 (Australia)

  	
   

  	
  Percepta

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NEW ZEALAND

  	
   

  	
  NEW ZEALAND

  	
   

  	
   

  



 


S-29

















 


	
  New
  Market, New Zealand

  	
   

  	
  111 Carlton Gore Road 

  First Floor 

  New Market, NZ

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EUROPE

  	
   

  	
  EUROPE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Belfast

  Northern Ireland

  	
   

  	
  Northgate Industrial
  Estate 

  81-85 Duncairn Gardens 

  Belfast, Ireland BT15 2GQ

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Glasgow
  (Percepta)

  	
   

  	
  Edward
  House  

  First Floor 

  283-289 West Campbell Street 

  Glasgow, Scotland G2 4TT UK

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MALAYSIA

  	
   

  	
  MALAYSIA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Malaysia

  	
   

  	
  Menara Park 

  Level 8, Block D 

  No. 12 Jalan Yap Kwan Seng 

  Kuala Lumpur 50450 

  Malaysia

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PHILIPPINES

  	
   

  	
  PHILIPPINES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Makati
  City

  	
   

  	
  Ayala Life - FGU Center 

  Ground and Mezzanine Level 

  Tower One & Exchange Plaza 

  Ayala Triangle, Ayala Avenue 

  1226 Makati City 

  Philippines

  	
   

  	
  Leased

  



 


S-30

















 


	
  Bacolod

  	
   

  	
  Robinson’s Metro 

  Level 2 & Portion of Level 1 

  Araneta Street 

  Singcang 

  Bacolod City 

  6100 Negros Occidental 

  Philippines

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bacoor

  	
   

  	
  4th Floor 

  SM City Bacoor 

  Gen. Aguinaldo Cor. Tirona Highway 

  Brgy. Habay, Bacoor, Cavite 

  Philippines

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cainta

  	
   

  	
  Robinson’s Place 

  Level 2 & Portion of Level 1 

  Ortigas Avenue Extension 

  Barangay Sto. Domingo 

  Cainta, Rizal

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cebu

  	
   

  	
  Golden ABC Building 

  Building 7 

  880 A.S. Fortuna Street 

  Ground Floor, Canteen & 

  2nd Floor 

  Mandaue City, 6014 

  Cebu, Philippines

  	
   

  	
  Leased

  



 


S-31

















 


	
  Dumaguete
  City

  	
   

  	
  Dumaguete 

  South Road 

  National Highway 

  Barangay Calindagan 

  Dumaguete City 

  Negros Oriental

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Makati
  City

  	
   

  	
  Ecoplaza 

  2305 Don Chino Roces Extension 

  Makati City, Philippines 1231

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Iloilo

  	
   

  	
  3rd Level 

  SM City Iloilo 

  Benigno Aguino Avenue

  (Diversion Road) 

  Barangay Mandurriao 

  Iloilo City 5000 

  Philippines

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lipa City

  	
   

  	
  Robinson’s Place 

  National Highway 

  Portions of Level 1, 2 & 3 

  Lipa City 4217

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Manila

  	
   

  	
  Roxas Site 

  SM Central Business Park 

  Bldg. F., 1000 Bay Blvd. 

  Bay City, Pasay City, 

  Metro Manila 1300

  	
   

  	
  Leased

  



 


S-32

















 


	
  Novaliches

  	
   

  	
  Robinson’s Place 

  Level 2 & Portion of Level 1 

  1199 Qurino Highway 

  Barangay Pasong Putik 

  Novaliches, Quezon City 1123

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pampanga

  	
   

  	
  Ground Floor 

  Building 4 

  SM City Pampanga 

  Barangay San Jose 

  Olongapo - Gapan Road 

  City of San Fernando 

  Pampanga

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Santa
  Rosa

  	
   

  	
  Robinson’s Place Santa
  Rosa 

  Old National Highway 

  Level 2 

  Baranggay Tagapo 

  Santa Rose, Laguna 

  Philippines

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARGENTINA

  	
   

  	
  ARGENTINA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Buenos
  Aires

  	
   

  	
  Alsina, between Solis and
  Virrey Ceballos 

  Streets, City of Buenos Aires 

  Argentina

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Buenos
  Aires

  	
   

  	
  Bartolome
  Mitre 853/871  

  N°253/71  

  Units N°15, 16, 17 &
  18  

  Capital Federal

  	
   

  	
  Leased

  



 


S-33
















 


	
  Chacabuco

  	
   

  	
  Chacabuco
  between Hipolito Irigoyen & Adolfo  

  Alsina Street  

  City of Buenos Aires 

  Argentina

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rosario

  	
   

  	
  Ground Floor, 

  First Floor & Terrace Roof 

  Brown N° 2552 

  between Pueyrredon and Rodriguez Streets 

  Rosario 

  Argentina

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BRAZIL

  	
   

  	
  BRAZIL

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sao
  Paulo, Brazil

  	
   

  	
  Edificio
  Bloco “A” 

  215 Maria Coelho Aguiar Street 

  

  Sao Paulo - SP - Brazil 

  CEP 05805-000

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SPAIN

  	
   

  	
  SPAIN

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Barcelona,
  Spain

  	
   

  	
  Calle Badajoz N°145 

  

  08018 

  Barcelona, Spain

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Madrid,
  Spain

  (Atocha)

  	
   

  	
  Calle Mendez Alvaro
  No. 9 

  Ground and 1st Floor 

  Madrid, Spain

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Madrid,
  Spain 

  (Commercial Mirasierra)

  	
   

  	
  Travesia
  de Costa Brava N°6 

  7th Floor 

  Madrid, Spain

  	
   

  	
  Leased

  



 


S-34

















 


	
  Oviedo,
  Spain

  	
   

  	
  Ed.
  El Cobre. Pol. Ind. Granda 

  Oviedo, Spain

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Toledo,
  Poligono

  	
   

  	
  Calle Valdemarias 

  Ground Floor and 

  Second Floor 

  Toledo, Poligono

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Valencia,
  Spain

  Carmelitas, 2

  	
   

  	
  Carmelitas, 2, Valencia 

  Spain

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Valencia,
  Spain

  	
   

  	
  Calle
  Pintor Vilar I, Valencia, Spain

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Madrid,
  Spain

  	
   

  	
  Calle Vallehermoso 82 

  28015 Madrid 

  Spain

  	
   

  	
  Percepta

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SOUTH
  AFRICA

  	
   

  	
  SOUTH
  AFRICA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  South
  Africa

  	
   

  	
  The Old Match Factory 

  21 Howe Street 

  Erf 26151 

  Observatory 

  Cape Town, South Africa 

  Units 1 to 19 

  (Basement, Ground, Mezzanine & First Floor)

  	
   

  	
  Leased

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HONG KONG

  	
   

  	
  HONG KONG

  	
   

  	
   

  



 


S-35

















 


	
  Sheung
  Wan, Hong Kong

  	
   

  	
  c/o Modern Century
  Consultants Ltd. 

  Unit 702, 7/F.,

  Skyline Commercial Centre, 

  71 Wing Lok Street 

  Sheung Wan, Hong Kong

  	
   

  	
  Registered
  Address

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SINGAPORE

  	
   

  	
  SINGAPORE

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Singapore

  	
   

  	
  1 Temasek Avenue 

  #27-01 Millenia Tower 

  Singapore 039192 

  New Registered Office as of 10/1/10: 

  8 Marina Boulevard #05-02 

  Marina Bay Financial Centre Tower 1 

  Singapore 018981

  	
   

  	
  Registered
  Address

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  KOREA

  	
   

  	
  KOREA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Registered
  office

  	
   

  	
  NA

  	
   

  	
  Only a
  bank account remains

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BELGUIM

  	
   

  	
  BELGUIM

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Belguim

  	
   

  	
  Steenweg
  op Merchtem 54  

  1780 WEMMEL  

  Belgium

  	
   

  	
  Percepta

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GERMANY

  	
   

  	
  GERMANY

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Germany

  	
   

  	
  Josef-Lammerting
  

  Allee 24-34 

  Koln, Deutschland 

  Cologne, Germany 50933

  	
   

  	
  Percepta

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FRANCE

  	
   

  	
  FRANCE

  	
   

  	
   

  



 


S-36

















 


	
  France

  	
   

  	
  1-3, rue d’Enghien 

  75010 PARIS 

  France

  	
   

  	
  Percepta

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ITALY

  	
   

  	
  ITALY

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Italy

  	
   

  	
  Via Mirabello 119 

  350380 Torreglia 

  Italy

  	
   

  	
  Percepta

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  THE NETHERLANDS

  	
   

  	
  THE NETHERLANDS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Amsterdam,
  The Netherlands

  	
   

  	
  Dufisco, Laan van
  Vlaanderen 327 

  1066 WB Amsterdam 

  The Netherlands

  	
   

  	
  Registered
  Address

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  VENEZUELA

  	
   

  	
  VENEZUELA

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Caracas,
  Venezuela

  	
   

  	
  Av.
  Francisco de Miranda con cruce 

  Av. Libertador 

  Torre KPMG 

  Caracas, Venezuela

  	
   

  	
  Registered
  Address

  



 


S-37
















 


SCHEDULE 6.11


 


EMPLOYEE
BENEFIT PLANS


 


S-52

















 


	
  US Benefits

  	
   

  	
  Carrier

  	
   

  	
  Comments

  
	
  Medical

  	
   

  	
  UnitedHealthcare Choice Plus Enhanced Plan

  Health Basic’s Plan (limited plan)

  	
   

  	
  All Sites – full time regular

  All Sites – full time regular

  
	
  Medical

  	
   

  	
  PT Health Reimbursement Arrangement (HRA)

  	
   

  	
  All Sites with PT Reg Employees

  
	
  Dental

  	
   

  	
  Delta Dental of Colorado PPO

  	
   

  	
  All Sites

  
	
  Vision

  	
   

  	
  Vision Service Plan - VSP

  	
   

  	
  All Sites – 100% EE paid

  
	
  Accident Plan

  	
   

  	
  AIG

  	
   

  	
  All Sites – 100% EE paid

  
	
  Basic Life & AD&D

  	
   

  	
  MetLife

  	
   

  	
  Term Insurance – 100% Employer Paid

  
	
  Long Term Disability

  	
   

  	
  MetLife

  	
   

  	
  100% Employer paid, for G&A only

  
	
  Supplemental Life & AD&D

  	
   

  	
  MetLife

  	
   

  	
  Optional term insurance for employee, spouse and children 100% paid
  by employee

  
	
  FSA

  	
   

  	
  Both Health and Dep. Care FSA plans

  	
   

  	
  100% paid by employee

  
	
  Short Term Disability

  	
   

  	
  MetLife

  	
   

  	
  Corp only 100% paid by Employer

  All sites except Corp 100% paid by employee

  
	
  401(k)

  	
   

  	
  TeleTech 401(k) Profit Sharing Plan

  	
   

  	
  Wells Fargo is vendor

  
	
  ESOP

  	
   

  	
  Amended and Restated TeleTech Holdings, Inc. 1999 Stock Option
  and Incentive Plan

  	
   

  	
  No longer active plan

  
	
  Deferred Comp

  	
   

  	
  TeleTech Deferred Compensation Plan

  	
   

  	
  TBG Mullin is vendor

  
	
  125 Plan

  	
   

  	
  TeleTech Employee Cafeteria Plan

  	
   

  	
   

  
	
  Employee Assistance Plan and FMLA

  	
   

  	
  ComPsych

  	
   

  	
   

  
	
  Commuter Plan

  	
   

  	
  TeleTech Administers

  	
   

  	
   

  



 


	
  Canada Benefits

  	
   

  	
  Carrier

  	
   

  	
  Comments

  
	
  Health Care

  	
   

  	
  Manulife Canadian Healthcare Plan

  	
   

  	
  Medical & Dental

  
	
  Basic AD&D

  	
   

  	
  Manulife

  	
   

  	
   

  
	
  Basic Life, Optional Life and LTD

  	
   

  	
  Sun Life

  	
   

  	
   

  
	
  Employee Assistance Plan

  	
   

  	
  Warren Shepell

  	
   

  	
   

  
	
  FMLA

  	
   

  	
  ComPsych

  	
   

  	
   

  
	
  Registered Retirement Savings Plan – RRSP

  	
   

  	
  Manulife

  	
   

  	
  Employee contributions

  
	
  Deferred Profit Sharing Plan - DPSP

  	
   

  	
  Manulife

  	
   

  	
  Employer match

  



 


	
  US and Canada

  Benefits

  	
   

  	
  Carrier

  	
   

  	
  Comments

  
	
  Business Travel Accident

  	
   

  	
  CIGNA

  	
   

  	
   

  



 


S-53

















 


SCHEDULE 6.16


 


MATERIAL AGREEMENTS


 


NONE


 


S-54
















 


SCHEDULE 6.18


 


INSURANCE


 


S-55

















 


	
  Line of Coverage

  	
   

  	
  Policy Term

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Global “All Risk” Property

  	
   

  	
  3/31/2010 – 3/31/2011

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  General Liability

  	
   

  	
  10/01/2009 – 10/01/2010 (renewing
  10/01/2010)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Umbrella Liability

  	
   

  	
  10/01/2009 – 10/01/2010 (renewing
  10/01/2010)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Automobile

  	
   

  	
  10/01/2009 – 10/01/2010 (renewing
  10/01/2010)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Foreign General Liability

  	
   

  	
  10/01/2009 – 10/01/2010 (renewing
  10/01/2010)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Foreign Workers Compensation

  	
   

  	
  10/01/2009 – 10/01/2010 (renewing
  10/01/2010)

  	
   

  



 


S-56

















 


	
  United Kingdom Employment Liability

  	
   

  	
  10/01/2009 – 10/01/2010
  (renewing 10/01/2010)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Workers Comp. Premium excluding Loss, Escros, LOC

  	
   

  	
  10/01/2009 – 10/01/2010 (renewing
  10/01/2010)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Fiduciary

  	
   

  	
  07/03/2010 – 08/01/2011

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Special Coverage

  	
   

  	
  10/01/2007 – 10/01/2010 (renewing
  10/01/2010)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Crime

  	
   

  	
  08/01/2010 – 08/01/2011

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Directors & Officers

  	
   

  	
  08/01/2010 – 08/01/2011

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Employed Lawyers

  	
   

  	
  10/01/2009 – 10/01/2010 (renewing
  10/01/2010)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Errors & Omissions

  	
   

  	
  08/01/2010 – 08/01/2011

  	
   

  



 


S-57

















 


	
  Employment Practices Liability

  	
   

  	
  07/03/2010 – 08/01/2011

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Cargo

  	
   

  	
  10/01/2010 – 10/01/2011

  	
   

  



 






* Deductible covered by Global One Insurance Co.


 


 


S-58
















 


EXHIBIT A


FORM OF


US BORROWER REVOLVING CREDIT NOTE


 


	
  $

  	
   

  	
  October 1, 2010

  



 


FOR VALUE RECEIVED, the undersigned, TELETECH HOLDINGS, INC.,
a Delaware corporation (“US 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 US
Borrower pursuant to Section 2.2(a) of the Credit Agreement,
whichever is less (or, in the event of currency fluctuations on Alternate Currency
Loans, such greater amount as may be outstanding), in lawful money of the
United States of America; provided that Revolving Loans that are Alternate
Currency Loans, as defined in the Credit Agreement, shall be payable in the
applicable Alternate Currency, as defined in the Credit Agreement, at the place
or places designated in the Credit Agreement. 
US Borrower also agrees to pay any additional amount that is required to
be paid pursuant to Section 11.21 of the Credit Agreement.


 


As used herein, “Credit Agreement” means the Credit
Agreement dated as of October 1, 2010, among US Borrower, the Foreign
Borrowers, as defined therein, the Lenders, as defined therein, KeyBank
National Association, as joint lead arranger, sole book runner and
administrative agent for the Lenders (“Agent”), Wells Fargo Bank, National
Association, as joint lead arranger and co-syndication agent, Bank of America,
N.A., as co-syndication agent, BBVA Compass, as co-documentation agent, and
JPMorgan Chase Bank, N.A., as co-documentation 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.


 


US 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 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 LIBOR Fixed Rate Loans, interest owing
thereon, and payments of principal and interest of any thereof, shall be shown
on the records of Lender by such method as Lender may generally employ;
provided that failure to make any such entry shall in no way detract from the
obligations of US Borrower under this Note.


 


E-1

















 


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, pursuant
to the terms of the Credit Agreement, 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 US Borrower Revolving Credit
Notes referred to in the Credit Agreement and is entitled to the benefits
thereof. 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.


 


Except as expressly provided in the Credit Agreement,
US 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.  US 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 US BORROWER, THE FOREIGN
BORROWERS, 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 INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS RELATED THERETO.


 


 


	
   

  	
  TELETECH HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


E-2

















 


EXHIBIT B


FORM OF


FOREIGN BORROWER REVOLVING CREDIT NOTE


 


	
  $[                        ]

  	
   

  	
  [            ],
  20[    ]

  



 


FOR VALUE RECEIVED, the undersigned,
[                                ]
(“Foreign 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


 


	
  [                          ]
  MILLION AND 00/100

  	
   

  	
  DOLLARS

  



 


or the aggregate unpaid principal amount of all
Revolving Loans, as defined in the Credit Agreement, made by Lender to Foreign
Borrower pursuant to Section 2.2(a) of the Credit Agreement,
whichever is less (or, in the event of currency fluctuations on Alternate
Currency Loans, such greater amount as may be outstanding), in lawful money of
the United States of America; provided that Revolving Loans that are Alternate Currency
Loans, as defined in the Credit Agreement, shall be payable in the applicable
Alternate Currency, as defined in the Credit Agreement, at the place or places
designated in the Credit Agreement. 
Foreign Borrower also agrees to pay any additional amount that is
required to be paid pursuant to Section 11.21 of the Credit Agreement.


 


As used herein, “Credit Agreement” means the Credit
Agreement dated as of October 1, 2010, among US Borrower, as defined
therein, the Foreign Borrowers, as defined therein, the Lenders, as defined
therein, KeyBank National Association, as joint lead arranger, sole book runner
and administrative agent for the Lenders (“Agent”), Wells Fargo Bank, National
Association, as joint lead arranger and co-syndication agent, Bank of America,
N.A., as co-syndication agent, BBVA Compass, as co-documentation agent, and
JPMorgan Chase Bank, N.A., as co-documentation 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.


 


Foreign 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 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 LIBOR Fixed Rate Loans, interest owing
thereon, and payments of principal and interest of any thereof, shall be shown
on the records of Lender by such method as Lender may generally employ;
provided that failure to make any such entry shall in no way detract from the
obligations of Foreign Borrowers under this Note.


 


E-3

















 


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, pursuant
to the terms of the Credit Agreement, 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 Foreign Borrower Revolving
Credit Notes referred to in the Credit Agreement and is entitled to the
benefits thereof.  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.


 


Except as expressly provided in the Credit Agreement,
Foreign 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.  FOREIGN 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 US BORROWER,
FOREIGN BORROWERS, 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 INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS RELATED THERETO.


 


 


	
   

  	
  [FOREIGN BORROWER]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


E-4

















 


EXHIBIT C


FORM OF


SWING LINE NOTE


 


	
  $ 25,000,000

  	
   

  	
  October 1, 2010

  



 


FOR VALUE RECEIVED, the undersigned, TELETECH
HOLDINGS, INC., a Delaware corporation (“US Borrower”), promises to pay to
the order of KEYBANK NATIONAL ASSOCIATION (“Swing Line 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


 


	
  TWENTY-FIVE MILLION AND 00/100

  	
   

  	
  DOLLARS

  



 


or the aggregate unpaid principal amount of all
Swing Loans, as defined in the Credit Agreement (as hereinafter defined), made
by Swing Line Lender to US Borrower pursuant to Section 2.2(c) of the
Credit Agreement, whichever is less, in lawful money of the United States of
America on the earlier of the last day of the 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 October 1, 2010, among US Borrower, the Foreign
Borrowers, as defined therein, the Lenders, as defined therein, KeyBank
National Association, as joint lead arranger, sole book runner and
administrative agent for the Lenders (“Agent”), Wells Fargo Bank, National
Association, as joint lead arranger and co-syndication agent, Bank of America,
N.A., as co-syndication agent, BBVA Compass, as co-documentation agent, and
JPMorgan Chase Bank, N.A., as co-documentation 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.


 


US 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 that 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 Swing Line Lender by such method as Swing Line Lender may generally employ;
provided, however, that failure to make any such entry shall in no way detract
from the obligation of US 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


 


E-5

















 


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 and is entitled to the benefits thereof.  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.


 


Except as expressly provided in the Credit
Agreement, US 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.  US 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 US 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 INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.


 


 


	
   

  	
  TELETECH HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


E-6

















 


EXHIBIT D


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 October 1, 2010 (the “Credit
Agreement”, the terms defined therein being used herein as therein defined),
among US Borrower, the Foreign Borrowers, the Lenders, as defined in the Credit
Agreement, KEYBANK NATIONAL ASSOCIATION, as joint lead arranger, sole book
runner and administrative agent for the Lenders (“Agent”), Wells Fargo Bank,
National Association, as joint lead arranger and co-syndication agent, Bank of
America, N.A., as co-syndication agent, BBVA Compass, as co-documentation
agent, and JPMorgan Chase Bank, N.A., as co-documentation agent, and hereby
gives you notice, pursuant to Section 2.5 of the Credit Agreement that
Borrowers hereby request a Loan (the “Proposed Loan”), and in connection
therewith sets forth below the information relating to the Proposed Loan as
required by Section 2.5 of the Credit Agreement:


 


(a)           The
Borrower requesting the Proposed Loan is
                                                  .


 


(b)           The
Business Day of the Proposed Loan is
                    ,
20    .


 


(c)           The
amount of the Proposed Loan is
$                              .


 


(d)                                 The Proposed Loan is to be a Base Rate Loan
         / Eurodollar Loan
      / Alternate Currency Loan
         / Swing
Loan          .  (Check one.)


 


(e)                                  If the Proposed Loan is a LIBOR Fixed Rate Loan, the Interest Period
requested is one month       , two months
      , three months, six months
      . (Check one.)


 


(f)            If
the Proposed Loan is an Alternate Currency Loan, the Alternate Currency requested
is
                      .


 


E-7

















 


The undersigned hereby certifies on behalf of
Borrowers 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


 


(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:

  	
   

  



 


E-8

















 


EXHIBIT E


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 October 1,
2010, among US Borrower, the Foreign Borrowers, as defined in the Credit
Agreement, the lenders named on Schedule 1 thereto (together with their
respective successors and assigns, collectively, the “Lenders”), KeyBank
National Association, as joint lead arranger, sole book runner and
administrative agent for the Lenders (“Agent”), Wells Fargo Bank, National
Association, as joint lead arranger and co-syndication agent, Bank of America,
N.A., as co-syndication agent, BBVA Compass, as co-documentation agent, and
JPMorgan Chase Bank, N.A., as co-documentation 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:

  	
   

  



 


E-9
















 


EXHIBIT F


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 October 1, 2010 (as the same may from time to
time be amended, restated, or otherwise modified, the “Credit Agreement”),
among TELETECH HOLDINGS, INC., a Delaware corporation (“US Borrower”), the
Foreign Borrowers, as defined therein, the lenders named on Schedule 1
thereto (together with their respective successors and assigns, collectively, the
“Lenders” and, individually, each a “Lender”), KEYBANK NATIONAL ASSOCIATION, as
joint lead arranger, sole book runner and administrative agent for the Lenders
(“Agent”), Wells Fargo Bank, National Association, as joint lead arranger and
co-syndication agent, Bank of America, N.A., as co-syndication agent, BBVA
Compass, as co-documentation agent, and JPMorgan Chase Bank, N.A., as
co-documentation agent.  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, the “Assigned Percentage”) of Assignor’s right, title and
interest in and to (a) the Commitment, (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 and an Assigned Amount as set forth on
subpart I.B of Annex 1 hereto (hereinafter, the “Assigned Amount”).


 


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 11.10(b) of the Credit
Agreement, by Administrative Borrower;


 


(b)           receipt
by Agent from Assignor of a fee of Three Thousand Five Hundred Dollars
($3,500), if required by Section 11.10 of the Credit Agreement;


 


E-10

















 


(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, and (iv) such other
information as Agent shall request; and


 


(d)           receipt
by Agent from Assignor or Assignee of any other information required pursuant
to Section 11.10 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 party 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,
Borrowers, 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 11.10 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 any
Borrower or any 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 Borrowers, 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 gross negligence or willful misconduct.  Assignee appoints Agent to take such action
as agent on


 


E-11

















 


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.


 


7.             Subsequent
Assignments.  After the Assignment
Effective Date, Assignee shall have the right, pursuant to Section 11.10 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 11.10 of the Credit Agreement, upon the
acceptance and consent of Administrative Borrower; provided that the execution
of this Assignment Agreement by Agent and, if necessary, by Administrative
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.


 


E-12

















 


13.           Counterparts.  This Assignment Agreement may be executed in
any number of counterparts, by different parties hereto in separate
counterparts and by facsimile signature, each of which 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.


 


[Remainder of page intentionally left blank.]


 


E-13

















 


14.           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 ANY OF THE BORROWERS, OR ANY THEREOF, ARISING
OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG EACH OF 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
              ,
  20    :

  	
   

  	
  day of
              ,
  20    :

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  KEYBANK NATIONAL
  ASSOCIATION,

  	
   

  	
  TELETECH HOLDINGS, INC.

  
	
  as Agent

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  



 


E-14

















 


ANNEX 1


TO


ASSIGNMENT AND ACCEPTANCE AGREEMENT


 


On and after the Assignment Effective Date,
after giving effect to all other assignments being made by Assignor on 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 BEING ASSIGNED TO ASSIGNEE

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Commitment Percentage of Revolving
  Credit Commitment 

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
  Assigned Amount

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II.

  	
   

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

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Commitment Percentage of Revolving
  Credit Commitment 

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Assignee’s Revolving
  Credit Commitment amount 

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III.

  	
   

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

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Commitment Percentage of Revolving
  Credit Commitment 

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Assignor’s remaining
  Revolving Credit Commitment amount

  	
   

  	
  $

  	
   

  	
   

  



 


E-15
















 


EXHIBIT G


FORM OF


ADDITIONAL FOREIGN BORROWER ASSUMPTION
AGREEMENT


 


This ADDITIONAL FOREIGN BORROWER ASSUMPTION AGREEMENT
(“Agreement”) is made effective as of
                        ,
20    , by and among                                 ,
a                   
(the “Obligor”), TELETECH HOLDINGS, INC., a Delaware corporation (“US Borrower”),
each Foreign Borrower, as defined in the Credit Agreement, as hereinafter
defined (each such Foreign Borrower, together with US Borrower shall be
referred to herein, collectively, as “Borrowers” and, individually, each a “Borrower”),
and KEYBANK NATIONAL ASSOCIATION, as joint lead arranger, sole book runner and
administrative agent under the Credit Agreement (“Agent”), on behalf of and for
the benefit of the Lenders, as defined in the Credit Agreement:


 


WHEREAS, Borrowers, Agent, Wells Fargo Bank, National
Association, as joint lead arranger and co-syndication agent, Bank of America,
N.A., as co-syndication agent, BBVA Compass, as co-documentation agent, and
JPMorgan Chase Bank, N.A., as co-documentation agent, and the Lenders are
parties to that certain Credit Agreement, dated as of October 1, 2010 (as the
same may from time to time be further amended, restated or otherwise modified,
the “Credit Agreement”, each capitalized term not defined herein being used
herein as therein defined) wherein Agent and the Lenders have agreed to make
Loans to Borrowers, and the Fronting Lender has agreed to issue Letters of
Credit to US Borrower on behalf of the Lenders, all upon certain terms and
conditions;


 


WHEREAS, pursuant to and in accordance with
Section 2.13(a) of the Credit Agreement, US Borrower has requested that,
effective on
                          ,
20       (the “FB Assumption Effective Date”),
the Obligor shall be designated as a “Foreign Borrower” under the Credit
Agreement; and


 


WHEREAS, Agent and the Lenders are willing to permit
the Obligor to become a “Foreign Borrower” under the Credit Agreement and the
Lenders are willing to make Loans to the Obligor pursuant to the Commitment,
upon certain terms and conditions as set forth in the Credit Agreement and in
this Agreement, one of which is that the Obligor shall assume all of the
Foreign Borrower Obligations, as hereinafter defined, and this Agreement is
being executed and delivered in consideration of each financial accommodation,
if any, granted to the Obligor by Agent and the Lenders and for other valuable
consideration;


 


NOW, THEREFORE, in consideration of the foregoing
premises and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Obligor hereby agrees as
follows:


 


1.                                       Assumption.  On and after the FB Assumption Effective
Date, the Obligor irrevocably and unconditionally assumes and shall be liable
for all of the obligations of a Foreign Borrower under the Credit Agreement and
the Related Writings (the “Foreign Borrower Obligations”) as fully as if such
Obligor had been an original party to the Credit Agreement, including, but not
limited to (a) all Loans made to or for the benefit of the Obligor;
(b) all other 


 


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indebtedness and other obligations now owing or
hereafter incurred by the Obligor, as a Foreign Borrower, to Agent and the
Lenders pursuant to the Credit Agreement and the other Loan Documents executed
in connection therewith; and (c) each renewal, extension, consolidation or
refinancing of any of the foregoing, in whole or in part.  For the avoidance of doubt, the Obligor does
not assume and shall not be liable for any Obligations of US Borrower under the
Credit Agreement (exclusive of Indebtedness of the Foreign Borrowers that is
guaranteed by US Borrower under the Credit Agreement).


 


2.                                       Obligor Party to the Credit Agreement.  On and after the FB Assumption Effective
Date, the Obligor shall (a) be designated a “Foreign Borrower” pursuant to
the terms and conditions of the Credit Agreement and this Agreement, and
(b) become bound by all representations, warranties, covenants, provisions
and conditions of the Credit Agreement and each other Loan Document applicable
to the Foreign Borrowers as if the Obligor had been the original party making
such representations, warranties and covenants.


 


3.                                       Additional Terms and Conditions.  [ADDITIONAL TERMS AND CONDITIONS APPLICABLE
TO EXTENSIONS OF CREDIT TO OBLIGOR IN THE APPLICABLE JURISDICTION OF OBLIGOR
WILL BE ADDED, AS APPROPRIATE, AS DETERMINED BY AGENT IN ITS REASONABLE
DISCRETION.]


 


4.                                       Representations and Warranties of the Obligor.  The Obligor represents and
warrants to Agent and each Lender that:


 


(a)                                  the
Obligor is an entity duly organized or formed or incorporated, validly existing
and in good standing (or comparable concept in the applicable jurisdiction) or
in full force and effect under the laws of its jurisdiction of organization or
formation, as the case may be, and is duly qualified or authorized to do
business in each jurisdiction in which the Obligor is doing business, to the
extent the failure to be so qualified or authorized would have a Material
Adverse Effect;


 


(b)                                 the
Obligor has full power, authority and legal right to execute and deliver this
Agreement, and to perform and observe the provisions hereof and of the Credit
Agreement and the Notes (if any) executed by the Obligor, and the officers
acting on behalf of the Obligor have been duly authorized to execute and
deliver this Agreement;


 


(c)                                  this
Agreement, the Credit Agreement, the Notes (if any) and any other Loan Document
executed by the Obligor are each valid and binding upon the Obligor and
enforceable against the Obligor in accordance with their respective terms; and


 


(d)                                 each
of the representations and warranties set forth in Article VI of the Credit
Agreement applicable to a Foreign Borrower are true and complete in all
material respects with respect to the Obligor as a Foreign Borrower under the
Credit Agreement, except to the extent that any thereof expressly relate to an
earlier date.


 


5.                                       Representations and Warranties of Borrowers and the Obligor.  Borrowers and the Obligor
represent and warrant to Agent and each Lender that:


 


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(a)                                  no
Default or Event of Default exists under the Credit Agreement, nor will any
occur immediately after the execution and delivery of this Agreement or by the
performance or observance of any provision hereof; and


 


(b)                                 neither
the execution and delivery of this Agreement, nor the performance and
observance of the provisions hereof, by the Obligor will conflict with, or
constitute a violation or default under, any provision of any applicable law or
of any material contract (including, without limitation, the Obligor’s
organizational, constituting or governing documents) or of any other material
writing binding upon the Obligor in any manner.


 


6.                                       Obligations of Borrowers and Each Guarantor Not Affected.  Anything herein to the contrary
notwithstanding, Borrowers and each Guarantor of Payment shall remain bound by
the terms and conditions of all of the Loan Documents to which such Borrower or
Guarantor of Payment is a party regardless of the assumption of the Obligations
by the Obligor hereunder or the enforceability thereof or of any of the Loan
Documents.


 


7.                                       Administrative Borrower as Process Agent.  Obligor hereby irrevocably authorizes and
appoints Administrative Borrower (or such other person, being resident in the
State of Ohio, as Obligor may by notice in writing to Agent substitute) to
accept service of all legal process arising out of, or connected with, the
Credit Agreement or any other Loan Document to which Obligor is a party and
service on Administrative Borrower (or such substitute) shall be deemed to be
service on Obligor.


 


8.                                       Conditions Precedent.  Concurrently with the execution of this
Agreement, US Borrower and the Obligor, as appropriate, shall:


 


(a)                                  satisfy
each of the conditions set forth in Section 2.13 of the Credit Agreement;


 


(b)                                 pay
all reasonable legal fees and expenses of Agent incurred in connection with
this Agreement;


 


(c)                                  cause
each other Borrower and Guarantor of Payment to consent and agree to and
acknowledge the terms of this Agreement; and


 


(d)                                 provide
such other items as may be reasonably required by Agent or the Lenders in
connection with this Agreement, including but not limited to the Security
Documents applicable to the Obligor.


 


9.                                       Binding Nature of Agreement.  All provisions of the Credit Agreement shall
remain in full force and effect and be unaffected hereby.  This Agreement is a Related Writing as
defined in the Credit Agreement.  This
Agreement shall bind and benefit Borrowers, the Obligor, and Agent and the
Lenders, and their respective successors and assigns.


 


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10.                                 Counterparts.  This Agreement may be executed in any number
of counterparts, by different parties hereto in separate counterparts and by
facsimile signature, each of which 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.


 


11.                                 Ohio Law to Govern.  The rights and obligations of all parties
hereto shall be governed by the laws of the State of Ohio, without regard to
principles of conflicts of laws.


 


[Remainder of page intentionally left blank.]


 


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JURY TRIAL WAIVER.  EACH OF THE UNDERSIGNED, 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
AGENT, THE LENDERS, OBLIGOR AND BORROWERS, OR ANY THEREOF, ARISING OUT OF, IN
CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
AMONG EACH OF 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 Agreement by their duly authorized officers as of the date first above
written.


 


	
   

  	
  OBLIGOR:

  
	
   

  	
   

  
	
   

  	
  [                                                            ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
   

  
	
   

  	
  Name:  

  	
   

  
	
   

  	
  Title:  

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TELETECH HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By:  

  	
   

  
	
   

  	
  Name:  

  	
   

  
	
   

  	
  Title:  

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [OTHER BORROWERS]

  
	
   

  	
   

  
	
   

  	
  AGENT:

  
	
   

  	
   

  
	
   

  	
  KEYBANK NATIONAL
  ASSOCIATION,

  as Agent on behalf of and for the benefit of the Lenders

  
	
   

  	
   

  
	
   

  	
  By:  

  	
   

  
	
   

  	
  Name:  

  	
   

  
	
   

  	
  Title:  

  	
   

  



 


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GUARANTOR ACKNOWLEDGMENT


 


Each of the undersigned consents and agrees to and
acknowledges the terms of the foregoing the Foreign Borrower Assumption
Agreement, dated as of
[                    ,
20    ].  Each of the
undersigned specifically agrees to the waivers set forth in such agreement,
including, but not limited to, the jury trial waiver.  Each of the undersigned further agrees that
the obligations of each of the undersigned pursuant to the Guaranty of Payment
and any other Loan Document to which any of the undersigned is a party shall
remain in full force and effect and be unaffected hereby.


 


	
  [                                        ]

  	
   

  	
  [                                          ]

  
	
   

  	
   

  	
   

  
	
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  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
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  [                                          ]

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
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  Name:

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [                                        ]

  	
   

  	
  [                                        ]

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  



 


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EXHIBIT H


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. (“US Borrower”),
refers to the Credit Agreement, dated as of October 1, 2010 (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),
among US Borrower, the Foreign Borrowers, the Lenders and KeyBank National
Association, as joint lead arranger, sole book runner and administrative agent
for the Lenders (“Agent”), Wells Fargo Bank, National Association, as joint
lead arranger and co-syndication agent, Bank of America, N.A., as
co-syndication agent, BBVA Compass, as co-documentation agent, and JPMorgan
Chase Bank, N.A., as co-documentation agent, and hereby gives you notice,
pursuant to Section 2.15 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 2.15 of the Credit Agreement.


 


The undersigned hereby requests Agent and the Lenders
to extend the Commitment Period from
                            
          ,
20     to
                                
          ,
20    .


 


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
2.15 and Article IV of the Credit Agreement have been satisfied.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  TELETECH HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


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